url stringlengths 55 59 | text stringlengths 0 1.43M | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/2261834/ | 421 Pa. Superior Ct. 428 (1992)
618 A.2d 412
Christopher M. WRIGHT, Appellant,
v.
Ronald L. SCHREFFLER, Individually and in his Capacity as an Employee of the Pennsylvania State University Department of University Safety; Thomas Harmon, Individually and in his Capacity as Supervisor of Investigator Ronald L. Schreffler and in his Capacity as Director of the Department of University Safety at the Pennsylvania State University; David Stormer, Individually and in his Capacity as Director of the Department of University Safety at the Pennsylvania State University and Employee of the Pennsylvania State University; the Pennsylvania State University; Thomas R. King, in his Capacity as Investigator and Employee of the State College Bureau of Police Services; Elwood Williams, Individually and in his Capacity as Chief of Police for the State College Bureau of Police Services; and Mayor Arnold Addison, in his Capacity as Mayor of the Borough of State College.
Superior Court of Pennsylvania.
Argued September 17, 1992.
Filed November 6, 1992.
Reargument Denied January 15, 1993.
*429 Joseph M. Devecka, State College, for appellant.
Michael E. Koll, State College, and James D. Young, Harrisburg, for appellees.
Before TAMILIA, JOHNSON and HESTER, JJ.
*430 TAMILIA, Judge:
Christopher M. Wright appeals the trial court's Order entered December 4, 1991 granting appellees' preliminary objections and dismissing with prejudice all counts of appellant's complaint for failure to state a claim or cause of action upon which relief may have been granted.
In 1985, appellant was arrested for possession and delivery of marijuana by appellees Officers Ronald L. Schreffler, who was acting as an employee of Pennsylvania State University Department of University Safety, and Thomas R. King, who was acting as an employee of the State College Bureau of Police Services. After appellant was convicted and sentenced in 1987, this Court reversed on the basis appellant had been entrapped as a matter of law. Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), allocatur denied, 526 Pa. 634, 584 A.2d 317 (1991). Appellant then filed an eighteen-count complaint for malicious prosecution, conspiracy, intentional infliction of emotional distress and punitive damages against King and Schreffler, as well as against Thomas Harmon and David Stormer, who were two supervisors of Schreffler and Pennsylvania State University. Additionally, the complaint named as defendants Elwood Williams, who was the Chief of Police of State College and King's supervisor, and Mayor Arnold Addison.
Although appellant's underlying conviction was reversed by this Court, the trial court sustained the appellees' preliminary objections, holding the claim for malicious prosecution failed since the initial criminal proceedings did not terminate in favor of appellant and since appellant did not show an absence of probable cause.
Appellant presents only one issue for our review. He argues a malicious prosecution action is not barred by an earlier finding of probable cause when the probable cause was predicated upon evidence of a crime induced by tactics amounting to entrapment as a matter of law. We agree and thus vacate the Order and remand the case for further proceedings.
*431 On an appeal from the sustaining of preliminary objections in the nature of a demurrer we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom. DiMarco v. Lynch Homes, 525 Pa. 558, 583 A.2d 422 (1990).
"In order to prevail on a claim of malicious prosecution, the plaintiff must show that the defendant maliciously instituted proceedings against the plaintiff, that the defendant did not have probable cause to institute the proceedings, and that the proceedings terminated in favor of the plaintiff." Motheral v. Burkhart, 400 Pa.Super. 408, 421, 583 A.2d 1180, 1187 (1990).
In dismissing the malicious prosecution counts, the trial court found as follows:
First, the initial or underlying proceedings did not terminate in favor of the Plaintiff. Second, although the conviction of the Plaintiff was reversed by the Superior Court, the Plaintiff cannot demonstrate the absence of probable cause by the arresting officers as the presence of probable cause was upheld by various judicial officers. The fact that the officers had probable cause is sufficient to defeat the cause of action of malicious prosecution.
(Slip Op., Grine, J., 12/23/91, p. 4.) The trial court reasoned a conviction conclusively establishes the existence of probable cause, regardless of whether it is subsequently reversed. The court stated "[i]implicit in the trial court's decision to submit the question to the jury is a finding of probable cause." (Slip Op. at 4.)
"Whether an `entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.'" Commonwealth v. Wright, 396 Pa.Super. 276, 288, 578 A.2d 513, 519 (1990), quoting Commonwealth v. Clawson, 250 Pa.Super. 422, 425, 378 A.2d 1008 (1977). Entrapment as a matter of law means the evidence was so overwhelming that reasonable minds could come to no other conclusion. Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989). "Probable cause is defined as `. . . a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent *432 man in the same situation in believing that the party is guilty of the offense.'" Cibrone v. Stover, 351 Pa.Super. 250, 254, 505 A.2d 625, 627 (1986), quoting Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 277, 488 A.2d 1117, 1122 (1985).
Here, the officers technically never had probable cause to think appellant was engaged in criminal activity because "reasonable grounds of suspicion" were derived exclusively from their own illegal entrapment tactics and not from other circumstances. In other words, excluding the improper police behavior which induced appellant into illegal activities, the police lacked other grounds for probable cause.
We disagree with the trial court's position that probable cause existed because appellant was initially convicted, and the subsequent reversal did not replace the initial establishment of probable cause by a magistrate and a jury.[1] Further, if we were to hold the initial conviction established the existence of probable cause, thereby foreclosing appellant's malicious prosecution claim, citizens wrongfully entrapped by the police would have no civil redress and police officers would not be deterred from employing similar tactics in the future. "Official conduct designed to provoke criminal behavior, or which creates a substantial risk that unwitting citizens will be implicated in criminal schemes, should not be tolerated in Pennsylvania." Commonwealth v. McGuire, 339 Pa.Super. 320, 334, 488 A.2d 1144, 1151 (1985). The trial court was in error in equating probable cause, based on information or evidence which is sufficient to trigger arrest and prosecution (even though it might not sustain a conviction or result in reversal after conviction), to entrapment where no probable cause existed. A preliminary finding of probable cause and conviction therefrom does not elevate entrapment to the level of protection afforded a lawful arrest when the ultimate finding of entrapment as a matter of law is made.
*433 Finally, appellees contend even if probable cause was missing, appellant does not plead facts sufficient to establish malice by the officers. "Malice may be inferred from want of probable cause." Wainauskis, supra at 279, 488 A.2d at 1123. Since we find the officers lacked probable cause to arrest and prosecute appellant, we infer their malicious intent.
Order vacated; case remanded for proceedings consistent with this Opinion.
Jurisdiction relinquished.
NOTES
[1] In support of its holding the trial court relies upon Bussard v. Neil, 616 F.Supp. 854 (D.C.Pa.1985), a case which this Court is not bound to follow. Additionally, we do not agree with the trial court's analysis since entrapment was not present in Bussard. Without the entrapment in the present case, there could not have been a charge or conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323294/ | 263 S.E.2d 356 (1980)
STATE of North Carolina
v.
Braxton CHAVIS.
STATE of North Carolina
v.
Mrs. Martin BULLARD.
STATE of North Carolina
v.
Martin BULLARD.
STATE of North Carolina
v.
Mrs. John L. BARTON.
STATE of North Carolina
v.
John L. BARTON.
STATE of North Carolina
v.
Sanford BARTON.
STATE of North Carolina
v.
James G. OXENDINE.
STATE of North Carolina
v.
Mrs. James G. OXENDINE.
No. 7916SC602.
Court of Appeals of North Carolina.
March 4, 1980.
*358 Atty. Gen. Rufus L. Edmisten by Kaye R. Webb, Associate Atty., Raleigh, for the State.
Seawell, Pollock, Fullenweider, Robbins & May, P. A., by Bruce T. Cunningham, Jr., Carthage, for defendants-appellants.
PARKER, Judge.
Defendants' sole assignment of error is directed to the trial court's refusal to instruct the jury that they should return a verdict of not guilty if they found that defendants failed to send their children to the assigned school because of their good faith belief that as American Indians they are exempt from school board attendance guidelines established at the direction of the Department of Health, Education, and Welfare. We find no error in the refusal to give the tendered instruction.
G.S. 115-166 provides in pertinent part:
Every parent, guardian or other person in this State having charge or control of a child between the ages of seven and 16 years shall cause such child to attend school continuously for a period equal to the time which the public school to which the child is assigned shall be in session. No person shall encourage, entice or counsel any such child to be unlawfully absent from school.
G.S. 115-169 provides:
Any parent, guardian or other person violating the provisions of this Article shall be guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars ($50.00) or imprisoned not more than 30 days, or both, in the discretion of the court.
*359 G.S. 115-166 does not explicitly require the parent to cause his child to attend the public school to which he is assigned, but instead requires only that the parent cause his child to attend school "for a period equal to the time which the public school to which the child is assigned shall be in session." However, G.S. 115-166 must be read in pari materia with G.S. 115-176 which provides in part that "[n]o child shall be enrolled in or permitted to attend any public school other than the public school to which the child has been assigned by the appropriate board of education." Thus, unless a parent chooses to have his child attend an approved nonpublic school, he must cause him to attend the public school to which he is assigned.
The record discloses that defendants had ample notice prior to the beginning of the 1978-79 school year that their children were assigned to Oxendine School, and there is ample evidence that they willfully caused them to attend Prospect School. In light of this, the question presented is whether their good faith belief that as American Indians they are exempt from compliance with the school assignment plan adopted by the Robeson County Board of Education pursuant to the mandate of the Department of Health, Education, and Welfare is a defense to the offense charged. As a matter of law, no such exemption exists. Although the American Indian tribes have been accorded a unique legal status by virtue of Art. I, § 8, cl. 3 of the Federal Constitution which empowers the Congress "To regulate commerce. . . . with the Indian tribes," even if defendants were members of a federally recognized tribe, which they concede they are not, the provisions of the Civil Rights Act of 1964 with respect to public school desegregation would apply no less to them. A distinction must be drawn between governmental requirements affecting the American Indian as a political classification and those affecting the American Indian as a racial classification. See, Morton v. Mancari, 417 U.S. 535, n. 24, 94 S.Ct. 2474, n. 24, 41 L.Ed.2d 290, n. 24 (1974). As one court has expressed it, laws or practices in the former category are "closely related to furthering the federally recognized interests of political sovereignty and tribal self-government and the classifications consequently depend on tribal membership or proximity to reservations." Booker v. Special Sch. Dist. No. 1, Minneapolis, 451 F.Supp. 659, 667 (D.Minn.1978), aff'd 585 F.2d 347 (8th Cir. 1978). Those in the latter category, however, are directed to a "racial" group consisting of "Indians," Morton v. Mancari, supra, and are to be judged no differently than other classifications based on race. In Booker, the United States district court held that a court-ordered desegregation plan which affected Indians not living on a reservation raised no question of the political status of Indians but, instead, affected them as a racial group. Thus, the court concluded that any variance from the plan, even if intended to promote the special needs of Indian children not living on a reservation, would raise serious questions under the equal protection clause of the Federal Constitution. Similarly, the desegregation plan pursuant to which the school district lines were established in 1970 in the present case, insofar as it affects the defendants and the other Indians in Robeson County, affects them, as it affects all other county residents, as members of a racial group and, as a matter of law, they are equally subject to the plan's mandate.
Although the record supports the good faith of defendants' belief in their exemption from the plan, that belief was based on a mistake of law, and the general rule is that a mistake of law, however bona fide, is no defense to prosecution for an act which violates the criminal laws unless the offense includes the element of willfulness or requires specific criminal intent. 21 Am. Jur.2d Criminal Law § 94, p. 176. The offense defined by G.S. 115-166 clearly does not require any specific intent, and this Court has previously held that willfulness is not an element of the offense. State v. Vietto, 38 N.C.App. 99, 247 S.E.2d 298 (1978), reversed on other grounds, 297 N.C. 8, 252 S.E.2d 732 (1979). Therefore, defendants' good faith belief, based as it was on a *360 misunderstanding of the law, could furnish no defense in a prosecution for the offense charged. We note that the defense offered in this case is distinguishable from that presented in State v. Miday, 263 N.C. 747, 140 S.E.2d 325 (1965). In that case, the defendant's child was refused admission to public school because he had not met the legal requirements for inoculation. The Supreme Court held that the defendant's good faith assertion of his perceived rights under a statute exempting children whose parents were bona fide members of a religious organization whose teachings opposed inoculation from having a certificate of inoculation for admission to school was a valid defense to a charge of violation of G.S. 115-166. In that case, the defense was provided by statute. In the present case, no defense, statutory or otherwise, exists. The trial court properly refused to give the tendered instruction.
No error.
MORRIS, C. J., and HILL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323299/ | 152 Ga. App. 566 (1979)
263 S.E.2d 455
NATIONAL FIRE INSURANCE COMPANY et al.
v.
EDWARDS; and vice versa.
58408, 58409.
Court of Appeals of Georgia.
Argued September 11, 1979.
Decided November 2, 1979.
Rehearing Denied November 27, 1979.
James E. Humes, II, Hugh Smith, for National Fire Ins. Co. et al.
Forrest L. Champion, Jr., for Edwards.
QUILLIAN, Presiding Judge.
This is an appeal from a judgment of the superior court which affirmed an award of the State Board of Workers' Compensation.
The claimant was injured when a windstorm or tornado struck a building in which he was working. The front wall of the building collapsed and parts of it fell on the claimant.
1. The appellant contends that for the injury to be compensable it must be shown that the claimant was exposed to the risk to a greater degree than the general public in the same vicinity. That is that causative danger must be peculiar to the work and not common to the neighborhood. The appellant cities Hartford Accident &c. Co. v. Cox, 61 Ga. App. 420 (6 SE2d 189) as authority for his contention. The appellant's interpretation of the Cox case is correct and it holds exactly what he argues. However, *567 we have determined that the Cox case does not set forth the better test to be applied when determining whether an injury which is caused by an Act of God is compensable. Without overruling the Cox case, this court in many later decisions has adopted the positional risk theory. This theory is that for the injury to be compensable it is only necessary for the claimant to prove that his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment. 1 Larson, Workers' Compensation Law §§ 8.12 and 8.30.
In Lewis Wood Preserving Co. v. Jones, 110 Ga. App. 689, 693 (140 SE2d 113) it is stated: "While some earlier cases seem to indicate that the causative danger must be peculiar to the work and not common to the neighborhood for injuries to arise out of and in the course of employment (see Maryland Cas. Co. v. Peek, 36 Ga. App. 557 (137 SE 121); Hartford Accident &c. Co. v. Cox, 61 Ga. App. 420 (6 SE2d 189)), later cases have been somewhat more liberal, saying that, `to be compensable, injuries do not have to arise from something peculiar to the employment.' Fidelity &c. Co. of N. Y. v. Barden, 79 Ga. App. 260, 262 (54 SE2d 433). `Where the duties of an employee entail his presence (at a place and a time), the claim for an injury there occurring is not to be barred because it results from a risk common to all others ... unless it is also common to the general public without regard to such conditions, and independently of place, employment or pursuit. New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 SE 786) cited in Globe Indemnity Co. v. MacKendree, 39 Ga. App. 58 (146 SE 46).' McKiney v. Reynolds &c. Lumber Co. 79 Ga. App. 826, 829 (54 SE2d 471). "The test applied in the Jones case, and the authorities cited approvingly therein, is the sounder test to be applied and is adopted by this court.
Subsequent to the Cox and Peek cases this court has declined to follow them and has held contrary to the test set out in those decisions. However, this court has allowed them to remain and by not overruling them has placed the bench and bar in the untenable position of having conflicting authorities in this area of the workers' *568 compensation law.
We feel that there is a duty upon this court to overrule those cases with which we do not agree and do not follow. Therefore, Hartford Accident &c. Co. v. Cox, 61 Ga. App. 420, supra, Maryland Cas. Co. v. Peek, 36 Ga. App. 557, supra, and any other decisions of this court which hold that the danger must be peculiar to the work and not common to the neighborhood for injuries to arise out of and in the course of the employment are overruled.
The judgment of the superior court in Case No. 58408 is affirmed.
2. In Case No. 58409 the claimant appeals from the denial of attorney fees on the grounds that the case was not defended on reasonable grounds. In view of that which is stated in Division 1 of this opinion the denial of attorney fees was proper.
Judgments affirmed in Case Nos. 58408 and 58409. Deen, C. J., McMurray, P. J.; Smith, Shulman, Banke, Birdsong, Underwood and Carley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323303/ | 360 S.E.2d 232 (1987)
STATE of West Virginia
v.
Tony HOLCOMB.
No. 17175.
Supreme Court of Appeals of West Virginia.
July 22, 1987.
*234 Robert Schulenberg, III, Asst. Atty. Gen., for appellant.
Carrie L. Newton, Daniel C. Taylor, Goodwin & Goodwin, Ripley, for appellee.
*233 McGRAW, Chief Justice.
This is an appeal by the appellant, Tony Holcomb, from a final order of the Circuit Court of Jackson County, entered June 27, 1985, which revoked the probation imposed upon his conviction of the offense of breaking and entering and sentenced him to imprisonment in the penitentiary for a period of not less than one nor more than ten years. The appellant challenges the validity of the revocation proceedings and of the sentence imposed. We find no error warranting reversal of the probation revocation, but we remand the case for resentencing.
The facts of this case are essentially undisputed. On March 31, 1983, the appellant pled guilty to a charge of breaking and entering in the Circuit Court of Jackson County. By order entered August 12, 1983, the trial court suspended imposition of sentence and placed the appellant on probation for a period of three years. In April 1984, the appellant's probation was extended for an additional two years.
On September 26, 1984, the appellant was arrested in connection with an armed robbery which occurred in Parkersburg, Wood County during his probationary period. On March 7, 1985, the appellant was convicted, after a jury trial in the Circuit Court of Wood County, of the felony of aggravated robbery. By order dated May 7, 1985, the Circuit Court of Wood County sentenced the appellant to ten years' imprisonment in the penitentiary and ordered him remanded to the custody of the Department of Corrections.
Meanwhile, arrest warrants had been issued in Jackson County on April 3, 1985, charging the appellant with violating his probation. Shortly after sentence was imposed by the Circuit Court of Wood County, the appellant was transferred to the Jackson County jail and, on May 23, 1985, was served with notice of a hearing to revoke his probation on the ground that he had been subsequently convicted of a felony.[1]
On June 3, 1985, the date set for the final revocation hearing in the Circuit Court of Jackson County, the appellant's court-appointed *235 attorney moved to dismiss the proceedings because there had been no preliminary revocation hearing. The court denied the motion on the ground that the appellant's detention in the Jackson County jail did not result in any deprivation of liberty which would entitle him to such a hearing. The final revocation hearing was continued on the motion of defense counsel and again on motion of the State. Defense counsel's motion for a transcript of the criminal proceedings in Wood County was denied.
On June 26, 1985, the final revocation hearing was conducted. The evidence consisted primarily of the orders of conviction and commitment entered by the Circuit Court of Wood County in the aggravated robbery case and the testimony of probation officers from both counties who identified the appellant as the person convicted of that crime. Upon this evidence, the circuit court revoked the appellant's probation.
Defense counsel thereupon moved that the appellant's sentence for the breaking and entering conviction run concurrently with the sentence for the robbery conviction and requested a later sentencing date to present evidence from the appellant's former employer in mitigation of punishment. The court held that a further hearing was unnecessary and imposed a sentence of imprisonment in the penitentiary for not less than one nor more than ten years for the crime of breaking and entering, such sentence to run consecutively with the sentence imposed by the Circuit Court of Wood County. This ruling was reduced to a final order entered June 27, 1985. It is from this order that the appellant prosecutes this appeal.
I.
The appellant's first contention on appeal is that the lower court erred in denying his motion for a preliminary revocation hearing. He contends that the failure to conduct a preliminary hearing amounts to a denial of due process and renders the proceedings against him void.
In Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976), we recognized that the due process clause of the Fourteenth Amendment of the United States Constitution requires a probationer who is arrested for violating the conditions of his probation to be afforded both a prompt preliminary hearing and a final revocation hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). We have also recognized, however, that the failure to afford a probationer a prompt preliminary hearing does not, in all circumstances, require reversal of an order revoking probation. "Most courts which have dealt with the failure to accord a probationer or parolee a prompt preliminary hearing focus on whether any prejudice has resulted. Unless prejudice can be shown which affects the integrity of the final revocation hearing, it will not be reversed." [Citations omitted.] State v. Dawson, 168 W.Va. 101, 282 S.E.2d 284, 286 (1981). See also State v. Goff, 168 W.Va. 285, 284 S.E.2d 362 (1981). In other words, in the absence of a showing of prejudice to the substantial rights of the probationer, an order revoking probation will not be reversed for failure to hold a prompt preliminary revocation hearing.
Here, no prejudice was alleged to have resulted from the failure to conduct a preliminary revocation hearing. The appellant had already been committed to the custody of the Department of Corrections upon his conviction of aggravated robbery in the Circuit Court of Wood County. Since the appellant would have been lawfully incarcerated regardless of the outcome of the probation revocation proceedings, his detention in the Jackson County Jail pending the final revocation proceeding involved no deprivation of liberty. The appellant was afforded notice of the grounds upon which revocation was sought and an opportunity to present evidence in his behalf at the final revocation hearing. The fact of the appellant's subsequent felony conviction was not disputed at any time.
In view of the facts of this case, we must conclude that the failure to conduct a preliminary hearing did not result in any prejudice *236 to the appellant. To reverse the revocation order and remand the case for new revocation proceedings in order to afford the appellant a new preliminary hearing would be a meaningless gesture at this stage. See United States v. Basso, 632 F.2d 1007 (2d Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981); United States v. Sutton, 607 F.2d 220 (8th Cir. 1979); Collins v. Turner, 599 F.2d 657 (5th Cir.1979); Lambur v. Chew, 356 F.Supp. 751 (E.D.Va.1973); People v. Gladdis, 77 Mich.App. 91, 257 N.W.2d 749 (1977); Pearson v. State, 308 Minn. 287, 241 N.W.2d 490 (1976); Ewing v. Wyrick, 535 S.W.2d 442 (Mo.1976); State v. Ellefson, 334 N.W.2d 56 (S.D.1983). Accordingly, we decline to reverse the judgment of the circuit court on this ground.
II.
The appellant next contends that the lower court erred in refusing his motion for a transcript of the proceedings in Wood County. The appellant asserts that the failure to provide him with a transcript amounted to a denial of due process in that it deprived him of the opportunity to challenge the testimony, evidence, procedures and findings upon which his conviction was based and to prepare a defense against revocation on the ground that the conviction was invalid.
It is well-settled that a defendant who has been convicted of a crime is entitled to a transcript of the proceedings against him for purposes of effectively prosecuting an appeal from such conviction and that the failure to provide such transcript, upon a timely request therefor, violates due process. Mayle v. Ferguson, ___ W.Va. ___, 327 S.E.2d 409 (1985); Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977); State ex rel. Johnson v. McKenzie, 159 W.Va. 795, 226 S.E.2d 721 (1976). Where the defendant is indigent, his right to a free transcript for appeal purposes is guaranteed by statute,[2] as well as by the state and federal constitutions. See, e.g., Mayle v. Ferguson, supra; State v. Moore, ___ W.Va. ___, 273 S.E.2d 821 (1980); State ex rel. Tune v. Thompson, 151 W.Va. 282, 151 S.E.2d 732 (1966).
Probation revocation proceedings are not, however, part of a criminal prosecution, and are not subject to the same strict procedural requirements attendant to a criminal trial. State v. Cooper, ___ W.Va. ___, 280 S.E.2d 95 (1981); Sigman v. Whyte, 165 W.Va. 356, 268 S.E.2d 603 (1980). See also State v. Fraley, 163 W.Va. 542, 258 S.E.2d 129 (1979). Where revocation is sought on the ground that the probationer has committed another offense in the course of the probationary period, the standard of proof is by a clear preponderance of the evidence and not the proof beyond a reasonable doubt required in a criminal trial. State v. Ketchum, 169 W.Va. 9, 289 S.E.2d 657 (1981); Sigman v. Whyte, supra. Because a probation revocation proceeding does not involve a determination of the probationer's guilt or innocence of a subsequent crime, it follows that the mere fact of a criminal conviction, after a trial at which the probationer was entitled to the full panoply of rights guaranteed a criminal defendant, is, in and of itself, sufficient evidence of a probation violation to warrant revocation of probation. United States v. Feinberg, 631 F.2d 388 (5th Cir.1980); People v. Robinson, 43 Cal.2d 143, 271 P.2d 872 (1954); State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973); People v. Davis, 65 Ill.2d 157, 2 Ill.Dec. 572, 357 N.E.2d 792 (1976); Hoffa v. State, 267 Ind. 133, 368 N.E.2d 250 (1977); State v. Woods, 215 Kan. 295, 524 P.2d 221 (1974); Hutchinson v. State, 44 Md.App. 182, 407 A.2d 359 (1979); State v. *237 Zachowski, 53 N.J.Super. 431, 147 A.2d 584 (1959). See generally Annot., 76 A.L.R.3d 588 (1977).
Of course, the final revocation hearing must afford the probationer certain minimal procedural protections. In Louk v. Haynes, supra, we outlined the requirements of due process in such proceedings:
"`(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking [probation or] parole.' Morrissey v. Brewer, supra, [92 U.S.] at 489 [92 S.Ct. at 2604]." Gagnon v. Scarpelli, supra, at 786, 93 S.Ct. at 1761-62. 159 W.Va. at 497, 223 S.E.2d at 790.
See also State v. Fraley, supra; Watson v. Whyte, 162 W.Va. 26, 245 S.E.2d 916 (1978). It is generally held, however, that a probationer has no right to use the revocation proceedings to attack the validity of an intervening conviction. See Reese v. United States Board of Parole, 530 F.2d 231 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976); Pope v. Chew, 521 F.2d 400 (4th Cir.1975); United States v. Garza, 484 F.2d 88 (5th Cir.1973); Buckelew v. State, 48 Ala.App. 418, 265 So.2d 202, cert. denied, 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512 (1972); People v. Clements, 72 Mich.App. 500, 250 N.W.2d 100 (1976); Miller v. State, 492 P.2d 669 (Okla.Crim.App.1971), cert. denied, 409 U.S. 888, 93 S.Ct. 137, 34 L.Ed.2d 145 (1972). As the Supreme Court stated in Morrissey v. Brewer:
We have no thought to create an inflexible structure for parole revocation procedures. The few basic requirements set out above, which are applicable to future revocations of parole, should not impose a great burden on any State's parole system. Control over the required proceedings by the hearing officers can assure that delaying tactics and other abuses sometimes present in the traditional adversary trial situation do not occur. Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime. (Emphasis added) 408 U.S. at 490, 92 S.Ct. at 2604-2605.
The conclusion we reach is that a probation revocation proceeding is not intended to serve the function of an appeal from an intervening criminal conviction. Where revocation is based solely on a subsequent conviction of a criminal offense, the probationer should be entitled to attack the conviction on the grounds that he was not the person convicted, that the offense of which he was convicted was other than the one specified as a probation violation, or that the probation violation report or petition is inaccurate or contains misinformation. See In re Edge, 33 Cal.App.3d 149, 108 Cal.Rptr. 757 (1973). In addition, the probationer is entitled to present evidence of facts and circumstances in mitigation of punishment. See State v. Ruby, supra; Buckelew v. State, supra; People v. Clements, supra. The probationer is not entitled, however, to turn the probation revocation hearing into a second trial on the merits or a full-blown appeal of the subsequent conviction. As a consequence, his right to a transcript of the intervening criminal proceedings must be resolved by reference to the purpose for which it is sought.
Here, the probationer's request for a transcript was unaccompanied by any specific assertion of error in the underlying criminal proceedings. No evidence was presented relating to the substance of the intervening offense at the final revocation hearing, and, indeed, at the final revocation hearing counsel for the appellant sought to exclude any such evidence. The State relied solely on the fact that the appellant *238 had been convicted of a felony in the Circuit Court of Wood County while on probation and proved that fact by sufficient evidence. See, e.g., United States v. Gentile, 610 F.2d 541 (8th Cir.1979); Pope v. Chew, 521 F.2d 400 (4th Cir.1975); United States v. Miller, 514 F.2d 41 (9th Cir.1975); United States v. Carrion, 457 F.2d 808 (9th Cir.1972); State v. Ruby, 650 P.2d 412 (Alaska App.1982); Crawford v. State, 166 Ga.App. 272, 304 S.E.2d 443 (1983); State v. Pearson, 424 So.2d 399 (La.App.1982). The appellant was afforded an opportunity to cross-examine the State's witnesses and to present evidence on the issues raised thereby. In these circumstances, we cannot say that the lower court's refusal to afford the appellant a transcript of his trial in the Circuit Court of Wood County constituted a violation of due process.
III.
The appellant next contends that the lower court erred in ordering his sentence to run consecutively with the sentence imposed by the Circuit Court of Wood County. The appellant relies on the provisions of W.Va. Code § 61-11-21 (1984 Replacement Vol.):
When any person is convicted of two or more offenses, before sentence is pronounced for either, the confinement to which he may be sentenced upon the second, or any subsequent conviction, shall commence at the termination of the previous term or terms of confinement, unless, in the discretion of the trial court, the second or any subsequent conviction is ordered by the court to run concurrently with the first term of imprisonment imposed.
The appellant contends that under this statute, the decision as to whether sentences for multiple offenses should run consecutively or concurrently is within the exclusive jurisdiction of the court before which the subsequent offense is tried, and that the Circuit Court of Jackson County was therefore without jurisdiction to order a consecutive sentence for the prior offense of breaking and entering.
We do not believe this statute is pertinent to the facts of this case. In State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892 (1960), the Court held that the inclusion in W.Va. Code § 61-11-21 of the phrase "before sentence is pronounced for either [offense]" rendered the statute inapplicable where the defendant had already been sentenced for the first offense prior to sentencing for the second offense. Although the facts in this case are reversed in that the sentence for the subsequent offense was imposed prior to the sentence for the prior offense,[3] the plain language of the statute would appear to render it equally inapplicable in these circumstances.
In the absence of an applicable statute, the sentencing court's authority to impose consecutive or concurrent sentences is derived from the common law. State ex rel. Yokum v. Adams, supra. In Yokum, the Court gave the following explanation of the common-law rules:
"[I]n the absence of a statute to the contrary if an accused is convicted of more than one offense and sentences are imposed by the same court they will be construed as running concurrently unless it clearly appears that the court intended that the sentences should run consecutively. [citing to 70 A.L.R. 1512, and 15 Am.Jur. Criminal Law § 465] ... While we are not concerned with the question in this case, it is the view of courts constituting the weight of authority that a court may make a sentence imposed by it cumulative to that of a sentence imposed by another court although there is substantial authority to the contrary. 57 A.L.R.2d 1412, 1427. (Emphasis added) 145 W.Va. at 454, 114 S.E.2d at 896.
Probation revocation proceedings are governed by W.Va. Code § 62-12-10, which provides, in pertinent part: "If it shall ... appear to the satisfaction of the court or judge that any condition of probation has *239 been violated, the court or judge may revoke the suspension of imposition or execution of sentence, impose sentence if none has been imposed, and order that sentence be executed." In interpreting similar statutory provisions along with the common-law rules regarding consecutive sentencing, a number of jurisdictions have held that a lower court has the power to order a sentence imposed or executed for violation of probation to run consecutively with a sentence imposed for an intervening crime. United States v. Wingender, 711 F.2d 869 (9th Cir.1983); United States v. Lustig, 555 F.2d 751 (9th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796 (1978); People v. Lorenzo, 644 P.2d 50 (Colo.App.1981); Kaylor v. State, 285 Md. 66, 400 A.2d 419 (1979).
The appellant contends, however, that the imposition of consecutive sentencing in this case violates principles of double jeopardy. The Double Jeopardy Clause of the Fifth Amendment prohibits the infliction of multiple punishments for the same offense. State v. Oldaker, ___ W.Va. ___, 304 S.E.2d 843 (1983); State ex rel. Betts v. Scott, 165 W.Va. 73, 267 S.E.2d 173 (1980); Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700 (1979). The appellant here argues that permitting the court revoking probation to order the original sentence of imprisonment to run consecutively to the intervening sentence would result in an increased punishment.
In Adams v. Circuit Court of Randolph County, ___ W.Va. ___, 317 S.E.2d 808 (1984), we rejected a similar argument in the case of a parolee who was convicted of a subsequent offense while on parole. When parole was revoked, the parole board ordered the parolee to serve the remainder of his original sentence before the commencement of the subsequent sentence which was ordered by the sentencing court to run consecutively with his prior conviction. In holding that the statute authorizing such action did not violate double jeopardy principles we held:
Adams is being punished for two separate criminal offenses. The punishment continues on the first indeterminate sentence of one-to-ten years as a result of his parole revocation. The second sentence is for the new felony of receiving stolen property. Thus, he is not being punished twice for the same offense. See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). 317 S.E.2d at 811-812.
The same rule obtains in probation revocation proceedings. United States v. Olivares-Martinez, 767 F.2d 1135 (5th Cir.1985); Tritt v. State, 625 P.2d 882 (Alaska App.1981).
It is evident that the enhanced sentence in this case arose from the appellant's subsequent conviction for aggravated robbery. "Consecutive sentences are an appropriate mechanism for imposing a distinct punishment for each of two criminal acts." United States v. Lustig, 555 F.2d at 753. Accordingly, we conclude that the consecutive sentence imposed did not violate the prohibition against double jeopardy.
IV.
The appellant's final assignment of error concerns the trial court's refusal to order a delay in sentencing to allow the appellant to present evidence in mitigation of punishment in the form of a written statement from his former employer. The appellant relies on W.Va.R.Crim.P., Rule 32(a)(1), which provides, in pertinent part:
Sentence shall be imposed without unreasonable delay. Before imposing sentence the court shall
* * * * * *
(B) afford counsel an opportunity to speak on behalf of the defendant; and
(C) address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.
We have recognized that this provision confers a right of allocution upon one who is about to be sentenced for a criminal offense. State v. Thompson, ___ W.Va. ___, 342 S.E.2d 268 (1986). See also State v. Carper, ___ W.Va. ___, 342 S.E.2d 277 (1986).
*240 The State concedes that the circuit court did not afford the appellant this right, but asserts that the error was harmless because no lesser sentence of imprisonment was available to the appellant. Accordingly, the State argues that there was no prejudice to the appellant in the court's denial of the continuance for the purpose of offering evidence of mitigation.
We disagree. Although the circuit court's discretion in sentencing the appellant was restricted to some extent by statute,[4] it was, as we have just seen, within the court's discretion to impose concurrent sentences. We believe that the court's admitted failure to afford the appellant an opportunity to present evidence of mitigating circumstances warranting imposition of concurrent sentences was clear error which invalidated the sentencing process.
The failure of the circuit court to follow the proper sentencing procedure does not affect the validity of the probation revocation. In such circumstances, the appropriate disposition is to remand the case to the circuit court for resentencing. State v. Thompson, supra; State v. Williams, ___ W.Va. ___, 305 S.E.2d 251 (1983); State v. Buck, ___ W.Va. ___, 294 S.E.2d 281 (1982). Upon remand the circuit court should afford the appellant the right of allocution.
For the reasons stated, herein, the judgment of the Circuit Court of Jackson County is reversed, and the case is remanded to that court for further proceedings in accordance with the principles set forth in this opinion.
Affirmed, in part; Reversed, in part, and remanded.
NOTES
[1] The notice also alleged that the appellant had violated the terms of his probation by consuming alcoholic beverages, failing to pay court costs and restitution, possessing a deadly weapon and to file a written report of activities. The first three of these charges were subsequently dismissed by the circuit court for failure of proof. The final charge was not ruled upon by the court and forms no part of this appeal.
[2] W.Va. Code § 51-7-7 (1981 Replacement Vol.) provides, in pertinent part:
In any case wherein an indigent person has filed a notice of intent to seek an appeal or writ of error ..., the court, or judge thereof in vacation, upon written request of such convicted person or his counsel, presented within sixty days after the entry of such judgment, shall, by order entered of record, authorize and direct the court reporter to furnish a transcript of the testimony and proceedings of the trial, or such part or parts thereof as such convicted person or his counsel shall have indicated in his request to be necessary, to the convicted person, without charge to him, for use in seeking his appeal or writ of error....
[3] The circuit court here suspended imposition of sentence at the time probation was granted and did not actually order a sentence of imprisonment for the offense of breaking and entering until probation was revoked in June 1985.
[4] W.Va. Code § 61-3-12 prescribes the penalty for breaking and entering as confinement in the penitentiary for "not less than one nor more than ten years."
W.Va. Code § 62-12-10 provides, in pertinent part:
"If, despite a violation of the conditions of probation, the court or judge shall be of the opinion that the interests of justice do not require that the probationer serve his sentence, the court or judge may, except when the violation was the commission of a felony, again release him on probation." In State ex rel. Hanley v. Hey, 163 W.Va. 103, 255 S.E.2d 354, cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 105 (1979), we held that this provision precludes a court from continuing the probation of one later convicted of a crime. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323311/ | 152 Ga. App. 547 (1979)
263 S.E.2d 487
TAYLOR et al.
v.
THOMPSON.
58882.
Court of Appeals of Georgia.
Submitted October 30, 1979.
Decided November 26, 1979.
Jerry M. Daniel, for appellants.
Wallace H. Pilcher, for appellee.
McMURRAY, Presiding Judge.
This case involves a dispute between plaintiffs and defendant resulting from the sale of land in which a deed to secure debt and promissory note were given by the plaintiffs to the defendant. Plaintiffs were seeking a decree requiring the release of certain lands, that the foreclosure of the loan deed be enjoined, and for other damages. By counterclaim, the defendant was seeking a judgment on the promissory note as being past due and unpaid, the installment note having been accelerated to *548 maturity. A verdict was rendered in favor of defendant for the amount of the note including principal, interest and attorney fees. On motion of the defendant to vacate and set aside the award of $1,000 attorney fees and to increase same in the amount of 15% of the principal and interest found by the jury to be due and owing by the plaintiffs, the court in its judgment, delineating the motion as a motion for judgment notwithstanding the verdict, awarded the principal and interest as found by the jury and increased the attorney fees in accordance with the motion. The judgment was dated December 27, 1978, and filed on the same date. Whereupon the plaintiffs filed a notice of appeal dated January 19, 1979, and filed on January 22, 1979.
On February 18, 1979, the defendant filed a motion to dismiss the appeal because the plaintiffs had failed to file a transcript of the evidence and proceedings within 30 days of the filing of the notice of appeal, had failed to obtain an extension of time for the filing of the transcript; and on information and belief that no transcript had been ordered from the court reporter it was counsel's opinion the appeal had been abandoned. The motion was to be heard on March 8, 1979, later changed to April 27, 1979, and later heard on April 30, 1979. At that time, following the hearing in which there was no appearance by counsel for the plaintiffs, the court was of the opinion that there had been an unreasonable delay on the part of the plaintiffs in obtaining the transcript, had failed to file a transcript, and the same constituted an unreasonable delay which delay was inexcusable and caused by the neglect or default of the plaintiffs. The order dismissing the appeal was dated May 1, 1979. On May 2, 1979, another order was entered stating that when the order of dismissal dated May 1, 1979, was presented to the court, counsel for the plaintiffs was present, and the court, after hearing his argument and justification for the denial of the order dismissing the appeal, reaffirmed the court's order of dismissal dated May 1, 1979. Plaintiffs appeal from the order dismissing the appeal. Held:
1. The time provided for filing the transcript of evidence and proceedings in appeals is no longer jurisdictional. However, the Appellate Practice Act, as *549 amended, Code Ann. § 6-809(b) (Ga. L. 1965, pp. 18, 29; 1965, pp. 240, 241; 1966, pp. 493, 500; 1968, pp. 1072, 1073, 1074; 1972, p. 624; 1978, p. 1986) provides that the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed "where there has been an unreasonable delay in the filing of such transcript and it is shown that the delay was inexcusable and was caused by such party; and in like manner, the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file pauper's affidavit ..."
In Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 55 (226 SE2d 737), the Supreme Court has held that the trial court in considering a motion to dismiss under the Appellate Practice Act must find "the delay was unreasonable and ... that the unreasonable delay was inexcusable," and the court must exercise a legal discretion which is subject to review in the appellate courts, citing Gilman Paper Company v. James, 235 Ga. 348 (219 SE2d 447). Here the trial court, after notice and hearing, counsel for the plaintiffs being given opportunity for additional hearing, dismissed the appeal because plaintiffs had failed to file a transcript of the record and failed to pay costs, and the same constituted an unreasonably delay and it was shown that the delay was inexcusable and caused by the neglect or default of the plaintiffs. We find no abuse of discretion on the part of the trial court in dismissing the appeal.
2. There is no merit in the contention by counsel for the plaintiffs that the trial court erred in failing to continue the hearing on April 30, 1979, upon being advised that plaintiffs' counsel was not present. On May 2, 1979, the trial court issued an order that after the hearing on April 30, 1979, counsel for plaintiffs was notified that the order dismissing the appeal would be presented to the court on May 1, 1979, at which time counsel for plaintiffs was present when the order was presented to the court and after hearing his arguments and justification for the denial of the order dismissing the appeal the order signed that date was reaffirmed. There is no merit in this *550 complaint.
3. Counsel for plaintiffs also contends that the trial court erred in failing to make findings of fact and conclusions of law as to the delay, citing Section 52 of the Civil Practice Act (Code Ann. § 81A-152 (a); Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171). The requirements of Code Ann. § 6-809 (b), supra, having been fulfilled, we do not believe that the Civil Practice Act (Code Ann. § 81A-152 (a)), supra, would control, although in the dismissal order the trial court has found specially that between January 19, 1979, and May 1, 1979, the plaintiffs had failed to file a transcript of the record and had failed to pay costs and "the same constituted an unreasonable delay and it further having been shown that the delay was inexcusable and caused by the neglect or default of the [plaintiffs]," the appeal was dismissed. All requirements of Code Ann. § 81A-152(a), supra, have been stated in this order. There is no merit in this complaint.
4. Every requirement of Code Ann. § 6-809 (b), supra, has been complied with in the dismissal of plaintiffs' appeal. The trial court has not, as contended by the plaintiffs, violated the plaintiffs' right to due process of law as therein claimed.
Having considered each and every enumeration of error set forth and argued by the plaintiffs in their brief, we find no reversible error.
Judgment affirmed. Banke and Underwood, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323323/ | 263 S.E.2d 886 (1980)
Roy HALL et al.
v.
James PIZZINO.
No. 14716.
Supreme Court of Appeals of West Virginia.
March 11, 1980.
William L. Jacobs, Parkersburg, for appellants.
D. Grove Moler, Mullens, for appellee.
CAPLAN, Justice:
This is an appeal from the Circuit Court of Wyoming County in which the appellants' petition for removal of the appellee, James Pizzino, from the office of Superintendent of Schools of Wyoming County was dismissed with prejudice. The issue before this Court is whether a county superintendent of schools is an officer within the meaning and intendment of W.Va.Code, 1931, 6-6-7 relating to removal by the circuit court of county, district and municipal officers having fixed terms. We conclude that a county superintendent of schools occupies a position contemplated by the legislature in enacting that statute, and therefore, reverse and remand for further proceedings.
The pertinent provisions of Code, 6-6-7 are as follows:
Any person holding any county, magisterial district, independent school district, or municipal office, including the office of a member of a board of education, the term or tenure or which office is fixed by law, whether elected or appointed thereto, except a judge of a court of record, may be removed by the circuit court of the county wherein such officer or person resides,. . . The charges may be preferred, in the case of any county officer, by the county court, or other tribunal in lieu thereof, any other officer of the county, or any five or more voters thereof; in the case of any magisterial district officer or independent school district officer, by the county court, sheriff, or prosecuting attorney of the county in which such district is located, any other officer of such district, or five or more voters thereof;. . .
The appellants, as voters of Wyoming County, filed a petition pursuant to the above statute, praying for the removal of the appellee, James Pizzino, from the office of county superintendent of schools. In the petition, it was alleged that Mr. Pizzino was guilty of official misconduct, malfeasance in *887 office and neglect of duty founded upon numerous factual allegations. The court found that Mr. Pizzino, as a county school superintendent, was not a "county officer" within the meaning and intendment of W.Va.Code, 1931, 6-6-7 and dismissed the action with prejudice.
In determining whether a county superintendent of schools occupies a position contemplated by the legislature in enacting this statute, we need to examine the statute in its historical context. The statutory section dealing with removal of county officers, as provided in Barnes' W.Va.Code Annotated, 1923, Chapter 7, Section 7, was modified and changed in 1931 to the current W.Va.Code, 1931, 6-6-7. At the time of the modification, school districts were not coextensive with county lines. Every magisterial district in each of the counties of the state was a school district. Each district elected a school board, which in turn appointed district supervisors. The electorate of each county elected a county superintendent to supervise the school district activities in that particular county. In 1933 a county unit system of education was adopted by our legislature. Under that system, the legislature provided that "A school district shall include all the territory in one county. Existing magisterial school districts and subdistricts and independent districts are abolished." W.Va.Code, 1931, 18-1-3, as amended. The language in W.Va.Code, 1931, 6-6-7 referring to officers of magisterial and independent school districts, however, was never amended, although the county unit system became the successor to the magisterial and independent school district system.
Without dealing with the phrases "magisterial district" or "independent school district" officers, this Court in County Court of Summers County v. Nicely, 121 W.Va. 767, 6 S.E.2d 485 (1939), in the Syllabus, held that "A county superintendent appointed by a Board of Education . . . is not a county officer, and is not subject to removal under the provisions of Code, 6-6-7. . ." There it was noted that prior to the enactment of the County Unit Law, there was a county office designated county superintendent of schools.
The duties of such office were broad and sweeping, and included powers of independent judgment and discretion. The holder thereof was elected for a fixed term of four years and was required to be a resident of the county in which he was elected. His duties were independent of any control on the part of any district board of education, and he was subject to removal by the State Board of Education. He was ex officio financial secretary of school affairs; was required and empowered to counter-sign all orders drawn on any school fund; was designated as the chief executive school officer of the county; and was in general charge of school affairs. In our judgment, he came within the definition of a public officer in that he was authorized to exercise some of the sovereign powers of the state . . . Id.
However, the Court concluded that with the enactment of the County Unit Law, county superintendents were not county officers within the meaning of the statute. In determining this issue, the Court applied the "public office" test of whether the holder exercises a part of the sovereignty of the state. Finding that any such sovereignty which the superintendent exercises is actually vested in the board of education by reason of its control over him, the Court concluded that a county superintendent does not occupy the position of a county officer.
Subsequent decisions limited Nicely to its particular facts and found that superintendents are public officials. In Rowan v. Board of Education of Logan County et al., 125 W.Va. 406, 24 S.E.2d 583 (1943), the Court found that the superintendent of schools is "armed with governmental power, namely, to nominate teachers and principals, and to assign, transfer, suspend, promote or dismiss teachers and other school employees. This makes him a public officer to whom we can apply the doctrine relating to de facto officials." In State ex rel. Rogers v. Board of Education of Lewis County et al., 125 W.Va. 579, 25 S.E.2d 537 (1943), this Court found that a county superintendent is an officer of the county school district *888 and not a mere employee of the board since he has a multitude of powers and duties independent of the board.
In Jackson v. Board of Education of Kanawha County et al., 128 W.Va. 154, 35 S.E.2d 852 (1945), this Court found that a county superintendent is a public officer within the meaning of Section 38, Article VI of the West Virginia Constitution prohibiting the increase or decrease of the salary of a public officer during his term of office. Also, in State ex rel. Anderson v. Board of Education of Mingo County, W.Va., 233 S.E.2d 703 (1977), this Court noted that a county superintendent of schools is an officer, not an employee, of the county board of education, and therefore, is not required to execute a contract relating to his official duties and services. In addition, a county superintendent is required to take the oath prescribed in the West Virginia Constitution for officers. W.Va.Code, 1931, 18-5-25, as amended. Furthermore, pursuant to W.Va.Code, 1931, 6-2-10, as amended, denominated "Bonds of County Officers" county superintendents of schools are included as county officers who "shall give bond with good security."
The members of the county boards of education together with the county superintendents of schools are entrusted with the duty of supervising the county educational systems. The powers and duties of each office are confined to the particular county in which the office is held. That members of county boards of education are subject to removal by circuit courts pursuant to W.Va. Code, 1931, 6-6-7 is expressly set forth in the statute. That the two offices, that of board member and that of superintendent, have different powers and duties in supervising county educational systems is also clear by statute. The powers and duties of county superintendents are set forth in W.Va.Code, 1931, 18-4-10 and 18-4-11, as amended, and 18-5-25, as amended. Under these sections, it is evident that county superintendents are not merely subject to the control of the county boards, but exercise "a multitude of powers and duties independent of the board." State ex rel. Rogers v. Board of Education, etc., supra. The superintendent acts as the chief executive officer of the county board of education and executes all of the educational policies of the state board. He nominates all personnel to be employed. In addition, he assigns, transfers, suspends or promotes teachers and all other school employees subject to the board's approval; has the authority to temporarily close a school when conditions are detrimental to the health, safety and welfare of the pupils; and acts in emergency situations according to the best interests of the school. These are just some of the statutorily enumerated duties. A county superintendent's duties include duties subject to approval of the board and duties independent of board action. His duties include powers of independent judgment and discretion.
Each county is a school district under the supervision and control of the county board and county superintendent. Since the legislature has expressly set forth that members of county boards are subject to removal pursuant to W.Va.Code, 1931, 6-6-7, and since board members and county superintendents have independent duties, we can discern no distinction in the character of the two offices which would warrant the conclusion that a board member is an officer subject to removal by the circuit courts while county superintendents are not. Whether a county superintendent of schools is a county officer or an officer of a school district, we find that the position is one contemplated by the legislature to be subject to removal by circuit courts if the term or tenure is fixed by law.
W.Va.Code, 1931, 18-4-1, as amended, sets forth that a county superintendent shall be elected by the county board of education to serve a term of not less than one, nor more than four years. Thereunder, the exact number of years to be served is determined by the board. However, the term of office is not left completely within the discretion of the board. The county board fixes the term upon election. Once that decision is made, the board can remove the superintendent from office only for certain misconduct pursuant to W.Va.Code, 1931, 18-4-3, as amended. Upon election, the superintendent's term becomes a fixed term within the statutory range.
*889 We therefore conclude that a county superintendent of schools elected by a board of education is an officer whose term or tenure is fixed by law and is subject to removal under the provisions of W.Va.Code, 1931, 6-6-7. To the extent that County Court of Summers County v. Nicely, 121 W.Va. 767, 6 S.E.2d 485 (1939), holds that a county superintendent is not subject to removal under W.Va.Code, 1931, 6-6-7, it is expressly overruled.
While the appellee argues that the public interest is well protected by other statutes which provide for the removal of a county superintendent, our examination of such statutes reveals that the remedies afforded thereby are inexpedient and do not furnish the public an effective means for the removal of such officer when cause exists. See W.Va.Code, 1931, 18-4-3, as amended (removal by county board of education); W.Va.Code, 1931, 6-6-1 (lays the basis for removal of a board member who refuses or fails to proceed against a county superintendent when facts so warrant); and, W.Va.Code, 1931, 18-3-4 (removal by state superintendent of schools). As aforesaid, the remedies provided by these statutes are indirect, circuitous and fail to afford the citizens the opportunity to act by petition for the expedient removal of a county superintendent when the facts warrant such action. We believe that the subject statute (6-6-7) was designed to afford such relief when needed.
For the reasons stated herein the judgment of the Circuit Court of Wyoming County is reversed and the case is remanded for further proceedings consonant with this opinion.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323704/ | 554 S.E.2d 1 (2001)
Kirsten DURLING, Tim Hull, and Dee Nichols,
v.
Kevin J. KING, individually, Kevin J. King d/b/a Kevin J. King and RBT Enterprises.
No. COA00-707.
Court of Appeals of North Carolina.
October 16, 2001.
*2 Van Camp, Hayes, & Meacham, P.A., by Michael J. Newman, Pinehurst for defendant.
Sanford Holshouser Law Firm, PLLC, by Kieran J. Shanahan and Daniel G. Cahill, Raleigh, for plaintiffs.
BIGGS, Judge.
Kevin J. King, individually and d/b/a Kevin J. King and RBT Enterprises, (defendant) appeals from the trial court's judgment and amended judgment finding defendant liable for breach of contract and for other injurious behavior towards Kirsten Durling, Tim Hull, and Dee Nichols (Durling, Hull, and Nichols, or, collectively, plaintiffs), and awarding damages to plaintiffs. The plaintiffs cross-appeal from the amended judgment's conclusion that the defendant had not engaged in deceptive and unfair trade practices, and from its denial of plaintiffs' motion for attorneys' fees and treble compensatory damages. We affirm in part and reverse in part.
Ty, Inc. is a manufacturer of toys and gift products, most notably small stuffed animals known as "Beanie Babies." Defendant began employment with Ty in 1992 as a salaried employee, and became a regional sales representative in 1995. As a sales representative, defendant traveled to card and gift shops in North Carolina to obtain orders for Ty, Inc.'s products. Pursuant to his employment contract, the defendant was allowed to hire "sub-representatives" to assist him in managing his sales contracts. This proved necessary in 1997, when Beanie Babies became immensely popular, and he could no longer manage all of the Beanie Baby contracts alone. Accordingly, defendant hired Nichols, Hull, and Durling. He assigned each of them Beanie Baby sales accounts to service, although he remained responsible to Ty, Inc. for the accounts. The parties agreed that plaintiffs would be paid on a commission basis, to be determined by the value of sales that were paid for and shipped by Ty to its customers. This lawsuit arises out of a dispute over these commissions.
Plaintiffs had no direct employment or contractual relationship with Ty, but only with defendant. Therefore, the documents that confirmed orders placed with and shipped by Ty were sent directly to defendant. These included shipping invoices and monthly sales summaries, from which defendant determined the commissions owed to plaintiffs. During 1997 and 1998, plaintiffs became concerned that defendant was not providing them with all the relevant sales information, or paying them all the commissions they were owed. The employment relationship among the parties ended in 1998.
*3 On 13 October 1998, plaintiffs filed suit against defendant and against Ty, Inc., alleging breach of contract, unfair and deceptive trade practices, negligent retention and supervision (by Ty, Inc., in its supervision of defendant), conversion, and unjust enrichment (quantum meruit). Plaintiffs sought an accounting of all commissions owed them, as well as costs, attorneys' fees, and treble compensatory damages. Defendant moved for summary judgment, which the trial court granted with respect to the claims for unjust enrichment and conversion. Before trial, plaintiffs dismissed their claims against Ty, Inc., leaving only the present defendant.
A jury trial was held in November, 1999. The jury found that defendant had breached his contracts with plaintiffs, and awarded damages for breach of contract in the amounts of $106,000 (Nichols), $24,000 (Durling), and $57,000 (Hull). The jury also answered the following questions affirmatively:
3. Did defendants do any one or more of [the] acts listed in the special interrogatories?
Special Interrogatories
(1) Did the defendant Kevin J. King, individually or through his trade names, Kevin J. King or RBT Enterprises, [make] efforts to conceal from the Plaintiffs or otherwise prevent them from discovering the true amount of money they were owed pursuant to the commission agreement[?]
(2) Did the defendant Kevin J. King, individually or through his trade names, Kevin J. King or RBT Enterprises, wilfully and unfairly [use] his position of power to retain funds due and owing to Plaintiff[s] after being requested to pay these funds to the plaintiff[?]
The jury found that each plaintiff was entitled to $22,000 "as a proximate cause of defendant's conduct," described in the special interrogatories, adding these damages to those owed for breach of contract, for total damages of $128,000 (Nichols), $46,000 (Durling), and $79,000 (Hull). The trial court entered a judgment reflecting this verdict, from which the defendant appealed on 18 November 1999. Following plaintiffs' motion for treble compensatory damages and attorney's fees, the trial court entered an amended judgment on 20 January 2000. The amended judgment awarded each plaintiff the same amount as in its original judgment, and denied plaintiffs' motions. Defendant gave notice of appeal from this judgment on 7 February 2000; plaintiffs gave notice of appeal from the denial of their motions on 1 February 2000.
Plaintiffs' Appeal
Plaintiffs assign error to the trial court's denial of their motions for treble damages under N.C.G.S. § 75-16 (1999), and for attorneys' fees under N.C.G.S. § 75-16.1 (1999). We will consider their argument together with defendant's contention that the trial court erred in "permitting plaintiffs to recover both breach of contract damages and damages for alleged violations of Chapter 75," because the two arguments are related. We affirm the trial court's holding that the defendant's conduct did not constitute unfair or deceptive trade acts or practices, and its consequent refusal to award treble damages to plaintiffs. However, because we affirm the trial court's ruling that plaintiffs did not prove unfair or deceptive trade practices under Chapter 75, we vacate the award to each plaintiff of $22,000 damages for the alleged deceptive or unfair acts.
Plaintiffs moved for treble damages in connection with their claim for damages under N.C.G.S. § 75-1.1 (1999) for unfair and deceptive trade practices. N.C.G.S. § 75-1.1, "Methods of competition, acts and practices regulated; legislative policy," provides that "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful." If a plaintiff proves damages arising under this statute, he or she is automatically entitled to treble damages pursuant to G.S. § 75-16, which states:
If any person shall be injured or the business of any person ... injured by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action on account of such injury done, and if damages are assessed in such case judgment shall be rendered in *4 favor of the plaintiff and against the defendant for treble the amount fixed by the verdict.
Plaintiffs contend that the jury's affirmative answers to Issues three and four of the verdict sheet which set forth the alleged unfair and deceptive acts, and Issue five which sets forth damages for the alleged acts, establish a violation of G.S. § 75-1.1, and thus entitle them to treble the damages awarded under Issue five. However, a successful claim under G.S. § 75-1.1 requires proof of three elements: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, (3) which proximately caused actual injury to the claimant. Rawls & Associates v. Hurst, 144 N.C.App. 286, 550 S.E.2d 219 (2001); Market America, Inc. v. Christman-Orth, 135 N.C.App. 143, 520 S.E.2d 570 (1999), disc. review denied, 351 N.C. 358, 542 S.E.2d 213 (2000). The jury decides whether the defendant has committed the acts complained of. If it finds the alleged acts have been proved, the trial court then determines as a matter of law whether those acts constitute unfair or deceptive practices in or affecting commerce. United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375 (1988); Poor v. Hill, 138 N.C.App. 19, 530 S.E.2d 838 (2000); Allen v. Roberts Const. Co. Inc., 138 N.C.App. 557, 532 S.E.2d 534, disc. review denied, 353 N.C. 261, 546 S.E.2d 90 (2000). In the instant case, the jury found that the defendant had committed the acts described in the special interrogatories. The trial court then held in its amended judgment that "the defendants' conduct, as found by the jury in their answers to the special interrogatories, does not constitute unfair and deceptive trade acts or practices." We affirm the trial court's ruling and its denial of treble damages.
The primary purpose of G.S. § 75-1.1 is to provide a "private cause of action for consumers." Gray v. N.C. Underwriting Ass'n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000). Although commerce is defined broadly under G.S. § 75-1.1(b) as "all business activities, however denominated," "the fundamental purpose of G.S. § 75-1.1 is to protect the consuming public." Prince v. Wright, 141 N.C.App. 262, 268-269, 541 S.E.2d 191, 197 (2000). Typically, claims under G.S. § 75-1.1 involve buyer and seller. Holley v. Coggin Pontiac, 43 N.C.App. 229, 259 S.E.2d 1, disc. review denied, 298 N.C. 806, 261 S.E.2d 919 (1979). Thus, the statute usually is not applicable to employment disputes. Dalton v. Camp, 353 N.C. 647, 548 S.E.2d 704 (2001) (act intended to benefit consumers); HAJMM Co. v. House of Raeford Farms, 328 N.C. 578, 403 S.E.2d 483 (1991) (although the statute has been extended to business relationships when appropriate, it is "clearly intended to benefit consumers"); Buie v. Daniel International, 56 N.C.App. 445, 289 S.E.2d 118, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982) (employer-employee relationships not within intended scope of the law). Nonetheless, "the mere existence of an employer-employee relationship does not in and of itself serve to exclude a party from pursuing an unfair trade or practice claim." Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 710 (2001). See, e.g., Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308 (1999) (employee guilty of unfair and deceptive trade acts where he starts his own company, which then sells computer hardware and services to his employer at inflated prices); Kewaunee Scientific Corp. v. Pegram, 130 N.C.App. 576, 503 S.E.2d 417 (1998) (when purchasing manager buys products for the company from partnerships in which he was partner, his activities affect commerce). The proper inquiry "is not whether a contractual relationship existed between the parties, but rather whether the defendants' allegedly deceptive acts affected commerce." Prince v. Wright, 141 N.C.App. 262, 268, 541 S.E.2d 191, 197 (2000). What is an unfair or deceptive trade practice usually depends upon the facts of each case and the impact the practice has in the marketplace. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S. Ct. 476, 9 L. Ed. 2d 325 (1963).
The evidence presented in the instant case was that the parties were engaged in a dispute over the amount of commissions that defendant owed to plaintiffs. Defendant's actions in withholding commissions that were owed to plaintiffs were a breach of the contracts that he had made with plaintiffs. *5 However, no evidence was presented that the subject transactions had any impact beyond the parties' employment relationships. There is no indication that defendant's behavior was "in or affecting commerce." Accordingly, we find that the trial court was correct in its ruling that defendant's actions did not amount to a violation of G.S. § 75-1.1.
We also affirm the trial judge's denial of plaintiffs' motion for attorneys' fees. Attorneys' fees may be awarded in a case alleging unfair or deceptive trade practices only to "the prevailing party." G.S. § 75-16.1; Evans v. Full Circle Productions, 114 N.C.App. 777, 443 S.E.2d 108 (1994). In the instant case, the plaintiffs did not prevail on their claim of a violation of G.S. § 75-1.1. Thus, plaintiffs were not entitled to an award of attorneys' fees. Consequently, we affirm the trial court's denial both of treble damages and of attorneys' fees.
Defendant argues that plaintiffs should not have been allowed damages for the acts submitted to the jury in support of plaintiffs' claim of unfair or deceptive trade practices. We agree with this contention. The trial judge correctly found that the defendant's acts did not meet the requirements for recovery under G.S. § 75-1.1. The trial judge's ruling eliminated plaintiffs' theory of recovery, and left no basis for the award of damages beyond those found to result from defendant's breach of contract. Consequently, we vacate the part of the judgment and amended judgment awarding each plaintiff $22,000 damages for alleged unfair or deceptive trade acts or practices.
Defendant's Appeal
Defendant argues that the trial court erred in its limitation of his cross-examination of Nichols. Defendant's contention is that the trial judge prevented him from exploring inconsistencies between dollar amounts stated in Nichols' trial testimony and the figures listed in the various charts, ledgers, and other documents submitted by plaintiffs. Defendant also argues that the trial judge was obligated to enter judgment in an amount that reflected specific testimony by Nichols, even though the testimony was contradicted by other evidence or testimony. We disagree with both of these contentions.
The general rule regarding cross-examination is that "[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility." N.C.G.S. § 8C-1, Rule 611(b) (1999). Nichols' calculations of her unpaid commissions were relevant to the issues of whether she was owed any unpaid commissions and, if so, in what amount. Thus, this was a proper subject for cross-examination. However, Rule 611 also provides that:
The court shall 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.
Rule 611(a). "[T]he scope of cross-examination rests largely within the trial court's discretion and is not ground for reversal unless the cross-examination is shown to have improperly influenced the verdict." State v. Parker, 140 N.C.App. 169, 183, 539 S.E.2d 656, 666 (2000), disc. review denied, 353 N.C. 394, 547 S.E.2d 37 (2001) (citation omitted).
In the instant case, the record indicates that King's cross-examination of Nichols extends for approximately one hundred pages of transcript. King obtained repeated concessions from Nichols that she probably had made some mathematical errors in her calculation of the commissions owed. Indeed, most of this cross-examination concerns the mathematical method by which plaintiffs attempted to determine whether King owed them any unpaid commissions. Any inconsistencies between the amount of unpaid commissions presented in plaintiffs' exhibits and Nichols's trial testimony was available for the jury's consideration. Moreover, King himself testified concerning the same matters, followed by Nichols's rebuttal testimony, and a second cross-examination of Nichols. We find that the trial court neither prevented King from conducting cross-examination, nor abused its discretion in limiting cross-examination. We also find that the trial court was *6 not required to enter a judgment that reflected particular parts of Nichols's testimony that may have been contradicted by other testimony or evidence. See State v. Pallas, 144 N.C.App. 277, 548 S.E.2d 773 (2001) (contradictions in evidence are for the jury to resolve); Delta Env. Consultants of N.C. v. Wysong & Miles Co., 132 N.C.App. 160, 171, 510 S.E.2d 690, 697, disc. review denied, 350 N.C. 379, 536 S.E.2d 70 (1999) ("trier of fact, in this case the jury, must resolve issues of credibility and determine the relative strength of competing evidence"). For these reasons, this assignment of error is overruled.
Defendant next argues that the trial court erred in its denial of defendant's motion for a directed verdict on the claim of unfair and deceptive trade practices. However, we have held above that the portion of the judgment awarding damages for purported unfair or deceptive trade acts or practices must be vacated. This ruling renders harmless any error in the court's denial of defendant's motion for directed verdict on the issue of unfair and deceptive trade practices.
Finally, defendant argues that the judgment entered by the court in this case did not accurately reflect the jury's verdict, and was not properly entered. We disagree with both contentions.
The jury was given five issues to answer regarding possible injury and damages to plaintiffs. These issues may be summarized as follows:
Issue One: Did the defendant breach his contracts with any or all of the plaintiffs?
Issue Two: If there was a breach of contract, what damages resulted from the breach?
Issue Three: Did the defendant either (a) make efforts to conceal from the plaintiffs, or otherwise prevent them from discovering, the true amount of commissions owed them, or (b) willfully and unfairly use his position of power to retain funds due to the plaintiffs after being requested to pay these funds?
Issue Four: If defendant did either or both of the acts in Issue three, did this cause damage to the plaintiffs?
Issue Five: What amount of damages were caused by the behavior described in the special interrogatories?
Thus, the jury was instructed to consider two possible sources of injury, and each verdict sheet had two spaces for entry of dollar amounts: Issues two and five. The jury answered Issues one, three, and four affirmatively for each plaintiff, and entered the dollar amount owed to each plaintiff in Issues two and five. Below the dollar amount entered for Issue five, the foreman totaled the entries from Issues two and five. This notation did not affect the validity of the verdict, nor render the verdict or judgment erroneous. We find that the verdict sheets were correctly completed. The defendant argues that each plaintiff was entitled to only $22,000, the amount entered in response to Issue Five. This position finds no support in the record. The trial court instructed the jury as follows on the damages that could be awarded in response to Issues 2 and 5:
[SECOND ISSUE:]
THEN THE SECOND ISSUE IS, WHAT AMOUNT OF DAMAGES IS THE PLAINTIFF ENTITLED TO RECOVER FOR BREACH OF CONTRACT? IF YOU'VE ANSWERED THE FIRST ISSUE IN FAVOR OF THE PLAINTIFF, THEN EVEN WITHOUT PROOF OF ACTUAL DAMAGES, THE PLAINTIFFS WILL BE ENTITLED TO AT LEAST NOMINAL DAMAGES....
[FIFTH ISSUE:]
THE FIFTH AND FINAL ISSUE, WHAT AMOUNT OF DAMAGES HAS THE PLAINTIFF SUSTAINED AS A PROXIMATE CAUSE OF THE DEFENDANTS' CONDUCT? IF YOU ANSWERED ISSUES THREE AND FOUR `=S" IN FAVOR OF THE PLAINTIFF, THE PLAINTIFF IS ENTITLED TO RECOVER AT LEAST NOMINAL DAMAGES WITHOUT PROOF OF ACTUAL DAMAGES.... SO, FINALLY, IF BY THE GREATER WEIGHT OF THE EVIDENCE THE PLAINTIFF [NAME] HAS PROVEN THE AMOUNT OF DAMAGES SHE SUSTAINED BY THE DEFENDANTS' CONDUCT SPECIFICALLY REFERRED TO IN ISSUES *7 THREE AND FOUR, YOU WOULD WRITE THAT AMOUNT IN THE SPACE PROVIDED.
It is clear from a review of the record that the damages awarded pursuant to Issues two and five were separate amounts. Therefore, we find that the judgment was an accurate statement of the jury's verdict. However, as we have held above, plaintiffs are entitled to recover damages for breach of contract, but not for unfair or deceptive trade acts or practices. Therefore, each plaintiff should be awarded only the damages specified by the jury in response to Issue two.
Defendant also contends that the judgment was not properly entered. The jury returned a verdict in favor of plaintiffs on 12 November 1999. Plaintiffs then made a motion for treble damages and for attorneys' fees. The trial court directed plaintiffs to prepare a judgment expressing the jury's verdict, and indicated that it would reserve ruling on plaintiffs' post-trial motions until a later date. Plaintiffs prepared a judgment, which was signed by the trial court and filed with the clerk of court on 12 November 1999, the same afternoon that the jury's verdict was returned. Defendant had left the courtroom at some point before the trial court signed the judgment. Therefore, plaintiffs faxed a copy of the judgment to defense counsel's office; defendant received the copy on 17 November 1999, and gave notice of appeal to this Court the following day.
Defendant contends that because plaintiffs sent a copy of the judgment by fax, the judgment was not properly entered in compliance with N.C.R. Civ. P. 58 (2000). Rule 58 provides as follows:
[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. (emphasis added)
Judgment is entered when the three requirements stated in the first sentence of this rule are met. State v. Coronel, ___ N.C.App. ___, 550 S.E.2d 561 (2001); Stevens v. Guzman, 140 N.C.App. 780, 538 S.E.2d 590 (2000), disc. review allowed, 353 N.C. 397, 547 S.E.2d 437 (2001). The record shows that the judgment was reduced to writing, signed by the judge, and filed with the clerk on 12 November 1999. We find that judgment was entered on that date. The defendant does not dispute that these criteria for entry of judgment were met; rather, he contends that plaintiffs's use of a fax to provide defendant with a copy of the judgment renders it void and unenforceable. Defendant is correct that N.C.R. Civ. P. 5 does not authorize use of facsimile machines for service of documents. However, under Rule 58, the procedures for serving all parties with a copy of the judgment after its entry are separate and distinct from the criteria that govern entry of judgment, and the method of service of copies of the judgment is not a statutory criteria for entry of judgment. The cases cited by defendant for this proposition interpret an earlier version of Rule 58, which included different requirements.
Moreover, the purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered. Stachlowski v. Stach, 328 N.C. 276, 401 S.E.2d 638 (1991); In re Estate of Peebles, 118 N.C.App. 296, 454 S.E.2d 854 (1995). Defendant clearly had notice of the entry of judgment, as shown by his filing notice of appeal from the judgment. In addition, the trial judge on 13 January 2000 filed an amended judgment, whose entry defendant does not contest. The amended judgment awarded plaintiffs the same damages as the original judgment, and differed from it only in its denial of certain of plaintiffs' motions. Any procedural errors in plaintiffs' service of the first judgment upon defendant were rendered irrelevant by the entry of the later amended judgment. For these reasons, we hold that the judgment was properly entered pursuant to N.C.R. Civ. P. 58.
In conclusion, we affirm the trial court's order finding that the evidence did not establish that defendant had committed unfair or deceptive trade acts or practices, and its *8 consequent denial of plaintiffs' motion for treble damages and attorneys' fees. Consistent with this ruling, we vacate the part of the judgment and the amended judgment awarding plaintiffs $22,000 each for unfair or deceptive trade acts or practices.
Affirmed in part; reversed and vacated in part.
Judges WYNN and CAMPBELL concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323750/ | 133 Ga. App. 400 (1974)
211 S.E.2d 5
HARPER
v.
DANIEL et al.
49409.
Court of Appeals of Georgia.
Argued May 30, 1974.
Decided October 24, 1974.
Rehearing Denied November 26, 1974.
*403 Thomas Hylmon Wall, III, for appellant.
Richter & Birdsong, A. W. Birdsong, for appellees.
EVANS, Judge.
On September 1, 1972, Steven Davis Daniel, driving a family purpose automobile, was involved in a collision just outside the city limits of Fort Valley, Georgia. Daniel was driving from school (Middle Georgia College) at Cochran to his home in LaGrange, Georgia. Mamie M. Harper was driving west away from Fort Valley when Daniel overtook her car from the rear. As he passed, the right side of his car collided with the left side of her car. Mrs. Harper contends the right bumper of Daniel's car struck her left rear fender; and then struck her car twice more as it sped by. Daniel contends Mrs. Harper was *401 blinded by the sun in driving west, and so admitted, and that she drove over the center line and into his lane of traffic as he passed her automobile.
Mrs. Harper thereafter suffered back trouble, resulting in an operation, all of which she attributes to the collision. She sued Daniel, as the driver, and his father, as the owner, under the family purpose car doctrine, for personal injury and damage to her car. She contends the younger Daniel's negligence was the proximate cause of the collision.
Defendants answered, admitting jurisdiction, and contended that defendant Steve Daniel was legally passing plaintiff when she pulled into her left lane of traffic and negligently struck the vehicle being driven by him. Defendant, A. E. Daniel, Jr., owner of the car, counterclaimed for the damage to his automobile.
The jury returned a verdict for defendants, and plaintiff moved for a new trial which was later amended. The appeal is from the judgment entered on the verdict and the denial of the motion for new trial. Held:
1. Plaintiff's first objection to the charge was that the court failed to give the general speed restriction statute (Code Ann. § 68-1626 (a); Ga. L. 1953, Nov. Sess., pp. 556, 577; 1959, p. 303; 1961, pp. 438, 439; 1963, p. 26; 1964, pp. 294, 295; 1965, p. 322; 1968, p. 987; 1968, p. 1158; 1968, pp. 1427, 1428, 1429; 1972, p. 951). The objection was in proper form. The rule as set forth in Georgia Power Co. v. Maddox, 113 Ga. App. 642 (1) (149 SE2d 393), has been modified by the decision of this court in A-1 Bonding Service v. Hunter, 125 Ga. App. 173 (4 b) (186 SE2d 566). There was no written request to charge. Counsel for plaintiff orally requested that the general speed restriction statute be given in the charge because of the evidence.
But it is not error for the court to fail to charge the law as to an issue not made both by the pleadings and the evidence. Hardwick v. Georgia Power Co., 100 Ga. App. 38, 45 (5) (110 SE2d 24); Bibb Transit Co. v. Scott, 101 Ga. App. 352 (4), 357 (114 SE2d 43). The pleadings did not disclose that speed was a factor in the alleged negligence, and if counsel desired a charge on the speed restriction statutes he should have submitted a written request. No *402 error is shown in this complaint.
2. The evidence discloses that both automobiles had just traversed a curve and the road was straight when the collision occurred. The objection to the charge that the court failed to give the general speed statute for approaching and going around curves is not meritorious even though defendant may have failed to reduce his speed in traversing the curve, which might have contributed to the cause of the collision. The collision did not occur on the curve, hence the question of speed on the curve would not be relevant or material.
3. Since there was no evidence of actual speed, a charge on maximum speed limits was not required.
4. Objection was made to a charge of the court that if the plaintiff could have avoided the consequences to herself by the exercise of ordinary care she would not be entitled to recover. Under the evidence submitted, the charge was not erroneous since there was some evidence that plaintiff failed to avoid colliding with defendant. Question of comparative and contributory negligence are ordinarily for the jury. Holland v. Watson, 118 Ga. App. 468, 472 (164 SE2d 343); Kirkland v. Moore, 128 Ga. App. 34, 35 (195 SE2d 667). This complaint is not meritorious.
5. Nor was the giving of the avoidance rule more than once so repetitious as to be harmful to the plaintiff. The charge does not infer that plaintiff did not suffer injury and damage as plaintiff contends. The case of Thomas v. Barnett, 107 Ga. App. 717, 729 (6) (131 SE2d 818), is not applicable, since in repeating the avoidance rule twice it cannot be said to have unduly stressed the contentions of the defendant. There is no merit in this complaint.
6. Ordinarily, if a verdict is returned in favor of the defendant in damage suit cases, error in instructions as to the measure of damages is not cause for new trial. Donaldson v. Central of Ga. R. Co., 43 Ga. App. 480 (159 S.E. 738); Delta Corp. v. Knight, 109 Ga. App. 3 (1) (135 SE2d 56). Therefore, no ruling is made on this complaint since the judgment is affirmed.
Judgment affirmed. Pannell, P. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323321/ | 152 Ga. App. 404 (1979)
263 S.E.2d 184
BRAY et al.
v.
THE STATE.
58577.
Court of Appeals of Georgia.
Argued September 12, 1979.
Decided October 25, 1979.
Rehearing Denied November 19, 1979.
Charles Thornton, for appellants.
Frank C. Mills, III, District Attorney, William R. Pardue, Assistant District Attorney, for appellee.
BIRDSONG, Judge.
Appellants Gordon, Steven and Robert Bray (brothers) and Carl Whitley were convicted of an undesignated crime in the Superior Court of Cherokee County. It appears that the trial continued for a period of six days and a trial record and transcript developed of some volume. Evidence was submitted that the costs of a transcript would run from $2,000 to $3,000. The four appellants filed a motion in forma pauperis requesting that they be furnished a free transcript as provided in Code Ann. § 24-3413 in order to perfect their direct appeal. The state prosecutor filed a traverse to the motion. After a full hearing, the trial court denied the motion holding that for a variety of reasons the appellants did not meet the criteria of indigency and authorized the county to pay only for those transcript costs exceeding the sum of $2,000. Appellants have filed the present appeal enumerating three errors. Held:
Appellants seek to attack the denial of their motion to proceed as indigents by asserting that the traverse by the state was not in actuality a traverse; that the trial *405 court erred in relying upon the Criminal Justice Act rather than relying solely upon Code § 24-3413; and that by denying the appellants the right to proceed in forma pauperis, the trial court violated their constitutional rights. We disagree with each of these contentions. There is no question that the state filed an adequate traverse and offered substantial evidence contradicting the assertion of indigency. Moreover, the trial court, while considering many factors, some of which were ostensible due process rights and rights to payment for expenses of litigation created by the Criminal Justice Act, nevertheless properly and consistently exercised its discretion to grant or deny the motion to proceed in forma pauperis within the confines of Code § 24-3413. Lastly, the statute authorizing the denial of such a motion does not deprive a criminal appellant of any of his constitutional protections. Grace v. Caldwell, 231 Ga. 407 (202 SE2d 49).
More importantly, we are not required to reach the real substance of any of the enumerations. "The ruling of the trial court on all issues of fact concerning the ability of a party to pay costs or give bond is final under the provisions of [Code Ann. § 24-3413] and is not subject to review. [Cit.]" Grace v. Caldwell, supra, p. 409; Williams v. State, 147 Ga. App. 632 (1) (249 SE2d 694).
Judgment affirmed. Quillian, P. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750567/ | 650 So. 2d 1174 (1995)
STATE of Louisiana
v.
Jerry SELVAGE.
No. 94-K-2744.
Supreme Court of Louisiana.
March 10, 1995.
Denied.
MARCUS, J., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645875/ | 9 So.3d 629 (2009)
JOSEPH
v.
STATE.
No. 3D09-1155.
District Court of Appeal of Florida, Third District.
May 14, 2009.
Decision without published opinion. Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323794/ | 263 S.C. 575 (1975)
211 S.E.2d 881
Eunice COOK, Plaintiff-Respondent,
v.
FEDERAL INSURANCE COMPANY et al., Defendants-Respondents-Appellant of whom Federal Insurance Company is, Appellant, and Great American Insurance Company is, Respondent. Wyman Luther COOK, Plaintiff-Respondent,
v.
FEDERAL INSURANCE COMPANY et al., Defendants-Respondents-Appellant, of whom Federal Insurance Company is, Appellant, and Great American Insurance Company is, Respondent.
19960
Supreme Court of South Carolina.
February 11, 1975.
*576 Messrs. Weinberg, Bryan, Warner & Brown, of Sumter, for Appellant.
*578 Messrs. Baker & Etheridge, of Darlington, for Respondents, Eunice Cook and others.
Messrs. Wright, Scott, Blackwell & Powers, of Florence, for Respondent, Great American Insurance Company.
*579 February 11, 1975.
LITTLEJOHN, Justice:
The station wagon in which Wyman Luther Cook (owner) and his wife, Eunice Cook, were riding, was involved in a collision with a Ford sedan driven by Johnny Lee Busby and owned by his employer, Uldon Ted McDaniel. The Cooks are residents of Darlington County. The collision occurred in Clarendon County.
At the time, the station wagon of the Cooks was covered by a liability insurance policy issued by Federal Insurance Company. The policy included the usual statutory uninsured motorist provisions. The sedan of McDaniel was covered by a liability insurance policy issued by Great American Insurance Company. Both policies were admittedly in full force at the time of the collision.
After the Cooks procured default judgments against McDaniel in the Court of Common Pleas for Clarendon County, and after Federal Insurance Company refused to pay the judgments, this action was commenced on May 29, 1972, against both Federal and Great American for the purpose of recovering the amount of the judgments procured against McDaniel. The lower court ruled that Federal was liable for the judgments and that Great American was not liable. Federal has appealed.
*580 The facts out of which the controversy arises are as follows:
After the collision both McDaniel and a South Carolina Highway Patrolman came upon the scene. McDaniel exhibited the registration card for his Ford sedan, together with his own driver's license. The sedan of McDaniel was registered in Lumberton, North Carolina and carried a North Carolina license plate. McDaniel's driver's license was issued by the North Carolina Highway Department. The collision report prepared by the highway patrolman indicated the North Carolina registration of the sedan. The official report indicated that the sedan was towed by "owner by private means" to "residence on lake nearby." After the collision report was completed, McDaniel took the Cooks in another car to his home located on Lake Marion, a resort area.
McDaniel averred that he had been working in North Carolina since 1962. The style of his business was "U.T. McDaniel, doing business as Aluminum Industries." He was in the construction business and financed construction projects, mostly aluminum siding. He customarily stayed in Lumberton at a motel from Monday until Friday or Saturday of each week. He maintained an office operation at Lumberton within the office of a sign company, using it as a mailing address, telephone answering service, and for the transaction of his business. His family remained in Clarendon County, South Carolina, where he spent the weekends. The address shown on his driver's license and automobile registration card was 601 West 5th Street in Lumberton, North Carolina.
The tort action wherein the Cooks sued McDaniel was commenced August 24, 1970. The Summons and Complaint were served under the provisions of Section 46-104 and Section 10-431 et seq., of the Code of Laws of South Carolina for 1962. These code sections provide that a motorist who is a nonresident of South Carolina may be served by delivery of a copy of the Summons and Complaint to the *581 State Highway Commissioner for transmittal by way of a certified letter to the defendant in another state. The Summons and Complaint were mailed to the North Carolina address supplied by McDaniel to the highway patrolman. The certified letter containing the Summons and Complaint was returned marked "unclaimed no such number addressee unknown." Thereafter, on September 18, a copy of the Summons and Complaint was sent by open mail as required by the statute to McDaniel at the same address. This letter was not returned.
McDaniel defaulted. Great American was notified of the collision, but no Summons and Complaint were delivered to it.
On May 11, 1971, the Cooks, pursuant to the uninsured motorist law, Section 46-750.33, served their own liability insurance carrier, Federal, with a copy of the Summons and Complaint. Federal made no appearance.
On March 24, 1972, the Cooks procured default judgments against McDaniel. Wyman Luther Cook's judgment was $1500 property damages, and Eunice Cook's judgment was for $8500 damages, personal injury. Thereafter Federal moved to reopen the default judgments upon the ground of excusable neglect; the motion was denied.
On May 29, 1972, the action here on appeal was commenced by the Cooks against both Federal and Great American, McDaniel being made a party.
The Complaint alleges that the Cooks are entitled to recover, jointly and severally, from the two insurance companies by reason of the respective policies hereinabove.
The basic contention of Federal is that the Court of Common Pleas for Clarendon County, which entered the default judgments, lacked jurisdiction over the person of McDaniel because of improper and ineffectual service upon him of the Summons and Complaint under the nonresident motorist law, it being contended that McDaniel was not a nonresident *582 of South Carolina, and further, that the law as set forth in Section 10-431.1 was not strictly complied with. That section reads as follows:
"Same; when defendant does not receipt for notice sent by certified mail. If the defendant in any such cause shall fail or refuse to accept and receipt for certified mail containing the notice of service and copy of the process and it shall be returned to the plaintiff or the motor vehicle division of the State Highway Department, the original envelope as returned shall be retained and the notice and copy of the summons shall be sent by open mail and the envelope and affidavit of mailing with sufficient postage of such open letter shall be filed with the clerk of court in which such action is pending and upon the filing thereof shall have the same force and legal effect as if such process has been personally served upon such defendant."
In its Answer Great American admits that it had notice of the collision and denied coverage to Busby, the driver of the McDaniel vehicle. It was the contention of Great American that the vehicle was being used without the permission of the owner and its operation was excluded under the terms of the policy. Great American further asserts as a defense that it was never supplied with a copy of the Summons and Complaint as required by the policy before liability to pay attaches to the insurer.
McDaniel again defaulted.
The first question we must answer is "Was McDaniel a nonresident motorist amenable to process under Sections 10-431 and 46-104 of the 1962 Code." It has been held that "residence" is a more elastic and flexible terms than domicile or citizenship. A person may have only one domicile, but may have several residences. McDaniel testified that he was required by the police authorities in North Carolina to obtain licenses and registrations for his vehicles in North Carolina; in a similar situation, our court has held that persons domiciled outside South Carolina *583 have become residents of South Carolina for purposes of enforcement of statutory laws relating to motor vehicles. Stovall v. Sawyer, 181 S.C. 379, 187 S.E. 821 (1930).
In 8 Am. Jur. (2d), Automobiles, Sections 867 and 868, it is stated:
"... it is no absolute requirement to good and valid service that the Defendant actually receive the notice in order to vest jurisdiction in the courts, provided the Plaintiff has acted in good faith and stated correctly the last known address of the nonresident Defendant ..."
* * *
"... in some cases it has been said that the burden is on the Plaintiff to investigate and learn the last known address of the Defendant. However, the general trend of authorities is to sustain the validity of service of process if the statutory provisions in themselves indicate there is a reasonable probability that, if the statute is complied with, the Defendant will receive actual service."
Other jurisdictions have held that Plaintiff is entitled to rely upon information furnished the investigating officer. Sorenson v. Stowers, 251 Wis. 398, 29 N.W. (2d) 512 (1947). Citing Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091 (1927), the Wisconsin Court noted that actual notice in every case was not required for valid service. The Court further noted that to uphold a Defendant in furnishing an incomplete or incorrect address to the office could defeat the purpose of the nonresident motorists' statute. The Court held that the only requirement was that Plaintiff comply with the statute in good faith, which was done in his case.
The evidence of nonresidency was supplied by McDaniel himself. According to his own testimony he spent more time in Lumberton than he did in Clarendon County. McDaniel has not contested the manner of service upon him, and by defaulting has failed to contend that the service was basically unfair.
*584 Federal should not be heard to complain that the service was not proper. Its contract with Cook gave it the right to defend the action. Federal was properly notified by the Cooks, who served upon Federal the Summons and Complaint on June 11, 1971. Federal failed to carry out its obligation and did nothing until May 1, 1972, some ten months later. At this time Federal moved to have the judgments reopened on the ground of excusable neglect, which ground was clearly without merit, and the lower court so held. This is not a case wherein plaintiff hurries an action along before the insurance company has adequate time to participate. After Federal was served plaintiff waited from June 11, 1971 to March 24, 1972, to take judgment. We agree with the lower court in its holding that McDaniel was amenable to service under the nonresident motorists' statute.
We also agree with the lower court in its holding that McDaniel did "fail or refuse to accept and receipt" for the certified letter sent him by the Chief Highway Commissioner. Our statute does not require that one refuse to accept service. The statutes in some states do require a refusal.
McDaniel's insurance carrier, having successfully denied coverage, and McDaniel having been served under the nonresident motorists' statute, we hold that it became the right of Federal to defend the action under the uninsured motorists' provision of its policy issued for the benefit of the Cooks, and accordingly must pay.
It is not inappropriate to state that counsel for Federal moved promptly and pursued the case "diligently after he was employed." Failure to participate in the case was solely the fault of the employees of Federal.
MOSS, C.J., and LEWIS, BUSSEY and NESS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724347/ | 2 Mich. App. 5 (1965)
138 N.W.2d 567
SEABOARD FINANCE COMPANY
v.
BARNES.
SAME
v.
BLAIR.
Docket Nos. 424, 425.
Michigan Court of Appeals.
Decided December 20, 1965.
Leave to appeal granted February 24, 1966.
Cochran & Grimm (Jack M. Grimm, of counsel), for plaintiff.
John S. White, for defendants.
Leave to appeal granted by Supreme Court February 24, 1966. See 377 Mich. 703; 378 Mich. 627.
BURNS, P.J.
These two cases have been consolidated for trial and on appeal. Both cases have practically the same facts. The defendants-appellees borrowed money on promissory notes from the plaintiff-appellant. Each note was in the amount *7 of $500. While the original notes were still in effect and up to date, the defendants obtained additional sums of money from the plaintiff. Barnes obtained $85.52 and Blair obtained $120.59. The old notes were destroyed and new notes written for the amount of $500.
The defendants executed financial statements which were false in that they did not list all of the debts and obligations of the defendants.
Thereafter, defendants filed bankruptcy proceedings and received discharges therein.
The lower court awarded judgments for the plaintiff in the amounts advanced on the second transactions and not the $500 asked.
The appellant has appealed the judgments, claiming that the trial court misinterpreted the effects of the bankruptcy act and the amendments thereto.[1]
These are not cases where the plaintiff brought suits on promissory notes and the defendants pleaded bankruptcy as a defense, and this Court does not interpret the bankruptcy act or amendments thereto.
The plaintiff sued in pleas of trespass on the case for the balances due on loans obtained by false financial statements.[2]
In an action for fraud the burden of proof is upon the party who alleges fraud. It is incumbent upon the party to prove that he has suffered a loss directly from, and as a clear consequence of, the fraud. As stated in Findlater v. Dorland (1908), 152 Mich. 301, 308: "`"The damage to be recovered must always be the natural and proximate consequence of the act complained of."'"
The trial judge correctly held that the damages to the plaintiff were the moneys advanced at the *8 time the false financial statements were made by the defendants. Judgments affirmed. Costs to appellees.
HOLBROOK and T.G. KAVANAGH, JJ., concurred.
NOTES
[1] See 11 USC, § 1 et seq., as amended. REPORTER.
[2] Summons, affidavits of accounts, and bills of particulars filed in the municipal court of Muskegon. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261905/ | 861 F. Supp. 986 (1994)
Duane ROESCH, Plaintiff,
v.
Ted J. CLARKE, M.D., Defendant.
Civ. A. No. 93-4092-DES.
United States District Court, D. Kansas.
August 15, 1994.
*987 Tom C. Kelley, Tom Kelley, P.A., Topeka, KS, for plaintiff.
Michael R. O'Neal, Gilliland & Hayes, P.A., Hutchinson, KS, for defendant.
MEMORANDUM AND ORDER
SAFFELS, Senior District Judge.
I. INTRODUCTION
This matter is before the court on defendant Dr. Ted. J. Clarke's motion for summary judgment (Doc. 27). In the instant action, plaintiff Duane Roesch claims defendant committed medical malpractice. Specifically, plaintiff claims that defendant misdiagnosed his injury and failed to render appropriate care. The issues are fully briefed and the court is ready to rule.
II. SUMMARY JUDGMENT STANDARDS
A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the *988 movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1985). The substantive law identifies which issues are material. Id. at 248, 106 S. Ct. at 2510. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might properly affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden "by `showing' that is, pointing out to the district court that there is an absence of evidence to support the [nonmovant's] case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). The movant need not negate the nonmovant's claim. Id. at 323, 106 S. Ct. at 2552-53. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1985). The nonmovant must go beyond the pleadings and, by affidavits or the depositions, answers to the interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (interpreting Rule 56(e)).
Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S. Ct. at 2552. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S. Ct. at 2552-53.
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) (stating that "[t]he court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues").
The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S. Ct. at 2510-11. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S. Ct. at 2511.
III. FACTUAL BACKGROUND
The following facts are uncontroverted for the purposes of this motion.[1]
*989 On June 12, 1990, plaintiff injured his right arm and shoulder when he tried to keep from falling over the side of his father's truck. On June 18, 1990, plaintiff went to the Colby Medical and Surgical Center where he was examined by Dr. Tom Henderson. Dr. Henderson noted that plaintiff had good range of motion in his right shoulder except for abduction. Dr. Henderson concluded that plaintiff had a muscle strain with a possible tear of the medial head of the biceps. He prescribed Naprosyn, 375 mg TID, and instructed plaintiff to apply ice twice daily and elevate his right arm.
Plaintiff returned to the Center on June 25, 1990. He was examined by Dr. Hildyard.[2] Dr. Hildyard diagnosed a possible rupture of the biceps. He referred plaintiff to defendant for a follow-up evaluation.[3]
Defendant examined plaintiff on July 3, 1990. Defendant interviewed plaintiff and obtained his medical history. Plaintiff indicated that his pain had decreased but he still could feel a lump in his arm. Defendant noted a decrease in swelling and ecchymosis. He also noted that plaintiff had a full range of active and passive motion in his right shoulder,[4] 5+ biceps strength with an obvious mass adjacent to his right biceps, increased discomfort with abduction against resistance, full forward flexion, and full extension. Defendant concluded plaintiff suffered an acute biceps tendon rupture with intact long head. He also diagnosed ongoing shoulder pathology with impingement syndrome.
Following the examination, defendant discussed his findings and conclusions with plaintiff. Defendant's consultation notes state as follows:
RECOMMENDATIONS:
1. I discussed with Duane and his wife Charlotte, the implications of this. It is my suspicion he will lose 5 to 10% power, though for most people this does not cause a functional disability. I have told him that an operation is available to reattach the biceps tendon but this would require a period of immobilization to allow the tendon to heal. In my opinion, this is an operation done for people who have a life style which involves performing athletics or shoulder function on the most highest level (professional baseball pitchers). I have advised him to accept the lump in his arm. The other biceps tendon will hypertrophy. I will check him back in six weeks if he is still having discomfort. I have advised him not to do overhead lifting activities while the tendon hypertrophies.
Plaintiff never returned.
Following his visit to defendant, plaintiff went back to work where he put in five to six hour days. Plaintiff still experienced pain when he used his right arm to perform overhead tasks. On August 2, 1990, he telephoned Dr. Barry Turner, an orthopedist in McCook, Nebraska. Dr. Turner ordered an MRI which was performed August 3, 1990. He did not examine plaintiff until August 15, 1990. By this time, plaintiff could not raise his arm forward or laterally. Based on plaintiff's inability to raise his arm, Dr. Turner diagnosed a rotator cuff tear.[5] Dr. Turner *990 performed surgery on plaintiff to repair the torn rotator cuff and biceps.
Dr. Turner was deposed on January 5, 1994. In his deposition, Dr. Turner admitted that plaintiff did not receive a good result from surgery. Dr. Turner also stated that he has no standard practice for conducting follow-up on patients receiving the same surgery as plaintiff. After his surgery, plaintiff attended approximately 15 physical therapy sessions with the first on September 5, 1990, and the last on October 15, 1990. He did not return to Dr. Turner until February of 1991. Dr. Turner is unsure whether plaintiff received any post-operative care from October 15, 1990 to February of 1991. In his deposition, Dr. Turner admitted that plaintiff's post-operative care was not good. He also stated that failure to complete physical therapy is a "very high cause of poor patient outcome after surgery."
The deadline for the designation of expert witnesses was September 30, 1993. At that time, plaintiff had designated only one expert: Dr. Turner. Plaintiff since has moved to designate another expert. Magistrate Judge Ronald C. Newman denied his motion in a Memorandum and Order dated May 16, 1994. Dr. Turner remains his only expert.
In his deposition, Dr. Turner agreed that an individual's ability to lift his arm and go through a full range of active and passive motion would be a sign to a physician that that individual did not have a rotator cuff injury. He also agreed that if plaintiff exhibited a full range of motion in his shoulder during his July 3, 1990, examination by defendant, a torn rotator cuff diagnosis would be unsupported. The consultation notes defendant prepared after his examination of plaintiff state that "[r]ight shoulder shows full range of motion." It is uncontroverted that plaintiff exhibited a full range of both active and passive motion during the July 3, 1990, examination.[6]
Any opinion Dr. Turner may have as to whether plaintiff required surgery on July 3, 1990, would be based on whether plaintiff had active range of motion on that date. Dr. Turner admits that if plaintiff exhibited the same factors to him as he did to defendant on July 3, 1990 ability to lift his right arm and an improving condition he would have treated plaintiff as did defendant. He also admits that if plaintiff had full active and passive range of motion on August 7, 1990, when he examined him, he would not have operated.
On February 15, 1993, a Screening Panel convened to review plaintiff's contentions and defendant's response. The Panel consisted of John Gatz, Dr. Gary Harbin, M.D., Dr. Wallace Holderman, M.D., and Dr. Howard Wilcox, Jr., M.D. The Panel described the pertinent standard of practice to be as follows:
Based on the medical records and x-rays available to Dr. Clarke on July 3, 1990, and based on the complaints of Mr. Roesch, as reflected in the medical records submitted to the panel with his contentions, the screening panel determines the following standard practice to be the appropriate standard of practice for a consulting orthopaedic specialist:
1. Interview the patient to obtain a history of the patient's complaint and injury.
2. Conduct a physical examination to determine range of motion; and
3. Institute a plan of treatment with follow up appropriate to the assessment based on the history and examination.
Dr. Turner agrees with the panel's statement of the standard of care.
The Panel further concluded that defendant met the standard of care. Specifically, the Panel wrote as follows:
*991 The screening panel concludes that Dr. Clarke did not depart from the standard of care for the following reasons:
1. On July 3, 1990, Dr. Clarke conducted an appropriate interview of Mr. Roesch and obtained an adequate medical history including a description of injury and patient complaints.
2. On July 3, 1990, Dr. Clarke conducted an adequate physical examination which included a review of x-rays.
3. On July 3, 1990, Dr. Clarke instituted a plan of treatment with a follow-up consultation in six weeks.
Dr. Clarke's assessments of "acute biceps tendon rupture with intact long head ..." and "ongoing shoulder pathology with impingement syndrome ..." was consistent with and supported by the patient's history, complaints, examination, and x-rays as taken by or reviewed by Dr. Clarke on July 3, 1990. The assessment and plan of treatment with follow up is supported by published literature including Turek, Samuel L., Orthopaedics, 4th Edition, which is attached to Dr. Clarke's response as Appendix A. The medical records of the patient's initial visit reflect that patient experienced relatively good function with the arm and shoulder, and it is the opinion of the panel that special studies, including MRIs or arthrograms were not then warranted and that the initial treatment instituted was consistent with published literature, including those authorities contained in the Screening Panel Response of Ted J. Clarke, M.D.
In an opinion letter dated December 17, 1991, Dr. Turner stated that he had operated on plaintiff on August 15, 1990. In the letter, he states as follows:
In my opinion, had the above-referenced surgery been performed immediately after the date of injury, the results achieved would have been far better. In my opinion, Duane's disability and loss of use of the injured area would have been 65% better than achieved by the surgery in August of 1990. Had the surgery been performed, Duane's loss and pain would have been much less.
However, in his deposition, Dr. Turner stated that his opinion as to plaintiff's loss of chance was "just a guess" and not based on any particular standards or even his own experience.
IV. DISCUSSION
This is a diversity case which is governed by Kansas law. The court must ascertain and apply Kansas law to reach the same result that a Kansas court would reach. Adams-Arapahoe School District No. 28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir. 1992).
Under Kansas law, every physician has the duty to use reasonable and ordinary care and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians in the same or similar locations. Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86, 92 (1983) (quoting Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136, 138 (1977)). In order to prove medical malpractice, an injured patient must prove that his physician breached the professional duty of care, that the breach caused him harm, and that he has suffered actual damages. Zywicki v. United States, 809 F. Supp. 823, 828 (D.Kan.1992).
Liability does not arise merely from bad results. Bacon v. Mercy Hospital of Ft. Scott, 243 Kan. 303, 756 P.2d 416, 420 (1988). An injured patient must show both that the physician was negligent that he breached the applicable standard of care and that the negligence caused the injury. Bacon, 756 P.2d at 420. In order to show that the physician breached the standard of care and caused him injury, the patient ordinarily must provide expert medical testimony. See, e.g., Sharples v. Roberts, 249 Kan. 286, 816 P.2d 390, 397-98 (1991); Bacon, 756 P.2d at 420; Webb v. Lungstrum, 223 Kan. 487, 575 P.2d 22, 25 (1978). The only exception to this rule, the "common-sense" exception, applies where "what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge *992 and experience of mankind generally." Webb, 575 P.2d at 25. Plaintiff does not argue that the exception applies. Nor do the facts support its application. Thus, plaintiff must present expert medical testimony that defendant "either did not possess the requisite degree of skill or failed to use reasonable care and diligence in applying such care and skill," Sharples, 816 P.2d at 397, and that defendant's failure to use reasonable care proximately caused the injuries and damage for which he seeks relief. Plaintiff produces no such evidence.
Plaintiff contends that defendant committed malpractice by misdiagnosing his injury and failing to render appropriate care. His only expert medical evidence is provided by Dr. Turner. However, there has been some controversy over Dr. Turner's status as plaintiff's expert. In his deposition, Dr. Turner indicated that he thought he was to testify only as a treating physician. He also stated that he did not wish to testify as plaintiff's expert witness. Following Dr. Turner's deposition, plaintiff moved to designate a new expert. In a Memorandum and Order filed May 16, 1994, Magistrate Judge Ronald C. Newman considered plaintiff's motion. In that Memorandum and Order, Magistrate Judge Newman wrote as follows:
[d]uring the deposition, [Dr. Turner] rendered opinions considering facts apparently not previously disclosed to him by plaintiff's counsel. It appears that the deposition of Dr. Turner simply did not go well from the plaintiff's standpoint and that plaintiff now wants to designate a new expert witness. The fact that an expert witness does not withstand cross-examination during his deposition in the manner hoped or anticipated, however, does not establish good cause for designating a new expert witness.
He subsequently denied plaintiff's motion. Insofar as plaintiff has any expert testimony at all, it is provided by Dr. Turner.
Dr. Turner wrote two opinion letters regarding plaintiff's condition. In addition to the two opinion letters, Dr. Turner has been deposed. He was deposed after he had written the letters. In the letters, Dr. Turner states his opinion that plaintiff would have had a better chance for a full recovery, and would have been left with less pain, if he had received reconstructive shoulder surgery soon after the June 12, 1990, accident. However, the letters themselves do not establish a standard of care or clearly indicate that defendant breached the relevant standard. In neither letter does Dr. Turner specifically refer to defendant or his treatment of plaintiff.
Dr. Turner admitted in his deposition that he wrote the letters without first reviewing defendant's consultation notes or any other information regarding what went on at the July 3, 1990, examination. Although the letters express a general opinion, they do not provide an evaluation of defendant's specific actions within the context of the applicable standard of care. However, at his deposition, Dr. Turner was given an opportunity to review defendant's consultation notes and evaluate his specific actions. After being given this information, and after evaluating defendant's conduct within the context of the relevant standard of care, Dr. Turner appears to ratify defendant's actions.[7] Indeed, at one point in his deposition, after adopting the screening panel's articulation of the applicable standard of care, Dr. Turner specifically agrees that defendant met that standard.[8] Perhaps more importantly, Dr. Turner *993 nowhere states or implies that defendant failed to meet the applicable standard.
Defendant moves for summary judgment arguing that plaintiff fails to support his claim with the requisite expert medical testimony. Specifically, he argues that plaintiff is unable to show negligence or causation. In support he points to the Screening Panel's conclusion that he met the applicable standard of care. He also points out that Dr. Turner, plaintiff's sole expert, testified during his deposition that defendant met the applicable standard. Essentially, defendant argues that plaintiff is without any expert testimony that would controvert this evidence and, thereby, create a genuine issue of material fact as to his alleged negligence. In his memorandum in opposition, plaintiff points to no specific testimony or statement which would raise a genuine issue as to defendant's negligence. Instead, he relies on general allegations and vague references to the record. His response is inadequate to avoid summary judgment.
Plaintiff also appears to contend that defendant was negligent in failing to perform additional tests. Again, he presents no expert medical evidence in support. Dr. Turner, his sole expert, never states that defendant's failure to perform additional tests breached the standard of care. Nor does Dr. Turner discuss defendant's choice of tests within the context of the applicable standard. On the other hand, defendant produces a report from the Screening Panel which concluded that "special studies, including MRIs or arthrograms were not then warranted." Plaintiff points to no evidence which controverts the Panel's conclusion.
In summary, plaintiff claims that defendant misdiagnosed his injury and failed to render appropriate treatment. The instant case is not within the "common-sense" exception. Therefore, plaintiff must produce expert medical testimony to support his claim. Dr. Turner is plaintiff's sole source of expert medical testimony. Nowhere in Dr. Turner's testimony, or in his opinion letters, does he indicate that defendant breached the applicable standard of care. In fact, in his deposition, Dr. Turner specifically agrees that defendant met the applicable standard. Without expert medical testimony that defendant was negligent, the court must grant defendant summary judgment. Cf. Sharples, 816 P.2d at 398 (holding that trial court correctly granted defendant summary judgment where plaintiff had no expert medical testimony that the defendant's alleged negligence was the proximate cause of plaintiff's injury); Webb, 575 P.2d at 25-26 (holding that summary judgment was appropriate where plaintiff had no expert medical evidence that defendant's failure to order an x-ray of plaintiff's injury breached the applicable standard of care).
V. CONCLUSION
Federal Rule of Civil Procedure 56(e) states as follows:
[w]hen 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 the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Defendant supports his motion for summary judgment as provided in Rule 56. In response, plaintiff does not point to any specific facts showing there is a genuine issue for trial. Instead, he relies on general allegations and vague references to opinions expressed by Dr. Turner in his opinion letters and deposition. After examining the parties' memoranda and factual submissions, the court finds that defendant is entitled to judgment as a matter of law.
IT IS BY THE COURT THEREFORE ORDERED that defendant's motion for summary judgment (Doc. 27) is granted.
NOTES
[1] Rule 56(e) requires a nonmovant to respond to a properly made and supported motion for summary judgment by setting forth specific facts which show there is a genuine issue for trial. Defendant's motion was properly made and supported. It complied with both Rule 56 and District of Kansas Rule 206(c). Therefore, plaintiff had the burden to set forth specific facts showing genuine issues.
District of Kansas Rule 206(c) addresses the manner in which a nonmovant is to set forth the specific facts. It provides, in pertinent part, that "[e]ach fact in dispute ... shall refer with particularity to those portions of the record upon which the opposing party relies." It further provides that "[a]ll material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party."
In his memorandum in opposition, plaintiff attempts to controvert defendant's statement of uncontroverted facts without citing to any supporting facts. Essentially, he relies only on unsupported, general allegations. Such a response does not comply with either Rule 56 or District of Kansas Rule 206(c). Accordingly, to the extent defendant's factual statement is supported by the record, the court has deemed it to be admitted.
[2] The record does not reveal Dr. Hildyard's first name.
[3] Defendant is an orthopedist who resides and practices in Denver, Colorado. During the period relevant to this lawsuit, he occasionally would travel to Colby, Kansas, where he provided orthopaedic consultations at the Colby Medical & Surgical Center.
[4] Defendant's consultation notes do not specifically mention "active" or "passive" but state as follows: "EXAM: Right shoulder shows full range of motion." In his deposition, defendant explained that the tests he conducted reflect both active and passive motion. Dr. Barry Turner confirmed that orthopedists often refer to both active and passive motion in this manner. Plaintiff produces no facts to controvert defendant's explanation. Indeed, in his response, plaintiff specifically states that this paragraph (paragraph seven) of defendant's factual statement is uncontroverted.
[5] Dr. Turner prepared an opinion letter dated December 17, 1991. In this letter, he lists four injuries which he discovered during his examination of plaintiff. The injuries are as follows: (1) chronic tear of the rotator cuff, right shoulder; (2) impingement syndrome with prominent and tear acromion; (3) partial tear of the bicipital tendon long head; and (4) fracture distal clavicle on right with partial AC separation.
Dr. Turner's diagnosis differs from defendant's as to injuries (1) and (4). As to injury (4), Dr. Turner's testimony indicates that the fracture and separation pre-dated plaintiff's June 12, 1990, injury. Specifically, his testimony indicates that the fracture was a "prior healed fracture" and there were prior arthritic changes in the distal clavicle.
[6] See Defendant's Statement of Uncontroverted Facts paragraph seven and Plaintiff's Response to Defendant's Statement of Uncontroverted Facts paragraph one.
[7] For instance, at his July 3, 1990, examination, plaintiff exhibited a full range of motion in his right shoulder, both active and passive. Defendant advised plaintiff that surgery was an option but recommended that plaintiff undergo conservative treatment (that is, forego surgery). At page 43 of his deposition, Dr. Turner endorsed defendant's actions when he agreed that if plaintiff had demonstrated a full active and passive range of motion when he saw him in August of 1990, as he did when defendant examined him in July of 1990, it would have been proper to treat plaintiff conservatively. Moreover, at page 49 of his deposition, Dr. Turner acknowledged that one would not perform surgery just to repair a biceps tendon tear such as plaintiff's.
[8] At page 48 of his deposition, after defendant's counsel explained the Panel's articulation of the applicable standard of care, and Dr. Turner agreed with that standard, the following exchange took place:
Q: All right. And based upon what you've told us and assuming that Dr. Clarke's testimony about active range of motion being implied in his report, just as it is in yours, is true, Dr. Clarke indeed met the applicable standard of care on July 3rd, 1990, based upon your review of his consultation report?
A: Yes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/564392/ | 937 F.2d 1415
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation,Plaintiff-Appellee,v.Walter Allen DAVIS, and Brian J. Painter, Defendants,andCharles R. Keukelaar, Shellie A. Keukelaar, Charles RubinKeukelaar, a minor, by Shellie A. Keukelaar, hisGuardian ad litem, Defendants-Appellants.
No. 89-56044.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 7, 1990.Decided July 1, 1991.
1
William B. Hanley, McCormick, Kidman & Behrens, Costa Mesa, Cal., for defendants-appellants.
2
Richard C. Turner, Mary K. Lenahan, and Robert D. Brugge, Spray, Gould & Bowers, Los Angeles, Cal., for plaintiff-appellee.
3
Appeal from the United States District Court for the Central District of California.
4
Before D.W. NELSON and REINHARDT, Circuit Judges, and SINGLETON,* District Judge.
SINGLETON, District Judge:
5
State Farm Mutual Automobile Insurance Co. ("State Farm") brought this action in federal district court seeking a declaratory judgment. State Farm alleged that a policy of automobile insurance it had issued to Walter Allen Davis ("Davis") did not cover an incident where Davis shot and injured Charles Keukelaar ("Keukelaar"), the driver of another vehicle. Davis was a passenger in his own vehicle, a 1984 GMC van, when the incident occurred. The district court had jurisdiction based on diversity of citizenship, 28 U.S.C. Sec. 1332(a)(1) (1988). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).
6
In this case we are asked to determine whether a highway shooting "result[ed] from the ownership, maintenance or use" of the assailant's automobile. On the specific facts of this case, we conclude that the shooting did result from the use of the vehicle and therefore reverse a summary judgment absolving the automobile insurance carrier from liability to the Keukelaars.
BACKGROUND
7
The facts are not in dispute. Davis, a United States Marine, purchased a 1984 GMC van while residing in the State of Tennessee. State Farm issued Davis a policy of automobile insurance, covering the vehicle. Thereafter, Davis was transferred to the United States Marine Corps Air Station, Tustin, California. He retained the vehicle with its Tennessee license and registration, as well as his Tennessee driver's license.
8
Davis was scheduled for sea duty and wished to store some personal property including several handguns at his mother's home in San Jose, California. On November 23, 1984, Davis and two fellow Marines, Brian Painter ("Painter") and David Roberts ("Roberts"), were transporting this property in Davis's GMC van at the time of the shooting. Painter was driving and Davis was riding in the front passenger seat. Roberts occupied the rear seat. The three were proceeding north on Interstate Highway 5 when they were passed by a Corvette driven by Keukelaar. Shellie Keukelaar ("Shellie"), who was pregnant, was riding as a passenger in the Corvette. Davis told Painter to overtake and pass the Corvette. As the van approached the rear of the Corvette, Davis fired a .44 caliber revolver out his window striking and shattering the rear window of the Corvette. The bullet continued into the passenger compartment and struck Keukelaar in the back of the head rendering him unconscious. Shellie was able to bring the Corvette to a stop. Davis and his friends continued driving. The Keukelaars eventually contacted state authorities. Sometime thereafter, Davis and his friends were apprehended. Davis was subsequently convicted of criminal assault in state court.
9
The Keukelaars sued Davis and Painter in state court and State Farm brought this action in federal district court seeking a declaration that it did not provide coverage to Davis and Painter for the Keukelaars' injuries. State Farm sought summary judgment on the ground that the injuries were not "caused by an accident1 resulting from the ownership, maintenance or use of [Davis's] car...." The district court agreed and entered judgment in State Farm's favor. This appeal followed.
DISCUSSION
I. Standard of Review
10
"A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the law." Hydro Systems, Inc. v. Continental Ins. Co., 929 F.2d 472, 473 (9th Cir.1991). We also review issues of insurance contract interpretation de novo. See American States Ins. Co. v. Borbor, 826 F.2d 888, 890 (9th Cir.1987).
II. Applicable Law
11
At the time of the shooting, Davis had a current State Farm insurance policy issued and delivered to Davis in Tennessee. The shooting occurred in California where the Keukelaars reside. In the trial court and in their briefs in this court, both parties proceeded on the assumption that California law governed the interpretation of the insurance policy. During oral argument State Farm argued for the first time that the law of Tennessee governs the interpretation of the provisions of its policy.2 To resolve this question we look to the choice of law rules of California, the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Federal Insurance Co. v. Scarsella Bros., Inc., 931 F.2d 599, 602 (9th Cir.1991).
12
California Civil Code Sec. 1646 (1985) provides:
13
Law of Place. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.
14
There is no need to choose between the laws of California and Tennessee if they are identical. Hurtado, 11 Cal.3d at 580, 114 Cal.Rptr. at 109, 522 P.2d at 669; International Serv. Ins. Co. v. Gonzales, 194 Cal.App.3d 110, 116, 239 Cal.Rptr. 341, 344 (1987). We determine de novo the applicable law of California and Tennessee in this diversity case. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); In Re Complaint of McLinn, 739 F.2d 1395 (9th Cir.1984) (en banc). In making this determination we look to all available data. See West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). In the absence of determinative decisions of each state's highest court we look to intermediate court decisions. State Farm Fire and Casualty Co. v. Abraio, 874 F.2d 619, 621 (9th Cir.1989). We also look to well-reasoned decisions from other jurisdictions. Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir.1980). Ultimately we must use our own best judgment in predicting how the respective state supreme courts would interpret this insurance contract. If they would reach inconsistent decisions then we must apply California's choice of law rules to resolve the conflict.
15
We have not been cited to any Tennessee or California court decisions that are directly on point. Nevertheless, we have reviewed analogous cases and are satisfied that the laws of both states are the same. Compare State Farm Mutual Automobile Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973) (handgun accidentally discharged wounding a passenger while vehicle was being driven off-road; accident held to arise out of the use of the vehicle and therefore was within automobile insurance coverage) with Travelers Ins. Co. v. Aetna Casualty & Sur. Co., 491 S.W.2d 363 (Tenn.1973) (shotgun accidentally discharged while being loaded into vehicle; accident held to arise out of loading and use of vehicle and therefore was within automobile coverage).
16
State Farm does not cite any Tennessee authority for the proposition that Tennessee interprets insurance contracts differently than California. However, it does argue that all of the California cases discussing fact situations similar to the one in this case deal with policy provisions which cover bodily injury caused by an occurrence "arising out of the use" of a vehicle while the policy in this case covers bodily injury caused by an accident "resulting from the use" of a vehicle.
17
In its brief State Farm argued that the phrase "arising out of the use" of an insured vehicle provides broader coverage than the phrase "resulting from the use" of an insured vehicle. It cites no authority for this proposition. In response, the Keukelaars argued in their reply brief that a California statute, California Insurance Code Sec. 11580.1(a) (1988), requires automobile policies issued in California to cover liability "arising out of the use" of an insured vehicle. State Farm disputed at oral argument the applicability of this statute to an insurance policy issued and delivered in Tennessee. See Gonzales, 194 Cal.App.3d 110, 239 Cal.Rptr. 341; Wheeling v. Financial Indemn. Co., 201 Cal.App.2d 36, 19 Cal.Rptr. 879 (1962).
18
We find it unnecessary to resolve this last minute dispute between the parties regarding the applicability of Sec. 11580.1(a). We are satisfied that both California and Tennessee require a slight causal connection between an insured vehicle and a shooting injury before the injury may be held to "arise out of the use" of the insured vehicle. Travelers, 491 S.W.2d at 366; Partridge, 10 Cal.3d at 100, 109 Cal.Rptr. at 815, 514 P.2d at 127. This slight causal connection in our view is also what reasonable men and women would understand the phrase "resulting from the use" of an insured vehicle to mean. See AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 818, 274 Cal.Rptr. 820, 831, 799 P.2d 1253, 1264 (1990). We are also satisfied that it is the meaning most consistent with the language and intent of the contracting parties and comports with the usual, natural and ordinary meaning of the terms in question. See Blaylock & Brown Constr., Inc. v. AIU Ins. Co., 796 S.W.2d 146, 149 (Tenn.App.1990). Having concluded that the law of California and the law of Tennessee are the same in all relevant particulars we apply the law of the forum state, California, to the issues presented in this case.
III. Coverage
19
The policy which State Farm issued to Davis contains the following relevant language:
We will:
20
1. pay damages which an insured becomes legally liable to pay because of:
21
a. bodily injury to others.
22
. . . . .
23
caused by accident resulting from the ownership, maintenance or use of your car....
24
Policy No. 355 5075-D23-42A, Policy Form 9942.2 Sec. 1 (emphasis added).
25
In Partridge, the Supreme Court of California addressed similar language in an automobile insurance policy. The court found coverage where a gun discharged injuring a passenger while the vehicle was being driven off-road in pursuit of rabbits. The court noted that a "use" of a vehicle need not be the proximate cause of an injury in order to require coverage.3 It was sufficient if some minimal causal connection between the vehicle and an injury existed. Partridge, 10 Cal.3d at 100 n. 7, 109 Cal.Rptr. at 815 n. 7, 514 P.2d at 127 n. 7.
26
In addition, the court recognized that other courts had denied coverage in "shooting" cases where there was absolutely no causal relationship between the firing of the gun and the use of the automobile but concluded that coverage had been found where the insured vehicle did bear some, albeit slight, causal connection with the shooting injury. Id. at 101 n. 8, 109 Cal.Rptr. at 816 n. 8, 514 P.2d at 128 n. 8.
27
In a more recent case, an intermediate California court of appeal found coverage where some boys were throwing eggs from a moving vehicle and injured a pedestrian. The court noted that the movement of the vehicle enhanced the speed of the eggs thrown and therefore the risk of injury to those hit. The court also noted that the vehicle aided the boys in initially avoiding capture while "egging." National Am. Ins. Co. v. Insurance Co. of N. Am., 74 Cal.App.3d 565, 140 Cal.Rptr. 828 (1977).
28
These cases persuade us that the Supreme Court of California would find coverage in this case. Davis's shooting of Keukelaar was not merely incidental to his use as a passenger of the GMC van. At the time of the shooting, Keukelaar was proceeding rapidly down the highway in his Corvette. Had Painter not heeded Davis's request to overtake and pass the Corvette, Davis would not have been in a position to shoot at Keukelaar. Further, it is not unreasonable to assume that Davis counted on the speed of the van to escape after the shooting. Under the facts of this case, the van was more than minimally connected with the injuries Keukelaar suffered.
29
We are reinforced in this conclusion, by a decision of the Minnesota Supreme Court, based on similar facts, which we believe the Supreme Court of California would find persuasive. See Continental Western Ins. Co. v. Klug, 415 N.W.2d 876 (Minn.1987).4 The facts of Klug are particularly instructive. Klug, while driving his vehicle home from work, was chased by Bahe a significant distance down the highway. Bahe menaced Klug with a shotgun before shooting him. The court considered three factors significant in determining whether coverage existed: first, the causal nexus between the vehicle and the shooting; second, whether an intervening act broke the causal link; and third, whether the assailant was using the vehicle for transportation at the time of the shooting and whether the driving facilitated the shooting. The court found coverage and concluded that the vehicle was an active accessory to the shooting since Bahe had to keep up with Klug and drive for two miles in order to shoot him.
30
The court rejected the argument that Bahe's intentional act in shooting Klug broke the causal link. It reasoned that had Bahe drove ahead and waited to ambush Klug, the causal link might have been broken. However, it concluded that Bahe's driving and shooting were inextricably linked. In making this determination the court apparently reasoned that Bahe was using his car to keep abreast of Klug at the time he shot him. Finally, the court concluded that Bahe was not merely using his vehicle as a gun rest or as the situs for an assault, but as a necessary part of the assault. The court noted that Bahe used his car to maneuver himself and Klug into position for the successful assault. Id. at 878-79.
31
The same three considerations are present in this case. Painter had to chase Keukelaar so that Davis could shoot at him. Davis did not leave the vehicle, but shot Keukelaar while both were traveling down the highway. Finally, Painter had to drive the van into position next to the Corvette, giving Davis the opportunity to fire his gun. The presence of these factors supports our conclusion that the vehicle was more than incidental to this shooting.
32
We find the cases cited by State Farm distinguishable or unpersuasive.5 Most involve situations where a tortfeasor used a vehicle to get to the scene of the tort but had exited the vehicle before committing the tort. Illustrative are Truck Ins. Exch. v. Webb, 256 Cal.App.2d 140, 63 Cal.Rptr. 791 (1967) (driver used vehicle to transport boxes to building, removed them and started fire which damaged building) and United Services Auto. Ass'n v. Ledger, 189 Cal.App.3d 779, 234 Cal.Rptr. 570 (1987) (two motorists in separate vehicles became involved in a dispute while driving down the highway, stopped and exited their respective vehicles in order to fight and one stabbed the other).
33
Closely related are cases in which the vehicle is at rest at the time of the incident and plays no real part in bringing about the harm. See Aetna Casualty and Sur. Co. v. Safeco Ins. Co., 103 Cal.App.3d 694, 163 Cal.Rptr. 219 (1980). We agree with the Supreme Court of Minnesota that a tortfeasor leaving his vehicle prior to committing the tort might serve to break the causal nexus between the use of the vehicle and the subsequent tort. In the case of the vehicle at rest, we might conclude that there was absolutely no causal relationship between the use of the vehicle and the subsequent shooting. Partridge, 10 Cal.3d at 101 n. 8, 109 Cal.Rptr. at 816 n. 8, 514 P.2d at 128 n. 8. Neither of these situations is present here.
34
Additional cases from this and other jurisdictions have reached varying decisions in deciding whether shooting incidents involved the "use" of an insured vehicle. Those that deny coverage are in our view distinguishable. First, there are the cases similar to those discussed above in which an assailant left his vehicle before assaulting the other party. See, e.g., Nationwide Mut. Ins. Co. v. Brown, 779 F.2d 984 (4th Cir.1985); State Farm Mut. Auto. Ins. Co. v. Fernandez, 767 F.2d 1299 (9th Cir.1985); Detroit Auto. Inter-Ins. Exch. v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980). Second are the closely related cases where the vehicle merely provides a situs for the tort. See, e.g., Fowler v. State Farm Mut. Auto. Ins. Co., 548 So.2d 830 (Fla.App.1989); Vanguard Ins. Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972). Finally, there are the cases from jurisdictions that require a much stronger causal relationship between the injury and the use of the vehicle than California requires. See, e.g., Government Employees Ins. Co. v. Melton, 357 F.Supp. 416 (D.S.C.1972), aff'd, 473 F.2d 909 (4th Cir.1973); Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990) (recognizing that California and Minnesota require less of a causal nexus to establish that an injury arises out of the use of an insured vehicle than is required in other jurisdictions such as South Carolina).
35
In conclusion, we are satisfied that Painter's and Davis's use of the GMC van insured by State Farm had more than a minimal causal connection with the incident leading to Keukelaar's injuries.
36
We therefore REVERSE the decision of the District Court and REMAND this case in order for that court to consider State Farm's other defenses.
*
The Honorable James K. Singleton, Jr., United States District Judge for the District of Alaska, sitting by designation
1
The trial court granted State Farm summary judgment on two grounds: 1) The shooting did not result from the use of a vehicle; and 2) Davis's shooting of Keukelaar was not an accident. Both parties assured us at oral argument that the second issue was not ripe for decision because both Davis, as named insured, and Painter, the driver, as additional insured, could claim coverage under the policy. In the parties' view, further factual development is necessary before the trial court can determine whether Davis's act was intentional, whether Keukelaar's injuries resulted from an accident and whether Painter's conduct figures in resolving these questions. Both parties asked us not to rule on the question of whether this incident involved an accident and the related question of whether California Insurance Code Sec. 533 (1972), which prohibits insurance coverage for losses caused by the willful act of the insured, applies in this case. While we have the power to affirm on the basis that the incident was not an accident, cf. Badea v. Cox, 931 F.2d 573, 577 n. 2 (9th Cir.1991), we accept the parties' request and decline to do so. Therefore, we do not address the question whether Davis's acts were intentional or willful and if so, whether Keukelaar's injuries might nevertheless have resulted from an accident
2
In its complaint for declaratory judgment, State Farm set out the facts regarding the issuance and delivery of the policy in Tennessee. It indicated that the trial court might apply Tennessee law but did not expressly request the court to do so. It does not appear that State Farm referenced Tennessee law in its arguments below. Normally, we would not consider an argument unbriefed and made for the first time during oral argument. Campbell v. Kincheloe, 829 F.2d 1453, 1455-56 n. 1 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). We would be particularly hesitant to decide complicated questions of choice of law under these circumstances. See Hurtado v. Superior Court of Sacramento County, 11 Cal.3d 574, 581, 114 Cal.Rptr. 106, 110, 522 P.2d 666, 670 (1974) (emphasis added) ("generally speaking the forum will apply its own [law] unless a party litigant timely invokes the law of a foreign state"). Our conclusion that the laws of Tennessee and California are identical makes it unnecessary to decide the waiver issue
3
In defining proximate cause courts generally require that an antecedent event constitute a substantial factor in bringing about a subsequent harm. See Restatement (Second) of Torts Sec. 431 (1965). When the Partridge court said a use of an automobile need not be a proximate cause in order to require coverage as long as it was a minimal cause, we understand it to mean that the causal nexus need not be substantial
4
State Farm argues that we should not consider Klug. It reasons that the Second District of the California Court of Appeal relied heavily on Klug in a depublished decision, Nationwide Mut. Ins. Co. v. Munoz, 199 Cal.App.3d 1076, 245 Cal.Rptr. 324 (1988), withdrawn by order of Sup.Ct., (June 30, 1988) (1988 WL 26180, 1988 Cal.LEXIS 128). Munoz involved a shooting between two cars driving down the highway. The coverage in question arose under the uninsured motorists provision of the policy. The court of appeal found that the assailant's vehicle contributed to the assault and consequently, the victim's injuries arose out of "the use" of the vehicle. The court's reasoning paralleled our interpretation of the policy provisions in this case. There was, however, another issue in Munoz which is not present in this case. The gunman's car did not touch the victim's car during the assault. There was therefore a significant question whether there was physical contact between the victim and the assailant's car which is required for uninsured motorist coverage under California Insurance Code Sec. 11580.2 (1988). The court held that the physical contact requirement was met by the bullet hitting the victim. The California Supreme Court denied review of Munoz and ordered it depublished
The California Constitution, article VI, sec. 14, authorizes the supreme court to order depublication of an opinion ordered published by the court of appeals. See also California Rules of Court 976(c)(2) (Supp.1990). State Farm, citing 9 Witkin, California Procedure (3d ed. 1985), Appeal, Sec. 582 pp. 573-74, suggests that there is a consensus among California lawyers that depublication indicates that the supreme court disapproves of the reasoning of the depublished opinion. It asks us to accept depublication as some evidence that the Supreme Court of California would not find coverage in this case. Cf. Burns v. International Ins. Co., 929 F.2d 1422 (9th Cir.1991) (denial of review by the California Supreme Court provides some indication that the court of appeal correctly decided a case). We are unpersuaded by State Farm's arguments.
California's depublication procedure does not send clear signals. As former Justice Joseph R. Grodin pointed out, " '[D]epublication' does not mean that the supreme court necessarily disapproves of the underpinnings of the decision. Nor does it mean that the court considers the outcome to be wrong, just as a straight denial of hearing does not necessarily carry with it the court's imprimatur. [p] Depublication is most frequently used when the court considers the result to be correct, but regards a portion of the reasoning to be wrong and misleading." Grodin, The Depublication Practice of the California Supreme Court, 72 Calif.L.Rev. 514, 522 (1984). Since we have no way of knowing which, if either, part of the court of appeal's decision the supreme court felt was defectively reasoned, we hold that the depublication of Munoz should not be considered in determining California law on the coverage issue. In so doing we treat a depublished decision the same way we would treat a decision that the court of appeal initially declined to publish. See Calif.Ct.R. 977(a) (Supp.1990) (non-published opinions "shall not be cited or relied on by a court or a party in any other action or proceeding ...").
5
Many of the cases cited by State Farm reason that a prospective purchaser of insurance would not expect to be covered if he shoots someone. This assumption has two components. First, the courts seem to reason most people do not expect insurance to cover their intentional acts. For the reasons set out above we decline to address questions of intent, willfulness and accident in this opinion. See n. 1, supra. Second, the courts assume that people generally do not associate shootings, whether negligent or intentional, with automobile insurance. We would agree that the average purchaser of insurance probably does not expect to shoot anyone or be shot by anyone while driving a vehicle, just as she probably does not expect to be involved in most of the incidents that fill the law reports. Nevertheless, we are satisfied that the ordinary purchaser of automobile insurance, if told his coverage would extend to any incident in which "the insured vehicle did bear some, albeit slight, causal connection with the shooting accident," would conclude that Davis's vehicle did have the requisite causal connection with the shooting of Keukelaar and therefore, was within the coverage provided by Davis's policy. See Partridge, 10 Cal.3d at 101 n. 8, 109 Cal.Rptr. at 816 n. 8, 514 P.2d at 128 n. 8. This is all that the Supreme Court of California would require | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2261872/ | 133 Cal.Rptr.2d 207 (2003)
107 Cal.App.4th 1336
NATIONAL COUNCIL AGAINST HEALTH FRAUD, INC., Plaintiff and Appellant,
v.
KING BIO PHARMACEUTICALS, INC. et al., Defendants and Respondents.
No. B156585.
Court of Appeal, Second District, Division Five.
April 22, 2003.
*209 Law Offices of Morse Mehrban and Morse Mehrban, Los Angeles, for Plaintiff and Appellant.
Mark Boling, Danville, for Consumer Justice Center, Inc. as Amicus Curiae on behalf of Plaintiff and Appellant.
Law Offices of Carlos F. Negrete and Carlos F. Negrete, San Juan Capistrano, for Defendants and Respondents.
Certified for Partial Publication.[*]
*208 GRIGNON, J.
A private plaintiff brought a representative action for unlawful competition (Bus. & Prof.Code, § 17200 et seq.) and false *210 advertising (Bus. & Prof.Code, § 17500 et seq.) against a seller of homeopathic remedies. After the close of plaintiffs case-in-chief in a court trial, judgment was entered in favor of the seller. The trial court imposed the burden of proving the advertising claims were false or misleading on plaintiff. On appeal, plaintiff acknowledges the trial court correctly imposed the burden of proof under current California law, but contends the law should be changed to impose the burden of proof on a defendant in a false advertising action. In the published portion of this opinion, we conclude the burden of proof properly rests with the plaintiff in such actions. In the unpublished portion of this opinion, we discuss plaintiffs contentions concerning discovery and the contentions of amicus curiae. We affirm.
PROCEDURAL BACKGROUND
Plaintiff and appellant National Council Against Health Fraud, Inc. (NCAHF) brought a representative action against defendants and respondents King Bio Pharmaceuticals, Inc. and its president Frank J. King, Jr. (collectively "King Bio") for unfair competition (Bus. & Prof.Code, §§ 17200, 17203, 17204) and false advertising (Bus. & Prof.Code, §§ 17500, 17535). NCAHF alleged that King Bio's advertising claims for 50 of its homeopathic remedies were false and misleading, in that the products were not effective as claimed. The case proceeded to court trial. At the conclusion of NCAHF's case-in-chief, King Bio moved for judgment under Code of Civil Procedure section 631.8. The trial court granted the motion on the ground NCAHF had failed to prove the advertising claims were false or misleading. Judgment was entered in favor of King Bio. NCAHF appealed. We gave the Consumer Justice Center, Inc. (CJC) permission to file a brief as amicus curiae in support of NCAHF.
FACTS[1]
King Bio sells homeopathic remedies. According to its product labels and website, King Bio's products relieve a variety of symptoms and ills, including: stress, colds, flu, eating disorders, learning disorders, menstrual irregularities, snoring, and tobacco and alcohol cravings.
Homeopathy is a form of alternative medicine. Homeopathic remedies are manufactured using extremely small quantities of various ingredients. Recognized homeopathic remedies are listed in the Homeopathic Pharmacopoeia, which is updated by the Homeopathic Pharmacopoeia Convention, a group of homeopathic practitioners. The Convention will not accept a new remedy for inclusion in the Homeopathic Pharmacopoeia without evidence of its safety and efficacy.[2] The federal Food, Drug, and Cosmetic Act (the Act) recognizes as official the remedies and standards in the Homeopathic Pharmacopoeia. The federal Food and Drug Administration (FDA) has issued guidelines under which homeopathic remedies may be marketed. The FDA guidelines permit a homeopathic remedy meeting the standards for strength, quality, and purity set forth in the Homeopathic Pharmacopoeia to be marketed. With the exception of certain labeling and registration requirements not at issue, the FDA does not require homeopathic *211 remedies to satisfy other requirements of the Act. All of the homeopathic remedies marketed by King Bio are listed in the Homeopathic Pharmacopoeia and comply with FDA guidelines.
DISCUSSION
At trial, NCAHF proceeded on the theory that there is no scientific basis for the advertised efficacy of King Bio's products. NCAHF performed no tests to determine the efficacy of King Bio's products and presented no anecdotal evidence. NCAHF instead argued that King Bio's products were drugs, and the scientific community required representations regarding the efficacy of drugs to be supported by acceptable scientific evidence. NCAHF asserted that the burden of proof should be shifted to King Bio to prove its products' efficacy. On appeal, NCAHF acknowledges that, under current California law, a false advertising plaintiff bears the burden of proving the defendant's advertising claim is false or misleading. NCAHF contends, however, that we should shift the burden of proof to the defendant to facilitate the campaign against health fraud. NCAHF argues that federal law shifts the burden to the defendant in false advertising actions.
We conclude there is no basis in California law to shift the burden of proof to a defendant in a representative false advertising and unlawful competition action. We conclude further that the Legislature has indicated an intent to place the burden of proof on the plaintiff in such cases. Finally, we conclude federal authority is not apposite.
I. False Advertising
A. Business and Professions Code section 17500
False advertising is unlawful. Business and Professions Code section 17500 makes it unlawful "with intent directly or indirectly to dispose of real or personal property ... to make or disseminate ... before the public in this state ... [by any] means whatever, ... any statement, concerning that real or personal property ... which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." A violation of Business and Professions Code section 17500 is a misdemeanor. Civil actions to enjoin false advertising under Business and Professions Code section 17500 may be brought "by the Attorney General or any district attorney, county counsel, city attorney, or city prosecutor in this state in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or association or by any person acting for the interests of itself, its members or the general public." (Bus. & Prof.Code, § 17535.) False advertising actions under Business and Professions Code section 17535 may also seek restitution.
B. Business and Professions Code section 17200
A violation of Business and Professions Code section 17500 also constitutes unfair competition. (Bus. & Prof.Code, § 17200.) As with false advertising actions, actions to enjoin unfair competition may be brought by a prosecuting authority or private persons acting for themselves or the general public. (Bus. & Prof.Code, § 17204.) Actions under Business and Professions Code section 17204 may also seek restitution. (Bus. & Prof.Code, § 17203.) In such an action, the plaintiff bears the burden of proving the defendant's advertising claim is false or misleading. (People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, 431, fn. 9, 115 Cal. Rptr. 812, 525 P.2d 716; South Bay Chevrolet *212 v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 878, 85 Cal. Rptr.2d 301.)
C. Business and Professions Code section 17508
Business and Professions Code section 17508 establishes an administrative procedure whereby prosecuting authorities may require an advertiser to substantiate advertising claims. This procedure is limited to prosecuting authorities and may not be utilized by private persons. Business and Professions Code section 17508, subdivision (a) prohibits advertisers from making "any false or misleading advertising claim, including claims that (1) purport to be based on factual, objective, or clinical evidence, that (2) compare the product's effectiveness or safety to that of other brands or products, or that (3) purport to be based on any fact."[3]
Business and Professions Code section 17508, subdivision (b) provides in pertinent part: "Upon written request of the Director of Consumer Affairs, the Attorney General, any city attorney, or any district attorney[,] any person doing business in California and in whose behalf advertising claims are made to consumers in California, including claims that (1) purport to be based on factual, objective, or clinical evidence, that (2) compare the product's effectiveness or safety to that of other brands or products, or that (3) purport to be based on any fact, shall provide to the department or official making the request evidence of the facts on which such advertising claims are based." If the advertiser does not respond "by adequately substantiating the claim within a reasonable time, or if the [prosecuting authority] shall have reason to believe that any such advertising claim is false or misleading," the prosecuting authority may "do either or both of the following: (1) seek an immediate termination or modification of the claim by the person in accordance with [Business and Professions Code s]ection 17535, (2) disseminate information, taking due care to protect legitimate trade secrets, concerning the veracity of such claims, or why such claims are misleading, to the consumers of this state." (Bus. & Prof.Code, § 17508, subd. (c).)
Business and Professions Code section 17508, subdivision (f) expressly provides, "The plaintiff shall have the burden of proof in establishing any violation of this section."
D. Summary
In sum, both private persons and prosecuting authorities may sue to enjoin false advertising and obtain restitution. When they bring such actions, both private persons and prosecuting authorities bear the burden of proving the advertising claims to be false or misleading. Prosecuting authorities, but not private plaintiffs, have the administrative power to request advertisers to substantiate advertising claims before bringing actions for false advertisement, *213 but the prosecuting authorities retain the burden of proof in the false advertising actions.
II. Shifting Burden of Proof or Production
Although NCAHF phrases its argument in terms of the burden of proof, we deem NCAHF to be making arguments both as to the burden of producing evidence and the ultimate burden of proof: (1) a false advertising defendant should have the burden of producing evidence substantiating the challenged advertising claim; and (2) a false advertising defendant should have the burden of proving the challenged advertising claim to be true. We address the two arguments in turn.
A. Burden of Producing Evidence
"`Burden of producing evidence' means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue." (Evid.Code, § 110.) "The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence. [¶] ... The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact." (Evid.Code, § 550.) As a general rule, a plaintiff has the burden of producing evidence to support the allegations of the complaint. (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, § 5, p. 158.) More specifically, a plaintiff in a false advertising or unlawful competition action has the burden of producing evidence that the challenged advertising claim is false or misleading. (South Bay Chevrolet v. General Motors Acceptance Corp. supra, 72 Cal.App.4th at p. 878, 85 Cal.Rptr.2d 301.) Thus, in this case, under current California law, NCAHF has the burden of producing evidence that the challenged advertising claims of King Bio are false or misleading.
NCAHF argues that a private plaintiff is in the same position as the Attorney General and other prosecuting authorities and a failure to shift the burden of producing evidence of truth to the defendants in false advertising actions under Business and Professions Code sections 17200 et seq. and 17500 et seq. would cripple the Attorney General and other prosecuting authorities in their efforts to protect consumers from false or misleading advertising. This argument is not persuasive. The Legislature, by enacting Business and Professions Code section 17508, recognized the need for the Attorney General and other prosecuting authorities to be able to require advertisers to substantiate advertising claims. With Business and Professions Code section 17508, the Legislature established an administrative procedure by which prosecuting authorities may demand such substantiation. The statute is expressly applicable only to prosecuting authorities. Private plaintiffs are not authorized to demand substantiation for advertising claims.
Nevertheless, NCAHF claims private plaintiffs should be authorized to seek substantiation of advertising claims from advertising defendants by bringing false advertising actions pursuant to Business and Professions Code sections 17200 et seq. and 17500 et seq. and shifting the burden of production to the defendants. NCAHF asserts that a private plaintiff may simply allege that an advertising claim is false or misleading and thereby require the defendant to produce evidence that the claim is true. Thus, NCAHF seeks to obtain by its private plaintiff false advertising action a right which has affirmatively been withheld from private plaintiffs by the Legislature. We decline to thwart the intent of the Legislature by this means.
*214 The Legislature has expressly permitted prosecuting authorities, but not private plaintiffs, to require substantiation of advertising claims. Such a distinction is certainly rational. Business and Professions Code section 17508 permits only a limited number of prosecuting authorities to demand substantiation of advertising claims, not an unlimited number of private persons. This limitation prevents undue harassment of advertisers and is the least burdensome method of obtaining substantiation for advertising claims. Moreover, a prosecuting authority is authorized to disseminate information to consumers concerning unsubstantiated advertising claims. (Bus. & Prof.Code, § 17508, subd. (c).) However, the prosecuting authority is directed to "tak[e] due care to protect legitimate trade secrets." (Ibid.) No such restriction would be applicable to private plaintiffs prosecuting false advertising actions were we to shift the burden of production to defendants.
We reject NCAHF's request to change current California law to shift the burden of production of evidence to defendants in false advertising actions. Under current California law, the plaintiff in a false advertising action has the burden of producing evidence to prove the allegations of the complaint that the challenged advertising is false or misleading. The Legislature has indicated an intent to alter the burden of substantiating advertising claims only with respect to prosecuting authorities. NCAHF has presented no persuasive argument that would justify a change in the existing burden of production as to private plaintiffs, in light of this clear legislative intent.
B. Burden of Proof
"`Burden of proof means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid.Code, § 115.) "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief ... that he is asserting." (Evid.Code, § 500.) "The party claiming that a person is guilty of ... wrongdoing has the burden of proof on that issue." (Evid.Code, § 520.) The plaintiff in a false advertising action has the burden of proving that the challenged advertising claim is false or misleading. (South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th at p. 878, 85 Cal.Rptr.2d 301.)
On rare occasions, the courts have altered the normal allocation of the burden of proof. (McGee v. Cessna Aircraft Co. (1983) 139 Cal.App.3d 179, 187, 188 Cal.Rptr. 542.) The shift in the burden of proof from the plaintiff to the defendant rests on a policy judgment that there is a substantial probability the defendant has engaged in wrongdoing and the defendant's wrongdoing makes it practically impossible for the plaintiff to prove the wrongdoing. (See Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1426, 81 Cal. Rptr.2d 236.) Thus, the normal allocation of the burden of proof has been shifted in spoliation of evidence cases (ibid),[4] negligence *215 per se actions (McGee v. Cessna Aircraft Co., supra, 139 Cal.App.3d at p. 190, 188 Cal.Rptr. 542), and product liability cases based on design defect (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 573 P.2d 443).[5] Even in these cases, however, the plaintiff has the burden of producing some evidence before the burden of proof is shifted to the defendant. In spoliation of evidence cases, for example, the plaintiff must produce evidence that the defendant failed to preserve the evidence and establish a substantial probability of causation before the burden of proof shifts to the defendant to prove the failure to preserve the evidence did not cause damage to the plaintiff. (Galanek v. Wismar, supra, 68 Cal.App.4th at p. 1427, 81 Cal.Rptr.2d 236.) As another example, in negligence per se actions, the plaintiff must produce evidence of a violation of a statute and a substantial probability that the plaintiffs injury was caused by the violation of the statute before the burden of proof shifts to the defendant to prove the violation of the statute did not cause the plaintiffs injury. (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 772, 91 Cal.Rptr. 745, 478 P.2d 465.) Similarly, in design defect cases, the plaintiff must produce evidence that his or her injury was caused by the design of the product, before the burden of proof shifts to the defendant to prove the design of the product was not defective. (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443.) We are aware of no cases in which the burden of proof shifts to the defendant upon the filing of the complaint. (See Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal. App.3d 396, 406, 209 Cal.Rptr. 456 ["There is a limit to the number of presumptions in which the court will indulge solely for the purpose of assisting plaintiff in proving a case, especially when there is no evidentiary starting point from which those presumptions can flow."].)
In this case, NCAHF alleged that King Bio made false advertising claims as to the efficacy of 50 of its products. NCAHF presented evidence that King Bio made advertising claims as to the effectiveness of its homeopathic remedies in relieving various symptoms and ills. For example, one of King Bio's remedies was advertised as effective in alleviating stress and a second remedy was advertised as effective in reducing cravings for tobacco. NCAHF presented expert testimony of the inefficacy of homeopathic remedies in general, but presented no evidence concerning the efficacy of King Bio's products. Based on this production of evidence, NCAHF contends that public policy required the burden of proof to be shifted to King Bio to prove that its remedies were effective as claimed, i.e., the advertising claims were true. We reject this contention for a number of reasons.
Public policy in this regard has been clearly established by the Legislature. The Legislature has established as a general rule that the burden of proof is on the plaintiff to establish a defendant's wrongdoing. (Evid.Code, § 520.) More specifically, the Legislature has confirmed that the burden of proof rests with the plaintiff in false advertising actions. (Bus. & Prof. Code, § 17508, subd. (f).) In Business and Professions Code section 17508, the Legislature has authorized prosecuting authorities to administratively seek substantiation of advertising claims from advertisers. If substantiation is not forthcoming, is inadequate, or fails to dispel the belief the advertising *216 claim his false or misleading, the prosecuting authority may bring an action for false advertising under Business and Professions Code section 17535. In these actions for false advertising, the prosecuting authority is expressly assigned the burden of proof. It would be inappropriate to shift the burden of proof to the defendant in a private plaintiff false advertising action when the private plaintiff is not statutorily authorized to seek substantiation of the advertising claim from the defendant.
Public policy against a shifting of the burden of proof is also found in the federal regulation of homeopathic remedies. The Act recognizes as official the remedies and standards of the Homeopathic Pharmacopoeia. Homeopathic remedies are included in the Homeopathic Pharmacopoeia only after acceptance by the Homeopathic Pharmacopoeia Convention following submission of evidence of the remedy's efficacy and safety. The FDA permits homeopathic remedies included in the Homeopathic Pharmacopoeia to be marketed. King Bio's products are included in the Homeopathic Pharmacopoeia and otherwise comply with FDA regulations. Thus, prior to the marketing of a product by King Bio, the general efficacy and safety of the remedy has been substantiated to the extent required by federal law. Public policy would not be furthered under these circumstances by requiring King Bio to substantiate its advertising claims as to general efficacy every time a private plaintiff brings a false advertising action. This federal regulation of homeopathic remedies also makes it less likely that there is a substantial probability of wrongdoing by King Bio.
Finally, there is nothing in the nature of a false advertising action that makes it difficult for a plaintiff to prove the allegations of the complaint. The homeopathic remedies are marketed and readily available for testing by a plaintiff. The falsity of the advertising claims may be established by testing, scientific literature, or anecdotal evidence. That NCAHF does not wish to bear the expense of proving its case does not mean that the burden and expense should be shifted to King Bio. Nothing King Bio has done has made it practically impossible for a plaintiff to prove that the advertising claims are false or misleading.
III. Federal Law
NCAHF relies on cases arising under the Federal Trade Commission Act (FTC Act) and the Lanham Act to argue that federal law shifts the burden of proof to defendants in false advertising actions.
A. FTC Act
The FTC Act prohibits, "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce." (15 U.S.C. § 45(a)(1).) False advertising is specifically defined to be an unfair or deceptive act or practice. (15 U.S.C. § 52.) The FTC is empowered to prevent the use of unfair competition and unfair or deceptive practices. (15 U.S.C. § 45(a)(2).) The FTC can issue a complaint against the defendant and set an administrative hearing before the FTC. If the hearing results in an order against the defendant, the defendant may appeal to the federal circuit court of appeals, seeking to set aside the FTC's order. (15 U.S.C. § 45(b), (c).) If the FTC seeks to enjoin an unfair or deceptive practice pending the issuance of a complaint or before it is finally adjudicated, the FTC may bring an action in federal district court to temporarily enjoin the practice. (15 U.S.C. § 53.) In proper cases, the FTC may seek *217 a permanent injunction. (Ibid.) In either type of proceeding, the FTC bears the burden of proof. (15 U.S.C. § 53(b)(2); Porter & Dietsch, Inc. v. F.T.C. (7th Cir. 1979) 605 F.2d 294, 305-306; In re Pfizer, Inc. (1972) 81 F.T.C. 23.)
Congress has delegated to the FTC the authority to define unfair trade practices. (In re Pfizer, Inc., supra, 81 F.T.C. 23.) In 1972, the FTC determined that it is unfair to make an affirmative advertising claim without a reasonable basis for making that claim. (Ibid.) The type of basis considered sufficient depends on the type of advertising claim made. "Many ads contain express or implied statements regarding the amount of support the advertiser has for the product claim. When the substantiation claim is express (e.g., `tests prove,' `doctors recommend,' and `studies show'), the [FTC] expects the firm to have at least the advertised level of substantiation.... [¶] Absent an express or implied reference to a certain level of support, and absent other evidence indicating what consumer expectations would be, the [FTC] assumes that consumers expect a `reasonable basis' for claims." (FTC Policy Statement Regarding Advertising Substantiation, 49 Fed. Reg. 30999, Aug. 2, 1984.) The former type of claim is sometimes called an "establishment" claim, while the latter is a "non-establishment" claim. (Removatron Intern. Corp. v. F.T.C. (1st Cir.1989) 884 F.2d 1489, 1492, fn. 3.) The level of substantiation necessary to support a non-establishment claim varies depending on the claim made. Sometimes, clinical testing is required to provide a reasonable basis for a non-establishment claim, but this is not always the case. (Thompson Medical Co., Inc. v. F.T.C. (1986) 791 F.2d 189, 194-195.) For a non-establishment claim, what constitutes a reasonable basis depends on a number of factors, including "the type of claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation of the claim, and the amount of substantiation experts in the field believe is reasonable." (FTC Policy Statement Regarding Advertising Substantiation, 49 Fed.Reg. 30999, Aug. 2, 1984.)
Regardless of the level of substantiation required, however, the FTC still bears the burden of proving advertising claims are false or misleading. ((Sterling Drug, Inc. v. F.T.C. (9th Cir. 1984) 741 F.2d 1146, 1150; Porter & Dietsch, Inc. v. F.T.C, supra, 605 F.2d at pp. 305-306.) In other words, the FTC may administratively impose on an advertiser the burden of producing evidence to substantiate its advertising claims, but the FTC, in an action for false advertising, bears the burden of proving the advertising claim is, in fact, false or misleading. In this respect, the FTC Act is very similar to Business and Professions Code section 17508 and provides no support for NCAHF's position.
B. Lanham Act
The Lanham Act provides: "Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device ... which [¶] ... [¶] ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act." (15 U.S.C. § 1125(a)(1).) This section of the Lanham Act does not provide for prosecution by government authorities; it provides for civil actions by competitors. In a competitor action for false advertising under the Lanham Act, the plaintiff has the burden *218 of proving the defendant's advertisement is false or misleading. (Castrol Inc. v. Pennzoil Co. (3d. Cir.1993) 987 F.2d 939, 943-944; Procter & Gamble Co. v. Chesebrough-Pond's Inc. (2d Cir.1984) 747 F.2d 114, 119.)
The burden of production in a Lanham Act case depends on whether the advertisement at issue is an establishment claim. "Where a plaintiff challenges a test-proven superiority advertisement, the defendant must identify the cited tests. Plaintiff must then prove that these tests did not establish the proposition for which they were cited." (Castrol, Inc. v. Quaker State Corp. (2d Cir.1992) 977 F.2d 57, 63.) If, however, the challenged advertisement is a non-establishment claim, the plaintiff must simply prove it false. In such a case, the fact that the defendant might rely on unpersuasive evidence to support the advertising claim would not entitle the plaintiff to relief. (Procter & Gamble Co. v. Chesebrough-Pond's Inc., supra, 747 F.2d at p. 119.) Instead, the plaintiff must affirmatively prove the advertising claim is false. (Ibid.; RPR v. Merrell Dow, Inc. (8th Cir.1996) 93 F.3d 511, 514.)
Under the Lanham Act, a competitor can require an advertiser to identify the tests expressly relied on in an advertising claim. While reasons of fairness may compel disclosure of the tests relied upon when an advertisement claims its results are supported by tests, we need not reach the issue in this case. NCAHF conceded at trial that the only advertisements at issue in this case were non-establishment claims. Thus, even if we were to adopt the limited shifting of the burden of production used in Lanham Act cases, it would be of no assistance to NCAHF.
IV.-V.[**]
DISPOSITION
The judgment is affirmed. National Council Against Health Fraud, Inc. is to bear King Bio Pharmaceuticals, Inc.'s and Frank J. King, Jr.'s costs on appeal.
We concur: TURNER, P.J., and ARMSTRONG, 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 IV. and V. of the Discussion.
[1] We state the evidence in the light most favorable to the judgment. (Code Civ. Proc., § 631.8; Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1254-1255, 54 Cal.Rptr.2d 340.)
[2] Conflicting evidence was introduced as to whether the standards used by the Convention for acceptable proof of safety and efficacy would be accepted by the scientific community.
[3] When originally enacted, Business and Professions Code section 17508 prohibited only "false advertising claims that (1) purport to be based on factual, objective, or clinical evidence, or that (2) compare the product's effectiveness or safety to that of other brands or products." (Stats.1972, ch. 1417, § 1, p. 3081.) In 1989, Assembly Bill No. 1543 was introduced to add a third category of false advertising: claims that "purport to be based on `value,' `savings' or other areas subject to false or misleading advertising." (Assem. Bill No. 1543 (1989-1990 Reg. Sess.) as introduced Mar. 8, 1989.) An amendment modified this new category to include all claims that "purport to be based on any fact," and modified the statutory language simply to prohibit "any false or misleading advertising claim," including the three enumerated categories. (Assem. Amend, to Assem. Bill No. 1542 (1989-1990 Reg. Sess.) Apr. 10, 1989.)
[4] We recognize the California Supreme Court has concluded that there is no cause of action for intentional spoliation of evidence. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 477-478, 84 Cal. Rptr.2d 852, 976 P.2d 223; Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17-18, 74 Cal.Rptr.2d 248, 954 P.2d 511.) Various courts of appeal have held there is no cause of action for negligent spoliation of evidence. (Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1301, 115 Cal.Rptr.2d 68; Coprich v. Superior Court (2000) 80 Cal. App.4th 1081, 1090, 95 Cal.Rptr.2d 884; but see Penn v. Prestige Stations, Inc. (2000) 83 Cal.App.4th 336, 345, 99 Cal.Rptr.2d 602.)
[5] Sometimes a shift in the burden of proof is effectuated by means of a presumption. (E.g., Evid.Code, § 669.)
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261875/ | 132 Cal.Rptr.2d 842 (2003)
107 Cal.App.4th 1167
Christy ZAPANTA, a Minor, etc., et al., Plaintiffs and Appellants,
v.
UNIVERSAL CARE, INC., et al., Defendants and Respondents.
No. B159465.
Court of Appeal, Second District, Division Two.
April 16, 2003.
*843 Blumberg Law Corporation and Ave Buchwald, Long Beach, for Plaintiffs and Appellants.
Fonda & Fraser and Kristin J. Heim for Defendants and Respondents.
DOI TODD, J.
In this case, we address the question of whether the trial court erred in granting a defense motion for summary judgment where the plaintiffs filed a request for dismissal without prejudice one day before their opposition to the motion was due. Plaintiffs and appellants Christy Zapanta, by and through her guardian ad litem, Mary Jean Maloles, and Mary Jean Maloles, individually, maintain that they were entitled to voluntarily dismiss their action before commencement of trial under Code of Civil Procedure section 581, subdivision (b)(1). The trial court disagreed and granted summary judgment in favor of defendants and respondents Universal Care, Inc. and Eddie Quan, M.D. We reverse.
BACKGROUND
Appellants commenced this medical malpractice action against respondents on May 24, 2001. Appellants claimed that respondents' delay in diagnosing a pseudomonas bacterial infection resulted in the severe neurological impairment of Zapanta. *844 Zapanta's mother claimed negligent infliction of emotional distress as a bystander witness.
On March 7, 2002, respondents filed a motion for summary judgment, which included the declaration of an expert witness, Andrew P. Novom, M.D., who concluded that respondents complied with the standard of care in the community. The hearing on the motion was originally set for April 11, 2002, but was advanced by the court to April 4, 2002, so that the motion could be heard more than 30 days before the May 6, 2002 trial date (Code Civ. Proc., § 437c, subd. (a)).
On March 20, 2002, one day before appellants' opposition to the motion was due,[1] appellants filed a request for dismissal of the entire action without prejudice. The clerk entered the dismissal the same day.
Upon receiving a copy of the dismissal the following day, respondents learned that the motion had been taken off calendar. At respondents' request, the clerk placed the motion back on calendar. Thereafter, on March 25, 2002, respondents filed a supplemental memorandum of points and authorities asking the court to strike the request for dismissal and grant the summary judgment motion. On March 28, 2002, appellants filed a response, entitled "Opposition to Motion for Summary Judgment," in which their sole contention was that their dismissal of the action deprived the court of jurisdiction to rule on the motion.
Both parties appeared at the hearing on the summary judgment motion on April 4, 2002, and the court granted the motion. The court's subsequent written order, dated April 16, 2002, stated that the court had considered the parties' submissions and found that (1) the declaration of respondents' expert witness established there was no merit to the medical negligence cause of action, (2) there was therefore no merit to the negligent infliction of emotional distress claim, which was also time barred, and (3) the case of Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 118 Cal.Rptr.2d 405 and other authority cited by respondents in their supplemental memorandum of points and authorities "compels the court to strike [appellants'] request for dismissal." Judgment was entered in favor of respondents on April 16, 2002. Notice of appeal was timely filed.
DISCUSSION
A. Dismissal of Action
The issue before us is whether the trial court erred in granting respondents' motion for summary judgment after appellants had filed a request for dismissal of the action without prejudice one day before their opposition to the motion was due. We conclude that the trial court erred and we reverse the judgment. In so doing, we note that in applying a statute to undisputed facts, our review is de novo. (Groth Bros. Oldsmobile, Inc. v. Gallagher, supra, 97 Cal.App.4th 60, 118 Cal.Rptr.2d 405.)
Code of Civil Procedure section 581, subdivision (b), provides that an action may be dismissed: "(1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any...." Similarly, subdivision (c) of the same section (not cited by *845 the parties) provides: "A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial."
But the right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute. (Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 256, 60 Cal.Rptr.2d 436.) "`Code of Civil Procedure section 581 recognizes exceptions to the right; other limitations have evolved through the courts' construction of the term `commencement of trial' These exceptions generally arise where the action has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication.'" (Ibid., quoting Harris v. Billings (1993) 16 Cal App.4th 1396, 1402, 20 Cal.Rptr.2d 718.) "`Upon the proper exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders in the dismissed action' [citation] except for matters such as attorney's fees. An order by a court lacking subject matter jurisdiction is void." (Kyle v. Carmon (1999) 71 Cal. App.4th 901, 909, 84 Cal.Rptr.2d 303.)
Respondents rely on several cases to support their position that the dismissal was invalid and summary judgment was properly granted in their favor. In Groth, supra, 97 Cal.App.4th 60, 118 Cal. Rptr.2d 405, the plaintiff failed to file opposition to the defendant's demurrer, and instead attempted to file an amended complaint that was rejected by the clerk. (Id, at p. 64, 118 Cal.Rptr.2d 405.) The day before the hearing, the court issued a tentative ruling sustaining the demurrer without leave to amend. (Ibid.) On the day of the hearing, the plaintiff filed a voluntary dismissal without prejudice, and the trial court concluded that it lacked jurisdiction to rule on the demurrer. (Ibid.) The appellate court reversed. In doing so, the court relied on policy concerns previously discussed by the Supreme Court in Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785, 176 Cal.Rptr. 104, 632 P.2d 217, where the court held that once a general demurrer is sustained with leave to amend and the plaintiff fails to amend within the time allotted, the right to voluntarily dismiss the action is cut off. Following Wells, the Groth court concluded that allowing a plaintiff to file a voluntary dismissal without prejudice in the face of a tentative ruling that the court will sustain a demurrer without leave to amend "waste[s] the time and resources of the court and other parties and promote[s] annoying and continuous litigation," as well as undermines the tentative ruling system. (Groth, at p. 70, 118 Cal.Rptr.2d 405.) Here, unlike Groth, there was no tentative ruling at the time appellants filed their request for dismissal. Thus, the policy concerns raised by Wells and Groth did not come into play.
Respondents also rely on Cravens, supra, 52 Cal.App.4th 253, 60 Cal.Rptr.2d 436, in which the plaintiff failed to file opposition to the defendants' motion for summary judgment. Instead, the day before the hearing, the plaintiff filed a voluntary request for dismissal without prejudice, which the clerk entered the same day. (Id. at pp. 255-256, 60 Cal.Rptr.2d 436.) Having no notice of the dismissal, the defendants appeared at the hearing and the court granted the summary judgment motion, which was affirmed on appeal. (Id. at pp. 255-256, 258, 60 Cal. Rptr.2d 436.) The appellate court noted that under Code of Civil Procedure section 437c, subdivision (b), failure to file opposition "`may constitute a sufficient ground, in the court's discretion, for granting the motion.'" (Cravens, at p. 257, 60 Cal. Rptr.2d 436.) The appellate court reasoned that in light of a record showing *846 that the motion sufficed to entitle the defendants to summary judgment and in the absence of a timely opposition by the plaintiff, entry of summary judgment in favor of the defendants was "a formality which [plaintiff] could not avoid by the stratagem of filing a last minute request for dismissal without prejudice." (Ibid.)
By contrast, appellants here did not fail to file opposition to the summary judgment motion; they filed their request for dismissal prior to their deadline for filing opposition to the summary judgment motion, albeit by only one day. Under these circumstances, it cannot be said that judgment on the motion was a mere formality, thus distinguishing this case from Cravens.
Respondents also cite to Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 57 Cal.Rptr.2d 4. There, the court had issued a tentative ruling granting the defendants' motions for summary judgment. A hearing on the motions was held, during which the court granted the plaintiffs request for a continuance to submit additional evidence. (Id, at p. 768, 57 Cal.Rptr.2d 4.) Instead of doing so, the plaintiff filed a request for dismissal without prejudice. (Ibid.) The trial court ordered the request for dismissal stricken and entered summary judgment in favor of the defendants. (Ibid.) In affirming the judgment, the appellate court concluded that the plaintiff could not dismiss a case without prejudice after a tentative adverse ruling on defense motions and after the hearing on the motions had commenced but was continued for the exclusive purpose of allowing the plaintiff to produce evidence. (Id. at pp. 771-772, 57 Cal.Rptr.2d 4.) Unlike Mary Morgan, here there was no similar manipulation by appellants of the judicial process, i.e., "delaying a court ruling on a defense motion in order to sneak in a voluntary dismissal."[2]
Finally, respondents cite to Miller v. Marina Mercy Hospital (1984) 157 Cal. App.3d 765, 204 Cal.Rptr. 62. The plaintiffs in Miller failed to respond to defendants' requests for admissions on all issues in the case, which were therefore deemed admitted by operation of law. The trial court denied the plaintiffs' request for relief and the defendants filed a motion for summary judgment based on the deemed admissions. (Id. at p. 767, 204 Cal.Rptr. 62.) One week before the hearing on the motion, the plaintiffs filed a request for dismissal without prejudice, which the clerk entered. (Ibid.) The trial court nevertheless granted summary judgment in favor of defendants, which was affirmed on appeal. The appellate court concluded that deemed admissions which effectively disposed of the entire case, cut off the plaintiffs right to voluntary dismissal. (Id. at. p. 770, 204 Cal.Rptr. 62.) But, here again, unlike Miller, respondents had no preexisting entitlement to a favorable disposition at the time appellants dismissed the action.
Accordingly, none of the cases cited by respondents is dispositive. At the time appellants filed their request for dismissal, the opposition to the summary judgment motion was not past due, no hearing on the motion had been held and no tentative ruling or other decision tantamount to an adjudication had been made in respondents' favor. In other words, the case had not yet reached a stage where a final disposition was a mere formality. We are mindful of respondents' concern that appellants may now have the right to refile their action, but that is so any time a *847 plaintiff files a valid request for dismissal of his or her complaint without prejudice. The purpose behind the right of a plaintiff to voluntarily dismiss a case under Code of Civil Procedure section 581 "is to allow a plaintiff a certain amount of freedom of action within the limits prescribed by the code." (Cal-Vada Aircraft, Inc. v. Superior Court (1986) 179 Cal.App.3d 435, 446, 224 Cal.Rptr. 809.) Where this right does not conflict with other statutory provisions, judicial procedures or public policy, the dismissal is valid.
We therefore find that appellants' request for dismissal without prejudice is valid and that the trial court exceeded its jurisdiction in granting respondents' motion for summary judgment.
B. Dismissal of Minor's Claim
Respondents contend that a guardian ad litem may not voluntarily dismiss a minor's action without prejudice without first obtaining a court order authorizing the dismissal.[3] Respondents rely on Code of Civil Procedure section 372, subdivision (a), which provides that a guardian ad litem appearing for a minor "shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise."
While the statute does not define "compromise," that term has been defined as "`a settlement of differences by mutual concessions; an adjustment of conflicting claims.'" (Isaacson v. City of Oakland (1968) 263 Cal.App.2d 414, 421, 69 Cal. Rptr. 379.) Although dismissal of an action may be the end result of a compromise or settlement, it is certainly not the equivalent.
Respondents cite no case on point, and appellants concede that "no case has decided the precise issue presented." But both parties cite us to In re Christina B. (1993) 19 Cal.App.4th 1441, 1454, 23 Cal. Rptr.2d 918, a dependency case in which a guardian ad litem was appointed for a mother who suffered from paranoid schizophrenia. Over the mother's objection, the guardian ad litem waived the mother's trial rights and submitted the matter for determination based on the social worker's report and recommendations. Id. at p. 1449, 23 Cal.Rptr.2d 918.) The juvenile court declared the children dependents, removed them from their mother's custody and placed them with their father. (Ibid.) The appellate court reversed, holding that it was error for the court to accept the guardian's waiver of fundamental constitutional rights over the mother's objection. The appellate court stated: "[A] guardian ad litem's role is more than an attorney's but less than a party's. The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian's charge in mind. Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit." (Id. at p. 1454, 23 Cal.Rptr.2d 918.) Thus, "[s]hould a guardian ad litem take an action inimical to the legitimate interests of the ward, the court retains the supervisory authority to rescind or modify the action taken." (Regency Health Services, *848 Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1502, 76 Cal.Rptr.2d 95.)
Code of Civil Procedure section 372 empowers a guardian ad litem to compromise a claim, or to agree to have judgment entered either in favor or against a ward, to satisfy a judgment for or against a ward, or to release or discharge a claim pursuant to a compromise, with court approval. As the court in Regency Health Services, Inc. explained, the court retains the power to rescind or modify an action taken on behalf of a ward by a guardian ad litem which is inimical to the interests of the ward. There is nothing in section 372 which expressly precludes dismissal of an action without prejudice by a guardian ad litem. Furthermore, under the circumstances here, dismissal without prejudice is not inimical to the interests of the minor as the statute of limitations has not run and no actual prejudice will be suffered by the minor in dismissing the action. Quite to the contrary, it would be inimical to the minor's rights to vacate the dismissal entered on her behalf and permit entry of summary judgment against her, precluding any subsequent lawsuit on her claims. We therefore find no merit to respondents' contention that the guardian ad litem had no authority to dismiss the minor's action without prejudice without court approval.[4]
DISPOSITION
The judgment and the order granting summary judgment and striking appellants' request for dismissal without prejudice are reversed. Each side to bear their own costs on appeal.
We concur: NOTT, Acting P.J. and ASHMANN-GERST, J.
NOTES
[1] Under Code of Civil Procedure section 437c, subdivision (b), any opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing.
[2] Kyle v. Cannon, supra, 71 Cal.App.4th 901, 915, 84 Cal.Rptr.2d 303, distinguished Mary Morgan in finding that the plaintiff was entitled to dismiss his action prior to the court's ruling on the defendant's anti-SLAPP motion (Code Civ. Proc, § 425.16).
[3] Respondents raised this issue for the first time at oral argument. We granted the parties leave to file letter briefs on this issue.
[4] Appellants argue in their letter brief that Code of Civil Procedure section 372 does not apply because there is no actual court order appointing appellant Mary Jean Maloles as guardian ad litem of her minor daughter, appellant Christy Zapanta, since no application for such an order was ever made to the trial court. We note that in all the pleadings, including briefs and records before this court, filed on behalf of plaintiffs by their attorneys of record, plaintiffs and appellants represent themselves as "Christy Zapanta, by and through her guardian ad litem, Mary Jean Maloles, and Mary Jean Maloles, individually." We reject any attempt by appellants to take advantage of a prior misrepresentation or failure on their part to obtain the necessary authority to act in this representative capacity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261840/ | 261 N.J. Super. 139 (1992)
618 A.2d 352
PAUL RUGALA, ANNA RUGALA AND ANTHONY J. POLAKAS, PLAINTIFFS,
v.
NEW JERSEY INSURANCE UNDERWRITING ASSOCIATION, DEFENDANT-RESPONDENT, AND NATIONAL ASSOCIATES, DEFENDANT-APPELLANT, AND J. RICHARD FERRY, DEFENDANT.
Superior Court of New Jersey, Appellate Division.
Argued October 30, 1991.
Decided January 17, 1992.
*140 Before Judges KING, DREIER and BROCHIN.
Lars S. Hyberg argued the cause for appellant, National Associates (McAllister, Westmoreland, Vesper & Schwartz, attorneys; Lars S. Hyberg, on the brief).
Thomas A. Shovlin argued the cause for respondent, New Jersey Insurance Underwriting Association (Riley, Di Camillo & Shovlin, attorneys; Thomas A. Shovlin, on the brief).
The opinion of the court was delivered by BROCHIN, J.A.D.
*141 Pursuant to statute, defendant New Jersey Insurance Underwriting Association, whose membership consists of insurance companies writing property insurance in New Jersey, provides basic fire insurance and extended coverage for insurable property in this State whose owners are unable to obtain property insurance from the usual commercial sources. N.J.S.A. 17:37A-1 et seq.; see Needham v. N.J. Ins. Underwriting, 230 N.J. Super. 358, 365, 553 A.2d 821 (App.Div. 1989). Plaintiffs Paul Rugala, Anna Rugala, and Anthony J. Polakas own a frame building in Vineland, New Jersey. From August 27, 1987 through August 27, 1988, their property was insured against fire and other perils under a policy issued by the Association. Defendant National Associates is the insurance broker that procured that insurance.
On June 30, 1988, the Association and National both notified the property owners by mail that their policy would expire on August 28, 1988. National reminded them again several times by telephone. The property owners submitted the renewal application and a check for their renewal premium to National on Friday, August 26, 1988.
That same day, National endorsed the property owners' premium check and mailed it to the Association, by regular mail, for a renewal policy to become effective on Saturday, August 27, 1988. At approximately 4 a.m. on Sunday, August 28, 1988, the property owners' building was destroyed by fire. Their check for the renewal premium arrived in the Association's office on Monday, August 29, 1988.
The property owners demanded reimbursement for their loss in accordance with the terms of their renewal policy. The Association refused payment, claiming that when the fire occurred, the original policy had already expired and the renewal policy had not yet become effective because the premium not been received.
*142 The property owners sued the Association and National. National crossclaimed against the Association, claiming that as a broker, it was entitled to indemnification from the Association as a matter of contract and of decisional law. All of the parties moved for summary judgment. On the basis of N.J.S.A. 17:37A-8, the New Jersey Insurance Underwriting Association's plan of operation, and Millner v. New Jersey Ins. Underwriting Ass'n, 193 N.J. Super. 653, 475 A.2d 653 (App.Div. 1984), the Law Division judge entered judgment in favor of the Association, dismissing both the property owners' complaint and National's crossclaim.
Only National has appealed from the dismissal of its crossclaim against the Association.
National contends that, pursuant to N.J.S.A. 17:22-6.2a, it accepted the renewal premium in advance of the fire as the Association's agent and that the property was therefore insured against the fire damage under the renewal policy. It asserts that the regulations on which the court and the Association rely, contained in the Association's plan of operation, are applicable only to the original issuance, and not to the renewal of an insurance policy. It argues that Millner is distinguishable on its facts or, if it is indistinguishable, that we should recognize that Millner was wrongly decided and refuse to follow it. Alternatively, National asserts that summary judgment should have been denied because discovery had not yet been completed.
For the following reasons, we disagree with National and therefore affirm.
N.J.S.A. 17:22-6.2a, upon which National relies for its claim that it received the renewal premium before the fire as the Association's agent, reads in part as follows:
Any insurer which delivers in this State to any insurance broker a contract of insurance ... pursuant to the application or request of such broker... shall be deemed to have authorized such broker to receive on its behalf payment of any premium which is due on such contract at the time of its issuance or delivery....
*143 As Judge Antell explained in Global American Ins. Managers v. Perera Co., Inc., 137 N.J. Super. 377, 385-386, 349 A.2d 108 (Ch.Div. 1975), aff'd o.b. 144 N.J. Super. 24, 364 A.2d 546 (App. Div. 1976), that statute codifies the common law principle, accepted in New Jersey and rooted in considerations of apparent authority, that "where the broker has been entrusted to deliver the policy, the insured may justifiably believe that his broker is authorized to receive payment of premium therefor on the insurer's behalf." (Emphasis added.)
N.J.S.A. 17:37A-7 directs the New Jersey Insurance Underwriting Association to adopt a "plan of operation.... [which] shall provide for economical, fair and non-discriminatory administration, and for the prompt and efficient provision of essential property insurance to promote orderly community development." N.J.S.A. 17:37A-7. The provisions of the plan which has been adopted in accordance with that statute affect the significance of N.J.S.A. 17:22-6.2a for the present case. That plan of operation, part of which is referred to as the FAIR Plan in the Association's manual, states:
3. Authority of Agents and Brokers (Producers)
The FAIR Plan has no agents. The use of the term "Agent" does not grant any contract relationship, either actual or implied, between the FAIR Plan and any individual or entity.
1. No agent or broker has or shall have any authority to bind the Plan in any way.
2. No agent or broker may issue a policy, binder, endorsement or cancellation notice, nor assign any loss, on behalf of the Plan. No agent or broker may sign any form as an authorized representative of the FAIR Plan.
3. When dealing with the FAIR Plan, any licensed property insurance agent or broker is acting as the designated representative of the applicant or insured, and not as an agent of the Plan.
Because of these terms of the Association's plan of operation, National knows, or ought to know, that it is not an agent for the Association. Unlike an insured, National cannot fairly claim the benefit of the statutory agency by estoppel embodied in N.J.S.A. 17:22-6.2a. That act, like the doctrine of apparent agency which it codifies, protects members of the public who rely on the appearance of agency with which insurers *144 cloak brokers by authorizing them to deliver contracts of insurance. See Kubeck v. Concord Ins. Co., 103 N.J. Super. 525, 248 A.2d 131 (Ch.Div. 1968), aff'd o.b., 107 N.J. Super. 510, 533, 259 A.2d 473 (App.Div. 1969). National is not an insured and, assuming it could do so, is not suing in the right of an insured, but solely in its own right as a broker. Because National does not come within the purpose of the statute, it is not entitled to its benefit. See Belfer v. Borrella, 9 N.J. Super. 287, 293, 76 A.2d 25 (App.Div. 1950); State v. Machuzak, 227 N.J. Super. 279, 282-83, 546 A.2d 1099 (Law Div. 1988).
Furthermore, even where N.J.S.A. 17:22-6.2a is invoked on behalf of an insured, it confers apparent agency only on a broker to whom "[a]ny insurer ... delivers in this State ... a contract of insurance ... pursuant to the application or request of such broker...." In the present case, no "contract of insurance" was, or could be, delivered prior to the fire loss because National transmitted the property owners' check and application by regular mail and, according to the Association's plan of operation "if applicant utilizes regular mail service, not Certified Mail, the coverages requested by such application(s) shall be bound at 12:01 a.m., standard time, on the date application is received in the Association office...." That date was Monday, August 29, 1989, the day after the fire.
National argues that N.J.S.A. 17:37A-8(b)(3) supports its contention that the provisions of the Association's plan of operation which establish when coverage becomes effective should be interpreted as inapplicable to renewal policies. For that proposition, National relies on the following sentence from that statutory section:
Any policy issued pursuant to the provisions of this section shall be renewed annually, upon application therefor, so long as the information contained in the original application remains valid.
We do not agree that this language supports National's contention. This sentence establishes the conditions for coverage. It does not determine when coverage commences.
*145 The plan provisions for determining the effective date of coverage clearly imply that they are intended to apply to applications for renewals as well as to applications for initial coverage. The plan states:
All policies expire at 12:01 a.m. on the Expiration Date shown on the Declarations. Insurance coverage will cease at that time and will not automatically be renewed or continued. An "Application for Continuation of Insurance ..." form ... signed by the insured, must be submitted for continuation of expiring insurance. To assist in the processing of such requests submit applications in quadruplicate to Association at least 45 days prior to expiration.
The same rules for determining the effective date of insurance coverage are applicable to applications both for initial policies and for renewals because the Association has chosen to deal with both types in the same way. In both instances, binders may be issued before eligibility for insurance is verified; if the Association subsequently determines that the risk does not meet its underwriting standards, the insurance will be rescinded.
According to the Association's plan of operation, if National had mailed the application and premium check to the Association by certified mail on the same date that it actually mailed them by regular mail, the property owners would have been insured prior to their fire loss. Summarized in tabular form, the relevant provisions of the plan are as follows:
Mode of Transmission Effective Date of Coverage
U.S. Postal Service Certified 12:01 a.m., standard time, on
Mail, affixing a postage the next day following the
stamp to the transmittal envelope cancellation date shown on
(not meter postage) the transmittal envelope
Regular mail service, not 12:01 a.m., standard time, on
Certified Mail the date application is received
in the Association office
Hand delivery to the Association 12:01 a.m., standard time, on
office the day after the application
is received in the Association
office
*146 National contends that making the effective date of coverage depend on whether the application and premium check were sent certified or regular mail is arbitrary and unreasonable.[1]
We disagree. Dating the inception of coverage of insurance from 12:01 a.m. of the day following mailing when the application is transmitted by certified mail and from 12:01 a.m. of the day of actual receipt when it is transmitted by regular mail is not arbitrary or unreasonable. The obvious purpose of the distinction is to guard against the fraudulent submission of a back-dated application after a casualty loss has already been sustained. Certified mail enables the sender to obtain proof of the date of mailing. Ordinary mail does not. To avoid fraud, it is reasonable to provide that insurance coverage shall commence at 12:01 a.m. on the day following mailing only when proof of the date of mailing is available, and that otherwise coverage shall commence on the date following actual receipt.
By its plan of operation, the Association has undertaken to insure any risk submitted to it as eligible, even before the application for insurance has been reviewed. The Association is satisfied to protect itself against the possibility that the risk submitted will fail to meet its underwriting standards by reserving the right to rescind. But the plan of operation also *147 makes clear that the Association is unwilling to assume the risk that an application has been submitted only after a loss has been suffered, or that the evidence of the date of application will be too ambiguous to enable the Association to readily determine whether a property owner decided to buy insurance only after a loss. That policy decision is for the Association to make, and National has not demonstrated that the choice is unreasonable. Cf. Barone v. Dep't. of Human Serv. Div. of Med. Asst., 210 N.J. Super. 276, 285-86, 509 A.2d 786 (1986), aff'd, 107 N.J. 355, 526 A.2d 1055 (1987).
We therefore sustain the validity of the Association's rule that coverage will be bound before receipt of the requisite premium and application only when they are mailed by certified mail with documentary evidence supplied by the post office showing the date of mailing. In our view, that is a reasonable and valid rule of general application, and it governs the present case even though, in this instance, there is no claim of fraud. Our ruling is consistent with Millner v. N.J. Ins. Underwriting Association, 193 N.J. Super. 653, 475 A.2d 653 (App.Div. 1984), and we therefore have no reason to question the holding in that case.
We also reject National's argument that summary judgment was premature because discovery had not yet been completed. The material facts are not in genuine dispute. National speculates that further discovery may disclose that the property owners' application reached the Association's offices before the fire occurred early Sunday, August 28, 1988. However, in its brief and answers to interrogatories National has repeatedly conceded that the Association received the application on Monday, August 29. The concession was clearly not improvident because a letter mailed in Cape May near the close of business on Friday, August 26 would not have been delivered to the Association's office in Newark before Monday morning, August 29.
The judgment appealed from is affirmed.
*148 DREIER, J.A.D. (dissenting).
I take issue on three narrow grounds with the result reached by my colleagues. While I realize that the problem was accentuated by the insured's eleventh-hour payment and the agent's failure to use certified mail, I fail to see what purpose is served by visiting the loss upon the agent rather than upon the insurer.
There is no question in this case that the insured made payment to the agent prior to the expiration of the policy; that the agent forwarded the payment to the insurer prior to the expiration of the policy; and that the loss occurred on the first day of what was clearly intended to be a renewal term for which the insured had paid the insurer.
According to the majority's analysis, had the payment been mailed a week in advance during the Christmas season and the letter had been delivered a day after the fire, or if the payment were mailed a month in advance and the post office lost the letter, there similarly would be no coverage. It is true that the agent could have avoided the problem by using certified mail, but I question whether this error should impose the cost of the fire loss upon the agent, where all parties acknowledge that the payment actually had been mailed prior to the expiration of the policy and therefore prior to the fire. The majority agrees that the purpose of the Commissioner's "plan of operation" was to shield the Association from fraudulent claims, either on the part of an insured or an agent. That purpose is not furthered by the decision in this case, where such fraud is neither asserted nor in any way implicated by the facts.
In Millner v. New Jersey Ins. Underwriting Ass'n, 193 N.J. Super. 653, 475 A.2d 653 (App.Div. 1984), we mistakenly stated that before a renewal policy could issue "approval by the Association was required." Id. at 657, 475 A.2d 653. This approval is in fact automatic, unless it is shown that the information contained in the original application is no longer valid. To my mind, plaintiff was entitled to renewal. The *149 imposition of the certified mail requirement upon the agent where the time of mailing is not disputed is an invalid limitation upon this right of renewal. Certified mail is nothing more than conclusive proof that the mailing was accomplished at a particular time. The Association's acceptance of the representations (perhaps based upon a postmark or the fact of receipt early Monday morning) should be received as similar proof of such timely mailing. See Evid.R. 3.
The second basis for imposing liability is the fact that the agent, having paid plaintiff's claim, has the right to be subrogated to the rights of the insured. While such a subrogation right might be lost if the agent was guilty of some wrongdoing, I doubt if a court would hold that the failure to use certified mail rose to such cause for disqualification. The agent's failure to use certified mail in no way contributed to the Association's loss (if there is to be such a loss). As the failure produced no damages to the Association, it could not be grounds for a negligence claim by the Association. The agent should therefore be entitled to stand in the shoes of this insured, who had paid the premium within time to effect renewal coverage, and who had no notice of any "plan of operation" of the Commissioner.
Third, I have misgivings concerning the enforceability of the "plan of operation" adopted by the Association and the Commissioner pursuant to N.J.S.A. 17:37A-7. This plan, which provides uniform standards for the Association's dealing with insurance agents and brokers, is in effect an administrative regulation, since it was required to be "approved or promulgated by the Commissioner pursuant to the provision of [N.J.S.A. 17-37A-1 et seq.]." N.J.S.A. 17:37A-2(d).
The plan apparently was put into effect by the Association after such approval by the Commissioner, but without the notice and opportunity for comment required by the Administrative Procedure Act, N.J.S.A. 52:14B-4. The Act, with certain listed exceptions not here pertinent, defines an "administrative *150 rule" or "rule" as an "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2(e). Although this issue was left open in New Jersey Ins. Underwriting Ass'n v. Clifford, 112 N.J. Super. 195, 204-206, 270 A.2d 723 (App.Div. 1970), we should face it here. As stated by the Supreme Court in Metromedia, Inc. v. Director Div. of Taxation, 97 N.J. 313, 478 A.2d 742 (1984):
It has been consistently recognized that the widespread, continuing, and prospective effect of an agency pronouncement is the hallmark of an "administrative rule...."
An agency determination that is intended to be applied as a general standard and with widespread coverage and continuing effect can also be considered as an administrative rule if it is not otherwise expressly authorized by or obviously inferable from the specific language of the enabling statute.
Id. at 329, 478 A.2d 742. The Court in Metromedia, Inc. established a multi-factor test when the relevant features of administrative rules are present. Id. at 331-332, 478 A.2d 742. These tests are to be applied in determining whether a particular action of an agency is rule-making or adjudicative.
In this case, there is no claim that the promulgation of the "plan of operation" was in any manner adjudicative. The plan of operation to be submitted for the Commissioner's "review and approval" was required to contain "time limits and procedures for processing application." N.J.S.A. 17:37A-7a. But nowhere were the details determined by the statute. Since the mailing rules of the plan fit within the definition of rule-making, the Administrative Procedure Act procedures were not followed, and the provisions of the plan here under scrutiny are not contained in the statute, I would find this aspect of the "plan of operation" to be unenforceable.
Were this a case where the agent had been guilty of pocketing the premium or even withholding it for a substantial period to the detriment of the Association and the insured, I would have no hesitancy to join my colleagues in denying recovery. Here, however, the agent received the premium and immediately *151 forwarded it to the insurer. It seems eminently fairer for the insurer, which was paid for this coverage, to bear the loss, rather than the agent or its carrier. In effect, the Association has received what I perceive is an unwarranted windfall.
I respectfully dissent.
NOTES
[1] Our dissenting colleague would hold that this aspect of the Association's plan of operation is a rule promulgated by an administrative agency and is therefore unenforceable because it was not promulgated in accordance with the requirements of the administrative procedure act. See N.J.S.A. 52:14B-4. We disagree. The dissent notes that the plan of operation was apparently adopted by the Association with the approval of the Commissioner of Insurance. The Association is not a state agency within the meaning of N.J.S.A. 52:14B-2. The procedure which it utilized for the adoption of its plan of operation does not have to conform with N.J.S.A. 52:14B-2.
Furthermore, this argument advanced by the dissent was not raised by either of the parties. It was not argued or briefed. The Attorney General was not notified that the "validity of a rule [or] regulation... of this State is questioned in any action in which the State or an agency or officer thereof is not a party...." R. 4:28-4a. Cf. R. 2:5-1(h). Under these circumstances, we should not even consider the possible invalidity of the Association's plan of operation on the ground suggested by the dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1073037/ | IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 25, 2000 On-Briefs
MAELENE FOWLER, ET UX. v. JERRY WILBANKS
A Direct Appeal from the Chancery Court for McNairy County
No. 7269 The Honorable Dewey C. Whitenton, Chancellor
No. W2000-00452-COA-R3-CV - Filed December 28, 2000
Plaintiffs sued to enjoin Defendant from denying their right to use a private dirt and gravel road on
Defendant’s property in order to access their property. The trial court held that Plaintiffs established
an easement by implication and/or prescription in the private road, and enjoined Defendant from
preventing Plaintiffs’ future access to the road. Defendant appeals.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed and
Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.
Ken Seaton, Selmer, For Appellant, Jerry Wilbanks
Terry Abernathy, Selmer, For Appellees, Maelene Fowler and W. F. Fowler
OPINION
Plaintiffs, Maelene Fowler and husband, W. F. Fowler, sued Defendant, Jerry Wilbanks, to
enjoin Defendant’s interference with their use of a private gravel and dirt road along the eastern
boundary line of defendant’s property.
Plaintiffs claim a right to use this road by way of an implied or prescriptive easement.
Plaintiffs own a 2.687 acre parcel of land located in McNairy County, Tennessee. The land
Plaintiffs’ purchased in 1996 is undeveloped, and the record indicates the Plaintiffs have harvested
a soybean crop on their property at least once since they acquired the land. In 1996, Defendant
purchased a 125' by 125' parcel which adjoins Plaintiffs’ land to the north. Both parcels were once
part of a larger piece of property owned by Grady Ingle, Plaintiff Maelene Fowler’s father.
The gravel and dirt road at issue in this case (the “drive”) runs north-south from Allen
McCoy Road, past several lots, and ending at the Plaintiffs’ property.1 Testimony at trial indicated
that the drive has been in existence for at least thirty-five (35) years, and is at a slightly higher
elevation than Defendant’s property, with a ditch on the east side to carry water off the roadway.
The parties dispute the use of that portion of the drive which is located on Defendant’s property, and
runs along his east boundary, between Defendant’s lot and a lot his wife owns. There was no
evidence presented at trial that, prior to this lawsuit, there was ever any dispute over the use of the
drive.
On June 30, 1998, the chancellor granted a temporary injunction limiting Plaintiffs’ use of
the drive to passenger vehicles and farm implements and specifically prohibiting the use of heavy
equipment. On October 18, 1999, following a bench trial, the chancellor entered a permanent
injunction in favor of Plaintiffs, specifically finding that Plaintiffs have a right to the use of the drive
as an implied or prescriptive easement. Defendant has appealed and presents one issue on appeal:
whether the trial court erred in finding that Plaintiffs are entitled to an easement on the disputed drive
located on Defendant’s property by implication and/or prescription.
Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d). Although the evidence to establish a prescriptive easement is somewhat sketchy, we agree
with the chancellor that Plaintiffs have established an implied easement over the road in question.
An easement is “a right an owner has to some lawful use of the real property of another.”
Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). Various forms of easements exist
under Tennessee law, including: express easements; easements by reservation; implied easements;
prescriptive easements; and easements by estoppel. See id. Tennessee courts recognize two general
categories of easements: easements in gross and easements appurtenant. See id. In Pevear, this
Court explained the difference between these two forms of easements:
In an easement appurtenant, there are 2 tracts of land, the dominant
tenement, and the servient tenement. The dominant tenement benefits
in some way from the use of the servient tenement. Easements in
gross are simply a personal interest or right to use the land of another
which does not benefit another property, or dominant estate, thus
easements in gross usually involve only one parcel. An easement
appurtenant to land is favored over an easement in gross in
Tennessee. Goetz v. Knoxville Power & Light Co., 154 Tenn. 545,
290 S.W. 409 (1926).
1
There is no indication in the record that any of the other property owners along the drive object to Plaintiffs’
use of the drive.
-2-
Id. at 116.
In a recent opinion, we addressed the issue of implied easements:
An implied easement appurtenant should only arise where it is of
such necessity that we may presume it was within the contemplation
of the parties to a conveyance. See La Rue, 166 S.W.2d at 1049.
The party asserting an implied easement has the burden of
showing “the existence of all facts necessary to create by implication
an easement appurtenant to his estate.” Line v. Miller, 309 S.W.2d
376, 377 (Tenn. Ct. App. 1957).
The Pointe, LLC v. Lake Management Assoc., Inc., No. W2000-00211, slip op. at 7-8 (Tenn. Ct.
App. November 6, 2000). The party asserting the existence of an easement by implication must
prove three elements:
“. . . (1) A separation of the title; (2) Necessity that, before the
separation takes place, the use which gives rise to the easement shall
have been so long continued and obvious or manifest as to show that
it was meant to be permanent; and (3) Necessity that the easement be
essential to the beneficial enjoyment of the land granted or
retained....”
Johnson v. Headrick, 237 S.W.2d 567, 570 (Tenn. Ct. App. 1948) (quoting 17 Am. Jur. Easements,
pp. 945, 946). Courts in Tennessee have interpreted the term “necessity” as meaning “reasonably
necessary” for the enjoyment of the dominant tenement. See, e.g., Line v. Miller, 309 S.W.2d 376,
377 (Tenn. Ct. App. 1957); Johnson v. Headrick, 237 S.W.2d at 570.
In this case, the record indicates that Grady Ingle, Plaintiff Maelene Fowler’s father, owned
the entire tract of land at one time. Ms. Fowler testified that the disputed road has been in existence
for 35 years, and that she knew of no other access to her parcel but by way of the drive. Defendant
testified that the road was plainly visible when he purchased his property, and he conceded that the
road has been in existence a long time. Finally, the trial court, in its opinion, noted that the
Plaintiffs’ parcel is “land-locked”, rendering use of the road “reasonably necessary” to the enjoyment
of Plaintiffs’ land.
Defendant suggests that Plaintiffs could bypass the disputed road and access their property
by way of a narrow strip of land that Plaintiffs own behind Defendant’s home. We note that the
record includes testimony that the Defendant in this case is the owner of an out-building which is
located, at least in part, on this strip of Plaintiffs’ land. Even if Defendant were to remove any
buildings which obstruct this strip of Plaintiffs’ property, Plaintiffs would still be required to cross
-3-
property which does not belong to them in order to access the nearest public road. Additionally, as
the trial court noted in its opinion, “it would be expensive to construct and improve a road to the
quality of the one which has been used for more than twenty years.” The evidence does not
preponderate against the chancellor’s finding that the proof established the three elements of implied
easement.
Accordingly, the final decree of the trial court is affirmed. This case is remanded to the trial
court for any further proceedings as are necessary. Costs of this appeal are assessed to the
Defendant/Appellant, Jerry Wilbanks, and his surety.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
-4- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261843/ | 132 Cal.Rptr.2d 883 (2003)
107 Cal.App.4th 1429
Aaron WIENER et al., Plaintiffs and Appellants,
v.
SOUTHCOAST CHILDCARE CENTERS, INC. et al, Defendants and Respondents.
No. G028814.
Court of Appeal, Fourth District, Division Three.
April 22, 2003.
Review Granted July 30, 2003.
*884 Law Offices of Ginsburg & Hlywa and Evan L. Ginsburg, Fullerton, for Plaintiffs and Appellants Aaron Wiener and Pamela Wiener.
Law Offices of Federico Castelan Sayre and Daniel H. Cargnelutti, Santa Ana, for Plaintiffs and Appellants Eric Soto and Cindy Soto.
McKay, Byrne & Graham, John P. McKay, Michael A. Byrne, Los Angeles, and David R. Denton, for Defendant and Respondent First Baptist Church of Costa Mesa.
Jeffery & Grosfeld and Mona J. Jeffery for Defendant and Respondent Southcoast Childcare Centers, Inc.
OPINION
BEDSWORTH, J.
This lawsuit is rooted in tragedy. Steven Abrams drove his car through a four-foot high chain link fence and onto the playground of the Southcoast Early Childhood Learning Center (Southcoast), with the intent of killing children playing there. *885 He succeeded in killing two, Brandon Wiener and Sierra Soto. Plaintiffs Aaron and Pamela Wiener, the parents of Brandon, and Eric and Cindy Soto, the parents of Sierra, sued defendants Southcoast and the owner of the property, First Baptist Church of Costa Mesa (the Church), alleging negligence and premises liability.[1] The trial court granted summary judgment in favor of defendants, concluding that without notice of prior similar crimes in the area, defendants could not have foreseen Abrams' criminal act and thus had no duty to protect against it.
We reverse the judgment. For purposes of evaluating whether a duty is owed, the issue of "foreseeability" refers to whether the defendants' alleged negligent conduct created a foreseeable risk of a particular kind of harm, not whether the specific conduct of a particular third party wrongdoer could be anticipated. In this case, the defendants' alleged negligence was their failure either to erect a sufficiently sturdy barrier between the playground and the immediately adjacent busy street, or to move the children to a more protected area, thus guarding against the danger of their being hit by errant automobile traffic. That is the very harm which came to pass. We conclude plaintiffs offered sufficient evidence of the foreseeability of that harm to preclude summary judgment in favor of defendants in this case.
* * *
Plaintiffs' complaint alleged that Southcoast was situated on a busy street corner on Santa Ana Avenue in Costa Mesa, and that the playground was located immediately adjacent to that street. The playground was enclosed by only a four-foot high chain link fence, which was assertedly inadequate to protect the children from errant automobile traffic coming off of the street. Plaintiffs alleged that defendants were aware the fence was inadequate, and that Sheryl Hawkinson, the owner of Southcoast, had previously requested the Church provide funds to erect a more sturdy barrier. When the Church refused, Hawkinson did nothing further to remedy the problem. Plaintiffs alleged that had a more sturdy barrier been erected, or had the children been restricted to playing in a more secure location, such measures would have prevented Abrams from driving his car into the children and killing them.
Defendants each moved for summary judgment, contending that because Abrams' act of driving his car onto the playground was an intentional criminal act, it was unforeseeable and defendants had no duty to protect against it. They also asserted, in the alternative, that their alleged negligence was not the proximate cause of the children's deaths.
The key facts offered in support of defendants' motions were that prior to the date of Abrams' attack, neither the Church nor Southcoast were aware of any "criminal" acts or incidents occurring on or around the daycare property, and they had no notice of "any prior similar acts." But defendants did not assert they lacked notice of the possibility the playground might be generally vulnerable to the hazards of adjacent traffic.
Defendants' motions relied primarily on Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.). In Ann M., the plaintiff was raped at her workplace, which was located in a shopping center owned by defendants. She alleged that defendants had a duty to protect her from that crime by hiring security guards to patrol the premises. The Supreme Court concluded *886 no such duty existed. It explained that "the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed [citation]" and that "`"in cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where ... the harm can be prevented by simple means, a lesser degree of foreseeability may be required." [Citation.]' [Citation.] Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of foreseeability of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures. [Citation.]" (Id. at pp. 678-679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
The Supreme Court noted that the obligation to hire security guards will rarely, if ever, be found to be only a "minimal burden," and that consequently "a high degree of foreseeability is required in order to find that the scope of a landlord's duty of care includes the hiring of security guards." (Ann M., supra, 6 Cal.4th 666, 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.) The court ruled that "the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises." (Ibid.) Because there was no evidence of prior rapes or other violent assaults on the premises, the court concluded that the defendant landowner's duty of care did not extend to the heavy burden of providing security guards.
In opposition to the motions for summary judgment in this case, plaintiffs contended defendants were aware that the playground was generally vulnerable to errant traffic. Plaintiffs relied upon Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947, for the proposition it is generally foreseeable that errant motorists may inadvertently drive their vehicles off of roads and into adjacent areas. Additionally, plaintiffs offered evidence that in 1996, "a driverless mail truck traveling about 5 miles per hour jumped the curb in front of the defendant Early Childhood Learning Center, went through the fence surrounding the playground and stopped at the same tree where Abrams' car was stopped." That mail truck "knocked down the chain link fence, bending three of the poles to which the fence had been attached." After the truck was removed, the center's owner hurried to restore the fence, "before the parents came by because they would yank their kids out of school if they saw the fence down." Plaintiffs also offered evidence that other cars have veered into the curb in front of the Southcoast playground.[2]
Plaintiffs also relied upon Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal. App.4th 1294, 75 Cal.Rptr.2d 838 (Robison ), for the proposition that the issue of foreseeability, for purposes of evaluating the existence of a duty, does not refer to the foreseeability of specific third party conduct, but instead to the foreseeability that defendant's own conduct has rendered plaintiff vulnerable to a particular kind of harm.
The trial court agreed with defendants, and granted summary judgment. It concluded that "Ann M. ... is controlling in *887 this case." The court explained that "Plaintiffs provided no evidence of prior similar incidents of violent crime as required by Ann M. ..." and concluded that "the acts of Steven Abrams were unforeseeable."
I
"Because plaintiff appeals from an order granting defendants summary judgment, we must independently examine the record to determine whether triable issues of material fact exist." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In order to prevail on a motion for summary judgment, a defendant has the initial burden of "showing that a cause of action has no merit ... or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (o)(2).) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 252 Cal.Rptr. 122, 762 P.2d 46), liberally construing [plaintiff's] evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiffs favor. (Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1517, 86 Cal. Rptr.2d 1; Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 179, 67 Cal.Rptr.2d 903.)" (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 768-769, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)
Moreover, in this case, the summary judgment was granted on the basis that defendants owed no duty to plaintiffs' children to protect against Abrams' intentional act. As explained in Ann M., supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207, such a determination must be reviewed de novo: "The existence of a duty is a question of law for the court. [Citations.] Accordingly, [an appellate court will] determine de novo the existence and scope of the duty...." Ann M. clarified that even the issue of "[f]oreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court. [Citations.]" (Id, at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
We conclude defendants failed to establish they owed no duty to plaintiffs in the circumstances of this case. The primary flaw in defendants' argument is their characterization of the "duty" at issue. Defendants contend, as they did before the trial court, that the relevant duty was a duty to protect plaintiffs' children from a particular criminal act, i.e., Abrams' specific act of intentional killing. Relying upon Ann M., defendants argue that because that criminal act was entirely unforeseeable, they had no duty to take precautions against it.
However, by focusing on Ann M.'s references to "crime," and emphasizing that Abrams' conduct was intentional, and thus criminal, defendants failed to appreciate the distinctions between this case and Ann M. In fact, as plaintiffs attempted to point out, the issue of "foreseeability" does not depend upon the foreseeability of a particular third party's act, but instead focuses on whether the allegedly negligent conduct at issue created a foreseeable risk of a particular kind of harm,
As explained by the Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, "the major [factors in determining the existence of a duty] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, *888 the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]" (Italics added.)
The Supreme Court later clarified that "[t]he foreseeability of a particular kind of harm plays a very significant role in [the duty] calculus (see Dillon v. Legg [1968] 68 Cal.2d [at p.] 739, 69 Cal.Rptr. 72, 441 P.2d 912), but a court's taskin determining `duty'is not to decide whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624, italics added.)
In this case, the "kind of harm" which plaintiffs' children experienced was not "crime," but rather being struck by an automobile driven onto the playground. The nature of that "harm" is not dependent upon the state of mind of the driver inflicting it. In our view, defendants' alleged negligent conductfailing to erect a sufficient barrier between the playground and the adjacent street, or moving the children to a more protected areais "sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed...." (Ballard v. Uribe, supra 41 Cal.3d 564, 572-573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)[3]
We agree with plaintiffs that Robison v. Six Flags Theme Parks Inc., supra, 64 Cal.App.4th 1294, 75 Cal.Rptr.2d 838, is analogous. In that case, picnickers were injured by an out-of-control car while eating in a designated picnic area located within a parking lot at Magic Mountain. Magic Mountain argued that it had no duty to protect against the harm because the specific circumstances of the accident were so bizarre: "Magic Mountain contends that it was not foreseeable that a developmentally disabled `slow learner' who had never driven and did not know how to drive would attempt to operate a car with a dysfunctional starter motor as it was being push-started, would succeed in starting the engine, but would then panic and fail to control the car or to turn left, and would instead drive directly into the picnic table." (Id. at p. 1298, 75 Cal. Rptr.2d 838.)
The court, however, flatly rejected that contention: "Magic Mountain may have a *889 point that this precise set of facts cannot be considered reasonably foreseeable, but this precise set of facts is not material to the duty analysis. The specific factors which resulted in an out-of-control car whether due to the incompetence, unconsciousness, distraction, inebriation, paralysis or mistake of the driver; to mechanical malfunction; to a car `running away' without a driver; or to some other causeare not the material inquiry. This point was explained in Bigbee v. Pacific Tel. & Tel. Co. [, supra,] 34 Cal.3d [at pp.] 57-58, 192 Cal.Rptr. 857, 665 P.2d 947. In Bigbee, plaintiff was injured when an out-of-control car struck a telephone booth placed near a driveway in a parking lot adjacent to a major thoroughfare. In evaluating the role of foreseeability in determining duty, the Supreme Court stated that `it is settled that what is required to be foreseeable is the general character of the event or harme.g., being struck by a car while standing in a phone boothnot its precise nature or manner of occurrence. (Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 600, 110 P.2d 1044; Gibson v. Garcia (1950) 96 Cal.App.2d 681, 684, 216 P.2d 119....)' Bigbee hence concluded that the phone company had a duty to place its phone booths in safe locations or otherwise to protect them, and was liable notwithstanding that the booth had been hit by a drunk driver. [¶] A similar point was made in Bryant v. Glastetter (1995) 32 Cal. App.4th 770, 780, 38 Cal.Rptr.2d 291, where the court stated: `"[A] court's taskin determining `duty'is not to decide whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party."' Hence the proper focus of the relevant foreseeability inquiry in the instant case is simply whether it was reasonably foreseeable, in view of the configuration and use of the parking lot and picnic area, that a car might fail to turn left at the word `stop' painted on the pavement, and that picnickers might be injured as a consequence of Magic Mountain's failure to provide an appropriate separation between the parking lot and the picnic area. Even though the precise scenario of a `slow learner' nondriver involved in an effort to push-start a car, etc., may not have been foreseeable, this latter type of unforeseeability does not exonerate Magic Mountain from the consequences of placing an unprotected picnic table directly in the line of traffic." (Robison v. Six Flags Theme Parks Inc., supra, 64 Cal.App.4th at pp. 1298-1299, 75 Cal.Rptr.2d 838, italics omitted.)
In this case, as in Robison, the fact that the intentional nature of Abrams' conduct may not have been foreseeable does not automatically exonerate these defendants from the consequences of placing small children in a virtually unprotected play area adjacent to a busy street. Abrams' murderous intent may not have been foreseeable, but a jury might decide that a car careening onto the street-side playground was foreseeable. Certainly, if defendants had actually allowed the children to play in the busy street, no one would be arguing that such negligence should be excused by the state of mind of a driver who hit them.
Of course, in Ann M., the court had no occasion to consider the situation presented both here and in the Robison case, i.e., where the harm in question (being hit by a car) may have been foreseeable, but not the actual circumstances in which that harm occurred. In Ann M., the harm inflicted, a rape, was by its nature a crime. There are no negligent rapes. Thus, the court properly focused on the foreseeability *890 of crime in determining whether the landowner had a duty of care to provide security guards, a specific crime prevention measure.
In this case, by contrast, the harm inflicted was not inherently criminal. Thus, there was simply no basis to conclude that defendants' prior knowledge of general criminal activity in or around Southcoast's playground (which was the key fact supporting the motions for summary judgment) was in any way related to their ability to foresee that children on the playground might be vulnerable to being hit by a car.
If we were to analogize this case to another situation implicating a landowner's duty to protect against the harm caused by third party "crime," a more apt comparison would be the crime of arson. If a business owner failed to take reasonable steps to maintain fire safety on his premises, such as by failing to maintain clear exit paths, and the premises were later burned causing injury to patrons trapped inside, would the owner's liability for his own negligence be dependent upon whether the fire was the product of accident or arson? We think not. If the cause of the fire were arson, would the issue of forseeability be determined by whether the business was located in a "nice" neighborhood (i.e., no prior crimes) or in a poor one? No. Would it matter if an armed robbery had taken place just down the street six weeks before? Again, no. What would matter would be that fire was foreseeable and the owner had failed to take steps to prepare for that exigency.
And that brings us to the other way in which defendants have misconstrued Ann M. Contrary to defendants' apparent belief, Ann M. does not stand for the general proposition that a landowner never has a duty to provide protection against a third party's intentional misconduct in the absence of prior similar incidents. Instead, the issue in Ann M. was quite specific whether a landowner had the duty to provide security guards as a means of protecting against the hazard of rape. In analyzing that issue, the court emphasized that the scope of the landlord's duty to provide safe premises is dependent largely on balancing the degree of foreseeability of a particular harm against the burden imposed upon the landlord to preventing that harm. Because the burden of providing security guards was quite significant, the court concluded that a high degree of foreseeabilty, including the landowner's knowledge of prior incidents of similar violent assault, was required before such a duty would be imposed.
In this case, however, plaintiffs were not suggesting that defendants breached any duty to provide security guards (or other crime prevention measure) for the playground. Thus, the specific conclusion of Ann M., concerning the duty to provide security guards, is only tangentially precedential here. Instead, plaintiffs' allegation was that defendants should have either installed a more protective barrier between the playground and the street, or restricted the children to playing in some other area.[4] But because defendants offered no evidence in connection with their summary judgment motions addressing the burdensomeness of those protective measures, neither the trial court nor this court is in a position to apply Ann M.'s balancing test. The summary judgment, based upon the conclusion defendants owed no duty to protect plaintiffs *891 children against the danger of being hit by Abrams' car, must be reversed, and the case returned to the trial court so the foreseeability of the danger involved here can be balanced against the burden of erecting a sturdier fence or moving the children.
In reaching this conclusion, however, it should be clear we are by no means suggesting that every owner of commercial property adjacent to automobile traffic would have a duty to barricade the perimeter or otherwise engage in extraordinary measures to prevent automobiles from traveling onto the property and harming patrons, clients or customers of the establishment. To the contrary, in Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal. App.4th 990, 34 Cal.Rptr.2d 171, this court held that the owner of a convenience store owed no duty, as a matter of law, to erect posts between the parking lot and the sidewalk in front of the store to protect a patron standing on the sidewalk from the danger that a car in the parking lot might jump the curb and run into him. However, the holding in Jefferson depended heavily on two undisputed facts not present here. First, in Jefferson there were "no previous incidents of vehicles striking pedestrians at the market" (Id. at p. 992, 34 Cal.Rptr.2d 171) and thus the accident was not "reasonably foreseeable" (Id. at p. 997, 34 Cal.Rptr.2d 171); and second, there was nothing in the operation of Qwik Korner's business which required a patron to stand in front of the store where he might be vulnerable to a car jumping the curb from the parking lot. In this case, by contrast, there was evidence that cars had veered off the road adjacent to the preschool in the past, and at least one incident in which a vehicle had actually breached the school's chain link fence and traveled across the playground. Moreover, by situating its playground right next to the busy street, the school did require the children to remain in the particularly vulnerable location for substantial periods of time. For these reasons, Jefferson is distinguishable.
II
Defendants also assert that summary judgment was proper because their alleged negligence was not, as a matter of law, the proximate cause of the children's deaths. Defendants cite no particular facts in support of this argument, but simply rely upon Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 238 Cal.Rptr. 436. Lopez, however, is inapposite. In Lopez, a murderer entered a McDonald's restaurant with several semi-automatic weapons and began indiscriminately shooting people for no apparent reason. As the court explained, "[h]e made no effort to rob the restaurant, made no demands for money, and made no effort to take hostages." (Id, at pp. 516-517, 238 Cal.Rptr. 436.) The perpetrator killed 21 people and wounded 11 others. After initially concluding defendant owed no duty to protect against such an unforeseeable shooting rampage, the court went on to analyze whether the provision of reasonable security measures, including security cameras, alarms and an unarmed security guard, would have even made a difference. It concluded they would not have: "Any reasonable protective measure such as security cameras, alarms and unarmed security guards, might have deterred ordinary criminal conduct because of the potential of identification and capture, but could not reasonably be expected to deter or hinder a maniacal, suicidal assailant unconcerned with his own safety, bent on committing mass murder." (Id. at p. 517, 238 Cal. Rptr. 436.)
This case is different. The proposed protective measures to be taken here were *892 the erection of a barrier sufficient to protect the playground (and the children on it) from errant traffic from the adjacent street, or the restriction of the children to a more secure area. Defendants have offered no evidence that such a barrier (or such restriction) would not have been equally effective against intentional traffic and negligent traffic. Thus, defendants have failed to demonstrate that the proposed safety measures would not have been effective in protecting the children from Abrams' homicidal act.
Of course, defendants might argue that Abrams, if thwarted in one method of killing, would simply have chosen another. But that is merely speculation, and nothing like an undisputed fact at this point. It is possible that Abrams chose to use his car as an instrument of killing precisely because he was incapable of doing so with a gun, a knife or his hands. In fact, Abrams denied even owning a gun. That, and his lengthy, ineffectual contemplation of murdering innocents, suggests he was reluctant to attempt a less cumbersome crime, and committed this one only when his earlier road-rage combined with the reminder that there were unprotected innocents available, caused him to retrace his path and go back after them.[5] Further, in the absence of proof that Abrams specifically intended to kill plaintiffs' children, Brandon and Sierra, it seems highly unlikely that if relegated to a different method or occasion for his attack, Abrams would again have succeeded in killing these particular children. Thus, defendants have utterly failed to establish that even if they had taken the protective measures suggested by plaintiffs, Abrams would have still succeeded in killing either Brandon or Sierra.[6] This certainly looks like a triable issue.
III
Finally, defendants also argue that Abrams' intentional criminal act was a superceding cause of the children's deaths in this case, and thus broke the chain of causation between defendants' alleged negligence and the deaths of Brandon and Sierra. This is simply a different way of packaging defendants'"lack of duty" argument. Whereas duty is a question of law *893 for the court, the issue of whether the independent act of a third party is a superceding cause is an issue of fact for the jury. (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 19, 56 Cal.Rptr.2d 455.)
As explained in Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1305, fn. 3, 100 Cal.Rptr.2d 437, "California courts have rejected the blanket rule that an intervening criminal or tortious act is by its very nature a superseding cause (see, e.g., Bigbee v. Pacific Tel. & Tel. Co. [, supra,] 34 Cal.3d [at p.] 58, 192 Cal.Rptr. 857, 665 P.2d 947; Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1236, 32 Cal.Rptr.2d 136), instead adopting the view that'"[i]f the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes [the] actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby."' (Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269, citing Rest. Torts, § 449.)" Moreover, as noted by the Supreme Court in Ann M., supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207, "[unfortunately, random, violent crime is endemic in today's society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable."
In this case, the potential hazard which made defendants' failure to erect a more sturdy barrier (or move the children) arguably negligent was that a third party motorist might drive right through the chain link fence and onto the playground, harming the children. Consequently, we could not conclude, as a matter of law, that Abrams' act of doing so, even if done as a random, violent crime, broke the chain of causation between the alleged negligence and the resulting harm.
The judgment is reversed. Plaintiffs are to recover their costs on appeal.
I CONCUR: O'LEARY, J.
SILLS, P.J., Dissenting.
I respectfully dissent. This case arises out of a terrible tragedy, and the afflicted parents deserve our sympathy and condolences. But we should not compound this tragedy by unfairly making an innocent preschool, which had no warning of any prior similar acts, potentially liable for the murderous actions of a third person.
The majority opinion gives insufficient weight to the fact that the villain in this record, Steven Abrams, got the idea of driving his car into a nearby preschool to kill innocent children years prior to the event. As he told officers afterwards, he actually drove by the preschool once before he turned into it, he saw the children, and went by the preschool again with the idea "`to do itafter all the years of thinking about it.'"
Abrams' actions were nothing if not deliberate. As Abrams was driving by the preschool, he made, according to one of the parents who saw the event, "an abrupt right turn" and accelerated. His car, a large 1967 Cadillac Coupe de Ville, was then pointed directly at the playground as he accelerated over the curb, crossed the sidewalk, and knocked down the chain-link fence. At that point, in Abrams' own words, he was "aiming his car `for the children.'" A jury subsequently convicted Abrams of murder, and that conviction was just recently upheld on appeal.
My colleagues say that the preschool may be held responsible for Abrams' murderous acts because there are triable issues as to whether the chain-link fence was strong enough to have prevented Abrams' attack. I disagree. There were absolutely no prior similar acts, which *894 many cases have held in analogous situations to be a prerequisite for any duty to take precautions against the criminal acts of third parties. Nor was there causation. Abrams' intent, in accelerating after he knocked down the fence, showed that no barrier could have prevented this tragedy except a barrier impervious to a head-on crash from a large automobile accelerating into it.
I must disagree with my colleagues' analysis. Their decision simply cannot be reconciled with three Supreme Court cases and a slew of of Court of Appeal decisions dealing with the subjects of both premises liability and, in the unfortunately imprecise phrase used by the majority opinion, "errant traffic." The sole "errant traffic" decision on which my colleagues rely Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 75 Cal.Rptr.2d 838) is not only factually distinguishable from the situation before us, but itself distinguished criminal acts such as we have before us here from accidental acts, which were before the court there. (See id. at p. 1301, 75 Cal.Rptr.2d 838.)
That indeed is my main disagreement with the majority opinionits lumping criminal acts with accidental ones. My colleagues say that the issue in the case is the "kind of harm" involved, but that is far too broad. Rather, the core issue is the nature of the risk. Justice Cardozo once stated in Palsgraf, the "risk reasonably to be perceived defines the duty to be obeyed." (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 100.) Risk defines duty, not generic "kind of harm." [1] There is a difference in risk between a stray bullet from a firing range and a gunshot fired with intent to kill, between accidentally poking someone next to you with a pencil and stabbing him or her with it, between accidentally hitting a pedestrian because you lose control of a car and trying to use the car as a deadly weapon by mowing someone down. In each of these instances the "kind of harm" (from bullets, pencils, or cars) is the same, but the risks are hugely different. Thus, the nature of the risknot the generic "kind of harm"determines the type and scope of the precaution required of the landowner.
My colleagues fail to adequately explain why a deliberate criminal act made with the intention of mowing down innocent children should be treated the same as:
a developmentally disabled person who finds herself at the wheel of a car that has just been push-started and who doesn't know how to stop it (the facts in Robison); or
an intoxicated driver who loses control of a speeding car and veers off into an old-style telephone booth from which a pedestrian cannot escape in time (the facts in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947); or
a car parked in front of a fast-food restaurant service window which for some reason lurches forward over a bumper stop *895 (the facts in Barker v. Wah Low (1971) 19 Cal.App.3d 710, 97 Cal.Rptr. 85); or
a confused elderly driver trying to park head-in at a convenience store parking lot who accidentally hits the accelerator instead of the brake (the facts in Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 34 Cal.Rptr.2d 171, and in which there was no liability).
II
The majority opinion fails to note a number of important facts, and merely alludes to several others without telling the complete story. These facts are uncontradicted:
(1) Abrams had thought about driving into the children on the preschool playground for five years[2] prior to the crime.[3]
(2) Abrams had to make an abrupt right turn and go up over the curb, then accelerate into and over the chain-link fence. He did not lose control of the car.
(3) The playground was protected by a raised curb on the sidewalk which is at least a few inches high, the sidewalk itself, and a four-foot high chain-link fence.
(4) The full story of the so-called runaway mail truck incident, which demonstrates that the incident was a fluke comparable to a meteor strike. The full story goes like this, as described by a neighbor's deposition submitted in opposition to the summary judgment motion: The neighbor was out in front of his duplex across the street. The neighbor saw a mail truck pull up. The mail carrier reached out of his truck to open the adjacent mailbox. (That means that it was obviously one of those mail trucks with the steering wheel on the right hand side so that mail carriers don't have to get out of the driver's seat every time they make a stop.) As the mail carrier reached for the box, he slipped out of his truck, and "did a flip and landed between the mailbox and the truck." The neighbor surmised that when the mail carrier "went down, he pulled the steering wheel, and it justthe truck took off," and headed directly at the fence "across the street." It "bounced up over the curb and went through the fence and came to rest at the tree inside the yard." It was going "[m]aybe five miles an hour" when it went through the fence.
There were no injuries from the incident.
The mail truck incident could only have happened in the context that it dida right-hand side drive vehicle, a driver leaning out the window to deliver mail, and the engine set at an idle sufficiently high that the truck might coast across the street on its own and lumber head-on toward the chain-link fence.
(5) In all the other prior incidents, i.e., where a car might have been traveling parallel to the preschool on Santa Ana Avenue, rather than straight across it and the driver of a car might have accidentally lost control, the curb and sidewalk proved adequate. The same neighbor who saw *896 the mail truck incident, when asked if he was aware of any incidents (other than the mail truck) where a vehicle "encroached" onto the preschool playground, answered: "There's a lot of cars that hit the curb, went up on the curb, but not through the fence, no." (Emphasis added.)
As the majority points out (maj. opn. at p. 888), "there were exactly zero incidents in which the chain link fence stopped a car," but as the majority does not point out, the curb and sidewalk alone had been sufficient to stop any errant traffic. Only where the vehicle was pointed directly at the fenceand lacked a driver who might otherwise have applied the brakes as it bounced up over the curbdid the vehicle penetrate the yard.
III
The majority opinion puts deliberate criminal acts by third parties into the same category as risks of harm attributable to negligent acts by third parties. For example, early on it states: "For purposes of evaluating whether a duty is owed, the issue of `foreseeability' refers to whether the defendants' alleged negligent conduct created a foreseeable risk of a particular kind of harm, not whether the specific conduct of a particular third party wrongdoer could be anticipated." (Maj. op. at p. 885.) No authority is given for this proposition as worded,
The key words are, of course, "foreseeable risk of a particular kind of harm." (Emphasis added.) The words "kind of harm" fail to recognize differences in risk between accidents and criminal acts. The effect is to focus solely on the third party's instrumentality instead of the third party's intent. By doing so, the majority opinion transforms what was impossible to foresee (a criminal assault using a car as a deadly weapon) into something that sometimes is foreseeable (that a driver would lose control of a vehicle and veer off the road). As a result, the majority fails to note the significance of the absolute absence of any prior similar actsindeed, even any prior indicia of potential criminalityin this case.
Our Supreme Court's major recent pronouncements on the duty of landowners to protect against the criminal acts of third parties, Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 and Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 91 Cal.Rptr.2d 35, 989 P.2d 121, are irreconcilable with my colleagues' decision.[4] As a panel of the *897 Court of Appeal recently wrote in Hassoon v. Shamieh, supra, 89 Cal.App.4th 1191, 1196, 107 Cal.Rptr.2d 658: "As we read these controlling precedents [referring to Ann M. and Sharon P.], the requirement of `prior similar incidents' is more than a factual precondition to premises liability; it is the objective event that separates the duty of care imposed by the law on ordinary property owners from the higher duty imposed on that smaller class of owners whose prior experience with physical violence on their premises makes it reasonable for the law to impose upon them a duty to take reasonable security measures, a breach of which resulting in injury is answerable in damages." (Original emphasis; see also Lopez v. Baca (2002) 98 Cal.App.4th 1008, 120 Cal.Rptr.2d 281 [absence of any prior criminal incidents made assault in nightclub inherently unforeseeable]; Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 107 Cal.Rptr.2d 801 [absence of prior assault or of dangerous "propensities" of guest relieved family having teenage friends over of liability for sexual assault]; Kentucky Fried Chicken of Cal, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819, 59 Cal.Rptr.2d 756, 927 P.2d 1260 [duty to protect against criminal acts implies reasonable cause to anticipate such acts]; Rosenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 50 Cal. Rptr.2d 917 [because inadequate lighting played no role in criminal attack on sidewalk, no duty]; Madhani v. Cooper (2003) 106 Cal.App.4th 412, 415-416, 130 Cal. Rptr.2d 778 [fact of "repeated assaults" by one tenant against another made further assault foreseeable; court was "not dealing here with an isolated incident or extraordinary behavior on the part" of the assaulting tenant]; cf. Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 30 Cal.Rptr.2d 690 [broadening Ann M. to general security measures, not just security guards].) After all, in more general terms, "`"The imposition of vicarious liability is particularly disapproved in cases where a landowner is claimed to be liable for the criminal acts of third parties."'" (Hassoon, supra, 89 Cal.App.4th at p. 1197, 107 Cal. Rptr.2d 658.)
The conflation of intentional acts with negligent ones is repeated several times in the majority opinion and forms its rationale. The critical sentence in the majority opinion, the one where the majority gives a reason for their decision today, is this: "In fact, as plaintiffs attempted to point out, the issue of `foreseeability' does not depend upon the foreseeability of a particular third party's act, but instead focuses on whether the alleged negligent conduct at issue created a foreseeable risk of a particular kind of harm." (Maj. op. at p. 887, original emphasis.) By using that phrase, the majority obliterates a distinction that is etched into the law.
Indeed, the majority's arson example only illustrates the distinction. If a landowner has reason to anticipate arson, the most logical precaution is to hire a security guard, or install a video surveillance systemthe sorts of measures that were at issue in Ann M. and Sharon P. That is rather different than the sort of precautions which might be appropriate in the case of an older house with fragile wiring, where a smoke alarm or clearly exits might do. In the case of foreseeable arson, a multitude of smoke alarms, clear hallways and clearly marked exits may be ineffective. The nature of the harm is the same (fire) but the precautions necessary *898 to protect against that harm are significantly different.
The closest the majority opinion comes to confronting the problem that this is a criminal case, not a traffic case, is a passage on page 889 of the majority opinion where it attempts to distinguish Ann M. based on the idea that the "harm" involved in Ann M., a rape, is "by its nature a crime. There are no negligent rapes." (Original emphasis.)
The attempt to distinguish Ann M. (and impliedly Sharon P. as well) on the theory that those cases involved sexual assaults fails. Sexual assaults are by their nature intentional acts. However, bullets can be fired without intent to do harm. (E.g., State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 98, 109 Cal. Rptr. 811, 514 P.2d 123 [pistol discharged on its own in truck when vehicle hit a bump].) And automobiles can be used as deadly weapons. (E.g., People v. Claborn (1964) 224 Cal.App.2d 38, 41, 36 Cal.Rptr. 132 [defendant aimed his car directly at patrol car of deputy sheriff; just before the collision defendant clenched his teeth and tightened his grip on the steering wheel].) Bullets were the instrumentalities of harm in Lopez v. Baca, supra, 98 Cal.App.4th 1008, 120 Cal.Rptr.2d 281, and Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 122 Cal. Rptr.2d 890 (discussed in more detail below), so it obviously makes no difference, from the question of the scope of Ann M. or Sharon P., whether the attack was in the nature of a sexual assault, a stabbing, a shooting, or the use of an automobile as a deadly weapon.
IV
But there is yet another reason I must dissent. Not only was the foreseeability of Abrams' attack so remote that the preschool cannot be reasonably held liable for not protecting against such an attack, but the attack itself, and not any flimsiness of the fence, was the actual legal cause of this terrible tragedy. No breach of any duty on the part of the preschool caused it.
The lack of causation in the context of landowner liability for the criminal acts of third parties has been held dispositive in a number of appellate decisions, including the horrible massacre at a McDonald's restaurant in San Ysidro in the mid-1980's. (See Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 516-517, 238 Cal.Rptr. 436 [no causal nexus between lack of security measures and actions of a "demented, mentally unbalanced man, bent on murder and self-destruction"]; accord, Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 436-437, 20 Cal. Rptr.2d 97 ["where, as here, we are presented with an open area which could be fully protected, if at all, only by a Berlin Wall, we do not believe a landowner is the cause of a physical assault it could not reasonably have prevented"]; Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273, 263 Cal.Rptr. 202 ["Given the random nature of drive-by shootings, which makes them difficult to police against, we do not discern how Stang could have prevented Thai's injuries."].)
In the wake of those decisions, our high court recently confronted the problem of causation in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 107 Cal.Rptr.2d 617, 23 P.3d 1143. There, a Federal Express delivery person was assaulted at a large apartment complex in an acknowledged high crime area; the complex provided nighttime, but not daytime, security services. The delivery person, however, had no evidence showing that her assault might have been prevented by additional security, particularly in light of the fact that she was unable to prove that the assailants didn't live in the complex. *899 There was only speculation making the link between her injuries and lack of security. (Id. at pp. 774, 776, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)
The suggestion that something "sturdier" than a chain-link fence might have prevented the attack won't stand up under analysis. Recall that when the neighbor whose deposition was submitted in opposition to the summary judgment motion was specifically asked whether any vehicles (other than the mail truck) ever "encroached" on the preschool, his answer was no. Why? Because in every case where a car had lost control and run up into the curb, the curb and sidewalk had been sufficient to stop it.
That, of course, stands to reason. When a driver, who might be lighting a cigarette or fiddling with a cell phone loses control and veers off the side of the road, his or her first instinct will be to stop, not accelerate into a fence head-on. But in Abrams' case he turned into the fence and accelerated. His head-on acceleration directly through the fence with the intent to kill was the true cause of the fence not being able to stop him.
Justice Werdegar, in her dissent in Saelzler, made the point that the case there did not involve a "difficult line-drawing problem." (See Saelzler, supra, 25 Cal.4th at p. 786, 107 Cal.Rptr.2d 617, 23 P.3d 1143 (dis. opn. of Werdegar, J.).) The point was made in rhetorical juxtaposition to the majority's argument that it is hard for a landowner to know exactly how much protection is enough. (See ibid., replying to id. at p. 777, 107 Cal.Rptr.2d 617, 23 P.3d 1143, "wondering `"[h]ow many guards are enough? Ten? Twenty? Two hundred?"'") Her argument was that if a single security guard had been available to escort the Federal Express employee "it is difficult to imagine that the attack on plaintiff would have occurred." (Id, at p. 786, 107 Cal.Rptr.2d 617, 23 P.3d 1143 (dis. opn. of Werdegar, J.).)
In the case before us, however, there is a difficult line-drawing problem which underscores the absence of legal causation. We might ask, as the Saelzler court asked, how much is enough? A chain-link fence with more solid footings? A brick wall (and note that many heavy cars can drive through some brick walls and keep on going)? A reinforced concrete wall? If one were to follow the majority opinion to its logical conclusion, only a concrete bunker would have sufficed, because anything less, i.e., that might be knocked down by a heavy car accelerating into it, would not have prevented Abrams' attack.
V
Precedent relied on by my colleagues fails to support their conclusion. The majority opinion says that "We agree with plaintiffs that Robison v. Six Flags Theme Parks Inc., supra, 64 Cal.App.4th 1294, 75 Cal.Rptr.2d 838, is analogous."
I disagree. Robison arose out of the fact that the designers of an amusement park decided to put a picnic area right in the middle of a large parking lot. Drivers leaving the parking lot would, if they followed the lines, be forced to aim directly at the picnic area before turning left to get into an exit lane at a "T" intersection. (Robison, supra, 64 Cal.App.4th at p. 1296, 75 Cal.Rptr.2d 838.)
The picnic area was covered with grass, but "[n]o curb, change in elevation, tire stop, ditch, foliage, railing, bollard, planter or other barrier" separated the parking lot pavement from the grass. Rather, there was a "level ground" transition from the pavement to the grass. (Robison, supra, 64 Cal.App.4th at p. 1296, 75 Cal.Rptr.2d 838.)
*900 One day, as the court wrote, "[t]he predictable ... happened." (Robison, supra, 64 Cal.App.4th at p. 1297, 75 Cal.Rptr.2d 838.) A car wouldn't start, and, because of its manual transmission, had to be push-started. The owner, a 21-year-old man, put his friend, a 41-year-old developmentally disabled woman who had never driven a car and didn't know how to drive one, behind the steering wheel while he pushed. The motor started and the car began to accelerate, but the woman panicked. The man ran behind shouting instructions, but to no effect. The car eventually reached 25-to-40 miles an hour. It traveled directly over the stop sign painted on the pavement, went over about 40 feet of grass, and hit a picnic table, injuring the plaintiffs. (See id. at p. 1298, 75 Cal.Rptr.2d 838.)
The Robison court rejected the amusement park's lack-of-foreseeability argument based on the highly unusual facts which caused a car whose driver had no control over it to head toward the picnic area in the first place. It noted that, given the "configuration and use of the parking lot and picnic area" it was readily foreseeable that "a car might fail to turn left at the word `stop' painted on the pavement, and that picnickers might be injured as a consequence of Magic Mountain's failure to provide an appropriate separation between the parking lot and the picnic area." (Robison, supra, 64 Cal.App.4th at p. 1299, 75 Cal.Rptr.2d 838.)
For the Robison court, the design of the picnic area and parking lot was an accident waiting to happen. "Here, for example," the court wrote, "it was open to simple observation that Magic Mountain had aimed a heavily traveled parking lane (with a speed limit of 25 miles per hour) directly at the picnic table with no separation other than W feet of flat grass, and that a car traveling at a speed no higher than Magic Mountain's own speed limit would cover this distance in less than 2 seconds, too short a time to allow for reliable evasive action by an unsuspecting person seated at a picnic table, possibly with his or her back to the oncoming car." (Robison, supra, 64 Cal.App.4th at p. 1301, 75 Cal.Rptr.2d 838, emphasis added.)
Moreover, in distinguishing Ann M., the Robison court specifically contrasted criminal acts from negligent configuration. "Crime can happen anywhere, but cars cannot crash into picnic tables just anywhere." (Robison, supra, 64 Cal.App.4th at p. 1301, 75 Cal.Rptr.2d 838.)
Robison is obviously a different genus than the present case, particularly given the Robison court's own contrast between the criminality present in Ann M. and the negligent design before it. If this case had involved a "T" intersection with no barrier at all between cars which would, under normal traffic patterns, be directed head-on at the preschool, then maybe Robison might be partially analogous (and only then if we were to ignore the distinction between criminal acts and accidents, and the lack of causation discussed above).
My colleagues' interpretation of Robison may be the result of a problem that all judges must deal with, which is the sheer effort and extra words that are often needed to express a thought precisely. In Robison, for example, the court referred throughout its opinion to vehicles traveling by themselves in a way that anthropomorphized the vehicle. Hence the opinion uses phrases such as "an out-of-control car," a "runaway car," "a car might fail to turn left," and "the generic runaway car" (albeit there quoting the trial court). Literally, several parts of the Robison opinion read as if cars were autonomous things, reminiscent of Stephen King's novel Christine, a story about a demon-possessed car.
*901 That usage was obviously shorthand. The Robison opinion is a good illustration why appellate opinions must be read in context. For the Robison court, it was clearly too cumbersome to write, every time a reference was desired, something like, "a car whose driver had lost control," though the latter would have been more accurate. My point is that one cannot extract from Robison some generic risk from Christine-like "runaway cars" or "errant traffic." Risks come in different sorts.
The Robison case was about a risk that was actually created by the design of the Magic Mountain parking lot, in which traffic was directed to flow at pedestrians sitting in a totally unprotected picnic area, so that there was no barrier at all if the driver of a car exiting the parking lot either failed to turn or lost control and kept going in a straight line. Indeed, the case did not even go so far as to say that Magic Mountain should have provided an impenetrable wall between the parking lot and the picnic area. The negligence was in the very design of the parking lot, with its requirement that vehicles headed straight for the picnic area make a turn immediately prior to reaching the area. The Robison case was not about the risk of pedestrians being hit by cars in all contexts. I need only note that the various forms of risk from "runaway" cars are diverse, and each case must be analyzed on its own facts. There is a difference in risk between a car parked up a hill if its brakes fail, and a speeding drunk driver who loses control on a busy street. Those are risks inherent in geography and street layout. This is not a case where the children were allowed to play in the middle of the street, or where there was no protection against children dashing into the street. By contrast, in the case before us, where the children were in an enclosed playground, the risk involved deliberate criminal conduct by a driver who intentionally turned into a fenced preschool protected by a curb, sidewalk and chain-link fence, which is nothing like the risk in Robison. Or Bigbee or Barker or Jefferson either.
And here is yet another case irreconcilable with today's decision, Alvarez v. Jacmar Pacific Pizza Corp., supra, 100 Cal. App.4th 1190, 122 Cal.Rptr.2d 890. In Alvarez, a group of friends were eating in a pizza parlor. Three drunks with a video-camera came up to the women in the party and made obscene remarks. That led to a fistfight in the parking lot, where the victim ultimately hit his eventual killer in the face, with the killer saying, "We'll see you later." A restaurant employee made a call to the police. The police came, and later left having been told by the employee that the fight was over. However, about a half an hour later the killer came back, approached the victim in his group, and shot him. (See id, at pp. 1209-1210, 122 Cal. Rptr.2d 890.)
Interestingly enough, there had been three violent incidents at the pizza parlor in the two and one half years prior to the murder. But the Alvarez court looked to both Ann M. and Sharon P., and noted that the prior incidents weren't similar. "None of these incidents," wrote the Alvarez court, "involved the operative facts to this case: a verbal and physical confrontation between two groups of customers; a simple statement by one group, unaccompanied by any threat of violence, that it would be back; and the return of that group with a weapon and an execution-style murder." (Alvarez, supra, 100 Cal. App.4th at p. 1212, 122 Cal.Rptr.2d 890.)
Now for the moment, let me segue back to Robison. My colleagues believe that Robison stands for the proposition that it makes no difference why a car loses control, the only thing the court need concern *902 itself with is that it did. But that reading of Robison is inconsistent with Alvarez. If, in Alvarez, prior but not similar criminal acts were not enough to show foreseeability, how can one conclude that there is foreseeability in a case where there were no criminal acts, and even the non-criminal acts (some cars that apparently ran up the curb and were stopped before they reached the fence and a flukish runaway mail truck) did not involve the "operative facts" of this case?
Even the dissent in Alvarez fails to support the position of my colleagues here. Just as Justice Werdegar argued in Sharon P. that the majority had fashioned too absolute a rule, so did Justice Epstein in Alvarez. He argued that it was enough that it was foreseeable that the killer would return "bent on a violent assault" even though it may not have been foreseeable that he would have returned with a weapon intent on murder. (See Alvarez, supra, 100 Cal.App.4th at p. 1221, 122 Cal.Rptr.2d 890 (dis. opn. of Epstein, J.).) However, Justice Epstein distinguished Ann M. and Sharon P. on the ground that in each of those cases, "the court was concerned with the foreseeability of criminal conduct by an unknown and unknowable possible assailant." (Alvarez, supra, 100 Cal.App.4th at p. 1220, 122 Cal.Rptr.2d 890 (dis. opn. of Epstein, J.).) For Justice Epstein, the case before him was different because the "identity of the assailant ... was precisely known." (Ibid., emphasis added.)
Here, even under Justice Epstein's test, i.e., criminal conduct by an "unknown and unknowable possible assailant," the majority's position lacks support. We have no indication that Abrams was known at all to the preschool prior to this tragedy.
VI
Finally, I need only add that, as this court pointed out in Jefferson v. Qwik Korner Market, Inc., supra, 28 Cal.App.4th 990, 34 Cal.Rptr.2d 171a true "errant traffic" casethat the present case fits none of the established bases for liability even for negligent third party driving.
In Jefferson, a minor was standing on the sidewalk in front of a convenience store. An 84-year-old driver was pulling into a parking space in front of him. Suddenly the driver's foot slipped, and the car jumped both the parking blocks and the curb of the sidewalk, hitting the minor. In rejecting the idea that the convenience store had a duty to protect against that particular risk, we noted that liability of landowners to pedestrians hit by negligent third party drivers has only been predicated on one of three scenarios: (1) "no protection whatever from encroaching vehicles" (see Jefferson, supra, 28 Cal.App.4th at p. 994, 34 Cal.Rptr.2d 171); (2) "knowledge of prior similar incidents" (ibid.); and (3) a configuration in which the plaintiff will be in a specific fixed location which is especially vulnerable to any cars whose drivers might lose control (id. at p. 995, 34 Cal.Rptr.2d 171).
Clearly, in the case before us, Abrams' intentional use of his automobile as a deadly weapon does not fit any of the accepted bases for liability on an errant traffic theory. There was a chain-link fence, a sidewalk, and a curb. Indeed, the neighbor's deposition in which he noted that "There's a lot of cars that hit the curb, went up on the curb, but not through the fence," indicates that, in terms of the usual risk of speeding traffic on Santa Ana Avenue, the existing fence was sufficient.
Nor can the "errant" mail truck be considered a prior similar incident. The incident was a total fluke. First, the mail truck was on the other side of the street. Unlike 99.9 percent of vehicles on the road *903 in this country, it had a right-hand side steering wheel, thus making it easier for a mail carrier to deliver mail without getting out of it. Unlike 99.99 percent of all vehicles on the road, not only did it have a right hand steering wheel, but an open door for a driver to fall out of it. The incident stemmed directly from those particularities. Pointed as it was directly at the fence, its sheer bulk allowed it to plow through the fence at a speed that is less than most people jog.
That "incident" was hugely different from Abrams' murderous assault, which had nothing to do with accidental loss of control of a vehicle (unlike Bigbee, Barker, Jefferson, and the mail truck). Recall that Abrams went by the preschool first and then circled back. Then he made an "abrupt right hand turn" into the fence. He "`accelerated into the kids.'" He aimed his car right at the children. Abrams had been thinking of the incident for five years. He selected his victims for their very innocence. Indeed, the injuries and deaths in this case stem from the fact that Abrams' car was not "out of control." It was very much in the control of a driver bent on using it to kill innocents.
VII
I share my colleagues' heartfelt sympathy for the plaintiffs. But, unfortunately, I cannot agree with their analysis and conclusion. California courts have traditionally followed the Palsgraf approach where duty is defined by risk, not generic "kind of harm." (E.g., Wawanesa Mutual Ins. Co. v. Matlock (1997) 60 Cal.App.4th 583, 585, 70 Cal.Rptr.2d 512 [following Palsgraf because the "`"combination of events and circumstances"'" necessary for the injury was "`"too improbable"'"].) Now, after seventy-five years, my colleagues bid Palsgraf adieu.
It is an unfortunate farewell. If today's decision were the rule, insurers would require every tot-lot to be turned into a concrete bunker. That should not happen.
I would affirm the judgment.
NOTES
[1] Plaintiffs also sued Abrams, but he is not involved in this appeal.
[2] In its reply, defendant Southcoast states the mail truck incident happened in 1996, before Southcoast actually took over the daycare premises. It asserts "there is no evidence that Southcoast had notice of the postal truck incident...." However, it is Southcoast, as the moving party, which has the burden of demonstrating, as an undisputed fact, that it had no notice the playground was vulnerable to wayward traffic.
[3] Our dissenting colleague takes us to task for failing to point out that the children were "protected" by a raised curb and a sidewalk. He is correct that there is a raised curb and a sidewalk between the street and the playground; we believe he is incorrect in suggesting that such "obstacles" provide "protection" from the 3,000-pound, steel platforms on wheels which passed the preschool daily. This is especially true where, as here, a prior unmanned vehicle had coasted over the curb, across the sidewalk and through the fence at five miles an hour. A juryor a reasonable person running a preschoolmight consider that a pretty good indicator the playground should be moved or better protected.
We note our colleague asserts that "In all the other prior incidents, i.e., where a car might have been traveling on Santa Ana Avenue rather than straight across it and the driver of a car might have accidentally lost control, the chain link fence proved adequate." Since his italics might suggest otherwise, we feel constrained to point out that there were exactly zero incidents in which the chain link fence stopped a car. The only car to hit it was the coasting mail truck which flattened it at five miles an hour.
[4] The dissent argues that "only a concrete bunker would have sufficed" to protect these children. That, of course, is a matter of fact, properly left to a jury. The option of simply moving the children to another part of the preschool is nowhere discussed in the dissent.
[5] The dissent relies heavily upon the fact the driver in this case "had thought about driving into the children on the preschool playground for `five years.'" We cannot find this in the record. Abrams had contemplated a crime against what he called "the innocents" for years. He originally meant anyone not responsible in any way for his problems, but eventually narrowed the concept to children. Yet we find nothing indicating he had these particular innocents in mind prior to a year before the crime. While Abrams made many statements about thismost of them conflicting to some degree or anotherincluding the rather ambiguous one relied upon by our dissenting colleaguethey seem to us only to enrich the factual dispute which should be submitted to a jury.
Even if Abrams had long contemplated killing the children at this preschool, however, our colleague's argument proves too much. Abrams admitted being enraged by a conflict with another driver earlier that day. Then, he drove past the schoolyard, saw the children and doubled back. This sounds like the classic "target of opportunity." A good argument could be made to a jury hearing this case that had there been better barriers, or had the children been playing somewhere not accessible from the street, Abrams would have had no reason to double back and his crime might well have remained entirely in his headas it had for so long. Further, and perhaps more important, if the children had been better protectedor moved to another part of the preschoolit might never have occurred to Abrams to focus on these particular innocents at all.
[6] Of course, while it would have been equally tragic from a societal standpoint if Abrams were simply deflected into killing some other children by that different method, the distinction is everything to these plaintiffs.
[1] Fascinatingly, as the court in Hassoon v. Shamieh (2001) 89 Cal.App.4th 1191, 1196, footnote 2, 107 Cal.Rptr.2d 658, recently observed, even Justice Cardozo's formulation may be too liberal in the context of the foreseeability of third party criminal conduct. As the Hassoon court noted: "For policy reasons identified by the court in Ann M., supra, 6 Cal.4th 666," 25 Cal.Rptr.2d 137, 863 P.2d 207 and, Sharon P., supra, 21 Cal.4th 1181, 91 Cal.Rptr.2d 35, 989 P.2d 121, the third party premises liability cases refute" the proposition that "duty and foreseeability are coextensive." For the Hassoon court, "Because one might foresee the possibility of a violent criminal act `anywhere,' duty (and tort liability) requires more than mere foreseeability; it requires a `heightened foreseeability' embedded in the `prior similars' rule."
[2] The details are in a police report found at page 198 of the Appellant's Appendix (part of the papers supporting the owner's summary judgment motion). Here is the quote from the officer: "I walked up to Abrams and asked him if he could tell me what he told the paramedics. Abrams said, `I have been thinking about this for five years.' I said, "What for five years?' Abrams replied, `I purposely drove onto the property and hit the kids.'"
[3] The tact is placed in a footnote on page 14 of the majority opinion, in the context of suggesting that Abrams' act might have been a spur-of-the-moment type of thing. But even if it were spontaneous (and the fact that Abrams circled back to the preschool and his statements to the police immediately afterwards belie such a view), that would make no difference. There is no doubt that when he acted, he acted deliberately.
[4] I recognize that there may be some play on the degree to which the absence of prior similar acts is wholly dispositive as regards any duty to protect against all third party criminal acts. Justice Werdegar, for example, dissented in Sharon P. "insofar as the majority opinion may be read impliedly to reinstitute a pure prior similar incidents rule," taking the position that there could be cases where the absence of prior foreseeable acts might not be wholly dispositive. (Sharon P., supra, 21 Cal.4th at p. 1201, 91 Cal. Rptr.2d 35, 989 P.2d 121 (cone. & dis. opn. of Werdegar, J.).) However, whatever duty there may be on the part of landowners to protect against the criminal acts of third parties without prior similar acts, there is still a need for at least some indicia of criminality to make the attack foreseeable enough such that the law would impose a duty of care to protect against it. (See id. at p. 1202, 91
Cal.Rptr.2d 35, 989 P.2d 121.) In that regard, consider Trujillo v. G.A. Enterprises (1995) 36 Cal.App.4th 1105, 43 Cal.Rptr.2d 36. There, the court held there could be liability for criminal acts in situations where an establishment holds itself out as providing security, but a security guard does nothing even though an assault takes place before his very eyestalk about indicia of criminality at a time when you can prevent it! (To the same effect is Mata v. Mata (2003) 105 Cal.App.4th 1121, 1129-1130, 130 Cal.Rptr.2d 141, holding there were triable issues of fact as to whether a security guard acted reasonably in, for example, not checking an assaultive customer for weapons or in not removing that customer from a parking area from which he fired the fatal shot.) In the case before us, however, there is no prior indicia of criminality in the record, not just no prior similar acts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323785/ | 211 S.E.2d 515 (1975)
24 N.C. App. 502
STATE of North Carolina
v.
Ronald Lee MULL.
No. 7429SC876.
Court of Appeals of North Carolina.
February 5, 1975.
*516 Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. William W. Melvin and William B. Ray, Raleigh, for the State.
Dameron & Burgin by E. P. Dameron, Marion, for defendant appellant.
MORRIS, Judge.
Because defendant has failed to argue in his brief his first and fifth assignments of error, they are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.
*517 Defendant's second assignment of error relates to the denial of his motions to nonsuit at the close of the State's evidence and at the close of all the evidence. "By introducing testimony at the trial, defendant waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State's evidence. His later exception to the denial of his motion for nonsuit made at the close of all the evidence, however, draws into question the sufficiency of all the evidence to go to the jury. (Citations omitted.)" State v. McWilliams, 277 N.C. 680, 687, 178 S.E.2d 476, 480 (1971).
It is well settled in this State that upon motion to nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom, and that nonsuit should be denied when there is sufficient evidence, direct, circumstantial or both, from which the jury could find that the offense charged has been committed and that defendant committed it. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). Here, evidence tendered by the State, and set forth above, did more than raise suspicions as to defendant's involvement and possible guilt. In our opinion, there was substantial evidence of each of the elements of the offense charged and defendant's guilt or innocence was a question for the jury. Defendant's motion to nonsuit was properly denied.
In his third and fourth assignments of error, defendant contends that the trial court erred in summarizing the evidence in its charge to the jury. In one instance the trial court stated that the prison guard had testified that he saw defendant strike Keeter on the chest, when in fact the guard stated that defendant made "a striking lick towards Keeter's body." At another point in the charge the trial court instructed the jury that the State had offered evidence tending to show that defendant and Keeter "had had some difficulty before down in the Shelby Prison Unit." Nowhere in the record is there evidence to support this statement. While the district attorney asked the defendant and several other witnesses if there had been some trouble or difficulty between the defendant and Keeter at the Shelby Prison Unit, in each instance knowledge of any such trouble was denied.
As we stated in State v. Blackmon, 6 N.C.App. 66, 73, 169 S.E.2d 472, 477 (1969):
"It is well settled that a slight inaccuracy in stating the evidence will not be held reversible error when the matter is not called to the court's attention in apt time to afford an opportunity for correction; on the other hand, an instruction containing a statement of a material fact not shown in evidence must be held prejudicial, even though not called to the court's attention at the time. 3 Strong, N.C. Index 2d, Criminal Law, § 113, p. 15, and cases cited."
In our opinion the statement by the trial judge that defendant struck Keeter "on Keeter's chest" rather than that defendant made "a striking lick towards Keeter's body" is clearly a slight inaccuracy which cannot be held reversible error, especially in light of the fact that defendant failed to call the matter to the court's attention in apt time to permit correction. We also fail to see how defendant was prejudiced by the trial court's statement that defendant and Keeter "had had some difficulty before down in the Shelby Prison Unit." Conceding it was error for the trial court to so charge, we conclude such error was harmless on these facts. Here, the trial judge made it abundantly clear that he was summarizing only a part of the evidence, that it was the duty of the jury to remember it all, that if their recollection of the evidence differed from his they should take their own recollection concerning the evidence because they must find the facts and decide the truth of the matter. Moreover, in summarizing the contentions of the parties the trial court stressed equally or *518 greater the defendant's contentions concerning this aspect of the evidence. The court stated that the defendant had produced evidence tending to show that he had never had any trouble with Keeter, that he did not have any trouble with Keeter down in the Shelby Prison Unit and that he had no reason to attack Keeter. This assignment of error is overruled.
In his sixth and final assignment of error defendant maintains that the trial court violated G.S. § 1-180 by failing to instruct the jury on manslaughter as a lesser included offense of second degree murder. It is defendant's contention that a charge on manslaughter was necessary in this case since the presumption of malice which arises from proof of an intentional killing with a deadly weapon was rebutted by his testimony that he and Keeter always "got along fine" and that he had no reason to attack Keeter. We disagree.
"'The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed.' State v. Hicks, 241 N.C. 156, 84 S.E.2d 545." State v. Morrison, 19 N.C.App. 717, 720, 200 S.E.2d 341, 344 (1973).
Here there was no evidence of just cause or reasonable provocation for the homicide, nor was there evidence of self-defense, unavoidable accident or misadventure. Defendant's self-serving declarations alone were not sufficient to rebut the presumption of malice arising in this case.
Defendant received a fair trial free from prejudicial error.
No error.
PARKER and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323786/ | 554 S.E.2d 399 (2001)
Nancy BELL and husband, Adrien Bell, Plaintiffs,
v.
NATIONWIDE INSURANCE COMPANY, Defendant.
No. COA00-1464.
Court of Appeals of North Carolina.
November 6, 2001.
*400 Thompson & Mikitka, P.C., by E.C. Thompson, III and Susan Collins Mikitka, Warsaw, for plaintiffs-appellants.
Cox & Associates, by J. Thomas Cox, Jr., Wrightsville Beach, for defendant-appellee.
TYSON, Judge.
Nancy Bell and husband, Adrien Bell ("plaintiffs") appeal the entry of summary judgment in favor of Nationwide Insurance Company ("defendant"). We affirm the trial court's judgment.
I. Facts
On 14 July 1995, plaintiffs applied for a homeowners insurance policy from defendant. Defendant issued a policy of insurance, containing the standard provisions for fire insurance coverage as set forth under N.C. Gen.Stat. § 58-44-15. The policy was renewed on 13 June 1996.
On 15 and 16 September 1996, plaintiffs' dwelling and contents were destroyed by fire. Plaintiffs filed a claim for the loss which defendant denied on the grounds that plaintiffs had made material misrepresentations in their application for insurance. Plaintiffs filed their complaint on 3 June 1997 to compel payment of their insurance claim. Defendant moved for summary judgment on the issue of material misrepresentation. On 20 September 2000, the trial court entered summary judgment in favor of the defendant. Plaintiffs appeal.
II. Issues
The sole issue presented on this appeal is whether, based on the factual showing made at the summary judgment hearing, defendant is entitled to judgment as a matter of law on the material misrepresentation defense. Plaintiffs argue that a genuine issue of material fact exists as to whether plaintiffs' application contained material misrepresentations. We disagree.
Summary judgment is appropriate 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) (1999).
N.C. Gen.Stat. § 58-44-15 (1999) sets out the "Standard Fire Insurance Policy for North Carolina" which provides:
This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or *401 the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.
"It is a basic principle of insurance law that the insurer may avoid his obligation under the insurance contract by a showing that the insured made representations in his application that were material and false." Pittman v. First Protection Life Insurance Co., 72 N.C.App. 428, 433, 325 S.E.2d 287, 291 (1985). Misrepresentations on an insurance application are material if "the knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract and accepting the risk." Bryant v. Nationwide Mut. Fire Ins. Co., 67 N.C.App. 616, 621, 313 S.E.2d 803, 807 (1984), rev'd on other grounds, 313 N.C. 362, 329 S.E.2d 333 (1985). In order to void the policy pursuant to G.S. § 58-44-15, defendant must show that the insured made statements that were: (1) false; (2) knowingly and willfully made; and (3) material. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 370, 329 S.E.2d 333, 338 (1985).
The record shows that plaintiffs misrepresented on their application for insurance the facts that they filed bankruptcy within the last seven years, had a policy canceled or not renewed, and had past losses. Plaintiffs do not argue that these misrepresentations were not material. Plaintiffs contend that these misrepresentations were not knowing and willful. Plaintiffs assert that the defendant's agent, Kim Daniels, never asked whether or not they had filed bankruptcy, had a previous policy of insurance canceled or not renewed, or had previous losses, but simply typed in "no" in response to these questions. Our Supreme Court addressed the same argument, in Goodwin v. Investors Life Ins. Co. of North America, 332 N.C. 326, 419 S.E.2d 766 (1992), where plaintiff claimed that she should not be bound by the misrepresentation concerning her husband's driving record because she was unaware of the driving record question on the application and the agent's inaccurate response to it. The Court stated that "plaintiff and her husband signed the application thereby representing that they had read it and that the information contained therein was true." Id. at 330-31, 419 S.E.2d at 768. "`It made no difference whether the plaintiff knew what was in the agreement or not. He signed it, and the law presumes he did know what was in it, and he will not be heard, in the absence of any proof of fraud or mistake, to say that he did not.'" Id., 419 S.E.2d at 769 (citing Jones v. Home Security Life Ins. Co., 254 N.C. 407, 413, 119 S.E.2d 215, 219 (1961)) (quoting Weddington v. Insurance Co., 141 N.C. 234, 243, 54 S.E. 271, 274 (1906)).
In Cuthbertson v. North Carolina Home Ins. Co., 96 N.C. 480, 2 S.E. 258 (1887), plaintiff signed the insurance application next to the following statement: "I affirm and warrant that the foregoing answers are true, and that they shall constitute the basis of the policy that may be issued to me on this application." Plaintiff proposed to prove that the questions in which misrepresentations were given were in fact not asked, and that he signed the application without knowledge that the application contained those questions. Our Supreme Court held that "[t]here was no error in excluding the proposed evidence. In the absence of fraud or mistake, a party will not be heard to say that he was ignorant of the contents of a contract signed by him." Id. at 347, 2 S.E. at 261.
At bar, there is no dispute that plaintiff, Adrian Bell, signed the application below a statement which read: "I hereby declare that the facts stated in the above application are true and request the company to issue the insurance and any renewals thereof in reliance thereon." Our Supreme Court has held "if an application for insurance containing material misrepresentations is filled in by the agent before being signed by the applicant, these are material misrepresentations of the applicant which bar recovery." McCrimmon v. North Carolina Mut. Life Ins. Co., 69 N.C.App. 683, 685, 317 S.E.2d 709, 710 (1984) (citing Inman v. Woodmen of the World, 211 N.C. 179, 189 S.E. 496, (1937)).
Plaintiffs argue that bad faith on the part of the agent or defendant overcomes the presumption that the insured adopts all statements made in the application he signed. Pittman, 72 N.C.App. at 435, 325 S.E.2d at *402 291. Plaintiffs contend that the actions of the agent, filling in answers without asking plaintiffs the questions, constituted bad faith. The trial court granted summary judgment after hearing the evidence and arguments of counsel, and based upon the pleadings, depositions, admissions, and discovery responses. The record does not contain anything in the pleadings, transcripts, or otherwise, to indicate that the issue of bad faith was presented to the trial court. Since plaintiffs failed to raise this issue before the lower court, we refuse to address the issue for the first time on appeal. N.C. R.App. P. 10(b) (1999).
We are bound in this case by the holdings of this Court and our Supreme Court. We conclude that the misrepresentations were false, there was no showing of fraud on the part of the agent or defendant; therefore, plaintiffs will be held to the statements in the application for insurance. We affirm the trial court's granting of summary judgment in favor of the defendant.
Affirmed.
Judges MARTIN and WALKER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323399/ | 263 S.E.2d 300 (1980)
Edna Faye WILLETTS
v.
INTEGON LIFE INSURANCE CORPORATION.
No. 7913SC344.
Court of Appeals of North Carolina.
March 4, 1980.
*303 Ray H. Walton, Southport, for plaintiff-appellee.
Crossley & Johnson by Robert White Johnson, Wilmington, for defendant-appellant.
MORRIS, Chief Judge.
Through the pleadings and admissions, plaintiff established the execution and delivery by defendant of a life insurance policy issued to the deceased with plaintiff as beneficiary, the death of the insured, and payment of premiums. The death of the insured was shown by medical evidence to have resulted from injuries sustained in an automobile accident during the period the policy was in force. Nothing else appearing, plaintiff has established a *304 prima facie case of her right to the insurance proceeds. Rhinehardt v. Insurance Co., 254 N.C. 671, 119 S.E.2d 614 (1961); Tolbert v. Insurance Co., 236 N.C. 416, 72 S.E.2d 915 (1952). An insurer's duty under an insurance contract may be avoided by a showing that the insured made representations in his insurance application which were material and false. G.S. 58-30; Tolbert v. Insurance Co.,, supra; Gardner v. Insurance Co., 163 N.C. 367, 79 S.E. 806 (1913). A representation in a life insurance application is deemed material if the knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract and accepting the risk. Carroll v. Insurance Co., 227 N.C. 456, 42 S.E.2d 607 (1947). After plaintiff has made a prima facie case, the burden of proof is on the insurer to establish the misrepresentations relied on by it to avoid the policy. Rhinehardt v. Insurance Co., supra; Wells v. Insurance Co., 211 N.C. 427, 190 S.E. 744 (1937). In this case, the jury answered the question of whether plaintiff and her deceased husband represented to defendant that the insured had not been charged with a moving violation other than speeding 60 miles per hour in a 45 mile-per-hour zone in favor of the plaintiff. Thus, the question of materiality is not before us.
Defendant's contention in this action is that plaintiff and insured, by signing the life insurance application in which the answer to question No. 7 was incomplete, misrepresented the truth to defendant insurer. Plaintiff, on the other hand, contends that she, her husband, and defendant's agent discussed insured's driving record at length, and that they did not represent to defendant's agent that there had only been one charge within the preceding three years. Some evidence supporting plaintiff's position was admitted without objection during direct examination of Mrs. Willetts. A portion of her testimony, however, concerned statements allegedly made by Agent Kopp to plaintiff and the insured, to the effect that they need not worry about whether the charges were within three years because Integon Company would obtain a copy of insured's driving record, and they would be notified if there was any problem. None of this evidence was incorporated into the insurance application, and it obviously contradicted the clause printed in the application disclaiming knowledge on the part of Integon Company.
In North Carolina, evidence of prior parol representations will not be received into evidence to alter the terms of a written insurance contract. This rule is explained as follows:
[W]hen the parties have bargained together touching a contract of insurance and reached an agreement, and in carrying out, or in the effort to carry out, the agreement [sic], a formal written policy is delivered and accepted, the written policy, while it remains unaltered, will constitute the contract between the parties, and all prior parol agreements will be merged in the written instrument; nor will evidence be received of prior parol inducements and assurances to contradict or vary the written policy while it so stands as embodying the contract between the parties.
Floars v. Insurance Co., 144 N.C. 232, 235, 56 S.E. 915, 916 (1907). See also Rutherford v. Insurance Co., 562 F.2d 290 (4th Cir. 1977); Cavin's, Inc. v. Insurance Co., 27 N.C.App. 698, 220 S.E.2d 403 (1975). Applying this principle, defendant contends that evidence of Agent Kopp's statements were immaterial, and their admission was, therefore, improper. Without ruling on the admissibility of the statements, we do not find defendant's argument persuasive, in that Agent Kopp, on direct and cross-examination, testified without objection that he told Mrs. Willetts that the company would check her husband's driving record and that she would be notified if the results affected the policy. It is clear that defendant's exception to the admission of this evidence was waived when Agent Kopp testified to the same matter. State v. Byrd, 40 N.C. App. 172, 252 S.E.2d 279 (1979). By so holding, we also reject defendant's argument with respect to the trial court's instructions containing those statements.
*305 Notwithstanding defendant's contentions regarding the inadmissibility of its agent's parol representations, it is apparent that such evidence, admitted without objection constitutes knowledge on the part of defendant which precludes it from avoiding liability under the policy.
It is well established that an insurance company cannot avoid liability on a life insurance policy on the basis of facts known to it at the time the policy went into effect. Cox v. Assurance Society, 209 N.C. 778, 185 S.E. 12 (1936). Defendant argues that it had no knowledge of insured's prior driving record because there was nothing on the face of the insurance application to that effect and nothing to put it on notice that further inquiry should have been made. Defendant overlooks, however, the rule as stated in Insurance Co. v. Grady, 185 N.C. 348, 117 S.E. 289 (1923), wherein the Court stated:
[I]n the absence of fraud or collusion between the insured and the agent, the knowledge of the agent when acting within the scope of the powers entrusted to him will be imputed to the company, though a direct stipulation to the contrary appears in the policy or the application for the same.
185 N.C. at 353, 117 S.E. at 291. Cox v. Assurance Society, supra. See 16A Appleman, Insurance Law and Practice § 9101 (1968) [Appleman]. In Gouldin v. Insurance Co., 248 N.C. 161, 102 S.E.2d 846 (1958), the Court, quoting from Appleman, stated the rule with respect to the degree of knowledge required to constitute notice on the part of the agent and the insurer:
Knowledge of facts which the insurer has or should have had constitutes notice of whatever an inquiry would have disclosed and is binding on the insurer. The rule applies to insurance companies that whatever puts a person on inquiry amounts in law to "notice" of such facts as an inquiry pursued with ordinary diligence and understanding would have disclosed.
248 N.C. at 165, 102 S.E.2d at 849. Applying these principles to the facts before us, it is evident that Agent Kopp had knowledge of the insured's driving history, and that Kopp was at least put on notice that there may have been driving charges within the three years preceding the application other than the charge for speeding 60 miles per hour in a 45 mile-per-hour zone. Such knowledge is sufficient to put Kopp on notice as to the other charges which would have been revealed by further inquiry. Thus, Integon is deemed to have notice of the insured's driving record for the three years preceding the application. By so holding we reject defendant's assignment of error relating to the trial court's instruction to the jury that it could consider in its deliberations defendant's ability to obtain insured's driving record.
We have carefully reviewed defendant's other assignments of error concerning the admission of evidence and jury instructions. We find no error sufficiently prejudicial to warrant granting defendant a new trial. Further, we find the evidence supportive of the jury's finding that plaintiff and its insured did not misrepresent to defendant information regarding insured's past driving record.
No error.
PARKER and HILL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323424/ | 263 S.E.2d 604 (1980)
Garfield DAVIS and wife, Lona Mae Davis
v.
Roy Lee McREE and wife, Dean C. McREE, First Southern Savings and Loan Association, and Thomas J. Wilson, Trustee.
No. 98.
Supreme Court of North Carolina.
March 5, 1980.
*606 Williams, Pannell & Lovekin by Martin C. Pannell, Newton, for plaintiffs.
Lefler, Gordon & Waddell by Lewis E. Waddell, Jr., Newton, for defendants McRee.
Wilson & Lafferty, P. A., by John O. Lafferty, Jr., Lincolnton, for defendants Wilson and First Southern Savings & Loan Association.
BRANCH, Chief Justice.
Plaintiffs assign as error the trial court's ruling as a matter of law that the handwritten endorsement of 13 August 1974 incorporated the original lease agreement in its entirety, including the option to purchase. On this matter, the trial judge ruled:
. . . that the lease and all of its contents was [sic] in effect and binding between the parties up to and through January 31, 1976, and that each and every of the clauses of the lease were binding upon the parties upon any event covered by the lease, specifically that the option provisions of the lease applied during the period from January 31, 1974, through and including January 31, 1976. [Emphasis added.]
Plaintiffs contend that the option to purchase died with the expiration of the term of the original lease on 31 January 1974 and that the new agreement of 13 August 1974 was not effective to revive the option.
Defendants, on the other hand, maintain that the intent of the parties should control the interpretation of the August agreement. They contend that the parties intended to incorporate into the new agreement all of the provisions of the prior lease.
The Court of Appeals held that the intent of the parties controls the construction of the August agreement. It held further that the parties intended to extend the option to purchase as well as the terms of the original lease agreement.
It is well settled that the parties to a lease may by subsequent agreement extend the time for which the lease is to run. 51C C.J.S. Landlord and Tenant § 55 (1968). The rules governing the interpretation of written instruments generally apply with equal force to the construction of provisions for renewals or extensions of leases. 50 Am.Jur.2d Landlord and Tenant § 1160 (1970). The primary purpose in all events is to ascertain the intent of the parties to the subsequent agreement. Id.
We have examined the law governing extensions and renewals of lease contracts which include options to purchase and have found it to be far from well settled. The rule most often stated is that, in the absence of a renewal term in the original lease, "where the tenancy is continued by subsequent agreement, the continuance of the option depends upon the construction to be placed upon that agreement. If it refers to the original lease, the option is also extended. However, if the subsequent agreement merely continues the tenancy, although upon the terms fixed by the original lease, it will not extend an option to purchase contained in the original lease." Annot., 15 A.L.R. 3d 470, 473-74 (1967); 49 Am.Jur.2d, supra § 383.
In our view, this statement of the law is far more confusing than it is enlightening, and the decisions of other courts confronting the issue reflect this confusion. See e. g., Grummer v. Price, 101 Ark. 611, 143 S.W. 95 (1912); Parker v. Lewis, 267 Pa. 382, 110 A. 79 (1920). The better view, and the one to which we adhere, is that the ultimate test in construing any written agreement is to ascertain the parties' intentions in light of all the relevant circumstances and not merely in terms of the actual language used. "Where the parties have made a separate agreement extending the lease, the agreement must be examined in light of all the circumstances in order to *607 ascertain the meaning of its language, with the guide of established principles for the construction of contracts, and in the light of any reasonable construction placed on it by the parties themselves." 51C C.J.S., supra § 68a. The parties are presumed to know the intent and meaning of their contract better than strangers, and where the parties have placed a particular interpretation on their contract after executing it, the courts ordinarily will not ignore that construction which the parties themselves have given it prior to the differences between them. Preyer v. Parker, 257 N.C. 440, 125 S.E.2d 916 (1962).
With this in mind, we note that the language of the handwritten August agreement here does not tend to shed any light on whether the parties intended to extend the option to purchase. However, evidence of subsequent acts by both parties clearly indicates their intent to extend the option. Defendants in fact exercised the option, and plaintiffs proceeded to have the deed of purchase drawn up. As plaintiff Garfield Davis himself testified, "I went down there to sign the deed and get the money I felt was due under the lease." It is evident from the conduct of the parties here that they intended to incorporate the option to purchase in their August agreement to extend the lease. We so hold.
Plaintiffs' next assignment of error, and the hub of the controversy here, relates to the computation of the amount due on the purchase price. The trial judge instructed the jury to determine the amount due by deducting from the purchase price "any monthly sums paid to the plaintiffs by the defendant during the entire period of the lease." Plaintiffs contend that the August agreement was a new and distinct lease and that only the rental sums paid subsequent to 13 August 1974 should be applied against the purchase price. In the alternative, plaintiffs argue that only those sums paid subsequent to 31 January 1974 should be set off against the purchase price.
Defendants argue that the August agreement operated to extend the original agreement in its entirety and consequently, the purchase price should be offset by all rental payments from 31 January 1972 until the time they exercised the option.
The parties to a lease may provide that the commencement of the lease term operate retrospectively. Milbourn v. Aska, 81 Ohio App. 79, 77 N.E.2d 619 (1946). The parties here provided explicitly that the term of the new lease would be from 31 January 1974 through 31 January 1976. The sole question remaining is whether this "term" is merely a continuation of the original lease term, or is in effect a new and distinct lease "term."
The original lease in this case provided for a leasehold estate for years. J. Webster, Real Estate Law in North Carolina § 65 (1971). Such an estate terminates upon the expiration of the term fixed by the lease. Id. § 77. Thus, the term of the original lease ended on 31 January 1974, and the option was not exercised while the original lease was in effect. See Product Co. v. Dunn, 142 N.C. 471, 55 S.E. 299 (1906). The parties specifically agreed that "[t]he term of [the new] lease shall be from Jan. 31, 1974 through Jan. 31, 1976." The latter handwritten agreement created a new estate for years which was separate and distinct from the previous one. We therefore hold that the August agreement was, in effect, a new lease, and that only those rental sums paid subsequent to 31 January 1974 are to be applied against the purchase price. See Gattavara v. Cascade Petroleum Co., 27 Wash.2d 263, 177 P.2d 894 (1947).
The decision of the Court of Appeals is affirmed in part, reversed in part and this case is remanded to that court with direction that it be returned to Catawba Superior Court for entry of judgment in accordance with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261873/ | 861 F. Supp. 870 (1994)
METRO PUBLISHING, LTD., Plaintiff,
v.
SAN JOSE MERCURY NEWS, INC., Defendant.
Civ. No. 91-20605.
United States District Court, N.D. California.
January 25, 1994.
*871 John I. Alioto and Margaret Mullin Weems, Alioto & Alioto, San Francisco, CA, for plaintiff.
Ina J. Risman, Edward P. Davis, Jr., Teresa M. Corbin, Pillsbury, Madison & Sutro, San Francisco, CA, for defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT; SCHEDULING SETTLEMENT CONFERENCE
SPENCER WILLIAMS, District Judge.
Plaintiff Metro Publishing, Ltd., (hereafter "Metro Publishing") produces a weekly tabloid *872 called Metro, containing movie and restaurant reviews, detailed listings of upcoming entertainment events, a free personal advertisement section with a telephone response system, and a limited number of news and feature stories. Since May 23, 1985, Metro has carried a weekly column called "Public Eye," focusing primarily on local political gossip and intrigue. Metro Publishing has attempted to register the words "Eye" and/or "Public Eye" as trademarks, but has not been able to do so.
On June 7, 1990, Defendant San Jose Mercury News (hereafter "the Mercury News") began publishing a weekly tabloid called eye. Like Metro, eye contains movie listings, film and restaurant reviews, information about upcoming entertainment events and a personal advertisement section.
On September 11, 1991, Metro Publishing filed a Complaint with this Court alleging (1) trade dress and trademark infringement in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), Complaint, ¶¶ 23-36; (2) monopolization and attempt to monopolize in violation of § 2 of the Sherman Act, 15 U.S.C. § 2, Complaint ¶¶ 37-45; (3) unfair competition in violation of California Business & Professions Code § 17200, Complaint ¶¶ 46-51; (4) unlawful dilution of a trademark in violation of California Business & Professions Code § 14330, Complaint ¶¶ 52-56; and (5) below-cost pricing in violation of California Business & Professions Code § 17043, Complaint ¶¶ 57-60.
On September 19, 1991, this Court denied Metro Publishing's application for a preliminary injunction prohibiting the Mercury News from publishing or distributing eye. The Court specifically found that Metro Publishing's chances of success on the merits were poor, since (1) it is unlikely that consumers will be confused by the alleged similarities between eye and Metro's trade dress, see E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992); Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 613 (9th Cir.1989) (plaintiff seeking to recover for trade dress infringement under § 43(a) of the Lanham Act must show that similarities in plaintiff's and defendant's product likely to confuse consumers); and (2) as a matter of law, the name of a newspaper column is not entitled to trademark protection.
The Ninth Circuit subsequently reversed, holding that "under appropriate circumstances" the title of a newspaper column may be entitled to trademark protection, and that this Court erred by holding to the contrary. Metro Publishing v. San Jose Mercury News, 987 F.2d 637, 641 (9th Cir.1993).
Metro Publishing subsequently filed a motion for reconsideration of this Court's preliminary injunction order in light of the Ninth Circuit's holding. This Court denied Metro Publishing's motion on the basis that (1) it had failed to demonstrate that the parties' shared use of the word "eye" was likely to confuse consumers, and hence it was unlikely that it would succeed on the merits of its trademark claim, see E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992) (plaintiff must prove likelihood of consumer confusion in actions for trademark infringement under the Lanham Act) and (2) Metro Publishing was guilty of unclean hands. See July 12, 1993, Order.
The Mercury News now moves for summary judgment on Metro Publishing's allegations of (1) trademark infringement, (2) trademark dilution, and (3) unfair competition inasmuch as that allegation involves trademark infringement or dilution.[1] In addition, Metro Publishing has filed a cross-motion for partial summary judgment on the issue of trademark validity. For the reasons stated below, the Mercury News' motion for partial summary judgment is GRANTED in its entirety, and Metro Publishing's cross-motion for partial summary judgment is DENIED.
LEGAL STANDARD
A party moving for summary judgment bears "the initial responsibility of informing the district court of the basis for its motion...." *873 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). To sustain this burden, the moving party must demonstrate that no genuine issue of material fact exists for trial. Id. at 322, 106 S. Ct. at 2552. However, the moving party is not required to negate those portions of the nonmoving party's claim on which the nonmoving party bears the burden of proof. Id.
Once the moving party demonstrates that there is no genuine issue of material fact, the nonmoving party must designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S. Ct. at 2553. The nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S. Ct. at 2552.
The adjudication of a summary judgment motion is not a "trial on affidavits." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). Credibility determinations and weighing of the evidence are solely jury functions. Id. at 255, 106 S. Ct. at 2513. Inferences drawn from underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 993, 8 L. Ed. 2d 176 (1962)).
However, there may be no genuine issue of material fact if "the evidence is of insufficient caliber or quantity to allow a rational finder of fact" to find for the nonmoving party. Anderson, 477 U.S. at 254, 106 S. Ct. at 2513. And in some circumstances the factual context may render the nonmoving party's claim implausible, and the nonmoving party must come forward with "more persuasive evidence" to support the claim "than would otherwise be necessary." Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356.
DISCUSSION
A. Trademark Infringement
In its Complaint, Metro Publishing alleges (1) that the words "Eye" and "Public Eye" are its trademarks and (2) the Mercury News infringed on its trademark by publishing the tabloid eye. Complaint, ¶¶ 30-36. The Court grants summary judgment in favor of the Mercury News on this claim for three reasons: (1) Metro Publishing has failed to raise a genuine issue of material fact as to the validity of its asserted trademark; (2) Metro Publishing has failed to raise a genuine issue of material fact as to whether consumers are likely to be confused by the parties' shared use of the word "eye;" and (3) Metro Publishing's action is barred by the doctrine of unclean hands.
1. Validity
A trademark is defined as "any word, name, symbol, or device, or any combination thereof ... used by a person ... to identify and distinguish his or her goods ... from those manufactured and sold by others and to indicate the source of the goods...." 15 U.S.C. § 1127. In this context, the "good" in question is not the "Public Eye" column, but rather Metro as a whole. See Ex parte Meredith Publishing Company, 109 U.S.P.Q. 426 (Comm'r Pat. & T.M.1956). Therefore, in order to prevail, Metro Publishing must prove that it has used its asserted mark to distinguish Metro from other publications moving in interstate commerce, not merely to distinguish the "Public Eye" column from other parts of its own publication. Id. To do this, Metro Publishing must show that it has "so advertised, promoted and advanced ... ["Public Eye" that] ... "readers have developed a conscious association between ... ["Public Eye"] and [Metro] and [Metro Publishing]." Id. Cases where readers associate the title of an article with the publication itself and its publisher are "the exception rather than the rule." Id.[2]
*874 Notwithstanding the fact that Metro Publishing has printed its "Public Eye" column for almost nine years, and has distributed Metro to many thousands of readers on a weekly basis, the only evidence of reader recognition that it has been able to muster after over two years of litigation is four short affidavits, one of which is based largely on unsubstantiated hearsay statements made by unnamed declarants. See Kouzes Decl.; Raso Decl.; D. Teifeld Decl.; Keith Decl.[3] The only rational conclusion which a jury could reach based on this evidence is that a negligible percentage of Metro's readers, for unknown reasons, associate the word "eye" with the Metro publication, though possibly not with Metro Publishing itself. Any assumptions that a jury might make regarding other readers would be pure speculation. This scant evidence of reader recognition would not support a jury verdict in favor of Metro Publishing. Accordingly, summary judgment is GRANTED in favor of the Mercury News on the issue of validity. See Anderson v. Liberty Lobby, 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986) (summary judgment granted in favor of the moving party where "the evidence is of insufficient caliber or quantity to allow a rational finder of fact" to find for the nonmoving party).
2. Likelihood of Consumer Confusion
In order to prevail on its trademark infringement claim, Metro Publishing must also prove that the Mercury News' use of its asserted trademark gives rise to a likelihood of confusion by the consuming public. Metro Pub., 987 F.2d at 640 (citing E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992)). "A likelihood of confusion exists when consumers `are likely to assume that a product or service is associated with a source other than its actual source because of similarities between the two sources' marks or marketing techniques.'" Id. (citations omitted). The Ninth Circuit has developed an eight-part test to assess likelihood of consumer confusion: (1) the "strength" of the trademark; (2) proximity or relatedness of the goods; (3) similarity of the sight, sound, and meaning of the marks; (4) evidence of actual confusion; (5) degree to which marketing channels converge; (6) type of goods and degree of care consumers are likely to exercise in purchasing them; (7) intent of the defendant in selecting the allegedly infringing mark; and (8) likelihood that the parties will expand their product lines. Id. (citing E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir. 1992)). Because each factor is not necessarily relevant to every case, this list functions as a guide and is neither exhaustive nor exclusive. Id. (citation omitted). In considering whether to grant summary judgment on the issue of consumer confusion, "the [district] court must [not] evaluate the marks ... in the abstract, but rather `in light of the way the marks are encountered in the marketplace and the circumstances surrounding the purchase' of the products involved." Sykes Laboratory, Inc. v. Kalvin, 610 F. Supp. 849, 860 (C.D.Cal.1985) (quoting Lindy Pen Co., Inc. v. Bic Pen Corp., 725 F.2d 1240, 1245 (9th Cir.1984), cert. denied, 469 U.S. 1188, 105 S. Ct. 955, 83 L. Ed. 2d 962 (1985)).
District courts have had no hesitation in granting summary judgment in favor of a defendant on the issue of consumer confusion where, based on the undisputed facts, the plaintiff has failed to present a genuine issue of material fact for trial. See, e.g., Sykes Laboratory, Inc. v. Kalvin, 610 F. Supp. 849, 860 (C.D.Cal.1985) ("Where ... [the relevant *875 facts] ... can be discerned from uncontested evidence presented through affidavits and exhibits, the [district] court can determine likelihood of confusion as a matter of law without need for trial."). Based on the following discussion of the eight-part test for consumer confusion used in the Ninth Circuit, there is no genuine issue of material fact as to the likelihood of consumer confusion in this case.
a. Strength of the Mark
"The strength or weakness of a mark is determined by its placement on a `continuum' of marks from `generic,' afforded no protection; through `descriptive' or `suggestive,' given moderate protection; to `arbitrary' or `fanciful,' awarded maximum protection." E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1291 (9th Cir.1992) (quoting Nutri/System, Inc. v. Con-Stan Industries, Inc., 809 F.2d 601, 605 (9th Cir.1987)). This Court has already determined that Metro Publishing's asserted mark is merely suggestive, see July 12, 1993, Order, at 5:24-27, and hence it does not merit the same degree of protection afforded strong marks under the Gallo-Nutri/System rubric.
Another court, when faced with a claim similar to Metro Publishing's, found that the mark "personal finance," when used as the title of a periodical, was weak. See National Inf. Corp. v. Kiplinger Wash. Editors, 771 F. Supp. 460, 463 (D.D.C.1991). It reasoned that "[t]he strength [or weakness] of a mark refers to its distinctiveness or its tendency to identify the goods sold under the mark as emanating from a certain source." Because the mark "personal finance" had been used in various newspaper columns and sections, radio programs, books, and by a credit card company, it was too common to be associated with a particular periodical. National Information, 771 F.Supp. at 463; accord Gruner & JAHR USA Pub. v. Meredith Corp., 793 F. Supp. 1222, 1231 (S.D.N.Y.1992), aff'd, 991 F.2d 1072 (2d Cir.1993) (mark "parents" extremely weak due to extensive third-party use); Andy Warhol Enterprises, Inc. v. Time Inc., 700 F. Supp. 760, 764 (S.D.N.Y.1988) (third-party use of the alleged mark relevant to likelihood of consumer confusion).
The court's reasoning in National Information is applicable and persuasive in the case at bar. The word "eye" appears in several media contexts. For example, CBS uses a stylized eye logo and airs programs entitled "Eye on L.A.," the "Eyewitness News" in Los Angeles, and the nationally broadcast "Eye on America" evening news segment. In addition, the Mercury News has submitted a list of 188 instances where the word "eye" is used in the title of a newspaper or periodical, or in an interior column of a newspaper or periodical. Second Warren Decl., ¶¶ 2-3 and Exh. A; see also First Warren Decl. Finally, Metro Publishing admits that there are 114 federal registrations, 66 state registrations and 174 common law uses of the word "eye" in the print media and communications field.
Due to the commonness of the word "eye," it is unlikely that an individual consumer, when asked to tell what product source he or she associated with the word "eye," would answer "Metro Publishing." Furthermore, should Metro Publishing be given the degree of trademark protection afforded stronger marks, such as "Oldsmobile" or "Big Mac," it would essentially corner the market on the use of the everyday word "eye." Such a result would not only be counterintuitive, but it would also diminish economic competition by turning the word "eye," which is susceptible to many creative marketing uses, into forbidden fruit. Finally, it is worth noting that such a precedent would be rather damaging to Metro Publishing itself, as it might open the way for a lawsuit against them by the many businesses that began using the very common word "metro" long before Metro Publishing came into existence.
For the reasons stated above, even if Metro Publishing had a valid trademark interest in the word "eye," it would, at best, receive only the moderate degree of protection afforded weak marks.
b. The Meaning and Visual Depiction of the Mark
The parties use the word "eye" to convey a different meaning. The Mercury News uses it as the title of its tabloid. Metro Publishing uses it as a nickname for its Public Eye *876 column, and as a personification of the article's "voice." Accordingly, consumer confusion is unlikely. See Andy Warhol Enterprises, Inc. v. Time Inc., 700 F. Supp. 760, 765 (S.D.N.Y.1988) (holding that plaintiff's use of the word "interview" as the title of its publication and defendant's use of the word as a section heading were not likely to confuse consumers).[4]
The parties also visually display the word "eye" differently. The Mercury News prints it in lower-case, three-inch letters in the upper left corner of the cover of its tabloid in a special typeface which it developed. The words "San Jose Mercury News" are printed directly above the word "eye." See National Inf. Corp. v. Kiplinger Wash. Editors, 771 F. Supp. 460, 463 (D.D.C.1991) (consumers not likely to be confused where defendant's widely-recognized name is part of the title); Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F. Supp. 551, 557 (N.D.Ill.1984) (granting summary judgment in favor of defendant where defendant's name appeared on the allegedly infringing goods). Metro Publishing has never printed the word "eye" in Metro's title block, in three-inch letters, or, prior to May 9, 1991, with a lower-case "e" or in the characteristic typeface used by the Mercury News. See Gruner & JAHR USA Pub. v. Meredith Corp., 793 F. Supp. 1222, 1231-32 (S.D.N.Y.1992), aff'd, 991 F.2d 1072 (2d Cir.1993) (consumer confusion unlikely given differences in size, layout and capitalization of the marks and use of special typeface). In fact, although the evidence is disputed, there is no indication that the word "eye" appeared on the cover of Metro more than 20 times between May 23, 1985, and May 9, 1991. Of those instances, it appeared without the word "public" only four times: (1) on the May 5-11, 1988, issue, printed across the top in fairly small print: "Eye Looks at the Boss, the Champ and the Kid (p. 5);" (2) on the July 21-27, 1988, printed in small text in the upper right corner: "Eye Investigates Bohemian Grove Prostitution Reports (p. 6);" (3) on the April 25-May 1, 1991, issue, in the lower left corner: "Eye Spies: Public Eye blows the lid on two secret agendas: a contemplated light rail line switcheroo and the move afoot to extend Redevelopment well into the next century (p. 14);" and (4) on the May 2-9, 1991, issue, in the upper right corner: "`Eye' Tries [printed in large text] The Merc gears up its desperate bid to clone Metro (p. 8)." Bettinger Decl., Exh. A; Alioto Decl., Exhs. 21, 22, 30. In every instance except the last, Metro Publishing used the word "eye" to refer to the "Public Eye" column.
After May 9, 1991, Metro Publishing began using the word "eye" quite differently on its covers. The following testimony by Dan Pulcrano, a founding partner of Metro Publishing, explains this change: "In May 1991, I used the word "eye" on the cover of Metro in the style I suspected the Mercury News might use." Pulcrano Decl. ¶ 2, Alioto Decl., Exh. 31. Due to Pulcrano's decision, Metro Publishing printed the word "eye" on the covers of the following issues of Metro in large letters, with a lower case "e," in the typeface created by the Mercury News: (1) in the upper right corner of the May 9-15, 1991, issue: "Exclusively in Metro THE ORIGINAL eye Accept No Substitutes (p. 12);" (2) on the middle left side of the May 16-22, issue: "In This Week's eye: BONDAMANIA! The Redevelopment Agency quietly finds another $275 million to spend (p. 10);" and (3) in the upper right area of the May 23-29, 1991, issue: "eye On Redistricting[:] Power brokers quietly redraw county's political map and fall strangely silent when Eye pays a visit (p. 10)." Bettinger Decl., *877 Exh. A; Plaintiff's Amended Statement of Undisputed Facts No. 27 (admitting as undisputed that "[o]n the Metro covers of the May 9-15, 1991, May 16-22, 1991, and May 23-29, 1991, issues, after it had learned of the Mercury News' planned publication, Metro [Publishing], for the first time in the history of the "Public Eye" column, used the word "eye" in all lowercase letters in a typeface identical to the Mercury News' planned eye logo."). Metro Publishing also printed the word "eye" on the cover of Metro in the Mercury News' special typeface on September 5, 1991, six days before this lawsuit was filed. Davis Decl., Exh. B, filed Sept. 18, 1991.
Based on the evidence presented by Metro Publishing, there was little or no visual similarity between Metro Publishing's use of the word "eye" on the cover of Metro prior to May 9, 1991, and the Mercury News' subsequent use of the word on the cover of eye. Only after May 9, 1991, when Pulcrano decided to imitate the Mercury News' visual presentation of eye's title, did the two tabloids' use of the word "eye" become visually similar. Any consumer confusion that resulted from Pulcrano's decision is his fault, and the Mercury News should not be held accountable for it.
Furthermore, the limited visual similarities between Metro and eye, when considered as a whole, can easily be attributed to the fact that they, along with other Bay Area tabloids, are both members of the same industry and genre. See Mitchells Decl., Exhs. 11-14 (containing copies of SF Weekly, the San Francisco Bay Guardian, San Francisco Downtown and Pacific Sun). The Mercury News should not be held accountable for similarities which are largely, if not completely, the result of industry standards.[5]
c. Similarity in Marketing Channels
It is true that both eye and Metro are distributed free of charge through freestanding newspaper racks placed in similar locations throughout Santa Clara County. However, the racks used by each party are quite different in color, and clearly describe their contents. Metro's racks are bright red, with the words "Metro," and "Santa Clara Valley's Weekly Newspaper" printed vertically in large white letters down the side. The words "eye" or "public eye" do not appear anywhere on the racks. The eye news racks are dark blue, and have the word "eye" and the San Jose Mercury News logo painted on them in large white letters. See Bettinger Decl., Exh. C (containing black and white photos of the news racks used by eye and Metro). Furthermore, although the exact numbers are disputed, many editions of eye are distributed as inserts in the Friday edition of the San Jose Mercury News.
In short, the similarities between the marketing channels of eye and Metro are no more similar than the marketing channels of any two newspapers serving the same metropolitan area. It is rather foolish that two periodicals should be considered to infringe on each other merely because they use distribution channels which are common in their industry.
d. Care Used by Consumers in Acquiring the Product
Metro Publishing contends that because the two publications are free and are distributed in public places, consumers will not exercise much care in acquiring them, and hence confuse them. The Court rejects Metro Publishing's argument. Any consumer who even bothers to glance at the title block of the tabloid in question will immediately be able to see whether it says eye or Metro. Both titles appear in very large print.
Furthermore, perhaps the most important consumers, advertisers, will certainly exercise a great deal of care to determine what publication they are advertising in. See Gruner & JAHR USA Pub., 793 F. Supp. 1222, 1229 (S.D.N.Y.1992), aff'd, 991 F.2d 1072 (2d Cir.1993) ("It is unthinkable that any advertiser would invest a significant amount of money in purchasing space in a *878 magazine without satisfying itself as to the identity of the publisher.")
e. Evidence of Actual Consumer Confusion
Metro Publishing has submitted several declarations which it asserts provide evidence of actual consumer confusion due to the parties' shared use of the word "eye." The Court finds that this evidence is inadequate to raise a genuine issue for several reasons. First, many of the witnesses do not state whether they were confused due to the Mercury News' use of the word "eye," or merely by the similar visual, editorial and marketing traits which Metro and eye share as members of the same genre. See M. Teifeld Decl.; H. Teifeld Decl.; Rodriguez Decl.; Gaetano Decl.; Smith Decl.; Lambert Decl.; Bernardini Decl.
Second, many of Metro Publishing's declarations are merely statements by Metro Publishing employees that third parties told them that they had confused eye and Metro. See Pulcrano Decl., filed Sept. 18, 1991; Hanson Decl.; Cohen Decl., filed Sept. 18, 1991; Second Cohen Decl., filed May 5, 1993; Thomas Decl.; Lopez Decl. At least one court has rejected such evidence and granted summary judgment. See Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F. Supp. 551, 558 (N.D.Ill.1984) (citation omitted) ("hearsay reports with respect to the likelihood of confusion, especially those originating with employees of the plaintiff, are incompetent as evidence."). Also, there is no indication in most of these declarations as to why the third parties were confused.
Finally, regarding the declarations which actually do suggest that the parties shared use of the word "eye" caused confusion, see Keith Decl. (based on hearsay reports of third parties), Kouzes Decl., D. Teifeld Decl., Raso Decl., another district court has held that "evidence of `actual confusion' is only one of many factors to be considered by the court in determining the validity of a trademark claim, and a minor dispute as to this one factor cannot defeat a motion for summary judgment where the court finds, on the basis of uncontroverted facts and upon examination of all of the relevant factors, that no `confusion, mistake or deception arising in the market' is likely." Programmed Tax Systems, Inc. v. Raytheon Co., 439 F. Supp. 1128, 1132 (S.D.N.Y.1977) (granting summary judgment in favor of defendant); see also Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F. Supp. 551, 558 (N.D.Ill.1984) (citations omitted) ("isolated or minor instances of actual confusion do not support a finding of likelihood of confusion"). In light of the overwhelming evidence that the similarities between the parties use of the word "eye" are not likely to confuse consumers, Metro Publishing's paltry evidence of actual confusion is inadequate to raise a triable issue.
f. Proximity and Relatedness
This Court has already determined that the tabloid eye and the Metro article "Public Eye" are neither "competitive" nor "related" goods. See July 12, 1993, Order at 11:7, 1993 WL 266786; AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir.1979). In reaching this holding, the Court noted that Metro Publishing's argument to the contrary "seems to confuse the relatedness of the Metro publication and the "eye" publication with the relatedness of the "Public Eye" column with the "eye" publication." July 12, 1993, Order, 11:7-9. Having drawn this distinction, the Court found that the "Public Eye" column and the eye tabloid were not related goods because: (1) the contents of the tabloid eye and the contents of the article "Public Eye" are entirely different there is no indication that eye carries political editorials as a prominent feature, or that it has ever carried even one such article, and there is no doubt that a list of what movies were playing at the local theater would have no place in the "Public Eye" column; (2) the tabloid eye and the article "Public Eye" have a different editorial focus, the former seeking to present general entertainment news and commentary, the latter seeking to present information and editorial commentary on local political intrigue and other local gossip; and (3) because of the differences in their content, they also have a different target audience.
g. Intent of the Defendant in Selecting the Allegedly Infringing Mark
Metro Publishing vigorously contends that the Mercury News' decision to name its publication *879 eye was the result of an intentional scheme to eliminate Metro Publishing as a competitor. Their account of the events leading up to the Mercury News' decision to use the name eye are as follows: Metro Publishing began running the "Public Eye" column on May 23, 1985. It chose the name "Public Eye" because it would be associated in the reader's mind with "people in the limelight" and because it sounded like "private eye, private investigator." As early as August 29, 1985, the Public Eye column began referring to itself by the nickname "Eye."
On January 30, 1985, before the first issue of Metro had been published, a Mercury News employee, Bob Williams, sent a memo to Dean Bartee, the Mercury News' Senior Vice President of Sales and Marketing, suggesting that the Mercury News change its "This Weekend" section in order to "beat down the challenge" presented by Metro. Weems Decl., Exh. 18. A similar memo was sent on February 25, 1985. Weems Decl., Exh. 19. On April 29, 1985, however, the Mercury News concluded that it would lose substantial advertising revenue if it converted its Friday entertainment section to a tabloid. Weems Decl., Exh. 25.
In January 1990, the Mercury News' Deputy Managing Editor, David Yarnold, commissioned the consulting firm of Booz-Allen & Hamilton to prepare a growth strategy report for the Mercury News. Weems Decl., Exh. 28. The report indicated that the Mercury News revenues probably would not increase unless changes were made, and recommended "focused selling strategies against Metro." Id. After a series of discussions among top Mercury News officials, the proposal to convert the Mercury News' entertainment section to a tabloid was approved and slated for launch June 7[, 1991]. Weems Decl., Exh. 48.
Mercury News employees were invited to suggest names for the new tabloid. Seefeldt Depo. at 15:21-16:14, Alioto Decl., Exh. 12. The employee who submitted the winning name would win $50. Seefeldt Depo. at 27:13-20, Alioto Decl., Exh. 12.
Holly Hayes, the Deputy Features Editor, submitted the name "eye." Hayes Depo., 37:11, Alioto Decl., Exh. 5. She testified that she arrived at the name after a somewhat risque discussion about body parts. Hayes Depo., 36:11-37:12, Alioto Decl., Exh. 5. Hayes also testified that she was familiar with Metro, that she may have read its "Public Eye" column, but that she "didn't track on it being called ["Public Eye"]," and that her recommendation that the Mercury News' new tabloid be named "eye" had nothing to do with Metro's "Public Eye" column. Hayes Depo., 37:13-38:8, Alioto Decl., Exh 5.
There is some confusion as to how the selection process proceeded from this point. According to Robert D. Ingle, his assistant, Helen Seefeldt, compiled a list of all the names which the employees had suggested. Ingle Depo. 439:2-440:13, Alioto Decl., Exh. 7. The list contained a large number of names, and the Mercury News employees were instructed to vote for their five favorite ones, ranked 1-5 in order of preference. Mercury News officials then selected several names from the list based in part on the results of the vote and discussed them during a meeting. The names "eye" and "Weekend" emerged as the "clear-cut choice[s]." After the meeting, Ingle decided that "Weekend" simply did not have enough of a of an attitude about it to be the name and [the Mercury News was] going to call [its tabloid] "eye." Ingle Depo., 439:2-472:3, Alioto Decl., Exh. 7.
Based on the evidence presented by Metro Publishing, it is fairly clear that the Mercury News expended a fair amount of effort in devising its marketing strategy and launching its tabloid, and that its decision to do so was motivated at least in part by a desire to compete with Metro Publishing. However, there is no evidence showing that the Mercury News named its tabloid eye in order to confuse consumers and cause them to believe that it was produced by Metro Publishing. By arguing to the contrary, Metro Publishing is asking this Court to make speculative assumptions that are not warranted on the evidence. Although the Court must draw all reasonable inferences in favor of Metro Publishing, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. *880 654, 655, 82 S. Ct. 993, 993, 8 L. Ed. 2d 176 (1962)), the reasoning in which Metro Publishing would have the Court engage goes beyond reasonable inference.
h. Likelihood of Expansion
Metro Publishing has offered no evidence that the Mercury News plans to expand eye or change its format in a way that would likely confuse consumers regarding its use of the word "eye."
i. Conclusion
For the reasons stated above, there is no genuine issue of material fact as to the issue of consumer confusion. Accordingly, summary judgment is GRANTED in favor of the Mercury News on that issue.
3. Unclean Hands
In its July 12, 1993, Order Denying Plaintiff's Motion for Preliminary Injunction Upon Reconsideration, this Court found that Metro Publishing's decision to imitate the Mercury News' use of the word "eye," discussed in section 2(b) of this Order, "was a deliberate attempt to create confusion in the marketplace.... [which] may have created confusion where none would have existed [otherwise]," and, accordingly, that Metro Publishing was guilty of unclean hands. July 12, 1993, Order, at 13:2-5. Several courts have applied the equitable doctrine of unclean hands to bar actions for legal damages. See Supermarket of Homes v. San Fernando Valley Bd., 786 F.2d 1400, 1408 (9th Cir.1986) (legal action for copyright infringement may be barred by unclean hands where copyright holder misuses copyright); Tempo Music, Inc. v. Myers, 407 F.2d 503, 507 & n. 8 (4th Cir.1969) (where alleged infringer sought copyright holder's assistance to avoid infringing copyright, holder's failure to assist barred legal recovery due to unclean hands); Buchanan Home & Auto Supply v. Firestone Tire, 544 F. Supp. 242, 245 (D.S.C.1981) (footnotes omitted) ("Court opinions and commentaries since the procedural merger of law and equity in 1938 have expressed the view that the clean hands doctrine embodies a general principle equally applicable to damage actions, and that rights not suited for protection in equity should not be protected at law."); McCormick v. Cohn, 1992 U.S.Dist. LEXIS 21187 (S.D.Cal.) (action for damages due to copyright infringement, trademark infringement and unfair competition barred by unclean hands). Despite the fact that Pulcrano has subsequently testified that he did not have the specific intent to confuse the public, see Pulcrano Decl. ¶ 2, Alioto Decl., Exh. 31, it is undisputable that as soon as he learned of the Mercury News' plan to name its tabloid eye, he attempted to create a link between "Public Eye" and eye and capitalize on it. The reference to "Public Eye" as the "Original eye" on the cover of the May 9, 1991, issue of Metro, with the word "eye" printed in large letters in the Mercury News' special typeface, is a prime example. To allow Metro Publishing to create and exploit this link and then subsequently allow it to sue the Mercury News for damages because of it is completely inconsistent with traditional notions of equity and fairness. Accordingly, summary judgment in favor of the Mercury News is warranted on this basis alone.
4. Conclusion
Each of the three grounds discussed above, standing alone, warrants summary judgment. Accordingly, the Court GRANTS the Mercury News' motion for summary judgment as to Metro Publishing's trademark infringement claim.
B. Trademark Dilution
In its Complaint, Metro Publishing alleges that the Mercury News' publication of eye diluted its alleged trademark in the words "Eye" and "Public Eye" in violation of California Business & Professions Code § 14330.[6] The Mercury News contends that it is entitled to summary judgment on this *881 claim because Metro Publishing's alleged mark is not distinctive or sufficiently wellknown to qualify for protection under the antidilution statute. The only effort which Metro Publishing has expended in addressing the Mercury News' contention or sustaining its burden of showing that there are "specific facts showing that there is a genuine issue for trial," see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324, 106 S. Ct. 2548, 2552, 2553, 91 L. Ed. 2d 265 (1986), is its closing remark that "[t]he material facts underlying the determination of the other causes of action under which defendant moves overlap substantially, or are the same as, those for trademark infringement." (Corrected) Opp. at 28:9-11. Because there is little doubt that summary judgment in favor of the Mercury News on this claim is warranted given the undisputed facts, the Court need not spend much more effort on this matter the Metro Publishing has.
The Ninth Circuit has made it clear that the protection afforded by California's antidilution statute extends only to highly distinctive, well-known marks. See Accuride Intern., Inc. v. Accuride Corp., 871 F.2d 1531, 1539 (9th Cir.1989); Toho Co. v. Sears, Roebuck & Co., 645 F.2d 788, 793 (9th Cir. 1981); see also Sykes Laboratory, Inc. v. Kalvin, 610 F. Supp. 849, 858 (C.D.Cal.1985) ("[t]he dilution doctrine is only available to protect distinctive marks as exemplified by such famous names as `Tiffany,' `Polaroid,' `Rolls Royce,' and `Kodak.'"). Metro Publishing's alleged "eye" mark is by no means as distinctive as the words "Polaroid" or "Kodak." Even if Metro Publishing had chosen to directly address this claim, it strains the intellect to imagine how it might have convinced the Court otherwise. Furthermore, if Metro Publishing were to prevail on this claim, the use of the innocuous, everyday word "eye" by others would become forbidden. Such a result would make little sense. Accord Fruit of the Loom, Inc. v. Girouard, 994 F.2d 1359, 1365-66 (9th Cir.1993) (holding that Fruit of the Loom, Inc.'s attempt to sue under the antidilution statute for use of the word "fruit" would cause "[t]he humble, humdrum word FRUIT [to be] barred from use by the Fruit Basket, The Fruit Gallery, the Fruit King, to name only three businesses currently listed in the San Francisco telephone directory. [Plaintiff] would sweep clean the many business uses of this quotidian word.").
Accordingly, the Court GRANTS the Mercury News' motion for summary judgment on Metro Publishing's trademark dilution claim.
C. Unfair Competition as it Relates to Trademark Infringement and Dilution
Because the Court grants summary judgment in favor of the Mercury News on Metro Publishing's trademark infringement and dilution claims, it also GRANTS summary judgment in favor of the Mercury News on Metro Publishing's unfair competition claim under California Business & Professions Code § 17200, inasmuch as that claim is based on trademark infringement and dilution.
CONCLUSION
Having carefully considered the relevant facts and law, the materials submitted by the parties, and the arguments of counsel, the Court hereby GRANTS the Mercury News' motion for partial summary judgment and DENIES Metro Publishing's cross-motion for partial summary judgment.
NOTES
[1] The Mercury News' motion also addresses Metro Publishing's trade dress claim. However, Metro Publishing withdrew this claim shortly after the Mercury News filed its motion. See Metro Publishing's Reply, filed August 31, 1993, at 21:9.
[2] It became apparent during oral argument that Metro Publishing did not understand the Ninth Circuit's holding in Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637, 641 (9th Cir. 1993). Accordingly, this Court provides the following summary: In its opinion, the Ninth Circuit held that (1) "under appropriate circumstances," the title of a newspaper article may be entitled to trademark protection; (2) such protection may exist even though the title has not been registered as a trademark; and (3) this Court had erred in its July 12, 1993, Order, when it held as a matter of law that the titles of newspaper articles are never entitled to trademark protection.
The Ninth Circuit did not hold that Metro Publishing's asserted "Public Eye" or "Eye" marks were entitled to trademark protection. Accordingly, Metro Publishing still bears the burden of proving that it has a valid, protectable proprietary interest in its asserted marks.
[3] It is worth noting that this Court has already informed Metro Publishing that these affidavits, each of which was filed on September 18, 1991, were not sufficient to establish a "likelihood of success" in proving validity. See July 12, 1993, Order at 8:23-9:2. However, notwithstanding the fact that Metro Publishing has conducted extensive discovery in this case since July 12, 1993, it has failed to offer any supplemental evidence of reader recognition.
[4] Metro Publishing asserts that Metro itself is known by the nickname "eye" among consumers. See (Corrected) Opp. at 24:22. However, it has offered only one consumer affidavit which even remotely supports this assertion. See Keith Decl. This affidavit is rather vague and is based primarily on hearsay.
The only other evidence which Metro Publishing has cited to this Court which comes near to supporting its assertion is the deposition of Dan Pulcrano, a founding partner of Metro Publishing, in which he testifies that the word "eye" has become synonymous with Metro "in his mind." Pulcrano Depo. 346:15-17, Alioto Decl., Exh. 11. However, the things which may or may not be going on in Mr. Pulcrano's mind are of little concern to this Court. This Court's task in deciding this motion is to determine whether consumers are likely to be confused by the parties' use of the word "eye," not to delve into the subjective impressions and word associations of one of the parties' founders.
[5] Metro Publishing asserts that the overall similarities between Metro and eye are not the result of the industry standard. See Plaintiff's Amended Statement of Genuine Issues in Opposition to Motion for Partial Summary Judgment, No. 22. However, the examples of other tabloids presented by the Mercury News belies this assertion.
[6] California Business & Professions Code § 14330 provides as follows:
Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark registered under this chapter, or a mark valid at common law, or a trade name valid at common law, shall be a ground for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261879/ | 861 F. Supp. 1570 (1994)
UNITED FOOD & COMMERCIAL WORKERS UNION LOCAL 442, et al., Plaintiffs,
v.
CITY OF VALDOSTA, et al., Defendants.
Civ. A. No. 93-43-VAL (WDO).
United States District Court, M.D. Georgia, Valdosta Division.
August 29, 1994.
*1571 *1572 *1573 James Danly Fagann, Jr., Marcia Weil Borowski, Atlanta, GA, for plaintiffs.
Cubbedge Snow, Jr., Jay Clifford Traynham, Macon, GA, George T. Talley, William A. Turner, Jr., Valdosta, GA, for City of Valdosta and Charlie R. Spray.
E. Scott Smith, Michael J. Minerva, Atlanta, GA, for Publix Supermarkets, Inc.
ORDER
OWENS, Chief Judge.
On May 11, 1993, Locals 442 and 1063 of the United Food and Commercial Workers Union brought suit against the City of Valdosta, Georgia, Valdosta Chief of Police Charlie R. Spray, and Publix Supermarkets, Inc., under 42 U.S.C. § 1983, challenging the constitutionality of Chapter 2, Article B of the Valdosta City Code. The parties have agreed that the court may decide the issue of the facial constitutionality of the challenged code sections on the record before the court and without an evidentiary hearing.
FACTS
On December 3, 1992, members of Local 442 and Local 1063 of the United Food & Commercial Workers Union ("Union") began picketing in front of the Publix Supermarket located in Valdosta, Georgia. The Valdosta Publix Supermarket is located in the Valdosta Mall shopping center. Shortly after the picketing started, several police officers arrived and told the demonstrators that they were trespassing on private property and would have to leave. The demonstrators left the front of the Publix Supermarket and relocated to public areas near the entrances to the shopping center. The Valdosta Mall shopping center has seven public shopping center entrances. The officers then informed the demonstrators that pursuant to Chapter 2, Article B of the Valdosta City Code, a permit was required to demonstrate on public property. Fearing arrest, the demonstrators ceased picketing. However, later that day, two officials of the Union met with Valdosta Police Chief Charlie R. Spray and acquired the appropriate permits.
On December 4, 1992, the demonstrators returned to the shopping center entrance to resume picketing. However, pursuant to the permit granted by Chief Spray, the demonstrators were limited to two of the seven entrances to the shopping center.
On May 11, 1993, the Union brought suit against the City of Valdosta, Chief Spray, and Publix Supermarkets, Inc., under 42 U.S.C. § 1983, challenging the constitutionality of Chapter 2, Article B of the Valdosta City Code.
Chapter 2, Article B of the Valdosta City Code provides:
"Section 7-2011. Purpose.
"The city has a duty to prevent violence, maintain order and protect the right of persons and property to move upon public streets, roads, sidewalks, alleys, and all other places subject to a public easement of travel; to provide an environment conducive to the effective administration of justice and other essential governmental functions, the transaction of public and private business; and to promote the right of all persons to be free from substantial invasions of their privacy in an essentially intolerable manner. This duty is limited by the fundamental right of every person to express his opinions, disseminate information and opinion, to peaceably assemble, and to petition government for redress of grievances as guaranteed by the First and Fourteenth Amendments to the United States Constitution. The purpose of this article is to promote the discharge of these duties while preserving the fundamental freedoms enumerated.
"Section 7-2012. Definitionss.
"For purposes of this article the following terms shall have the described meanings:
"(1) Block shall mean that portion of any street or sidewalk that falls between its intersections with two (2) other streets.
"(2) Person shall mean any natural human being, artificial legal being, or any combination of natural and/or artificial beings whether formal or informal, public or private.
*1574 "(3) Handbilling shall mean the activity of a person or persons in a place open and accessible to the general public, distributing any circulars, handbills, advertising or other printed, written or symbolic matter on any subject and for any purpose.
"(4) Soliciting shall mean the activity of a person or persons in a place open and accessible to the general public who by spoken language directed to persons in the vicinity attempt to disseminate facts or opinions regarding any subject with intent to induce a specific response from any listener.
"(5) Picketing shall mean either the act of (i) patrolling a particular geographic area by one or more persons as an expression of a point of view with respect to any subject of actual or potential dispute for the purpose of publicizing that viewpoint and with the further purpose of inducing a specific response from persons actually found or likely to be found in the locality, or of (ii) handbilling or soliciting by four (4) or more persons in furtherance of a common purpose within a single block or one hundred (100) feet or less of one another, whichever is the shorter distance.
"(6) Picket shall mean any person who is engaged in the act of picketing.
"(7) Mass picketing shall mean picketing by a sufficient number of pickets in a manner that effectively prevents other persons with a right to be in the vicinity of the picketing from exercising their right to utilize the area, or facilities therein, for the purposes to which it has been dedicated either by physical domination of the area or by threats, intimidation or coercion actually arousing or having a tendency to arouse a fear of bodily harm with respect to any person who does not comply with the wishes of the pickets; provided, however, that the congregation of three (3) or more pickets for a common cause at the same location, in the presence of other persons not pickets within a distance of fifteen (15) feet or less of one another shall be presumed to be mass picketing unless the contrary is shown by clear evidence.
"(8) Public assembly shall mean a gathering of more than eight (8) persons for a common purpose in a place open to the general public as a result of prior planning or a spontaneous gathering for a common purpose in a place open to the general public that continues in existence for more than thirty (30) minutes.
"(9) Parade shall mean a coordinated movement of two (2) or more pedestrians or vehicles upon the streets, parks or other public grounds within the city with an intent of attracting public attention that interferes with or has a tendency to interfere with the normal flow or regulation of traffic upon the street, park or other public ground; provided, however, that "parade" shall not be construed to include picketing within a limited geographic area.
"(10) Procession shall mean a public assembly that moves as a unit on the streets, sidewalks, parks, or other public grounds or places within the city for the dominant purpose of moving the location of the assembly from its point of origin to a predetermined destination.
"(11) Public park shall mean any land area within the city, owned by the city, predominantly open to the elements, open and freely accessible to the general public, and primarily dedicated to providing a public place to relax, meet, socialize, eat and drink, and/or engage in recreational activities or other pleasurable pursuits.
"(12) Fighting words are words which are not protected as speech by the First Amendment to the United States Constitution, are not in an reasonable sense communication of information or opinion, and are generally epithets or personal verbal abuse directed towards another person in his presence that by their very utterance inflict injury or tend to incite an immediate breach of the peace; fighting words frequently include threatening, profane or obscene revilings, mass name-calling (that is, concerted or coordinated name-calling by two (2) or more persons with intent to annoy, ridicule, insult or provoke a violent reaction) and will not ordinarily include derisive or annoying words except when these have the characteristic of plainly tending to incite the addressee to commit an immediate breach of the peace; in every case the circumstances of the utterance control *1575 whether particular words fall within this definition.
"Section 7-2013. Limitations on the right to handbill and solicit.
"(a) Handbilling or soliciting in the streets, alleys, roads, highways, driveways or other places predominantly dedicated to the use of vehicular traffic is prohibited.
"(b) The blocking of the path of any pedestrian or vehicle by an handbiller or solicitor with intent to compel such pedestrian or vehicle to halt its movement for the purpose of rendering such pedestrian or vehicle a captive audience for the solicitations of the picket or to compel the acceptance of any leaflet or handout in return for passage is prohibited.
"(c) The making by a handbiller or solicitor of any threat of bodily harm or property damage to any person whether directed to such person or said with respect to some other person bearing a close relationship to such person or the use of any fighting words by a handbiller or solicitor is prohibited.
"(d) Handbilling or soliciting in a manner that interferes with or is likely to interfere with another person's performance of the duties of his employment is prohibited.
"(e) The possession by any handbiller or solicitor of any object or instrumentality with an apparent potential to cause physical injury to persons or damage to property is prohibited: objects and instrumentalities encompassed by this prohibition include, but not to the exclusion of others not herein enumerated, walking or hiking sticks, canes, clubs, knives, firearms, brass knuckles, slingshots, zip guns, pellet guns, rocks, glass bottles, stones and bricks, or any other potential missile or club, tear gas, mace, or any other chemical projectile, any incendiary, stench, coloring or drying chemical or vicious animal.
"(f) No person shall handbill or solicit in violation of any of the foregoing prohibitions.
"Section 7-2014. Limitations on the right to picket.
"(a) Mass picketing is prohibited as an unlawful infringement upon the public right to travel freely on public streets, sidewalks, parks and grounds without fear of personal bodily harm or coercive or intimidating persuasion.
"(b) Picketing in streets, alleys, roads, highways, driveways or other places predominantly dedicated to the use of vehicular traffic is prohibited.
"(c) The blocking of the path of any pedestrian or vehicle by any picket with intent to compel such pedestrian or vehicle to halt its movement for the purpose of rendering such pedestrian or vehicle a captive audience for the solicitations of the picket or to compel the acceptance of any leaflet or handout in return for passage is prohibited.
"(d) The making by a picket of any threat of bodily harm or property damage to any person whether directed to such person or said with respect to some other person bearing a close relationship to such person or the use of any fighting words by a picket is prohibited.
"(e) The picketing of any private home, residence or domicile is prohibited as an unlawful infringement on the right of privacy and the right to be free from fear and intimidation.
"(f) Picketing in a manner that interferes with or is likely to interfere with another person's performance of the duties of his employment is prohibited.
"(g) The possession by any picket of any object or instrumentality with an apparent potential to cause physical injury to persons or damage to property is prohibited: objects and instrumentalities encompassed by this prohibition include, but not to the exclusion of others not herein enumerated, walking or hiking sticks, canes, clubs, knives, firearms, brass knuckles, slingshots, zip guns, pellet guns, rocks, glass bottles, stones and bricks, or any other potential missile or club, tear gas, mace, or any other chemical projectile, any incendiary, stench, coloring or drying chemical or vicious animal.
"(h) No person shall picket in violation of any of the foregoing prohibitions.
"Section 7-2015. Limitations of the right to assemble.
"The public parks of the City are hereby declared to be public forums dedicated to, *1576 among other purposes, the dissemination of information and opinion protected by the First Amendment to the United States Constitution, or other protected expressive conduct in furtherance of which purpose said parks may be used for public gatherings and assemblies; all other public and quasi-public places in the City are declared to be off-limits to public assemblies except those held on private property with the consent of the owner or on public property incident to open meetings of governmental bodies or agencies: provided, however, that any public assembly that conducts itself in a fashion as will establish a purpose or likelihood of causing or encouraging imminent violence, or a purpose of intimidation or coercion directed at any person or person, thereby becomes unlawful; and provided further that the following additional limitations shall apply:
"(1) The right to assemble is restricted by the prohibitions on the right to picket expressed in subsections (a), (c), (d), (f), and (g) of section 7-2014 of this article and subject to the licensing provisions provided in section 7-2016 hereof; soliciting, handbilling and picketing in parks also shall be regulated as provided in sections 7-2013 and 7-2014 hereof.
"(2) Public assemblies upon the streets, roads, highways, sidewalks, driveways, and alleys within the City predominantly dedicated to vehicular traffic are prohibited.
"(3) Public assemblies upon private property without the consent of the owner are prohibited.
"(4) Public assemblies prior to eight o'clock A.M. or subsequent to eleven o'clock P.M. are prohibited.
"(5) Public assemblies that thwart the purpose to which the property upon which they occur is dedicated or that interfere with the normal use of such property by others with an equal right of access thereto or there are prohibited.
"(6) Public assemblies that are inconsistent with or interfere with the rights of another group to assemble pursuant to a valid permit issued by the City Manager pursuant to section 7-2016 of this article are prohibited.
"(7) Whenever the number of attendees at a public assembly exceeds the natural capacity of the facility so as to threaten the public safety or convenience the excess may be ordered to disperse by City law enforcement officials and failing to do so may be punished as provided by this article. Wherefore, the City Manager, after careful study of facilities within the City limits that are available for public assemblies, shall issue regulations setting forth the maximum capacity of each such facility so that the existence of an overflow crowd may be determined by a numerical count.
"(8) Public assemblies that violate the anti-noise ordinances of the City are prohibited.
"(9) Any public assembly in which a weapon as described in subsection 7-2014(g) hereof is in the possession of any party thereto is prohibited.
"(10) The use of fighting words by any person in any public assembly is prohibited.
"(11) Any public assembly that violates any of the above-numerated prohibitions thereby loses its protected status and must disband upon order of law enforcement officials of the City.
"(12) No person shall assemble in violation of any of the foregoing prohibitions.
"Section 7-2016. Preferential treatment of licensed assemblies.
"(a) Although the acquisition of a permit is not a condition to the right to assemble within public parks of the City, nevertheless where two (2) or more groups seek to use simultaneously the same area of the same park or otherwise make overlapping or inconsistent demands for public facilities, the group having the first duly issued permit shall have the right to use such facilities pursuant to the terms of the permit.
"(b) No group, person or organization shall be issued a permit in preference to a valid written request for the same facility at the same time by another group that has utilized the same facility fewer times within the preceding ninety (90) day period.
*1577 "(c) An application for an assembly permit to be deemed valid must be filed at the office of the City Manager during normal business hours not less than seventy-two (72) hours prior to the proposed commencement hour of the applicant assembly and must set forth the following information:
"(1) The full legal name of the sponsoring person or persons;
"(2) A bona fide mailing address for each sponsoring person;
"(3) The State of incorporation of any incorporated person;
"(4) With respect to any resident agent for service of process of the sponsoring person:
"a. The full legal name of the agent; and
"b. The address of the agent's place of business and his personal residence and the telephone number for each;
"(5) If a sponsoring person has no registered agent for service of process:
"a. A brief statement of the reason for failing to appoint one; and
"b. The full name, business and residential address of a local resident who will stand surety for the sponsoring party for any damage caused by participants in the assembly;
"(6) The date, hours, and site sought for the assembly;
"(7) The number of persons expected to attend the assembly, if known, and the basis for the estimate if an estimate is made; if no estimate is made, the reason why a reasonable estimate cannot be made (example, the principal purpose for the assembly is to bring together previously unorganized persons presently unknown to the sponsoring person to join the sponsoring persons in a common purpose); and
"(8) The application shall be signed by each sponsoring person or its legal representative.
"The City Manager shall cause to be prepared a form to be used for application for parade permits which shall be approved by the Mayor and Council prior to utilization.
"(d) The City Manager shall cause to be verified all information contained in an assembly permit application that has been completed in full as provided by subsection (c) hereof and upon such verification shall issue a permit that shall state:
"(1) The date and hours of the assembly;
"(2) The location and the maximum number of attendees for the assembly as provided in subsection (c) hereof;
"(3) The name of the sponsoring persons and the names and addresses of their agents for service or process or their local sureties;
"(4) The date of filing the permit application;
"(5) The date the permit issued; and
"(6) The personal signature of the City Manager or his designee: provided, however, that the information in an incomplete application shall not be verified, and a permit shall not issue on an unverified application.
"(e) The City Manager shall cause to be prepared forms for (1) application for an assembly permit and (2) for assembly permits which shall be approved by the Mayor and Council prior to utilization.
"(f) Any assembly held in accordance with a duly authorized permit shall not be entitled to preferential treatment unless the actual permit is in the possession of a member of the assembly who make himself available to display same on demand to any person who requests to examine the same.
"Section 7-2017. Limitations on parades.
"(a) Parades within the City are declared unlawful except when conducted pursuant to the authority of a lawfully issued parade permit; the parade route must be sealed off by traffic enforcement officers of the City before the period during which the parade permit authorized the parade, and no other traffic shall be permitted thereon for the duration of the parade.
"(b) Upon satisfaction of the following requirements the City Manager shall cause the required permit to be issued to any applicant therefor:
"(1) A written application for permit must be filed at least 168 hours in advance of the proposed parade time which application shall specify the requested date, hours, place of *1578 assembly for such parade, the route, the length and expected duration of such parade, and the place and time for disbandment of such parade;
"(2) There must be no previously filed requests for parade permit for the same day;
"(3) The application for a parade permit shall be signed by a sponsoring person or a legal representative thereof and must also set forth the following information:
"a. The full legal name of the sponsoring person or persons;
"b. A bona fide mailing address for each sponsoring person;
"c. The State of incorporation of any incorporated person;
"d. With respect to any resident agent for service of process of the sponsoring person:
"1. The full legal name of the agent; and
"2. The address of the agent's place of business and his personal residence and the telephone number for each;
"e. If a sponsoring person has no registered agent for service of process:
"1. A brief statement of the reason for failing to appoint one; and
"2. The full name, business and residential address of a local resident who will stand surety for the sponsoring party for any damage caused by participants in the assembly;
"(4) The City Manager shall cause to be prepared a form to be used for application for parade permits which shall be approved by the Mayor and Council prior to utilization; and
"(5) A permit fee shall be paid in advance of issuance of a parade permit the amount of which shall be fixed from time to time by the Mayor and Council based upon the cost to the City for providing necessary traffic and crowd control facilities, equipment and personnel for parades.
"(c) A parade permit shall not be issue unless the parade:
"(1) Will follow a route accurately described within a written application for a parade permit which route does not intrude into residential or hospital zones of the City;
"(2) Will not continue from the time of the initial gathering upon the public streets until its final disbursement for a term of more than three (3) hours;
"(3) Will transpire only after 9:30 A.M. and before 2:00 P.M. on school days, or before 4:00 P.M. on non-school days, or subsequent to 6:30 p.m. and prior to 10:00 P.M., on any day except Sundays; and
"(4) Will consist of an aggregate length of vehicles, pedestrians and equestrians of at least one hundred (100) yards.
"(d) All parade permits shall be issued subject to the conditions that:
"(1) All traffic and safety regulations duly promulgated by the City Manager and approved by the Mayor and Council in furtherance of the public health, safety and convenience are complied with;
"(2) No vehicle may travel abreast of another vehicle during the parade and each vehicle measuring more than ten (10) feet in width must parade in the center of the street; and
"(3) No vehicle or equestrian may come within six (6) feet of either side of the street, that is, the curb of any sidewalk or the nearest protrusion of any parked automobile or other vehicle along the street whichever is closest to the center.
"Section 7-2018. Limitations on processions.
"(a)(1) A permit shall not be required for any procession.
"(2) A procession unaccompanied by a police escort must comply with each and every traffic law and regulation of the City irrespective of the impact such compliance has upon the continuity or regularity of that procession. A non-escorted procession must be in continuous motion except for traffic lights and signals and must not obstruct the entrances or exits of any establishment of any kind or interfere with free passage upon any road, sidewalk, alley, driveway or other passageway. Should a pedestrian procession unlawfully cease its motion on a public street or sidewalk or other passageway it ceases to *1579 be a procession subject to regulation under this section and becomes a public assembly subject to regulation under section 7-2015 hereof.
"(3) A procession accompanied by a police escort may continue without break through stop signs, traffic lights, yield signs and the like so long as each vehicle maintains a close but safe distance with the immediately preceding vehicle and keeps its headlights turned on to indicate its participation in the procession.
"(4) A police escort will be provided to any procession for a lawful purpose upon application identical to requirements of the parade permit application form but filed at least twenty-four (24) hours prior to the designated commencement of same upon the further condition that the City has a police officer available at the designated time for this service. The fee, the amount of which is to be fixed from time to time by the Mayor and Council will be charged for police escort service and must be paid upon filing of the application for an escort. The fee shall be based upon the cost to the City for providing necessary traffic and crowd control facilities, equipment and personnel for the procession.
"(b)(1) A pedestrian procession may not consist of more than two (2) files nor more than six (6) ranks except that after six (6) ranks of two (2) files followed by a distance of twenty (20) feet, another six (6) ranks of two (2) files may follow ad seriatum until the entire procession is accommodated; unorderly pedestrian processions are prohibited as an interference with the rights of others to use the public sidewalks and streets.
"(2) A pedestrian procession must comply with each and every traffic regulation and signal.
"(3) Pedestrian procession participants may carry placards or signs not exceeding two (2) feet in width and two (2) feet in length nor carried in a fashion that tends to obstruct the free movement of other members of the public using same sidewalk for movement or otherwise create a safety hazard.
"(c) Any member of a procession who violates a traffic regulation or ignores any traffic signals or creates an obstruction not permitted by this subsection shall be punished by imprisonment not exceeding three (3) days or fined not exceeding fifty dollars ($50.00) or both.
"(d) Any procession that engages in loud and boisterous conduct or expression thereby loses its character as a procession within the meaning of this article and becomes a parade within the meaning of this article and subject to the rules and regulations applicable to a parade.
"(e) Any parade or procession involving the following conduct is unlawful and must disperse upon order of law enforcement officials:
"(1) The use of any fighting words by any participants; or
"(2) The possession of any deadly weapon as defined in subsection 7-2013(e) hereof by any participant.
"Section 7-2019. Interference with public agencies.
"(a) No person, singly or in concert with others, shall engage in picketing in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any public premises, State property, County or municipal courthouse, City Hall, public office building, jail or any other public building or facility owned by the United States, the State, The County, or the City, or with the transaction of public business or the administration of justice conducted therein or thereon, or so as to obstruct or unreasonably interfere with the free use of public streets, sidewalks or other public ways adjacent or continuous thereto.
"(b) No person, with intent to interfere with, obstruct, or impede the administration of justice, or with intent to influence any judge, juror, witness or officer of a court in the discharge of his duty, shall picket or parade in or near a building housing a court of the United States, the State, the County, or any other duly constituted governmental agency.
"Section 7-2020. Miscellaneous provisions.
*1580 "(a) The express enumeration of powers and rights herein shall not be deemed a waiver of similar or related powers or rights inherent to municipal governments or delegated to municipal governments by the State.
"(b) No person shall hamper, obstruct, or interfere with any parade, picket line or public assembly being conducted under the authority of a permit duly issued by the City Manager.
"(c) This article shall be construed liberally in a manner that will effectuate its purposes so as to avoid the creation of any conflict with any valid State or Federal law and so as to avoid regulation of any conduct or activity, the regulation of which has been preempted by a valid State or Federal law."
DISCUSSION
"The central commitment of the First Amendment ... is that `debate on public issues should be uninhibited, robust, and wide-open.'" Bond v. Floyd, 385 U.S. 116, 136, 87 S. Ct. 339, 349, 17 L. Ed. 2d 235 (1966); see also Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390, 89 S. Ct. 1794, 1806, 23 L. Ed. 2d 371 (1969) ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail"). Further, "[b]y protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public's interest in receiving information." Pacific Gas & Electric v. California P.U.C., 475 U.S. 1, 8, 106 S. Ct. 903, 907, 89 L. Ed. 2d 1 (1986).
"Governmental limitations on the exercise of First Amendment rights in traditional public forums, are proper only when they are valid time, place and manner restrictions which are content-neutral, are narrowly tailored to serve significant governmental interests and leave open ample alternative channels of communication." Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1523 (11th Cir.1985). Parks, sidewalks and streets are generally considered traditional public forums. See Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1201 (11th Cir.1991); United States v. Belsky, 799 F.2d 1485, 1489 (11th Cir.1986); Walsh, 774 F.2d at 1522.[1]
I. Section 7-2015 of the Valdosta City Code
Section 7-2015 of the Valdosta City Code provides:
The public parks of the City are hereby declared to be public forums dedicated to, among other purposes, the dissemination of information and opinion protected by the First Amendment to the United States Constitution, or other protected expressive conduct in furtherance of which purpose said parks may be used for public gatherings and assemblies; all other public and quasi-public places in the City are declared to be off-limits to public assemblies except those held on private property with the consent of the owner or on public property incident to open meetings of governmental bodies or agencies....
. . . . .
Public assemblies upon the streets, roads, highways, sidewalks, driveways, and alleys within the City predominantly dedicated to vehicular traffic are prohibited.
. . . . .
Public assemblies prior to eight o'clock A.M. or subsequent to eleven o'clock P.M. are prohibited.
*1581 Valdosta City Code § 7-2015 [hereinafter Code] (emphasis added). As discussed above, to justify the time, place and manner restrictions imposed by section 7-2015, defendants must prove: (1) that the restrictions are content-neutral; (2) that the restrictions are narrowly tailored to serve significant governmental interests; and (3) that the restrictions leave open ample alternative channels of communication.
"[The] principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech `without reference to the content of the regulated speech.'" Madsen v. Women's Health Center, Inc., ___ U.S. ___, ___, 114 S. Ct. 2516, 2523, 129 L. Ed. 2d 593 (1994). After a careful review, the court finds no reference in Chapter 2, Article B of the Valdosta City Code that would indicate a preference for, or hostility to, a particular viewpoint. Accordingly, the challenged sections of the city code are content neutral for purposes of First Amendment analysis.
The second part of the test requires defendants to prove that the content-neutral restrictions are narrowly tailored to serve significant governmental interests. According to defendants, the "significant governmental interests" served by section 7-2015 include:
a duty to prevent violence, maintain order and protect the right of persons and property to move upon public streets, roads, sidewalks, alleys, and all other places subject to a public easement of travel; to provide an environment conducive to the effective administration of justice and other essential governmental functions, the transaction of public and private business; and to promote the right of all persons to be free from substantial invasions of their privacy in an essentially intolerable manner.
Code § 7-2011. Although defendants have articulated a comprehensive list of interests served by section 7-2015, the court finds that section 7-2015 sweeps far too broadly in attempting to serve those interests. A complete ban on all public assemblies taking place outside a public park is not narrowly tailored to serve the interests outlined above. Further, a blanket prohibition of all public assemblies "upon the streets, roads, highways, sidewalks, driveways, and alleys within the City predominantly dedicated to vehicular traffic," (Code § 7-2015(2)), deprives citizens of the opportunity to express their views in public forums particularly suited to open assembly, discussion, and debate. Finally, section 7-2015's ban on all public assemblies "prior to eight o'clock A.M. or subsequent to eleven o'clock P.M." does not take into account the variety of expressive activity upon which this restriction may place an unreasonable burden.[2]
In addition, defendants have failed to show that the restrictions imposed by section 7-2015 leave open ample alternative channels of communication. Streets and sidewalks are traditional public forums not simply because of being labeled as such by courts, but because they provide ordinary citizens a forum in which to communicate their ideas, beliefs, and opinions to the public at large. The restrictions imposed by section 7-2015 do not leave open channels of communication equal to those available in the streets, sidewalks and other forums traditionally open to public discourse. Accordingly, the court holds that section 2-7015 of the Valdosta City Code is unconstitutional on its face.
II. Section 7-2014(b) of the Valdosta City Code
Section 7-2014(b) provides: "Picketing in streets, alleys, roads, highways, driveways or other places predominantly dedicated to the use of vehicular traffic is prohibited." Code § 7-2014(b) (emphasis added). As discussed above, content-neutral restrictions on the exercise of First Amendment rights in traditional public forums such as streets, are valid only when narrowly tailored to serve significant governmental interests and when the restrictions leave open ample alternative channels of communication. Although *1582 the court recognizes that defendants have a significant interest in protecting "the right of persons and property to move upon public streets, roads, sidewalks, alleys, and all other places subject to a public easement of travel," the countervailing First Amendment interests demand that the restrictions be narrowly tailored. A broad prohibition of all picketing in all streets, alleys, roads, highways, and driveways predominantly dedicated to the use of vehicular traffic does not serve defendants' interests in the narrow fashion demanded by the First Amendment. Accordingly, the court holds that section 2-7014(b) of the Valdosta City Code is unconstitutional on its face.
III. Section 7-2013(a) of the Valdosta City Code
Section 7-2013(a) provides, in part: "Handbilling ... in the streets, alleys, roads, highways, driveways or other places predominantly dedicated to the use of vehicular traffic is prohibited." Code § 7-2013(a) (emphasis added). The analysis outlined in the two previous sections is also applicable to section 7-2013(a). See infra sections I & II. Although handbilling may, under certain circumstances, disrupt the flow of traffic on city streets, section 7-2013(a) sweeps so broadly as to encompass those circumstances under which handbilling would present little or no interruption of traffic. For example, section 7-2013(a) would prevent the distribution of literature at intersections with traffic lights. Defendants have set forth no significant governmental interest to be served by the prohibition of handbilling at intersections of city streets, roads, and alleys. As these are traditional public forums entitled to the highest level of scrutiny under the First Amendment, defendants are required to narrowly tailor any restrictions on the use of these forums by the public. Defendants, however, have failed to do so. Accordingly, the court holds that section 2-7013(a) of the Valdosta City Code is unconstitutional on its face.
IV. Section 7-2017(c)(1) of the Valdosta City Code
Section 7-2017(c)(1) provides: "A parade permit shall not issue unless the parade ... [w]ill follow a route accurately described within a written application for a parade permit which route does not intrude into residential or hospital zones of the City." Code § 7-2017(c)(1). Plaintiffs assert that the ban on parades within all residential zones is an unreasonable restriction of First Amendment rights.[3] Defendants contend that the restriction serves "to protect the privacy of citizens within their homes" and to protect parade participants from traffic in residential neighborhoods. (Def.s' Br. at 6-7.)
In Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), the United States Supreme Court held "that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood." Frisby, 487 U.S. at 480, 108 S. Ct. at 2500. Further, the court held that "generally directed means of communication ... may not be completely banned in residential areas." Id. at 486, 108 S. Ct. at 2503.
A parade is a form of "generally directed means of communication." As such, parades may not be completely banned in residential neighborhoods. Although defendants may place reasonable restrictions on the right to parade in residential areas, the activity may not be banned in toto. Accordingly, the court holds that section 2-7017(c)(1) of the Valdosta City Code is unconstitutional on its face.
V. Section 7-2017(c)(3) of the Valdosta City Code
Section 7-2017(c)(3) provides: "A parade permit shall not issue unless the parade ... [w]ill transpire only after 9:30 A.M. and before 2:00 P.M. on school days, or before 4:00 P.M. on non-school days, or subsequent to 6:30 p.m. and prior to 10:00 P.M., on any day except Sundays." Code § 7-2017(c)(3). Plaintiffs contend that section 7-2017(c)(3) *1583 bans all parades on Sundays. Defendants, however, assert that parades are not banned on Sundays, only restricted to the hours between 9:30 A.M. and 4:00 P.M.
Although somewhat confusing, the text of section 7-2017(c)(3) does support defendants' contention. However, plaintiffs also assert that defendants have failed to articulate a significant governmental interest to be served by the restriction on parades taking place after 4:00 P.M. on Sundays. Although the court could speculate as to the type of interests that would be served by such a ban, it is not the court's responsibility to do so. Defendants bear the burden on this issue. Merely stating that "[i]t is ludicrous to suggest that a ... restriction on parades after 4:00 p.m. on Sunday is unconstitutional," (Def.s Br. at 7), does not satisfy defendants' burden. In the absence of any articulated interest to be served by the restriction, the court is unable to determine whether the restriction is narrowly tailored to serve a specific goal. Accordingly, the court holds that section 2-7017(c)(3) of the Valdosta City Code is unconstitutional on its face.
VI. Permit and Fee Requirements
Plaintiffs assert that the permit and fee schemes contained in section 7-2017(a)-(d) place an unconstitutional prior restraint on activity protected by the First Amendment.[4]
A. Permit Requirement
1. Discretion in Issuing Official
"A law subjecting the right of free expression in publicly owned places to the prior restraint of a license, without narrow, objective and definite standards is unconstitutional." Walsh, 774 F.2d at 1525. Such standards serve to limit the discretion placed within the hands of the official issuing the permit. "It is not enough to presume that officials will act in good faith and adhere to standards absent from a statute or scheme's face. Implicit limits on a licensing official's discretion must be made explicit, `by textual incorporation, binding judicial or administrative construction, or well-established practice.'" Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1199 n. 9 (11th Cir. 1991). However, if the official issuing the permit performs a purely ministerial function in determining whether objective registration criteria have been satisfied, then no discretion exists in the official "to engage in invidious discrimination against disfavored speakers...." Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1548 (11th Cir.1993).
Pursuant to section 7-2017, the official issuing a parade permit performs nothing more than the ministerial task of ensuring compliance with narrow, objective and definite criteria. Section 7-2017 does not delegate to the issuing official overly broad discretion so as to operate as a prior restraint on First Amendment rights.
2. Review Procedures
"A system of prior restraint must guarantee prompt and final judicial review of an executive determination to deny a license, so that an erroneous abridgment of freedom of speech may be corrected as quickly as possible in the adversarial setting of a courtroom." Church of Scientology, 2 F.3d at 1548 n. 46. On its face, section 7-2017 does not provide for judicial review of the denial of a permit. However, defendants assert that review is unnecessary as the issuing official is not delegated discretion to deny the permit, but is required to issue the permit upon compliance with the objective requirements of the city code.
Defendants are correct in that the discretion of the issuing official is severely limited by the requirements set forth in section 7-2017. However, the issuing official is still vested with a modicum of discretion in determining whether the section's requirements have been satisfied. Although this grant of discretion is not so broad as to constitute an unconstitutional prior restraint, it is sufficient to require that those seeking a permit *1584 be afforded prompt judicial review in the event a permit is denied. Accordingly, the court holds that section 2-2017 of the Valdosta City Code is unconstitutional on its face.
3. Fees
Plaintiffs assert that the fee scheme established in section 7-2017 operates as an unconstitutional, content-based restriction on activity protected by the First Amendment. "The right of free speech, exercised in a public forum, on issues of public concern, cannot be abridged by a governmental regulation which requires the speakers to prepay the costs of police protection, based on the content of the speaker's views." Walsh, 774 F.2d at 1524. The state may not delegate to an issuing official the discretion to set a fee based on the amount of police protection necessary to protect the speaker at issue. If such discretion were allowed, cities could charge higher fees for those seeking to espouse unpopular viewpoints in that increased police protection would be necessary. See id. These higher fees would operate to discourage the free exercise of First Amendment rights.
In the case sub judice, however, the fee is not set by the issuing official, but "from time to time by the Mayor and Council...." Code § 7-2017(b)(5). Although the mayor and council are directed to base the fee on the cost "to the City for providing necessary traffic and crowd control facilities, equipment and personnel for parades," there is no indication that any individual involved in the permit process is allowed to alter the pre-set fee in response to a particular speaker's views. Accordingly, on its face, section 7-2017 does not require "speakers to prepay the costs of police protection, based on the content of the speaker's views." Id.
VII. Impermissible Mathematical Straightjackets
Plaintiffs contend that the definitions contained in sections 7-2012(5) and 7-2012(7) establish impermissible mathematical straightjackets on First Amendment activity. An impermissible "mathematical straightjacket" exists when an arbitrary mathematical formula is devised to prohibit activities protected by the First Amendment. See United Food & Commercial Workers International Union v. IBP, Inc., 857 F.2d 422, 430 (8th Cir.1988). For example, in United Food & Commercial Workers International Union v. IBP, Inc., 857 F.2d 422 (8th Cir. 1988), the Eighth Circuit Court of Appeals held unconstitutional a state law that prohibited "any form of picketing `in which there are more than two pickets at any one time within fifty feet of any entrance to the premises being picketed or within fifty feet of any other picket or pickets.'" IBP, Inc., 857 F.2d at 430. In the case sub judice, however, the definitions contained in sections 7-2012(5) and 7-2012(7) do not operate to prohibit any activity. The sections simply attach a definitional label to a set of circumstances, imposing no restraints on the activity so-defined. As such, these definitions do not operate "as a[n] [impermissible] time, place, and manner restriction on expressive activities in a public forum." Id.
VIII. Restrictions on Dangerous Instruments
Plaintiffs assert that sections 7-2013(e), 7-2014(g), 7-2015, and 7-2018(e), which prohibit "[t]he possession ... of any object or instrumentality with an apparent potential to cause physical injury to persons or damage to property ...," constitute an overly broad ban "on the carrying of virtually anything by any person engaged in First Amendment activities." (Pl.s' Br. at 27.) Plaintiffs contention, however, is without merit. The sections at issue set forth specific examples of prohibited objects. These objects include "walking or hiking sticks, canes, clubs, knives, firearms, brass knuckles, slingshots, [and] zip guns...." Code § 7-2013(e). Although the sections provide that the descriptive list is not exhaustive, the character of the objects set forth is clear. Accordingly, the court finds that sections 7-2013(e), 7-2014(g), 7-2015, and 7-2018(e) of the Valdosta City Code do not constitute an overly broad ban "on the carrying of virtually anything by any person engaged in First Amendment activities."
*1585 IX. Overly Broad Definitions
Plaintiffs assert that the definitions contained in sections 7-2012(8) (public assembly), 7-2012(9) (parade), and 7-2012(10) (processions) are overly broad and encompass protected as well as unprotected activity. Every definitionno matter how narrowly drawnwill encompass activities not intended to be included within its scope. The United States Constitution does not require local governments to define regulated activity with such precision as only to encompass the specific actions to be regulated. See City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118, 2126, 80 L. Ed. 2d 772 (1984). The degree of precision demanded by plaintiffs is unattainable. Accordingly, the court holds that the definitions contained in sections 7-2012(8), (9), and (10) are drawn with sufficient particularity so as to survive constitutional analysis.
X. Unconstitutionally Vague
Plaintiffs also assert the court should find sections 7-2013(e), 7-2014(g), 7-2015(a), 7-2018(e), and 7-2013(d) unconstitutionally vague in that they fail to provide reasonable notice as to what activities are proscribed. The void-for-vagueness doctrine "imposes an obligation on the government to give citizens fair notice of what constitutes punishable conduct and helps guard against arbitrary, unfair, or politically-motivated law enforcement." United States v. Howard, 655 F. Supp. 392, 398 (N.D.Ga.1987). After a careful review of the sections at issue, the court finds that the sections delineate with sufficient particularity the activity prohibited and provide adequate notice of "punishable conduct." Accordingly, the court holds that sections 7-2013(e), 7-2014(g), 7-2015(a), 7-2018(e), and 7-2013(d) are not void for vagueness.
CONCLUSION
The court holds that sections 2-7013(a), 2-7014(b), 2-7015, and 2-7017 of the Valdosta City Code are unconstitutional in that they place an impermissible time, place and manner restriction on the exercise of protected First Amendment activities.
SO ORDERED.
NOTES
[1] Plaintiffs' constitutional challenge to Chapter 2, Article B of the Valdosta City Code includes challenges to sections of the code that have not been directly applied to restrict plaintiffs' First Amendment rights. Nonetheless, plaintiffs have standing to challenge these sections under the "overbreadth" doctrine.
In the context of the First Amendment, the Supreme Court has fashioned a special rule of standing known as "overbreadth." The Court has recognized that a statute that regulates a broad category of speech may deter expression that is protected by the First Amendment even if the statute has some range of constitutional application. The effect of the overbreadth doctrine is "to enable persons who are themselves unharmed by the defect in a statute nevertheless to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court."
Dimmitt v. City of Clearwater, 985 F.2d 1565, 1571 (11th Cir.1993).
[2] This is not to say that this particular restriction may not be appropriate when applied to specific areas of the cityfor example, residential neighborhoods. The court holds only that a broad proscription of all public assemblies, wherever they may be conducted, is not narrowly tailored to serve the interests outlined in section 7-2011.
[3] Plaintiffs do not contend that the prohibition of parades within hospital zones is an unreasonable restriction of First Amendment rights.
[4] Plaintiffs have also challenged the permit scheme contained in section 7-2018 as imposing an unconstitutional prior restraint. However, the text of section 7-2018 clearly states that "[a] permit shall not be required for any procession." A permit is required only if a police escort is requested by the participants in the procession. Under these circumstances, the court does not believe that section 7-2018 operates as a prior restraint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261902/ | 861 F. Supp. 65 (1994)
Erma BENTLEY, et al, Plaintiffs
v.
ARLEE HOME FASHIONS, INC., Defendant.
No. J-C-93-177.
United States District Court, E.D. Arkansas, Jonesboro Division.
August 8, 1994.
David Brent Sterling and Mark J. Freeman, Martin, Trumbo & Sterling, Fayetteville, AR, for plaintiffs.
Frederick J. Lewis, Thomas L. Henderson, and Kelly S. Gooch, McKnight, Hudson, Lewis, Henderson & Clark, Memphis, TN, for defendant.
AMENDED ORDER
STEPHEN M. REASONER, Chief Judge.
Presently pending before the Court is Defendant's Motion to Strike Jury Demand (Doc. # 6). The Plaintiffs are former employees of Defendant which allege that Defendant failed to provide them with sixty days notice of their terminations in violation of the Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. § 2101 et seq. Plaintiffs' complaint demands a jury trial. The Defendant argues that *66 there is no right to a jury trial under the WARN Act. Neither the statutory language of the WARN Act or existing federal case law explicitly address the right to a jury trial under the WARN Act.
WARN Act
The WARN Act generally requires an employer who employs 100 or more employees to provide 60 days written notice to the employees of a plant closing or mass layoff. 29 U.S.C. §§ 2101-2102. If the employer does not fall within one of the exemptions provided in 29 U.S.C. § 2103 and fails to provide the 60 days written notice, the employer is subject to civil action. Pursuant to 29 U.S.C. § 2104 "[the] employer * * * shall be liable * * * for * * * back pay for each day of violation * * * and benefits under an employee benefit plan * * * including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan." 29 U.S.C. § 2104(a)(1). The employer "shall [also] be subject to a civil penalty of not more than $500 for each day of such violation." 29 U.S.C. § 2104(a)(3).
Right to a Jury Trial
As provided by the Seventh Amendment to the United States Constitution, there is a fundamental right to a jury trial where there is monetary value in controversy and legal issues are involved. U.S. Const., amend. VII. The Defendant argues that a suit brought under the WARN Act involves equitable as opposed to legal issues thus preventing the Plaintiffs from demanding a trial by jury.
As previously stated the WARN Act does not explicitly address the right to a jury trial. Therefore, rules of statutory construction must be applied.
Statutory construction requires the application of recognized rules. First, the starting point in every case involving construction of a statute is the language itself. Second, where a statute states what a term means then all other meanings not stated are excluded. Third, clear evidence of legislative intent prevails over other principles of statutory construction. Fourth, absent a very clear legislative intent, the plain meaning will prevail. Last, Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.
Johns-Manville Corp. v. U.S., 855 F.2d 1556 (Fed.Cir.1988) (Citations omitted). As there is no language within the statute addressing the issue, the legislative intent must be determined. Where a statute does not offer conclusive guidance as to its construction, the legislative history may be examined to determine the intent of Congress. Blue Chip Stamp v. Manor Drug Stores, 421 U.S. 723, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975); U.S. v. Wise, 370 U.S. 405, 82 S. Ct. 1354, 8 L. Ed. 2d 590 (1962); U.S. v. Zacks, 375 U.S. 59, 84 S. Ct. 178, 11 L. Ed. 2d 128 (1963); In re Fairfield Communities Inc., 990 F.2d 1075 (8th Cir.1993). While this Court has a good deal of skepticism regarding the use of legislative history and does not apply it as a normal tool for the interpretation of a statute, as this is a case of first impression an analysis of all available information must be made.
The Plaintiffs cite the statements of Senator Orrin Hatch, a rigorous opponent of the WARN Act, in support of its argument that the right to a jury trial was an assumed right of the WARN Act. During the Senate debate, Senator Orrin Hatch expressed the right to a jury trial under the WARN Act as follows:
Under the seventh amendment to the Constitution, jury trials are allowed for causes of action created by the Congress if the statute creates legal rights and remedies enforceable in an action for damages in the Federal district court. Supreme Court cases, such as the 1978 Lorillard versus Pons, [sic] demonstrate clearly that jury trials would be available in any suit for damages claiming employer violation of this law.
Senate Debate on S.2527, June 23, 1988, Congressional Record S.8452 (Legis.History p. 198).
Senator Hatch again addressed the right to a jury during Senate debate on June 27, 1988 as follows:
*67 This legislation allows any aggrieved employee or unit of local government to file a civil action against an employer. This action includes the right to a jury trial ... [W]e ... have to question whether the publicity, deliberations, and outcome of a jury trial under these circumstances would be truly objective and fair.
Id., June 27, 1988, Congressional Record S.8606 (Legislative History p. 277).
It is important to note that "[t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt." N.L.R.B. v. Fruit and Vegetable Packers and Warehousemen, Local 760, 377 U.S. 58, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964) (citations omitted). However, as the Supreme Court noted in Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963), while the statements of the opponents to the legislation may not be authoritative they remain relevant where the proponents of the legislation have not directly responded. The Plaintiffs have not cited nor can the Court locate any legislative history where the proponents of the WARN Act responded to Senator Hatch's concerns about the right to a jury trial under the WARN Act.
Legal Versus Equitable Rights and Remedies
Lacking clear legislative intent, the Court must also examine the nature of the rights and remedies under the WARN Act. The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." U.S. Const. amend. VII.
The right to a jury trial includes more than the common-law forms of action recognized in 1791; the phrase `suits at common law' refers to `suits in which legal rights [are] to be ascertained and determined, in contradistinction to those where equitable rights alone [are] recognized, and equitable remedies [are] administered. Parsons v. Bedford, 3 Pet. 433, 447 [7 L. Ed. 732] (1830); see also ibid. (`[T]he amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.') The right extends to causes of action created by Congress. Tull v. United States, 481 U.S. 412, 417 [107 S. Ct. 1831, 1835, 95 L. Ed. 2d 365] (1987). Since the merger of the systems of law an equity, See Fed.Rule Civ.Proc. 2, this Court has carefully preserved the right to trial by jury where legal rights are at stake. As the court noted in Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 501 [79 S. Ct. 948, 952, 3 L. Ed. 2d 988] (1959), 'Maintenance of the jury as a fact finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.' (quoting Dimick v. Schiedt, 293 U.S. 474, 486 [55 S. Ct. 296, 301, 79 L. Ed. 603] (1935).
To determine whether a particular action will resolve legal rights, we examine both the nature of the issues involved and the remedy sought. `First, we compare the statutory action to the 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.' Tull, supra, [481 U.S.] at 417-418 [107 S.Ct. at 1835-36]. (citations omitted). The second inquiry is the more important in our analysis. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 [109 S. Ct. 2782, 2790, 106 L. Ed. 2d 26] (1989).
Chauffeurs, Teamsters and Helpers, Local 391 v. Terry, 494 U.S. 558, 564-65, 110 S. Ct. 1339, 1345, 108 L. Ed. 2d 519 (1990).
In applying the first of the two step analysis for determining the nature of the issues and remedies, the Plaintiff asserts that the issues in an action brought under the WARN Act are similar in nature to either a contract, personal injury, or wrongful termination action at law. The Court in Terry determined that the breech of a collective bargaining agreement in violation of § 301 of the Labor Management Relations Act "is comparable to a breach of contract claima legal issue." *68 Id. at 570, 110 S. Ct. at 1347. A collective bargaining agreement is a vehicle often used to provide employees with notification of plant closing or mass layoff.
Plaintiffs support their argument that an action under the WARN Act is similar to a personal injury wrongful termination claim which is legal in nature by citing Woodell v. International Brotherhood of Electrical Workers Local 71, 502 U.S. 93, 112 S. Ct. 494, 116 L. Ed. 2d 419 (1991). The Supreme Court held that a union member who sued his local union under Title I of the Labor Management Reporting and Disclosure Act of 1959 for lost wages was bringing an action analogous to a personal injury action. Id. at ___, 112 S.Ct. at 498.
The second and most important step of the analysis is determining whether the remedy sought is legal or equitable in nature. "One who suffers a legally recognized injury is usually entitled to an award of damages." Dan B. Dobbs, Handbook on the Law of Remedies, 135 (1973). The main purpose of a damages award is some type of compensation for Plaintiff's losscontrasted with restitution where the purpose is to deprive the defendant of his unjust gain. See Id. at 136-37. The WARN Act compensates the former employees for damages caused through the employer's failure to provide the requisite notice of intentions to close the plant or layoff a large amount of employees. The employer has not obtained any gain by its failure to comply with the Act. Thus, the remedy under the Act appears to be legal in nature. Furthermore, 29 U.S.C. § 2104(b) entitled Exclusivity of Remedies provides as follows: "The remedies provided for in this section shall be the exclusive remedies for any violation of this chapter. Under this chapter, a Federal court shall not have authority to enjoin a plant closing or mass layoff."
The Defendant cites Great American Federal Sav. & L. Ass'n v. Novotny, 442 U.S. 366, 374, 99 S. Ct. 2345, 2350, 60 L. Ed. 2d 957 (1979) for the rule that when a statute's remedy is exclusively equitable relief there is no right to a jury trial. This statute is not exclusively equitable in relief. In fact, the Act explicitly prohibits a Federal court from issuing an injunction against a plant closing. Defendant cites Harmon v. May Broadcasting Co., 583 F.2d 410 (1978) for the following statement: "[back pay] is not comparable to damages in a common-law action for breach of employment contract." Id. at 411. A distinction between the Harmon case and this cause of action may readily be ascertained when the cited sentence is read in its entirety"[a]n award of back pay under Title VII for discriminatory employment practices is an integral part of the equitable remedy of reinstatement and is not comparable to damages in a common-law action for breach of employment contract." Id. at 411. The goal of the WARN Act, unlike an action under Title VII, is not reinstatement for improper action but to require notice be given so the employees have an opportunity to locate other employment.
As stated in Local 217, Hotel & Restaurant Employees Union v. MHM, Inc., 976 F.2d 805 (2nd Cir.1992):
WARN's § 2104(a) provides a damages action for back pay and for `the cost of medical expenses incurred during the employment loss.' Section 2104(b) states, however, that `the remedies provided for in this section shall be the exclusive remedies for any violation of this chapter.' The relief appellants seek, a preliminary injunction compelling MHM to provide fifty-seven days of insurance coverage under WARN, is, therefore, not one of the remedies specified in WARN and was properly denied.
Id. at 808-09. Furthermore, the opinion of Judge G. Thomas Eisele of the Eastern District of Arkansas supports this decision.
This is a punitive statute, not a `make-whole' statute. The violation is the failure to give employees adequate opportunity to find employment elsewhere. So, where the employer fails adequately to give notice, the statute requires payment for each day's failure to give notice.
Joshlin, et al. v. Gannett River States Publishing Corporation, 840 F. Supp. 660 (E.D.AR 1993). Accordingly, Defendant's *69 Motion to Strike Jury Demand (Doc. # 6) is denied.
It is SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743267/ | 301 So. 2d 501 (1974)
STATE of Florida, Appellant,
v.
George Lee TUCKER, Appellee.
No. 74-490.
District Court of Appeal of Florida, Second District.
September 30, 1974.
Rehearing Denied November 6, 1974.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
Robert E. Pyle, Lake Alfred, and Jack T. Edmund, Bartow, for appellee.
PER CURIAM.
The State appeals the dismissal of the indictment herein charging appellee/defendant Tucker with first degree murder. The dismissal resulted from a determination by the trial court that because no record was made of testimony before the grand jury the indictment cannot stand. He relied on a circuit court decision out of the Nineteenth Circuit which was subsequently reversed by our sister court of the Fourth District, that case being reported as State v. McArthur, Fla.App.4th, 1974, 296 So. 2d 97.
The issues in this case and in the McArthur case, supra, are identical in principle, and since we fully concur in the opinion and conclusions of our sister court we are compelled on the authority thereof to reverse the instant dismissal.
Reversed.
McNULTY, Acting C.J., and BOARDMAN and GRIMES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261845/ | 261 N.J. Super. 182 (1992)
618 A.2d 373
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDERICA BEY, AKA "STAR," DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued November 10, 1992.
Supplemental Brief filed November 16, 1992.
Decided December 18, 1992.
Before Judges ANTELL,[1] DREIER and SKILLMAN.
Nia H. Gill argued the cause for appellant (Gill & Cohen, attorneys; Nia H. Gill on the letter brief).
*183 Gary A. Thomas, Assistant Prosecutor argued the cause for respondent (James F. Mulvihill, Acting Prosecutor Essex County, attorney; Gary A. Thomas of counsel and on the letter brief).
Supplemental Brief filed by State November 16, 1992.
The opinion of the court was delivered by DREIER, J.A.D.
Defendant appeals from a conviction of promoting gambling, N.J.S.A. 2C:37-2, a third-degree crime. She was sentenced to a one-year probationary term. Defendant was acquitted of third-degree theft by deception, N.J.S.A. 2C:20-4.
The "gambling" involved in this case was a four-level (three-step) pyramid scheme[2], called the Investment Network. Each participant adopted a pseudonym; defendant's was "Star." Defendant contends that she was drawn into the "network" along with other friends, and she readily admitted that she used her home and appeared at homes of others in order to get more people to join the pyramid so that she and others could be paid. For her $1,500 "investment," she received the promised $12,000 reward, and also was found to have her name on other pyramids. Thus, the State reasoned, she was not merely a player in the scheme, but an organizer. The participants met under the auspices of sponsoring groups such as churches, and were given written assurances that the "network" was not a pyramid *184 scheme and was legal. The initial organizers were not identified.
The theft by deception indictment focused on the deceptive nature of the plan, but as noted earlier defendant was acquitted of third-degree theft by deception. We therefore will analyze only the gambling conviction.
Defendant raises two points on this appeal:
POINT I
IT WAS ERROR TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT II
THE VERDICT REGARDING COUNT II WAS AGAINST THE WEIGHT OF THE EVIDENCE.
While defendant contends there was no proof of mens rea and therefore she should not have been convicted, the presence of her name on more than one pyramid (once she had reached the top of one pyramid) indicates that she was involved more than as an investor of $1,500. She also argues that the scheme was legal and that all of the participants understood the plan as legal. Her argument is clearly incorrect. Pyramid sales schemes are prohibited by the Consumer Fraud Act, N.J.S.A. 56:8-2. Kugler v. Koscot Interplanetary, Inc., 120 N.J. Super. 216, 233-235, 293 A.2d 682 (Ch.Div. 1972). The perpetrators of such a scheme are potentially subject to the criminal theft by deception penalties. N.J.S.A. 2C:20-4.
What gives us pause, however, is that defendant was acquitted of theft by deception, but convicted of a specific gambling offense. N.J.S.A. 2C:37-2, entitled "promoting gambling," under which defendant was indicted and convicted, defines the promotion of gambling in N.J.S.A. 2C:37-2a(1) and (2). N.J.S.A. 2C:37-2b grades certain gambling activities, namely lottery, policy or bookmaking schemes, as third-degree or fourth-degree crimes. In other matters, promotion of gambling is a disorderly persons offense. This scheme, while obviously fraudulent, might by some stretch of the imagination constitute *185 gambling under the general definition in N.J.S.A. 2C:37-1b. The definition reads:
"Gambling" means staking or risking something of value upon the outcome of a contest of chance or a future contingent event not under the actor's control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.
We do not reach the general question of whether promoting a pyramid scheme is promoting gambling. The indictment here did not charge defendant merely with promoting gambling. It stated that defendant "materially aid[ed] an illegal lottery scheme," (emphasis added), and then specified the alleged illegal conduct. It charged specifically how defendant implemented the lottery, namely by engaging
in conduct directed toward the creation or establishment of the particular scheme and activity involved, toward the acquisition or maintenance of premises and equipment, therefore, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of financial or recording phases, and toward other phases of its operation by both aiding the receipt of money from a person other than a player and the receipt of more than $100 in one day of play in such illegal lottery. ...
[Emphasis added].
We have raised this issue on our own and invited a supplemental brief from the State, which has been filed and considered.
It appears, therefore, that defendant was charged solely under N.J.S.A. 2C:37-2b(2), which speaks of a "lottery or policy scheme or enterprise." N.J.S.A. 2C:37-1h defines a "lottery" as
an unlawful gambling scheme in which (a) the players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one or more of which chances are to be designated the winning ones; and (b) the winning chances are to be determined by a drawing or by some other method based upon the element of chance; and (c) the holders of the winning chances are to receive something of value.
"Policy" or the "numbers game" are separately defined in N.J.S.A. 2C:37-1i as
a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome or outcomes of a *186 future contingent event or events otherwise unrelated to the particular scheme.[3]
The question of whether a pyramid scheme constitutes an illegal lottery has been considered in other jurisdictions. These courts defined a lottery as a scheme having three essential elements: consideration, chance and prize. This definition was either derived through case law or by statute. We note that this broad definition is the equivalent of our definition of gambling in N.J.S.A. 2C:37-1b, quoted earlier. In the criminal context, several courts have held that pyramid schemes are illegal lotteries. See, e.g., State v. Dahlk, 111 Wis.2d 287, 330 N.W.2d 611 (1983) (finding that a six-level pyramid club constituted an illegal lottery where the extent to which participants win the prize depended on when the person entered the chain, the number of persons he induced to enter, the number of persons the new recruits induced to enter, and whether the market was saturated); Lashbrook v. State, 550 N.E.2d 772 (Ind. Ct. App. 1990) (a four-level pyramid, similar to the one before this court); Roberts v. Communications Investment Club of Woonsocket, 431 A.2d 1206 (R.I. 1981) (a six-step "investment club"). Cf. Commonwealth v. Allen, 404 S.W.2d 464 (Ky. 1966) (a name-referral variant of a pyramid scheme).
In the civil context, other jurisdictions have similarly found pyramid clubs to constitute illegal lotteries, relying on a finding of the same three elements. See State v. Bull Investment Group, Inc., 32 Conn.Sup. 279, 351 A.2d 879 (1974); People ex rel. Kelley v. Koscot Interplanetary, Inc., 37 Mich. App. 447, 195 N.W.2d 43 (1972); Solon v. Meuer, 141 Misc.2d 993, 539 N.Y.S.2d 241 (N.Y. Civ. Ct. 1987); State by Lefkowitz v. ITM, Inc., 52 Misc.2d 39, 275 N.Y.S.2d 303 (N.Y. Sup. Ct. 1966); Wesware, Inc. v. State, 488 S.W.2d 844 (Tex.Civ.App. 1972); Sherwood *187 & Roberts Yakima, Inc. v. Leach, 67 Wash.2d 630, 409 P.2d 160 (1965).
Two courts, however, came to the opposite conclusion. In Yoder v. So-Soft of Ohio, Inc., 30 O.O.2d 566, 202 N.E.2d 329 (Ohio Com.Pl. 1963), the court held that a pyramid game does not constitute an illegal lottery where the state's gambling statute defined gambling as payment of a price for a chance to gain a prize. The court found that the elements of gambling were not present in the pyramid game. The court said, "[t]he act of purchasing a share of General Motors stock has more of the elements of a gambling transaction than does the one before us." Id. 202 N.E.2d at 331. Also, in Braddock v. Family Finance Corp., 95 Idaho 256, 506 P.2d 824 (1973), the court held that a chain sales-referral scheme was not a "lottery," although it could constitute a scheme for fraudulent misrepresentations. Id. 506 P.2d at 826-827.
These cases are all distinguishable from the case at hand since they deal with common law or statutory lottery definitions different from that found in N.J.S.A. 2C:37-1h. New Jersey's definition specifies elements beyond simply consideration, prize and chance. It specifies that the "chance" must be "represented by and differentiated by numbers or by combinations of numbers or by some other media." N.J.S.A. 2C:37-1h. In addition, the definition specifies that the winning chances are to be "determined by a drawing or by some other method based upon the element of chance." Ibid. Based on this language, we find that the method of play required in the lottery definition is not present in a pyramid scheme.
Furthermore, we reject the notion that the phrases "by some other media" and "by some other method" found in the statute indicate otherwise. These phrases must be analyzed in context. The statute says that the required "chances" are "represented... by numbers or by combinations of numbers or by some other media." From this it seems clear that the legislature was describing the normal usage of the word lottery, where people *188 purchase numbers, or something analogous, and one of those numbers is drawn at random is determined or "by some method based upon the element of chance" to be the winner of the prize. The public is besieged by sufficient variants of State-sponsored lotteries to be aware of the types of games that it expects will be called a "lottery." The "punch board," "scratch-off," or "pick-from-a-hat" styles of lottery are well-known variants to the usual definition of a lottery, i.e., a drawing of "lots" (objects "used as ... counter[s] in determining a question of chance." Webster's New Collegiate Dictionary 681 (1973)).
Furthermore, if the Legislature intended to define a pyramid scheme as an illegal lottery, it was free to do so, as did the Florida legislature. See Section 849.091, Florida Statutes 1971, F.S.A.; see also State ex rel. Shevin v. Turner, 285 So.2d 623 (Fla. Dist. Ct. App. 1973); Frye v. Taylor, 263 So.2d 835 (Fla.App. 1972).
We even note that the prosecutor could only focus on the venture being risky when he urged a gambling conviction. In summation, he said:
Then you come to the gambling charge. You might say to yourself, why is this gambling? Doesn't sound like gambling to me. Well, the Judge is going to give you the law on gambling and what you have to do, what you have to focus on, is that there is a risk involved here and I just spoke of the risk of about how you have to get some other people to come after you, but not only you, but you have to rely on your those people you get and those people, they have to get other people, and so there is this work built into the system, this element of risk.
A criminal statute must be strictly construed. State v. Meinken, 10 N.J. 348, 352-353, 91 A.2d 721 (1952). We do not perceive that a reasonable person reading our statutory lottery definition would understand that a pyramid scheme, as fraudulent as it may be, was prohibited as a "lottery."[4] Indeed, were *189 we to interpret the lottery definition in N.J.S.A. 2C:37-1h so broadly as to include pyramid schemes, then N.J.S.A. 2C:37-1h likewise could be extended to include receipt of bets on horse racing and organized poker games, even where these activities are addressed separately in the statute.
When the indictment here is read against the statutory definition of a lottery and the proofs in this case, it appears that defendant was not engaged in gambling by means of a lottery (or a policy or numbers game). Because the facts proven at trial could not satisfy the statutory definition of a lottery, defendant's conviction for materially aiding such a "lottery" cannot stand.
Defendant's conviction is reversed. The matter is remanded to the Law Division for the entry of a judgment of acquittal.
NOTES
[1] Judge Antell did not participate in oral argument, but has with the consent of counsel been added to the panel deciding this matter.
[2] A pyramid scheme, like a chain letter, is dependent upon each new level of participants securing two or more persons to join. The new participant makes payment to the person on top of the list or pyramid, who then is removed, and replaced by those at the next level. The fraud in the scheme is that when a participants pay, they must assume that they and those that follow will be able to find new participants until four levels are filled. For all of the first group of new participants to be paid, sixty-four people need to join. After only twenty levels of new participants, 8,388,608 additional "investors" would be needed, and there cumulatively would have been 16,777,200 persons who would have been brought into the scheme, a practical impossibility.
The initial organizers of the pyramid have no one on top to pay, and place their names so that they receive immediate rewards, often rotating their positions on several versions of the initial pyramid.
[3] Had the definition of a "lottery" been as broad as that contended by the State, the separate definition of this form of lottery, based upon a future contingent event, would have been superfluous.
[4] We further note that the court failed to charge the jury concerning the definition of "lottery." The judge merely gave the standard gambling charge, and then told the jury:
[T]hen you must determine further whether the State has proven beyond a reasonable doubt that the Defendant, one, that the Defendant received in connection with a lottery or policy scheme or enterprise, money or written records from a person other than a player whose chances or plays are represented by such money or records or, two, that the Defendant received in connection with a lottery or policy scheme or enterprise, more than $100. in any one day of money played in such a scheme or enterprise.
If you find that either of these two elements existed, the Defendant is guilty of the crime of third degree.
[Emphasis added].
At the very least, defendant would have been entitled to a new trial on the basis of this deficient charge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261849/ | 152 Pa. Commw. 237 (1992)
618 A.2d 1182
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant,
v.
Ercole DiANTONIO, Appellee.
Commonwealth Court of Pennsylvania.
Argued November 16, 1992.
Decided December 16, 1992.
*238 Joan A. Zubras, for appellant.
Jeffrey A. Korustoff, for appellee.
Before PALLADINO and PELLEGRINI, JJ., and SILVESTRI, Senior Judge.
PELLEGRINI, Judge.
Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) denying its motion to open a default judgment obtained by Ercole DiAntonio (DiAntonio).
DiAntonio was injured while a passenger on a SEPTA bus when the bus stopped suddenly as the result of an accident with another vehicle. DiAntonio instituted a suit by summons and then filed a complaint on February 14, 1991, with service to SEPTA on February 18, 1991. Because SEPTA failed to file an answer, DiAntonio sent a notice of intention to take default on April 11, 1991.
*239 Upon receipt of the notice of intention to take a default judgment, SEPTA prepared and delivered an answer to the prothonotary on April 12. The answer was one of a number of pleadings SEPTA filed at the same time, and the filing fees for all of those pleadings were paid with a single check. The prothonotary time-stamped the answer and returned a copy to SEPTA and SEPTA sent a copy to plaintiff. However, the prothonotary later discovered that the filing fee check was insufficient to cover all of the pleadings filed. Without explanation, the prothonotary decided to reject only the answer to DiAntonio's complaint due to the deficient filing fee, and did not enter the filing of the answer on the docket. Upon DiAntonio's filing of a praecipe, the prothonotary entered default judgment on April 23, 1991. It was not until June 11, 1991, that SEPTA received the undocketed answer from the prothonotary, with a notation that indicated that it was returned as not perfected due to the improper payment of the fee.
SEPTA filed a "Petition to Open or Strike Off Default Judgment" alleging a breakdown in the courts because the prothonotary accepted the answer and the fee and did not notify SEPTA of the problem until after the default was taken. The trial court denied the motion to open the default judgment, finding that SEPTA did not set forth a reasonable excuse, and that SEPTA's allegation that the claim was due to another motorist was not a meritorious defense. SEPTA then filed this appeal.
The decision to open a default judgment is "left to the sound discretion of the trial court, and absent an error of law or a clear manifest abuse of discretion, the trial court's decision will not be disturbed on appeal." Southeastern Pennsylvania Transportation Authority v. Ray, 131 Pa.Commonwealth Ct. 179, 181, 569 A.2d 1020, 1021 (1990). See First Seneca Bank & Trust Company v. Laurel Mountain Development, 506 Pa. 439, 485 A.2d 1086 (1984). In order to grant a petition to open a default judgment, the following criteria must be met: (1) the petition to open must be promptly filed; (2) there must be a reasonable excuse for failure to respond; and *240 (3) a meritorious defense must be shown. Comyn v. Southeastern Pennsylvania Transportation Authority, 141 Pa.Commonwealth Ct. 53, 594 A.2d 857 (1991).
SEPTA contends that when it delivered the answer and it was accepted and time-stamped by the prothonotary, that constituted its filing which would preclude the taking of a default judgment. Because under Pa.R.C.P. No. 1037(b),[1] a default judgment can only be entered if a responsive pleading has not been filed prior to its taking, the entry of the default judgment by the prothonotary was improper. Moreover, SEPTA contends the prothonotary's failure to docket the answer is a breakdown in court operations that was a reasonable excuse justifying the opening of the default judgment. However, DiAntonio contends that because SEPTA did not pay the proper filing fee, the filing was not perfected and the prothonotary was not required to docket the answer. Section 4 of the Act, 42 P.S. § 21004,[2] does provide that the prothonotary of Philadelphia County "shall not be required to receive any paper or perform any service until the proper fee is paid."
Although the prothonotary was not required to accept the pleading until the proper fee was paid, the prothonotary accepted SEPTA's answer by time-stamping a copy. These actions constitute "filing", which although not defined in the rules of civil procedure, commonly refers to the delivery of papers to the prothonotary for docketing. See generally Commonwealth v. Cooke, 288 Pa.Superior Ct. 205 n. 4, 431 A.2d 360 n. 4 (1981). Even though the prothonotary's office later discovered that the total fee was deficient, the prothonotary could not summarily return the answer after having accepted it.
Consequently, SEPTA's answer is deemed filed on April 12, 1991, the day it was accepted by the prothonotary as *241 indicated by the original time-stamp, and the answer should have been timely docketed. To decide otherwise would eliminate reasonable reliance by parties on a prothonotary's acceptance of a pleading. Because the answer was timely filed, the prothonotary lacked the authority to enter a default judgment under Pa.R.C.P. No. 1037(b), and the prothonotary's error was more than a reasonable excuse for opening default judgment. See Lippin v. Aliprando, 359 Pa.Superior Ct. 212, 215, 518 A.2d 856, 857 (1986) (a prothonotary lacks authority to enter default judgment where the defendant filed its answer).
SEPTA also contends that it asserted a meritorious defense sufficient to allow the trial court to open the default judgment.[3] A meritorious defense is one that is sufficient to justify relief if proven. Provident Credit Corp. v. Young, 300 Pa.Superior Ct. 117, 446 A.2d 257 (1982). In its answer, SEPTA alleged that the accident in which DiAntonio was injured was caused by a third-party driver or that the injuries were caused by DiAntonio's own negligence, and specifically denied any negligence on the part of SEPTA or its employees. Because the defense that there is no causal relationship between the actions of SEPTA and the injuries to DiAntonio is one that would sufficiently preclude recovery from SEPTA, SEPTA has pled a meritorious defense.
Because SEPTA stated a reasonable excuse for its delay and alleged a meritorious defense, the trial court abused its discretion in denying the petition to open default judgment.[4] Accordingly, we reverse the order of the trial court and remand the case for further proceedings.
ORDER
AND NOW, this 16th day of December, 1992, the order of the Court of Common Pleas of Philadelphia County, No. 4746, *242 August Term 1990, dated September 19, 1991, is reversed and we open the default judgment and remand the case for further proceedings.
Jurisdiction relinquished.
NOTES
[1] Pa.R.C.P. No. 1037(b) provides:
The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time an answer to a complaint . . .
[2] Section 4 of the Act of July 11, 1980, P.L. 643, No. 133, as amended.
[3] Even though addressed by the trial court, DiAntonio did not raise this issue before the trial court in its response to SEPTA's petition to open or brief it on appeal.
[4] DiAntonio did not contend in his response to the petition to open default judgment that the petition was not promptly filed. Therefore, the issue has been waived. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261870/ | 261 N.J. Super. 214 (1992)
618 A.2d 854
HOPE SPARROW RIMSANS, PLAINTIFF-RESPONDENT,
v.
AIVARS P. RIMSANS, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued October 28, 1992.
Decided December 16, 1992.
*216 Before Judges KING, LANDAU and THOMAS.
Lawrence J. Schempp argued the cause for appellant (Cohen, Shapiro, Polisher, Shiekman & Cohen, attorneys; Mr. Schempp and David Gutin, on the brief, and Laurie H. Polinsky, of counsel and on the brief).
Neal A. Loebel argued the cause for respondent (Camden County Board of Social Services, attorneys; Mr. Loebel, on the brief).
The opinion of the court was delivered by LANDAU, J.A.D.
Aivars P. Rimsans appeals from an August 23, 1991 order of the Family Court which appears superficially to be only a routine confirmation of the order of a Michigan court registered in 1990 pursuant to the registration provision of the Uniform Reciprocal Enforcement of Support Act (URESA) corresponding to N.J.S.A. 2A:4-30.57. The long procedural and factual history of this case, however, has required that we explore several aspects of URESA, including its provision of alternative remedies for enforcement and their implications in light of the statutory language, and New Jersey law and policy. We conclude that the order under review must be reversed.
PROCEDURAL HISTORY
Aivars P. Rimsans (Defendant) and Hope Sparrow Rimsans (Plaintiff) were divorced by decree of the State of Michigan in February of 1975. The divorce decree incorporated an order (the Michigan Order) requiring that the defendant pay child support to respondent until their son attained the age of 18 *217 years or finished high school. At that time the child was four years old. Sometime thereafter, defendant relocated to Illinois.
In April, 1980 an order of support was entered by the State of Illinois on a URESA petition filed to Illinois from the State of Michigan seeking the entry of a support order and collection of arrears that had accumulated under the Michigan order. On April 23, 1980 the State of Illinois entered an order calling for payment of support in the amount of $75 per week plus $25 per week toward accumulated arrears. This order was dismissed on February 26, 1982 when defendant relocated to New Jersey.
On May 17, 1982 a petition for child support was filed by the State of Michigan under URESA. A hearing on the petition was held in the Chancery Division, Family Part in September, 1982. This led to entry of a support order, terms of which are set forth infra, requiring that payments be made through the Middlesex County Probation Department.
The child reached majority on October 10, 1988. On May 15, 1989 the Family Part entered an order terminating payment of support.
On or about July 19, 1989 the State of Michigan submitted an Interstate Child Support Enforcement Transmittal to the State of New Jersey requesting registration of the 1975 Michigan support order, and asserting arrears totaling $22,886.65[1]. This registration was initially dismissed upon the belief that all arrears had been satisfied. However, it appears that there was no formal entry of a dismissal.
The Michigan support order was again tendered for registration in New Jersey. It was registered with the Chancery Division in Camden County on June 14, 1991. Defendant's motion to vacate was denied. An order of confirmation was entered on August 23, 1991, and this appeal followed.
*218 Factual and Procedural Details
The 1975 Michigan order required the defendant to pay child support of $100 per week, until his son reached the age of 18. When defendant relocated to Illinois, the plaintiff received public assistance in Michigan. She assigned her support rights to its welfare department.
The State of Michigan then filed a URESA petition to the State of Illinois seeking entry of an order of support. The Illinois courts entered an order providing for support of $75 per week plus $25 towards arrears, effective May 1, 1980. Defendant made payments under the Illinois order until December, 1981, when he moved to New Jersey. The Illinois order was dismissed on February 26, 1982.
On May 17, 1982 the State of Michigan filed a URESA action in Middlesex County seeking the entry of an order of child support. The Certification of Arrears which accompanied the petition set forth arrearages of $18,200 owed to plaintiff and $3,550 owed to the State of Michigan, plus $85 in fees. Plaintiff now contends the amounts of arrearages were inadvertently transposed and that the State of Michigan was owed the higher amount.
The 1982 petition requested New Jersey to enter an order of support "in the amount of $450 each and every month or in such other amount as the court may deem fair and reasonable; and further requiring payment of the accumulated support arrearages."
A hearing was held before Judge Appleton, now retired, on September 15, 1982. At the hearing, counsel for defendant indicated that the amount of arrearages requested by the State of Michigan was incorrect because the State of Michigan had not properly credited certain payments. Arrears in the amount of approximately $7000 were agreed upon before the court by defendant's counsel and local counsel who presented the Michigan petition. A final order was entered in New Jersey on the same date which provided for the defendant to pay $75 per *219 week towards support and $25 per week towards the $7,000 in agreed arrears which were adopted by the court. No appeal was taken.
Defendant complied fully with the New Jersey URESA order until payments were terminated by the May 15, 1989 order following emancipation of the supported child. Sometime thereafter the appellant moved to Camden County. On July 14, 1989, the State of Michigan registered its 1975 Michigan order and sought the arrears that purportedly accumulated.
The State of Michigan certified arrears of $18,145 due the State of Michigan and $4,741.85 due the plaintiff. The $18,145 amount represents arrearages allegedly due the State of Michigan based upon plaintiff's assignment while she was a welfare recipient from 1976 to December 1980, and prior to the 1982 URESA order. (In 1982, the New Jersey court had determined this amount to be approximately $7,000.) $4,741.85 represents arrearages which accrued between December 1980 and entry of the 1982 New Jersey order, plus an accumulation of the $25 weekly difference between support payments made under the 1982 New Jersey order and the higher payments required under the original Michigan order.
In response to the 1989 registration petition, counsel for the Camden County Board of Social Services first advised defendant that approximately $22,000 remained due to the State of Michigan and the plaintiff. This amount was later adjusted to $11,794.85 when the Camden County counsel determined that proper credit for the arrearages paid pursuant to the 1982 New Jersey order had not been made by Michigan. Then, on September 26, 1990, counsel for Camden County Board of Social Services informed the State of Michigan and defendant that the URESA petition for collection of arrearages was dismissed in full as a result of the defendant's compliance with the 1982 New Jersey URESA order. What purports to be a trial court order of dismissal accompanied this correspondence.
*220 In June of 1991, the State of Michigan again registered in Camden County the 1975 Michigan order and the arrears allegedly due thereunder. Defendant's counsel filed a motion to vacate the registration. A hearing was held on August 23, 1991, at which time the court determined that the 1989 registration was never formally dismissed[2]; that the action taken by the court in 1982 was in error and did not supersede the original Michigan arrearages order nor prevent the continued build-up of arrearages against the defendant; that Michigan had the right under URESA to register the arrears that accumulated under the Michigan order; and that a New Jersey court was without jurisdiction to entertain appellant's contention that the amount of arrearages in the affidavits included with the registration petition did not provide credit for past amounts paid.[3] From this order defendant appeals.
Law
We consider first the effect of the responding state's unappealed 1982 URESA order (the New Jersey order), duly entered under the civil enforcement section of URESA, upon an additional URESA action initiated by Michigan eight years later under a different section of URESA, which sets forth the registration option.
In 1950, the National Conference of Commissioners on Uniform State Laws and the American Bar Association promulgated *221 URESA. In 1968 substantial revisions were made in the Uniform Act. See Uniform Reciprocal Enforcement of Support Act, 9A U.L.A. 643, 647 (1979).
New Jersey adopted the 1968 revisions to the Uniform Act known as the "Revised Uniform Reciprocal Enforcement of Support Act", see N.J.S.A. 2A:4-3.25. For ease of reference, we have employed the N.J. Statutory designations, which do not materially differ from the Michigan statute for purposes relevant to this discussion. M.S.A. § 25.225 et seq. [M.C.L.A. § 780.151 et seq.] The purpose of URESA is to improve and extend, by reciprocal legislation, enforcement of duties of support owed by an obligor in one state to an obligee in another state. URESA provides three mechanisms to accomplish its goal: (1) a civil enforcement remedy; (2) a criminal extradition remedy, and; (3) the registering of a foreign order. This appeal concerns application and interrelationship of the civil enforcement and registration remedies.
The civil enforcement mechanism created by the revised act is a two-part procedure designed to enable the obligee to enforce a support obligation upon the relocated obligor without having to leave the state of residence.
An obligee commences the proceeding by filing a petition that alleges facts constituting a duty of support in the appropriate court of the obligee's state of residence (the initiating state). N.J.S.A. 2A:4-30.35, 30.38. The initiating court reviews this petition and determines (1) whether the petition alleges facts which set forth a duty of support, and (2) whether a court of another state (the responding state) may obtain jurisdiction over the respondent. N.J.S.A. 2A:4-30.38. Once this determination is made, the initiating court certifies and forwards three copies of the petition and certificate and one copy of the initiating state's uniform act to the appropriate court in the responding state. Id. The responding court dockets the case and notifies the county welfare agency of its action. The county welfare agency then must prosecute it "diligently." *222 N.J.S.A. 2A:4-30.41. After a hearing, the responding court makes the evidentiary determination whether a duty of support exists. If such a duty is found to exist, the responding court may enter an order of support. N.J.S.A. 2A:4-30.46.
Another procedure available under URESA is registration of a foreign support order which has already been entered in the initiating state. N.J.S.A. 2A:4-30.57. When the clerk of the court in the responding jurisdiction receives such documents, the foreign order is filed in a registry of foreign support orders. N.J.S.A. 2A:4-30.58. At the time of filing, the clerk must also give the obligor notice of the registration by certified or registered mail. N.J.S.A. 2A:4-30.60. The obligor usually has 20 days within which to request that the registration be vacated. If the obligor does not contest registration or fails to prevail at a hearing, the registered order is confirmed. N.J.S.A. 2A:4-30.61. Pursuant to N.J.S.A. 2A:4-30.61a, a registered foreign support order is to be treated in the same manner as a local support order entered by this state. It is subject to the same defenses and proceedings to reopen, vacate or stay as a support order of this state and may be enforced and satisfied in a similar manner.
It is generally recognized that a responding court may enter prospectively a support order amount different (lesser or greater) from that previously entered in the initiating state. A responding court under URESA also has jurisdiction to determine the amount of arrears and enter judgments for their payment. N.J.S.A. 2A:4-30.26 (duty of support includes "duty to pay arrearages of support past due and unpaid"); Koon v. Boulder County Dep't. of Social Services, 494 So.2d 1126 (Fla. 1986); Swan v. Shelton, 469 S.W.2d 943 (Mo. App. 1971); Taylor v. Vilcheck, 745 P.2d 702, 705 (1987); State of Wash. ex. rel. Gibson v. Gibson, 800 P.2d 1011 (Hawaii App. 1990).
It is also generally recognized that when such orders are entered by a responding state, they do not affect the validity or enforceability in the initiating state of judgments there entered. *223 Banks v. Banks, 221 N.J. Super. 282, 285, 534 A.2d 419 (App. Div. 1987); N.J.S.A. 2A:4-30.53. In Banks, defendant appealed from a post-judgment order in a divorce proceeding. The post-judgment order obligated defendant to convey to plaintiff his one-half interest of the marital home located in New Jersey to fully satisfy his arrears and liabilities under the 1984 New Jersey divorce judgment. The Banks defendant argued that a 1985 responding-state URESA order entered in Tennessee reduced his ongoing support obligation and total arrears then owed. We held that the intervening Tennessee URESA order modified the New Jersey support judgment solely for the purpose of enforcement in Tennessee, without affecting the validity or enforceability of the greater judgment as ordered in New Jersey. Id. at 285-86, 534 A.2d 419.
Michigan courts have held that Michigan, as an initiating state, is not bound by intervening URESA orders of responding states when calculating the arrearages due under an original judgment of support. However, it will give credit to the support payments made under the responding state orders. McMath v. McMath, 174 Mich. App. 576, 436 N.W.2d 425, 429 (1989).
Does URESA or any principal of comity or full faith and credit require that we effectively overturn the unappealed 1982 New Jersey order, complied with for nearly eight years, in favor of Michigan's second effort to enforce its 1975 order in New Jersey, this time by using the registration alternative? We hold that the unappealed New Jersey order must here prevail.
Defendant argues that as he complied fully with the 1982 New Jersey order, URESA can impose no further enforceable duty of support upon him. He also argues that in light of plaintiff's failure to timely challenge the 1982 New Jersey order, and his meticulous compliance, it would be inequitable to allow plaintiff to choose a new route to enforce the 1975 Michigan order in New Jersey by way of registration after so many years.
*224 Plaintiff argues that while the 1982 New Jersey order set support payments and arrears differently from the Michigan order, it miscalculated the arrears then due, leaving prior-1982 arrearages still owed on the Michigan order. She also argues that the arrears under the Michigan order, requiring support payments of $100 per week, continued to accrue, subject to credit for the $75 weekly amounts paid by appellant pursuant to the New Jersey order.
Plaintiff thus contends that she can pursue separately and independently both the URESA civil enforcement remedy and the registration remedies within this State, irrespective of a prior adjudication under one of those courses of action.
She relies in part upon the language of N.J.S.A. 2A:4-30.27 and N.J.S.A. 2A:4-30.56. Section 30.27 provides:
The remedies herein provided are in addition to and not in substitution for any other remedies.
Section 30.56 provides:
If the duty of support is based upon a foreign support order, the obligee has the additional remedies provided in the following sections.
One "additional remedy" referred to in Section 30.56 is registration of the foreign support order.
Plaintiff also claims that the anti-supersession section of URESA supports her argument:
A support order made by a court of this state pursuant to this act does not nullify and is not nullified by a support order made by a court of this State pursuant to any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this State.
[N.J.S.A. 2A:4-30.53; see M.S.A. 25.225(21)].
We see no indication in this language that the Legislature intended that obligees have the right separately to pursue, in successive actions, both the enforcement and registration remedies provided in URESA. Indeed, we have held in an analogous case that once New Jersey has fixed by order the amount of support arrears, and there has been compliance, *225 there is no further enforceable duty to impose upon the obligor. Essex Cty. Adjuster v. Brookes, 198 N.J. Super. 109, 112, 486 A.2d 875 (App.Div. 1984). The Legislature did not indicate that the registration remedy is in "addition to" the civil enforcement remedies, but that an obligee has the additional "remedy" of registration. Since the registration remedy was a subsequent addition to the URESA statute, we hold that remedy to be simply one "additional remedy" on the menu from which an obligee may choose.
This interpretation is not without support. According to William Brockelbank, chairman of the Committee on URESA for the National Conference of Commissioners on Uniform Statutes:
[t]he remedies of this part [Registration of Foreign Support Orders] are in addition to the other remedies provided in the Act[* *]. This means, of course, that plaintiff has a choice.
[W. Brockelbank, Interstate Enforcement of Family Support 80 (2d ed. 1971)].
Plaintiff may not successively avail herself of both remedies, thereby collaterally attacking without appeal the support order lawfully issued in New Jersey as responding state under URESA. The 1982 order was final and appealable, and is now res judicata in this State, even if initially erroneous. See Hendricks v. Ross, 232 N.J. Super. 243, 248, 556 A.2d 1267 (App. Div. 1989).
This was not a R. 4:50-1 application for relief from final judgment. However, even if so formulated, it would not have survived equitable analysis under that Rule because of plaintiff's laches, and defendant's reliance and diligent compliance. Moreover, a contrary ruling would undermine the delegation under URESA (N.J.S.A. 2A:4-30.28 and .46) to the responding state court of the prerogative to determine the duty of support when the civil enforcement provision has been invoked.
Although the initiating court determines whether there are sufficient facts from which it may be determined that the respondent owes a duty of support, (N.J.S.A. 2A:4-30.38), the *226 initiating court has no jurisdiction to fix the liability of the person owing the duty of support in the responding state. Pfueller v. Pfueller, 37 N.J. Super. 106, 108, 117 A.2d 30 (App.Div. 1955).
In City and Council of San Francisco v. Juergens, 425 So.2d 992, 995-96 (La. App. 1983) the Louisiana court found that under its URESA statute, the state initiating the proceedings does not have the right to determine the actuality of the obligation, the amount owed, or arrearages, as this is a prerogative of the responding state.
The importance of this prerogative of the obligor's state to determine the merits of a support action cannot be lightly regarded. By this process, the obligor is certain that his rights will be adjudicated with proper due process of law, that the obligee is protected from a recalcitrant obligor's avoidance of support duties by fleeing from the jurisdiction.
Id. at 995-96.
Our conclusion that this State's responding court determination of the duty of support must be respected harmonizes with the criminal enforcement section of URESA. N.J.S.A. 2A:4-30.30 provides that a state may demand the governor of another state to surrender a person charged with failing to provide support. However, such governor may decline to honor the demand where other URESA proceedings were initiated in this State and where the obligor has complied with its support order. N.J.S.A. 2A:4-30.30c.
Few cases have dealt with the issues presented on this appeal. Most address the issue of whether a responding state's URESA order superseded the original support order of the initiating state. These courts have generally found that the responding state's intervening URESA order did not supersede the original order and thus an action outside of URESA on the original order was not barred in the initiating state. See Reciprocal Enforcement Law Support Orders, 31 ALR4th *227 347 (1984)[4]; In Re Marriage of Gifford, 152 Ill. App.3d 422, 105 Ill.Dec. 527, 504 N.E.2d 812 (1987); Banks v. Banks, supra.
In D.L.M. v. V.E.M., 438 N.E.2d 1023 (Ind. App. 1982), the court ruled that a mother's second URESA action for child support within that responding state was barred by res judicata where there was a prior URESA action within that same state which determined that there was no duty of support on the part of the father because paternity was not established. Id. at 1026. The court reasoned that the initial responding court had jurisdiction to reach the issue of paternity in its determination of the obligor's duty of support. The mother argued that the URESA anti-supersession clause deprived the responding court of jurisdiction because of the responding court's determination that the daughter was not the father's child superseded the prior Illinois support order. The court found that the anti-supersession section did not deprive the responding court of jurisdiction to render its first judgment. The court stated:
*228 This section has been interpreted to mean that the initiating state is not required to grant full faith and credit to the support orders of a responding state when the initiating state considers a subsequent petition for modification or calculates arrearages due under the divorce decree. [citations omitted]. Support orders of this state can be modified upon a proper showing ... However such modifications do not supersede the original order in proceedings before the initiating court.
Id. at 1029 (emphasis supplied).
The court further decided that the responding court was not obligated to give the initiating court's determination of paternity full faith and credit. Moreover, the court determined that even if the responding court were so obligated, its failure to do so would have been a mere error of law which would have required the mother to seek correction by direct appeal. Id.
Similarly, in Brookins v. Brookins, 257 Ga. 205, 357 S.E.2d 77 (1987), a former wife brought a second URESA action against her ex-husband to recover alleged child support arrears under their original divorce decree. The court found that res judicata would ordinarily apply where, as here, the issue of arrears was put in issue and resolved before the responding court.
In Pace v. Pace, 222 Va. 524, 281 S.E.2d 891 (1981), the Virginia court barred a mother's non-URESA motion to enforce a Missouri order finding the father $3,982 in arrears under the original divorce decree. The Virginia court found that an intervening in-state URESA proceeding which determined that the father owed no obligation of support, could not be collaterally attacked by the mother's attempt to sue upon the foreign divorce order. "The proper forum for challenging the errors in the Virginia URESA proceeding would have been an appeal from the trial court's order...." Id. 281 S.E.2d at 893. The court concluded that giving effect to the original decree to the extent that the order disagrees with the URESA order on the amount of arrearages would "be giving greater force to a sister-state than we give to the judgments of our own courts." (emphasis supplied). Id. at 894.
*229 Similarly, in our case, it is undisputed that defendant has fulfilled his payment obligations under the New Jersey order. He therefore has no further obligation of support under the laws of our state. To allow Michigan now to register its original 1975 decree would give Michigan's order greater force than our own, in contravention of N.J.S.A. 2A:4-30.61a:
Upon registration the registered foreign support order shall be treated in the same manner as a support order issued by a court of this State. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a support order of this State and may be enforced and satisfied in like manner.[5]
We find this provision of the statute, and the reasoning of above line of cases persuasive, but recognize that the imperfect statutory language in URESA has given rise to conflicting views. In Westberry v. Reynolds, 134 Ariz. 29, 653 P.2d 379 (App. 1982), the mother brought a URESA action in 1979 seeking arrearages that accumulated under the original divorce decree entered in 1965. The father argued that a prior URESA order entered in 1977 was res judicata as to the amount of arrearages owed up to that time. The court disagreed and placed reliance upon the anti-supersession section of URESA. Id. 653 P.2d at 381-82.
*230 In Stephens v. Hamrick, 86 N.C. App. 556, 358 S.E.2d 547 (1987), the mother sought registration of a foreign support order in order to collect the deficiency between what the father paid under an intervening URESA order which was complied with, and the original foreign support order. The trial court dismissed the mother's registration petition holding, in part, that by accepting payments under the responding state's URESA order for eighteen years, she abandoned any rights to subsequently enforce the original support order. The appellate court reversed, finding that the trial court's failure to enforce the registered support order violated the Full Faith and Credit clause of the United States Constitution. Id. 358 S.E.2d at 549.[6]
We hold that D.L.M. and Brookins correctly interpret URESA's anti-supersession clause. N.J.S.A. 2A:4-30.53 precludes the responding state's order from modifying or superseding the *231 initiating state's initial divorce decree as it exists within the initiating state. However, this clause should not be read to allow an initiating state to modify or supersede our unappealed support order by later registering its own order within our borders. As previously noted, this would constitute an improper and untimely collateral attack upon the New Jersey URESA order. We add that this technique also conflicts with the policies expressed in our entire controversy doctrine and R. 4:30A[7], R. 5:1-1. See Cogdell v. Hospital Center at Orange, 116 N.J. 7, 560 A.2d 1169 (1989).
Our interpretation of URESA is supported by the statute's specific provision for the use of the appellate process. Both the Michigan and New Jersey URESA statutes provide for direct appeal by the Attorney General of erroneous support orders issued in another state.
M.S.A. 25.225(25) provides:
If the attorney general or director of social services is of the opinion that a support order is erroneous and presents a question of law warranting an appeal in the public interest, the attorney general may, or the director of social services may request the attorney general to do either of the following:
(1) Perfect an appeal to the proper appellate court if the support order was issued by a court of this state.
(2) If the support order was issued in another state, cause the appeal to be taken in another state.
N.J.S.A. 2A:4-30.55 provides:
If the Attorney General is of the opinion that a support order is erroneous and presents a question of law warranting an appeal in the public interest, he may:
a. Perfect an appeal to the proper appellate court if the support order was issued by a court of this State, or
b. If the support order was issued in another state, cause the appeal to be taken in the other state. In either case expenses of appeal may be paid on his order from funds appropriated for his office.
In our case, the 1982 responding court did not exceed its jurisdiction in setting the arrearages due at that time at approximately *232 $7000. Our responding court's decision was not an attempt to modify the amount of arrearages owed under the original divorce decree, rather it was an attempt to determine the amount owed. It was well within the responding court's jurisdiction to determine the amount of the arrears owed and enter an order of support in consideration of factors at that time. Furthermore, the arrearage amount set by the court was not contested by counsel for the State of Michigan.
Respondent had a choice of remedies under URESA. She initially chose to utilize the civil enforcement remedy provided by URESA. If respondent was unhappy with the order or found it erroneous there should have been a direct appeal as provided for in URESA. N.J.S.A. 2A:4-30.55b; M.S.A. 25.-225(25).
Conclusion
The August 23, 1991 order of confirmation is reversed.
NOTES
[1] Although URESA permits the initiating state to enter its own judgment for arrears, and then to seek enforcement of such judgment, this procedure was not followed.
[2] The trial court judge found that the initial dismissal order was not signed by him or authorized by him. As such, it appears to have constituted a "void" judgment of dismissal and would not have to be appealed. See 46 Am.Jur.2d Judgments § 48-49 (1969).
[3] The latter conclusion was plainly erroneous. Confirmation of a registered support order does not include confirmation of the registered arrearage affidavit. The amount of arrearages were not rendered to judgment in Michigan and the court is not obligated to confirm the amounts alleged to be due in accompanying affidavits. See Chapman v. Chapman, 205 Cal. App.3d 253, 252 Cal. Rptr. 359 (5th Dist. 1988). In light of our opinion, however, it is not necessary to more fully explore this aspect of the confirmation process.
[4] However, a minority of courts have found that a respondent court's reduction of a husband's support obligation took precedence over the previous order issued in the divorce action. For example, in Sullivan v. Sullivan, 98 Ill. App.3d 928, 54 Ill.Dec. 207, 424 N.E.2d 957 (1981), the court found that a URESA responding court's reduction of a husband's support obligation took precedence over the previous order issued in the divorce action and was entitled to full faith and credit.
The Circuit Court ruled that the responding court had jurisdiction to modify the previous support order, and the responding court's order took precedence over the previous order issued in the divorce action. Since the husband made payments as required by the responding court's order, he was not in arrears. The reviewing court affirmed.
It noted that any objections concerning the responding court's modification should have been appealed in Ohio and not attacked collaterally in Illinois. The Ohio responding court order was entitled to full faith and credit despite the Ohio court's failure to observe the same principle with respect to the previous Illinois judgment.
See also, Jaynes v. Black, 655 S.W.2d 493, 494 (Ky.App. 1983) (common-law judgment action sought by wife for alleged arrears was barred by res judicata where prior URESA action disposed of issue.)
[5] A plain reading of the statute would indicate that our State will treat a foreign support order as one of our own and thus subject it to our own law. Therefore, registration and enforcement of the Michigan order would not have survived equitable considerations as we observed supra. This interpretation of section 30.61 is consistent with interpretations of similar sections elsewhere. See Greebel State ex. rel. v. Endsley, 269 Ind. 174, 379 N.E.2d 440 (1978) (once court confirms a foreign support order, such order has the same effect and may, under URESA, be enforced as if originally entered in Indiana); In re Marriage of Aron, 224 Cal. App.3d 1086, 274 Cal. Rptr. 357 (1st Dist. 1990) (upon a foreign support order's registration, a California court could entertain a support obligor's modification motion, a normal defense under California law); Hartley v. Hartley, 465 So.2d 592, 593 (Fla.App. 1985) (URESA registered support order can be modified upon substantial change in circumstances); Contra Costa County Ex Rel. Tuazon v. Caro, 802 P.2d 1212 (Hawaii App. 1990) affd., 72 Haw. 1, 802 P.2d 1202 (father entitled to prove essential elements of waiver, estoppel, or laches in defense to enforcement of registered decree on arrearages); see also Helmick v. Helmick, 436 So.2d 1122, 1131 (Fla.App. 1983) (Cowart, concurring specially) and cases cited therein.
[6] We have recognized that past due installments under a foreign decree were entitled to full faith and credit if the right to them is absolute and vested in the foreign jurisdiction. See Paramore v. Paramore, 32 N.J. Super. 491, 494, 108 A.2d 455 (App.Div. 1954). Michigan courts hold that past due unpaid support payments are not fixed and entitled to full faith and credit by a sister state:
Generally, the moving party petitions to have any arrearage reduced to a money judgment, at which time the court ascertains whether the original award or any arrearage should be modified. VanHouten v. VanHouten, 159 Mich. App. 713, 716; 407 N.W.2d 69 (1987). The amount owed is then fixed and not subject to modification. Corley [v. Corley], supra, [79 Mich. App. 499] p. 502 [261 N.W.2d 65 (1977)]. It is only when the amounts due or support are final and fixed that the courts of a sister state will recognize and enforce the judgment under full faith and credit commanded by U.S. Const., art. IV § 1. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137; 89 L.Ed. 82 (1944); Talbot v. Talbot, 99 Mich. App. 247, 252; 297 N.W.2d 896 (1980).
[McMath v. McMath, 174 Mich. App. 576, 436 N.W.2d 425, 428 (Mich. App. 1989)].
In our present case, respondent did not register arrearages which were reduced to a money judgment and fixed under Michigan law. Thus we need not consider whether full faith and credit must be given to a Michigan money judgment which conflicts with a New Jersey judgment previously entered. See supra, note 3.
[7] R. 4:30A provides:
Non-joinder of claims or parties required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323601/ | 233 Ga. 416 (1975)
211 S.E.2d 714
HACKNEY et al.
v.
THE STATE.
29212.
Supreme Court of Georgia.
Argued October 16, 1974.
Decided January 7, 1975.
Watson, Brown & Foster, George T. Brown, Jr., for appellants.
William H. Ison, District Attorney, J. W. Bradley, Assistant District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee.
PER CURIAM.
Clarence Lidell Hackney and Frances Mildred Hackney were convicted of armed robbery. Clarence Hackney was given a sentence of fifteen years, and Frances Hackney was given a sentence of one year. They appeal from their convictions and sentences.
The appellants were jointly indicted with Vonrath Nordeen Bergholm, Jerry Lyons Frey, and John Gray Bolton for the armed robbery of the Hungry Bull restaurant in Forest Park. Patricia Ann Bergholm admitted participation in the robbery, and was given immunity from prosecution in return for a statement concerning the robbery. The co-indictees later entered guilty pleas.
1. The appellants contend that the trial court erred in denying their motion to suppress evidence obtained from their residence by an alleged illegal search and seizure without a search warrant.
At the hearing on this motion a police detective of DeKalb County who assisted in the search testified that *417 Clarence Hackney had given him written consent to search his residence. This written consent was introduced in evidence.
A police detective of the City of Forest Park testified that he had received verbal consent from Clarence Hackney to search his residence, Hackney stating that he had no objections whatsoever to the search, after being advised of his right not to have a search made without a search warrant.
The appellants assert that there was a conflict in the evidence because the written consent was dated January 22, 1973, and the DeKalb detective testified that the search was conducted on that date, whereas the Forest Park detective testified that the search was conducted January 23, 1973, under verbal consent given on that date.
It is apparent that there was a mistake either as to the date of the search, or the date on the written consent, but the evidence showed without conflict that one officer had obtained a written consent, and the other officer an oral consent, to search the residence of the appellants, and that these consents were obtained prior to the search.
The court did not err in denying the appellants' motion to suppress evidence obtained from a search of their residence, nor in admitting this evidence on the trial.
2. The appellants contend that the court erred in denying their motion for mistrial on the ground that two of their co-indictees were allowed to plead guilty in open court before all of the jurors.
These co-indictees admitted their guilt in their testimony at the trial of the appellants' case, and there was no prejudice to the appellants in allowing them to enter their guilty pleas in open court.
3. The appellants complain that the court denied their attorney's request to examine each juror out of the presence of the other jurors.
The record does not reveal whether this request referred to the voir dire questions, or to the individual examination of jurors thereafter. Whichever examination was referred to, there is nothing in the record to indicate that the trial judge abused his *418 discretion in refusing to allow an isolated examination of each prospective juror. Compare: Smith v. State, 225 Ga. 328 (5) (168 SE2d 587); Pass v. State, 227 Ga. 730 (8) (182 SE2d 779); Whitlock v. State, 230 Ga. 700 (5) (198 SE2d 865).
4. It is asserted that the assistant district attorney trying the case continuously attempted to interject evidence concerning a robbery of a Hungry Bull restaurant in DeKalb County which occurred after the armed robbery for which the appellants were on trial.
The appellants' co-indictees were apprehended after the DeKalb County robbery, and they implicated the appellants in the previous robbery in Forest Park.
We have examined the questions, statements, and testimony pointed out in connection with this enumerated error and find that the trial judge's instructions to the jury and reprimands to the state's attorney were sufficient to prevent any prejudice to the appellants from any mention of the DeKalb County robbery.
5. It is asserted that the court erred in allowing a witness to read the statement of the co-indictee Frey to the jury, and in allowing the same statement to be again read by the assistant district attorney in the presence of the jury.
The statement was objected to on the grounds that it was hearsay evidence as to the appellants on trial, and that it implicated them in crimes other than the one for which they were being tried. After instructions that the portions of the statement implicating the appellants in other crimes be marked out, the trial judge allowed the statement to be read in evidence, subject to the right of the appellants to cross examine Frey with reference to it.
Frey had previously testified. In his testimony, as in his statement, he implicated Clarence Hackney only. (He had formerly been married to Frances Hackney). When he was recalled as a witness, his statement was read to him, since he could not read. He admitted that it was the statement that he signed, and that it was a true account of the events related, except that it incorrectly stated that he had taken Clarence Hackney's share of the money to him about two days later.
Whether or not it was error to admit this statement *419 as the statement of a co-conspirator made during the time that some of the conspirators were concealing the crime (see Bennett v. State, 231 Ga. 458 (202 SE2d 99)), any error was made harmless by the fact that Frey acknowledged at the trial that he had made the statement, counsel for the appellants cross examined him in regard to it, and he testified at the trial to the same facts contained in the statement except the portion he denied, which was not material in convicting the appellants.
6. The appellants complain that State's Exhibit 37 was admitted in evidence, but is missing from the transcript. They further complain that State's Exhibit 35 went out to the jury even though it was not admitted in evidence.
Exhibit 35 is a copy of Frey's statement which was read to the jury. The record shows that the state's attorney did not want the original statement (Exhibit 37) altered by marking out objectionable parts of it, and offered a copy (Exhibit 35) instead, which explains the absence of Exhibit 37 from the transcript.
The trial judge specifically stated that Frey's statement would not go out with the jury. While the transcript contains a copy of Exhibit 35, there is nothing in the record to indicate that Exhibit 35 was sent to the jury room contrary to the trial judge's instruction.
There is no merit in these enumerated errors.
7. The appellants assert that the verdicts of guilty were not supported by the evidence; and that the testimony of the state's witnesses was contradictory in important areas, thereby discrediting their testimony.
The main evidence against the appellants was the testimony of their co-conspirators. All four of them testified that Clarence Hackney participated in the planning and accomplishment of the armed robbery; three of them testified that Frances Hackney was involved in planning it. The testimony of one accomplice may be corroborated by the testimony of other accomplices. Pope v. State, 171 Ga. 655 (156 S.E. 599); McCormick v. State, 176 Ga. 21 (4) (166 S.E. 762).
The conflicts in the testimony of the state's witnesses made an issue for the determination of the jury.
There was ample evidence to authorize the *420 convictions, and there is no merit in these enumerated errors.
8. It is contended that the trial court erred in the sentencing phase of the trial by admitting in evidence previous sentences of Clarence Hackney because they were not properly certified.
No objection was made to the admission of this evidence at the pre-sentence hearing, and it is too late to raise the question of its admissibility for the first time after verdict. Hasp v. State, 228 Ga. 806 (188 SE2d 511).
9. It is asserted that the trial judge erred in failing to give instructions to the jury, or granting a mistrial, at the sentencing phase of the trial, when the assistant district attorney made the statement in the presence of the jury: "Once an armed robber, always an armed robber."
This statement was made while the state's attorney was questioning Clarence Hackney. On objection by defense counsel, the trial judge rebuked state's counsel for making the statement, and counsel apologized to the court and the jury. Defense counsel then asked for a new trial on the sentencing phase.
It was not error for the trial judge to refuse to grant a mistrial.
10. It is contended that the court erred in refusing to grant a new trial on the ground of newly discovered evidence.
The newly discovered evidence was that of Roger C. Slora, a federal prisoner, who made an affidavit stating that: He was in prison in the Clayton County jail during the month of November, 1973, with Frey and Bergholm and heard them plotting to put the blame on Clarence Hackney for the robbery of the Hungry Bull, although they said they had planned and perpetrated the crime without any knowledge on Hackney's part. He was later in the same cell with Bergholm, who told him that he paid a young boy $50 to unlock the door to the restaurant, and that was how they got in. He was later in a cell with Hackney, and on November 21, 1973, (after the date of the appellants' trial), he gave Hackney a letter informing him of these facts.
The state offered the affidavit of a Deputy Sheriff of Clayton County, who stated that at no time during the *421 incarceration of Frey was he in the same cell as Slora; and that at no time were Frey, Slora, and Bergholm in the same cell together.
The newly discovered evidence merely impeached the testimony on the trial of the co-indictees of the appellants, and the state's counter-showing attacked the credibility of the affiant. The trial judge did not abuse his discretion in denying the motion for new trial on the ground of this newly discovered evidence. Kitchens v. State, 228 Ga. 624 (4) (187 SE2d 268).
Judgment affirmed. All the Justices concur, except Gunter and Ingram, JJ., who dissent. Hill, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323602/ | 554 S.E.2d 202 (2001)
251 Ga. App. 171
JACKSON
v.
The STATE.
No. A01A1523.
Court of Appeals of Georgia.
August 9, 2001.
April Dabney-Froe, for appellant.
Richard R. Read, Dist. Atty., for appellee.
MIKELL, Judge.
Michael Leon Jackson was convicted of four counts of child molestation based on incidents involving his two stepdaughters. The trial court denied his motion for new trial, and this appeal followed. Jackson argues *203 that the court improperly expressed an opinion by posing questions to a defense witness and that his counsel rendered ineffective assistance. We disagree and affirm.
The record shows that in 1996 Jackson married Effie Mae Hamm, who had two daughters, T.H., age ten, and J.H., age six. Initially, Jackson and his wife slept in a pick-up truck covered with a "camper" parked outside the family home, while the children slept inside. In 1998, Hamm underwent surgery and began sleeping in the house during her recuperation. Her daughters took turns sleeping with Jackson in the pickup truck.
T.H. testified that around the time of her eleventh birthday, on a night when she was sleeping in the truck with Jackson, he reached under her nightgown and panties and inserted his fingers into her vagina. She further testified that Jackson placed her hand on his erect penis. T.H. testified that she did not tell anyone what Jackson had done because she was afraid.
The record further shows that the family moved to an apartment complex several months later. T.H. testified that on one occasion, Jackson climbed into her bed at the apartment, put his hand inside her panties, and fondled her vagina. T.H. also described a third incident in the summer of 1998 when Jackson took T.H. and J.H. on a trip to Florida. T.H. testified that Jackson touched her vagina while she slept in the truck with J.H.
There was evidence that Jackson also molested J.H. She testified that on a day she stayed home from school, she was sleeping in the living room when Jackson lay down next to her, reached inside her underwear, and rubbed her "private area" with his hand. When presented with a diagram, J.H. indicated that Jackson touched her vaginal area.
In December 1998, after T.H. learned that Jackson had also molested her younger sister, T.H. told a school counselor that her stepfather had touched her. The counselor contacted the authorities, and Jackson was arrested.
1. On appeal, Jackson first argues that his conviction should be reversed because the trial judge intimated his opinion as to Jackson's guilt in violation of OCGA § 17-8-57 when he questioned a defense witness. We reject this argument.
Rufus Ray, Hamm's teenaged son, testified that his half-sisters, T.H. and J.H., his grandmother, a male cousin, and his brother all resided in the home with Jackson and Hamm before the family moved to an apartment. Ray further specified where each family member slept in the crowded home. After defense counsel and the state had an opportunity to examine the witness, the court stated, "I want to make sure I understand the sleeping arrangements out on Bethel Road." The court proceeded to ask Ray to explain again where the family members slept and inquired why the young girls were required to sleep outside in the truck with Jackson.
According to OCGA § 17-8-57, it is error for a judge to "express or intimate his opinion as to what has been proved or as to the guilt of the accused." Jackson does not specify what portion of the court's examination constitutes a violation of OCGA § 17-8-57; rather, he simply argues that the jury could have determined that the judge was suspicious of the sleeping arrangements.
Contrary to Jackson's argument, the court's straightforward inquiries were not an improper expression of its opinion of the case. See Denny v. State, 226 Ga.App. 432, 435(10), 486 S.E.2d 417 (1997). Unlike the judge in Paul v. State, 272 Ga. 845, 846(1), 537 S.E.2d 58 (2000), who "intimated his opinion as to the credibility of witnesses and the guilt of the defendant," the court in the case sub judice simply asked Ray to clarify his testimony regarding the sleeping arrangements in the home, without commenting on the evidence or the guilt of the defendant.
It is well settled that a trial court may question a witness in order to develop the truth of a case. Eagle v. State, 264 Ga. 1, 3(3), 440 S.E.2d 2 (1994).
Though a judge is prohibited from expressing or intimating his opinion as to what has or has not been proved, the trial judge does have the right to propound a question or series of questions to any witness *204 for the purpose of developing fully the truth of the case. The extent to which the examination conducted by the court shall go is a matter within the court's discretion.
Calloway v. State, 199 Ga.App. 272, 274-275(7), 404 S.E.2d 811 (1991), citing Eubanks v. State, 240 Ga. 544, 546-547(2), 242 S.E.2d 41 (1978). We find no abuse of discretion in the case at bar.
Furthermore, at the close of the trial, the judge charged the jury as follows:
[D]uring the course of the proceedings, I asked a question or two of the witnesses and so on. And I want to give you this instruction. By no ruling or comment which the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case.... [W]hatever the facts of this case are, is a matter for you, the jury, to decide. The court has not intended to express any opinion, ladies and gentlemen, upon the credibility of the witnesses.... [T]he issue of credibility of witnesses and believability of witnesses and the weight to be given their testimony is a matter entirely for you, the jury, to decide.
Accordingly, we conclude that the court did not violate OCGA § 17-8-57. See Hunt v. State, 247 Ga.App. 464, 469(5), 542 S.E.2d 591 (2001).
2. Next, Jackson argues that he was denied effective assistance of counsel. Jackson's trial counsel withdrew from the case following the verdict, and his present attorney filed an amended motion for new trial alleging ineffective assistance of counsel. Following a hearing, the court denied Jackson's motion for new trial. We affirm.
In order to establish ineffective assistance of counsel, Jackson must show that his trial counsel's performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Zant v. Moon, 264 Ga. 93, 97(2), 440 S.E.2d 657 (1994). Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel's performance must be highly deferential. Pace v. State, 239 Ga. App. 506, 510(7), 521 S.E.2d 444 (1999).
Jackson argues that his trial counsel's performance was deficient because she did not object to the court's examination of Ray or move for a mistrial following the court's colloquy with the witness. Jackson erroneously contends that counsel's failure to object rendered the argument waived and not subject to appellate review.
Counsel's failure to object did not prejudice Jackson's defense, as the allegation of a violation of OCGA § 17-8-57 is subject to appellate review under plain error analysis. Paul, supra at 848-849(3), 537 S.E.2d 58. Moreover, as we concluded in Division 1, the trial court did not improperly express its opinion in this case. Thus, defense counsel's failure to object did not constitute deficient performance. Accordingly, the trial court did not err in denying Jackson's motion for new trial on this ground.
Judgment affirmed.
BLACKBURN, C.J., and POPE, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323635/ | 211 S.E.2d 864 (1975)
24 N.C. App. 636
DAYS INN OF AMERICA, INC., Petitioner,
v.
BOARD OF TRANSPORTATION and the Department of Transportation & Highway Safety, Respondents.
No. 7410SC917.
Court of Appeals of North Carolina.
February 19, 1975.
*866 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. C. Diederich Heidgerd, Raleigh, for respondents-appellants-appellees.
McLean, Stacy, Henry & McLean by William S. McLean, Lumberton, for petitioner-appellee-appellant.
Bailey, Dixon, Wooten, McDonald & Fountain by Kenneth Wooten, Jr., Raleigh, amicus curiae.
HEDRICK, Judge.
Respondents' Appeal
Respondents' appeal presents the question of whether the Outdoor Advertising Control Act, G.S. § 136-126 et seq., became effective on 17 July 1972.
By its terms, the Act provides that it is not to "have any force and effect until federal funds [have been] made available to the State for the purpose" of controlling outdoor advertising "and the Board of Transportation has entered into an agreement with the Secretary of Transportation" with respect to the control of outdoor advertising along the interstate and primary highway systems in North Carolina. G.S. § 136-140.
Respondents argue that all persons are charged with notice of public laws and the provisions thereof, 58 Am.Jur.2d, Notice § 21, and therefore petitioner is charged with notice that the Act became effective on 17 July 1972, when T. J. Morawski notified the State Highway Administrator that federal funds had been "made available" as required by G.S. § 136-140.
While it may not be an unlawful delegation of authority for the legislature to enact a statute complete in all respects which is to become operative upon the happening of a certain contingency or future event, 16 Am.Jur.2d, Constitutional Law, § 258, we think it would be absurd to hold that the statute in question took effect, and the general public, including the petitioner, was charged with notice of such statute simply because an employee of an agency of the federal government wrote a letter to an agency of the State stating that federal funds had become available for the purpose of carrying out the provisions of the Act. We are of the opinion that the law does not charge a party with knowledge of the happening of a statutory contingency which cannot be determined by the exercise of reasonable diligence. See McClure v. Township of Oxford, 94 U.S. 429, 24 L. Ed. 129 (1877).
It is very doubtful whether petitioner could have determined the existence of Morawski's letter at or prior to the time it purchased the billboards from Ever-Glo. Indeed, by contending that the petitioner in this case was charged with notice of the Outdoor Advertising Control Act and the provisions thereof as of the date of Morawski's letter, the respondents are arguing that the petitioner ought to have had notice of a fact of which the Board of Transportation itself was obviously unaware. It would have been a relatively simple matter for the Board of Transportation, the administrative agency charged with the responsibility of enforcing the Outdoor Advertising Control Act, upon receipt of notice from the agency of the federal government that federal funds were available, to have adopted a resolution or ordinance declaring that the contingency referred to in G.S. § 136-140 had occurred and that the Act was in effect.
*867 We, therefore, hold that G.S. § 136-126 et seq., did not become effective on 17 July 1972 and that the trial court did not err in enjoining the Board of Transportation from enforcing its order of 4 October 1973 as to the petitioner.
Petitioner's Appeal
On 22 November 1974 respondents filed a motion in this court to dismiss petitioner's appeal on the ground that petitioner was not an aggrieved party under G.S. § 1-271. We agree. Since the superior court permanently enjoined the respondents from enforcing the order dated 4 October 1973 challenged by petitioner, we fail to perceive how petitioner could be considered an aggrieved party. Therefore, petitioner's appeal is dismissed.
The result is: as to respondents' appeal, the judgment permanently enjoining respondents from enforcing the order dated 4 October 1973 is affirmed; petitioner's appeal is dismissed.
Respondents' appealAffirmed.
Petitioner's appealDismissed.
BRITT and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323638/ | 554 S.E.2d 783 (2001)
251 Ga. App. 615
HILL et al.
v.
CITY OF FORT VALLEY et al.
No. A01A1352.
Court of Appeals of Georgia.
September 20, 2001.
*784 Ronny E. Jones, for appellants.
Miller & Towson, James V. Towson, Joel A. Howe, Jones, Cork & Miller, Sharon H. Reeves, Thomas C. Alexander, Macon, Gregory Homer, for appellees.
RUFFIN, Judge.
In 1981, Edwards Funeral Home interred Mrs. Logie Postell at Willow Lake Memorial Gardens Cemetery, which is owned by the City of Fort Valley. In 1997, the funeral home discovered the casket had been buried in the wrong plot, and, at the City's expense, the casket was removed and reburied in the correct plot. Mrs. Postell's children ("plaintiffs") sued the funeral home and the City, asserting claims for intentional infliction of emotional distress, trespass, and wrongful burial. Both defendants moved for summary judgment. The trial court granted both motions, and the plaintiffs appeal. For reasons that follow, we affirm.
1. In reviewing a trial court's grant of summary judgment, we conduct a de novo review of the law and evidence, and we construe all evidence, inferences, and conclusions in favor of the party opposing the motion.[1] So viewed, the relevant facts show that in 1974, the City purchased Willow Lake Memorial Gardens Cemetery from Edwards Funeral Home. Although the funeral home no longer owned the cemetery, it continued to sell lots on behalf of the City and conduct burials at the cemetery. The City was responsible for authorizing contracts for the sale of lots, identifying the grave site, and maintaining the cemetery.
After Mrs. Postell died in February 1981, her family shared the cost of purchasing four *785 plots at the cemetery through Edwards Funeral Home. Although Mrs. Postell's children contributed to the cost of the plots, the deed was recorded in the name of R.B. Postell, Mrs. Postell's brother. The family members agreed that one plot would be reserved for R.B. Postell, but that the remaining two plots could be used for the children. At the time of Mrs. Postell's death, the funeral home used grave markers to identify the plot for the gravediggers.
In February 1997, R.B. Postell died, and he was interred at the cemetery next to his sister. In June of that year, R.B. Postell's children contacted Claybon Edwards, the owner of the funeral home, regarding improvements to the grave site. In connection with the proposed improvements, Edwards visited the grave with R.B. Postell's daughter, Bertha Cook, and two of Mrs. Postell's children, Annie Postell and Bertha Jones. When Edwards returned to the funeral home, he discovered that Mrs. Postell was not buried on the correct plot. Upon making the discovery, Edwards asked Cook to come to the cemetery, and Cook returned with one of her cousins.
According to Edwards, he discussed the situation with the two and received permission to move Mrs. Postell. However, neither Bertha Jones nor Annie Postell recalled having any such discussion with Edwards. In two affidavits, Bertha Cook gave inconsistent testimony regarding her discussion with Edwards. In one affidavit, she averred that, when meeting with Edwards, "at no time ... did we discuss moving the graves of my relatives" and that she never "authorize[d] anyone to move the graves of [her] relatives." In a subsequent affidavit, however, she admitted that Edwards told her that Mrs. Postell's "grave was on the next lot over and would have to be moved" and that she gave this information to Annie Postell.
On July 9, 1997, at the City's expense, Mrs. Postell's grave was moved four feet to the correct plot. When Annie Postell learned that the grave had been moved, she, Bertha Jones, and their brother, Henry Hill, went to the cemetery and saw that their mother's grave had been disturbed and that the headstone had been moved. In February 1999, the plaintiffs sued the City and the funeral home for trespass and intentional infliction of emotional distress. In January 2000, plaintiffs filed an amended complaint, which added a claim for wrongful burial.
Both defendants filed motions for summary judgment, which the trial court granted. In its order, the trial court found, inter alia, that the evidence failed to establish a claim of intentional infliction of emotional distress, that the plaintiffs lacked standing to bring a claim for trespass, and that the claim for wrongful burial was barred by the statute of limitations. As the trial court ruled correctly, we affirm.
(a) To sustain a claim for intentional infliction of emotional distress, the plaintiffs must prove the following four elements:
(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.[2]
To warrant the imposition of liability for such claim, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."[3] The evidence presented here does not rise to this level as a matter of law.
As the plaintiffs do not allege that they suffered any physical injury or pecuniary loss as a result of the disinterment and reburial of their mother, their recovery against the City and funeral home depends on a showing that the conduct of the two defendants was "malicious, wilful or wanton."[4] Even if the City and funeral home *786 were insensitive or negligent in failing to obtain the express permission of the plaintiffs prior to moving their mother's grave, there is nothing in the record to raise such conduct to the degree of wilfulness or wantonness that is necessary for a claim of intentional infliction of emotional distress.[5]
Even assuming that the defendants' actions can be characterized as wilful or wanton, plaintiffs' claim for intentional infliction of emotional distress still must fail. To sustain such claim, the plaintiffs must show that the conduct of the defendants was directed towards them.[6] The record here shows that, in moving the casket containing the remains of Mrs. Postell, the defendants were trying to correct a mistake that had been made many years earlier. Although the defendants should have shown more consideration for the next of kin, there is nothing to suggest that the defendants' conduct was directed towards the plaintiffs.[7] Thus, the plaintiffs are unable to sustain a claim for intentional infliction of emotional distress,[8] and the trial court properly granted the defendants' motions for summary judgment on this claim.
(b) The plaintiffs assert "[t]hat the disturbance of the remains of [Mrs. Postell] by the Defendants was a trespass upon the burial plot owned by the Plaintiffs." Notwithstanding the plaintiffs' contention that they owned the plot, the undisputed evidence shows that the plot had been deeded solely to R.B. Postell, and thus the plaintiffs, who are not the heirs of R.B. Postell, have no property interest in the lot.[9] Although Georgia courts recognize a right of recovery for interference with an easement of burial, "the property right [is] acquired by the purchase of [the] cemetery plot."[10] Accordingly, the trial court correctly concluded that the plaintiffs lack standing to pursue a claim for trespass.[11]
The plaintiffs further assert that they have a property interest in their mother's remains, and that the defendants "committed a trespass against their personalty when the [defendants] moved their mother without permission." The trial court found that "[t]here is no evidence in the record showing that the body of Ms. Postell was harmed or damaged in any way." Thus, the court reasoned, "no action can lie for trespass to the body."
It is true that, as Mrs. Postell's children, the plaintiffs have a "quasi-property right" in her body.[12] Accordingly, the plaintiffs have standing to bring a claim for trespass to the body. Pursuant to OCGA § 51-10-3, "[a]ny unlawful abuse of or damage done to the personal property of another constitutes a trespass for which damages may be recovered." Here, there is no evidence that the body was damaged in any way by the move. According to the affidavit of Horace Bell, who was present when the grave was moved, the burial vault remained sealed at all times, and the remains were not disturbed. Thus, the sole issue is whether moving the body constituted an unlawful abuse of the body.
The record shows that, upon discovering that Mrs. Postell was buried on the wrong plot, the defendants had the casket removed and reburied in the correct plot. Although the defendants failed to secure the permission of the next of kin prior to moving the casket, the mere movement of the casket from a plot where the casket had no right to be to the correct burial plot does not rise to *787 the level of unlawful abuse necessary to sustain a claim for trespass to the body itself.[13] Here, the plaintiffs' true complaint is not for any trespass to the body, but to the plot.[14] For the reasons discussed above, however, they are unable to sustain such claim.
(c) In their amended complaint, the plaintiffs assert that, in 1981, the defendants failed to properly mark the boundaries of the grave site, which resulted in their mother being buried in the wrong place. The trial court concluded that any claim for wrongful burial in 1981 is barred by the statute of limitations. Again, we agree.
The plaintiffs do not contend that the defendants intentionally mismarked the grave site. Thus, their claim sounds in negligence, and such claim must be brought within four years.[15] Although the plaintiffs clearly brought their claim well beyond four years, they argue that the statute of limitation was tolled by the fraud of the defendants.
OCGA § 9-3-96 provides that if a defendant is "guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud." To avoid summary judgment based on the statute of limitation, however, the plaintiffs are "required to present some evidence of actual fraud."[16] Here, there is no evidence that the defendants acted fraudulently. To the contrary, Edwards testified that until 1997 he had no knowledge that Mrs. Postell was buried on the wrong plot.
The plaintiffs essentially argue that, as Edwards was responsible for Mrs. Postell's burial, he had to have known that she was buried in the wrong plot and that his failure to disclose this information constituted concealment. However, such conclusory statements are not sufficient to survive summary judgment.[17] Accordingly, the trial court correctly concluded that this claim is barred by the statute of limitation.
2. In their second enumeration of error, the plaintiffs contend that the trial court erred in excluding the affidavit of Martha Harris, in which she purported to authenticate City records regarding other wrongful burials at the cemetery. Pretermitting whether the trial court should have considered the affidavit, our holding in Division 1 renders this issue moot.
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] See Northside Hosp. v. Ruotanen, 246 Ga.App. 433-434, 541 S.E.2d 66 (2000).
[2] (Punctuation omitted.) Id. at 435, 541 S.E.2d 66.
[3] (Punctuation omitted.) Id.
[4] (Punctuation omitted.) Edwards v. A.S. Turner & Sons, Inc., 181 Ga.App. 105, 106(2), 351 S.E.2d 505 (1986).
[5] See id. See also Northside Hosp., supra (hospital official's conduct toward bereaved, although rude and insensitive, was not outrageous); Hall v. Carney, 236 Ga.App. 172, 174(2)(b), 511 S.E.2d 271 (1999) (conduct of church members in disinterring body of child not malicious, wilful, or wanton).
[6] See id.
[7] See id.
[8] See Ryckeley v. Callaway, 261 Ga. 828, 829, 412 S.E.2d 826 (1992).
[9] See Black v. Ga. Mem. Park Cemetery, 173 Ga. App. 290, 291(2), 325 S.E.2d 901 (1985).
[10] (Punctuation omitted.) Id.
[11] See id. See also Hall, supra at 174-175(3), 511 S.E.2d 271.
[12] Wages v. Amisub of Ga., 235 Ga.App. 156, 157(1), 508 S.E.2d 783 (1998).
[13] Cf. Alternative Health Care Systems v. McCown, 237 Ga.App. 355, 356(2)(a), 514 S.E.2d 691 (1999) (plaintiff "asserted a claim of trespass on her quasi-property rights in the body of her deceased husband, arising from the removal of [his] eyes despite her refusal to consent").
[14] Indeed, in their complaint, the plaintiffs assert only a claim for trespass to the plot.
[15] See Armstrong v. Royal Lakes Assoc., 232 Ga. App. 643, 644(1), 502 S.E.2d 758 (1998) ("With respect to [appellants'] negligence claim, the statute of limitation on an action for damages to realty is four years from the date the right of action accrues.").
[16] AAA Truck Sales v. Mershon Tractor Co., 239 Ga.App. 469, 471(1), 521 S.E.2d 403 (1999).
[17] See Wilson v. Phillips, 230 Ga.App. 290, 292, 495 S.E.2d 904 (1998) (plaintiffs "failed to show any act or artifice by [defendants which would] deter them from timely obtaining the true facts"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323688/ | 133 Ga. App. 256 (1974)
211 S.E.2d 192
RATLIFF
v.
THE STATE.
49787.
Court of Appeals of Georgia.
Submitted October 3, 1974.
Decided November 7, 1974.
Kopp, Peavy, & Conner, J. Edwin Peavy, for appellant.
EVANS, Judge.
Defendant was convicted on the charge of interfering with peace officers (city police and deputy sheriff) while serving a legal search warrant. See Code Ann. § 26-2505 (a misdemeanor). He was sentenced to serve three months, but was to be discharged at any time upon payment of a $100 fine. Defendant appeals. Held:
1. There was evidence that the officers while serving a search warrant instructed defendant (who approached the place under search) he would have to wait until the search was over to enter. He returned twice seeking to enter, and on the second attempt, after being twice told to stay away from the premises, and against the advice of the last officer who so advised him, he sought to enter and was placed under arrest. This evidence was sufficient to support the verdict. See Chambers v. State, 127 Ga. App. 196 (192 SE2d 916) (reversed on other grounds); Moses v. State, 6 Ga. App. 251 (2) (64 S.E. 699) (reversed on other grounds); Harrison v. State, 26 Ga. App. 645 (1) (107 S.E. 90). The case differs on its facts from Moses v. State, 6 Ga. App. 251, supra, cited by defendant, because the defendant there offered resistance after arrest, due to the failure of the officer to take him before a magistrate.
2. The court charged the jury, using the language of the statute, that a person who "knowingly and wilfully obstructs any law enforcement officer in the lawful discharge of his official duties," is guilty of a misdemeanor. No further definition or explanation of the charge would be necessary without written request. No further explanation of the word "interference" and "knowingly and wilfully obstructs or hinders" was necessary in order for the jury to fully understand the charge. The court further advised it was for the jury to decide for itself whether the action of the defendant would hinder or impede the officers in carrying out their assigned duties. McRae v. State, 27 Ga. App. 613 (1) (109 S.E. 688).
3. In response to counsel's request to elaborate on the definition of what constitutes interfering with police *257 officers in the performance of their lawful duties, the court added: "I would not think that it would of necessity have to be violent or to constitute a particular threat to the officer. I think the test that the law requires would be that it effectively hindered or impeded the law enforcement in the carrying out of their duties." This excerpt of the charge is not subject to the attack that almost any act or conduct done in the presence of a police officer would subject him to arrest under this statute.
Judgment affirmed. Pannell, P. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2401791/ | 289 S.W.2d 583 (1956)
Charles Hubert GUINN, alias Charles Hubert Quinn, Appellant,
v.
The STATE of Texas, Appellee.
No. 28269.
Court of Criminal Appeals of Texas.
April 25, 1956.
*584 C. C. Divine, Houston, for appellant.
Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
Upon his plea of guilty before the court, appellant was convicted of the offense of burglary and assessed punishment at five years in the penitentiary.
Imposition of sentence was by the trial court deferred and appellant was placed upon probation under the terms of the Adult Probation and Parole Law, Art. 781b, Vernon's Ann.C.C.P.
This is an appeal from an order revoking such probation and imposition of sentence under the judgment of conviction.
The statement of facts appearing in the record is shown to have been filed in the trial court after the ninety-day period allowed by Art. 759a, § 4, V.A.C.C.P., and therefore cannot be considered. White v. State, Tex.Cr.App., 254 S.W.2d 129; and Staley v. State, Tex.Cr.App., 276 S.W.2d 278.
In the absence of a statement of facts, we are unable to pass upon appellant's contention that the evidence was insufficient to authorize the court to revoke the probationLynch v. State, 159 Tex. Cr.R. 267, 263 S.W.2d 158; nor the appellant's complaint to the action of the court in overruling his motion for continuance. Barnes v. State, 159 Tex. Crim. 78, 261 S.W.2d 597.
Appellant contends that the judgment of probation did not sufficiently specify the condition upon which the probation was granted.
The judgment ordered appellant released upon probation upon the following terms:
"Terms Probation 1. Not to violate the law of this or any other State of the United States."
The term of probation fixed in the judgment was sufficient under Section 3 of Art. 781b, supra, which authorizes the court to determine the terms and conditions of probation and provides that they may include that the probationer shall: (a) Commit no offense against the laws of this or any other State or the United States.
Appellant, for the first time on appeal, contends that the state's motion to revoke the probation did not sufficiently allege how, when or where he had violated the law. The appellant, having failed to question the sufficiency of the motion in the trial court, is in no position to urge such contention on appeal.
The judgment of the trial court is affirmed.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724364/ | 614 S.W.2d 277 (1981)
In re the MARRIAGE OF Doyle J. HUNTER and Eleanor Louise Hunter.
Doyle J. Hunter, Petitioner-Respondent, and
Eleanor Louise Hunter, Respondent-Appellant.
No. 11792.
Missouri Court of Appeals, Southern District, Division Two.
March 5, 1981.
Rehearing Denied March 27, 1981.
*278 William A. Wear, Blythe Crist-Brown, Wear & Wear, Springfield, for petitioner-respondent.
Ivella McWhorter Elsey, Springfield, for respondent-appellant.
PREWITT, Presiding Judge.
Appellant appeals from a judgment dissolving the parties' marriage, setting apart to each party separate property and dividing marital property. She complains that the trial court erroneously found that the house where the parties resided previous to their separation, and where she resided at trial, was marital property. The court awarded the house to respondent. It was purchased prior to the parties' marriage with funds of respondent and conveyed to respondent and Eleanor Zinader, appellant's name before the marriage, as joint tenants with right of survivorship. Appellant here contends that a one-half interest in the house is her separate property.
At trial neither party claimed an interest in the house as separate property. It was treated as marital property and each party sought to be awarded all of it. Appellant cannot now change her position and contend that the residence was nonmarital property. On appeal a party is bound by the position he took in the circuit court. State ex rel. State Highway Commission v. County of Camden, 394 S.W.2d 71, 75 (Mo. App.1965). An appellate court will review a case only upon the theory tried and a party will be held on appeal to his theory at trial. Moore v. State Farm Mutual Automobile Insurance Company, 381 S.W.2d 161, 166 (Mo.App.1964). See also Russell v. Russell, 540 S.W.2d 626, 634 (Mo.App.1976).
In her reply brief appellant contends that the court erred in not declaring valid the parties' "antenuptial agreement". As this claim of error was not referred to in the appellant's initial brief we cannot consider it. A claim of error first set forth in a reply brief does not present an issue for appellate review. Lytle v. Page, 591 S.W.2d 421, 426 (Mo.App.1979).
The judgment is affirmed.
HOGAN, BILLINGS and MAUS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323881/ | 603 S.E.2d 776 (2004)
269 Ga. App. 289
RIDING
v.
The STATE.
No. A04A1780.
Court of Appeals of Georgia.
August 26, 2004.
Webb & D'Orazio, Robert Webb, Marietta, for Appellant.
Barry Hixson, Assistant Solicitor General, David Cannon, Solicitor General, for Appellee.
*777 BLACKBURN, Presiding Judge.
Following a bench trial, William Christopher Riding appeals his conviction for driving under the influence, contending that the trial court erred by denying his motion to suppress evidence of his intoxication after he was illegally stopped without the requisite articulable suspicion. For the reasons set forth below, we affirm.
On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court's judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. Thus, the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous.
(Punctuation and footnote omitted.) Sanders v. State.[1]
Viewed in this light, the record shows that, on the evening of October 27, 2002, a concerned citizen, who was clearly distraught, entered the Woodstock Police Precinct and reported directly to police that he had witnessed two cars being driven erratically and very dangerously. The concerned citizen described the two cars as a red Chevy Blazer with its hatchback opened and a small black passenger car with license plate number 7170AAH. The citizen stated further that he had last seen the two cars turn onto Towne Lake Parkway.
In response to the citizen's report, Officer Ballard drove down Towne Lake Parkway, and, minutes after the citizen's report had been received, he observed a red Chevy Blazer with its hatchback open and a black passenger vehicle following it out of a gas station. At that point, Officer Ballard initiated his blue lights and stopped both cars. At that point, Officer Ballard saw that the license plate number of the black vehicle was 7170AAY. Following the stop, Officer Ballard immediately smelled the odor of an alcoholic beverage on Riding, who was driving the Blazer, and, after Riding was subsequently arrested, a breath test showed that his blood alcohol concentration was over the legal limit.
Prior to his trial for DUI, Riding filed a motion to suppress the evidence of his intoxication, contending that his initial stop by Officer Ballard was illegal because it was not supported by the requisite articulable suspicion. The trial court disagreed and denied Riding's motion to suppress. Riding now appeals this ruling.
Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such actiona founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.
(Punctuation omitted.) State v. McFarland.[2]
This case is controlled by State v. Noble.[3] In Noble, an officer was directing traffic at the scene of a grass fire when an unidentified motorist pulled to a stop beside him in order to report that she believed that the man driving the car behind her was drunk. Acting on this information, the officer stopped the driver behind the unidentified citizen and discovered that the driver was, in fact, driving under the influence. After his arrest, the driver moved to suppress the evidence of his intoxication, contending that the officer lacked reasonable, articulable suspicion to make the stop.
On the basis of these facts, this Court held:
The report by the "concerned citizen" driver in this case that she believed the defendant was drunk must certainly be considered a reasonable and articulable basis for *778 a suspicion by the officer that the defendant might be driving under the influence of alcohol. It follows that the officer was authorized to detain the defendant briefly for the limited purpose of determining whether he in fact exhibited perceptible manifestations of intoxication.
Noble, supra at 785, 347 S.E.2d 722 See also State v. Williams[4] (unidentified concerned citizen who speaks directly to police officer not considered anonymous tipster).
In this case, the concerned citizen, in person, spoke directly to the police. He specifically described the cars involved, including Riding's red Chevy Blazer with an open hatchback, and reported that the cars were being driven erratically in an illegal manner. Within minutes of the concerned citizen's report, Officer Ballard came into contact with cars matching the concerned citizen's description on the road on which the citizen had last seen them traveling. The concerned citizen's report, along with Officer Ballard's subsequent identification of the cars previously described by the concerned citizen, "must certainly be considered a reasonable and articulable basis for a suspicion by [Officer Ballard] that the defendant [may have been driving erratically and illegally]." Noble, supra at 785, 347 S.E.2d 722.
Although Riding argues the holdings of cases such as VonLinsowe v. State,[5] they do not change the result here. In these cases, a tip was received from a citizen who did not report in person directly to a police officer. For example, in VonLinsowe, police received only an anonymous phone call. As such, the tips received in cases such as VonLinsowe must be considered anonymous tips requiring corroboration, not tips from a concerned citizen. Therefore, such cases are distinguishable from the matter at hand, where the concerned citizen reported directly to the authorities.
Accordingly, Officer Ballard had the requisite articulable suspicion required to stop Riding, and the trial court correctly denied his motion to suppress.
Judgment affirmed.
BARNES and MIKELL, JJ., concur.
NOTES
[1] Sanders v. State, 247 Ga.App. 170, 543 S.E.2d 452 (2000).
[2] State v. McFarland, 201 Ga.App. 495, 496, 411 S.E.2d 314 (1991).
[3] State v. Noble, 179 Ga.App. 785, 347 S.E.2d 722 (1986).
[4] State v. Williams, 225 Ga.App. 736, 738, 484 S.E.2d 775 (1997).
[5] VonLinsowe v. State, 213 Ga.App. 619, 445 S.E.2d 371 (1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323801/ | 211 S.E.2d 201 (1975)
286 N.C. 377
STATE of North Carolina
v.
Bobby HINES et al.
No. 15.
Supreme Court of North Carolina.
January 31, 1975.
*203 Atty. Gen. Robert Morgan by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.
Grover Prevatte Hopkins, Tarboro of the North Carolina Bar; Morris Dees, Jr., and Charles F. Abernathy, Montgomery, Ala. of the Alabama Bar for defendants.
BRANCH, Justice.
Defendants assign as error the failure of the trial judge to grant their motions for nonsuit.
Rape is the carnal knowledge of a female person by force and against her will. The force necessary to constitute rape need not be physical force. Fear, fright, or coercion may take the place of force. State v. Flippin, 280 N.C. 682, 186 S.E.2d 917; State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Carter, 265 N.C. 626, 144 S.E.2d 826; State v. Thompson, 227 N.C. 19, 40 S.E.2d 620.
In passing upon a motion for judgment as of nonsuit, the trial judge must consider all the evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence and considering so much of defendant's evidence as may be favorable to the State. In considering the motion, the Court is not concerned with the weight of the testimony, or with its truth or falsity, but only with the question of whether there is sufficient evidence for the jury to find that the offense charged has been committed and that defendant committed it. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156; State v. Murphy, 280 N.C. 1, 184 S.E.2d 845; State v. Cooke, 278 N.C. 288, 179 S.E.2d 365; State v. Primes, supra; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679.
The only question of fact presented for determination by the jury was whether defendants obtained carnal knowledge of the prosecuting witness by force and against her will or whether the acts were done with her consent. The prosecuting witness testified that she did not consent to any one of the defendants having sexual relations with her and that each of the acts of intercourse was against her will. She stated that their strength was greater than hers and that she feared for her life. We *204 note that in the oral argument before this Court, counsel for defendants conceded that the evidence was sufficient to require submission of the case to the jury.
We hold that there was substantial evidence of all material elements of the crime of rape as to each defendant and that the trial judge properly overruled the motions for nonsuit.
Appellants, by their Assignment of Error Number 15, contend that certain statements made by the solicitor during the voir dire examination of prospective jurors were so prejudicial as to entitle them to a new trial.
After three jurors had been seated, the following exchange occurred:
"JUROR GRACE WHITEHURST: I am not comfortable with capital punishment. However, were I to serve on this jury, if I felt that the defendants were guilty, I would have to vote that way, but I would feel that I had endangered myself.
"MR. HOLDFORD: Well, everybody feels that way [sic] but this is the punishment that is provided at this point. And to ease your feeling, I might say to you that no one has been put to death in North Carolina since 1961.
OBJECTION: SUSTAINED.
EXCEPTION NO. 11."
We do not find that this Court has ruled upon the effect of similar statements by the solicitor during voir dire examinations of prospective jurors in a capital case; however, we find guidance in our cases in which the solicitors have made like remarks during jury arguments.
In State v. Little, 228 N.C. 417, 45 S.E.2d 542, the solicitor stated in his closing argument that "in all first degree cases where men were convicted there would be an appeal to the Supreme Court, and that in this case, if this defendant were convicted [sic] there would be an appeal to the Supreme Court, and that in the event the decision of the lower court should be affirmed, there would be an appeal to the Governor to commute the sentence of the prisoner; and that not more than sixty per cent of prisoners convicted of capital offenses were ever executed." Even though counsel for defendant subsequently told the trial judge that he did not desire an instruction to disregard this improper statement, this Court held such statement to be prejudicial error. Justice Winborne (later Chief Justice), writing for the Court, stated:
"[I]t is manifest that the statements of facts that if the defendant be convicted [sic] there would be an appeal to the Supreme Court, and that in the event the decision of the lower court should be affirmed there would be an appeal to the Governor to commute the sentence of the prisoner, and that not more than sixty per cent of prisoners convicted of capital offenses were ever executed, are matters not included in the evidence. Nor are they justified as being in answer to argument of counsel for defendant. They are calculated to unduly prejudice the defendant in the defense of the charge against him. `Who can say', as counsel for defendant ask, `to what extent the jury was influenced by the solicitor's statement that the prisoner, in the event his appeal did not obtain a new trial, that he still had a forty per cent chance to have his sentence commuted?' We hold the remarks to be error, and such error as called for correction by the presiding judge. [Citations omitted.]"
In State v. Hawley, 229 N.C. 167, 48 S.E.2d 35, the defendant was convicted of first-degree murder and sentenced to death. During the trial of this case, the solicitor, in his final argument to the jury, in part, argued:
"In North Carolina there are four capital felonies, that is felonies for which the punishment is death. Murder in the first degree is one of these felonies. The defendant is being tried under a bill of indictment which charges murder in the first degree, and the State is asking for a conviction. I know that juries as a rule *205 are reluctant to find defendants guilty of an offense for which the punishment is death. You, gentlemen of the jury, are but a small cog in the final determination and conclusion of this case. If you find the defendant guilty as charged, and the defendant is sentenced by the Presiding Judge to be executed in the manner which the statute prescribes, that does not mean that the defendant will be put to death. Before the defendant will be put to death [sic] the Supreme Court will review his trial, whether or not the defendant appeals, and the Supreme Court will seek to find some error or errors entitling the defendant to a new trial. If the Supreme Court fails to find error, the Governor, through the Commissioner of Paroles, will be urged to extend executive clemency. Petitions and letters of recommendation, recommending clemency, will be filed, and the Commissioner of Paroles, and in all probability the Governor, personally, will carefully review and consider this case and all recommendations and petitions filed in the defendant's behalf, before the defendant is executed, and I argue to you, gentlemen of the jury, that not all, but only a certain percentage, of the defendants who are convicted in North Carolina of capital felonies finally suffer the death penalty. You can see, therefore, gentlemen of the jury, that you are only a small cog in the final determination of what may happen to this defendant, even if you find him guilty, as charged in the bill of indictment."
No objection was made to the argument. This Court, nevertheless, granted a new trial, and, inter alia, stated:
"`The state does not ask for the conviction of a defendant except upon the facts and the law, stripped of all extraneous matter, the naked facts,' said Walker, J., in State v. Davenport, 156 N.C. 596, 72 S.E. 7 [13]. To find the facts is the sole province and responsibility of the jury. Moreover, what consequences the verdict on the facts may bring to defendant is of no concern to the jury. Hence, the remarks here tend to disconcert the jury in fairly and freely deliberating upon the facts and in arriving at a just and true verdict.
"Moreover, here as in the Little case it is doubted that the harmful effect of the remarks of the solicitor in appealing for a verdict of murder in the first degree could have been removed from the minds of the jury by full instruction of the trial judge. In State v. Noland, 85 N.C. 576, speaking of a gross abuse of privilege by counsel, Ruffin, J., said `After its commission, under the circumstances, it admitted of no cure by anything that could be said in the charge.' See also Holly v. Holly, 94 N.C. 96.
"But the contention was made in the Little case, as it is here, that exception to the improper remarks not taken before verdict is not seasonable. Under the facts there as here the rule is inapplicable.
"Ordinarily it is the duty of counsel to make timely objection so that the judge may correct the transgression by instructing the jury. State v. Suggs, 89 N.C. 527. And, ordinarily, the failure to object before verdict is held to constitute waiver of objection. State v. Tyson, 133 N.C. 692, 45 S.E. 838. But where, as here, the harmful effect of the remarks is such that it may not be removed from the minds of the jury by instruction of the judge, the reason for the rule requiring the objection to be made before the verdict does not exist."
See also State v. Dockery, 238 N.C. 222, 77 S.E.2d 664.
Other jurisdictions have considered remarks comparable to those here challenged, which, as here, were made during the voir dire examination of prospective jurors in capital cases.
In People v. Johnson, 284 N.Y. 182, 30 N.E.2d 465, the district attorney, over defendant's objection, asked numerous prospective *206 jurors, on their voir dire examination, whether they knew that, if defendant were convicted and received the death sentence, any jury error could be corrected by judicial appeal or executive clemency. The Court, faced with "such grave error at the very threshold of the trial as to make it doubtful whether the jury could thereafter render a verdict with full appreciation of its responsibility," reversed the conviction and forcefully explained its reasoning, as follows:
"The vice of the statements and questions of the District Attorney lies not primarily in the incorrectness of the statement that an appeal to the Court of Appeals is compulsory but in the suggestion that the jury's verdict, if against the defendant, cannot be seriously harmful to him because of the opportunities for review. This suggestion is fundamentally unsound and vitiates the trial. No element of our judicial process must be more carefully protected than the function of the jury. The jury has nothing to do with appeals and applications for clemency. They lie in a wholly different field. The jurors have task enough to find the truth and proclaim it by their determination without regard to ultimate consequences. Nothing can be permitted to weaken the jurors' sense of obligation in the performance of their duties. [Citations omitted.]"
A similar holding appears in Blackwell v. State, 76 Fla. 124, 79 So. 731, where the defendants were charged with murder. During the voir dire examination of prospective jurors, the assistant State's attorney, in the presence of the veniremen, stated that the future action of the Board of Pardons was entitled to consideration by them. The Court granted a new trial and condemned this statement on the theory that it fixed in the minds of the jurors the thought that if they erred in returning a verdict of guilty, the Board of Pardons might or would correct it. See generally, as to prosecutorial indiscretions at various stages of the trial, Annotation, 16 A.L.R. 3d 1137; Annotation, 3 A.L.R. 3d 1448.
We hold that in a capital case improper statements made by a solicitor in the presence of prospective jurors during their voir dire examination may well be as prejudicial as a similar statement made by him during argument to the jury.
The position and grave responsibilities of a public prosecutor as the representative of the sovereign were clearly enunciated by Justice Sutherland in Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314. We quote from that opinion:
"The [district attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done....
"It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none...."
In the context of cases before us, the statement of the solicitor, professedly made to "ease" the "feelings" of a juror concerning her misgivings regarding the death penalty, suggested to the jurors, both prospective and seated, that if verdicts of guilty were returned, the mandatory death penalty, in all probability, might not or would not be imposed.
It is the province of a juror to return a verdict which speaks the truth. This duty is his sole responsibility. We cannot allow this solemn obligation to be diluted by statements aliunde the record and foreign to his single duty. In these volatile and *207 bitterly contested cases, in which three human lives hung in the balance, we think the solicitor's statement was intended to, and in all probabilty did, lighten the solemn burden of the jurors in returning their verdict.
We hold that the challenged statement of the solicitor was improper and unduly prejudicial to these defendants.
We do not deem it necessary to discuss the remaining assignments of error since, in all probability, they will not recur at the next trial.
New trial.
COPELAND and EXUM, JJ., took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323824/ | 211 S.E.2d 674 (1975)
James M. SPROUSE
v.
CLAY COMMUNICATION, INC.
No. 13463.
Supreme Court of Appeals of West Virginia.
February 4, 1975.
*680 Jackson, Kelly, Holt & O'Farrell, F. Paul Chambers, Robert K. Kelly and Charles Q. Gage, Charleston, T. E. Myles, Fayetteville, for appellant.
Gilbert S. Bachmann, Wheeling, Arthur B. Hanson and W. Frank Stickle, Jr., Washington, D. C., amicus curiae for American Newspaper Publishers Assoc.
Rudolph L. DiTrapano, DiTrapano, Mitchell, Lawson & Field, Charleston, Abbot & Jesser, W. Robert Abbot and Fred A. Jesser, III, Fayetteville, for appellee.
Stanley E. Preiser, Charleston, Robert T. Goldenberg, Parkersburg, amicus curiae for W. Va. Trial Lawyers. *675 *676 *677 *678
*679 NEELY, Justice:
In the fall of 1968 James M. Sprouse was a practicing attorney in Charleston, West Virginia, and the Democratic Party candidate for Governor of the State of West Virginia. Approximately two weeks before the November election the Charleston Daily Mail published a series of articles implying that James M. Sprouse had engaged in real estate transactions in Pendleton County, West Virginia, of such a nature as to cast aspersions upon Sprouse's integrity. The articles implied that enormous profits would inure to Sprouse's benefit as a result of "inside" information which Sprouse acquired through his Democratic Party affiliation concerning plans of the United States Government to establish a national park at Seneca Rocks in Pendleton County. A complete text of the articles in question is reproduced in the appendix to this opinion and it is suggested that the articles be read in their entirety at this point in order fully to understand the application of the intricate law of libel to the facts of this case.
The plaintiff, James M. Sprouse, recovered a jury award in the Circuit Court of Fayette County for $250,000 actual damages and $500,000 punitive damages against Clay Communication, Inc., owner of the Charleston Daily Mail, a newspaper of general circulation in numerous West Virginia counties. The defendant, Clay, strenuously argued that under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) and its progeny, the defendant is not liable for the statements made about Sprouse even though they were false because Sprouse did not prove actual malice, as that term is judicially defined in the law of libel by New York Times.
This appeal presents a question of first impression in the United States with regard to the law of libel in light of New York Times v. Sullivan, supra. The basic issue concerns whether evidence indicating that a newspaper foreswore its role as an impartial reporter of facts and joined with political partisans in an overall plan or scheme to discredit the character of a political candidate is relevant in determining whether the newspaper acted in reckless and willful disregard of the truth when it published grossly exaggerated, defamatory headlines which were unsupported by the factual recitations in the body of the story. This Court holds that once an overall plan *681 or scheme to injure has been established, an unreasonable deviation between headlines and the remainder of the presentation is in and of itself evidence of actual malice, which, along with other evidence, supports a jury verdict for libel.
In addition to defendant's First Amendment defenses including an allegation that the damages are excessive, defendant also assigns myriad procedural errors among which the Court considers three to be fairly raised. The first assignment of error raises the question of whether venue was properly laid in Fayette County; the second assignment presents the question of whether a previous action begun in Kanawha County alleging the same set of facts and dismissed under Rule 12(b)(6) W.Va. RCP was an effective bar to the present action in Fayette County; and, the third assignment of error concerns the failure of the trial court to give two jury instructions.[1] This Court finds that there was no reversible error committed, and further finds that although the $750,000 damage award is excessive, the plaintiff proved libel in this case. Accordingly, the judgment is reversed in part and affirmed in part and the case is remanded to the Circuit Court of Fayette County with instructions to enter judgment for $250,000 actual damages plus interest and costs and to strike as a matter of law the award of $500,000 punitive damages.
I
Under the mandate of New York Times v. Sullivan, supra, it is incumbent upon an appellate court in determining the validity of a libel judgment both to consider the law and to make an independent evaluation of the evidence to insure First Amendment protection to publishers. A candidate for political office is governed by the same stringent rules with regard to recovery as a public official. Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1970). In order for a political candidate to recover for libel against a newspaper it is necessary that the candidate prove actual malice, i.e., prove either that the newspaper published false or misleading defamatory statements knowing that they were false or misleading, or that the newspaper published such statements with a reckless and willful disregard for their truth. Monitor Patriot Co. v. Roy, supra.
In the law of libel the word "malice" has an entirely different connotation from its general meaning in other areas of tort law. Cantrell v. Forest City Publishing, ___ U.S. ___, 95 S. Ct. 465, 42 L. Ed. 2d 419 (1974). In libel actions "malice" does not connote the mere dislike of one party for another or the intent of one party to injure another. It is acknowledged, for example, that a political campaign necessarily involves intent on the part of one political group to "injure" opposition candidates by depriving them of elective office. In libel law "malice" has a much narrower definition and requires not only a deliberate intent to injure, but also an intent to injure through the publication of false or misleading *682 defamatory statements known by the publisher or its agents to be false, or an intent to injure through publication of such defamatory statements with reckless and willful disregard for their truth.
Consequently, in order for the evidence in this case to withstand appellate review it is necessary that the plaintiff, Sprouse, demonstrate that the defendant Daily Mail knew that the defamatory material contained in the articles it printed was false or for plaintiff to demonstrate that the Daily Mail was reckless and willful in its indifference to the truth of the printed material. In this regard the case sub judice is unique in the annals of reported libel cases because it primarily involves the deliberate use of misleading words in oversized headlines rather than outright false statements. For example, the use of the headline words "land grab," "dummy firm," "bonanza," "disclosed," and "cleanup" are not libel per se and are all susceptible to varying interpretations. Obviously, the discovery of a five dollar bill on the sidewalk by a vagabond is a "bonanza," while a similar discovery on the part of a senior executive is not a "bonanza." However, there is one headline over a story quoting plaintiff's opponent, Arch A. Moore, Jr., "Dummy Firm Seen Proving Corruption," which is probably libel per se.
The defendant argues that most of the material published was true in that: (1) Sprouse was the president of a New York corporation; (2) the corporation was engaged in land dealings in Pendleton County; (3) the corporation was making profits; and (4) the owner of Seneca Rocks was offered a small sum for his property. Consequently the plaintiff's cause of action must be grounded not in the basic substance of the articles but rather in the dramatic and misleading defamatory characterization of mundane facts, primarily in headlines, which would lead the ordinary reasonable mind to a false conclusion.
The evidence strongly supports a jury inference that the defendant knew the conclusions to be drawn from the headlines were false and further that the defendant anticipated that these false conclusions would logically follow from its presentation. The Court's decision in this case, therefore, concerns two separate questions regarding the headlines. First, the question must be resolved concerning whether the headlines taken alone can be considered defamatory without regard to mitigating material in the body of the story, and second, the question must be resolved concerning whether the mere existence of misleading headlines unsupported by the body of the story is evidence of intent to injure through publication of false, defamatory statements known at the time of publication to be false.
The evidence in this case presents a problem which might be better analyzed with reference to a hypothetical situation. Let us suppose that a public figure, John Doe, frequently participated as a leader for a Boy Scout troop and as a coach in a Little League baseball program. If those facts are beyond dispute, is it nevertheless libel for a newspaper to describe Mr. Doe's participation in those programs under a headline "Doe's Association with Young Boys Seen as Suspect"? The law appears to be that the truth of the facts presented under the headline would not be a defense to libel, because the obvious intent of the headline is to convey a suspicion of homosexuality which is defamatory and an unreasonable inference from the observed facts. Although such a headline is not libel per se it would have the same effect as the simple statement "Doe is a homosexual" which would be libel per se. In the simple hypothetical case, which is in all respects parallel to the case sub judice, the existence of such a headline unsupported by facts leading to an inference of homosexuality is evidence which may be considered by a jury on the question of malice. While alone the inconsistency between the headline and story would not be sufficient to support a libel *683 action, such inconsistency would be one valid link in the chain of proof necessary to support a claim of (1) a false statement, (2) defamatory in nature, (3) known at the time of publication to be false, and (4) published with an intent to injure. Obviously, in the absence of other evidence demonstrating a plan or scheme to injure, mere lack of reasonableness with regard to the headline being a fair summary of the story, or even gross negligence, would not sustain a cause of action by a candidate for office. Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
In the case at bar the evidence disclosed that approximately two weeks before the publications in question, William Loy, then campaign manager for Arch A. Moore, Jr., Sprouse's election opponent, and Norman Yost, media manager for the Moore campaign, visited the office of the Charleston Daily Mail with information that Sprouse had engaged in land transactions in Pendleton County, West Virginia, through a corporation known as Selmet Properties, Inc. Loy and Yost conveyed this information to Jack Maurice, Robert Mellace, and Vincent Jennings, all editors of the defendant newspaper. On October 22, 1968, accompanied by members of the Moore campaign staff, Mellace went to the U. S. Forest Service office in Elkins, West Virginia and spoke to the senior officer in charge. While in Elkins, Mellace also spoke with the land officer who had negotiated an acquisition of 1,385 acres from Selmet Properties by Nature Conservancy, Inc., a non-profit corporation in Washington, D. C., organized to buy land which federal agencies wish to acquire for public recreational purposes. Nature Conservancy buys the land and later sells it at cost to the agencies when such agencies acquire the necessary funds.
Mellace learned from his trip to Elkins that a corporation named Selmet Properties, Inc. was incorporated in the State of New York February 25, 1965, by Jerome Grometstein, a New York attorney. He further learned that the principal office of the corporation was in New York City, and that Selmet had purchased approximately 2,900 acres of land in Pendleton County from Henry Regnery on March 12, 1966 for $134,620. Mellace then discovered that through June 7, 1966 Selmet had sold seven parcels of land to various individuals, and had violated West Virginia law by buying and selling land before Selmet qualified to hold property and do business in West Virginia. Papers later filed in the office of the West Virginia Secretary of State on August 25, 1966, more than two years before publication, qualifying Selmet to do business in West Virginia, were signed by Sprouse as president of Selmet, and the principal West Virginia office was then listed as 700 Terminal Building, Charleston, West Virginia, where Sprouse practiced law.
Mellace went to the Pendleton County Courthouse and determined that after Selmet sold 1,385 acres to Nature Conservancy for $81,364, there appeared to remain 400 acres from the original Regnery purchase. At the time of Mellace's investigation the total income of record derived by Selmet from sales of the Regnery property was $182,796.25 or approximately $48,176.75 more than its purchase price for the land. There is no evidence in the record that Mellace did not honestly believe that there were still several hundred acres left in the original tract, although at trial it was demonstrated that only 87.09 acres actually remained. The plaintiff was unable to negate the fact that subtraction of the out conveyances of record from the total acreage stated in the original Regnery tract deed appeared to leave approximately 400 remaining acres, and therefore Mellace's good faith belief in his calculations at the time of publication was not called into question.
Consequently, in the defendant's favor there was evidence that the newspaper believed the following facts: (1) Selmet Properties, Inc. was incorporated in New York State; (2) the corporation had conducted several routine transactions in West Virginia before qualifying to do business in the *684 State; (3) after qualifying to do business the corporation had sold 1,385 acres of land to Nature Conservancy, Inc. for $81,364; (4) at the time of publication the corporation had made a profit of $48,176.75 on its initial investment; (5) Sprouse was president of the corporation; and, (6) there appeared to be several hundred acres of land still remaining in the original tract.
In support of plaintiff's case, however, the defendant newspaper also knew; (1) Sprouse had never hidden his participation in the corporation;[2] (2) there was no "inside" information available to Sprouse which was not generally available; (3) the corporation had qualified to do business before engaging in any major transactions and was qualified to do business at the time of publication; (4) out-of-state firms frequently do legitimate business in West Virginia; (5) Sprouse was in no way connected with or responsible for the small offer made by the U. S. Government for the purchase of Seneca Rocks from the local owner; and, (6) the remaining land owned by Selmet Properties was at least five miles from the Seneca Rocks landmark which was pictured in the newspaper photograph under the caption "Where Governor Candidate `Cleans up.'"[3]
*685 On October 24 and 25, 1968, the Charleston Daily Mail published a series of articles with very large headlines as follows:
"PENDLETON REALTY BONANZA BY JIM SPROUSE DISCLOSED"
"Cleanup of Nearly $500,000 in View"
"Seneca Rocks Tourist Project Property Enriching Candidate Sprouse"
"Sprouse Owns Choice Land Beside $30 Million U. S. Resort"
In addition to the Daily Mail's own commentary with regard to the land transaction, the paper printed extensive comments from Sprouse's opponent, Arch A. Moore, Jr., casting aspersions on Sprouse's honor and integrity. The largest headline in this regard said:
"MOORE ASKS FEDERAL PROBE IN SPROUSE'S LAND GRAB"
followed in smaller headlines by a statement which was libel per se:
"'Dummy Firm' Seen Proving Corruption"
In the October 25th edition of the Mail there appeared a composite picture of Seneca Rocks with the large headline:
"WHERE GOVERNOR CANDIDATE `CLEANS UP'"
below which appeared a picture of an obviously worthy looking country gentleman and a story headlined "Fortune To Jim Sprouse But Pittance For Seneca" implying that the gentleman in the picture was suffering financially as a result of improprieties on the part of candidate Sprouse.
There is no evidence in the record offered by the defendant that any member of the Daily Mail staff had reason to believe that Sprouse was actually engaged in a fraudulent transaction.[4] Although to persons untrained *686 in business, the existence of an out-of-state corporation might appear to be a "dummy firm," the jury were entitled to infer from all the evidence presented that the staff of the Daily Mail deliberately characterized a legitimate corporation by the pejorative term "dummy firm" to conjure up the image of a conduit for illegal money when the defendant knew for an absolute certainty that the business was routine and legitimate.
The parties have cited numerous cases concerning whether headlines should be considered as an integral part of the news story. De Husson v. Hearst Corporation, 204 F.2d 234 (7th Cir. 1953); Afro-American Publishing Co. v. Jaffe, 125 U.S. App.D.C. 70, 366 F.2d 649 (1966), or may be considered separately on the issue of whether the statements in question are defamatory. Empire Printing Co. v. Roden, 247 F.2d 8, 17 Alaska 209 (9th Cir. 1957); Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d 867 (1958). The Court is of the opinion that no clear-cut rule has been established in this regard for headlines which are not libel per se and, therefore, each case must be considered on its facts. Generally where the headline is of normal size and does not lead to a conclusion totally unsupported in the body of the story, both headlines and story should be considered together for their total impression. However, where oversized headlines are published which reasonably lead the average reader to an entirely different conclusion than the facts recited in the body of the story, and where the plaintiff can demonstrate that it was the intent of the publisher to use such misleading headlines to create a false impression on the normal reader, the headlines may be considered separately with regard to whether a known falsehood was published. As the court said in Afro-American Publishing Co. v. Jaffe, supra, 366 F.2d at p. 655 "[w]hat counts is not the painstaking parsing of a scholar in his study, but how the newspaper article is viewed through the eyes of a reader of average interest."
It is important that this entire case be viewed against a background of events which occurred in West Virginia during the late 1960's when rather widespread corruption was exposed in State government. This corruption ultimately led to federal prison terms for numerous high-ranking officials, including a former Governor and a former Attorney General of West Virginia. Therefore, the public was particularly sensitive to allegations of political graft. The record sustains the jury inference that it was the intent of the editors of the defendant newspaper to take advantage of the climate of the times with regard to public sensitivity concerning graft to further the ends of their own candidate, Arch A. Moore, Jr. by impugning the integrity of the plaintiff, Sprouse.[5]
*687 The Supreme Court of the United States has given very little guidance with regard to a situation of this type. Reported U. S. Supreme Court cases almost exclusively concern newspapers operating as independent, news-gathering agencies. The purpose of First Amendment protection for newspapers as interpreted by the U. S. Supreme Court is to engender wide-open, robust, and uninhibited political discussion. New York Times v. Sullivan, supra. Therefore, the Court holds that it is relevant to this case that the Daily Mail did not publish the stories in question exclusively as a news-gathering agency.
The cases of Curtis Publishing Company v. Butts, and its companion case, Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967) stand for the proposition that when a newspaper departs from an attempt to report the news objectively, the fact of such departure can be considered by the jury and an appellate court in determining whether there was willful disregard of truth. In Walker the *688 Associated Press received incorrect information from a correspondent who was present at the scene of events and who gave every indication of being trustworthy and competent. The Court reversed a judgment in favor of General Walker and held that a public figure may recover damages for defamatory falsehood only on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily followed by responsible publishers. Therefore, the Supreme Court held that the Associated Press was not liable for publishing an isolated defamatory dispatch concerning General Walker when it was operating under acceptable standards of good journalism. The issue in Walker, therefore, can be distinguished from the issue presented in the case at bar in that in Walker there was no evidence of participation by Associated Press in a plan or scheme to injure Walker.
The facts in the case at bar are far closer to the facts of Curtis Publishing where recovery was sustained by the Supreme Court partially because of the publisher's personal motives for printing the libel. In Curtis, a case involving a defamatory story about a football coach which appeared in The Saturday Evening Post, the Supreme Court sustained recovery by the plaintiff because the Post had deviated from generally accepted standards of responsible reporting in order to print a sensational story. Although it was not demonstrated that the Post knew the statements were false, the evidence disclosed that the Post had published highly defamatory statements upon very unreliable evidence. As Mr. Justice Warren characterized the facts in his concurring opinion:
"Apparently because of declining advertising revenues, an editorial decision was made to `change the image' of the Saturday Evening Post with the hope that circulation and advertising revenues would thereby be increased. The starting point for this change of image was an announcement that the magazine would embark upon a program of `sophisticated muckraking' designed to `provoke people, make them mad.'"
This Court recognizes that recent cases would appear to withdraw from the standard of "highly unreasonable conduct" enunciated by Curtis. Dicta in the recent opinion in Gertz v. Welch, supra, indicates that mere deviation from accepted standards of journalism alone will not support an action for libel brought by a public figure. Nevertheless when Walker and Curtis are read together they still stand for the proposition that personal motives on the part of a newspaper, or participation by a newspaper in a plan or scheme to injure, is evidence of recklessness and willful disregard for truth which may be considered along with other evidence on the question of actual malice.
The information gathered by the Daily Mail reporters contained no facts indicating that Sprouse had engaged in anything other than a normal business transaction and there was no evidence discovered by the defendant at the time of publication of inside information as a result of political affiliation. In summary, the testimony at trial contained no evidence that the reporters of the Mail at the time of publication believed there existed any impropriety whatsoever.[6]
*689 The conceptual difficulty in this case arises from the ability of different people to draw varying inferences from observation of the same set of facts. For example, it is possible for one person to observe a man running from a bank and conclude that he is involved in a bank robbery and for another person to observe the same act and conclude that the man is late for an appointment. Much discussion in politics and government concerns different conclusions derived from observation of the same random facts. Accordingly, great latitude must be given a newspaper to report observed facts and to make legitimate, negligent, or even grossly negligent inferences from those facts. Had the Charleston Daily Mail confined itself to reporting the facts of the Pendleton County land transactions in temperate terms, and, had it stated that further investigation might prove this transaction suspect, the Mail would have been protected under the First Amendment. Monitor Patriot Company v. Roy, supra. Defendant would even have been protected from liability for negligent misleading headlines, but not from intentional misleading headlines.
Obviously, as the U. S. Supreme Court frequently notes, there is great tension between (1) government by free discussion as assured by the First Amendment, and (2) the protection of individuals from libel. Historically since New York Times the clearest legal principal emerging from a reading of libel cases is that each case must be considered by an appellate court on its facts with a strong sympathy toward protection of the robust political discussion comtemplated by the First Amendment. At some point, however, cumulative evidence *690 will show that the line of protection is breached, and a jury must be permitted to find malice, unless we are to adopt the position, articulated by Mr. Justice Black and Mr. Justice Douglas, that proper application of the First Amendment provides an absolute defense for the press to all defamation actions.[7]
In the case at bar the defendant crossed the line. The evidence supports a jury inference that the Mail went beyond drawing conclusions from observed facts and knowingly used the pretext of a legitimate business transaction to lead the electorate to what it again knew to be a false conclusion.. Use of headline words such as "bonanza," "disclosed," and "clean-up," demonstrate an intent on the part of the newspaper to capitalize on the well known habit of newspaper readers of reading only the headlines. The defendant demonstrated that the headlines were written by news staff other than the authors of the stories, but Cantrell v. Forest City Publishing, supra, holds that once an overall scheme of recklessness has been demonstrated, respondeat superior applies in libel as well as other areas of tort law and the publisher is liable for the acts of employees. The defendant did not demonstrate that Mellace was ignorant of the content of the headlines before they were published, and the jury were entitled to infer that even if Mellace were ignorant of misleading headlines before publication on the 24th, those headlines were effective notice of the problem of irresponsible headlines which recurred in the publication of similar misleading headlines on the 25th.
The story in the October 25th edition of the Mail in which there appeared a picture of a worthy country gentleman, Mr. D. C. Harper, with the headline "Fortune to Jim Sprouse Pittance for Seneca" and the subheadline "Landmark's Owners Plan Court Fight Against Deal," supported a jury conclusion that there was a deliberate effort to imply that the profit to Sprouse was acquired at the expense of an honest farmer, rather than in a wholly independent transaction. The Mail was unable to demonstrate that either Mellace or any other member of its staff had reason to believe at the time of publication that Mr. Harper in any way suffered as a direct result of Selmet's dealings with Nature Conservancy, Inc. Therefore, the plaintiff proved that this story was false or misleading, and that it was published with knowledge that it was false or misleading.[8]
This Court is concerned that our decision in this case may ultimately result in self-censorship by newspapers. Particularly in West Virginia, where a large portion of the State is served by newspapers which lack substantial financial assets, the threat of potential libel actions becomes repressive, not only because of possible judgments but also because of the inordinate *691 legal expenses normally incurred in defending a protracted libel suit. Therefore it should be emphasized that the Court sustains the jury's finding of libel in this case because the plaintiff proved that the newspaper abdicated its traditional role of fairly reporting the news and became a participant in a scheme or plan, the object of which was to employ grossly exaggerated and patently untrue assertions, embodied primarily in headlines, to destroy the character of Sprouse.[9] It appears from the *692 evidence that not only did the Mail work closely with the Moore campaign staff to discover the details of the land transaction, but also that it fully cooperated in disseminating the articles to other newspapers for publication throughout the State. Under those circumstances the difference between the fair implication of the headlines as opposed to the supporting factual recitation of the stories is evidence alone of malice, which absent evidence to the contrary, supports the jury verdict.
II
The Court agrees with the defendant's contention that the jury award of $250,000 actual damages and $500,000 punitive damages is excessive. Under the recent U. S. Supreme Court case of Gertz v. Welch, supra, it is permissible for a plaintiff in the position of Sprouse to recover punitive damages because of the high standard of proof required of a candidate for public office to sustain any action for libel. As it is necessary for a candidate for office to prove that false or misleading statements were published with knowledge on the part of the publisher of their falsity or with willful and reckless disregard of their truth, and further to prove that they were published with a deliberate intent to injure, punitive damages may be recovered.
However, regardless of the law of this State, it would appear that the penumbra of protection of the First Amendment is such that punitive damages may only be recovered in cases where the award of actual damages is insufficient to dissuade others in like circumstances from committing similar acts in the future. The policy embodied in the First Amendment of encouraging broad dissemination of public information forecloses an award of punitive damages which might jeopardize the existence of a newspaper when such damages are unnecessary to protect the public from similar conduct in the future or to make possible the vindication of plaintiff's rights in the absence of demonstrable actual damages. In the case at bar the Court is of the opinion that an award of $250,000 actual damages is adequate for the purpose of dissuading publishers from similar willful and reckless conduct in the future. In addition the Court is persuaded that an award of $750,000 would have a chilling effect upon the legitimate exercise of First Amendment rights and would lead to the type of self-censorship which it has been the object and purpose of the United States Supreme Court to prevent since New York Times v. Sullivan, supra.
In viewing all of the evidence the Court is of the opinion that the plaintiff proved $250,000 in actual damages. The case of Gertz v. Welch specifically recognizes that actual loss to a plaintiff in a libel action is difficult to prove in the same *693 mathematical way that medical expenses or lost earnings can be proven in an ordinary tort action. Mr. Justice Powell specifically says in Gertz, 418 U.S. at 350, 94 S.Ct. at 3012:
"Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury."
Under West Virginia law in an action to recover for an intentional tort, as opposed to a negligent tort, a plaintiff is entitled to have such elements as mental anguish, insult, indignity, and humiliation considered by the jury in arriving at an award for actual damages. Addair v. Huffman, W.Va., 195 S.E.2d 739 (1973).
The job of determining such intangible and subjective damages as personal humiliation, mental anguish, and indignity has always been the exclusive province of the jury subject to the gentle rule that awards in these areas not be excessive. In light of the amount of jury awards for pain and suffering which are routinely sustained by appellate courts in tort actions involving physical injury, and considering the rank and station in life of the plaintiff at the time of publication, this Court finds that the award of $250,000 actual damages was not excessive.
III
The defendant in this action objected to venue in Fayette County, West Virginia, on the grounds that W.Va. Code, 59-3-1(c) [1967] changed the law under which Hanks v. Beckley Newspapers, 149 W.Va. 552, 142 S.E.2d 727 (1965), was decided. Hanks held that an action against a newspaper may be brought in any county in which the cause of action, or any part of the cause of action arose, although the defendant is not a resident of that county, if the defendant, or if more than one defendant, one or more of the defendants, is a corporation under W.Va. Code, 56-1-2 [1923]. The opinion indicated that a newspaper is "circulated" in any county in which editions of the paper are sold and accordingly a part of the cause of action can be considered to have originated in any county where the newspaper is circulated and the libel is published.
W.Va. Code, 59-3-1 [1967] is a statute concerning newspapers and legal advertisements. Although in subsection (c) the statute says: "Notwithstanding any other provision of this Code or law to the contrary, a qualified newspaper shall for all purposes be considered to be published where it is first placed in circulation," this Code section does not define the word "circulated" in a manner inconsistent with the Hanks case. Subsection (c) refers to where a newspaper is published as opposed to where a libel is published. Although for purposes of legal advertisements a newspaper is to be considered as "published" only in the county in which it is first placed in circulation, thus assuring that local newspapers will receive adequate support in the form of legal advertisements, that section in no way changes the common law definition of where a libel is "published." Accordingly we reaffirm our holding in the Hanks case that proper venue in an action against a newspaper publishing corporation lies in any county in which the libel is published.
IV
The defendant asserts that this action in the Circuit Court of Fayette County was barred ab initio by a previous dismissal of an action grounded on the same set of facts and filed in the Circuit Court of Kanawha County on October 28, 1968, just three days after the publications in question appeared in the Daily Mail. In that initial suit filed in Kanawha County, the defendants submitted *694 a motion to dismiss on the grounds that plaintiff's complaint failed to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) W.Va. RCP. The motion was granted by an order entered March 14, 1969, which stated:
"This court is of the opinion to and does hereby sustain said motions to dismiss of the respective defendants, and, it is, accordingly ORDERED that said action be, and the same is hereby, dismissed for the reasons set forth in the letter memorandum of opinion of this court dated March 11, 1969, copy of which is hereby attached, and, it is further ORDERED that said letter memorandum of opinion dated March 11, 1969, be and the same is hereby made a part of the record, in this action, to all of which the plaintiff objects and excepts."
It is interesting to note that the letter memorandum of opinion accompanying this order also dismissed the action in Kanawha County. But the letter opinion is basically a critique of the complaint in all its allegations, one by one, and while the trial judge concluded that "the complaint completely fails to allege even the substance of any matter which might constitute a basis for this action," the opinion goes on to describe how a proper complaint for libel could be drafted indicating the alleged libelous material must set out in haec verba. The trial judge did not state that there was no possible way for the plaintiff correctly to amend the complaint, nor did he state that the dismissal was with or without prejudice, nor did he expressly grant the right to amend. This Court is of the opinion that the trial judge in Kanawha County did not intend to dismiss the action, but rather intended to dismiss only the complaint. Therefore, while not necessary to the Court's decision, the Court believes that the peculiar facts of this case strengthen our holding that the Kanawha County action should not operate as res judicata to the subsequent action in Fayette County.
The plaintiff did not sua sponte seek leave to file an amended complaint, nor did he, by appeal or otherwise, seek to have the final order dismissing the action set aside or modified. Instead, on October 27, 1969, more than six months after the final order dismissing the Kanawha County action was entered, plaintiff filed the present suit in the Circuit Court of Fayette County alleging similar facts. Following denial of defendant's motion to dismiss for lack of venue in Fayette County, defendant moved for summary judgment setting forth the final Kanawha County judgment as a bar. The Fayette County court denied this motion and the defendant assigns the denial as error.
The issue presented is whether a 12(b)(6) dismissal for failure to state a claim is a final appealable judgment on the merits and, therefore, under the doctrine of res judicata, a bar to a subsequent action grounded on substantially the same facts.
West Virginia law has never squarely met this question, and when it has met it obliquely the decisions stand in direct conflict. On the one hand, there is a 1965 opinion of this Court in United States Fidelity & Guaranty Co. v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965) which states:
"If a summary judgment is entered under Rule 56 R.C.P. it is a dismissal with prejudice; whereas, a judgment sustaining a motion to dismiss under Rule 12(b) R.C.P. for the failure to state a claim upon which relief could be granted is not a dismissal with prejudice."
On the other hand a 1969 decision, Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969), provides:
"... it should be observed that a judgment of dismissal of an action under Rule 12(b) or a final summary judgment under Rule 56, rendered by a trial court is not here reviewable upon certificate but can be reviewed by this Court only upon appropriate appellate process."
In addition, search for guidance on this subject in other jurisdictions is equally unavailing as there is a nationwide split of authority concerning whether an involuntary *695 dismissal under Rule 12(b)(6) constitutes a bar to a subsequent prosecution of a new action alleging similar facts. The majority view and national trend favors the conclusionary nature of a 12(b)(6) dismissal as a determination on the merits. This view is based on the policy of protecting defendants from irresponsible forum-shopping by plaintiffs and on the policy of providing a definite end to litigation without fear by the prevailing party that actions, once dismissed, will be brought again. The rationale of this view is supported by the liberal amendment provisions of the Federal Rules which have been adopted by many states, including West Virginia.
The majority rule rests upon the authority of Rule 41(b) which says in part:
"Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits."
Consequently under the majority rule a dismissal pursuant to a Rule 12(b)(6) motion falls within the contemplation of the plain meaning of Rule 41(b).
Courts which follow the majority view hold that a final judgment can be rendered on the pleadings alone. Olsen v. Muskegon Piston Ring Co., 117 F.2d 163 (6th Cir. 1941). For example, one court holding the majority view has stated that in cases where a motion to dismiss a complaint is sustained and the complaint is dismissed, and where the plaintiff does not desire to amend, he should announce his election to stand on his pleading, let a final order or judgment be entered dismissing the action, and then appeal from that order or judgment. Crutcher v. Joyce, 134 F.2d 809 (10th Cir. 1943). The rule of finality also applies when leave to amend the complaint is granted but not acted upon as well as when leave is not granted. Matthews v. Wolvin, 266 F.2d 722 (5th Cir. 1959). In the case of Fyfe v. Pan-Atlantic S.S. Corp., 114 F.2d 72 (2nd Cir. 1940), the Court capsulized the majority view in stating that "[u]nder modern principles, failure to amend upon dismissal of a complaint under circumstances where amendment was permissible should bar the institution of a second suit."
To the contrary, however, a significant, though shrinking, number of jurisdictions follow the minority view which permits a second suit despite defective pleading in the original action. The policy underlying this position argues that dismissal for failure to state a claim never reaches the merits of a claim and, therefore, ought not to operate as res judicata because a litigant deserves to have his case decided on the merits.
For instance, in the case of Rost v. Kroke, 195 Minn. 219, 262 N.W. 450 (1935) judgment was entered and the complaint dismissed pursuant to an order sustaining a demurrer to the complaint for failure to state a cause of action. The complaint had alleged in the alternative facts constituting a good cause of action and facts which did not. The court held that the dismissal was not a bar to a subsequent suit in which the defective pleading was corrected by stating a good cause of action. Moreover, after a decision by a state court dismissing a complaint for failure to state a cause of action because it invoked the doctrine of res ipsa loquitur which was adjudged inapplicable, one federal court operating under the Federal Rules held that the dismissal was not res judicata as to plaintiff's right to maintain an action in federal court on the same cause of action. Bruening v. El Dorado Refining Co., 53 F. Supp. 356 (W.D.Mo.1943).
The minority view makes one concession to the majority view in that it recognizes that if, in a prior action, leave to amend is expressly granted and the privilege is specifically refused, then the prior action does become res judicata. Hacker v. Beck, 325 Mass. 594, 91 N.E.2d 832 (1950). In the case at bar, however, leave to amend was not sought and was not granted.
Having pondered at length both majority and minority viewpoints, this Court is of *696 the opinion that the majority view, which maintains that prior dismissal under Rule 12(b)(6) is a final judgment unless the court specifically dismisses without prejudice, is the better view and should be adopted in this State; however, the Court further holds that it is only equitable to give our conclusion in this regard exclusively prospective application due to the extraordinary confusion in both this State and other jurisdictions with regard to the issue. The law of West Virginia was so unclear as to put the parties in the case at bar to playing a needless "game of forfeits," and furthermore, there was no conclusive guidance on the matter available from foreign jurisdictions, state or federal. In addition, the trial judge clearly intended to dismiss only the complaint and not the entire action.
This Court's policy with regard to procedural irregularities which needlessly interfere with a disposition on the merits was succinctly stated in the recent case of Rosier v. Garron, W.Va., 199 S.E.2d 50 (1973), where the Court said:
"... [T]he distinction between procedural rules and substantive rights is frequently illusory. However, to the extent possible, under modern concepts of jurisprudence, legal contests should be devoid of those sporting characteristics which gave law the quality of a game of forfeits or trial by ambush."
This case raises, once again, the age-old conflict between society's need for predictability accomplished through legal formalism versus society's need to do justice in individual cases. Formality and order are values essential to the stability of any legal system, yet, as was articulated in detail in Rosier, supra, man's fundamental sense of justice constantly clashes with formalism when procedural impediments undesignedly lead to an unreasonable result. Results become logically insupportable when they are based upon a law which is unintelligible.
The Court holds, therefore, that the future law in this State with regard to dismissals under Rule 12(b) is that a judgment dismissing an action under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and without reservation of any issue, shall be presumed to be on the merits, unless the contrary appears in the order, and the judgment shall have the same effect of res judicata as though rendered after trial in a subsequent action on the same claim. 1B Moore's Federal Practice, (2nd Ed.1974), § 0.409. We further hold that a judgment on the merits shall not require a determination of the controversy after a trial or hearing on controverted facts. It shall be sufficient that the record show that the parties might have had their controversies determined according to their respective rights if they had presented all their evidence and the court had applied the law, Olsen v. Muskegon Piston Ring Co., supra.
V
The last of defendant's assignments with which this Court will deal are the alleged errors in the trial court's refusal to give defendant's instruction No. 14 and No. 7. Instruction 14 said:
"The court instructs the jury that the publications complained of by plaintiff were published on October 24 and 25 of 1968 and that the question of libel, falsity and actual malice must be determined as of the time the various publications were published."
Obviously a newspaper under the First Amendment cannot be held to a standard of omniscience and can be judged with regard only to information which is available to the newspaper at the time of publication. Therefore, the Court holds that it was error for the trial court to fail to give instruction No. 14 but that the error was harmless in light of all of the other instructions which were given in the case.
It is clear from a reading of plaintiff's instructions Nos. 1, 2a, 3, 7, and defendant's instructions Nos. 3 and 5 that the *697 case was tried on the proper theory that a newspaper is to be judged concerning actual malice with regard only to information known by it at the time of publication.[10] In general, where it appears to this Court that the effect of an improperly refused instruction is merely cumulative, and that the theory of the case enunciated in the refused instruction has been adequately covered by other instructions, and where it further conclusively appears that the outcome of the case would not have been affected by the giving of the refused instruction, this Court will not reverse for failure to give that instruction alone. Jackson v. Cockill, 149 W.Va. 78, 138 S.E.2d 710 (1964); Morgan v. *698 Price, 151 W.Va. 158, 150 S.E.2d 897 (1966). The defendant is entitled to a fair trial; it is not entitled to a perfect trial because such a thing does not exist.
The defendant further argues that it was error to refuse defendant's instruction No. 7 which said:
"The Court instructs the jury that in considering the news stories complained of which quote or attribute statements to Arch A. Moore, Jr., the Republican nominee for Governor, there was no legal duty on the part of defendant to subject Moore's statements to any test of truth; and that accordingly, since plaintiff has presented no evidence from which you could find that Moore's statements were not accurately and fairly reported, you may not return a verdict for plaintiff against defendant based on statements of Moore published by defendant, even though you may believe from the evidence that Moore's statements were libelous and false and that he was aware of the falsity or acted with a reckless disregard of whether they were true or false."
The Court holds that defendant's instruction No. 7 is not an accurate statement of the law as applied to the facts of this case. Although in general a newspaper is not liable for publishing in good faith statements of political candidates during an election campaign, the evidence in this case demonstrates that the statements of Arch A. Moore, Jr. were closely coordinated with the story generated by the defendant as part of an overall plan or scheme, the purpose of which was to discredit plaintiff. Although the defendant would not have been liable for publication of the Moore statement if defendant were unaware at the time of publication of the falsity of the statement, the evidence in this case reasonably implies that at the time of publication the Daily Mail knew that the accusations made by Moore were false. Accordingly, in order for defendant's instruction No. 7 to have been given, it would have been necessary for the defendant to qualify it by admitting that the defendant would be liable for the Moore statements if the jury concluded that defendant published them with actual knowledge of their falsity or with willful and reckless disregard for their truth. See, generally: Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970). As the defendant did not offer to amend the instruction to conform to the law, the instruction was properly refused.
Therefore, for the reasons set forth in this opinion, the judgment of the Circuit Court of Fayette County is reversed in part and affirmed in part, and the case is remanded to the Circuit Court with instructions to strike as a matter of Federal Constitutional law the jury award of punitive damages and to enter judgment on the jury verdict for $250,000 actual damages plus interest from date of judgment and costs.
HADEN and SPROUSE, JJ., deeming themselves disqualified, did not participate in the consideration or decision of this case.
Reversed in part, affirmed in part, remanded with instructions.
APPENDIX
Charleston Daily Mail
Charleston, West Virginia
Thursday Evening October 24, 1968
[Directly beneath the newspaper title and the date line appeared the following headline in normal size headline type extending across the entire eight columns of the front page:]
Seneca Rocks Tourist Project Property Enriching Candidate Sprouse
[Directly beneath this headline and also extending across the entire eight columns of print appeared a picture of the land allegedly purchased by Sprouse and his corporation. The caption beneath the photograph read:]
A New York corporation headed by Democratic gubernatorial candidate James M.
*699 Sprouse owns the land above, which is adjacent to a national recreation area in eastern West Virginia where the federal government has plans to develop a $30 million tourist attraction. The corporation already has made a handsome profit on its original investment, and retained the choice land in Pendleton County, like that shown in this photograph. The corporation was formed a month before the U. S. Forest Service completed its plans for the recreation area, and before the plan was approved by Congress. Much of the corporation's profits, to date, eventually will come from the U. S. Treasury. Daily Mail Photo by Chester Hawes.
[Beneath the photograph and caption appeared the following headline in oversize type extending across five columns:]
PENDLETON REALTY BONANZA BY JIM SPROUSE DISCLOSED
[The following sub-headline appeared next in normal size headline type printed across the two columns in which appeared the article:]
Cleanup of Nearly $500,000 in View
By Bob Mellace
Daily Mail Political Editor
A corporation formed in New York and headed by Democratic gubernatorial candidate James M. Sprouse stands to make a very handsome profit dealing in property adjacent to a $30 million federal recreation and tourism project in eastern West Virginia, the Daily Mail has learned.
The corporation already has made a profit of $48,176 most of which will come eventually from the U. S. Treasury on an original investment of $134,620. And the valuation of its remaining holdings runs as high as $400,000, according to information obtained by this newspaper.
There is evidence the firm has violated state law by buying and selling property before it was qualified, as a foreign corporation, to do business in West Virginia. There is additional evidence it has never done any business in New York where it was chartered, and where the law permits incorporation by an agent without identifying the incorporators, which is forbidden by West Virginia law.
The corporation is `Selmet Properties, Inc.,' and the only persons involved in it, from the records and information given the Daily Mail by the U. S. Forest Service, are Sprouse, Elkins real estate dealer and Democratic political figure Robert Hedrick, Pendleton County motel operator and Sprouse supporter Wilson Smith, and a New York lawyer.
All of the property involved is in Pendleton County. It is adjacent to or very near two of the state's greatest natural attractions Spruce Knob and Seneca Rocks.
$30 Million Outlay
E. M. Olliver, supervisor of the Forest Service in Elkins, said the federal government has plans to develop the entire area for recreation and tourism at a total estimated cost of $30 million, and work on it already is under way.
The development plan was completed in March, 1965 for presentation to Congress, after months of work on it by the Forest Service.
One month earlier, on Feb. 25, 1965, Selmet Properties was incorporated in New York by Jerome L. Grometstein, a New York Attorney who certified the office of the corporation was to be located in the city of New York.
A bill authorizing the project was introduced in Congress in April and passed in September, 1965.
On March 12, 1966, Selmet bought approximately 2,900 acres from Henry Regnery and his (See SPROUSE, pg. 11, Col. 1) *700 [At the top of Page 11 above the continuation of the story the following headline appeared in normal size headline type and extending across six columns:]
Sprouse Owns Choice Land Beside $30 Million U. S. Resort
[Beneath the headline and also covering six columns appeared a reproducton of a map showing the general area where the land was located, beneath which appeared the following caption:]
This is a map of the area where the federal government has plans to spend $30 million developing one of the major tourist attractions of the Eastern United States. A New York corporation headed by Democratic gubernatorial nominee James M. Sprouse owns some choice land in the area as shown by the heavy arrow between the community of Riverton and the road leading to Spruce Knob, the highest point in West Virginia. The knob and Seneca Rocks, a few miles from the corporation holdings, will be the chief attractions, but others are shown in this map prepared by the U. S. Forest Service, which will operate the recreation area in the Monongahela National Forest.
[Beneath the map and caption appeared the following two-column headline in oversize type:]
Continued
SPROUSE PENDLETON
BONANZA DISCLOSED
[Thereafter appeared the continuation of the story from the front page as follows:]
wife for $134,620 and paid cash for it according to the deed on record in the Pendleton County courthouse.
Between May 6 and June 7, 1966, Selmet conveyed seven parcels to various individuals for $67,932.75, with all of the deeds signed by Sprouse as president of the corporation. Much of the property was sold for $1,000 an acre in the bottomland of the North Fork of the South Branch of the Potomac River and U. S. Route 33, a main traffic artery between the two great natural attractions.
More than two months after it started selling property, Selmet registered in the office of the West Virginia secretary of state, required of foreign corporations before they can own property or do business in West Virginia according to the law.
Sprouse signed as president and Hedrick as secretary-treasurer, and stated Selmet owned 1,600 acres of land worth $75,000, as of Aug. 25, 1966.
OFFICE IN CHARLESTON
Whereas the New York charter application showed the principal office of the firm as being in New York City, the West Virginia document shows the principal office as 700 Terminal Building, Charleston, where Sprouse has his law firm.
Three months after qualifying to do business here, Selmet sold a tract for $28,000 in a deed dated Nov. 26 and signed by Sprouse as president of Selmet.
That brought Selmet's take to $95,932 and was the last deed signed by Sprouse as president. All other deeds from that day to the present have been signed by Hedrick as president.
In January, 1967, Olliver said the Forest Service was approached by Smith, offering to sell a tract of 1,385 acres, and the service recommended in May that it be purchased.
Because the Forest Service did not have the money for the purchase at that time, Olliver said his office approached Nature Conservancy, Inc., of Washington to buy the tract and hold it for the service. Nature Conservancy is a non-profit corporation of dedicated conservationists who buy land for public agencies and hold it until the agency involved is prepared to buy it.
Selmet sold the acreage to Nature Conservancy on Oct. 2, 1968 for $81,364. That made Selmet's total gross income $182,796.75 more than it paid the Regnerys for its entire holdings.
*701 Olliver said the only person he ever talked to about the deal was Smith, that he never knew who owned Selmet, and that he couldn't find out because at the time he inquired the firm was not incorporated in West Virginia.
There is no precise way to measure how much land Selmet has left out of the original Regnery tract because of the inaccuracy of deeds in the mountainous territory.
However, by deducting all of the land sold by Selmet, and using the Pendleton County land books as a guide, you come up with a total remaining of 404 acres.
Much of this appears to be in the bottomland and includes very flat property on the highway that will be attractive to developers of motels, service stations, etc., when the Forest Service completes the great tourist complex.
The Selmet property lies a few miles south of Mouth of Seneca, where the great rocks come in full view of the tourists. It is between Riverton and Secondary 13, a hard-base road that now leads up to Spruce Knob, the highest point in West Virginia, 4,862 feet.
All of the area lies within the Monongahela National Forest where a 100,000-acre tract has been designated as the Spruce Knob-Seneca Rocks National Recreation Ara [sic].
Charleston Daily Mail
Charleston, West Virginia
Friday Evening October 25, 1968
[At the top of the front page of this day's edition appeared the following headline in oversize headline type across columns one through four:]
MOORE ASKS FEDERAL PROBE INTO SPROUSE'S PENDLETON LAND GRAB
[Directly beneath the following sub-headline which was printed in normal size headline type covering two columns appeared this news story:]
`Dummy Firm' Seen Proving Corruption
By BOB MELLACE
Daily Mail Political Editor
Congressman Arch A. Moore Jr. today asked for a full congressional investigation of the land dealings near a $30 million federal recreation project by a New York corporation headed by his Democratic opponent for governor, James M. Sprouse.
From what I have read in the newspaper and from information that has since come to me privately, it would appear that this land grab smacks of the same old Statehouse corruption, Moore said.
Yesterday's Daily Mail carried a story about Selmet Properties, Inc., which already has made a handsome profit in Pendleton County, near the new Spruce Knob-Seneca Rocks National Recreation Area, and stands to make much more.
The corporation, according to New York state records, was formed in February, 1965, a month before plans for the federal project were announced by the U. S. Forest Service.
Moore said:
"Here we have a dummy corporation, set up in the dark of night in the state [sic] of New York, which claims its assets consist solely of real estate in the State of West Virginia. This seems more than vaguely reminiscent of the Florida corporation scandals of a few months ago.
"I see no reason for the formation of such a corporation in the State of New York, unless you wish to conceal certain facts of the internal workings of the corporation, or to avoid disclosures as to the ownership of the corporation... It is obvious there were other compelling reasons for these West Virginians to go outside the state for the formation of their company. I would like to know what they wished to hide. I think also that these questions should be answered:
*702 "1. Who were the members of the corporation in addition to James M. Sprouse, Robert Hedrick and Wilson Smith?
"2. Did they have prior knowledge of the Forest Service recommendation that this area of land would be utilized as a portion of the federal recreation complex planned there?
"3. Where did the money for the purchase of this land come from?
"4. Were any individuals in (Se [sic] SPROUSE'S pg. 6, Col. 1)
[The story is continued on Page 6 under the one-word, one-column headline "Sprouse's":]
(Continued from Page One)
the federal government involved?
"5. Who was responsible for changing the boundaries of the recreation complex to include land owned by this corporation?
"6. Have any members of this corporation been involved in similar land sales to the federal government or its agents in this same area?
"7. Why was one tract of land, not contiguous and not needed for this recreatiornal [sic] facility, included in the sale?
"I believe that these questions should be answered in full. To this end, this day I am asking for a full investigation of this entire matter by the appropriate committee of the House of Representatives."
Sprouse has made no comment on the Daily Mail story of Thursday but called a news conference for 3 p. m. today, reportedly to discuss the story.
Hedrick was identified as an Elkins real estate dealer, active in Democratic party affairs, and a director of the U. S. Farmers Home Administration. Smith is a Pendleton County motel operator, also a Democrat and active in Sprouse's campaign.
Selmet Properties, according to the Daily Mail's information, did not sell land directly to the federal government.
Director E. M. Olliver of the Forest Service explained that, in cases where the service wants land and does not have money at hand to purchase it, there is a non-profit corporation of conservationists, Nature Conservancy, Inc., of Washington, D. C., that buys the land and holds it.
At the service's direction, Nature Conservancy bought a 1,385-acre tract from Selmet for $81,364. Olliver said the service now is in process of buying it from Nature Conservancy, at cost plus expenses.
The Nature Conservancy sale put Selmet's gross profits up to $48,176 on its original cash investment of $134,620, according to deeds on record in the Pendleton County courthouse. In addition, the corporation has much valuable land left on the main highway through the big recreation complex.
[A second article appeared on Page 1 of the Daily Mail, placed directly adjacent to the above article. At the top of the page spanning columns five through eight appeared the following headline in normal size headline type:]
Where Governor Candidate `Cleans Up'
[Below the headline appeared a photograph of the Seneca Rocks area which also spanned four columns. Beneath the photograph appeared the following caption:]
Seneca Rocks, above, are one of West Virginia's most scenic attractions but the U. S. government says they are worth only $7,900, according to D. C. Harper, in picture below, who says the rocks have been in his family more than 200 years. The government wants them for a new recreation area in Pendleton County and Harper says he will fight the condemnation action at the price offered. Meanwhile, down the road from the rocks, the government will pay $81,364 for property owned by a corporation headed by Democratic *703 gubernatorial candidate James M. Sprouse, without a condemnation fight, and will take more property than it actually needs. Daily Mail Photos by Chester Hawes.
[Beneath the above quoted caption appeared the following headline spanning four columns:]
FORTUNE TO JIM SPROUSE BUT PITTANCE FOR SENECA
Landmark's Owners Plan Court Fight Against Deal
[Under the headline and beside the story was a photograph of D. C. Harper extending across two columns under which was printed the caption:]
D. C. Harper .... Will Fight Rocks Project
[Beside the picture of Harper and beneath the headline appeared the following story:]
By BOB MELLACE
Daily Mail Political Editor
The owners of Seneca Rocks, one of the greatest natural attractions in the Eastern United States, say the federal government has offered them $7,900 for their property. And they will fight it in a condemnation court.
But the same federal government will pay, indirectly, more than $81,364 to a New York corporation headed by Democratic gubernatorial nominee James M. Sprouse for what is mostly cutover hillside land just a short distance from the rocks.
And the U. S. Forest Service says it had to make concessions to the corporation to get the land it wants for a new road to Spruce Knob recreation area. It did not consider it necessary to condemn this land.
The service is developing a new recreation complex on 100,000 acres of the Monongahela National Forest and Seneca Rocks and Spruce Knob are the key attractions. It is estimated to cost $30 million.
Sprouse called a press conference at 3 p. m. today, reportedly to comment on yesterday's Daily Mail story about the New York corporation.
D. C. Harper lives at the Mouth of Seneca and says the rocks have been in his family more than 200 years. They are on a 73-acre tract. But, says Harper, that tract includes flat land fronting 1,100 feet on the main highway, U. S. 33 State Route 28, and land on that highway in the vicinity of the new development is selling for $1,000 an acre and more.
IN NAMES OF HEIRS
The rocks are now in the names of his two children and their children, according to Harper, who says they will fight the condemnation proceedings.
He adds that appraisals of the rocks have run from $9,000 to $40,000, and that he once refused to give an option on them for $150,000.
They are a great tourist attraction and a magnet for college students from all over the east who come to Mouth of Seneca every holiday to climb the rocks. The benefits to the owners are incidental to the operation of a general store opposite the rocks.
South of the rocks on U. S. 33 a few miles is the 2,900-acre tract purchased by Selmet Properties, Inc., for $134,620 in March 1966. In August of the same year, Sprouse signed as president when the corporation qualified to do business in West Virginia.
Selmet was chartered in New York in February, 1965, one month before the Forest Service disclosed its plans for the new recreation area. According to the records, it has done no business in New York, only in Pendleton County, West Virginia.
*704 As of this month, Selmet had a gross profit of $48,176 from sales of some parcels from the original tract, but retains much valuable bottomland fronting on the highway and variously esti- (See LANDMARK, Pg. 6, Col. 4)
[On Page 6 appeared the following headline above the continuation of the story:]
Continued
Landmark Owners
Offered `Pittance'
mated at 400 acres worth $1,000 an acre.
A deed recorded May 7, 1966, and signed by Sprouse as president of Selment [sic] shows William Painter and others paid $12,000 to the corporation for 12 acres on the uphill side of the highway. It is an ideal location for a store and service station because it is at the intersection of the main highway and a rockbase road running up the mountain to Spruce Knob.
But, when the recreation complex is completed, that road won't be the main entrance to the new recreation area. A new road will be constructed on what once was Selmet property, and which will be flanked by Selmet property when it is in service.
OLD ROUTE UNSUITABLE
The new road is what brought Selmet into the picture, according to E. M. Olliver, supervisor of the Forest Service at Elkins.
He told the Daily Mail that an engineering survey showed the present road to Spruce Knob, where Painter bought his property from Selmet, would not be suitable for traffic when the new complex is completed.
If it is any consolation to Painter, Olliver also said that improvements of the old road to the standards sought by the service would have required the taking of his property anyway.
However, Olliver continued, the survey showed the best location of a road to the Knob is a short distance north of the Painter property, on Blizzard Run. The Blizzard Run property provides the necessary width, alignment and grade needed for the new road, Olliver said, and added, "that's when we went to Selmet."
He did not know who Selmet was, he said, because the corporation was not registered at the secretary of state's office in Charleston. But Wilson Smith, a motel operator and Sprouse supporter in the current political campaign, came to the Forest Service in January, 1967, and offered the 1,385 acre tract.
The property, according to Olliver, includes the site of the new road, on the western side of the highway, some bottomland, and another tract on the eastern side of the highway, above the bottomland and far from the forest boundaries.
The Forest Service did not want all of that land, Olliver said, but Selmet refused to sell what the service wanted unless it took it all.
Why didn't the Forest Service condemn what it wanted, without taking the land on the opposite side of the highway?
"We didn't have to condemn," Olliver replied, "because it was a case of willing seller and willing buyer."
But Olliver and his property manager also disclosed that the Selmet property it did want, for the road, was not in the forest boundaries, which had to be extended to cover that property before it could be purchased.
The property on the other side of the highway, which it also had to buy, is not in the forest boundary. Its purchase was justified by Olliver, who said it qualifies for government purchase because it is suitable for national forest purposes.
The U. S. Forest Service did not have the available funds to buy the Selmet property, Olliver said, so it turned to Nature Conservancy, Inc., of Washington, D. C. This is a non-profit organization of *705 conservationists who buy land wanted by the federal government for parks and other purposes and hold it until the government agency has the money to buy it back.
The Forest Service is now in the process of getting the land from Nature Conservancy, Olliver said, and will pay what Nature Conservancy paid to Selmet, plus any expenses Nature Conservancy incurred in the purchase.
Selmet conveyed the 1,385 acres to Nature Conservancy Oct. 7, 1968, for $81,364. Robert Hedrick of Elkins signed as president of Selmet, with Smith as vice president, according to the deed on record at the courthouse in Franklin.
NOTES
[1] The Court has considered in detail the following additional assignments of error raised by petitioner, namely, that the trial court erred: (1) in overruling petitioner's objection to plaintiff's use and display before the jury throughout the course of trial of "placards" or "blowups" of the publications in question; (2) in denying petitioner's motion for a mistrial made at the conclusion of the opening statement of counsel for plaintiff on the ground of improper remarks by counsel; (3) in permitting the admission of certain tangible and testimonial evidence; (4) in permitting counsel for plaintiff to question witness Robert Mellace as a hostile witness; (5) in giving and reading to the jury plaintiff's instructions numbers 1, 2A, 3, 5, 7 as amended, 8B, 10, and 10A; (6) in refusing petitioner's instructions numbers 1, 2, 6, 10, 15, 16, 18, 20, 21, 22, 23, and 24 and part of 3; (7) in refusing to submit special interrogatory "A" to the jury; (8) in permitting plaintiff's counsel to exhibit to the jury during closing argument special interrogatory "B"; (9) in denying petitioner's motion for a mistrial made at conclusion of closing statement by counsel for plaintiff on the ground of improper remarks by counsel. Upon consideration the Court is of the opinion and does find that the assignments are without sufficient merit to be considered fairly raised, and accordingly the above assignments are summarily dismissed.
[2] Testimony of plaintiff James M. Sprouse on cross-examination:
Q. Now, early in the campaign, Mr. Sprouse, I believe in March, 1968, you made a public disclosure of what you said was an itemization of your income during the years 1963 to 1966, an itemization of your assets, including real property, stocks, and some personal property, even including an automobile; is that correct?
A. I issued such a statement, sir, I don't know the date.
.....
(Defense counsel then read aloud the text of a news article printed in the Charleston Gazette, a rival newspaper of the Daily Mail in Charleston, which contained an extensive list of Sprouse's assets and income, among which was included the item "interest in forestry acreage, Pendleton County, $10,000.")
.....
Q. Now, would you not admit or agree with me on reflection, and after the event, had you disclosed to the public in that release March of 1968, that you owned a certain percentage of the shares of stock of Selmet Corporation which owned a large tract of land in Pendleton County, which it had purchased at a cost of $134,000, and that the corporation owed the bank a certain sum of money, making the net value of the value of your stock, a certain figure, that you would never have had these news stories in this campaign?
A. No, sir, I don't agree with you on that. I think no matter what I had put, if I had put that same information, the Daily Mail could have done the same hatchet job based on that same information.
Q. But, you see, in this story you said you, James Sprouse, had interest in forestry acreage in Pendleton County, value of $10,000. Now, would not the ordinary person construe that to mean that you, as an individual, owned some real property which was primarily of value only for timber and that it would be in your name on the property books, either alone or with co-tenants?
A. I can't say what the ordinary person would think, Mr. Chambers. My intention was to give a fair disclosure of what I owned there, and that's what I tried to do. I think at the time it was just about the value of the investment I had.
.....
Q. Where did you publicly reveal your connection with Selmet Corporation before it became public knowledge on August 24, 1968?
A. In 1968?
Q. Yes.
A. When I registered we registered with the Secretary of State and my name was listed as an officer. I signed all of these deeds as president. That was a public record. And when I signed all of these deeds, this was a public record. When I applied for a loan at the bank and we told them what it was for, everybody that wanted to know anything about it, obviously. I was proud of being associated with it. It wasn't anything I wanted to conceal.
[3] This conclusion with regard to the evidence is either supported in the body of the articles themselves or from testimony at trial.
Testimony of Robert Mellace:
Q. Getting back ... the story says "cleans up", "WHERE GOVERNOR CANDIDATE `CLEANS UP'", October 25th.
A. The headline.
Q. The headline over Seneca Rocks, where Sprouse cleans up.
A. That is what it says.
Q. It is over a picture of Seneca Rocks, isn't it?
A. Yes.
Q. He [Sprouse] didn't even own Seneca Rocks, did he?
A. I don't think Mr. Harper owned the Rocks, I think.
Q. Mr. Mellace, are you telling the Court and jury that people reading "WHERE GOVERNOR CANDIDATE `CLEANS UP'" would not think it referred to the picture?
A. The general area.
Q. The general area is 10 miles from Seneca Rocks.
A. That's the general area.
[4] Testimony of Mr. Jack Maurice, one of the editors of defendant newspaper, who reviewed the articles prior to publication:
Q. Now, Mr. Mellace [sic] Mr. Maurice, you agree, do you not, and you concluded after investigation, that there was no advance or inside information that Judge Sprouse was the beneficiary of in connection with the land purchase and subsequent sales in the Pendleton land area?
A. We concluded that we had nothing to suggest that he had any advance information.
Q. And you had nothing to suggest that that transaction, the purchase and sale of real estate in Pendleton County was in any way tainted with illegality or criminality of any kind; that's true, isn't it?
A. That is true, sir.
Q. You don't contend that?
A. No, sir.
Testimony of Mr. Robert Mellace, editor of defendant newspaper and author of the articles complained of:
Q. As I understand it, Mr. Mellace, you don't contend that Judge Sprouse had inside, advance information on this property, do you?
A. No, sir, I don't contend that.
Q. You don't contend, do you, Mr. Mellace, that way back in February, 1965, when this corporation was formed by Mr. Sprouse and a [former] classmate at Columbia [University Law School], that it was done for the purpose of buying real estate to sell to the U. S. Government? Do you contend that?
A. No, sir.
Q. Let me ask you something, Mr. Mellace: Do you contend now that this corporation was formed or connected with any Act of Congress passed in March, 1965?
A. No, sir.
[5] Testimony of Robert Mellace, editor of defendant newspaper and author of the news stories complained of:
Q. Did you come about it [the story of the land transactions] originally by way of investigation?
A. No, I did not.
Q. As a matter of fact, did it not come from William Loy and Norman Yost, who at that time were directors and managers of the Republican campaign who came to your office and gave you information they wanted to have published? That is true, isn't it?
A. They did come to my office. What their titles were, I don't know. I know both of them were working for Arch Moore, and today continue to work for the Governor. I think Yost was his publicity man and Mr. Loy was his campaign director. Mr. Yost has a newspaper background and Mr. Loy, a lawyer, worked in Washington with the Governor when he was a congressman. That is true, they did come to me, yes, sir.
Regarding the state-wide circulation of the stories about Sprouse to other newspapers, Mr. Mellace testified as follows:
Q. Mr. Mellace, when you published this first story, rather after this story was written and before it was published, did you have occasion to show it to Mr. Yost?
A. I showed Mr. Yost a carbon copy of it.
Q. That was before it was published?
A. It was before it appeared in the Daily Mail, like, well, an hour and a half.
Q. And he was one of the [Moore] campaign aides who planted the story with your newspaper?
A. He was one of those who suggested there might be a story, yes, sir.
.....
Q. And you gave it to him so he could get circulation by sending it to other newspapers, didn't you?
A. Well, yes. He asked us if it would be all right if he called other newspapers. We told him it would be all right if it was a paper that would not appear before the Daily Mail. After it appeared in the Daily Mail, we didn't care who used it.
Q. You don't normally and routinely do that, give Mr. Yost the story Daily Mail writes for publication in other papers, do you?
A. This was not a routine story.
.....
Q. I am talking about routine practice, you don't routinely give Mr. Yost your publications to have him disseminate them?
A. This is the only time that has ever happened.
Testimony of Mr. Norman Yost, publicity director in the campaign of Arch A. Moore, Jr., the plaintiff's opponent in the gubernatorial election, and one of the men who took information to the defendant newspaper for publication:
Q. Mr. Yost, when did you first come about the information that Judge Sprouse owned an interest in real estate in Pendleton County?
A. The first information came about eight weeks, possibly ten weeks before the election in the form of rumor or of somebody reporting this information.
Q.... After you received this information, did you have occasion to go to any newspaper and seek its publication?
A. This information, basically, was provided by Mr. Loy. And when Mr. Loy had secured certain documents that he felt were vital to the campaign, I did go to the Charleston Daily Mail.
.....
Q. Now, Mr. Yost, how many times did you personally visit and speak with the editor or associate editor, or any officials of the Daily Mail about publication of this story?
A. This particular story?
Q. Yes.
A. I had one conference in which Mr. Loy, Mr. Jennings, Mr. Maurice, Mr. Mellace was present, and I believe that was the only time I was there for this purpose or any connection therewith.
.....
Q. And when you received the story, what did you do with that story?
A.... I immediately called my staff together and asked them to help me distribute this story throughout the State.
.....
Q. Could you tell us what newspapers, and I see you didn't bring notes with you, but as best your memory can serve you, can you tell us what newspapers carried this story that you and your staff circulated?
A.... I didn't have a clip sheet at this time of the newspapers that did, but I assume that we hit every afternoon newspaper. That would be our purposes.
Q. And I take it, as an experienced news man, you knew what newspapers to call to give the story to?
A. Yes, because a news story, it is something that has to be delivered fresh. And if it is not fresh, it is not news.
[6] Testimony of Mr. Marvin N. Marshall, who at the time the articles were printed was Land Staff Officer of the Monongahela National Forest, and who was one of the federal officials to whom Mr. Mellace spoke during his investigatory trip to Elkins:
Q. Did Mr. Mellace make any statements, or did he ask any questions of you or of Mr. Olliver, in your presence, regarding the transaction which is the subject of this lawsuit?
A. Yes, sir.
Q. What were those questions?
A. The questions concerned the amount of acreage in the transaction, the amount of land that was left in the ownership of Selmet Corporation, and values of the land.
.....
Q. Do you know how many acres that tract consisted of? That is, in the residual?
A. 87.09.
.....
Q. Was there any discussion, either statements made or questions asked by Mr. Mellace on that occasion regarding the acreage still belonging to Selmet?
A. Yes, sir.
Q. What were those, or what was that?
A. Mr. Mellace indicated there was larger acreage than that residual, and I attempted to show him from our records that there was less acreage than that, than that he indicated.
Q. Did you tell him what acreage was left?
A. I told him, in my opinion, it was less than 100 acres.
Q. Did he indicate to you ... how many acres he thought was left?
A. Approximately 400 acres.
Q. Now did you, sir, have a discussion with him as to the value per acre, or otherwise, of the residual tract?
A. Yes, sir.
Q. What was that discussion?
A. He indicated the values were around $1,000 an acre, and I indicated that, in my opinion, having seen land sell in that area, that it would be nearer $500 per acre.
.....
Q. Now, insofar as Mr. Mellace in his story, Mr. Olliver [sic], I don't find any place he quotes you, but insofar as it quotes Mr. Olliver, or attributes statements to the Forest Service, is this story basically accurate?
A. Not in my opinion.
Testimony of Mr. Robert Mellace:
Q. As a matter of fact, this company, even though it did qualify after it began to sell properties, was licensed to do business in the Office of the Secretary of State in the State of West Virginia; you had that information didn't you?
A. Yes.
Q. Bill Loy gave that to you?
A. Either that or I acquired it myself....
Q. As far as the records of the Secretary of State are concerned, nothing Judge Sprouse did concealed his identity or connection with that Selmet Company, did it?
A. Not to my knowledge, no, sir.
.....
Q. Insofar as your word "disclosed," there was nothing to suggest that Judge Sprouse in qualifying that company did anything to submerge his identity in any fashion or character, was there?
A. I completely accept responsibility, Rudy, for these headlines, but I did not write them.
.....
Q. Mr. Mellace, absent any available knowledge and absent any inside information, do you admit that this was a legitimate real estate transaction...?
A. It was basically legitimate as far as I know, and I never said otherwise.
[7] See: New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), Black concurring, at p. 293, 84 S. Ct. 710; Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), Black concurring, at p. 79, 85 S. Ct. 209, and Douglas concurring, at p. 80, 85 S. Ct. 209; Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), Douglas concurring, at p. 88, 86 S. Ct. 669, and Black concurring and dissenting, at p. 94, 86 S. Ct. 669; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), Black concurring and dissenting, at p. 170, 87 S. Ct. 1975.
[8] Testimony of Mr. Robert Mellace:
Q. Now, I am asking you sir, isn't it true that D. C. Harper did not plan any court fight against any deal that this has reference to?
A. Not to my knowledge.
Q. As a matter of fact, Mr. Mellace, that story or that headline was printed, `Landmark's Owners Plan Court Fight Against Deal,' so that the common interpretation would be that he was planning a court fight against Judge Sprouse, wasn't it?
A. Well, my interpretation of that was that he was planning a fight against the U. S. Forest Service for not giving him enough for his land. I never connected Mr. Harper with the fight against Judge Sprouse's firm.
[9] The testimony of Mr. Robert Mellace supports this conclusion.
RE: "Disclosed."
Q. Now, Mr. Mellace, the word "disclosure" is used in your news story. I speak specifically now, of the headline appearing on October 24, 1968: "Pendleton Realty Bonanza by Jim Sprouse Disclosed."
A. Yes, that is there.
.....
Q. As far as the records of the Secretary of State are concerned, nothing Judge Sprouse did concealed his identity or connection with that Selmet Company, did it?
A. Not to my knowledge, no, sir.
.....
Q. "Disclosure," you would agree, suggests there was something to be disclosed that the public didn't know about, isn't that true?
A. Yes, sir.
.....
Q. Would you admit that there was no effort on behalf of James M. Sprouse to conceal or submerge his identity up until the time of the story?
A. I don't know of any.
* * * * * *
RE: "Land Grab."
Q. The story planted by the campaign, and that was the story of October 24, 1965 [sic], and he called a press conference, and you printed and published a statement he made I am talking now about the story of October 25th, "Pendleton Land Grab." In the headlines you used the words "Land Grab"?
A. The Daily Mail did.
.....
Q. And "land grab," Mr. Mellace, means, does it not, the seizure of real estate or seizure of land illegally or underhanded, does it not?
A. I don't know, again these are not my words.
.....
Q. You will agree, will you not, Mr. Mellace, that this was not a land grab? Was it?
A. In the sense that Jim stole land or grabbed it?
Q. Yes.
A. No, but, again, that is not my word.
* * * * * *
RE: "Dummy Firm."
Q. You published a sub-headline "Dummy Firm Seen Proving Corruption." Your newspaper published that?
A. Yes, sir. And, again, those are Governor Moore's words.
Q. You agree, do you not, this was not a dummy firm by any definition of the word?
MR. CHAMBERS: "Objection. I think the evidence will show whether it was or not. I don't think the witness is qualified to answer that question."
.....
THE COURT: "This objection is overruled. You can answer the question."
.....
A. My definition of a dummy firm or dummy corporation would be one that was formed covertly to hide the identity of officers doing business in that corporation, but I can't make any conclusion about why this corporation was formed.
I just know in my own mind that it was formed outside the State of West Virginia and the only business it has done was in the State of West Virginia. When it first started doing business in West Virginia, it did not, as required by law, register with the West Virginia Secretary of State.
Q. Mr. Mellace, I agree with you, it registered late, but when it registered, it registered two years and one month before this property was sold to Nature Conservancy, in August 1966, and the property was sold in October, 1968.
A. Okay.
.....
Q. After it registered with the State of West Virginia it did not violate laws in the State of West Virginia did it?
A. Not to my knowledge.
* * * * * *
RE: "COURT FIGHT."
Q. Now, Mr. Mellace, if I might direct your attention to another story on October 25th. We have here the introductory headline, "Landmark's Owners Plan Court Fight Against Deal."
A. That is what it says.
Q. Now, I am asking you, sir, isn't it true that D. C. Harper did not plan any court fight against any deal that this has reference to?
A. Not to my knowledge.
Q. As a matter of fact, Mr. Mellace, that story or that headline was printed, `Landmark's Owners Plan Court Fight Against Deal,' so that the common interpretation would be that he was planning a court fight against Judge Sprouse, wasn't it?
A. Well, my interpretation of that was that he was planning a fight against the U. S. Forest Service for not giving him enough for his land. I never connected Mr. Harper with the fight against Judge Sprouse's firm.
* * * * * *
Testimony of Mr. Wilson Smith, real estate broker from Elkins who negotiated the sale of the original 2,900-acre Regnery tract to Selmet:
Q. Mr. Smith, you are familiar, I take it, with that area, are you not?
A. Yes, sir.
.....
Q. There is a headline there where "Governor Candidate Cleans Up." Does that property contain the Seneca Rocks? [The news photograph that appeared in Daily Mail Story was shown to witness] Is that Seneca Rocks on that property?
A. No, sir.
Q. How far away is the property that you all purchased from Seneca Rocks or from where "Governor Candidate Cleans Up"?
A. At least five miles nine miles.
Q. And the Rocks had nothing to do with the property?
A. No, sir.
[10] PLAINTIFF'S INSTRUCTION NO. 1
The Court instructs the jury that if you find by a preponderance of the evidence that one or more of the publications identified as Plaintiff's Exhibits Nos. 1 & 2 complained of constituted "libel", as that term is defined for you in these instructions, and if you further find by a preponderance of the evidence that the libelous publication or publications were false in some material particular; and if you further find by clear and convincing evidence that the libelous and false statements were published with actual malice, as defined in these instructions, then your verdict may be for the plaintiff, James M. Sprouse, and against the Charleston Mail Association.
PLAINTIFF'S INSTRUCTION NO. 2a
The Court instructs the jury that libel in a case brought by a nominee for public office may be defined as a false writing published by the publisher with knowledge of its falsity, or false publication published with a reckless disregard of its falsity, and which tends to injure the reputation of the nominee, to throw contumely or to reflect shame and disgrace upon him, or to hold him up as an object of scorn, ridicule, or contempt.
PLAINTIFF'S INSTRUCTION NO. 3
The Court instructs the jury that the term "actual malice" means that the defendant published false and defamatory statements with knowledge that they were false or with a reckless disregard of whether they were true or false.
PLAINTIFF'S INSTRUCTION NO. 7
The Court instructs the jury that even though failure to investigate, on the one hand, and mere ill will, bias spite or prejudice on the other, standing alone, are insufficient to establish either a knowledge of the falsity of, or a reckless disregard of the truth or falsity of the materials used; however, such evidence, if any, of motive, intent, may be considered for the purpose of establishing, by cumulation and by appropriate inferences, the fact of a defendant's recklessness or of his knowledge of falsity. Goldwater v. Ginzburg, [2 Cir.] 414 F.2d 324, 342.
DEFENDANT'S INSTRUCTION NO. 3
The Court further instructs the jury that all of the news stories and editorials published by the defendant, and complained of by the plaintiff, were constitutionally protected and require a verdict for defendant, unless:
First, one or more of the publications complained of constituted "libel" as that term is defined for you in these instructions;
Second, the libelous publication or publications were false in some material particular; and
Third, the libelous and false statements were published with "actual malice" as defined in these instructions;
The burden is upon the plaintiff to prove the first two of these essential elements by a "preponderance of the evidence" as that phrase is defined in these instructions;
The burden of proof to be borne by plaintiff with respect to the third essential element actual malice is more strict. The plaintiff has the burden of proving actual malice by "clear and convincing evidence".
The Court instructs the jury that by clear and convincing evidence is meant more than a mere preponderance of evidence. Clear and convincing evidence is that evidence which is so clear, explicit, and unequivical [sic] as to leave no substantial doubt and which is sufficiently strong to command the unhesitating assent of every reasonable mind.
If you find that plaintiff has failed to establish any of these three essential elements by the standard explained, it is your duty to return a verdict for defendant.
DEFENDANT'S INSTRUCTION NO. 5
The Court instructs the jury that the term "actual malice," which must be established by clear and convincing evidence to warrant a verdict for plaintiff, means that defendant published false and defamatory statements with knowledge that they were false or with a reckless disregard of whether they were true or false. Reckless disregard for the truth cannot be equated with negligence or what a reasonable man would have said under the circumstances.
Reckless disregard for truth or falsity implies a high degree of awareness of probable falsity. There must be clear and convincing evidence permitting the conclusion that the defendant in fact entertained serious doubts as to the truth of his false and defamatory publication. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1323860/ | 233 Ga. 464 (1975)
211 S.E.2d 754
ANDERSON
v.
THE STATE.
29430.
Supreme Court of Georgia.
Submitted December 2, 1974.
Decided January 8, 1975.
W. J. Stanley, for appellant.
Lewis R. Slaton, District Attorney, H. Allem Moye, Assistant District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.
UNDERCOFLER, Presiding Justice.
Charles Anderson, alias Lawrence Anderson, was convicted on four counts of armed robbery and one count of criminal attempt to commit armed robbery. The jury sentenced him to a total of ninety years imprisonment. The verdict and sentence were made the judgment of the court. The evidence shows that on October 26, 1973, about 1:35 a. m. a man robbed the Squire's Inn in Atlanta with a silver plated revolver. About an hour later the Ramada *465 Inn in Hapeville was robbed by a man carrying a silver plated revolver. The descriptions of the robber given by the victims were the same.
On October 29, 1973, at about 11:00 p. m. a robber entered the Ritz Hotel in Atlanta with a silver colored pistol and robbed the desk clerk of a certain amount of money. The robbery was witnessed by a hotel bellboy who followed the perpetrator to the front of the hotel, recognized him as one whom he had seen a few hours earlier in a bar, identified the vehicle he escaped in, and recorded the license number of the vehicle. A description of the robber was given to the police. The vehicle was registered in the name of Charles Anderson.
About 11:30 p. m. the same night, a man entered the lobby of the Peachtree Motel in Atlanta and robbed the night auditor. He left the motel in a late model car and the man was described to the police officers.
Less than a half-an-hour later a man similarly dressed entered Stouffer's Inn in Atlanta. An off-duty Atlanta policeman, Officer R. W. Graham, was working as a security guard there. Officer Graham was in plain clothes and was talking with the night manager at the desk when the man entered the inn. The officer took four or five steps away to allow the man access to the desk. The man drew a silver colored, nickel plated revolver from his belt and demanded money. The night clerk opened the drawer and found no money. She stepped aside. Officer Graham with his weapon drawn, stepped back to the counter, held his weapon against the man's head and told him to drop his gun. He dropped his gun and was taken into custody. He was advised of his constitutional rights but was only questioned as to identification. When the man refused to identify himself, Officer Graham searched his body looking for identification and found $418. As the man was being taken to the patrol car, money began falling from both his pant legs. A total of $605.46 was on the person of the robber.
The next morning a line-up was conducted at the police station. The appellant was advised that he had the right to object to the line-up but he stated that he wanted to be viewed because he had done nothing. He was allowed to select the clothing he wanted to wear and to select a *466 position in the line-up. There were six other similar men in the line-up. The appellant was selected by all of the viewers independently of each other as the man who perpetrated the robberies. The viewers were the victims and witnesses to the robberies for which the appellant was on trial. Two of the victims subsequently identified the appellant from a group of six photographs. Held:
1. The evidence was sufficient to support the verdict, was not decidedly and strongly against the weight of evidence, and was not contrary to law and the principles of justice and equity. It follows that the trial court did not err in overruling the motion for new trial on the general grounds.
2. The appellant contends that the line-up identification was unfair. We do not agree. The line-up was conducted properly and the in-court identification was not tainted thereby.
Judgment affirmed. All the Justices concur. Hill, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324045/ | 603 S.E.2d 762 (2004)
269 Ga. App. 256
COTHRAN
v.
The STATE.
No. A04A1539.
Court of Appeals of Georgia.
August 25, 2004.
*763 Jennifer Hildebrand, Lafayette, for Appellant.
Herbert Franklin, District Attorney, John O'Dell, Assistant District Attorney, for Appellee.
RUFFIN, Presiding Judge.
A jury found Ernest Cothran guilty of burglary.[1] Cothran appeals, contending that the evidence was insufficient to support his conviction. Cothran also asserts that the trial court erred in sentencing him as a recidivist. For the reasons that follow, we affirm.
On appeal from a criminal conviction, "the defendant no longer enjoys the presumption of innocence, and we view the evidence in a light most favorable to the verdict to determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt."[2] We neither resolve conflicts in the evidence nor assess witness credibility, but merely determine the legal sufficiency of the evidence.[3]
Viewed in this manner, the evidence shows that, on January 6, 1998, Deputy Spraggins of the Chattooga County Sheriff's Department responded to a security system alarm at Tommy Stinson's residence. He noted a vehicle leaving a dirt road that ran behind the Stinson residence, stopped the vehicle, briefly questioned the occupants, and then let them go. After examining the exterior of the residence and observing signs of a break-in, Spraggins saw the same vehicle pass by. He followed the vehicle and pulled it over.
Spraggins conducted a "pat-down" of Cothran, a passenger in the vehicle, in order to check for weapons to ensure safety while conducting the investigation. During that "pat-down," Spraggins found a green leafy substance that appeared to be marijuana, as well as several bullets. Spraggins then searched the vehicle, finding a coin collector's book and a Social Security card, both bearing the Stinson name. Cothran told Spraggins that there was a pistol in the armrest, and Spraggins removed the pistol from the vehicle. Further investigation of the vehicle revealed, among other things, another 9mm pistol, two coin book collections belonging to Stinson, and a cash withdrawal slip with Tommy Stinson's name on it.
1. Cothran claims that his presence where the crime was committed and his possession of the stolen goods is insufficient to support his conviction for burglary. We disagree.
Pursuant to OCGA § 16-7-1(a), "[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another." As we have previously noted
[r]ecent possession of stolen goods will not automatically support a guilty verdict for theft or burglary. . . . Instead, recent possession is to be viewed as probative evidence of the crime, and reviewed along with the other evidence in the case to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt.[4]
Here, Cothran's possession of the stolen goods must be viewed along with his presence near the scene. This evidence is sufficient to support the jury's decision to find Cothran guilty of burglary.[5]
2. Cothran also argues that he was improperly sentenced as a recidivist and that the State did not give him notice of intent to use a prior offense in aggravation of punishment, as required by OCGA § 17-10-2(a). We disagree.
Georgia law provides that "[a] person convicted of burglary, for the first such offense, *764 shall be punished by imprisonment for not less than one nor more than 20 years."[6] Pursuant to OCGA § 17-10-2, the trial court may, at the sentencing hearing, hear evidence of any prior criminal convictions provided that the State makes such evidence known to the defendant before the trial. Here, Cothran was sentenced to the maximum penalty of 20 years. During the sentencing hearing, the State noted that it was presenting nothing in aggravation, other than a prior conviction for burglary that had already been introduced at trial. Cothran objected, stating that he had received no prior notice that the conviction was going to be used in aggravation of sentencing. The Court overruled the objection, stating that the prior conviction was set forth in the indictment and introduced at trial.
If Cothran was sentenced as a recidivist, then OCGA § 17-10-2 would require either a recidivist charge in the indictment or some other affirmative notice to the defendant that his prior offenses would be used against him for recidivist purposes during sentencing.[7] However, Cothran points to no evidence in the record that he was so sentenced. In fact, at sentencing, the trial court specifically set forth its reasons for imposing the maximum penalty, including its concern that Cothran had told a "bold faced" lie after swearing to tell the truth, and that he had endangered the lives of officers by carrying a loaded weapon while drinking. Nowhere does the court mention Cothran's prior conviction or that such conviction in any way factored into the court's decision. Under these circumstances, Cothran has not shown that he was sentenced as a recidivist, and therefore we presume that the sentence was correctly imposed.[8]
Judgment affirmed.
ELDRIDGE and ADAMS, JJ., concur.
NOTES
[1] Cothran also was found guilty of possessing marijuana, possessing a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He does not directly challenge these convictions on appeal.
[2] Smith v. State, 247 Ga.App. 173, 543 S.E.2d 434 (2000).
[3] See Bales v. State, 232 Ga.App. 761, 763(1), 503 S.E.2d 607 (1998).
[4] (Citations and punctuation omitted.) Abernathy v. State, 214 Ga.App. 364, 365(1), 448 S.E.2d 30 (1994).
[5] See id.
[6] OCGA § 16-7-1(a).
[7] See State v. Freeman, 198 Ga.App. 553, 556-557(3), 402 S.E.2d 529 (1991).
[8] See id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324048/ | 649 S.E.2d 355 (2007)
MOON
v.
The STATE.
No. A07A0314.
Court of Appeals of Georgia.
July 6, 2007.
Donarell R. Green, IV, for Appellant.
Kenneth W. Mauldin, Dist. Atty., C. Rebecca Smith, Asst. Dist. Atty., for Appellee.
BARNES, Chief Judge.
Quenton Moon appeals from the trial court's order denying his motion to withdraw *357 his guilty plea. Moon contends that the trial court erred when it found that he entered his plea knowingly, intelligently, and voluntarily and that he had received adequate counsel. We affirm.
The record shows that Moon and two co-defendants were indicted for armed robbery, burglary, aggravated assault, possession of a firearm or knife during the commission of certain crimes, and obstruction. On April 21, 2005, Moon and his co-defendants entered a guilty plea, reducing their charges to one count of robbery by intimidation and one count of burglary. The trial court sentenced Moon to fifteen years with seven to serve.
In May 2005, Moon sent a letter to the trial court asking permission to withdraw his guilty plea, and the court appointed counsel to represent him. Moon then filed a motion to withdraw his guilty plea, contending that the plea was not entered intelligently and voluntarily and that trial counsel was ineffective in failing to file a motion for severance and in leading Moon to believe that he could not have a separate trial. At the hearing on this motion, defense counsel withdrew the allegation of ineffective assistance of counsel, but the trial court permitted Moon's former counsel to testify nonetheless. Moon then spoke on his own behalf concerning his ineffective assistance claim. The trial court continued the hearing so that counsel and Moon could both testify.
At the second hearing, both trial counsel and Moon testified regarding the events that led to the entering of the guilty plea. At the close of the second hearing, the trial court held that Moon entered his guilty plea knowingly, intelligently, and voluntarily, and that Moon's former counsel had been adequate. In so ruling, however, the trial court addressed only counsel's failure to file a motion for severance. Although Moon claimed that trial counsel also failed to interview important defense witnesses, the trial court held that Moon had waived that claim by omitting it from his written motion.
1. Moon first argues that his plea was not knowingly and voluntarily entered because he was not advised of his rights to avoid self-incrimination, to receive assistance of counsel, and to remain silent. See Uniform Superior Court Rule (USCA) 33.8. We disagree.
A guilty plea may be withdrawn only to correct a manifest injustice such as an involuntary or unintelligent plea or ineffective assistance of counsel. State v. Evans, 265 Ga. 332, 336(3), 454 S.E.2d 468 (1995). Where the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was knowingly, intelligently, and voluntarily made. Jones v. State, 268 Ga.App. 723, 724(1), 603 S.E.2d 73 (2004). "The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea." Id. A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of that discretion. Id.
The record indicates that Moon signed a Petition to Enter Guilty Plea Form ("plea form") stating that he had a right "[t]o testify or not testify . . ., that [Moon] cannot be required to testify, and if [he] choose[s] not to testify the jury cannot take that as evidence against [him]." The plea hearing transcript also indicates that Moon reviewed each question in the plea form with his attorney, understood each question he was answering, and was also given the opportunity to raise questions. The prosecutor further advised Moon at the plea hearing that he "could testify or not testify as [he] saw fit" if he chose not to accept the plea.
The plea form asked Moon who his lawyer was, whether he had enough time to talk to his lawyer, and whether his lawyer had advised him about the nature of the charges against him and any possible defenses he might have. Moon answered affirmatively to all these questions. Moon's trial counsel also signed the plea form, indicating his counsel's presence when he entered the plea agreement. Furthermore, during the plea hearing, the prosecutor asked Moon if he had enough time to discuss his case, his defenses, and any questions he had with his attorney, to *358 which Moon answered in the affirmative. The record also shows that the prosecutor asked Moon if he understood "that [he does not] have to say anything here today if [he does not] want to." Again, Moon answered in the affirmative.
We have held that a plea statement form like the one at issue here can be used to show that a guilty plea is knowingly and voluntarily entered when the plea statement is entered into the record and accompanied by a colloquy like that between the prosecutor and Moon in this case. See Gainer v. State, 267 Ga.App. 408, 409, 599 S.E.2d 359 (2004); Wiggins v. State, 245 Ga.App. 527, 528-529, 538 S.E.2d 180 (2000). While the record does not contain a statement by a court official explicitly telling Moon that he had the right to not "incriminate" himself, to have "assistance of counsel during trial," or to remain "silent," the State need not show that USCR 33.8 was recited to the letter to rebut an attack on a guilty plea. See McClendon v. State, 256 Ga. 480, 481(2), 350 S.E.2d 235 (1986). If the record permits the conclusion that "the accused has a full understanding of the concepts involved, the appellate courts will not invalidate a guilty plea for failure to use the precise language" of those rights. Hawes v. State, 281 Ga. 822, 824, 642 S.E.2d 92 (2007).
The record before us indicates that Moon was adequately apprised of his rights. It follows that the trial court did not abuse its discretion when it denied Moon's motion.
2. Moon also argues that he did not receive effective assistance of counsel when counsel failed (a) to file a motion for severance and (b) to interview key witnesses. These claims lack merit.
In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the United States Supreme Court held that a defendant who pleads guilty and then seeks to withdraw his plea because of ineffective counsel must establish (1) deficient performance and (2) prejudice, as required by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In the context of guilty pleas, prejudice is met by showing "that there is a reasonable probability that, but for counsel's errors, [defendant] would not have pleaded guilty and would have insisted on going to trial." (Punctuation omitted.) Hopkins v. State, 274 Ga.App. 872, 619 S.E.2d 368 (2005); see also State v. Heath, 277 Ga. 337, 338, 588 S.E.2d 738 (2003). Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Smith v. Francis, 253 Ga. 782, 783-784, 325 S.E.2d 362 (1985). We accept the trial court's findings of fact as to ineffective assistance unless clearly erroneous. Strickland, supra, 466 U.S. at 698, 104 S. Ct. 2052.
(a) Moon asserts that trial counsel should have filed a motion for severance from his other co-defendants, and that had Moon known that he could have had a separate trial, he would not have pled guilty. Moon's trial counsel testified, however, that he did not file for severance because one of Moon's co-defendants had already lost on the same motion. Since Moon presented no new evidence at the time of the hearing to distinguish his request for severance from his co-defendant's, the trial court assumed his motion would have been meritless and therefore did not find trial counsel's performance deficient. Failing to file a futile or meritless motion cannot amount to ineffective assistance. Jackson v. State, 281 Ga.App. 83, 86(2)(a), 635 S.E.2d 372 (2006).
(b) Finally, Moon contends that trial counsel was deficient in failing to interview potential defense witnesses. It is unclear whether the trial court considered this claim when denying Moon's guilty plea withdrawal, and Moon urges the court to remand back to the trial court for consideration of all relevant evidence. We are able to reach the merits of this claim on the record before us, however, and do so in the interest of judicial economy. See Hayes v. State, 262 Ga. 881, 883(3), 426 S.E.2d 886 (1993).
Trial counsel testified that he discussed with Moon each of the State's witnesses, including all anticipated testimony and evidence that would be presented against him. Counsel also testified that he decided not to interview Moon's alleged alibi witnesses only after answering all of Moon's questions, discussing *359 trial strategy related to those witnesses, and exploring possible defenses. Moon has also failed to proffer the evidence that would have been revealed by such interviews. Even assuming trial counsel's failure to interview the witnesses in question was deficient, Moon did not carry his burden of showing a reasonable probability that, but for the allegedly deficient performance, he would have elected to proceed to trial. See Person v. State, 257 Ga.App. 464, 467(4), 571 S.E.2d 472 (2002).
The trial court did not err when it denied Moon's motion to withdraw his guilty plea.
Judgment affirmed.
SMITH, P.J., and MILLER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324049/ | 649 S.E.2d 568 (2007)
DAVIS
v.
The STATE.
No. A07A1356.
Court of Appeals of Georgia.
July 9, 2007.
*569 Giannini & Spence, Carl J. Spence, for appellant.
Rosanna M. Szabo, Solicitor-General, Lisa M. Moultrie, Assistant Solicitor-General, for appellee.
ELLINGTON, Judge.
Following a bench trial on stipulated facts, a judge of the State Court of Gwinnett County found Michelle M. Davis guilty of driving under the influence of alcohol, OCGA § 40-6-391(k) (driver under 21 years of age, alcohol concentration of 0.02 grams or more); and of failing to maintain her lane, OCGA § 40-6-48. Davis appeals from the judgment of conviction, contending the trial court erred in refusing to suppress the results of her Intoxilyzer 5000 alcohol breath test. For the following reasons, we affirm.
"We will not disturb the trial court's order on a motion to suppress if there is any evidence to support it, and we construe all evidence presented in favor of the trial court's findings and judgment." (Citation omitted.) McDaniel v. State, 263 Ga. App. 625, 626-627(1), 588 S.E.2d 812 (2003). Where, as here, the evidence was undisputed at the suppression hearing and there is no question as to the credibility of the witnesses, our review of the trial court's application of the law to the undisputed facts is de novo. Daniel v. State, 277 Ga. 840, 849(5), 597 S.E.2d 116 (2004).
So viewed, the relevant facts are as follows. On July 17, 2005, an officer with the Lawrenceville Police Department arrested 18-year-old Davis for driving under the influence of alcohol. Davis stipulated that the arrest was supported by probable cause and that the officer read the proper implied consent notice. The officer took Davis to the police department where he administered an Intoxilyzer 5000 alcohol breath test. Davis stipulated that the machine had been inspected and was in good working order and that the officer was certified in the machine's use. The first test was taken at 3:01 a.m. and yielded a test result showing an alcohol concentration of 0.126 grams. The officer attempted to administer a second test, but Davis was unable to produce an adequate breath sample because she was upset and crying. The State stipulated that Davis' failure to complete the second test was not a refusal. After Davis calmed down, the officer administered a third test on the same machine at 3:12 a.m. which yielded a test result showing an alcohol concentration of 0.126 grams. Davis contends that the trial court should have suppressed the breath test results because the two breath samples taken were not "sequential" as required by law. We disagree.
As this Court has held, "OCGA § 40-6-392 governs the admissibility at trial of evidence of the amount of alcohol in a person's blood, urine, breath, or other bodily substance, as determined by chemical analysis." Chamberlain v. State, 246 Ga.App. 423, 424, 541 *570 S.E.2d 64 (2000). If the State selects breath testing,
two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state's or plaintiff's case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver's license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
OCGA § 40-6-392(a)(1)(B). After the State has completed its test, the defendant has the right to obtain an independent chemical test or tests. OCGA § 40-6-392(a)(3); Chamberlain v. State, 246 Ga.App. at 424, 541 S.E.2d 64.
Davis argues that, in a case which does not involve a refusal to give a second breath sample, the first breath test result is admissible only if the second breath test result is taken from a sample obtained immediately following the first, without an intervening failure of or inability of the defendant to participate in the testing. The statute, however, simply does not require that. The statute provides that the State shall request two sequential breath samples, that the State may request a second set of two sequential breath samples,[1] and that an adequate breath sample "shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis." OCGA § 40-6-392(a)(1)(B). Here, the State complied with the statute in that it requested sequential breath samples, took two sequential series of tests, and obtained test results on two adequate breath samples from that series of tests. The samples were "sequential" in that they were taken as part of a series of tests, with one adequate sample taken following the other.[2]
We decline to hold that "sequential," as used here, also means without any gaps in the procedure due to the test taker's inability to give an adequate breath sample. It would make little sense to hold that the results of either of these tests are inadmissible due to the defendant's inability to immediately give a second breath sample when a complete refusal or failure to take a second test does not affect the admissibility of the results of any prior samples. As we held in Chamberlain, the fact that a defendant "failed or refused to provide a second sample, as requested by the State, did not affect the admissibility of the results of the first sample." (Emphasis supplied.) Chamberlain v. State, 246 Ga.App. at 425, 541 S.E.2d 64 (Chamberlain said she was unable to produce a second breath sample because she had a history of Legionnaire's Disease, a respiratory infection.). Finally, the fact that there was an intervening failed test due to the *571 defendant's inability to provide an adequate sample does not necessarily harm the defendant. Usually delay caused by such a failed test works against the State because the delay between tests typically results in a drop in the defendant's blood alcohol level,[3] and if the drop exceeded 0.02 grams, then the second test would render both tests inadmissible. OCGA § 40-6-392(a)(1)(B). Thus, we hold that an intervening failed test due to the defendant's inability to provide an adequate breath sample will not render otherwise valid[4] breath alcohol test results inadmissible. The fact of such an intervening failed breath test goes to the weight, not the admissibility, of the test results. Therefore, we find no error in the trial court's ruling on the motion to suppress.
Judgment affirmed.
ANDREWS, P.J., and ADAMS, J., concur.
NOTES
[1] In Davis v. State, 237 Ga.App. 817, 818(1), 517 S.E.2d 87 (1999), we held that the statute provides that the State may request no more than two tests, consisting of two adequate breath samples each. After taking these tests, the State is without authority to conduct a third set of breath tests. Thus, in light of Davis, if we were to construe the statute as the appellant argues, a defendant need only feign an inability to give a second sample in each of the two series of tests in order to render the results inadmissible.
[2] "Sequential" is defined as "1. Forming or characterized by a sequence, as of units or musical notes. 2. Sequent." And "sequent" is defined as "1. Following in order or time; subsequent." The American Heritage Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004.
[3] See Allen v. State, 229 Ga.App. 435, 440(2)(c), 494 S.E.2d 229 (1997) ("[B]lood alcohol levels drop at a constant excretion rate over time when no further alcohol is ingested.").
[4] Of course, the sequential breath samples must be taken on the same testing machine. The purpose of testing two sequential breath samples is to insure the reliability of the testing procedure, and divergent test results may indicate a problem with the machine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324276/ | 535 F.3d 295 (2008)
NOURISON RUG CORPORATION, Plaintiff-Appellee,
v.
Abdi PARVIZIAN, Defendant-Appellant, and
Parinco of Virginia, Incorporated, Defendant.
No. 07-1973.
United States Court of Appeals, Fourth Circuit.
Argued: May 15, 2008.
Decided: July 28, 2008.
ARGUED: Judah Lifschitz, Shapiro, Lifschitz & Schram, Washington, D.C., for Appellant. James M. Andriola, Reed & Smith, LLP, New York, New York, for Appellee. ON BRIEF: Thomas A. DiBiase, Alexis M. Lockshin, Shapiro, Lifschitz & Schram, Washington, D.C., for Appellant.
Before TRAXLER and KING, Circuit Judges, and JACKSON L. KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation.
*296 Affirmed by published opinion. Senior Judge KISER wrote the opinion, in which Judge TRAXLER and Judge KING joined.
OPINION
KISER, Senior District Judge:
Abdi Parvizian ("Parvizian") guaranteed a debt owed to Nourison Rug Corporation ("Nourison") by Parinco of Virginia, Inc. ("Parinco"). When Parinco defaulted, Nourison sued Parvizian to recover the balance due. After the deadline for amending the pleadings had passed, Parvizian attempted to amend his answer to add the defense of release. The United States District Court for the District of Maryland denied the proposed amendment, and granted summary judgment for Nourison. Parvizian now challenges the denial of the amended complaint and the granting of summary judgment. Because we find that the District Court did not abuse its discretion, we affirm.
I.
The relevant facts are not in dispute. Nourison is a manufacturer and supplier of rugs and carpets. Parinco is a wholesaler of rugs, furniture, and furnishings. The President of Parinco is Allen Parvizian ("Allen"). Parvizian, the Appellant, is Allen's father, but is not otherwise involved with the operations of Parinco.
In August 2004, Nourison and Parinco entered into a consignment agreement under which Nourison would deliver rugs to Parinco on a consignment basis and Parinco would sell them to the public. Parinco sold these rugs but did not remit the payments to Nourison. By August 2005 Parinco owed Nourison $2,386,735.98.
To satisfy this debt, Parinco delivered a Promissory Note (the "Note") to Nourison on August 24, 2005. Parinco was to make biweekly (semimonthly) payments of approximately $50,000 for two years. The Note was to be self-liquidating and the balance could be accelerated if a default was not cured within ten days. Further, "acceptance of any installment payment after default shall not serve as a waiver with respect to any of the note holder's rights regarding any future late payments." J.A. 93.
On October 14, 2005, Parvizian executed a guaranty letter (the "Guaranty") under which he guaranteed the full payment of all amounts due under the Note. In return Nourison was to subordinate its lien to any bank that requests such action.
Parinco made its last full payment in February 2006. To rectify the account, Nourison allowed Parinco to make the following alternative payments: 1) By the end of the week Parinco would pay its past due balance of $18,219; 2) Parinco would pay $56,000 by April 15; 3) Parinco would reconcile its remaining balance owed by April 30; 4) Parinco would provide a list of unsold merchandise so that Nourison could issue a return authorization number; 5) Parinco will pay for all its sold consignment merchandise by April 30. Over the course of the next few months, Parinco made sporadic payments to Nourison. At some point the parties agreed for Parinco to pay $25,000 biweekly (semimonthly), half of what the Note required. The last payment made by Parinco was in June 2006.
Parvizian claims that he was not informed of these alternative arrangements, and that they were material alterations to the Note. Nourison contends that these were a voluntary temporary forbearance which did not affect Parvizian's rights or obligations as a guarantor.
On September 7, 2006, Nourison informed Parvizian of Parinco's default and *297 demanded payment under the Guaranty. The demand letter states that "Parinco has not made any of the bi-weekly payments due under the Note since February 3, 2006 (nor made any other payments since June 21, 2006)." J.A. 31. Parvizian has made no payments.
Nourison filed its Complaint on October 12, 2006, to which was attached the letter from September 7. On December 1, 2006, Defendants Parinco and Parvizian filed their joint Answer (a stipulated order extended their deadline to this date). The Answer admitted the existence of the agreements between the parties and that Parinco was in default of its obligations.
On December 12, 2006, the District Court entered a scheduling order, which stated in bold that it "will not be changed except for good cause." J.A. 50. Among other dates, the scheduling order set out the following deadlines: 1) January 18, 2007 Moving for amendment of pleadings; 2) April 18, 2007 Discovery deadline; and 3) May 18, 2007 Dispositive pretrial motions deadline.
On February 13, 2007, Nourison filed a Motion for Summary Judgment. In the Joint Opposition, filed on March 2, 2007, Parvizian raised the defense of release for the first time, stating "Parvizian is not liable under the Guaranty because Nourison and Parinco have changed the terms of Parinco's obligations under the Note." J.A. 137. On March 16, 2007, Parvizian filed a Motion for Leave to Amend Answer to add his defense of release. That Motion explains: "In responding to the motion for summary judgment, Mr. Parvizian's counsel reviewed his defenses to the guaranty letter (the `Guaranty') at issue in this case and noted that there was a defense available to Mr. Parvizian that he had not raised in his Answer: release." J.A. 228. On May 18, 2007, Parvizian filed a Motion for Summary Judgment on the basis of release.[1]
On September 7, 2007, the District Court issued an Order denying the Motion for Leave to Amend Complaint and granting Nourison's Motion for Summary Judgment, thus awarding Nourison $2,080,872 from Parvizian and Parinco.
In ruling on the Motion for Leave to Amend, the District Court relied on Rule 16(b), which requires good cause to justify amendment of the pleadings, rather than Rule 15(a). The Court found that Parvizian "provides no reason for his failure either to include the defense of release in his original answer or to make a timely motion for leave to amend the answer to include this defense. There is no indication that any of the facts upon which Abdi Parvizian seeks to base his defense of release came into his possession after his original answer was filed, and there is certainly no indication that he learned of these facts after the scheduling order deadline for amendments to the pleadings." J.A. 491.[2]
Further, the court then expressed that the defense of release would be futile for several reasons. First, because the proposed amended answer "asserts no facts to support [its] bare legal conclusion," it would be stricken pursuant to Rule 12(f). J.A. 496. Therefore it would not preserve the defense and would be futile.
Second, "the evidence that Abdi Parvizian forecasts in response to Plaintiff's Motion for Summary Judgment and in support *298 of his own Motion for Summary Judgment based on this defense does not support the defense, and would be insufficient to withstand Plaintiff's Motion for Summary Judgment." Id. The proffered evidence "does not constitute an agreement modifying the terms of the Promissory Note for separate consideration, but rather a temporary forbearance or indulgence of Parinco's default under the Promissory Note." J.A. 497.
Therefore, "because Plaintiff has shown that Parinco was in default under the Promissory Note and that Abdi Parvizian was notified of the default but failed to make good on his promise to perform pursuant to the Guarantee Agreement, he is in breach of the Guarantee Agreement." J.A. 500.
Parvizian advances his appeal on two theories: 1) That the District Court abused its discretion by refusing to allow Parvizian to amend his Answer; and 2) that the District Court erred in granting summary judgment for Nourison.
II.
The District Court's denial of Parvizian's Motion for Leave to Amend is reviewed for abuse of discretion. GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.2001).
There is tension within the Federal Rules of Civil Procedure between Rule 15(a) and Rule 16(b) amply illustrated by this appeal. Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." A motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile. HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir.2001). On the other hand, Rule 16(b) provides that "a schedule shall not be modified except upon a showing of good cause and by leave of the district judge."
The Fourth Circuit has never directly spoken to the conflict between these two provisions in a published opinion. However, in Montgomery v. Anne Arundel County, 182 Fed.Appx. 156, 162 (4th Cir. May 3, 2006), this Court affirmed a district court's refusal to grant an amendment filed after the scheduling order deadline on the basis of Rule 16(b).
Given their heavy case loads, district courts require the effective case management tools provided by Rule 16. Therefore, after the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings. This result is consistent with rulings of other circuits. See O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 154-55 (1st Cir.2004); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000); S & W Enters. v. SouthTrust Bank of Ala., 315 F.3d 533, 536 (5th Cir.2003); Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir.2003); In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437-38 (8th Cir.1999); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998).
In his Motion for Leave to Amend, Parvizian explained his delay: "In responding to the motion for summary judgment, Mr. Parvizian's counsel reviewed his defenses to the guaranty letter at issue in this case and noted that there was a defense available to Mr. Parvizian that he had not raised in his Answer: release." J.A. 228. Further, his Reply Memorandum did not add any detail to his reasons. This is far short of what is required to satisfy the good cause standard, and the District Court thus properly denied the Motion.
Though Parvizian failed to rely on the March 2007 emails in his Motion for Leave to Amend, he urges us to consider his *299 appeal in light of them. In his Opposition to Nourison's Motion for Summary Judgment, which was filed before his Motion for Leave to Amend, Parvizian attached the March 2007 emails to support his argument. Parvizian suggests that these attachments were sufficient notice of the source of his Motion for Leave to Amend. Regardless of our consideration of the March 2007 emails, Parvizian still does not establish that the district judge abused her discretion.
The email messages demonstrate that Nourison was attempting to recover payments from Parinco, which had again fallen behind on its commitments, by temporarily allowing Parinco to make alternative payments. Parvizian argues that "Nourison and Parinco had entered into a new agreement that significantly altered the payment terms of the Note or that each installment was now half of what was originally agreed to, thereby drastically increasing Mr. Parvizian's exposure on the Guaranty." (App. Reply Br. 9.) This interpretation of the emails is highly questionable. Nourison and Parinco were sophisticated parties that on several previous occasions entered into formal written agreements as to their ongoing relationship.
It is much more natural to construe these emails as Nourison's agreement to a temporary forbearance in an attempt to recover some of the money it was due. Forbearance should be encouraged as a matter of policy as it is a creditor's compromise between accepting no payment and entering into costly litigation. The District Court thus properly interpreted the emails as an agreement of temporary forbearance. Therefore there was no error in finding that the facts did not support satisfaction of the "good cause" standard.
Parvizian urges us to adopt a new standard, reading Rule 16(b) in light of Rule 15(a)'s liberal allowances. We refuse to do so. Because we sustain the District Court's application of Rule 16(b), there is no cause for us to address the Court's finding that amendment would be futile, which is a Rule 15(a) consideration.
III.
We review de novo a district court's denial of summary judgment, construing all facts and reasonable inferences in the light most favorable to the nonmovant. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (citations omitted), cert. denied, 513 U.S. 813, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994).
Parvizian's arguments on this point are largely dependent on the arguments addressed above If the District Court erred in excluding the defense of release, then it surely erred in granting summary judgment against Parvizian. However, the exclusion of the defense of release was not in error. Parvizian admitted that he guaranteed the debt, that the debt was in default, and that he was on notice of such default. Therefore the granting of summary judgment was appropriate.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
NOTES
[1] Parvizian's Motion for Summary Judgment was denied and has not been appealed.
[2] Both Parvizian and Parinco were represented by the same counsel from the time the Answer was filed on behalf of both defendants. It is inconceivable that counsel, and thus Parvizian, were not informed as to the arrangement between Nourison and Parinco from the beginning of the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324406/ | 252 S.C. 504 (1969)
167 S.E.2d 307
The STATE, Respondent,
v.
Goss BROOKS and Bill Elrod, Appellants.
18909
Supreme Court of South Carolina.
April 24, 1969.
*505 Messrs. G. Ross Anderson, Jr., and Karl L. Kenyon, of Anderson, for Appellants.
*506 Messrs. Daniel R. McLeod, Attorney General, and Emmet H. Clair, Assistant Attorney General, of Columbia, and William H. Ballenger, Solicitor, of Walhalla, for Respondent.
April 24, 1969.
MOSS, Chief Justice.
Goss Brooks and Bill Elrod, the appellants herein, were tried at the 1967 August term of the General Sessions Court for Oconee County upon an indictment charging them with the murder of Frank Gibby, the alleged offense having occurred on March 10, 1966. The trial resulted in *507 a verdict of guilty with recommendation to the mercy of the court and they were sentenced to imprisonment for life. Following the conviction of the appellants, a motion for a new trial was made and denied. This appeal followed.
Midway Tavern, adjacent to U.S. Highway No. 123 in Oconee County, was owned by one Joe Brooks, with an interest being held therein by his son, Goss Brooks. The Tavern was managed by one Bill Elrod.
On the night of March 10, 1966, Frank Gibby, accompanied by three of his friends, came to Midway Tavern at about 9:00 P.M. They remained for a short time and then visited other places, returning to Midway at about 11:00 P.M. The appellants were not present at the time but came in later. Elrod was not working the night in question but the place of business was being operated by one Juanita Smith. Elrod, who admittedly had been drinking, reprimanded Juanita Smith for not properly operating the Tavern during his absence and he ordered her to leave. She left the place of business and Gibby went out with her and after they had some conversation they came back into the Tavern and sat down in a booth. It appears that words were exchanged between Elrod and Gibby as to the treatment that had been accorded Juanita Smith. Gibby and his companions were ordered to leave the Tavern. It is the State's contention that Gibby was an invitee of the Midway Tavern and in compliance with the order to leave the Tavern that Gibby went outside into the parking area, being unarmed at the time, and the appellants, each being armed with a pistol, followed him out of the place of business into the parking area where words were exchanged and a scuffle took place between Elrod and Gibby. It was then that the appellants shot and killed Gibby while he was near his automobile.
The appellants testified that inside the Tavern Gibby was arguing with Bill Elrod as to his treatment of Juanita Smith. Gibby was ordered to leave the Tavern and in compliance with said order went outside; the door to the *508 Tavern was then closed, but Gibby kicked the door open and told Elrod that he was not satisfied with the way he had treated Juanita Smith. They testified that Gibby was cursing and at the time was armed with a pistol. It was at that time that Goss Brooks went outside and was followed by Elrod. They testified that while Elrod was talking with one J.B. Outz, a companion of Gibby's, that Gibby ran up to Elrod and grabbed his gun out of his pocket and threatened to kill the appellants, firing two shots in such attempt. Brooks testified that after Gibby had fired one of two shots that he then fired his gun in order to defend himself. Brooks's gun was fired five times. One bullet was removed from Gibby's body and identified as having come from Brooks's pistol.
We have not recited all of the testimony that was given by the various witnesses at the trial. We have only stated so much of the testimony in behalf of the state and the appellants as is necessary to show the contentions of the state and the appellants with reference to the instructions of the trial judge to the jury.
The trial judge instructed the jury that one who operates a place of business necessarily invites customers to enter the premises and that one who enters as a customer or an invitee the business establishment of another is required by law to conduct himself in a reasonable and proper manner, and that a proprietor or manager or owner of a place has the duty to maintain peace and good order within his place of business. They were further instructed that even though a person has entered the business premises of another, at the invitation of the manager or owner, his subsequent conduct may be such as to justify a proprietor or manager in revoking the invitation to remain as a guest in said place of business and to order his departure. If he refuses to leave, the proprietor or manager has the right to use such force as may be reasonably necessary to eject the one who has become a trespasser, and he must not use more force than is necessary or reasonable for said purpose.
*509 The appellants interposed a plea of self-defense. The jury was instructed that the burden of proof of such a defense rested upon the appellants and that the elements of such were (1) that the appellants were without fault in bringing on the immediate difficulty, or the necessity of taking human life; (2) that at the time the fatal shot was fired the appellants believed that they were in imminent danger of losing their lives or sustaining serious bodily harm; and (3) that a reasonably prudent man, a man of ordinary firmness and courage, would have reached the same conclusion. The fourth element, known as the law of retreat, was not mentioned in these instructions.
At the conclusion of his charge, the trial judge temporarily excused the jury and gave counsel the opportunity to express objections to the charge or request additional instructions as required by Section 17-513.1 of the Code. The appellants requested the trial judge to clarify his charge to the jury with reference to the right of an owner of a business establishment to eject one who becomes a trespasser as this relates to the plea of self-defense. It is the position of the appellants that in the exercise of their right of ejection, if difficulty ensues, they would be without fault in bringing on the difficulty within the meaning of the first element of self-defense, and would not be denied the right of invoking such defense. This request was refused by the trial judge and the question here is whether such refusal was error.
The appellants interposed two defenses: (1) the right to eject a trespasser from their place of business, and (2) self-defense. The affinity of these available defenses, under the facts stated, was remarked upon in State v. Griggs, 218 S.C. 86, 61 S.E. (2d) 653, where it was said that they are cognate. The testimony, whether true or not, shows that the difficulty between Gibby and Elrod and Brooks followed quickly after Elrod had ordered Gibby to leave the premises, and in close and immediate connection therewith. It is thus seen that the question of self-defense was *510 closely related to the right of the appellants to eject Gibby, who had become a trespasser, from the business premises managed and controlled by the appellants.
In State v. Rogers, 130 S.C. 426, 126 S.E. 329, this court held that if in the exercise of the right by a proprietor to eject a trespasser from his premises, the proprietor is assaulted by the trespasser and subjected to the danger of losing his life or of receiving serious bodily harm as would justify the killing of the assailant under the right of self-defense, obviously, he would have the right to stand on that defense and, if, in fact, engaged in the legitimate exercise in good faith of his right to eject, he would in such case be without fault in bringing on the difficulty, and would not be bound to retreat. The following cases are here pertinent: State v. Bowers, 122 S.C. 275, 115 S.E. 303; State v. Bradley, 126 S.C. 528, 120 S.E. 240; State v. Gordon, 128 S.C. 422, 122 S.E. 501; State v. Martin, 149 S.C. 464, 147 S.E. 606; State v. Sparks, 179 S.C. 135, 183 S.E. 719; State v. Hewitt, 205 S.C. 207, 31 S.E. (2d) 257; and State v. Starnes, 213 S.C. 304, 49 S.E. (2d) 209.
In the Starnes case this court approved the following charge:
"If in the exercise of that force, after the proprietor has ordered the trespasser to leave, the proprietor is assaulted by the trespasser, and becomes subjected to such danger of losing his life or suffering serious bodily harm as would justify the killing of his assailant, under the law of self-defense, and if engaged in the exercise in good faith of his right to eject such trespasser, he would be in such a case without fault in bringing on the difficulty, and he would not have to retreat."
In view of the testimony and the contention of the appellants, we think that they were entitled to both theories of their defense because such were interrelated. The trial judge, therefore, should have clarified his *511 charge in accordance with the request of the appellants. In failing to do so he committed prejudicial error. Whether the appellants were acting in good faith in attempting to eject Gibby, and while so doing Gibby assaulted them, was a question of fact for jury determination.
It is provided in Section 16-129.1 of the 1962 Code of Laws of South Carolina, as amended, that "[i]t shall be unlawful for anyone to carry about the person, whether concealed or not, any pistol, except as follows: (8) Any person in his home, or upon his real property, or fixed place of business."
The appellants requested the trial judge to instruct the jury that it was not unlawful for the owner or manager of a business establishment to have a pistol on his premises or upon his person while he was upon his own premises. This request was refused. In view of the cross-examination of the appellants by the Solicitor concerning the possession of pistols and having same on their persons, and inference might have been drawn by the jury that such possession was unlawful. We think the trial judge should have instructed the jury as requested.
The other questions raised by the exceptions of the appellants relate to matters that will not likely arise on another trial and need not be determined.
The judgment of the lower court is reversed and this case remanded thereto for a new trial.
Reversed and remanded.
LEWIS, BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324297/ | 587 F.3d 816 (2009)
UNITED STATES of America, Plaintiff-Appellant,
v.
Stephen L. ROGERS, Defendant-Appellee.
No. 08-1516.
United States Court of Appeals, Seventh Circuit.
Argued December 12, 2008.
Decided November 18, 2009.
*817 Steven Dollear (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.
Heather L. Winslow (argued), Chicago, IL, for Defendant-Appellee.
Before CUDAHY, FLAUM and WOOD, Circuit Judges.
*818 WOOD, Circuit Judge.
In 1994, Congress altered the longstanding ban on propensity evidence in criminal trials so that, in trials for sexual assault, similar conduct is admissible "for its bearing on any matter to which it is relevant." FED.R.EVID. 413. This appeal asks how this modification affects a district court's analysis under FED.R.EVID. 403, the catch-all provision excluding evidence that is relevant under Rule 401 but unduly prejudicial.
The government wants to use Rule 413 evidence against Stephen Rogers in his trial for attempting to entice a minor to engage in sexual activity and for using the Internet to attempt to transfer obscene material to a minor. The prosecutors therefore offered for admission two instances of similar conduct: a 2001 Illinois conviction for solicitation of a minor, and sexually explicit Internet conversations Rogers had with a 14-year-old girl in 2005. The district court excluded the evidence under Rule 403 and the government appeals. Because the record causes us to doubt whether the district court fully appreciated the legal relation between Rules 413 and 403, we reverse its exclusion of the evidence and remand for a new determination.
I
Rogers has an unfortunate habit of chatting with minor girls on the Internet. In 2005, he used the Internet to initiate chats with a 14-year-old girl in Wisconsin. In addition to frequently raising the topic of sex, Rogers encouraged the girl to send him pictures of herself, which she did. These pictures included a closely cropped picture of the 14-year-old's genitalia and a picture of her naked breasts. In addition, Rogers repeatedly urged the girl to meet him for a sexual encounter. As a result of this conduct, the government charged Rogers with knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), and persuading a minor to engage in sexually explicit conduct for the purpose of producing child porn, in violation of 18 U.S.C. § 2251(a).
In 2006, Rogers again used the Internet to strike up a conversation with someone whom he believed was a minor girl; this time, however, he was chatting with a police officer pretending to be a 13-year-old girl named "Emily." Over the course of two months, Rogers used email and instant messenger to persuade "Emily" to meet him for sex. Rogers arranged dates, times, and places to meet, but he never showed up at any of the arranged meetings. He continued, however, to have sexually explicit communications with "Emily." He also emailed "Emily" a cell phone picture of a hand holding an erect penis. For this conduct, the government charged Rogers with attempting to entice a minor to engage in sexual activity, 18 U.S.C. § 2442(b), and using the Internet to attempt to transfer obscene material to a minor, 18 U.S.C. § 1470.
Rogers has one prior conviction for using the Internet to persuade someone whom he believed was a minor to have sex. In 2001, Rogers initiated a chat-room conversation with "Loren," a police officer pretending to be a 15-year-old girl. Rogers arranged to meet "Loren" at her house for sex, and the police arrested Rogers as he walked toward the address supplied by the officer. Rogers pleaded guilty in state court to indecent solicitation of a child in violation of 720 ILCS 5/11.
In the lead-up to Rogers's trial for his 2005 and 2006 conduct, the government filed a motion to admit evidence of the 2001 conviction. During a hearing on January 31, 2008, the district court orally denied the motion. The judge found that, *819 while the 2001 conviction falls within Rule 413, the danger of unfair prejudice to Rogers from inferences based on his propensity to commit this sort of crime substantially outweighs the minimal probative value of the 2001 conviction. The court commented that the conviction "creates exactly the kind of concern that propensity evidence is always worried about," and then ruled that it would exclude the conviction under Rule 403.
After this decision, the government filed a superseding indictment that charged the four counts discussed above. The latest indictment added the child-pornography count based on new information provided by the Wisconsin minor. In response, Rogers asked the court to bifurcate the trial: he wanted one proceeding for his interactions with the 14-year-old girl and one for his interactions with "Emily." The district court granted his request. The government then filed its second Rule 413 motion, asking the court to admit evidence of both his 2001 conviction and the 2005 conduct relating to Rogers's interactions with the 14-year-old Wisconsin girl. In that motion, it took the position that the 2005 conduct fell within the definition of an "offense of sexual assault" provided by Rule 413(d)(1) and (5), insofar as it went beyond the mere sending of pictures and included concrete attempts to meet the minor for purposes of sexual intercourse. The 2005 conduct, it argued, thus involved attempted sexual contact with a minor and qualified as "conduct proscribed by Chapter 109A of title 18, United States Code." See Doe v. Smith, 470 F.3d 331, 342 & n. 20 (7th Cir.2006). The government made a similar argument with respect to the conduct underlying the 2001 conviction.
During a hearing on February 29, 2008, the district court denied this second Rule 413 motion. This time, the district court found that the conduct failed to qualify as an "offense of sexual assault" under Rule 413 because the Wisconsin minor willingly participated in the conversations. Alternatively, the district court found that the danger from propensity inferences substantially outweighed the minimal probative value and excluded the evidence under Rule 403. Invoking this court's jurisdiction over an interlocutory appeal by the United States from a decision to exclude evidence, see 18 U.S.C. § 3731 ¶ 2, the government appeals the exclusion of both the 2001 conviction and the 2005 conduct with the minor.
II
The government challenges the court's decisions on two grounds: first, with respect to the 2005 conduct, it argues that the district court erred by interpreting "offense of sexual assault" to exclude attempted, non-forcible sexual contact with a minor; and second, with respect to both of its proffers, it argues that the district court abused its discretion by excluding the evidence under Rule 403 because it failed to recognize that Rule 413 reversed the presumption that prior crimes pose a danger of unfair prejudice from propensity inferences. We review a district court's interpretation of the rules of evidence de novo and we review its decision to admit or exclude evidence for abuse of discretion. United States v. LeShore, 543 F.3d 935, 939, 941 (7th Cir.2008).
Rule 413(a) reads as follows:
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
Two criteria must be satisfied for this rule to apply: first, the defendant must be accused of an offense of sexual assault, and *820 second, the prior act must be an offense of sexual assault. Rule 413(d) defines an "offense of sexual assault" to include both "any conduct proscribed by chapter 109A" of title 18, FED.R.EVID. 413(d)(1), and an attempt to engage in either "contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person" or "contact, without consent, between the genitals or anus of the defendant and any part of another person's body." FED.R.EVID. 413(d)(2)-(5). Nobody disputes that the first criterion is met: the government charged Rogers with an attempt to entice a minor to engage in sexual activity. And nobody disputes that the second criterion is satisfied for the 2001 conviction, as Rogers pleaded guilty to knowingly soliciting a person he believed to be a minor to perform an act of sexual penetration. See 720 ILCS 5/11.
The first question we must address is whether the district court correctly found that the 2005 conduct does not qualify as an "offense of sexual assault" because there was no "contact, without consent."[1] (The court did not rely directly on Rule 413(d)(1), which may have obviated the need for the focus on consent. As we noted in Doe v. Smith, supra, "[b]y cross-reference, Chapter 109A of title 18 forbids both `sexual acts' and `sexual contact' with a minor, as well as attempts to do either of these things." 470 F.3d at 342 n. 20. Consent does not play a role in the statutory definition of either of "sexual acts" or "sexual contact." See 18 U.S.C. § 2246(2) and (3). Neither party has made anything of this point, however, and so we proceed to consider the appeal as it has been presented to us.)
To reach this conclusion, the district court interpreted "consent" to mean literal consent rather than legal consent. Under this interpretation, an attempt to have sex with a minor could be consensual for the purpose of Rule 413 if the minor willingly participated. Looking at Rogers's conversations with the 14-year-old girl in 2005, the district court decided that they were not "without consent" and therefore did not qualify under Rule 413. We cannot agree with the district court's interpretation of the word "consent." Rule 413 uses that word without qualifying it as actual or literal, and nothing suggests that Congress meant "consent" to mean anything other than its general legal definition. Minors lack the capacity to consent, and so sexual contact with a minor is always "without consent." See Doe v. Smith, 470 F.3d at 345 (holding that a defendant attempts to assault a minor sexually when he solicits the child's acquiescence in the sex act). Attempting to have sexual contact with the 14-year-old girl therefore qualifies as an "offense of sexual assault" under Rule 413, and thus the second criterion of the rule is satisfied for the 2005 behavior as well.
But, as the district court recognized, whether Rule 413 evidence is admissible neither begins nor ends with the text of that rule. Rule 413, after all, is permissive; it allows, but does not compel, the admission of evidence falling within its sweep. Accordingly, we must also consult Rules 401, 402, and 403. Evidence is admissible only if it is relevant. FED.R.EVID. 402. In other words, the evidence must have at least some "tendency to make the *821 existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED.R.EVID. 401. Before considering whether evidence is admissible under a more specific rule, such as Rule 413, courts must consider why the evidence is relevant.
Here, we see at least three ways Rogers's prior conduct makes it more likely that Rogers, by chatting with "Emily," was attempting to entice a minor to engage in sexual activity and to send obscene material to a minor. First, the evidence helps the government prove that Rogers intended to send the obscene picture to a minor and intended to persuade a minor to engage in sexual acts. During the hearings, Rogers said that he would argue during trial that he realized that "Emily" was an undercover officer and that he never intended to meet "Emily" in person. That Rogers previously had tried to persuade an actual minor to have sex with him and previously had traveled to meet someone he believed to be a minor for the purpose of having sex is relevant because it counters this defense.
Second, the evidence establishes motive by showing that Rogers has "a taste for engaging in that crime or a compulsion to engage in it." United States v. Cunningham, 103 F.3d 553, 556 (7th Cir. 1996). "Prior instances of sexual misconduct with a child victim may establish a defendant's sexual interest in children and thereby serve as evidence of the defendant's motive to commit a charged offense involving the sexual exploitation of children." United States v. Sebolt, 460 F.3d 910, 917 (7th Cir.2006).
And third, the simple fact that Rogers had done it before makes it more likely that he did it again. This so-called "propensity evidence" is relevant because common sense suggests that someone with a propensity to do something is more likely to have done the same thing again. The evidence, therefore, makes a fact of consequence more or less likely. Old Chief v. United States, 519 U.S. 172, 180-81, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948).
Relevance, in short, is necessary, but not sufficient, for admissibility. Propensity evidence exemplifies this fact, as common-law courts traditionally considered the propensity inference relevant but improper. See Michelson, 335 U.S. at 475-76, 69 S.Ct. 213. Rule 404(b) explicitly adopts this common-law tradition by banning the use of prior conduct to establish a propensity to commit the crime: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." But Rule 413 alters this general prohibition by permitting the admission of a prior offense of sexual assault "for its bearing on any matter to which it is relevant" in a criminal case where the defendant is accused of sexual assault. The rule expressly allows the government to use a defendant's prior conduct to prove the defendant's propensity to commit the types of crime described in the rule. Congress intended, in passing Rule 413, to provide an exception to Rule 404(b)'s general bar and to permit the trier of fact to draw inferences from propensity evidence. United States v. Julian, 427 F.3d 471, 486 (7th Cir.2005); United States v. Hawpetoss, 478 F.3d 820, 823 (7th Cir.2007).
We have explicitly said, and both parties agree, that after a Rule 413 analysis the court must next consider whether it should exclude the evidence under Rule 403. See Hawpetoss, 478 F.3d at 824. The question therefore becomes whether Rule 413's permission to use propensity *822 evidence in sexual assault trials affects a court's Rule 403 analysis of evidence falling within that rule. Under Rule 403, a court may exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Evidence poses a danger of "unfair prejudice" if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." FED.R.EVID. 403 advisory committee's note.
The government argues that Rule 413 reverses "any presumption, applicable in other cases not involving sexual offense, that evidence of other crimes poses an unfair prejudice." But this cannot be right, because it takes as a premise a presumption that does not exist. Rule 404(b) bans the use of prior bad acts to show action in conformity with the past behavior. The rule bans not the evidence, but the propensity inference. It also says that other inferences that might be drawn from prior bad acts, such as intent or motive, are permissible. Rule 404(b) neither creates any presumption nor tells a court what to do when prior-act evidence gives rise to both a propensity inference and an intent interference. The rule instead identifies which inferences are improper and which are proper. It is Rule 403 not Rule 404 that gives a court discretion to exclude prior-act evidence if the danger of the improper inferences substantially outweighs the probity of the proper ones. Rule 404(b) is thus nothing more than a rule that bars one particular inference from prior-act evidence; it is Rule 403 that gives a court discretion to exclude evidence that is problematic because it will be difficult to confine it to proper bounds, because of "the danger of unfair prejudice, confusion of the issues, or misleading the jury," or similar concerns.
But while we reject the government's argument, we nonetheless agree with the broader position that Rule 413 affects the Rule 403 analysis of past sexual offenses introduced in sexual assault cases. As we out-lined above, the danger of unfair prejudice comes from the risk that a jury will base its decision on improper inferences. Rule 404(b) identifies the propensity inference as improper in all circumstances, and Rule 413 makes an exception to that rule when past sexual offenses are introduced in sexual assault cases. Congress has said that in a criminal trial for an offense of sexual assault, it is not improper to draw the inference that the defendant committed this sexual offense because he has a propensity to do so. Because Rule 413 identifies this propensity inference as proper, the chance that the jury will rely on that inference can no longer be labeled as "unfair" for purposes of the Rule 403 analysis. While Rule 403 remains the same, a court's Rule 403 analysis of prior conduct differs if the evidence falls under Rule 404(b) versus Rule 413; in the former analysis, the rule has decreed that the propensity inference is too dangerous, while in the latter, the propensity inference is permitted for what it is worth.
That said, evidence of prior sexual offenses may still pose significant dangers against which the district court must diligently guard. Even if the evidence does not create unfair prejudice solely because it rests on propensity, it may still risk a decision on the basis of something like passion or bias that is, an improper basis. Even though Congress has made the propensity inference permissible, it has not said that evidence falling within Rule 413 is per se non-prejudicial. To the contrary, a jury might use such evidence, for example, *823 to convict a defendant because it is appalled by a prior crime the defendant committed rather than persuaded that he committed the crime charged. See Old Chief, 519 U.S. at 180-81, 117 S.Ct. 644. Or a jury, uncertain of guilt, may convict a defendant because they think the defendant is a bad person generally deserving of punishment. See id. We mention these dangers only as examples; our list does not purport to be exhaustive. Rule 403 remains an important safeguard against the admission of prejudicial evidence, and courts enjoy wide discretion in applying the rule. Julian, 427 F.3d at 487. When exercising that discretion, however, courts must recognize that, for Rule 413 evidence, the propensity inference must be viewed differently.
While the danger of prejudice may well substantially outweigh the probative value of Rogers's 2001 conviction and 2005 conduct, it is unclear from the record whether the district court took the approach that we have outlined here. In excluding the 2001 conviction and the 2005 conversations, the court expressed concern that proof of past acts would improperly distract a jury's attention away from the charges at hand. The court explained that the evidence that the government had proffered "increase[s] enormously the danger that the jury might convict upon not upon what the actual charges are here, but because this guy is a terrible guy as evidenced by this earlier occurrence." While the court properly identified an illegitimate and prejudicial form of inference, it also discussed the substantial danger posed by "propensity evidence" and stated there was the "strongest kind of prospect for a jury to be making a propensity determination." A decision to exclude evidence based on the prejudicial effect of the propensity inference would be problematic.
The court also balanced the dangers of prejudice against the probative value, which it considered minimal. The court did not however acknowledge the probative value of the propensity inference, nor did it explain what about Rogers's particular prior sexual offenses made them more prejudicial than probative. Thus, although the court worked admirably to comply with Rules 403 and 413, we are not convinced that it fully appreciated the finely tuned balancing that the Rules require.
Although, after conducting the appropriate analysis, the district court may come to the same conclusion, we conclude that we must remand this case so that it can reconsider its ruling on these two sets of prior-act evidence. If we thought that a list of "factors" would be helpful in this process, we would offer one, but, unlike our colleagues in the Ninth Circuit, we believe that lists are unhelpful in the end for this inquiry. See United States v. LeMay, 260 F.3d 1018 (9th Cir.2001) (requiring district courts to consider five enumerated factors); Hawpetoss, 478 F.3d at 825-26 (rejecting LeMay's approach); United States v. Kelly, 510 F.3d 433, 437 (4th Cir.2007) (adopting our flexible approach). Rule 403 balancing depends on the context and individual circumstances of each case, and we prefer not to "cabin artificially the discretion of the district courts." Hawpetoss, 478 F.3d at 825.
* * *
We REVERSE the exclusion of the 2001 conviction and the 2005 conduct and REMAND for further proceedings consistent with this opinion.
CUDAHY, Circuit Judge, concurring.
I have no objection to remanding this matter to apply the rather complex and finely articulated framework the majority has supplied. On remand, the district *824 court will apparently not be Judge Shadur, who has recused himself from further participation in this case. As indicated in his recusal order, it appears that feelings were running high based on Judge Shadur's objection to certain tactics employed by the government as the case neared trial. It is because of this background tension that I write separately, not because of anything written in the majority opinion.
I believe Judge Shadur's recusal reflects, at least in part, his concern that there might be some doubt of his capacity to rule impartially on matters involving propensity evidence under Rules 413-415. In my view, his recusal on this account or any other arising in this case was entirely unnecessary and his impartiality, especially as to propensity evidence, is unquestioned. Many judges hold reservations about the law they must apply, but, like Judge Shadur, are able to generally cabin these concerns to the appropriate forum.
I categorically reject any suggestion by the government that Judge Shadur may have clung in an improper way to his own beliefs about the admissibility of propensity evidence or used Rule 403 as a vehicle to advance an agenda. This Court today and others previously have broadly accepted Rule 403 as a necessary bulwark against improper inferences to be drawn from evidence admitted through Rules 413-415. See, e.g. United States v. LeMay, 260 F.3d 1018, 1026-27 (9th Cir.2001) ("As long as the protections of Rule 403 remain in place to ensure that potentially devastating evidence of little probative value will not reach the jury, the right to a fair trial remains adequately safe-guarded."); United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.1998). Likewise, in applying Rule 403, Judge Shadur appropriately weighed prejudicial inferences that this Court today finds within the scope of Rule 403 balancing in criminal trials for sexual assault. See Op. at 822-23.
That written, the foregoing should only be read as an aside supporting my belief that Judge Shadur properly discharged his duty to dispassionately preside over this case until he very conscientiously, but unnecessarily, exercised his discretion to recuse.
NOTES
[1] For the purpose of this appeal, we have assumed that the 2005 conduct could properly be characterized as attempted sexual contact. We recognize that the line between solicitation and attempt can be difficult to draw, see United States v. Gladish, 536 F.3d 646, 649-50 (7th Cir.2008), and United States v. Davey, 550 F.3d 653, 658 (7th Cir.2008), and we do not mean to foreclose further attention to that point on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324298/ | 119 Ga. App. 485 (1969)
167 S.E.2d 686
CONNELL
v.
CONNELL.
43917.
Court of Appeals of Georgia.
Argued September 4, 1968.
Decided February 26, 1969.
Rehearing Denied March 12 And April 4, 1969.
Allgood & Childs, Thomas F. Allgood, for appellant.
Albert G. Ingram, for appellee.
WHITMAN, Judge.
This case arises out of an action by Jacquelyne Cook Connell against A. J. Connell to recover on a foreign judgment, as a debt of record, in the Municipal Court of the City of Augusta, Ga. Defendant's plea to the jurisdiction was overruled. Defendant's responsive pleading, asserting several matters in defense, was stricken, pursuant to motion, as failing to set forth facts sufficient to constitute a defense. Judgment was entered for plaintiff and defendant appeals therefrom.
The marriage of the parties herein was terminated by a final judgment and decree of total divorce of the Domestic Relations Division of the Superior Court of Richmond County, Georgia. The divorce decree awarded the custody of the children to Mrs. Connell, and also provided for alimony and child support.
Mrs. Connell moved to South Carolina with the children and established domicile there. She then filed a petition in the Court of Common Pleas, Aiken County, South Carolina, for *486 a modification of the Georgia divorce decree with respect, among other things, to its child support provisions based on changed conditions, and had the petition, with a summons, served on Mr. Connell in Aiken County, S. C. Mr. Connell filed his "answer and return," stating therein that he was making a special appearance for the purpose of objecting to the jurisdiction of the court; that the personal service upon him was not legally effective, and, further, that the court had no jurisdiction of the subject matter. He moved the court to dismiss the action against him. But the court determined, because of other contentions made in the "answer and return," that Mr. Connell had answered on the merits, thereby making his appearance a general appearance rather than a special appearance, and thus any right to assert that the court had no jurisdiction over the person had been waived. This determination was upheld on appeal. See Connell v. Connell, 249 S. C. 162 (153 SE2d 396).
Thereafter the Court of Common Pleas determined that it was authorized under South Carolina law to modify the provisions of an original alimony decree of another State based on changed financial conditions and entered judgment providing for increased child support payments by Mr. Connell and for the payment of attorney's fees involved in bringing the action. The judgment awarding attorney's fees was made expressly in favor of Mrs. Connell's attorneys. However, such a judgment will be construed as one which the plaintiff may enforce in her own name. Walden v. Walden, 171 Ga. 444, 446 (155 SE 919). These judgments were the basis of the action by Mrs. Connell in the Municipal Court of the City of Augusta, the final order in which is the basis for this appeal by Mr. Connell. Held:
1. The overruling of Mr. Connell's plea of no jurisdiction of the subject matter in the Municipal Court of Augusta is enumerated as error. It is argued that the action was one involving alimony, child support and other issues strictly within the jurisdiction of the superior courts of this State.
The plea was properly overruled. A suit to enforce a decree for alimony of a sister State does not make such suit an alimony case, rather, it is simply an action on a debt of record. McLendon v. McLendon, 192 Ga. 70 (14 SE2d 477); Lawrence v. Lawrence, 196 Ga. 204 (3) (26 SE2d 283); Henderson v. Henderson, 209 Ga. 148 (1) (71 SE2d 210). The Municipal *487 Court of Augusta therefore properly had jurisdiction. Ga. L. 1965, pp. 2144, 2146.
2. Mr. Connell asserted below that the Court of Common Pleas of South Carolina was without jurisdiction over him and that the orders issuing from said court are not enforceable against him in Georgia. This defense was stricken on motion, which action is enumerated as error.
The record shows that the question of jurisdiction was raised in the South Carolina court by Mr. Connell and was decided adversely to him. That determination is conclusive. Drake v. Drake, 187 Ga. 423 (5) (1 SE2d 573).
3. It was also asserted in defense that (1) the complaint states no claim for which relief can be granted; (2) that the rights between the parties were previously established in a final judgment and decree of total divorce entered by the Superior Court of Richmond County; (3) that the Court of Common Pleas of South Carolina was without jurisdiction to modify the decree of the Superior Court of Richmond County; and (4) that defendant has at all times complied with the terms and conditions of the Richmond County Superior Court decree. These defenses were stricken on motion, which action is enumerated as error.
The judgment sued on, being properly authenticated and rendered by a court of competent jurisdiction of South Carolina, must be accorded the same full faith and credit in Georgia which it would be accorded in South Carolina. Tompkins v. Cooper, 97 Ga. 631 (25 SE 247); Thomas v. Morrisett, 76 Ga. 384.
Most courts, as a general rule, will not entertain applications to modify alimony decrees of foreign courts, requiring instead that such applications be first made to the foreign courts rendering them. 27B CJS 884, 916, Divorce, §§ 381, 398 (b). In Georgia, compare Dyal v. Dyal, 65 Ga. App. 359, 364 (16 SE2d 53), regarding a foreign alimony decree, with Peeples v. Newman, 209 Ga. 53 (1) (70 SE2d 749), regarding a foreign custody decree. South Carolina was formerly in accord with the general rule. Johnson v. Johnson, 194 S. C. 115 (8 SE2d 351); Johnson v. Johnson, 196 S. C. 474 (13 SE2d 593, 134 ALR 318). However, our sister State now seems to be of the view, with regard to foreign decrees established there for local enforcement, that her courts may entertain and determine a plea for modification of the foreign alimony decree *488 on any grounds that could be asserted in the foreign court. See Grossman v. Grossman, 242 S. C. 298 (130 SE2d 850). This view is not at odds with Georgia law, as our Supreme Court has held that notwithstanding decrees rendered here affecting the rights of parties while such parties are subject to the jurisdiction of this State, when one of the parties, such as a mother and her minor child, lawfully establishes residence in a foreign State, the foreign State acquires jurisdiction over any new questions concerning the custody, control, and general welfare of the minor child. Stallings v. Bass, 204 Ga. 3 (48 SE2d 822); Milner v. Gatlin, 139 Ga. 109 (2) (76 SE 860). In this case, the South Carolina court has so acted. The judgment sued on was entered with jurisdiction over all the parties and is entitled to full faith and credit in Georgia. There was no error in striking the defenses interposed by Mr. Connell in this regard.
4. It is also contended that the trial court erred in hearing and ruling on plaintiff's motion to strike and dismiss which had not been assigned for hearing as required by law; that the motion was in effect either a motion for summary judgment or a motion for judgment on the pleadings, and that a hearing could not be had before the expiration of 30 days under Code Ann. § 81A-156, nevertheless, the motion was assigned for hearing only 6 days after notice thereof. It appears from the record that both parties appeared before the court and argued the motion on the day assigned without objection as to time. No complaint may now be made as to the timeliness of the hearing. Mathis v. Kimbrell Bros. Tire Service, 117 Ga. App. 399, 402 (2) (160 SE2d 855).
Judgment affirmed. Bell, P. J., Jordan, P. J., Hall, Eberhardt, Pannell and Quillian, JJ., concur. Felton, C. J., and Deen, J., dissent.
FELTON, Chief Judge, dissenting.
Mrs. Connell sued her ex-husband in South Carolina on a judgment for alimony and child *489 support entered against the ex-husband in the Superior Court of Richmond County, Ga., seeking an increase in the amount of children's support due to the improvement in the defendant's financial condition. The defendant was served with petition and process in South Carolina. He filed a plea to the jurisdiction on two grounds. The first paragraph of this plea reads as follows: "Your respondent hereby makes a special appearance for the purpose of making an answer and return, objecting to the jurisdiction of this court in this matter, and without waiving the same." (Emphasis supplied.) He also filed a plea to the merits by amendment. The trial court overruled the plea to the jurisdiction which the appellant appealed to the Supreme Court of South Carolina, which affirmed the trial court. The jurisdiction of the South Carolina court was attacked as to subject matter and person. As I interpret the decision of that court, it held that no valid pleas to the jurisdiction had been filed for the sole reason that the plea to the jurisdiction, a plea to the merits and of res judicata were filed and were of file all at the same time at the time judgment was rendered by the trial court, and that the only way a plea to the jurisdiction could be effective was that it be filed completely by itself and that if it was overruled the court under a numbered Code section could allow time for the filing of a plea on the merits. Connell v. Connell, 249 S. C. 162, supra. The law in this state at the time of the South Carolina decision was to the effect that "The filing of a plea to the merits when a plea to the jurisdiction had previously been filed does not waive the jurisdiction even though the plea to the merits is not expressly made subject to the plea to the jurisdiction." Milam v. Terrell, 214 Ga. 199 (1) (104 SE2d 219). The same rule applies to present law under the Civil Practice Act (Ga. L. 1966, pp. 609, 622, as amended; Code Ann. § 81A-112). While the fact that Georgia law is different from that of a sister State may not in all cases justify Georgia in refusing to give the sister State's judgment full faith and credit, the facts in this case demand that Georgia refuse to give South Carolina's judgment full faith and credit. The judgment in this case strikes at the heart of Georgia's public policy; the rule it is based on is procedural and hypertechnical and patently unreasonable to the nth degree. It *490 violates due process. I therefore think that since the South Carolina judgment should not have been given effect by the trial court in this case in the action based on the South Carolina judgment the trial court should have permitted the appellant to attack the South Carolina judgment collaterally in this judgment in the trial of the case appealed here. I also join in Judge Deen's dissent.
In Brown v. Western Railway of Alabama, 338 U. S. 294 (70 SC 105, 94 LE 100), the Supreme Court held that a Georgia practice and pleading rule could not deprive a party of a federal right. If the Supreme Court may reverse this court because Georgia construes an action against a pleader, Georgia is not required to give full faith and credit to the judgment of a state which has a rule of pleading more ridiculous than our construction of a pleading against a pleader.
DEEN, Judge, dissenting. The parties to this action obtained a decree of divorce including alimony and support payments in Richmond County, Ga., in 1963. Defendant remained domiciled in Richmond County. In 1966 plaintiff, who had moved to South Carolina, obtained service on her former husband when he came to that state to see the children and obtained from the South Carolina court a judgment purporting to change and modify the Georgia judgment by providing for an increase in payments of $150 per month, and awarding the wife's attorneys an additional $2,500 as attorney fees for bringing the South Carolina modification action. The order, entered December 16, 1967, states: "It is further ordered that the original [Georgia] divorce decree of the parties hereto dated November 13, 1963, be and the same is hereby amended so that the respondent herein shall be directed to pay to the petitioner the sum of $150 per month for the support of each of the three minor children of the marriage."
There is no dispute but that the defendant here has paid all sums awarded by the Georgia decree. The South Carolina order increased the monthly payments by $150, and plaintiff, without obtaining any further South Carolina judgment for arrearage, filed a "suit on a foreign judgment" in the City Court of Augusta, the same county in which the divorce decree was granted but *491 a different court, seeking to recover $3,250, of which $2,500 was for attorney fees and $750 for arrearage in the increased amount set by South Carolina. The defendant's defenses were stricken and a default judgment was entered against him for this amount.
I consider this action error for several reasons. First, as to the case being in default, no proof was offered as to any arrearage. The South Carolina judgment sued on was not a judgment for a sum certain but only for "$150 per month" for each of three children. The judgment was thus not on a liquidated amount. Georgia law requires that a petition for modification of a Georgia alimony judgment be brought in the court which rendered the divorce. Code Ann. § 30-220. The plaintiff, by bringing the action in another state, not the state of residence of the defendant, and then seeking to enforce the new judgment in Georgia in the county in which the divorce was rendered but in a different court is thus allowed to circumvent Georgia law in Georgia to the detriment of a citizen of Georgia. Thirdly, the South Carolina order allows the plaintiff $2,500 in attorney fees which Georgia law specifically does not allow to be collected on a modification of a Georgia divorce decree where the petition is brought by the wife. Code Ann. § 30-223.
The majority opinion holds that regardless of these facts the South Carolina decree is entitled to full faith and credit. It grounds its reason, however, as shown by the cases cited, on the mistaken premise that the enforcement of a foreign divorce and alimony decree in Georgia and the enforcement of an alteration by a foreign state of a Georgia decree, where the alteration is one which Georgia does not permit, should be equated. I do not believe that a nonresident should be allowed, simply by suing in a foreign State, to obtain a judgment for sums not allowed in this State by the method of procuring a foreign court to modify a Georgia judgment, and then to return to Georgia and seek to enforce the (in Georgia) illegal amount in the very county in which plaintiff should have appeared in the first instance if she desired to have the decree modified.
"A rigid and literal enforcement of the [full faith and credit] clause, without regard to the statutes of the forum, would lead to the absurd result that wherever a conflict arises, the statute *492 of each state must be enforced in the courts of another, but cannot be enforced in its own courts. . . Hence, the full faith and credit clause does not require the enforcement of every right conferred by a statute of another state, and, a fortiori, does not require the enforcement of a foreign statutory right where such enforcement would involve intrusion by the court of the forum into the public affairs of another state. . . Prima facie, every state is entitled to enforce in its own courts its own statutes, lawfully enacted, and one who challenges a state's right to do so, because of the force given to a conflicting statute of another state by the full faith and credit clause, assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum." 16 AmJur2d 997, Constitutional Law, § 590.
Furthermore, South Carolina, which has the same statutory requirement for modification of alimony decrees that we do (that is, that the petition for modification must be filed in the court in which the original judgment was rendered) has itself recognized that it would not be bound under like circumstances. Although in Grossman v. Grossman, 242 S. C. 298, supra, a proceeding partitioning alimony payments based on a foreign judgment between a spouse and children was allowed, the court observed at page 306: "Since the present decree is subject to modification in Ohio, it is generally held that we are not required under the full faith and credit clause of the Federal Constitution to enforce payment of arrears of support under such a decree. 17A AmJur., Divorce and Separation, Sections 974 and 975." Cf. 24 AmJur2d 1117, § 979: "More specifically, if a decree for alimony or for the support of a child, or a unitary award for the support of a wife and child is subject to modification by the court in which it was entered, the traditional view is that it is not entitled to full faith and credit." In this respect the courts of Georgia and South Carolina are in agreement. Under identical statutes not only has South Carolina held that full faith and credit would not be given to a modifiable decree, but Georgia also has twice held: "A decree for alimony of a sister State, providing for future monthly payments, which by its own terms is subject to be revoked or modified, as to the *493 amount to be paid thereunder, by the court rendering such decree, is not such a decree as is enforceable in this State under the full faith and credit clause of the Constitution of the United States, or upon principles of comity." Cureton v. Cureton, 132 Ga. 745 (2) (65 SE 65); Ferster v. Ferster, 219 Ga. 543 (134 SE2d 600).
I would reverse.
I am authorized to state that Chief Judge Felton concurs in this dissent.
ON MOTION FOR REHEARING.
WHITMAN, Judge. The original motion for rehearing and the second motion for rehearing and the amended motion for rehearing (the amendment being filed March 24, 1969) are each and all hereby denied. They appear to be predicated on the insistence that the Georgia statute set forth in Code Ann. § 30-220 et seq. in relation to the modification of an alimony decree of a Georgia court is the exclusive remedy available for that purpose; that the statute evidences a public policy of Georgia which prevents the beneficiary of the Georgia decree from enforcing by suit in this state a foreign judgment obtained by her in the foreign state wherein she and her children then resided modifying the Georgia decree, and that in such case the full faith and credit clause of the Federal Constitution does not apply in respect of such enforcement of the foreign judgment. The contention of appellant is that such enforcement would be contrary to the public policy of this state and, therefore, that the judgment of the lower court should be reversed and set aside.
With this contention we cannot agree. In our opinion it is unsound and without merit.
Public policy may be fixed and established by statutory enactments and judicial decisions and judicial records. Glosser v. Powers, 209 Ga. 149 (71 SE2d 230); Cummings v. Johnson, 218 Ga. 559 (5) (129 SE2d 762), quoting from Building Service &c. Union v. Gazzam, 339 U. S. 532, 537 (70 SC 784, 94 LE 1045). See also Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (72 SE 295).
Code Ann. § 30-220 et seq. is a Georgia statutory enactment relating to the change or modification of a final alimony decree. *494 It reflects the public policy of the state in relation to its subject matter. This statute undoubtedly refers only to a petition brought in a Georgia court with personal residence venue jurisdiction in Georgia to revise a Georgia alimony judgment. See Bugden v. Bugden, 224 Ga. 517 (162 SE2d 719). This case does not relate to a foreign judgment, but does support in principle the view that the statute ( § 30-220) being statutory only, is subordinate to the full faith and credit clause of the Federal Constitution. The question involved in Bugden is not involved here. This case has to do with the application and effect and implementation of the South Carolina judgment under the full faith and credit clause of the Federal Constitution.
Under the Constitution of Georgia its supreme law is the Constitution of the United States. Code Ann. § 2-8001. The public policy of the State reflected by its statutes is subordinate to the Federal Constitution. The full faith and credit clause of that Constitution is found in Article IV thereof Code § 1-401).
Code Ann. § 30-220 et seq. is not superior to or co-ordinate in authority with the full faith and credit clause of the Federal Constitution, nor can it be so construed or applied.
The decree of the South Carolina court is controlling and cannot be ignored or set aside on the claim that it is contrary the public policy of this State as evidenced by Code Ann. § 30-220 et seq.
The public policy of a state is reflected not only by its statutory law but, as indicated above, also by its judicial decisions. The Georgia court decisions on the question of the effect and enforceability of a foreign alimony judgment in Georgia are numerous in holding that such a judgment is entitled to full faith and credit in Georgia courts and will be enforced here. See, among others, the following cases: Lawrence v. Lawrence, 196 Ga. 204 (3) (26 SE2d 283), and cases cited; Henderson v. Henderson, 209 Ga. 148 (71 SE2d 210); Creaden v. Krough, 75 Ga. App. 675 (44 SE2d 136); Tobin v. Tobin, 93 Ga. App. 568 (92 SE2d 304); Johnson v. Johnson, 115 Ga. App. 749 (156 SE2d 186), transferred from Supreme Court, 223 Ga. 147 (154 SE2d 13).
Thus, the Georgia judicial decisions, which are evidence of *495 the public policy of this State, and the full faith and credit clause of the Federal Constitution, are consistent and in accord with each other; indeed, the decisions apply and implement the clause, so that in the case sub judice the full faith and credit clause must prevail and control in the disposition of the motions for rehearing and the amendment thereto.
The statute adopted by the General Assembly and approved by the Governor March 17, 1969 (House Bill No. 791), amending Code § 30-220 (Ga. L. 1964, p. 713), does not require a different result.
Motions for rehearing denied and original opinion adhered to. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324233/ | 689 S.E.2d 508 (2009)
In the Matter of D.K.L.
No. COA09-357.
Court of Appeals of North Carolina.
December 8, 2009.
*509 Lucas & Ellis, PLLC, Sanford, by Anna S. Lucas, for juvenile-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State.
STEELMAN, Judge.
Because juvenile did not properly give notice of appeal pursuant to N.C. Gen.Stat. § 7B-2602, this Court lacks jurisdiction to review this appeal. Juvenile's appeal is dismissed.
I. Factual and Procedural Background
On 2 July 2008, the State filed four separate petitions alleging that D.K.L. (juvenile) was a delinquent juvenile in that he had committed: two counts of misdemeanor wrongfully breaking or entering a building in violation of N.C. Gen.Stat. § 14-54(b); two counts of felonious breaking or entering a building with the intent to commit a felony or larceny in violation of N.C. Gen.Stat. § 14-54(a); and two counts of felonious larceny pursuant to felonious breaking and entering in violation of N.C. Gen.Stat. § 14-72(b)(2). On 10 September 2008, the juvenile court found that juvenile had committed all the alleged offenses and adjudicated juvenile delinquent.
At the 15 October 2008 dispositional hearing, the juvenile court did not enter a final order but only specified the conditions for juvenile's release from detention, including that he abide by his parents' rules, that he remain enrolled in school, and that he abide by a curfew from 8:00 p.m. to 6:00 a.m. The juvenile court did not address the issues of placement in a wilderness program, restitution, or probation. At the beginning of the hearing, juvenile's counsel informed the court that while he conceded the recommendations for disposition were reasonable, he objected to disposition, and juvenile intended to appeal from the adjudication of delinquency. At the conclusion of the dispositional hearing, juvenile gave notice of appeal in open court. Appellate entries were filed that same day.
On 26 November 2008, the juvenile court filed its disposition order, entering a Level 2 disposition requiring the juvenile to cooperate with placement in a wilderness program, to pay restitution, and placing him on probation.
Juvenile appeals.
II. Notice of Appeal
"It is well established that `[f]ailure to give timely notice of appeal . . . is jurisdictional, and an untimely attempt to appeal must be dismissed.'" In re A.L., 166 N.C.App. 276, 277, 601 S.E.2d 538, 538 (2004) (quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)).
N.C. Gen.Stat. § 7B-2602 authorizes the appeal of any final order in a juvenile matter. The statute provides that notice of appeal must be entered either "in open court at the time of the hearing or in writing within 10 days after entry of the order." N.C. Gen.Stat. § 7B-2602 (2007). Final orders shall include:
(1) Any order finding absence of jurisdiction;
*510 (2) Any order which in effect determines the action and prevents a judgment from which appeal might be taken;
(3) Any order of disposition after an adjudication that a juvenile is delinquent or undisciplined; or
(4) Any order modifying custodial rights.
Id. An adjudication of delinquency is not a final order. In re J.L.W., 136 N.C.App. 596, 602, 525 S.E.2d 500, 504 (2000) (quoting In re Taylor, 57 N.C.App. 213, 214, 290 S.E.2d 797, 797 (1982)).[1] Thus, we examine juvenile's notice of appeal in open court at the conclusion of the disposition hearing on 15 October 2008.
While N.C. Gen.Stat. § 7B-2602 permits oral notice of appeal at the hearing, the statute only provides for appellate review upon any "final order." Thus, it "appears that oral notice of appeal given at the time of the hearing must be from a final order." In re Hawkins, 120 N.C.App. 585, 587, 463 S.E.2d 268, 270 (1995)[2]. In Hawkins, respondent-mother gave notice of appeal in open court at the conclusion of a hearing on a petition alleging abuse, neglect, and dependency of a minor child. Id. at 586-87, 463 S.E.2d at 269-70. At the time of the hearing, the trial court found "that there is evidence that the child is abused and neglected," but made no reference to the dependency allegation. Id. at 587, 463 S.E.2d at 270. This Court held that, because the trial court had not ruled on all matters raised in the petition, the trial court had not rendered a final order at the time of the hearing, thus respondent-mother's oral notice of appeal was premature. Id.
In the instant case, the juvenile court had not rendered a final order at the time of the dispositional hearing because it had not ruled on all recommendations for disposition and did not address all matters included in the written order. At the hearing, the juvenile court only issued an order setting the conditions for juvenile's release from detention. Juvenile's counsel asked, "Judge, just so I can clarify, the payment of restitution, the placing him on probation, the referral to Eckerd Camp, obviously, those could not be imposed as conditions." The court responded, "Not at this point." The juvenile court's written order, filed on 26 November 2008, ordered juvenile to be placed in a wilderness program, to pay restitution, and to be placed on probation. Juvenile filed no notice of appeal after the juvenile court's final written order.
Accordingly, we conclude that juvenile's notice of appeal, given in open court prior to the entry of the juvenile court's final written order, was not a timely notice of appeal. Because we hold that the juvenile failed to give proper notice of appeal, we dismiss this appeal and do not review juvenile's arguments.
DISMISSED.
Judges McGEE and JACKSON concur.
NOTES
[1] At the time In re J.L.W. and In re Taylor were decided, the statute in effect was N.C. Gen.Stat. § 7B-666, which was repealed by 1998 N.C. Sess. Laws 202, § 5. The current statute, N.C. Gen.Stat. § 7B-2602, was added by 1998 N.C. Sess. Laws 202, § 6. The session laws took effect on 1 July 1999, and the wording of the two statutes are virtually identical.
[2] At the time In re Hawkins was decided, N.C. Gen.Stat. § 7B-666 was still in effect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324230/ | 386 S.C. 650 (2010)
689 S.E.2d 643
The STATE, Respondent,
v.
Wiley Post JAMES, Appellant.
No. 4650.
Court of Appeals of South Carolina.
Submitted January 4, 2010.
Decided February 11, 2010.
*652 Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General A. West Lee, all of Columbia; Solicitor Cecil Kelly Jackson, of Sumter, for Respondent.
WILLIAMS, J.
James appeals his conviction for distribution of cocaine base, arguing the trial court failed to instruct the jury on mere presence because evidence was presented that tended to show James was present but did not sell drugs. We affirm.
FACTS
On September 14, 2005, Officer Beth Foxworth (Foxworth) of the Sumter County police department was working undercover near the Clarendon County line in search of persons selling crack cocaine. A confidential informant (the CI) accompanied Foxworth in her car that day. Wiley Post James (James) was sitting in a yellow and white Oldsmobile across the street from where Foxworth's car was parked. Upon observing James's car, Foxworth hailed James over to her car.
Foxworth asked James if he had "a twenty," to which James responded, "What kind?" At that point, the CI said, "powder," *653 referring to powder cocaine, to which James responded, "No." Foxworth then asked James if he had "twenty hard," referring to crack cocaine, to which James responded, "Yes." At that point, Foxworth handed twenty dollars to James and he handed her a quantity of crack cocaine. Foxworth testified James was the only person around at the scene and that he was the only person who sold her the crack cocaine. Foxworth also testified she distinctly remembered a tattoo of a little girl's face on the inner left arm of the man who sold her the crack. At trial, Foxworth was shown the defendant's left arm and stated it was the same tattoo she saw on the day of the transaction. In addition to Foxworth's testimony, the jury was shown video tape recordings taken by a camera mounted inside Foxworth's patrol car of the alleged transaction.
James was found guilty of distributing cocaine base and sentenced to fifteen years imprisonment. This appeal followed.
ANALYSIS
James admits he walked over to Foxworth's car but denies he distributed crack cocaine to Foxworth. On appeal, James argues the trial court erred by not charging mere presence when the facts of the case warranted such an instruction. We disagree.
The law to be charged to the jury is to be determined by the evidence presented at trial. State v. Lee, 298 S.C. 362, 364, 380 S.E.2d 834, 835 (1989). The trial court commits reversible error when it fails to give a requested charge on an issue raised by the indictment and the evidence presented. Id. The defendant is entitled to a mere presence charge if the evidence supports it. State v. Franklin, 299 S.C. 133, 141, 382 S.E.2d 911, 915 (1989). The failure to charge "mere presence" may constitute reversible error. Lee, 298 S.C. at 364, 380 S.E.2d at 835.
In State v. Dennis, 321 S.C. 413, 420, 468 S.E.2d 674, 678 (Ct.App.1996), this court held:
`Mere presence' is generally applicable in two circumstances. First, in instances where there is some doubt over whether a person is guilty of a crime by virtue of accomplice *654 liability, the trial court may be required to instruct the jury that a person must personally commit the crime or be present at the scene of the crime intentionally, or through a common design, aid, abet, or assist in the commission of that crime through some overt act. Secondly, mere presence is generally an issue where the state attempts to establish the defendant's possession of contraband because the defendant is present where the contraband is found. In such cases, the trial court may be required to charge the jury that the defendant's mere presence near the contraband does not establish possession.
(internal citations omitted)(internal quotations omitted).
We find neither of the two situations described in Dennis is applicable to this case and, therefore, the trial court did not err in refusing to charge mere presence.
A charge of mere presence was not warranted under an accomplice liability theory for two reasons. First, the State's theory of the case did not involve accomplice liability. Foxworth maintained James was the only other person in the area at the time she came into possession of the crack cocaine. Second, we find James's position that he was merely present at the scene of a crime but did not commit the crime untenable considering the fact that defense counsel conceded there was no evidence that anyone other than James was present at the scene. Therefore, because there was no evidence of accomplice liability, a charge of mere presence on that basis was not necessary. See State v. Stokes, 339 S.C. 154, 164, 528 S.E.2d 430, 435 (Ct.App.2000) (holding where the State's view of the evidence was defendant was the only person present and committed the crime alone, a charge of mere presence on the basis of accomplice liability is unnecessary).
Furthermore, a charge of mere presence was also not warranted under a possession theory. "[M]ere presence instructions are required where the evidence presented at trial reasonably supports the conclusion that the defendant was merely present at the scene where drugs were found, but it was questionable whether the defendant had a right to exercise dominion and control over them." Lee, 298 S.C. at 364-65, 380 S.E.2d at 836. However, "a charge on mere presence is necessary only when the state attempts to establish constructive *655 possession of contraband." State v. Peay, 321 S.C. 405, 411, 468 S.E.2d 669, 673 (Ct.App.1996). In this case, the State did not seek to establish that James was in possession of cocaine. Therefore, a mere presence charge was not necessary. See Dennis, 321 S.C. at 420, 468 S.E.2d at 678 ("Because the State was not attempting to establish Dennis possessed any contraband by virtue of proximity, the second application of `mere presence' was not applicable.").
CONCLUSION
Accordingly, the trial court's decision is
AFFIRMED.[1]
PIEPER and LOCKEMY, JJ., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312879/ | RICHARD J. LEON, United States District Judge *4Brad Bauman ("Bauman" or "plaintiff") brought this tort action for defamation, defamation per se, false light, and publication of private facts against defendants Edward Butowsky ("Butowsky"), Howard Gary Heavin ("Heavin"), Matthew Couch, and Couch's company America First Media ("AFM"). Pending before me are Butowsky's and Heavin's separate motions to dismiss the claims against them under Federal Rules of Civil Procedure 12(b)(2) for lack of personal jurisdiction and 12(b)(6) for failure to state a claim. Upon consideration of the pleadings and the relevant law, and for the reasons stated below, Heavin's 12(b)(2) motion to dismiss and Butowsky's 12(b)(6) motion to dismiss are GRANTED , and this case is DISMISSED as to those defendants.1BACKGROUNDSeth Rich, a Democratic National Committee ("DNC") staffer, was murdered in Washington, D.C. in the early morning of July 10, 2016. Compl. at ¶ 26 [Dkt. # 1]. Soon after the murder, Bauman, a D.C. resident and public relations and communications consultant, see id. at ¶¶ 14, 22, 51, was referred to the Rich family by friends of Seth Rich and volunteered to act as the family's spokesperson, id. at ¶ 27. To this day, Seth Rich's murder remains unsolved, but D.C. law enforcement officials have stated their belief that he was killed during a botched robbery. Id. at ¶¶ 2, 29. Nevertheless, the murder spawned a number of conspiracy theories aiming to connect Seth Rich's death to the hack and leak of DNC emails to Wikileaks during the run-up to the 2016 presidential election. Id. at ¶¶ 2. Indeed, on August 10, 2016, Wikileaks released a statement addressing, if not inflaming, these conspiracy theories, noting that its policy of neither confirming nor denying its sources should not be inferred to suggest that Seth Rich was a Wikileaks source or that his murder was connected to Wikileaks' activities. Id. at ¶¶ 3, 32.Months later, in early 2017, defendant Butowsky, a Texas resident and businessman and cable news commentator, id. at ¶¶ 15, 40, contacted the Rich family and offered to hire and pay a private investigator to investigate Seth Rich's murder, id. at ¶ 30. The family apparently agreed, and Butowsky hired former D.C. police investigator (and fellow cable news commentator) Rod Wheeler. Id. at ¶ 10. At the same time, Butowsky allegedly was pressing Fox News to report on supposed evidence linking Seth Rich to Wikileaks and the leaked DNC emails. Id. at ¶¶ 31, 50. Fox News ultimately ran such a story on May 16, 2017, entitled "Slain DNC staffer had contact with Wikileaks, investigator says." Id. at ¶ 33. According to the article, Wheeler believed that the D.C. police were covering up the true circumstances of the murder. Id. at ¶ 35. Wheeler immediately denied the attribution in the Fox News article and publicly stated that he did not personally have evidence of a cover up. Id. at ¶¶ 37-38. In response, Bauman released a statement on the Rich family's behalf denying any link between Seth Rich and Wikileaks and condemning as politically motivated the conspiracy theories suggesting the same. Id. at ¶ 40. On May 23, 2017, Fox News retracted its reporting about a Seth Rich murder coverup. Id. at ¶¶ 43-44.*5Over the ensuing months, Butowsky allegedly made a series of public statements about Bauman's role in the controversy surrounding Seth Rich's murder. For example, on the same day that Fox News retracted its article, Butowsky stated in an online World Net Daily interview that the DNC "assigned" Bauman to act as the Rich family spokesman, that Bauman was a "Democrat crisis management person," and that he "finds Bauman's involvement with the family extremely suspicious." Id. at ¶ 53. A few days later, Butowsky gave an interview to New York Magazine's Daily Intelligencer, during which he observed that "it seemed like Bauman's job is just to discredit and try to go after people." Id. at ¶ 56. And on August 2, 2017, Butowsky told CNN that "Bauman is simply a hired guy who will say anything" and that he "should apologize to the country for crafting a lie." Id. at ¶ 74.Like Butowsky, defendant Heavin, a fellow Texas resident and frequent news commentator, id. at ¶ 18, made public statements about Bauman's involvement in the Seth Rich matter. On May 28, 2017, Heavin appeared on a radio program and claimed that Bauman is a "DNC cleaner" brought in to "propagandize" and who "would lie, cheat, and steal to ... avoid the truth." Id. at ¶ 57. A month later, Heavin appeared on InfoWars' The Alex Jones Show and accused Bauman of being "a Democratic hitman" who "cover[s] up media issues around the Democratic Party" and stated that Bauman's involvement was "very very suspicious." Id. at ¶¶ 61-62. InfoWars aired the episode online and on social media and radio platforms. Id. at ¶¶ 66-69.On May 21, 2018, Bauman sued, inter alia , Butowsky and Heavin for defamation, defamation per se, and false light. Id. at ¶¶ 128-55. Bauman alleges that Butowsky's and Heavin's statements about his involvement in the Seth Rich matter are false and have harmed his professional reputation and his physical and emotional health. Id. On June 15 and 19, 2018, respectively, Butowsky and Heavin moved separately to dismiss Bauman's claims for lack of personal jurisdiction under Rule 12(b)(2) and failure to state a claim under Rule 12(b)(6). [Dkt. ## 12, 14].LEGAL STANDARDTo survive a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing of the factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y , 894 F.2d 454, 456 (D.C. Cir. 1990) ; Mwani v. bin Laden , 417 F.3d 1, 7 (D.C. Cir. 2005). To make such a showing, the plaintiff "must allege specific acts connecting [the] defendant with the forum"; it is not enough to rely on bare allegations or conclusory statements. Second Amendment Found. v. U.S. Conference of Mayors , 274 F.3d 521, 524 (D.C. Cir. 2001) (internal quotation marks omitted). That does not mean that the plaintiff is "required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial." Urban Inst. v. FINCON Servs. , 681 F.Supp.2d 41, 44 (D.D.C. 2010). The plaintiff is permitted to rely on "arguments on the pleadings, 'bolstered by such affidavits and other written materials as [the plaintiff] can otherwise obtain.' " Id. (quoting Mwani , 417 F.3d at 7 ).A Rule 12(b)(6) motion "tests the legal sufficiency of a complaint." Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation *6marks omitted). A claim is facially plausible when the complaint allegations allow the Court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although the standard does not amount to a "probability requirement," it does require more than a "sheer possibility that a defendant has acted unlawfully." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not sufficient to state a claim. Id. In resolving a Rule 12(b)(6) motion, the Court "assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor[.]" Sissel v. U.S. Dep't of Health & Human Servs. , 760 F.3d 1, 4 (D.C. Cir. 2014). In addition to the complaint's factual allegations, the Court may consider "documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and integral to a claim." Harris v. Amalgamated Transit Union Local 689 , 825 F.Supp.2d 82, 85 (D.D.C. 2011).ANALYSISHeavin first claims that Bauman has not alleged sufficient facts to show that the Court can assert personal jurisdiction over him. As Heavin is a non-resident defendant, the existence vel non of personal jurisdiction is governed by a familiar two-part framework, under which I must determine (1) whether Bauman has satisfied the District's long-arm statute, D.C. Code § 13-423, and (2) if he has, whether the exercise of jurisdiction would comport with constitutional due process. See Forras v. Rauf , 812 F.3d 1102, 1106 (D.C. Cir. 2016) ; Kopff v. Battaglia , 425 F.Supp.2d 76, 81 (D.D.C. 2006). As set forth below, Bauman has not satisfied the D.C. long-arm statute, and I therefore need not reach the constitutional portion of the analysis.While D.C.'s long-arm statute enumerates over a half-dozen bases for the exercise of personal jurisdiction, see D.C. Code § 13-423(a), as to Heavin plaintiff contends that personal jurisdiction exists only under § 13-423(a)(4), Compl. ¶ 24; Pl.'s Opp'n to Def. Heavin's Mot. to Dismiss at 6-18 [Dkt. # 24]. That provision confers personal jurisdiction over persons who commit tortious acts outside of D.C. that cause injury in the District "if, and only if, the defendant 'regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from [goods used or consumed, or] services rendered' in the District." Forras , 812 F.3d at 1107 (quoting D.C. Code § 13-423(a)(4) ). Section (a)(4) does not reach to the limits of the Constitution's Due Process Clause: "the District government has made a deliberate decision not to allow access to D.C. courts to every person who is injured here and otherwise could bring a claim for civil redress." Kopff , 425 F.Supp.2d at 82 ; see also Crane v. Carr , 814 F.2d 758, 762 (D.C. Cir. 1987) (section (a)(4) does "not occupy all of the constitutionally available space"). Instead, in addition to injury within the District, D.C.'s long-arm statute requires what courts refer to as a "plus factor"-i.e., the tortfeasor regularly does business or engages in persistent conduct in, or derives substantial revenue from, the District.According to Bauman, Heavin's "plus factor" is his alleged persistent course of D.C. conduct, which is shown by Heavin: (1) "broadcast[ing] his defamatory statements via websites that were directed at D.C. and could interact with its residents"; (2) holding a leadership position in a company *7called Curves North America, which Heavin founded and which maintains "an active corporate registration in D.C." but no operating franchises; (3) traveling to D.C. for President Donald Trump's inauguration and perhaps also on one other occasion; (4) causing a 2012 corporate donation by Curves International-the parent company of Curves North America-to American Crossroads, a D.C.-based political action committee, and personally contributing to other D.C.-based political organizations; (5) "routinely promot[ing] his status as a 'mover-and-shaker' " who is in regular communication with Senator Rand Paul of Kentucky; (6) claiming to be under consideration to be U.S. Ambassador to Haiti and otherwise attempting to obtain a political appointment to federal office; (7) producing and acting in a film that concerns the federal government and maintains social media accounts that on two occasions have trained their ire on nationally prominent political figures; and (8) speaking at a conference held in Maryland by a D.C.-based political organization. See Pl.'s Opp'n to Def. Heavin's Mot. to Dismiss at 10-16.Unfortunately for plaintiff, the foregoing patchwork of purported D.C. conduct does not satisfy § (a)(4) of the D.C. long-arm statute. How so? As a threshold matter, many of Heavin's supposed contacts with the District are immaterial to the personal jurisdiction analysis. There is, for example, no "neighboring forum" exception permitting me to consider Heavin's Maryland contacts in determining his amenability to suit in D.C. There is also no support for the proposition that merely speaking about a forum (or about entities within that forum)-e.g., producing a film about or seeking employment with the federal government, discussing one's relationships with federal government officials-can confer specific jurisdiction in the absence of identifiable forum contacts.2 This dearth of legal foundation might explain why Bauman posits these contacts as analytically relevant without citation to legal authority. See Pl.'s Opp'n to Def. Heavin's Mot. to Dismiss at 13-16.Bauman does allege, however, contacts bearing at least a facial nexus to the District, but most of these allegations are also flawed. For example, Bauman points to Heavin's "broadcast [of] his [allegedly] defamatory statements via websites" that reach a D.C. audience. Id. at 10. However, even putting aside the undisputed facts that Heavin neither made these statements "in the District of Columbia" as required for a § (a)(4) plus factor nor was responsible for the publication of the statements online, see id. ; Reply in Supp. of Def. Heavin's Mot. to Dismiss at 2-3 [Dkt. # 30], the conduct that gives rise to a plaintiff's claims cannot itself confer personal jurisdiction by also comprising persistent conduct under § (a)(4). Rather, a plus factor "must involve conduct 'separate from and in addition to the in-state injury' " so as to avoid the exercise of jurisdiction over "an isolated event" and a defendant who "otherwise has no, or scant, affiliations with the forum." Kopff , 425 F.Supp.2d at 82 (quoting Crane , 814 F.2d at 762-63 ); see also Betz v. Aidnest , No. 18-cv-0292, 2018 WL 5307375, at *7 (D.D.C. Oct. 26, 2018) (rejecting § (a)(4) jurisdiction in Telephone Consumer Protection Act case where "[p]laintiff ha[d] not demonstrated conduct outside the allegedly injurious phone calls"). For this reason, at least one of my colleagues has held flatly that "[p]ublishing defamatory *8statements within the District that were made outside the District does not meet the terms of § 13-423(a)(3) or (4)." Hourani v. Psybersolutions, LLC , 164 F.Supp.3d 128, 138 (D.D.C. 2016) (Collyer, J.); see also id. ("writing an article for a publication that is circulated throughout the nation, including the District, hardly constitutes doing or soliciting business, or engaging in a persistent conduct, within the District and thus does not satisfy the requirements of (a)(4)" (internal quotation marks omitted) ). Heavin's allegedly defamatory statements thus are of no moment in my § (a)(4) analysis.Nor can I attribute Curves' alleged corporate activities to Heavin personally for purposes of the § (a)(4) inquiry. The "general rule" in our Circuit is that jurisdiction over a corporation does not by itself confer jurisdiction over individual corporate officers. Mouzon v. Radiancy, Inc. , 85 F.Supp.3d 361, 371-72 (D.D.C. 2015). Instead, "[p]ersonal jurisdiction over officers of a corporation in their individual capacities must be based on their personal contacts with the forum, not their acts and contacts carried out solely in a corporate capacity." Overseas Partners, Inc. v. PROGEN Musavirlik ve Yonetim Hizmetleri, Ltd. Sikerti , 15 F.Supp.2d 47, 51 (D.D.C. 1998). As such, I must assess Heavin's individual contacts with the District "based on his actions-separately from [Curves'] contacts with the forum state." Mouzon , 85 F.Supp.3d at 372 (emphasis added); see also Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 781 n.13, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ; cf. IMARK Mktg. Servs., LLC v. Geoplast S.p.A. , 753 F.Supp.2d 141, 150 (D.D.C. 2010) (corporation's contacts with forum are not attributable to affiliated party for jurisdictional purposes unless corporation and affiliated party are alter egos). Here, with one exception,3 Bauman does not identify any actions taken by Heavin in his personal capacity that can or should be considered separate from his company's contacts with D.C., nor does Bauman allege that Heavin and Curves are alter egos such that their forum contacts are coextensive. Curves' alleged contacts with the District therefore do not support the exertion of personal jurisdiction over Heavin in this case.4*9Accordingly, all that remains to sustain Heavin's alleged "persistent course of conduct" in the District are his (at most) two trips to D.C. and the D.C.-related activity of his film's social media accounts. These allegations, however, are clearly not enough. As to Heavin's alleged visits to D.C.-neither of which relates to this case-there is ample authority rejecting such limited and extraneous contacts under § (a)(4). See, e.g. , Lewy v. Southern Poverty Law Ctr., Inc. , 723 F.Supp.2d 116, 124 (D.D.C. 2010) ("[o]ccasional travel to the District is ... insufficient" to establish a "persistent course of conduct"); Dean v. Walker , 756 F.Supp.2d 100, 104 (D.D.C. 2010) (four-day personal trip and attendance at two professional conferences insufficient under § (a)(4) because "none of these contacts relate to the allegations contained in this lawsuit" and "such sporadic contact is simply insufficient to establish a 'regular' or 'persistent' course of conduct in the District of Columbia as required by § 13-423(a)(4)"); Urban Inst. v. FINCON Servs. , 681 F.Supp.2d 41, 47-48 (D.D.C. 2010) (three trips to solicit business in D.C. did not create persistent course of conduct under § 13-423(a)(4) ).The social media activity associated with Heavin's film-also substantively unrelated to this case-are an even weaker basis for long-arm jurisdiction, even assuming they can be attributed to Heavin personally. As a general matter, "[t]he fact that a defendant has directed his conduct toward the District of Columbia is insufficient to establish a 'persistent course of conduct' in the District." Lewy , 723 F.Supp.2d at 124 ; see GTE News Media Services, Inc. v. BellSouth Corp. , 199 F.3d 1343, 1349-50 (D.C. Cir. 2000) ("mere receipt of telephone calls outside the District does not constitute persistent conduct 'in the District' within the meaning of the long-arm statute"). As to online activity in particular, "[w]hether a website provides sufficient contacts for a court to exercise jurisdiction often turns on whether the website is 'passive,' such as the mere communicator of information, or 'interactive,' such as allowing for some back-and-forth with the user." 12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Board , 282 F.Supp.3d 190, 201 (D.D.C. 2017). Although a sufficiently interactive website may in some cases be enough, see Lewy , 723 F.Supp.2d at 124-25, at least one judge on this Court has rejected that notion as applied to social media accounts, Sweetgreen, Inc. v. Sweet Leaf, Inc. , 882 F.Supp.2d 1, 5 (D.D.C. 2012) (Bates, J.) (holding that Facebook and Twitter are "passive websites" and defendants' accounts, while interactive, do not alone confer jurisdiction); see also Binion v. O'Neal , 95 F.Supp.3d 1055, 1060 (E.D. Mich. 2015) ("posts on Instagram and Twitter were little more than the posting of information on social media websites, which became accessible to users in Michigan and elsewhere"). And here, Bauman faces an additional hurdle: the social media communications on which he relies were directed at nationally prominent political figures (one of whom was a private citizen and the other a representative of the State of Vermont) and did not concern the District. It is difficult to see how those communications could constitute persistent conduct in D.C. under the long-arm statute. Compare Betz , 2018 WL 5307375, at *7 ("The screenshots of Defendant's website, Facebook page, and Twitter account provided by Plaintiff do not suggest that Defendant directly targets consumers in the District of Columbia any more than it directly targets consumers in other states."), with District Title v. Warren , No. 14-1808, 2015 WL 12964657, at *8 n.4 (D.D.C. June 1, 2015) (section (a)(4) plus factor satisfied where, among many other contacts, defendant Day had run for local office and "communicate[d *10] via Twitter under the name '@Tim_Day_DC' ").Bauman's claims against defendant Heavin are therefore dismissed for lack of personal jurisdiction.5Unlike Heavin, the pleadings contain sufficient contacts between Butowsky and the District to justify exerting personal jurisdiction over him in this case. I will therefore turn to Butowsky's 12(b)(6) motion to dismiss for failure to state a claim.Under D.C. law, a defamation plaintiff must allege "(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm." Rosen v. American Israel Public Affairs Comm., Inc. , 41 A.3d 1250, 1255-56 (D.C. 2012).According to the complaint, in a series of interviews between May and August 2017, Butowsky (1) accused Bauman of being a "Democrat crisis management person" "assigned" by the DNC to act as the Rich family spokesperson, Compl. at ¶ 53; (2) said he finds Bauman's involvement extremely suspicious, id. ; (3) stated that "it seemed like" Bauman's "job is just to discredit and try to go after people" id. at ¶ 56; and (4) called Bauman "a hired guy who will say anything" and who "should apologize to the country for crafting a lie," id. at ¶ 74.6 For varying reasons, each of these statements fails to support a cognizable defamation claim.It is well established, if deceivingly simplistic, that an actionable statement must be "false as well as defamatory." Rosen , 41 A.3d at 1256 (internal quotation marks omitted). In other words, the statements at issue must be both "verifiable" as false "and reasonably capable of defamatory meaning." Weyrich v. New Republic, Inc. , 235 F.3d 617, 620 (D.C. Cir. 2001). Although this formulation seems straightforward enough as a matter of common law (and common sense), our Constitution's robust protection of free speech has a way of complicating legal analyses. And "defamation is inextricably linked with First Amendment concerns." Lane v. Random House, Inc. , 985 F.Supp. 141, 149 (D.D.C. 1995). "Because the First Amendment protects speech as an expression of the fundamental right to freedom of thought, constitutionally speaking, 'there is no such thing as a false idea.' " Competitive Enterprise Institute v. Mann , 150 A.3d 1213, 1241 (D.C. 2016) (quoting Milkovich v. Lorain Journal Co. , 497 U.S. 1, 18 (1990) ). Accordingly, expressions of "a subjective view, an interpretation, a theory, conjecture, or surmise" are not *11provably false and thus cannot undergird a claim of defamation. Guilford Transp. Indus., Inc. v. Wilner , 760 A.2d 580, 597 (D.C. 2000). In the same way, statements that amount to "imaginative expression" or "rhetorical hyperbole" cannot be libelous, as such statements are "used not to implicate underlying acts but 'merely in a loose, figurative sense' to demonstrate strong disagreement" with another. Sigal Const. Corp. v. Stanbury , 586 A.2d 1204, 1210-11 (D.C. 1991). Still, in some cases an expression of opinion can be actionable if it "impl[ies] a provably false fact, or rel[ies] upon stated facts that are provably false." Guilford Transp. Indus. , 760 A.2d at 597. The determination of "[w]hether a statement 'asserts actionable facts or implies such facts is a question of law for the court to determine as a threshold matter.' " Montgomery v. Risen , 197 F.Supp.3d 219, 247-48 (D.D.C. 2016) (quoting Moldea v. N.Y. Times Co. , 15 F.3d 1137, 1144 (D.C. Cir. 1994) (" Moldea I ") ).How, then, is a court to distinguish between the sufficiently fact-entwined opinion and the opinion that is not susceptible to proof? To say the least, "[t]he line between fact and opinion is not always bright," Armstrong v. Thompson , 80 A.3d 177, 187 (D.C. 2013), and statements tend not to fit "neatly into categories of 'verifiable' and 'unverifiable' " but rather exist on "a spectrum with respect to the degree to which they can be verified." Ollman v. Evans , 750 F.2d 970, 982 (D.C. Cir. 1984). Even so, the answer, quite often, "depends on the context of the statement in question." See, e.g. , Competitive Enterprise , 150 A.3d at 1241.Butowsky's May 23, 2017 comment that "he finds Bauman's involvement with the [Rich] family extremely suspicious," Compl. at ¶ 53, is an expression of opinion that cannot support a claim of defamation. To begin, "the inclusion of cautionary language" in the form of the word "finds" weighs in favor of "treating the statement that follows as an expression of opinion." Q Intern. Courier, Inc. v. Seagraves , No. 95-1554, 1999 WL 1027034, at *6 (D.D.C. Feb. 26, 1999). More importantly, the statement lacks provability. In Armstrong , the D.C. Court of Appeals held that statements suggesting the plaintiff engaged in "serious integrity violations" and other "serious issues of misconduct ... and unethical behavior" were unverifiable opinions that simply "reflected one person's subjective view of the underlying conduct." 80 A.3d at 187-88. In Rosen , the same court held that a statement that the plaintiff's conduct "did not comport with the standards that AIPAC expects of its employees" was not provably false because "standards" is "a general term capable of multiple meanings" and "communicates no specific message about a discernible fact to an uniformed hearer." 41 A.3d at 1258 ; see also Deripaska v. Associated Press , 282 F.Supp.3d 133, 147 (D.D.C. 2017) ("whether Deripaska's business deals are worth investigating is not a verifiable statement of fact"); Clemmons v. Academy for Educational Development , 70 F.Supp.3d 282, 308 (D.D.C. 2014) (statement that plaintiff's leadership resulted in "management problems" was unverifiable opinion); Xereas v. Heiss , 933 F.Supp.2d 1, 18 (D.D.C. 2013) (statements that plaintiff engaged in "dishonest" and "deceptive" business practices were not provably false). So too here, Butowsky's personal belief that Bauman's role in the Seth Rich matter deserved serious scrutiny-the basis for which was disclosed by Butowsky in the same article, Compl. at ¶ 537 -cannot be proven false and therefore is not actionable.*12Butowsky's remark in the May 28, 2017 Daily Intelligencer article that "it seemed" to him that Bauman's "job is just to discredit and try to go after people," id. at ¶ 56, and his August 2, 2017 comment to CNN that Bauman "will say anything," id. at ¶ 74, are similarly subjective and unverifiable. As an initial matter, Butowsky clearly did not mean that Bauman would "go after people" in the literal, physical sense of the phrase. See Wood v. American Federation of Government Employees , 316 F.Supp.3d 475, 488 (D.D.C. 2018) (statement that plaintiff was a "gang member" was hyperbole that "would not reasonably be understood in context as being fully and literally true").What Butowsky did mean, however, is not clear, and that is a problem for Bauman. "[U]nder District of Columbia law, opinion statements that lend themselves to varying interpretations are insufficient for a defamation claim because they cannot be proved 'false.' " Clemmons , 70 F.Supp.3d at 308. Butowsky's "discredit" and "say anything" statements lend themselves to a variety of understandings. To start, asserting that someone "will say anything" is simply "too amorphous" and "susceptible of multiple interpretations" to be capable of verification. See Rosen , 41 A.3d at 1260. As to the "discredit" remark, the prefatory "it seemed" language itself suggests a degree of uncertainty. See Q Intern. Courier, Inc. v. Seagraves , 1999 WL 1027034, at *6. Moreover, although "discredit" can mean to harm an otherwise good reputation unfairly, it can also mean simply "to cause disbelief in the accuracy or authority of."Discredit , Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/discredit (last visited March 27, 2019). The former definition might lend itself to proof, i.e., it could be verified whether Bauman's job as spokesman was, in fact, to discredit people indiscriminately. However, as discussed infra , the latter interpretation would not be actionable under the circumstances of this case. In any event, these indistinctions render Butowsky's statements incapable of being proven false. See, e.g. , McCabe v. Rattiner , 814 F.2d 839, 842 (1st Cir. 1987) ("The lack of precision [in the meaning of the word 'scam'] makes the assertion 'X is a scam' incapable of being proven true or false."); Adelson v. Harris , 973 F.Supp.2d 467, 491 (S.D.N.Y. 2013) ("an assertion that certain money is 'tainted' or 'dirty' carries a strongly negative connotation, but, without context, one could not say what specifically these adjectives connote").8While the "discredit" and "say anything" statements are fatally equivocal as a matter of defamation law, the context in which the statements were made is notable. As the complaint makes clear, Bauman was serving as the Rich family spokesman, see, *13e.g. , Compl. at ¶ 1, 6, 13-that is, Bauman was "speak[ing] as the representative of another or others ... in a professional capacity," Spokesman , Merriam-Webster Online Dictionary, https://wwvv.merriam-webster.com/dictionary/spokesman (last visited March 27, 2019). In that light, Butowsky's statements effectively conveyed his view that Bauman was not serving as a neutral purveyor of fact but instead was acting to quell the questions and debate surrounding Seth Rich's death. Reasonable consumers of political news and commentary understand that spokespeople are frequently (and often accurately) accused of putting a spin or gloss on the facts or taking an unnecessarily hostile stance toward the media or others, presumably in order to best represent their clients. And on hot-button issues of the day, spokespeople often become lightning rods themselves for such criticism.In context, then, Butowsky's "discredit" and "say anything" statements simply reflect an oft-expressed opinion that a spokesperson on this or that side of a topical debate or controversy has gone too far. See Washington v. Smith , 893 F.Supp. 60, 64 (D.D.C. 1995) ("readers of a sports preview magazine understand that a considerable portion of the magazine's content is subjective opinion," and the statement contained therein "must be viewed in this context"). Moreover, the excerpted articles containing the two statements show that Butowsky was quoted in direct response to Bauman's public denial of Butowsky's allegations and his suggestion that Butowsky had wronged the Rich family. Compl. at ¶ 56, 74. Given the controversy surrounding the murder (much of it created by Butowsky himself), it may well have been accurate to say that Bauman's job, at least in part, was to say whatever necessary on behalf of the Rich family to "cause disbelief in the accuracy or authority of" Butowsky's and others' allegations. See Discredit , Merriam-Webster Online Dictionary. As such, the statements are not provably false.Butowsky's August 2, 2017 statement to CNN that Bauman "should apologize to the country for crafting a lie," Compl. at ¶ 74, is, however, a closer call. "As explained by the Supreme Court, a statement such as 'I think Jones lied' can be false" if Jones in fact did not lie or the speaker did not truly believe that Jones lied. Benic v. Reuters America, Inc. , 357 F.Supp.2d 216, 223 (D.D.C. 2004) (quoting Milkovich , 497 U.S. at 20 n.7, 110 S.Ct. 2695 ). But, "[o]f course, just stating that someone is 'spreading lies' or is a liar may not be actionable as defamation." Sinclair v. TubeSockTedD , 596 F.Supp.2d 128, 133 (D.D.C. 2009) ; see Smith v. Clinton , 253 F.Supp.3d 222, 240-42 (D.D.C. 2017) (rejecting defamation claim based on Secretary Clinton's denial of plaintiff's accusation that she lied to them about what caused the 2012 attack on the American diplomatic compound in Benghazi, Libya).Here again, "[c]ontext is crucial," as it "can turn what, out of context, appears to be a statement of fact into 'rhetorical hyperbole,' which is not actionable." Ollman , 750 F.2d at 1000 (Bork, J., concurring); accord Competitive Enterprise , 150 A.3d at 1241. As discussed, Bauman was serving as a spokesman at the center of a heated public controversy over the Seth Rich murder, and he and Butowsky were sparring in the mainstream and fringe press from opposite sides of the fray. See CACI Premier Tech., Inc. v. Rhodes , 536 F.3d 280, 304 (4th Cir. 2008) (Duncan, J., concurring) (noting that in "[t]he medium of talk radio," "hyperbole and diatribe" are "preferred tools of discourse" and expression is "not infrequently caustic and offensive"). Butowsky made the "crafting a lie" statement to a cable news reporter in response *14to Bauman's public criticism of him-during a live CNN interview-for failing to apologize to the Rich family and the public for continuing to stand by the conspiracy theory. Compl. at ¶ 74 & n.51. Two months earlier, Bauman had told CNN that anyone continuing to stand by the conspiracy theories about Seth Rich's death has "a transparent political agenda or [is] a sociopath." Id. at ¶ 6. Butowsky's statement thus was not a random affront on a private individual; it was the latest reprisal in a charged, back-and-forth public exchange between Bauman and Butowsky over Butowsky's role in spreading a conspiracy theory about Seth Rich's murder. In Schnare v. Ziessow , 104 Fed.Appx. 847 (4th Cir. 2004), the defendant accused the plaintiff of making "an outright lie" in response to the plaintiff's assertion that the defendant had acted unethically. Id. at 851. The Fourth Circuit held that the accusation of lying was not actionable because, in context, the charge was a "vigorous and angry expression[ ] of disagreement." Id. Similarly, in Horsley v. Rivera , 292 F.3d 695 (11th Cir. 2002), the Eleventh Circuit held that the defendant's claim that the plaintiff was "an accomplice to homicide" was non-actionable hyperbole because, inter alia , it was made during "an emotional debate concerning emotionally-charged issues of significant public concern." Id. at 701-02 ; see also Fudge v. Penthouse Intern., Ltd. , 840 F.2d 1012, 1017 (1st Cir. 1988) ("In the charged context of a debate over a matter of public concern, the reader will expect a certain amount of hyperbole and loose characterization-in short, a certain amount of opinion.").While there is, of course, no real comparison to be made between the public debate over the Kennedy assassination and Seth Rich's murder, this case does share much with Lane . Like the Kennedy assassination, the circumstances surrounding Seth Rich's death remain unresolved. Compl. at ¶¶ 2, 29. Perhaps this would be a different case if the murderer had been caught, tried, and convicted and the motive made public; the present state of play, however, effectively precludes a factual determination as to the falsity of Butowsky's statement. See Campbell v. Citizens for an Honest Gov't, Inc. , 255 F.3d 560, 577 (8th Cir. 2001) ("[w]hile we are not aficionados of conspiracy theories, we suppose that if [defendant's] assertions are true, there would be inherent difficulties in verifying *15or refuting such a claim"). To be sure, my decision in this case in no way condones Butowsky's conduct. But our Circuit Court has said that "where the question of truth or falsity is a close one, a court should err on the side of non-actionability." Moldea II , 22 F.3d at 317. I will heed that admonition.The remaining statements-that Bauman is a "Democrat crisis management person" "assigned" by the DNC to act as the Rich Family spokesperson, Compl. at ¶ 53-are not defamatory. To be defamatory, a statement must not only be capable of injuring the plaintiff "in his trade, profession or community standing" but also goes beyond mere offensiveness to "make the plaintiff appear odious, infamous, or ridiculous." Competitive Enterprise , 150 A.3d at 1241 (internal quotation marks omitted). As with falsity, whether a statement is capable of defamatory meaning is a threshold question of law for the Court. Jankovic v. Int'l Crisis Grp. , 494 F.3d 1080, 1091 (D.C. Cir. 2007). The pleadings in this case make clear that Bauman is a public relations specialist, see Compl. at ¶¶ 14, 22, 51, and Bauman does not appear to dispute that his work often relates to Democratic Party causes, see Def. Butowsky's Mot. to Dismiss at 5-6 [Dkt. # 12]; Mem. in Supp. of Def. Heavin's Mot. to Dismiss at 1 [Dkt. # 14-1]; see generally Pl.'s Opp'n to Def. Heavin's Mot. to Dismiss; Pl.'s Opp'n to Def. Butowsky's Mot. to Dismiss [Dkt. # 23]. Thus, an accusation of being a "Democrat crisis management person" would hardly harm Bauman professionally. Indeed, it could be easily viewed by many as a badge of honor. Nor would the assertion that Bauman had been tasked by the DNC to handle communications on a matter of public interest that had quickly become politicized make him appear odious.Of course, defamatory meaning need not be express. White v. Fraternal Order of Police , 909 F.2d 512, 518 (D.C. Cir. 1990). A statement may be defamatory by implication if "a reasonable person could draw a defamatory inference" from the statement. Parnigoni v. St. Columba's Nursery School , 681 F.Supp.2d 1, 15 (D.D.C. 2010). "In other words, defamation by implication evolves from what a statement reasonably implies." Id. Here, the overarching defamatory inference that Bauman presents is that Butowsky's statements form part of a larger narrative accusing him of working alongside the DNC to conceal criminality "at the highest echelons," to cover up Seth Rich's murder, and to impede law enforcement's investigation into the murder. Compl. at ¶¶ 4, 59, 75, 129. But defamation by implication requires "an especially rigorous showing," as the publication "must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference." Guilford Transportation Industries, Inc. , 760 A.2d at 596 (quoting Chapin v. Knight-Ridder , 993 F.2d 1087, 1092-93 (4th Cir. 1993) ). In the article on which Bauman relies, Butowsky certainly states his opinion that the DNC is engaged in nefarious activities, and he suggests that Bauman appeared at the DNC's behest and that his role is deserving of suspicion. See Compl. at ¶ 53. But the facts alleged are insufficient to show that Butowsky intended, or affirmatively endorsed, the implication that Bauman's job was, as the complaint puts it, to "execute the DNC's plan to cover up Seth Rich's murder." Id. at ¶ 4; see also id. at ¶ 129(b) ("assigned and paid by the DNC to serve as the Rich family spokesperson so that he could obstruct the investigation into Seth Rich's murder"). Accordingly, Butowsky's statements, *16although clearly hyperbolic, are not actionable in defamation.9Bauman also brings claims for defamation per se and false light against Butowsky. For the reasons stated above, Bauman has not stated a claim for defamation per se, which occurs when a defendant falsely accuses the plaintiff of committing a crime or other unlawful act. See, e.g. , Guilford Transp. Indus., Inc. , 760 A.2d at 600. Additionally, "[w]hen a false light claim is based upon the same factual allegations as a defamation claim, the two are analyzed identically." Parisi v. Sinclair , 845 F.Supp.2d 215, 218 n.1 (D.D.C. 2012) (citing Blodgett v. Univ. Club , 930 A.2d 210, 223 (D.C. 2007) ). Bauman therefore also has failed to state a false light claim.CONCLUSIONFor the foregoing reasons, Heavin's Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction and Butowsky's 12(b)(6) motion to dismiss for failure to state a claim are hereby GRANTED , and this case is DISMISSED as to those defendants. A separate order consistent with this decision accompanies this Memorandum Opinion.As neither Couch nor AFM properly filed any motions to dismiss in this matter, this Memorandum Opinion does not affect Bauman's claims against those defendants.It bears mention on this point that "[c]ourts have also generally held that a defendant's contacts with the United States government do not factor into the personal jurisdiction analysis." Lewy v. Southern Poverty Law Ctr., Inc. , 723 F.Supp.2d 116, 125 (D.D.C. 2010).The exception is Heavin's 2012 donation through Curves International to American Crossroads, a D.C.-based political action committee. Pl.'s Opp'n to Def. Heavin's Mot. to Dismiss at 13. But the donation, which was made from outside of the District, cannot constitute persistent conduct in D.C., even when combined with Heavin's personal donations from outside of the District to D.C.-based political organizations. See id. Donating to political organizations whose work is not "directed specifically at District of Columbia residents" is not sufficient to "give rise to personal jurisdiction," cf. Citadel Inv. Grp., L.L.C. v. Citadel Capital Co. , 699 F.Supp.2d 303, 310 (D.D.C. 2010) (sponsoring a trade show whose targeted audience is national and whose D.C. location is "fortuitous" does not create personal jurisdiction), and the conduct does not occur "in" the District, see, e.g. , Stoddard v. Carlin , 799 F.Supp.2d 57, 62 (D.D.C. 2011) (letters mailed from Maryland not conduct in D.C.).Bauman also contends that Heavin-through his ownership of Curves, which had several franchises in D.C. between 2006 and 2011-derives "substantial revenue from goods used or consumed, or services rendered, in the District of Columbia." Pl.'s Opp'n to Def. Heavin's Mot. to Dismiss at 16. However, Bauman does not provide sufficient evidence of a common identity between Heavin and Curves such that any revenues from the latter's now-defunct franchises could be imputed to Heavin personally. See, e.g. , Mouzon v. Radiancy, Inc. , 85 F.Supp.3d 361, 372-73 (D.D.C. 2015) (refusing to impute company's D.C. revenue to CEO under § (a)(4) ); Vasquez v. Whole Foods Mkt., Inc. , 302 F.Supp.3d 36, 49 (D.D.C. 2018) (company's D.C. revenue not attributable to company's vice president for communications).Heavin's motion to dismiss also includes a motion for attorney's fees under the D.C. Anti-SLAPP Act. See [Dkt. # 14]. It is well established, however, that the D.C. Anti-SLAPP law does not apply in federal court. See, e.g. , Fridman v. Bean LLC , No. 17-2041, 2019 WL 231751, at *2 (D.D.C. Jan. 15, 2019) (slip copy) (collecting cases).The complaint allegations often fail to distinguish between the various defendants in setting out the bases for Bauman's defamation claims. The above-enumerated statements are those that are both identified by Bauman as defamatory and also fairly attributable to Butowsky individually. Cf. Compl. at ¶ 56, 129. It is not clear to what Bauman refers in alleging that "e.g., Butowsky" told the Rich family "to push back against the criminal investigation to cover up the murder of Seth Rich." Id. at ¶ 129(d).See, e.g. , Adelson v. Harris , 973 F.Supp.2d 467, 490 (S.D.N.Y. 2013) (when a defendant provides the facts underlying the challenged statements, it is "clear that the challenged statements represent his own interpretation of those facts," which "leav[es] the reader free to draw his own conclusions" (citing Moldea v. New York Times Co. , 22 F.3d 310, 317 (D.C. Cir. 1994) ) ("Moldea II ") (internal quotation marks omitted) ); Q Intern. Courier, Inc. , 1999 WL 1027034, at *6 (same).Related to the ambiguity problem is the fact that the statements "do not affirmatively provide a factual foundation" against which their truth or falsity can be assessed. See Xereas v. Heiss , 933 F.Supp.2d 1, 18 (D.D.C. 2013). Perhaps "certain events could have formed the basis for the statements," but "no one learned of particular incidents from the words used," and the statements "exuded merely a subjective evaluation-essentially a statement of opinion without an explicit or implicit factual foundation." Id. ; see also Clemmons , 70 F.Supp.3d at 308 (defendant "did not reference specific underlying incidents that could be 'proven or disproven' in connection with [her] opinion statement").As Bauman has not met the first element of a defamation claim, I need not address Butowsky's argument that Bauman is a limited purpose public figure under the First Amendment. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1324306/ | 167 S.E.2d 558 (1969)
Keith L. ARTHUR, Clerk of the County Court of Cabell County, West Virginia
v.
The COUNTY COURT OF CABELL COUNTY, West Virginia, et al.
No. 12787.
Supreme Court of Appeals of West Virginia.
Submitted April 29, 1969.
Decided May 20, 1969.
Carney M. Layne, Huntington, for appellants.
Chauncey H. Browning, Jr., Atty. Gen., and William F. Carroll, Asst. Atty. Gen., Charleston, amicus curiae on behalf of State Tax Commissioner.
No appearance for appellee.
CALHOUN, Judge:
This case is before the Court on appeal from a final judgment of the Circuit Court of Cabell County entered on August 26, 1968, in a declaratory judgment action instituted in that court by Keith L. Arthur, Clerk of the County Court of Cabell County, plaintiff, against the county court of that county and the individual commissioners thereof, defendants, for the purpose of having a judicial determination of the question whether the plaintiff is entitled to receive from the county court reasonable compensation in addition to his official salary for his services rendered in the preparation of the annual financial statement for Cabell County for the 1966-67 fiscal year. From a judgment for the plaintiff rendered by the trial court, the defendants have been granted the appeal to this Court. Pertinent facts are undisputed. A decision of the case involves *559 a consideration and application of certain statutes enacted by the legislature.
In the complaint in the declaratory judgment action instituted in the trial court, the plaintiff relies upon the provisions of Code, 1931, 7-5-16, as amended by Chapter 105, Acts of the Legislature, Regular Session, 1967, and the provisions of Chapter 33 of the Acts of the same 1967 legislative session which amended Code, 1931, Chapter 7, Article 1, as previously amended, by adding thereto a new provision designated as Section 3m. The answer of the defendants asserts that it is a part of the official duties of the plaintiff as clerk of the county court, with the assistance of his office staff, to prepare the annual county financial statements and that the law does not authorize the county court to pay to the plaintiff any compensation, in addition to his official salary, for the performance of such services.
The answer joins in the prayer for a judicial declaration of the legal rights and duties of the parties in respect to the basic legal question raised by the pleadings. The defendants have agreed to pay the plaintiff not less than $900 as reasonable compensation for services performed in the preparation of the 1966-67 financial statement in the event it is determined that the defendants are legally authorized and required to compensate the plaintiff for performance of the services in question.
The case was submitted for decision in the trial court upon the complaint with certain exhibits; upon the answer; upon the defendants' motion for summary judgment with an attached exhibit; and upon oral argument of counsel. In denying the defendants' motion for summary judgment and in directing the defendants to pay to the plaintiff the sum of $900, the trial court, by its final judgment order, held that the plaintiff has no official duty as clerk to prepare the annual financial statements; that, by statute, that duty is imposed upon the county court; that the county court is authorized by Section 3m, added by the legislature in 1967 to Article 1, Chapter 7, of Code, 1931, "to employ any person, including such person who may occupy the position of County Clerk, to aid and assist the County Court in the preparation of the Annual Financial Statement for the County for the fiscal year 1966-67, and for the years subsequent"; that $900 constitutes reasonable compensation for services performed by the plaintiff in the preparation of the annual financial statement for the 1966-67 fiscal year; and it was accordingly adjudged and ordered that the plaintiff recover from the county court the sum of $900 "with costs".
The case was submitted for decision in this Court upon the record made in the trial court; upon brief and oral argument of counsel for the defendants; and upon an amicus curiae brief filed in behalf of the Tax Commissioner of West Virginia who is required by Code, 1931, 11-8-10a, as amended, to approve, in writing, all levy estimates made by county courts. The levy estimate prepared by the county court for the 1967-68 fiscal year allocated the sum of $1,350 for the preparation of the financial statement. No formal appearance was made in this Court by or in behalf of the plaintiff.
It is not denied that this case presents an actual and existing controversy of such a character as to be justiciable in a declaratory judgment action. Farley v. Graney, 146 W.Va. 22, 119 S.E.2d 833; Board of Education of Wyoming County v. Board of Public Works, 144 W.Va. 593, 601, 109 S.E.2d 552, 557; Crank v. McLaughlin, 125 W.Va. 126, 23 S.E.2d 56. The pertinent statute specifically provides that a declaratory judgment action may be maintained by one "whose rights, status or other legal relations are affected by a statute, * * *." Code, 1931, 55-13-2, as amended. See also R.C.P. 57.
Code, 1931, 7-5-16, prior to its amendment in 1967, provided that the county court of each county "shall cause to be *560 published" an annual financial statement such as that involved in this case. The statute contained the following additional provisions:
"Such statement shall be prepared by the clerk, and for performing such service he shall be allowed a reasonable compensation by such court. Any clerk of the county court who shall, within the time prescribed, fail or refuse to perform the duties required by the provisions of this section shall be guilty of a misdemeanor, * * *. And if a county court willfully fail or refuse to perform the duties hereinbefore named, every member of such court, concurring in such failure or refusal, shall be guilty of a misdemeanor, * * *." (Italics supplied.)
By the 1967 amendment, the language italicized in the portion of the statute quoted above was omitted. The statute, Code, 1931, 7-5-16, as amended in 1967, contains the following language in reference to the annual county financial statements:
"The county court of every county, * * * shall prepare on a form to be prescribed by the State tax commissioner, and cause to be published a statement * * *."
* * * * * *
"If a county court wilfully fail or refuse to perform the duties hereinbefore named, every member of such court, concurring in such failure or refusal, shall be guilty of a misdemeanor, * *."
The trial court, in its written opinion which was made a part of the record by court order, reasoned that the statute, in its earlier form, expressly required the clerk to prepare the annual financial statements and required of the county court only that it cause the financial statements to be published; that, under the statute as amended in 1967, the clerk is relieved of his duty to prepare the annual financial statements and that the county court as such is charged with a duty to prepare the annual financial statements as well as a duty to cause them to be published; and that, under the statute in its amended form, the clerk may be employed by the county court to prepare the annual financial statements.
The trial court's opinion contains the following statement: "It would seem under the old statute the Clerk had to do the preparation, but now under the new statute the field is open so the Court can employ any help it cares to and does not have to depend on the Clerk." In support of its position that the county court was authorized to employ and to pay the plaintiff for his services in preparing the annual county financial statement in question, the trial court relied upon the provisions of Chapter 33, Acts of the Legislature, Regular Session, 1967, which, as has been stated previously, added to Code, 1931, Chapter 7, Article 1, a new provision designated as Section 3m which is in part as follows:
"In addition to all other powers and duties now conferred by law upon county courts or tribunals in lieu thereof, hereinafter referred to as county courts or courts, such courts are hereby empowered to employ, fix compensation for and discharge such clerical, stenographic, technical, professional and other personnel, including specialists and consultants, as may from time to time be necessary to aid such courts in exercising their powers or discharging their duties as provided by law: Provided, That such courts shall not have the power to employ any such personnel to perform powers and duties that are performed by such courts through their clerks pursuant to law."
* * * * * *
"The county courts shall file with their clerks a statement in writing showing such action and setting forth the name of each person employed pursuant to the provisions of this section, the time for *561 which employed and the monthly compensation. * * *. All statements required to be filed by this section shall be verified by the affidavit of a majority of the members of the county court making them * * *. Until the statements required by this section shall have been filed, no allowance or payments shall be made by the county courts for personnel."
It is obvious, we believe, that the statute quoted immediately above is not applicable to the present case. It is true that the county court, by a letter, requested that the clerk proceed with the preparation and publication of the 1966-67 annual financial statement in question and agreed to compensate him for such services "if it is determined that such payment is legal." Later, by letter, the plaintiff requested that the county court pay him $1,350 for such services. On June 27, 1968, the commissioners of the county court voted unanimously not to pay the plaintiff any sum of money as requested, on the ground that the preparation of the annual financial statements continues to be a part of his official duties as clerk and on the further ground that the 1967 amendment of Code, 1931, 7-5-16, deleted the provision which expressly authorized payment of reasonable payment of reasonable compensation to the clerk for his services in preparing the annual county financial statements. It is obvious that the county court did not, pursuant to the 1967 statutory enactment quoted above, undertake to employ the plaintiff to prepare the annual financial statement in question; that it had no authority under that statute to do so; and that, in any event, prerequisites for payment of compensation pursuant to that statute have not been complied with by the plaintiff. See also Code, 1931, 7-5-3 and 7-5-4, as amended; State ex rel. Damron v. Ferrell, 149 W.Va. 773, 143 S.E.2d 469.
It is reasonably apparent that the statute designated as Section 3m was enacted by the legislature in 1967 because of a case in which this Court, on November 23, 1965, held that a county court was not authorized by law to employ and to compensate a secretary and assistant to the county court in addition to personnel employed to assist its clerk in the performance of his official duties. State ex rel. County Court of Cabell County v. Arthur, 150 W.Va. 293, 145 S.E.2d 34. In that case this Court stated (150 W.Va. at 299, 145 S.E.2d at 38): "While under its general powers and duties a county court shall have the superintendence and administration of the internal police and fiscal affairs of its county, such functions are performed through its clerk, also an elected official. Code, 1931, 7-1-3. The secretarial and clerical duties can be and generally are performed by the county clerk and his employees." The Court held in that case that a county court possesses only such powers as are expressly conferred upon it by constitutional or statutory provisions, together with such powers as are reasonably and necessarily implied in the full and proper exercise of powers expressly conferred upon it.
Code, 1931, 7-5-2, in considerable detail, charges the clerk of a county court with the duty of keeping records concerning the fiscal affairs of the county. In construing that statutory provision in Blue v. Tetrick, 69 W.Va. 742, 751, 72 S.E. 1033, 1037, the Court stated: "The Code * * * has long provided that clerks of the county court shall keep proper accounts to show the money and claims due to the county, which are to be accounted for to the court, showing all claims placed in the hands of an officer. * * *. For what purpose? In order that the county may be able to make settlements and get its dues from sheriff and other officers. The clerk is the keeper of the books and accounts of the county, to show its right."
The defendants filed as an exhibit with their motion for summary judgment an affidavit made by Nancy Fitzwater in which she stated that she served as chief deputy to the Clerk of the County Court *562 of Cabell County for ten years prior to January 1, 1967; that during that period of time she was assigned the duty of preparing the annual county financial statements; that, in preparing such a statement, "she spent not less than four (4) weekends"; and that the annual financial statements were prepared from official records kept in the office of the clerk of the county court. The county court, therefore, could not prepare the annual financial statements without having available the books and records which are required by law to be prepared, maintained and kept by the clerk in his office. If the legislature, by statutes amended and enacted in 1967, had intended to relieve the clerk and his office staff of the duty of preparing the annual financial statements, it is reasonable to assume that the legislature would have made a specific provision for the means by which that duty would otherwise have been performed.
County Court of Tyler County v. Duty, 77 W.Va. 17, 87 S.E. 256, involved an action in assumpsit to recover various items of compensation which had been paid to the clerk of the county court, in addition to his official salary, for various services performed by him in his official capacity. In holding that such compensation had been paid by the county court without legal authority and that the compensation thus paid was recoverable by the county court, the Court made the following statement in the first point of the syllabus: "The clerk of a county court is entitled to such compensation only as is provided by statute, * * *." In the body of the opinion (77 W.Va. at 22, 87 S.E. at 257) the Court made the following statement: "The right of a clerk of a county court to compensation for his official services, depends entirely upon statute; and payments made to him out of the county treasury, not expressly authorized by statute, are unlawful payments, and may be recovered by the county court * * *." (Italics supplied.)
Code, 1931, 7-7-2, prior to its amendment in 1967, was in part as follows: "The annual compensation of the clerk of the county court of each county shall, on and after January one, one thousand nine hundred sixty-three, be in the amounts set forth in sections * * *." Section 2(6) was as follows: "For the county of Cabell, nine thousand dollars." That statute was amended and reenacted in 1967 in substantially the same language, except that it made changes in the amounts of salaries, to be effective on and after January 1, 1969. By the 1967 amendment and reenactment, the annual salary of the Clerk of the County Court of Cabell County was raised from $9,000 to $11,000.
We note that the action was instituted in the trial court by "Keith L. Arthur, as Clerk of the County Court of Cabell County, West Virginia," as plaintiff. The action, therefore, was instituted by him in his official capacity rather than in his capacity as an individual. The judgment order of the trial court contains the following language: "* * * and it is ORDERED that the Plaintiff, Keith L. Arthur, as County Clerk, have and recover from the defendant, The County Court of Cabell County, the sum of Nine Hundred Dollars ($900.00) with costs; * * *." It may not be entirely clear whether the judgment order contemplates that compensation be paid by the county court to the plaintiff in his official capacity or in his capacity as an individual. In these circumstances, counsel, by brief and oral argument, have taken the position that the plaintiff is not entitled to recover in the civil action either in his official capacity or in his capacity as an individual.
For reasons previously stated, we are of the opinion that the county court had no legal authority to employ and to pay any compensation to Keith L. Arthur in his individual capacity for any services he may have rendered in preparing the annual financial statement for the 1966-67 fiscal year. We are of the opinion that such responsibility was and continues to *563 be a part of his official duties as clerk of the county court, his official annual salary being expressly fixed by statute.
We are of the opinion, for reasons previously stated, that the county court is not authorized by law to pay the plaintiff, in his official capacity as clerk of the county court, any compensation, in addition to his official salary, for services performed by him and his office staff in the preparation of the annual county financial statements. We deem it quite significant that the legislature, by the 1967 amendment and reenactment of Code, 1931, 7-5-16, deleted and omitted from the statute the following language: "Such statement shall be prepared by the clerk, and for performing such service he shall be allowed a reasonable compensation by such court."
We are not aware of any statute which now expressly authorizes the county court to pay the clerk, either in his official capacity or in his capacity as an individual, any compensation for preparing the annual county financial statements. The language deleted by the 1967 amendment and reenactment, as stated above, had been a part of the statute for many years. Barnes' Code, 1923, Chapter 39, Section 35. Simultaneously another statute provided: "All fees, costs, percentages, penalties, commissions, allowances, compensations, income and all other prerequisites of whatever kind which by law may now or hereafter be collected or received as compensation for services by any clerk of the county court, * * * shall be collected and received by such officer for the sole use of the treasury of the county in which he is an officer, and shall be held as public moneys belonging to the county fund, * * *." Code, 1931, 59-1-28; Barnes' Code, 1923, Chapter 137, Section 34. In an able opinion prepared in 1953 by Honorable Fred H. Caplan, then an assistant to the attorney general and now a member of this Court, the conclusion was reached that any compensation paid to a clerk of a county court pursuant to Code, 1931, 7-5-16, for services performed in the preparation of annual county financial statements was, by reason of Code, 1931, 59-1-28, "received by him for the sole use of the treasury of the county to be credited to the general county fund, and shall not be kept by him as personal compensation." 45 Ops.Atty.Gen. 445.
For reasons stated in this opinion, the judgment of the Circuit Court of Cabell County is reversed.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1643815/ | 994 So.2d 312 (2008)
NGUYEN
v.
STATE.
No. 2D08-906.
District Court of Appeal of Florida, Second District.
October 31, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2458279/ | 707 S.W.2d 397 (1986)
METRO AUTO AUCTION, et al., Plaintiffs-Respondents,
v.
DIRECTOR OF REVENUE, et al., Defendants-Appellants,
Roy D. Blunt, Secretary of State, Intervenor.
No. 67180.
Supreme Court of Missouri, En Banc.
March 25, 1986.
*398 William L. Webster, Atty. Gen., Warren Weinstein, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
Douglas Van Camp, Kelly Pool, Jefferson City, for plaintiffs-respondents.
Phillip K. Gebhardt, Asst. Atty. Gen., Jefferson City, for intervenor.
HIGGINS, Chief Justice.
Plaintiffs, nine Missouri corporations operating wholesale automobile auctions in the state of Missouri, sought to enjoin the Director of Revenue from continuing the practice of enforcing section 407.536, RSMo Cum.Supp.1984, by investigating mileage readings submitted by immediate transferors of motor vehicles and placing a warning legend on certificates of title when the Director determines the application contains an incorrect odometer statement. The trial court enjoined the Director finding no statutory authority for this practice. The Director appealed and the Court of Appeals, Western District, affirmed the trial court on different grounds; the Court of Appeals enjoined the Director so long as the Director had not adopted his practice of enforcing section 407.536 by promulgating *399 a rule under the Administrative Procedure Act. This Court granted transfer to determine the validity of the Director's practice of enforcing section 407.536. The trial court judgment is affirmed.
The Director contends: (1) plaintiffs have no standing because no legally protectable interest of the plaintiff has been affected, and (2) the Director should not be enjoined from carrying out his practice of enforcing section 407.536 because the legislature has authorized this practice under section 407.536, RSMo Cum.Supp.1984, and section 301.190.2, RSMo Cum.Supp.1984. Plaintiffs respond: (1) plaintiffs have standing because they suffered a legally protectable loss of income as a direct result of the Director's actions, and (2) the Director's practice should be enjoined because section 407.536 specifically limits the Director's authority to place the warning legend on the title to those cases where the inaccurate mileage is revealed by the immediate transferor of that vehicle.
Plaintiffs operate their auctions to facilitate the sale of motor vehicles by registered automobile dealers, leasing companies, and automobile manufacturers. Plaintiffs do not actually buy or sell automobiles but act as brokers in the transactions and receive commissions on the sales. The auctions are not open to the public generally.
The automobiles are sold to the highest bidder. The buyer then issues its check or sight draft to the auction company and after the auction company receives the title and odometer statement from the seller, it forwards those documents to the buyer and issues a check to the seller. Generally, plaintiffs are not in the chain of title of the vehicles sold at auction; however, selling dealers occasionally assign the titles to plaintiffs who in turn reassign the titles to the buyers, or plaintiffs will hold a title transferred in blank, known as an "open title."
Section 407.536 requires transferors of ownership of motor vehicles to place odometer readings on titles. The statute was enacted in 1977 but not enforced by the Director until 1982. Beginning in the fall of 1982, the Director began requiring applicants to state the mileage on the title. In addition, the Director began checking with remote owners of selected vehicles and with other sources to determine if the odometer statements submitted with the applications for transfer of title were accurate. The titles to be checked were selected on a random basis and on the judgment of the examiners. If the Director determined the odometer statement submitted by the seller of the vehicle was inaccurate, he would place the following legend on the new title issued by the Department of Revenue:
This is not the true and accurate mileage of this motor vehicle. Consult the documents on file with the Missouri Department of Revenue for an explanation of the inaccuracy.
Robert Gentle, President of Metro Auto Auction, testified that the warning legend on a title devalues the resale value of the vehicle $500 to $2000. He further testified that when a buyer of a motor vehicle at one of his auctions receives his new title from the Department of Revenue with the warning legend on it, the buyer will immediately contact the auction and demand a refund of money paid for the vehicle plus any expenses incurred. The auction will then contact the selling dealer and if the latter will not buy the automobile back, the auction will refuse to permit that dealer to use its auction in the future and will buy back the vehicle itself. Mr. Gentle testified that while in most instances the auction is not in the chain of title of the affected automobile, and thus under no legal compulsion to purchase it, buyers look upon the auctions as "guarantors" of the vehicles purchased there and require the auctions to repurchase such vehicles at the risk of losing that dealer's business. Mr. Gentle testified that the above situation had occurred five or six times out of some eight to ten thousand *400 sales. Mr. Gentle also testified that he had experienced a decrease in volume of business of 25 percent because some dealers refused to use Missouri auctions because of the Director's policy.
The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
The Director asserts plaintiffs have no standing to bring this action because the evidence did not show that plaintiffs' loss of business was the direct result of the Director's actions or that plaintiffs have demonstrated a legally protectable interest.
In order to have standing, a plaintiff must derive an actual and justiciable interest susceptible of protection. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 (Mo. banc 1982). The doctrine of standing is related to the doctrine which prohibits advisory opinions. Id. The test for standing to contest legislative or administrative action is essentially the same. Palmer v. St. Louis City, 591 S.W.2d 39, 41 (Mo.App.1979). The party seeking relief must demonstrate that he has a specific and legally cognizable interest in the subject matter of the administrative action and that he has been directly and substantially affected thereby. Id.
The evidence supports the trial court's finding that plaintiffs have standing because the conduct of the Director has reduced plaintiffs' volume of business and income and will continue to do so in the future if the Director is permitted to continue his enforcement practice of section 407.536. Plaintiff Metro Auto Auction demonstrated a specific interest that was directly and substantially affected when Mr. Gentle testified that the auction had repurchased vehicles receiving the warning legend on their titles and that the auction would no longer deal with sellers who refused to repurchase these devalued vehicles they had put up for auction. Although under no legal obligation to repurchase these vehicles, Metro does so pursuant to sound business practice. Therefore, this Court concludes that the Director's practice directly resulted in Metro repurchasing devalued vehicles it had no interest in owning and suffering a loss of the business of sellers who refused to repurchase the vehicles.
The Director argues that plaintiffs have no legal right to sell vehicles with odometers that have been rolled back. While odometer fraud is unlawful, section 407.511, et seq., RSMo Cum.Supp.1984, the interest claimed by the plaintiffs is not in selling vehicles with rolled-back odometers. Plaintiffs claim an interest in protecting their businesses from loss of income and are asking the courts to determine whether the action of the Department of Revenue has been authorized by the legislature. Thus, the specific and legally cognizable interest that plaintiffs seek to protect is that their business interests not be violated by unauthorized action of the Department of Revenue.
The Director contends the trial court erred in enjoining him from using, for the purpose of section 407.536, information obtained from sources other than the immediate transferor or from placing the statutory legend on the certificate of title when he finds inaccuracies because sections 407.536 and 301.190.2 give him this authority.
This Court must first determine what powers are given the Director of Revenue under section 407.536. That section reads as follows:
407.536. Odometer mileage to be shown on title, whenpreviously untitled vehicles, procedure forincorrect mileage on odometer, procedure for. 1. Any person transferring ownership of a motor vehicle previously titled in this or any other state shall do so by assignment of title and shall place the mileage registered on the odometer at the time of transfer above the signature of the transferor. The notarized signature of the transferor below the mileage shall constitute an affidavit of mileage. *401 If the true mileage is known to the transferor to be different from the number of miles shown on the odometer or the true mileage is unknown, an affidavit from the transferor shall accompany the assignment of title which shall contain all facts known by the transferor concerning the true mileage of the motor vehicle. That affidavit shall become a part of the permanent record of the motor vehicle with the Missouri department of revenue. The department of revenue shall place on all new titles issued after September 28, 1977, a box titled "mileage at the time of transfer."
2. Any person transferring the ownership of a motor vehicle previously untitled in this or any other state to another person shall give an affidavit of mileage disclosure to the transferee. The affidavit shall include above the notarized signature of the transferor the cumulative mileage registered on the odometer at the time of transfer. If the true mileage is known to the transferor to be different from the number of miles shown on the odometer or the true mileage is unknown, an affidavit from the transferor shall accompany the assignment of title which shall contain all facts known by the transferor concerning the true mileage of the motor vehicle. That affidavit shall become a permanent part of the records of the Missouri department of revenue.
3. The mileage disclosed by affidavit for a new or used motor vehicle as described in subsections 1 and 2 of this section shall be placed by the transferee or his assignee on the face of any title or document evidencing ownership. Where the transferor has submitted an explanation why this mileage is incorrect, an asterisk shall follow the mileage on the face of the title or document of ownership issued by the Missouri department of revenue. The asterisk shall reference to a statement on the face and at the bottom of the title document which shall read as follows: "This is not the true and accurate mileage of this motor vehicle. Consult the documents on file with the Missouri department of revenue for an explanation of the inaccuracy."
This statute requires, in subsections 1 and 2, that a seller of an automobile in this state shall provide the buyer with a statement of that automobile's mileage at the time of sale or a statement that the mileage is different from that shown on the odometer or is unknown. Subsection 3 provides that in those instances where the seller knows the odometer reading to be inaccurate or does not know the true mileage of the vehicle, the Department of Revenue shall place upon the face of the title the legend:
This is not the true and accurate mileage of this motor vehicle. Consult the documents on file with the Missouri Department of Revenue for an explanation of the inaccuracy.
Plaintiffs do not contest the power of the Director to place this legend on a car title when the seller has stated that the odometer is wrong or the true mileage is unknown. In such cases, all parties know the seller does not stand by the odometer and can act accordingly. What plaintiffs dispute is the Director's authority to obtain information concerning the true and correct odometer reading from any source other than the immediate transferor of the vehicle and to place the statutory legend on titles after inaccuracies are revealed by sources other than the immediate transferor.
"The primary rule of statutory construction is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning." Blue Springs Bowl v. Spralding, 551 S.W.2d 596, 598 (Mo. banc 1977). Where the language is clear and unambiguous, there is no room for construction. Id. This Court must be guided by what the legislature said, not by what the Court thinks it meant to say. Missouri Public Service Co. v. Platte-Clay Electric Cooperative, 407 S.W.2d 883, 891 (Mo.1966).
*402 The language of section 407.536 is clear and unambiguous on its face. Subsection 1, in pertinent part, states:
If the true mileage is known to the transferor to be different from the number of miles shown on the odometer or the true mileage is unknown, an affidavit from the transferor shall accompany the assignment of title which shall contain all facts known by the transferor concerning the true mileage of the motor vehicle....
Subsection 3 then provides:
Where the transferor has submitted an explanation why this mileage is incorrect, an asterisk shall follow the mileage on the face of the title or document of ownership issued by the Missouri department of revenue. The asterisk shall reference to a statement on the fact and at the bottom of the title document which shall read as follows: "This is not the true and accurate mileage of this motor vehicle. Consult the documents on file with the Missouri department of revenue for an explanation of the inaccuracy." [Emphasis supplied.]
On its face this language permits the Director to place the inaccurate mileage notation on the title when the immediate transferor has provided the Director with an affidavit showing the odometer reading to be incorrect. The language does not authorize the Director to go behind the information submitted by the immediate transferor or to place the statutory legend on a title when the Director has received information showing a mileage inaccuracy from a source other than the immediate transferor.
The Director concedes that section 407.536 does not confer express authority to investigate mileage disclosure statements; however, the Director argues that this Court must determine the intent of the legislature by reading the statute together with related statutes. State v. White, 622 S.W.2d 939 (Mo. banc 1981). The Director cites Ryan v. Edwards, 592 F.2d 756 (4th Cir.1979), where the court was interpreting the federal odometer statutes which provide for odometer disclosure similar to the Missouri statute. The Director quotes from Ryan: "Both the language of [the federal] statute and its history show that it has one purpose: to enable the purchaser of a motor vehicle to know how many miles the vehicle has traveled, as a guide to its safety, reliability, and value." Id. at 760. However, the holding in Ryan was that "when a transferor knows that a vehicle's odometer has `turned over' after registering 99,999 miles, the `cumulative mileage' which must be stated to satisfy the requirements of [the statute] is the total of 100,000 plus the number actually appearing on the odometer." Id. at 760-61. Ryan did not involve investigation of the mileage reading as stated by the transferor. Although section 407.511 et seq. is a comprehensive enactment by the legislature concerning odometers and evinces a purpose of informing the public of the correct mileage reading on vehicles purchased, "courts must construe a statute as it stands ... and must give effect to it as written.... This Court may not engraft upon the statute provisions which do not appear in explicit words or by implication from other words in the statute." Wilson v. McNeal, 575 S.W.2d 802 (Mo.App.1978). Furthermore, a reading of the specific sections contained within section 407.511 et seq. shows the purpose of these statutes is to punish those persons responsible for odometer fraud, i.e., the persons who actually roll back the odometer or transfer title to a motor vehicle knowing the odometer reading to be false.[1]
*403 The Director argues that section 407.536 read in combination with section 301.190 gives him the authority for his enforcement practice of section 407.536. Section 301.190 provides generally for the issuance of titles to motor vehicles. Specifically, the Director asserts that section 301.190.2 gives him authority to investigate mileage statements.
2. The director of revenue shall use reasonable diligence in ascertaining whether the facts stated in such application are true, and if satisfied that the applicant is the lawful owner of such motor vehicle or trailer, or otherwise entitled to have the same registered in his name, shall thereupon issue an appropriate certificate over his signature and sealed with the seal of his office....
The Director reasons that because Missouri is a strict title state, no title passes if an incorrect mileage statement is placed in the assignment of title. The Director cites cases requiring strict compliance with the statute governing transfer of vehicles in order for title to pass. See, e.g., State Farm Mutual Automobile Insurance Co. v. MFA Mutual Insurance Co., 485 S.W.2d 397, 401 (Mo. banc 1972); Allstate Insurance Co. v. Northwestern National Insurance Co., 581 S.W.2d 596, 602 (Mo.App.1979). However, these cases are referring to section 301.210 which sets out the requirements for sale and transfer of vehicles. Section 301.210 in subsection 4 states:
4. It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificates of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.
Therefore, in order for title to pass in Missouri, the certificate of title must be physically transferred with an assignment from the transferor to the transferee. Missouri is a "strict title" state which means "the assignment of the certificate of title in the manner provided by the statute is the exclusive and only method of transferring title to a motor vehicle, whether the transfer is made by the owner by way of sale or gift or is effected by operation of law." 7A Am.Jur.2d Automobiles and Highway Traffic § 30 (1980).
The Director cites Horton v. State Farm Fire & Casualty Co., 550 S.W.2d 806 (Mo. App.1977), where the court held that a difference between the identification number in the certificate of title and the actual vehicle number prevented title from passing. Id. at 809. The court found this to be a violation of section 301.210. Id. If the identification numbers are different, the person possessing the vehicle does not possess the vehicle as described in the certificate of title which makes the assignment invalid. See Craig v. Rueseler Motor Co., 159 S.W.2d 374, 378 (Mo.App.1942). This interpretation that the certificate of title must properly identify the vehicle being transferred is consistent with the purpose of section 301.210 as expressed in subsection 3: "Certificates ... shall be retained by the director of revenue and all certificates shall be appropriately indexed so that at all times it will be possible for him to expeditiously trace the ownership of the motor vehicle or trailer designated therein."
Subsection 2 of section 301.210 requires that after the certificate of title is transferred to the buyer, the buyer shall present the certificate to the director of revenue at the time of making application for the registration of such vehicle, whereupon a new certificate of title will be issued to the buyer. Section 301.190.1 sets out the information to be contained in the application for the new certificate of title: (1) a full description of the motor vehicle or trailer, (2) manufacturer's or other identifying *404 number, and (3) a statement of the applicant's source of title and of any liens or encumbrances on the motor vehicle or trailer. These requirements all have to do with determining the legal ownership of a vehicle and are necessary to "expeditiously trace the ownership of the motor vehicle" as stated in section 301.210.3. The public policy behind the provisions of section 301.210 is to prevent trafficking in stolen cars. Horton, 550 S.W.2d at 810.
Therefore, subsection 2 of section 301.190, relied upon by the Director, which requires the Director to use "reasonable diligence in ascertaining whether the facts stated in such application are true" must be read in connection with subsection 1 which describes information needed to trace ownership. This is reflected in subsection 2 when it requires the Director to issue a title if satisfied "that the applicant is the lawful owner of such motor vehicle...."
The purpose of requiring the odometer reading to be placed on the certificate of title is to inform the buyer of the correct mileage reading on vehicles purchased; the purpose is not to aid the Director in tracing the ownership of the vehicle. Therefore, title passes if section 301.210 is complied with regardless of whether the assignment of title contains the correct mileage of the vehicle. If the purchaser later determines the mileage stated on the certificate of title is incorrect, he may have a cause of action under section 407.546, RSMo Cum.Supp.1984:
407.546. Civil damages for odometer violationsvenue.1. Any person who, with intent to defraud, violates any of the provisions of sections 407.511 to 407.556 shall be liable in civil damages to the purchaser or owner of the motor vehicle in an amount equal to three times the amount of actual damages sustained or one thousand five hundred dollars, whichever is the greater, and, in the case of any successful action to enforce the liability created by this section, the costs of the action together with reasonable attorney fees as determined by the court.
If the legislature had intended to include correct odometer reading as a requirement for passing title, the legislature could have done so rather than specifically covering odometer readings in chapter 407. The legislature is presumed to have intended what the law states directly. Missouri Division of Employment Security v. Labor and Industrial Relations Commission of Missouri, 637 S.W.2d 315, 318 (Mo. App.1982).
The Director cites Iowa Kemper v. Cunningham, 305 N.W.2d 467 (Iowa 1981), and states that "Iowa, another strict title state, has held that no title passes when an inspection certificate required by Iowa law does not accompany the assignment of title." In Iowa Kemper the court determined that Iowa Code, section 321.45(2) (1981), controlled the title issue and provided that no court shall recognize a title to any vehicle "unless evidenced by a certificate of title or manufacturer's or importer's certificate duly issued or assigned in accordance with provisions of this chapter." (Emphasis supplied.) Id. at 469. Section 321.238(18) "prohibits a person from selling or transferring a motor vehicle until a valid official certificate of inspection is affixed to the vehicle." Id. The court in Iowa Kemper concluded that no title passed because the seller, by not providing the inspection certificate, was not following the provisions of chapter 321. Id. at 470.
The Director argues that section 407.536 is remedial and should therefore be given a liberal construction, citing State ex rel. LeFevre v. Stubbs, 642 S.W.2d 103 (Mo. banc 1982). In LeFevre, this Court was deciding whether section 443.410 allowed a mortgagor to redeem property following foreclosure when the mortgagor had deeded the property to a grantee who had assumed the mortgage. However the statute in question provided that "real estate ... shall be subject to redemption by the grantor... or his heirs, devisees, executors, administrators, grantees or assigns...." The word "grantor" was in the statute and the only issue was whether the word "or" was intended in the alternative or concurrent *405 sense. Id. at 106. LeFevre is distinguishable because in section 407.536 there are no ambiguous words for this Court to interpret.
The Director argues that construing the statute to prevent the Director from placing the correct mileage on the certificate of title if the Director, through investigation, determines the mileage submitted by the transferor to be incorrect is an absurd and unreasonable result. The Director cites State ex rel. Rhodes v. Crouch, 621 S.W.2d 47 (Mo. banc 1981), for the proposition that the construction of statutes must be logical and give meaning to the statutes. In Rhodes, this Court interpreted a statute giving rural electric cooperatives the power of eminent domain as including the power to enter land in anticipation of and preparation for condemnation even though the legislature had not specifically given this precondemnation right to the cooperatives as it had to railroad corporations and the State Highway Commission. Id. at 48. The Court concluded this interpretation was necessary to give meaning to the statute because "it would make little sense that the legislature would grant the power of eminent domain to an entity and at the same time deny the entity the means required to use the grant." Id. at 49. A specific grant of condemnation power rendered useless without the right to enter the property to make a survey is not analogous to the present situation because of the absence in section 407.536 of any language authorizing the Director to place on a title a mileage reading other than that submitted by the transferor. The Director cites Breeze v. Goldberg, 595 S.W.2d 381 (Mo.App.1980) for the proposition that the construction of statutes should not reach an absurd or unreasonable result. In Breeze the court interpreted a licensing statute specifying "The Director shall not issue any license ... [t]o any person whose application shows that he was, within five years prior to such application, convicted for the second time of violating the laws of this state relating to driving while intoxicated." The court determined the intent of the legislature was that both violations must have occurred within the five year period prior to the application. Id. at 383. To interpret the statute to mean an applicant could not obtain a license for five years following the date of the second violation regardless of the date of the first violation would reach an absurd result in a situation where, for example, an otherwise qualified driver could not obtain a license until 1983 after a 1978 and 1950 conviction for driving while intoxicated. Id.
The statute in question, section 407.536, can be interpreted from its plain language and the result reached is neither unreasonable nor absurd. Under the statute, the transferor of the vehicle is to place the odometer reading on the certificate of title when it is assigned. If the transferor knows the odometer reading is incorrect, he is to submit an affidavit explaining why the reading is wrong. The Director will then put the statutory legend on the certificate of title advising the buyer to contact the Department of Revenue for an explanation of the inaccuracy. If the Director is to investigate the odometer reading submitted by the transferor and in addition put a reading on the title different from that submitted by the transferor along with the statutory legend, the legislature must specifically authorize the Director to do so; there is no authority for this practice either in section 407.536 or in section 407.536 combined with section 301.190.
Accordingly, the judgment of the trial court is affirmed.
BILLINGS, DONNELLY and WELLIVER, JJ., concur.
RENDLEN, J., concurs in result.
BLACKMAR, J., dissents in separate opinion filed.
SNYDER, Special Judge, dissents and concurs in separate dissenting opinion of BLACKMAR, J.
ROBERTSON, J., not sitting.
*406 BLACKMAR, Judge, dissenting.
By the holding in the principal opinion, the Director of Revenue is obliged to issue a certificate of title showing an odometer reading which is shown to be false by the records in the director's office, if the seller has unqualifiedly certified to that reading. I cannot believe that the legislature, in a statute passed to protect purchasers of vehicles against turned-back odometers, intended such a result. I would reverse and remand with directions to dismiss the petition.
The claim of standing is shaky, to put it mildly. The auction neither buys nor sells vehicles. The principal opinion gives heed to the testimony of plaintiff's president that "the warning legend on a title devalues the resale value of the vehicle $500 to $2000," and that, when such a legend appears "the buyer will immediately contact the auction and demand a refund...." I do not believe that the plaintiff has a legally cognizable right to the issuance of the titles which operate as a fraud on purchasers, by deceiving them as to the true mileage. Even if technical standing is found, the plaintiff's position is completely lacking in equity and should not be fortified by injunctive relief.
The principal opinion, furthermore, is not sound on the merits. Statutes relating to odometer readings are designed to protect purchasers. Ryan v. Edwards, 592 F.2d 756 (4th Cir.1979). The director's actions are not forbidden by the language of the statute. It follows by fair implication that the director should be able to express a caution when he knows from his official records that the odometer reading tendered by the seller is incorrect. To hold otherwise would allow a statute designed for the protection of buyers to operate as a fraud and deception on them, by giving apparent official sanction to a false reading.
The principal opinion points to the statutory provisions governing the situation in which a seller knows that the figure shown by the odometer is not correct. These provisions are designed for the guidance of a conscientious seller who knows that the odometer's reading is not correct, and provides the means by which he may effect a sale. But for the statutory language, the director might refuse to issue a certificate of title in which the correct mileage cannot be shown. The statutes simply do not deal with the situation in which the director, but not the seller, knows that the odometer reading is false.
The principal opinion rejects State ex rel. Rhodes v. Crouch, 621 S.W.2d 47 (Mo. banc 1981), as a basis for the director's action. I consider the case in point and highly pertinent. There the Court looked to the broad purpose of a statute, so as to authorize a pre-condemnation inspection which was not specifically authorized. We borrowed from another statute which applied to other utility companies, thereby rejecting a strict application of the maxim, expressio unius est exclusio alterius, in favor of a construction more consonant with the statute's purpose. By the same token we should allow the director to borrow the procedure of § 407.536, RSMo Supp.1984, to avoid the issuance of a false and deceptive certificate of title under the aegis of his office.
Authority also follows by fair implication from § 301.190, RSMo Supp.1984 obliging the director to "use reasonable diligence in ascertaining whether the facts stated in [an application for certificate of title] are true,..." What is the director to do if he discovers that the seller's statement of mileage is not true? Surely the director should be expected to take some action in this situation. The warning legend is an appropriate response.
It makes no difference that the director may not be able to discover all instances in which the records of the office show that a tendered odometer reading is not correct. There is no reason to require the director to sponsor some fraudulent readings, simply because all fraudulent readings may not be flagged.
The judgment should be reversed and the case remanded with directions to dismiss the petition.
NOTES
[1] The title of this collection of statutes is "Mileage Recorders (Odometers) Altering or Resetting Prohibited." Sections 407.515 through 407.526 make the alteration of odometers a crime. Sections 407.542 through 407.544 provide the penalties for odometer fraud. Section 407.546 creates a private cause of action for transferees who discover odometer alterations. Sections 407.551 and 407.553 give the attorney general and prosecuting attorneys injunctive authority to enjoin violations of the odometer statutes and authority to prosecute criminal or civil action authorized by the odometer statutes. Section 407.556 provides for the suspension or revocation of licenses of dealers or manufacturers who violate the odometer statutes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2216959/ | 250 Cal.App.2d 478 (1967)
THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT LeROY BOTTS, Defendant and Appellant.
Crim. No. 11310.
California Court of Appeals. Second Dist., Div. Four.
Apr. 26, 1967.
Ferdinand F. Fernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Howard J. Bechefsky, Deputy Attorney General, for Plaintiff and Respondent.
KINGSLEY, J.
Defendant was charged with possession of heroin, in violation of section 11500 of the Health and Safety Code. One prior felony conviction was alleged. He pled not guilty and denied the prior. After a trial by the court (trial by jury having been duly waived) he was found guilty and the prior conviction was found to be true. Proceedings were suspended and proceedings were commenced under the Narcotic Rehabilitation Act, resulting in defendant's commitment to that program. Thereafter, defendant was discharged from the Rehabilitation Center pursuant to habeas corpus proceedings instituted on his behalf. The criminal proceedings were resumed, probation was denied and he was sentenced to state prison. He has appealed.
Witness Carr, a service station attendant, observed some men park a car on the service station lot. Defendant left the car and entered the restroom of the station. Carr went to a back room of the station to a point from which he was able to see into the restroom through two three-quarter inch holes in the wall. Carr testified that the holes had resulted when, previously, a towel rack had been removed from the restroom side of the wall. Carr observed defendant with a hypodermic syringe on the top of the toilet, and with a white paper which he removed from his wallet. Carr reported his observation to his father and then returned to look into the restroom again. In the meantime another man had left the parked car and gone into the restroom. Carr was unable to see more because the holes had been plugged up from the inside with toilet *480 tissue. Shortly thereafter, defendant and his companion left the restroom and the car drove off.
Carr reported his observations to nearby police officers. Officer O'Rourke, on the basis of this information, followed the Ford and stopped it on San Antonio between Gaviota and Rose. Three men got out. Defendant had a belt around his neck. Defendant was arrested and, during the search, the officer found a piece of tissue and a rolled matchbook cover, a piece of thin wire and a bobbypin. It is stipulated that Gerald Eaton testified that he found a hypodermic syringe on the corner of San Antonio and Gaviota on September 13, 1961. On the ground two or three inches from defendant's shifting right foot an officer found a spoon depressed into the earth with a bent handle. Defendant had a handkerchief with blood on it in his pocket. An officer found, under the driver's seat, a half-spoon, some thread, a needle in a plastic case, and an eyedropper, all wrapped in a dirty cloth. The bowl of the spoon was blackened and it contained heroin residue. On the rear floor of the car another officer found the top to a condom, and then he found a condom containing 85 capsules of white substance which later proved to be heroin. It was stipulated that defendant was under the influence of heroin shortly before the car was stopped.
The testimony for the defense was that witness Bennett and defendant had been employed at the same place some time before. Bennett had been laid off and, on the day in question, had gone with witness Sweeton to visit defendant in the hope that defendant could assist Bennett to become re-employed. Unknown to Bennett, defendant had also been laid off. The three men decided to go for a drive. Defendant had had a "fix" of heroin shortly before the visit. While driving, he felt the need to go to a restroom and they had stopped at Carr's station for that purpose. Because defendant was in the restroom a long time, Sweeton went in to "hurry him up." The chase and arrests followed. Sweeton testified that the narcotics found were his, and that he had given them to Bennett to dispose of when he saw the police following them. He testified that defendant was unaware of the narcotics. Defendant denied using heroin in the restroom. He testified that he had cut his finger earlier and wiped it on his handkerchief and that, while in the restroom, he realized that his "kit" was in his pocket and had tried to unclog it there.
Defendant contends: (1) the testimony of Carr should have been excluded because it was based on an unreasonable search *481 and seizure; (2) the admission made by defendant violated his constitutional rights (People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]); (3) the defendant was convicted because the trial court erroneously believed possession could be based on prior use of narcotics that day; (4) the evidence is insufficient to support the verdict; and (5) it is unconstitutional to conduct proceedings under Penal Code section 6451 and later under Health and Safety Code section 11500. [fn. 1]
I
[1] Defendant argues that Carr's testimony should have been excluded as it was based on observations amounting to an unreasonable search and seizure. [fn. 2] Defendant is correct in his assertion that, if the acts committed by Carr had been committed by a police officer, the evidence obtained would have been inadmissible. (Bielicki v. Superior Court (1962) 57 Cal.2d 602 [21 Cal.Rptr. 552, 371 P.2d 288].) Defendant also correctly asserts that, if Carr was acting as an agent of the state, his testimony would have been excluded. (People v. Tarantino (1955) 45 Cal.2d 590 [290 P.2d 505].) In the case at Bench, Carr was neither a policeman nor was he an agent of the police; in the Tarantino case the agent worked under police supervision; no such suggestion is made here. [fn. 3]
However, where the challenged evidence was obtained by a private citizen, acting on his own, the cases have refused to apply any exclusionary rule. (Burdeau v. McDowell (1921) *482 256 U.S. 465 [65 L.Ed. 1048, 41 S.Ct. 574, 13 A.L.R. 1159]; People v. Randazzo (1963) 220 Cal.App.2d 768 [34 Cal.Rptr. 65], cert. den., 377 U.S. 1000 [12 L.Ed.2d 1050, 84 S.Ct. 1933]; People v. Trimarco (1963) 41 MisCal.2d 775 [245 N.Y.S.2d 795].) While it is true that Burdeau is now somewhat questionable as an authority, since it can be regarded as being an application of the "silver platter" doctrine later repudiated in Elkins v. United States (1960) 364 U.S. 206 [4 L.Ed.2d 1669, 80 S.Ct. 1437], [fn. 4] the two state cases are not subject to that caveat.
On principle, we think that the application of an exclusionary rule to evidence obtained by a private citizen, not acting as a police agent, is unwarranted.
"In applying the exclusionary rule to evidence acquired through improper searches by government officials the Supreme Court has emphasized that the rule is 'calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it.' [Elkins v. United States (1960) 364 U.S. 206, 217 [4 L.Ed.2d 1669, 1677; 80 S.Ct. 1437, 1453].] Because police will alter their investigatory practices to secure future convictions, the rule clearly is an appropriate means to deter improper police conduct. A rule of exclusion would serve no function, however, in situations where its application would not deter improper searches in the future." Note, Seizures by Private Parties: Exclusion in Criminal Cases (1967) 19 Stan.L.Rev. 608, 610-611.)
Where an exclusionary rule is directed to the police, we may assume that they will have knowledge of it, that there will result directives from the higher echelons designed to secure compliance and to institute acceptable alternative practices, and that both the discipline of an organized police force and the desire to secure convictions will produce compliance with those directives. But, except in unusual cases, we cannot assume that private citizens will be aware of an exclusionary rule, that they will be under any disciplinary compulsion to obey such a rule, nor that they will not be motivated in their conduct by reasons apart from, or in addition to, a desire to assist in securing a criminal conviction. The result of applying an exclusionary rule to cases such as the one at Bench would be to free a guilty man without any assurance *483 that there would result any counterbalancing restraint of similar conduct in the future.
Relying on Shelley v. Kraemer (1948) 334 U.S. 1 [92 L.Ed. 1161, 68 S.Ct. 836, 3 A.L.R.2d 441], defendant argues that the use of privately obtained evidence at the criminal trial is governmental action, and that an exclusionary rule would operate to deter such governmental action. But the analogy is not apt. In Shelley v. Kraemer, the antisocial conduct--the racial discrimination--would have followed, and would have become operative only because of and after, the state action in entering a judgment in a law suit. But in the case at Bench, the objectionable conduct had occurred prior to, and was not dependent for its antisocial effect on, any later governmental action; the citizens' right of privacy had been violated, whether or not anyone in a courtroom talked about his actions.
It may well be that the bathroom is becoming the last sanctuary of privacy in an increasingly Orwellian society, but that sanctuary must be protected by devices which do not create a certainty of the social evil of ineffective law enforcement balanced only by a highly problematical and uncertain efficacy of social protection. The Carr testimony was properly admitted.
II
[2a] Defendant argues that his admissions were improperly entered into evidence. [3] At the time of making the admissions, the defendant was in custody at the Narcotics Bureau and had been arrested two hours earlier. The officers had entered into a process of interrogation tending to elicit incriminating statements, and the inquiry had focused on defendant as a prime suspect. Therefore, the police had a duty to warn defendant of his right to remain silent and have an attorney (People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]), and failure to do so was error.
[2b] Where the record is silent, as here, we cannot presume that adequate warning was given. (People v. Stewart (1965) 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97].) However, where statements are not confessions, automatic reversal is not required. (See People v. Luker (1965) 63 Cal.2d 464, 475 [47 Cal.Rptr. 209, 407 P.2d 9].) Therefore, it becomes necessary to examine whether or not the admissions were harmless in leading towards his conviction.
Defendant admitted the following: That, prior to his *484 meeting his two friends, he had injected heroin in himself, that he was using about two caps to a half a gram, that the needle holster and needle cleaner found on him were his spike holder and spike cleaner, that he threw the narcotic paraphernalia out of the car window and that he was on parole for a marijuana conviction.
We conclude that the error was prejudicial. Although Carr saw the defendant doing something with a hypodermic needle, he did not see him with narcotics, or engaged in injecting himself. A codefendant testified that Botts had neither knowledge or possession of the narcotics discovered. Defendant's admissions, especially that he had taken the narcotic kit on the drive, coupled with his admission of being a user and of having had a recent "fix," cannot have been other than damaging to his defense.
III
Defendant argued that the trial court erroneously believed that use of narcotics on the day in question but prior to the ride was sufficient to convict defendant of possession. It is not at all certain from the language cited to us that the trial court believed that mere use of narcotics on the day in question would be sufficient to sustain a conviction. There is also a great deal of other language indicating that the court believed defendant had heroin in the restroom. Where the judge's statement as a whole discloses a correct concept of the law no secondary remark should be deemed to have impeached his determination. (People v. Cartier (1960) 54 Cal.2d 300, 313 [5 Cal.Rptr. 573, 353 P.2d 53].) [4] To support a charge of possession, it must be shown that the accused was aware of the presence of the narcotic (People v. White (1964) 231 Cal.App.2d 82 [41 Cal.Rptr. 604]), and he must have dominion and control over the narcotic (People v. Gory (1946) 28 Cal.2d 450, 455 [170 P.2d 433]). In the case at Bench we have more than proximity, more than presence of paraphernalia, and more than being under the influence of a narcotic. We have the inference created by the belt around defendant's neck at the time of the arrest and the inference from the testimony of Carr that defendant had a hypodermic needle in the restroom and was fixing it. These inferences are sufficient evidence to support a charge of possession either at the gas station or in the car.
V
Defendant argues, for purposes of preserving his rights in higher courts, that his constitutional rights were violated *485 when he was first committed under Penal Code section 6451 and later under Health and Safety Code section 11500. However, defendant admits that the arguments he would have made have been considered and decided adversely to him in In re De La O (1963) 59 Cal.2d 128 [28 Cal.Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705].
Because of the improper admissions of statements made by defendant after his arrest, the judgment is reversed.
Files, P. J., and Jefferson, J., concurred.
Also inapposite to the present case are those cases where, although the search was made by a private citizen, he was accompanied and directed by the police. See: State v. Scrotsky (1963) 39 N.J. 410 [189 A.2d 23]; Moody v. United States (Dist. Col. 1960) 163 A.2d 337.
Defendant also relies on Gambino v. United States (1927) 274 U.S. 310 [72 L.Ed. 293, 48 S.Ct. 137, 52 A.L.R. 1381]. But in Gambino the action was taken for the express purpose of securing evidence to be turned over to federal law enforcement officials. No such motivation appears here.
NOTES
[fn. 1] 1. It was stipulated that the police officers had reasonable cause to stop the car and that their actions in searching and seizing evidence thereafter were lawful.
[fn. 2] 2. The Attorney General argues that this issue was not properly raised at the trial and, therefore, is not properly before us on this appeal. However, since we must reverse for another reason hereinafter set forth, and since the admissibility of the Carr testimony will almost certainly arise on a retrial, we think it appropriate to discuss its admissibility for the guidance of the trial court and counsel on such new trial.
[fn. 3] 3. Corngold v. United States (9th Cir. 1966) 367 F.2d 1, relied on by defendant, is in the same class as is Tarantino, since the private search was made at the request and instigation of the federal officers. See, also: People v. Fierro (1965) 236 Cal.App.2d 344 [46 Cal.Rptr. 132].
[fn. 4] 4. See the discussion of this point in the Note in (1967) 19 Stan.L.Rev. 608, 610. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261946/ | 152 Pa. Commonwealth Ct. 266 (1992)
618 A.2d 1197
Franciose MILLER, in her own right as parent and natural guardian of Sherrika Miller, a minor,
v.
LANKENAU HOSPITAL and Joanne Leahey, M.D. and Russell R. Janson, M.D. and Robert J. Mitchell and E. Lawrence Langan and John F. Goldener.
Appeal of COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE.
Commonwealth Court of Pennsylvania.
Argued November 19, 1992.
Decided December 17, 1992.
*267 Andrew A. Coats, Asst. Counsel, for appellant.
Kathleen E. Boyle, for appellees.
Before CRAIG, President Judge, SMITH, Judge, and NARICK, Senior Judge.
NARICK, Senior Judge.
The Commonwealth of Pennsylvania, Department of Public Welfare (DPW) appeals from an order of the Philadelphia County Court of Common Pleas which denied its petition to open settlement and permit intervention. We reverse and remand.
Sherrika Miller (Sherrika) was born on June 8, 1982 in Lankenau Hospital (Lankenau). Shortly after delivery, Sherrika sustained injuries. During this time, Franciose Miller *268 (Miller), Sherrika's mother, received benefits under the Pennsylvania Medical Assistance Program (Medicaid). Upon her birth, Sherrika was added to the Medicaid grant. Miller filed suit against Lankenau and various other parties, alleging medical malpractice. On July 11, 1989, the trial court approved a 2.5 million dollar settlement. The trial court later amended its order and directed the funds to be administered by a guardian. Continental Bank was appointed for this purpose.
Almost a year after the settlement, counsel for the Millers sent a letter to DPW, stating that the case had been settled. DPW filed a petition to open settlement and permit intervention. DPW was petitioning the court to assert its claim for medical benefits, exceeding $220,000 which had been paid on behalf of Sherrika since the cause of action arose. Continental Bank filed a response to DPW's petition that did not oppose the petition but only disputed the amount of DPW's medical assistance claim. Neither counsel for the Millers nor counsel for Lankenau filed any response. The trial court denied DPW's petition.
On appeal to this Court,[1] DPW argues that the trial court committed an error of law in denying the petition.[2] We agree.
Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396u, allows the states broad discretion in developing Medicaid programs. Under state law, DPW is the sole state agency charged with administering Medicaid. Section 201 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 201. As a condition for receipt of continued *269 federal funding, DPW must vigorously seek reimbursement from third parties liable for causing injuries to Medicaid recipients. 42 U.S.C. § 1396a(a)(25), 42 U.S.C. § 1396k and 42 C.F.R. §§ 433.135-433.154. Federal law prohibits Medicaid from being the primary insurance when a third party (including private health insurance) is legally liable for the costs of the injured party's medical expenses. 42 U.S.C. § 1396a(a)(25), 42 U.S.C. § 1396k and 42 C.F.R. §§ 433.137-433.139, § 433.151.
Pursuant to this federal mandate, the Pennsylvania General Assembly enacted the Fraud and Abuse Control Act of 1980 (Act).[3] Section 1409 of the Act, 62 P.S. § 1409, states that DPW has the right to recover the reasonable value of medical assistance granted to a recipient when those benefits are provided as a result of an injury for which another person or insurer is liable.
The trial court did not consider any of the state or federal statutes governing DPW or Medicaid. Instead the trial court reasoned that DPW could have intervened at any time after the commencement of the action in 1984. Further, the trial court found that DPW "by its own admission did not seek to become a party until it was notified of the settlement agreement even though it was aware throughout the litigation and took no part in this case." (Trial court opinion, p. 3.)
However, Section 1409(b)(9) of the Act specifically states:
No judgment, award or settlement in any action or claim by a beneficiary to recover damages for injuries where the department has an interest, shall be satisfied without first giving the department notice and an opportunity to perfect [its] lien. (Emphasis supplied.)
Lankenau and the Millers did not notify DPW that the case had been settled until almost a year after the settlement. Section 1409(b)(9) of the Act does not require DPW to act until actual notification of the proposed settlement.
*270 Although this is a case of first impression for the Commonwealth Court, the Superior Court has held that DPW is entitled to intervene in cases where DPW has not been properly notified. Viadock v. Nesbitt Memorial Hospital, 339 Pa.Superior Ct. 437, 489 A.2d 240 (1985); Chiesa v. Fetchko, 318 Pa.Superior Ct. 188, 464 A.2d 1293 (1983), aff'd, 504 Pa. 503, 475 A.2d 740 (1984).
Because DPW was not properly notified of the settlement in this case, the trial court erred in not granting DPW's petition.
Accordingly, we reverse and remand for proceedings not inconsistent with the foregoing opinion. Jurisdiction relinquished.
ORDER
AND NOW, this 17th day of December, 1992, the order of the Court of Common Pleas of Philadelphia County is hereby reversed and the case is remanded for proceedings not inconsistent with the foregoing opinion.
Jurisdiction relinquished.
NOTES
[1] Our scope of review in an appeal from an order of the trial court is limited to a determination of whether constitutional rights were violated, errors of law committed, or whether the action of the trial court demonstrates a manifest abuse of discretion. Department of Public Welfare v. Ward, 108 Pa.Commonwealth Ct. 572, 530 A.2d 145 (1987).
[2] In its appeal to this Court, DPW makes two other arguments: 1) that the trial court erred in ruling that DPW had not met the criteria for opening a settlement; and 2) that the trial court erred in ruling that DPW is barred from raising its claim by the doctrine of laches. Because it is our opinion that the trial court erred in denying DPW's petition as a matter of law, we need not address these arguments.
[3] Sections 1401-1411 of the Public Welfare Code, added by the Act of July 10, 1980, P.L. 493, as amended, 62 P.S. §§ 1401-1411. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261948/ | 861 F.Supp. 363 (1994)
Andre DUCROT and Danille Ducrot dba Le Strand Cafe, et al., [In re: Ampac Cases] Plaintiffs,
v.
MARSHALL & STERLING, INC., Defendant/Third Party Plaintiff,
v.
Lawrence M. NEADLE, Jr. et al., Third Party Defendants.
Civ. Nos. 1991/0257, 1991/0310.
United States District Court, D. Virgin Islands, St. Croix Division.
August 24, 1994.
*364 Richard Bush, Bush & Derr, Tallahassee, FL.
George W. Cannon, Frederiksted, St. Croix, U.S.V.I.
Robert E. Collins, pro se.
John K. Dema, Christiansted, St. Croix, U.S.V.I.
A. Jeffrey Weiss, A.J. Weiss and Associates, St. Thomas, U.S.V.I.
William Kuntz, II, Seward & Kissel, New York City.
Ronald W. Ritchie, Kannenson & Ritchie, Naples, FL.
Thomas Graham III, Wicker, Smith, Blomquist, Tutan O'Hara, McCoy, Graham & Lane, P.A., Ft. Lauderdale, FL.
James S. Haliczer, Cooney, Haliczer, Mattson, Lance, Blackburn, Pettis & Richards, P.A., Ft. Lauderdale, FL.
James H. Isherwood, Isherwood, Burton & Otto, Christiansted, St. Croix, U.S.V.I.
Douglas L. Capdeville St. Croix, U.S.V.I.
Mark Milligan, Christiansted, St. Croix, U.S.V.I.
Stacy L. White, Bryant, White & Associates, Christiansted, St. Croix, U.S.V.I.
Lawrence M. Neadle, Jr., c/o JoAnn Biggs, Miami, FL.
Lee J. Rohn, Christiansted, St. Croix, U.S.V.I.
Donald E. Van Koughnet, Naples, FL.
Thomas E. Scott, Davis, Scott, Weber & Edwards, Miami, FL.
Eric S. Chancellor, Christiansted, St. Croix, U.S.V.I.
Francis A. Dickson, c/o Dichem Corporation, Naples, FL.
Barnard Pattie, Christiansted, St. Croix, U.S.V.I.
Henry L. Feuerzeig, Dudley, Topper and Feuerzeig, St. Thomas, U.S.V.I.
MEMORANDUM AND ORDER
BROTMAN, Senior District Judge, sitting by designation.
The following motions are before the court at this time: (1) Defendant BancFlorida's and Defendant Gillette, Pilon & Richman, P.A.'s ("Gillette, Pilon") motion to cap damages at $700,000; (2) Defendant J.H. Minet Company of Puerto Rico, Inc.'s ("J.H. Minet") partial summary judgment motion as to claims brought against it in the individual actions; (3) Third-Party Plaintiff Marshall & Sterling, Inc.'s ("Marshall & Sterling") and the Government of the Virgin Islands' ("Government") motion to strike BancFlorida's affidavits; and (4) the Government's motion to strike BancFlorida's post-hearing memorandum. On Friday, May 13, 1994, the court heard argument on all the motions except for the motion to strike the post-hearing memorandum.
I. BACKGROUND
The facts of this case are familiar and will only be summarized here. In the fall of 1987, American Property & Casualty Insurance ("AMPAC"), through its president Lawrence M. Neadle, sought a Certificate of Authority from the Virgin Islands' government to write insurance policies. Under Virgin Islands' law, AMPAC was required to have *365 $700,000 in unencumbered assets. In or about October 1987, Naples Federal Savings and Loan Association, now known as BancFlorida, made two loans in the aggregate amount of $700,000 to a Florida corporation, Dichem Corporation ("Dichem"). Dichem, in turn, loaned the funds to AMPAC which utilized the money to purchase CDs from BancFlorida. The CDs were pledged as collateral for the Dichem loans. The bank subsequently agreed to release its collateral hold on AMPAC's CDs when it accepted substitute collateral from Dichem. On January 5, 1988 BancFlorida's vice-president Robert Collins advised the V.I. Division of Banking and Insurance that AMPAC's CDs were unencumbered. On January 8, 1988 AMPAC was granted a license to sell insurance in the Virgin Islands.
Hurricane Hugo struck the islands in September 1989 causing millions of dollars in property damage. AMPAC thereafter became insolvent as a result of claims made against its policies. AMPAC allegedly misrepresented the status of its CDs and wrote policies without maintaining sufficient capital funds or reinsurance.
II. DISCUSSION
A. Motion to Cap Damages
BancFlorida and the individual bank defendants[1], together with Gillette, Pilon, argue that damages should be limited to $700,000, according to the "benefit of the bargain" rule. They argue that the Government of the Virgin Islands would have been entitled to only $700,000 even assuming that the CDs were on deposit without any liens or encumbrances. They also argue that the defendants did not proximately cause the millions of dollars in losses alleged in this case. They rely on a Second Circuit opinion from 1946 in support of their argument that the chain of causation between the alleged fraud and the Hurricane Hugo claimants is too tenuous. Standard Surety & Casualty Co. of N.Y. v. Plantsville Nat. Bank, 158 F.2d 422 (2d Cir.1946), cert. denied, 331 U.S. 812, 67 S.Ct. 1203, 91 L.Ed. 1831 (1947).[2]
In response, Marshall & Sterling and the Government contend that Virgin Islands' law follows Section 549 of the Restatement (Second) of Torts which allows a plaintiff to recover all damages legally caused by fraudulent misrepresentation. They also assert that liability on the part of the bank defendants and other defendants is for jury determination.
Upon review, the bank defendants and the law firm's reliance on the "benefit of the bargain" rule is misplaced. In this diversity case, the appropriate law is the law of the Virgin Islands. Absent local law to the contrary, this court must follow the restatements of law. V.I. CODE ANN. tit. 1, § 4 (Equity 1967 & Butterworth Supp.1993). In this case, Section 549 of Torts 2d applies, as argued by the plaintiffs.[3] The correct measure of damages is either "out-of-pocket" damages or the "benefit of the bargain" rule depending upon which measure more adequately compensates the injured party. See RESTATEMENT (SECOND) TORTS, § 549, cmt. g (1976) ("in occasional cases the out-of-pocket rule will actually be more profitable and satisfactory from the point of view of the plaintiff than the benefit-of-the-bargain rule"). According to Section 549, and case law interpreting *366 it, the goal of awarding damages for fraudulent misrepresentation appears to be to restore the injured party to the position it would have been in had the fraud not been committed. See generally W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 110, at 768 (5th ed. 1984) (discussing the two measures and noting that courts are divided over which is correct). The restatement applies a flexible approach according to which the measure of damages is dictated by the facts of each case. The "out-of-pocket" rule should be applied when the plaintiff has not entered into any direct transaction with the defendant, but has suffered a loss based upon a representation made by a third party. See RESTATEMENT (SECOND) TORTS, § 549, cmt. h (1976).
Regardless of which measure of damages is applied, plaintiffs are entitled to recover consequential or special damages which can be established with reasonable certainty. The issue of whether plaintiffs' damages were proximately caused by defendants' fraudulent conduct must be decided by a jury. Defendants have not cited any controlling case law to support their argument that the chain of causation is too tenuous. The particular facts of this case, in which it is alleged that Larry Neadle and the bank defendants engaged in a series of transactions to defraud the Virgin Islands government into issuing a license to AMPAC, are clearly in dispute. This case is certainly distinguishable from the cases relied on here by defendants. Thus, the applicable law does not require this court to find that defendants are not liable for any damages or that damages must be limited to $700,000. Accordingly, the motion for partial summary judgment will be denied.
B. J.H. Minet's Motion
Defendant J.H. Minet moves for summary judgment as to claims brought against it by individual insureds who procured AMPAC policies through Marshall & Sterling.[4] In sum, these insureds have each made a claim that J.H. Minet negligently failed to truthfully and accurately disclose the reinsurance coverage procured by AMPAC. J.H. Minet argues that individual insureds have no cause of action against a reinsurance broker, such as J.H. Minet. It contends that a reinsurance broker who procures reinsurance for an insurer owes a duty to the insurer, i.e. AMPAC, but not the insured because there is no contractual or otherwise legally cognizable relationship between the insured and J.H. Minet.
In their response, plaintiffs assert that they have a cause of action against J.H. Minet under Virgin Islands' law on the grounds that J.H. Minet negligently represented to AMPAC that it had adequate reinsurance and knew or should have known that the insureds would rely on that representation. The individual insureds contend that J.H. Minet made representations regarding reinsurance to Larry Frey, Marshall & Sterling's president, who in turn made representations to them. (See Pl.'s Resp. to J.H. Minet's Mot. for Summ.J. at 2-3.) Ducrot and the other insureds do not allege, however, that J.H. Minet made representations about AMPAC's reinsurance directly to them.
Plaintiffs argue that Section 552 of the Restatement (Second) of Torts is controlling. This section, entitled "Information Negligently Supplied for the Guidance of Others", provides for liability for anyone who in the course of his business supplies false information for the guidance of others. In summary, plaintiffs argue that J.H. Minet can be held liable to them for making representations which it should have known would affect individual insureds.
At this stage, the court has not been provided with any clear guidance whether Section 552 applies to a reinsurance broker or whether a reinsurance broker may be held liable to an insured at all. J.H. Minet argues *367 that a reinsurer owes no duty to an insured unless the reinsurance contract contains a cut-through endorsement which creates liability on the part of the reinsurer directly to the insured. However, plaintiffs allege that J.H. Minet, as an insurance broker, negligently told Larry Frey of Marshall & Sterling that AMPAC had adequate reinsurance, and that Frey, in turn, conveyed this information to individual insureds.
As a matter of law, the restatement appears to contemplate a cause of action for fraudulent misrepresentation as asserted here. However, the record is not clear as to what specific representations either J.H. Minet or Marshall & Sterling made. Thus, this motion will be denied without prejudice to J.H. Minet's right to renew the motion after further discovery is conducted on these factual issues.
C. Motions to Strike
Marshall & Sterling and the Government filed motions to strike BancFlorida's affidavits submitted in support of its motion to cap damages. Movants contend that these affidavits are not based on personal knowledge as required by Rule 56(e). These motions will be denied as moot since the motion to cap damages is denied as set forth above.
Finally, the Government objects to BancFlorida's post-hearing memorandum filed on or about July 5, 1994. The memorandum includes a thirty-four page brief and two additional affidavits, but was filed almost two months after the hearing on this motion. The Government objects on the grounds that the memorandum is untimely and that no request for additional briefing was made at the hearing. Rule 56(c) provides for the filing of affidavits by an adverse party up to the date of the hearing. The rule makes no provision for filing supporting affidavits after the hearing. In this case, the court did not instruct, nor did the parties even request, any additional briefing or documentation regarding the motion to cap damages. Therefore, the Government's motion to strike will be granted.
III. CONCLUSION
For all these reasons,
It is therefore on this 16th day of August, 1994,
ORDERED that the BancFlorida's and Gillette, Pilon's motions to cap damages be and hereby are denied; and it is further,
ORDERED that J.H. Minet's partial summary judgment motion be and hereby is denied without prejudice; and it is further,
ORDERED that Marshall and Sterling's and the Government's motions to strike BancFlorida's affidavits be and hereby are denied as moot; and it is further,
ORDERED that the Government's motion to strike BancFlorida's post-hearing memorandum and affidavits is granted.
NOTES
[1] The individual defendants are J. Michael Holmes, Andre Delmont, and Donald Zumfeld.
[2] They also argue that the Third Circuit adopted the "benefit of the bargain" rule in B.F. Hirsch v. Enright Refining Co., Inc., 751 F.2d 628 (3d Cir.1984). B.F. Hirsch was decided under New Jersey law, however.
[3] Section 549 entitled "Measure of Damages for Fraudulent Misrepresentation" provides as follows:
(1) The recipient of a fraudulent misrepresentation is entitled to recover as damages in an action of deceit against the maker, the pecuniary loss to him of which the misrepresentation is the legal cause, including
(a) The difference between the value of what he has received in the transaction and its purchase price or other value given for it; and
(b) Pecuniary loss suffered otherwise as a consequence of the recipient's reliance upon the misrepresentation.
(2) The recipient of a fraudulent misrepresentation in a business transaction is also entitled to recover additional damages sufficient to give him the benefit of his contract with the maker, if these damages are proved with reasonable certainty.
[4] J.H. Minet filed its motion in the following cases which have been consolidated for discovery: Caribbean Health and Racquet Club v. M & S, Civ. No. 1991-259; Janeska, Inc. v. M & S, Civ. No. 1993-12; K.R.W., Inc. v. M & S, Civ. No. 1990-202; People's Drug Store v. M & S, Civ. No. 1990-273; Queen's Quarter Associates, Ltd. v. M & S, Civ. No. 1993-13; Antilles Automotive Corp. v. M & S, Civ. No. 1991-252; Simmonds v. M & S, Civ. No. 1991-48; and Le Strand Cafe, Inc. v. M & S, Civ. No. 1991-257. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261951/ | 618 A.2d 488 (1992)
Joseph MONTEITH
v.
JEFFERSON INSURANCE COMPANY OF NEW YORK and Peerless Insurance Company.
No. 91-244.
Supreme Court of Vermont.
October 23, 1992.
Motion for Reargument Denied November 18, 1992.
Motion for Reconsideration Denied December 4, 1992.
Richard H. Saudek of Cheney, Brock & Saudek, P.C., Montpelier, for plaintiff-appellant.
Samuel Hoar, Jr. and Frederick S. Lane III of Dinse, Erdmann & Clapp, Burlington, for defendant-appellee Jefferson Ins. Co. of New York.
David L. Cleary and Ellen J. Abbott of David L. Cleary Associates, Rutland, for defendant-appellee Peerless Ins. Co.
Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and PECK, J. (Ret.), Specially Assigned.
JOHNSON, Justice.
Plaintiff was injured when he was struck by an automobile while riding his motorcycle. He suffered total personal injury damages exceeding $200,000, and recovered only $100,000 from the insurer for the driver of the other vehicle, whose negligence caused the accident. He appeals from a trial court decision holding that two insurers with whom he had policies are not liable for his additional damages under policy provisions covering accidents with underinsured motorists. We reverse.
At the time of the accident, plaintiff had a policy with defendant Jefferson Insurance Company of New York covering his motorcycle and providing $100,000 in uninsured motorist/underinsured motorist (UM/UIM) coverage. Plaintiff also had a policy with defendant Peerless Insurance Company covering plaintiff's automobiles *489 and providing $300,000 of UM/UIM coverage.
Plaintiff brought a declaratory judgment action, claiming that both Jefferson and Peerless were obligated under their respective policies to pay him the difference between the damages he suffered and the amount he recovered from the underinsured tortfeasor, up to the maximum amount of $400,000 available to him under the two policies.
Defendant Peerless moved for summary judgment on the grounds that plaintiff's policy contained an explicit provision excluding from coverage any injuries sustained while "occupying ... any motor vehicle owned by you ... which is not insured for coverage under this policy." Defendant Jefferson moved for summary judgment on the grounds that plaintiff was covered for only $100,000 under his policy with Jefferson, an amount already recovered by plaintiff from the tortfeasor, thus discharging Jefferson's duty to plaintiff. Jefferson further argued that its policy could not be "stacked" with the Peerless policy to create a total available coverage amount of $400,000, because the exclusion provision of the Peerless policy barred any recovery against Peerless.
In opposing defendants' joint motion for summary judgment, plaintiff argued that the tortfeasor was underinsured under 23 V.S.A. § 941(f), thus allowing a claim against Peerless, whose $300,000 UIM limit was clearly in excess of the $100,000 maximum recovery limit of the tortfeasor's insurer, as well as against Jefferson, since the total underinsurance coverage available under the two policies, pursuant to § 941(f), was $400,000. Plaintiff claimed that he should be permitted to "stack" the UIM coverage of the two policies at issue.
The trial court granted Peerless's summary judgment motion, holding that the exclusion provision contained in its policy barred recovery for injuries suffered by plaintiff because his motorcycle was a motor vehicle owned by plaintiff and not covered under the Peerless policy. The court also granted Jefferson's summary judgment motion, holding that its UIM coverage limit of $100,000 matched the $100,000 recovery limit of the tortfeasor's insurance, thus eliminating any claim of underinsurance. The present appeal followed.
I.
The focus of dispute with regard to the Peerless policy is a clause providing in pertinent part:
We do not provide Uninsured Motorists Coverage[1] for, ... bodily injury sustained by any person:
1. While occupying ... any motor vehicle owned by you ... which is not insured for this coverage under this policy.
Plaintiff does not dispute that this clause excludes coverage, but argues that it violates Vermont law. We agree. 23 V.S.A. § 941(a) (emphasis supplied) provides, in pertinent part, that:
No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein, or supplemental thereto, for the protection of persons insured thereunder who are legally entitled to recover damages, from owners or operators of uninsured, underinsured or hit-and-run motor vehicles, for bodily injury, sickness or disease, including death, and for property damages resulting from the ownership, maintenance or use of such uninsured, underinsured or hit-and-run motor vehicle.
Referring to § 941(a), we stated in Sanders v. St. Paul Mercury Insurance Co., 148 Vt. 496, 498-99, 536 A.2d 914, 915-16 (1987) (citations omitted) (emphasis supplied):
This statute protects insured motorists from uninsured, financially irresponsible *490 drivers. Recovery is not limited to situations involving the motor vehicle of the insured. Though no cases have reached this Court on the question, the language of § 941 extends coverage to insured persons wherever they may be, provided that they are injured by an uninsured motorist, and that is the interpretation of similar statutes elsewhere. No policy can be issued which reduces the amount of coverage mandated by statute.
The essence of UM/UIM coverage under § 941 is its portability. The statute does not allow insurers to condition coverage on the location of the insured nor the insured's status as a motorist, a passenger in a private or public vehicle, or as a pedestrian. In the language of § 941(a), UM coverage is designed "for the protection of persons," not vehicles. This reading is consistent with the basic philosophy of the statute, which is to put the insured in the same position as if the negligent driver had been as responsible as the insured in obtaining liability insurance. As we said in Muir v. Hartford Accident & Indemnity Co., 147 Vt. 590, 593, 522 A.2d 236, 238 (1987), "UM coverage protects those insured `against the unfortunate hazard presented by an injury inflicted in an accident with an irresponsible operator who is uninsured or has fled the scene.'" (quoting Rhault v. Tsagarakos, 361 F.Supp. 202, 205 (D.Vt.1973)).
Had plaintiff in this case been a pedestrian, and had the driver causing the accident been uninsured, there would be no question that plaintiff could have obtained $300,000 in UM recovery from Peerless, assuming damages in that amount. Similarly, if plaintiff had been a passenger in an uninsured vehicle in collision with a negligent driver who was also uninsured, there would be no question about a UM recovery from Peerless, up to $300,000. It follows that Peerless cannot deny UM coverage where an accident occurs while the insured is driving a vehicle owned by the insured but not insured by Peerless. Allowing that kind of exclusion would defeat the broad, remedial purpose of UM coverage just as surely as if the company attempted to deny coverage if the insured were walking down the street or riding in a bus when an accident occurred. To the extent a motorist is underinsured, the same principle applies.
Courts in other jurisdictions are divided on the validity of an exclusion to coverage where a named insured operates a vehicle owned but not insured under the policy, but many courts have held that such clauses violate state uninsured motorists statutes and are therefore invalid. See, e.g., Mullis v. State Farm Mutual Auto. Ins. Co., 252 So.2d 229, 237-38 (Fla.1971); Barnett v. Crosby, 5 Kan.App.2d 98, 99-100, 612 P.2d 1250, 1252 (1980); Earl v. Commercial Union Ins. Co., 391 So.2d 934, 938-39 (La. Ct.App.1980); Nygaard v. State Farm Mutual Auto. Ins. Co., 301 Minn. 10, 18-19, 221 N.W.2d 151, 157 (1974); Jacobson v. Implement Dealers Mutual Ins. Co., 196 Mont. 542, 545-47, 640 P.2d 908, 910-12 (1982); Beek v. Ohio Casualty Ins. Co., 135 N.J.Super. 1, 5-6, 342 A.2d 547, 549 (App.Div.1975), aff'd, 73 N.J. 185, 373 A.2d 654 (1977), cited with approval in Sanders, 148 Vt. at 503, 536 A.2d at 918. But see Corso v. State Farm Mutual Auto. Ins. Co., 668 F.Supp. 364, 372-73 (D.Del. 1987), aff'd, 838 F.2d 1205 (3d Cir.1988); Brackett v. Middlesex Ins. Co., 486 A.2d 1188, 1190-91 (Me.1985).
Peerless argues that the language of 23 V.S.A. § 800(a), that "[n]o owner or operator of a motor vehicle ... shall operate... the vehicle" without required insurance, requires each vehicle owned by an insured to have its own insurance. This, in turn, limits UM/UIM coverage to each vehicle's individual policy. To hold otherwise, Peerless argues, could result in coverage of an uninsured vehicle, contrary to the basic intent of the Financial Responsibility and Insurance statute (23 V.S.A. ch. 11).
We disagree. The point is not that Peerless is made to cover an uninsured vehicle under plaintiff's theory, but rather that it is barred from writing exceptions to a clear statutory requirement that it cover its insureds wherever they become victims of an uninsured or underinsured motorist. The same proposition was well stated by the court in Nygaard: "If our interpretation of *491 the intent of the uninsured-motorist statute is correct, little room is left for an insurer unilaterally to narrow the geographic scope of the statutorily required coverage." 301 Minn. at 19, 221 N.W.2d at 157.
Peerless mistakenly relies on Sanders to support its argument. In Sanders we held that the insurer could write and enforce an intrapolicy stacking provision, but we did not extend our rationale to interpolicy stacking provisions. 148 Vt. at 503, 536 A.2d at 918. We thus distinguished between an insurer's power to define the scope of UM coverage within a single policy that did cover multiple vehicles under separate endorsements, and the absence of an insurer's power to delimit or affect UM coverage in policies written by other insurers. Here, plaintiff's motorcycle was not insured by Peerless, and plaintiff's claim is based, not on Peerless's policy covering his automobiles (which purported to exclude UM/UIM coverage for owned-but-not-insured vehicles), but rather on the inadequacy of another insurance policy, that of the negligent driver.
In sum, the clause in the Peerless policy denying UM coverage for accidents occurring while the insured is occupying a vehicle owned by him but not insured by the company is inconsistent with Vermont law and is unenforceable.
II.
We next consider whether plaintiff should be allowed to "stack"[2] the UM coverage of the Peerless policy ($300,000) and the UM coverage of the Jefferson policy ($100,000) to determine whether the tortfeasor was underinsured. Plaintiff argues that § 941(f) mandates consideration of all UM coverage "applicable," i.e., all policies providing the insured with UM coverage, in determining initially whether a motorist is underinsured. The legislature has mandated that insurers provide UM/UIM coverage as part of every policy of insurance issued in this state. Section 941(f) defines underinsurance as follows:
(f) For the purpose of this subchapter, a motor vehicle is underinsured to the extent that its personal injury limits of liability at the time of an accident are less than the limits of uninsured motorists coverage applicable to any injured party legally entitled to recover damages under said uninsured motorist coverage.
(Emphasis added.) In view of our holding in section I that the UM/UIM coverage is portable and attaches to the insured rather than to the vehicle, both the Peerless and the Jefferson policies apply to plaintiff's injuries, and the total UIM coverage is therefore $400,000.
Jefferson argues, however, that the limits of its policy should be considered in isolation, apart from any other insurance available. The clause of the policy on which Jefferson relies (its so-called "anti-stacking" provision) provides as follows:
"Uninsured motor vehicle" means a land motor vehicle of any type:
. . . .
2. To which a liability bond or policy applies at the time of the accident. In this case its limit of liability must be less than the limit of liability for this coverage.
Since Jefferson's UM coverage of $100,000 was equal to the liability limits of the tortfeasor, Jefferson argues that it owes nothing. Moreover, Jefferson argues that its antistacking provision is not the kind of "excess-escape" clause that was found to violate § 941 in Goodrich v. Lumbermens Mutual Casualty Co., 423 F.Supp. at 843, because it does not seek to reduce statutorily mandated benefits, but rather defines "uninsured motor vehicle" in an acceptable manner.
The interpretation of the clause Jefferson urges us to adopt, however, would reduce the benefits required under law, *492 whatever its original purpose. By limiting the situations in which its underinsured motorist's coverage will apply, Jefferson has effectively removed its policy as one "applicable" to the insured, despite the clear language of § 941(f) defining UIM as including all applicable UM coverage. Giving effect to Jefferson's anti-stacking clause violates the plain language of the statute and undercuts the policy and purpose of UM/UIM statutes.
The rationale for uninsured motorist coverage is "to permit the insured injured person the same recovery which would have been available to him had the tortfeasor been insured to the same extent as the injured party." Connolly v. Royal Globe Ins. Co., 455 A.2d 932, 935 (Me.1983). As the court said in Beek:
[T]he requirement for the inclusion of UM coverage applies to every policy issued in this State and the statute contains no suggestion that relief from this obligation is to be implied when a person owning two vehicles has purchased two policies of insurance from two different carriers.
135 N.J.Super. at 5, 342 A.2d at 549.
Courts considering the question have generally supported the right of an insured to stack multiple policies of UM coverage owned by the insured. State Farm Mut. Auto. Ins. Co. v. Hancock, 164 Ga.App. 32, 32-33, 295 S.E.2d 359, 360 (1982); Connolly, 455 A.2d at 935; American Motorist Ins. Co. v. Sarvela, 327 N.W.2d 77, 79 (Minn.1982); Shepherd v. American States Ins. Co., 671 S.W.2d 777, 780 (Mo.1984); Beek, 135 N.J.Super. at 5-6, 342 A.2d at 549; Employers' Fire Ins. Co. v. Baker, 119 R.I. 734, 747-48, 383 A.2d 1005, 1009-10 (1978); see also Barnett v. Crosby, 5 Kan.App.2d at 98, 612 P.2d at 1250 (court recognizes that injured motorcyclist could have stacked UM provisions in car and motorcycle policies, had he purchased UM coverage on motorcycle). But see Mitchell v. State Farm Mutual Auto. Ins. Co., 227 Va. 452, 458-59, 318 S.E.2d 288, 292 (1984) (words "this insurance" interpreted to mean that insurance coverage limits refer only to policy to which attached, and that each policy must be considered independently to determine whether tortfeasor is underinsured).
We are persuaded that, to effectuate the purposes of Vermont's uninsured motorist statute, it is inconsistent to permit an insurer to limit its liability for mandatory UM coverage by reliance on antistacking provisions. Although we implied some dis-approval of interpolicy anti-stacking provisions in Sanders, 148 Vt. at 503, 536 A.2d at 918, we now explicitly hold that interpolicy, antistacking provisions violate the terms of § 941 and will not be enforced.
There is no rationale for treating UIM coverage differently from UM coverage with respect to stacking. UIM statutes were widely adopted following recognition by many states that failure to consider the underinsured motorist often led to anomalous and unjust results. As the Georgia court held in State Farm Mutual Automobile Insurance Co. v. Hancock:
Thus, while a motorist insured over the minimum coverage could obtain full redress to the maximum of his policies when the tortfeasor was uninsured, he was denied any recovery of excess damages through his own coverage when the tortfeasor was only minimally insured. This created the anomolous situation whereby a prudent motorist with maximum insurance coverage was actually penalized if injured by a tortfeasor who was in compliance with the minimum no fault coverage requirements.
164 Ga.App. at 33, 295 S.E.2d at 360. The purpose of the legislation that ensued in Georgia and other states, including Vermont, was to place UM and UIM cases on the same equitable footing, providing the prudent motorist with maximum insurance coverage with the same remedy against an underinsured motorist as against one that was uninsured. See Comment, Stacking of Uninsured Motorist Coverage, 49 Mo. L.Rev. 571 (1984). As we said in Webb v. United States Fidelity & Guaranty Co., ___ Vt. ___, ___, 605 A.2d 1344, 1347 (1992) (citations omitted):
Vermont's statutory underinsured motorist provision provides what is sometimes *493 referred to as "gap" coverage, because it "fills the `gap' between the tortfeasor's liability coverage and the injured party's underinsured motorist coverage." North River Ins. Co. v. Tabor, 934 F.2d 461, 464 (3d Cir.1991). Gap coverage "places the insured party in the same position that he would have been in had the tortfeasor carried liability insurance in the amount of the insured's underinsured motorist policy limit." Id.
Against the backdrop of these policy considerations, Jefferson's argument that it should be allowed to cordon off its UM/ UIM insurance and measure underinsurance by comparing only its coverage with the liability limit of the tortfeasor's vehicle offends the basic concept of UM/UIM coverage in two ways. First, it fails to provide "the insured injured person the same recovery which would have been available to him had the tortfeasor been insured to the same extent as the injured party," Connolly, 455 A.2d at 935, and second, it limits plaintiff to a smaller recovery against an underinsured motorist than he would have recovered from an uninsured motorist. Id.
An examination of the facts before us illustrates the second of these points. If the tortfeasor in the present case had been an uninsured motorist, plaintiff's maximum recovery (assuming damages equalled or exceeded such amount) would have been $400,000$100,000 under the Jefferson policy and $300,000 under the Peerless. Under Jefferson's theory,[3] plaintiff would be penalized $100,000 for having an accident with an underinsured, rather than uninsured, motorist. This would violate the purpose of § 941(f).
Therefore, we hold that plaintiff may stack the UM/UIM provisions of the Jefferson and Peerless policies, and that insurance policies purporting to prohibit stacking violate the statutory language and underlying purpose of Vermont's UM/UIM statute.
Reversed and remanded.
NOTES
[1] "Uninsured motor vehicle" is defined in the policy as "a land motor vehicle ... of any type:
2. To which a liability bond or policy applies at the time of the accident but its limit of liability is less than the limit of liability for this coverage."
[2] "Stacking" refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy would be inadequate. See Goodrich v. Lumbermens Mutual Casualty Co., 423 F.Supp. 838, 842 (D.Vt.1976); Blakeslee v. Farm Bureau Mutual Ins. Co., 388 Mich. 464, 473, 201 N.W.2d 786, 790 (1972).
[3] I.e., the theory that plaintiff was not underinsured as to the Jefferson policy because the amount of the tortfeasor's insurance equalled the amount of Jefferson's UM/UIM coverage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261952/ | 861 F.Supp. 1252 (1994)
Dona W. HOROWITZ, et al., Plaintiffs,
v.
FEDERAL KEMPER LIFE ASSURANCE CO., Defendant.
Civ. A. No. 93-192.
United States District Court, E.D. Pennsylvania.
August 30, 1994.
*1253 James E. Beasley and Barbara R. Axelrod, Beasley, Casey, Colleran, Erbstein, Thistle & Kline, Philadelphia, PA, for plaintiffs.
Dean F. Murtagh and John P. Shusted, German, Gallagher & Murtagh, Philadelphia, PA, for defendant.
MEMORANDUM
EDUARDO C. ROBRENO, District Judge.
This case stems from the decision of defendant Federal Kemper Life Assurance Company ("Federal Kemper") not to pay the proceeds of a million dollar life insurance policy, taken out by Dr. Leonard N. Horowitz a few months before his death. Federal Kemper contends that Dr. Horowitz committed fraud by failing to disclose in an amendment to his application that he was dying of cancer. Plaintiff Dona Horowitz, Dr. Horowitz's wife and the named beneficiary under the policy, denies that fraud was committed and contends that, in any event, Federal Kemper is precluded as a matter of law from relying upon the alleged fraudulent amendment by its failure to comply with the Pennsylvania insurance statute that requires that the amendment be physically attached to the policy.
Plaintiff seeks a million dollars in proceeds under the policy, attorneys' fees, and treble damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (the "UTPCPL") as well as punitive damages, costs, and attorneys' fees for alleged bad faith on the part of Federal Kemper in denying payment under the policy.
Before the Court are cross-motions for summary judgment. The Court finds that there is no genuine issue of material fact that Frederick Raffetto, who acted as Federal Kemper's agent in the transaction with Dr. Horowitz, failed to attach the amendment signed by Dr. Horowitz to the policy. Based on this uncontroverted fact, the Court concludes that Federal Kemper is barred as a matter of law from interposing as a defense to the claim any fraudulent misrepresentations contained in the application, amendment, or policy. The Court also finds that plaintiff is not entitled to recover on her bad faith claim because the evidence of Dr. Horowitz's fraud provided Federal Kemper with a reasonable basis for contesting the claim. Finally, the Court finds that plaintiff has no claim under the UTPCPL because that statute does not provide a cause of action for an insurance company's refusal to pay an insurance claim.
I. BACKGROUND
On September 26, 1991, at the suggestion of Frederick Raffetto, an independent insurance agent, plaintiff's deceased husband, Dr. Leonard N. Horowitz, applied to defendant for a $1,000,000 life insurance policy that named the plaintiff as the beneficiary. On that same day, Mr. Raffetto helped Dr. and *1254 Mrs. Horowitz to complete the application. Both Dr. and Mrs. Horowitz signed Part B of the application which stated: "I (we) promise to tell the Company of any change in the health or habits of the Proposed Insured that occurs after completing this application, but before the policy is delivered to me (us) and the first premium is paid." Mr. Raffetto took the application with him when he left the Horowitz's home.
On October 3, 1991, Federal Kemper arranged to have Carol Coady, a registered nurse, examine Dr. Horowitz. During the examination Ms. Coady checked Dr. Horowitz's vital signs, took a urine sample, performed a blood vena puncture and centrifuged his blood for further testing by a commercial laboratory. As part of the examination, Dr. Horowitz completed Part F of the application which was a questionnaire asking for information regarding his health and past medical history. In completing this questionnaire, Dr. Horowitz failed to disclose that he had seen a gastroenterologist, Anthony DiMarino, M.D., on a few occasions beginning in 1986-87, and that Dr. DiMarino had performed some medical tests on Dr. Horowitz relating to his intestines and colon.
Although the adenocarcinoma that would eventually prove fatal to Dr. Horowitz was present on October 3, 1991, Dr. and Mrs. Horowitz were unaware of it and the examination performed by Ms. Coady failed to detect it. Sometime around Thanksgiving 1991, Dr. Horowitz began to have difficulty swallowing and felt like he had heartburn. On December 4, 1991, he underwent a CT scan and an endoscopy with biopsy. The next day, December 5, he was diagnosed as having terminal adenocarcinoma.
The day after he received the diagnosis, December 6, 1991, Dr. and Mrs. Horowitz went to Hahnemann University Hospital to see the physician in charge of the cancer department. They were told that the cancer had metastasized to Dr. Horowitz's liver and that he had from 5½ to 6 months to live. During the next week, Dr. Horowitz consulted Dr. Kevin Fox, Dr. Dougherty from the Sloan-Kettering Cancer Institute, and Dr. McDonald from Temple University Hospital to obtain second, third, and fourth opinions on the diagnosis. All three doctors confirmed the original diagnosis.
On December 16, 1991, Dr. Horowitz had a surgical procedure to insert a permanent catheter for purposes of administering chemotherapy and his chemotherapy treatments began. On the morning of December 20, 1991, Dr. and Mrs. Horowitz met with Dr. McDonald at Temple University Hospital and the diagnosis was reconfirmed. Later that day, Mr. Raffetto visited Dr. Horowitz's office to deliver the Federal Kemper policy.[1] At this time, both Dr. and Mrs. Horowitz signed an amendment of application which provided in pertinent part as follows:
The above noted application of Federal Kemper Life Assurance Company dated September 26, 1991 is amended as follows:
THE REPRESENTATIONS MADE IN THE APPLICATION ARE STILL VALID AS OF THE DATE IN THIS AMENDMENT, AND THE PROPOSED INSURED HAS NOT HAD ANY ILLNESS OR INJURY, AND HAS NOT CONSULTED, OR RECEIVED MEDICAL ADVICE OR TREATMENT FROM, ANY PHYSICIAN OR OTHER MEDICAL PRACTITIONER SINCE THE DATE OF APPLICATION EXCEPT AS FOLLOWS:
It is agreed that this amendment is part of the application and of the policy issued, and it will be binding on any person who will have any interest under the policy. This amendment, and the policy, will not take effect until signed as required below. It is agreed that no coverage is in effect if any changes are made to the above statements on this form.
Def.'s Summ. J. Mot., Ex. I (emphasis in original).
Federal Kemper and Mrs. Horowitz disagree about how Mr. Raffetto delivered the policy and amendment to her husband and her on December 20, 1991. According to Mrs. Horowitz, Mr. Raffetto handed the amendment to her husband as a separate piece of paper which he then took with him *1255 after Dr. Horowitz had signed it. Federal Kemper contends, however, that Mr. Raffetto unstapled the amendment from the policy in the presence of Dr. and Mrs. Horowitz and then placed a copy of it inside the sleeve of a pocket binder that also contained the policy and gave the entire binder to Dr. Horowitz. Before Mr. Raffetto left Dr. Horowitz's office that day, Dr. Horowitz gave him a check for the first premium on the policy.
The evidence is uncontradicted that, although Dr. and Mrs. Horowitz had read, understood and signed the amendment, they did not inform Mr. Raffetto on December 20 of Dr. Horowitz's terminal diagnosis or of his consultations with Drs. Dougherty, McDonald, and Fox. Def.'s Summ. J. Mot., Ex. F at 77-80, 84-87, 98. The evidence is also uncontradicted that Mrs. Horowitz understood that she was bound by Part B of the September 26 application to inform Federal Kemper of her husband's terminal diagnosis. Id. at 100-102.
Dr. Horowitz died on May 21, 1992. In a letter dated September 25, 1992, to Frederick Hanselman, a lawyer for Dr. Horowitz's estate, Federal Kemper refused to pay the proceeds of the policy on the basis of Dr. Horowitz's misrepresentations. Mrs. Horowitz filed this lawsuit on December 16, 1992, in the Montgomery County, Pennsylvania Court of Common Pleas. The case was removed to this Court on January 14, 1993. After completing discovery, the parties filed cross-motions for summary judgment.
II. DISCUSSION
A. Subject Matter Jurisdiction
The Petition for Removal that Federal Kemper filed on January 14, 1993, contained the following pertinent allegations:
6. Petitioner herein is a corporation organized under the laws of the State of Illinois and has its principal place of business in the State of Illinois and is a citizen of Illinois.
7. Plaintiff Dona Horowitz is a resident of the Commonwealth of Pennsylvania, residing by her own admission at 808 Edwin Lane, Bryn Mawr, Pennsylvania 19010.
8. Plaintiff Alfred Camner is a resident of the State of Florida residing by his own admission at 6855 S.W. 101 Street, Miami, Florida 33156.
9. Plaintiffs' Complaint seek [sic] payment of proceeds under a life insurance policy in an amount of $1 million dollars; therefore, the amount in controversy exceeds $50,000.00.
10. This Honorable District Court would have had original jurisdiction, premised upon a diversity of citizenship, pursuant to 28 U.S.C. Section 1332(a).
See Petition for Removal, ¶¶ 6-10 (emphasis added).
It is well-settled that an allegation of residence alone is insufficient to show the existence of diversity jurisdiction. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792, n. 20 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir.1972). In the present case, while the removal petition alleged the correct legal basis for diversity of citizenship, see 28 U.S.C. § 1332(a), it incorrectly predicated the allegation on the "residency" and not the "citizenship" of the parties. Upon review of the removal petition, the Court sua sponte issued an Order directing the plaintiffs to show cause why Federal Kemper should not be allowed to amend the removal petition to plead the missing allegations of citizenship. In response, Federal Kemper filed an Amended Petition for Removal (docket no. 37) that alleged that "[u]pon information and belief, it is averred that plaintiff Dona Horowitz is a citizen, as well as a resident, of the Commonwealth of Pennsylvania and that the plaintiff Alfred Camner is a citizen, as well as a resident, of the State of Florida." Id. at ¶ 5. Mrs. Horowitz now seeks to remand the case to state court. If the Court allows the petition to be amended, the case will proceed in the federal forum. Otherwise, the case must be remanded to state court.[2]
*1256 It has long been the law that a federal district court has the power to grant leave to amend a removal petition when the petition fails to allege the citizenship of one of the parties. See Kinney v. Columbia Savings & Loan Ass'n., 191 U.S. 78, 24 S.Ct. 30, 48 L.Ed. 103 (1903). In Kinney, plaintiffs, who were citizens of Utah, brought suit against the defendant, a Colorado corporation, in Utah state court seeking the cancellation of a deed of trust. The defendant removed the action to the federal court for the district of Utah. It failed, however, to allege the plaintiffs' citizenship in the removal petition. The plaintiffs moved to remand the case to state court, but the district court denied the motion and allowed the removal petition to be amended. The Supreme Court affirmed. The Court found that since it was apparent from the removal petition and the deed of trust that plaintiffs were Utah citizens and that there was diversity of citizenship at the time the lawsuit was filed, it was proper to allow the defendant to amend the removal petition to correct the defect. Id. at 83-84, 24 S.Ct. at 32-33. While the Third Circuit has not been confronted with this issue, a number of other Circuit Courts of Appeal have recognized the continuing viability of the Kinney decision.[3]
In the present case it is also apparent from the pleadings that diversity did, in fact, exist at the time the complaint was filed. Mrs. Horowitz alleged in her complaint that she was a resident of Pennsylvania and that Mr. Camner was a resident of Florida. See Complaint ¶¶ 1-2. Allegations of a party's residence are prima facie evidence of that party's citizenship. See Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir.1972). In fact, Mrs. Horowitz has not disputed this prima facie evidence. The Court therefore finds that since it can be determined from the pleadings that there was complete diversity when the suit was filed, Federal Kemper may amend its removal petition to plead the citizenship of the plaintiffs.[4]
*1257 Mrs. Horowitz argues that Judge Ludwig's decision in Fiorentino v. Huntingside Associates, 679 F.Supp. 3 (E.D.Pa.1987), directing a remand to the state court, is controlling here. The Court disagrees. The Fiorentino decision is distinguishable because in that case the complaint averred that the plaintiffs were residents of Pennsylvania and that the defendant, a limited partnership, had its principal place of business in Philadelphia. Therefore, unlike this case, it was not possible from the face of the complaint to conclude that the parties were of diverse citizenship.[5]
The Court concludes that Federal Kemper's August 11 amendment of its removal petition should be allowed and, therefore, that the Court has subject matter jurisdiction to hear this case.
B. Standard for Summary Judgment
Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Court must accept the non-movant's version of the facts as true, and resolve conflicts in the non-movant's favor. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). The moving party bears the initial burden of pointing out the absence of genuine issues of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), but once it has done so, the non-moving party cannot rest on its pleadings, see Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with facts showing that a genuine issue exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).
C. Plaintiff's Claims
Plaintiff's complaint states three causes of action. In Count I she alleges that Federal Kemper violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law, Pa.Stat.Ann., tit. 73, § 201-1 201-9.2 (1968) (amended 1976), and she seeks treble damages, costs, and attorneys' fees. In Count II she alleges that Federal Kemper acted in bad faith in violation of 42 Pa.Cons. Stat.Ann. § 8371 (1990), and she seeks the proceeds of the policy, interest, punitive damages, *1258 costs, and attorneys' fees. In Count III she alleges that Federal Kemper breached their contract and she seeks the proceeds of the policy, incidental and consequential damages, interest, costs, and attorneys' fees. The Court will consider plaintiff's arguments in the order she presents them in her motion and accompanying brief.
1. Breach of contract (count III)
Plaintiff's first argument is that Mr. Raffetto's alleged failure to deliver the December 20, 1991 amendment to her husband and her as an attachment to the policy precludes Federal Kemper from asserting as a defense any of the misrepresentations made by Dr. Horowitz in either the application or the amendment. The parties disagree as to how Mr. Raffetto delivered the amendment to Dr. and Mrs. Horowitz on December 20, 1991. Since Federal Kemper is the non-moving party, the Court will accept its version of the event as true and will resolve all factual conflicts in its favor.
Federal Kemper alleges that when Mr. Raffetto went to see Dr. Horowitz on December 20, 1991, the amendment in question was "stapled to the policy. Solely in order to facilitate the signing of the amendments, [Mr. Raffetto] detached them from the policy in the presence of Dr. Horowitz and Mrs. Horowitz." Def.'s Summ. J. Mot., Ex. R (emphasis added). Federal Kemper further alleges that "[a]fter both Dr. and Mrs. Horowitz signed both amendments, [Mr. Raffetto] put one of the originals inside a sleeve in the pocket binder with the insurance policy on top of the amendment and gave the entire binder to Dr. Horowitz." Id. The legal effect of Mr. Raffetto's undisputed failure to reattach the amendment to the policy at the time of delivery is the crucial question in the case.
The parties agree that Pennsylvania law applies. As a federal court sitting in a diversity case, this Court is required to apply the same substantive law as would be applied by a Pennsylvania court. See Erie Railroad Company v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). This case is controlled by the Insurance Act of 1921, Pa.Stat.Ann., tit. 40, § 441 (1921), which establishes uniform rules for determining whether a document may be considered part of an insurance policy. Section 441 provides in pertinent part that:
All insurance policies ... in which the application of the insured ... form[s] part of the policy or contract between the parties thereto, or ha[s] any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application as signed by the applicant, or the constitution, by-laws, or other rules referred to; and unless so attached and accompanying the policy, no such application, constitution or by-laws, or other rules shall be received in evidence in any controversy between the parties to, or interested in, the policy ...[6]
The Pennsylvania Supreme Court long ago settled the interpretive issue of what the word "attached" means in the context of Section 441. The rule that has emerged from the two leading cases is that, if an insurance company fails to physically attach the application (or any amendments) to the policy at the time it is delivered, it is barred from asserting as a defense any fraudulent misrepresentations contained in the application or amendments. See Sandberg v. Metropolitan Life Ins. Co., 342 Pa. 326, 20 A.2d 230, 231 (1941); Frost v. Metropolitan Life Ins. Co., 337 Pa. 537, 12 A.2d 309, 311 (1940).
*1259 In Sandberg v. Metropolitan Life Insurance Co., 342 Pa. 326, 20 A.2d 230, 231 (1941), the plaintiff made a written application to the defendant for a "whole life policy" of insurance at ordinary premium rates. The defendant refused to issue the policy at the ordinary rates, but instead offered to issue it at intermediate rates. The plaintiff agreed to the intermediate rates and executed in writing on one of defendant's forms an amendment to the application where he changed the "plan of insurance to whole life intermediate rates." Id. The policy was then issued and the plaintiff paid the first premium. Eight days later, the plaintiff died and defendant refused to pay the claim, alleging that the plaintiff had made fraudulent statements in his application. The application containing the alleged fraudulent statements was attached to the policy, but the amendment to the application was not.
The Court held that since the amendment was not attached, both the application and the amendment had to be excluded from evidence. In explaining its decision, the Court stated:
And that this is a salutary law is evident when it is realized what injustice might result if it were held that only that part of the application need be attached upon which defendant wishes to predicate its defense, since, for example, an unattached part might easily explain apparently fraudulent statements made in the attached part. The insured or beneficiary is entitled to have the whole application before him, if any part of it is to be used against him as a defense ... Since it was not attached to the policy, as required by the Act of 1921, which is mandatory in its requirement, no other part of the application may be considered as part of the contract ... If the company has suffered an unnecessary loss it has resulted solely from its own negligence.
Id. (emphasis added).
Federal Kemper argues that the statutory objectives of Section 441 were satisfied when Mr. Raffetto placed a copy of the amendment inside the sleeve of the pocket binder that contained the policy (rather than attaching it) and left the pocket binder with Dr. and Mrs. Horowitz. The Pennsylvania Supreme Court has previously rejected this argument in Frost v. Metropolitan Life Insurance Co., stating:
[W]ould it not require that the plain meaning of the word `attached' be distorted in order to find that [the amendment] had been attached to the policy by merely folding it and placing it in the policy? ... The law, in justice to all insurers, directs all companies to attach to their policies a copy of the application. Failing in this, a penalty is imposed.
337 Pa. 537, 12 A.2d 309, 311 (1940).
In the same vein, Federal Kemper points for support to language contained in Syme v. Bankers National Life Insurance Co., 393 Pa. 600, 144 A.2d 845 (1958), a case applying Section 441, but not dealing with the attachment issue, where the Pennsylvania Supreme Court stated that "[t]he general intent [of Section 441] was to keep these statements before the eyes of the insured, so that he might know his contract, and if it contained errors, have them rectified before it became too late." Id. 144 A.2d at 849. Federal Kemper contends that the legislature's intent is satisfied if all the documents are kept before the policy-holder at the time of delivery. The Court finds that Syme does not control the present case for two reasons. First, it is distinguishable because it does not deal with the attachment issue. Second, the Pennsylvania Supreme Court has made it clear that the legislative intent is satisfied only through physical attachment of the relevant documents to the policy at the time of delivery. See Sandberg, 20 A.2d at 231; Frost, 12 A.2d at 311.
Federal Kemper also contends that this Court "relaxed" Section 441's attachment requirement in Ostrov v. Metropolitan Life Insurance Co., 260 F.Supp. 152, 159 (E.D.Pa. 1966). This argument is incorrect for several reasons. First, a federal court sitting in diversity may not substitute its own interpretation of a state statute and "relax" the mandates of the state's highest court. See Erie, 304 U.S. at 78, 58 S.Ct. at 822 ("Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state. *1260 And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern ... And no clause in the Constitution purports to confer [the power to declare substantive rules of common law applicable in a state] upon the federal courts."). Second, even if this Court had the power to diverge from the Pennsylvania Supreme Court's interpretation of Pennsylvania law, it did not do in the Ostrov case what defendant claims it did. In Ostrov, Judge Higginbotham ruled that Section 441 did not preclude an insurer from incorporating by reference certain application documents that were not signed by the insured. Id. at 157-58. This holding has no bearing on the statute's attachment requirement. In fact, later in the opinion, Judge Higginbotham recognized the very rule that defendant argues against: "The failure to attach this amendment would, of course, preclude any of the application documents from being introduced into evidence." Id. at 163. Finally, perhaps the most practical reason why defendant's reliance on the Ostrov decision is misplaced is that it was vacated by the Third Circuit, see Ostrov v. Metropolitan Life Insurance Co., 379 F.2d 829 (3d Cir.1967). In vacating the decision, however, the Third Circuit agreed with Judge Higginbotham that Section 441 "requires that any and all applications `as signed by the applicant' be attached to the policy itself." Id. at 834 (quoting § 441).[7]
Federal Kemper cites three cases, in addition to Ostrov, to support its argument that the Section 441 attachment requirement is not absolute. The Court finds all three cases to be distinguishable. In Prudential Insurance Co. of America v. Pagano, 407 Pa. 473, 181 A.2d 319 (1962), the Pennsylvania Supreme Court ruled that an insurance company had complied with Section 441 where the insured executed two "Part II's" of an application that were virtually identical and the insurance company attached only one. The present case is distinguishable in that Dr. Horowitz executed only one amendment and the one amendment was not attached to the policy.
In Tables v. Metropolitan Life Insurance Co., 202 F.Supp. 547 (W.D.Pa.1962), the insurance company issued two policies to the plaintiff at two different times. The application for the second policy had a clause that incorporated by reference the first application. The plaintiff moved for judgment on the pleadings, arguing that the failure to attach both applications prohibited the company from relying on either application for its fraud defense. The court denied the motion, finding that there was an issue of fact; however, in denying the motion, the court recognized the very rule that Federal Kemper is arguing against, stating that "[i]f ... the application for additional insurance ... did not have attached to it at the time decedent signed it on February 18, 1958, the first application ... then plaintiff's position would appear to be consistent with the Supreme Court decisions and [Section 441] and she would be entitled to judgment." Id. at 549. Tables therefore provides no support for Federal Kemper's argument.
In the last case cited by Federal Kemper, Good v. Metropolitan Life Insurance Co., 166 Pa.Super. 334, 71 A.2d 805 (1950), the insurance company issued a policy to the insured that had the entire application attached to it, as well as a rider that limited the company's liability when death was caused by flying in an airplane. The plaintiff, the mother of the insured, argued that since the insured's written consent to the rider was not attached to the policy, the company could not rely on the rider as a defense. The court rejected this argument, finding that the written consent was not an "application, constitution, by-law, or other rul[e] of the company," and therefore did not need to be attached to the policy. Id. 71 A.2d at 807. The case is distinguishable from the present case because a "written *1261 consent to a rider," unlike an amendment, does not come within the sweep of Section 441.
Finally, the Court admits it was initially troubled by the prospect of a fraud generating a financial windfall for the wrongdoer.[8] Upon closer examination, however, permitting Mrs. Horowitz to collect under the policy is neither inequitable nor unjust. As a matter of public policy, the outcome of the case was preordained by the legislature when it enacted regulatory legislation, prophylactic in nature, that imposes as a penalty for its breach the exclusion of evidence supportive of potentially meritorious defenses. Therefore, the result obtained here is precisely the outcome the Pennsylvania Supreme Court found in Sandberg and Frost that the legislature intended as a deterrent to violations of Section 441. Viewed in light of the public interest it seeks to promote, it cannot be said that the legislature's calculus of social utility has produced an inequitable result. Nor is the outcome of the case unjust to Federal Kemper. Rather than being an unsuspecting victim of a fraudulent scheme, Federal Kemper was entirely capable of avoiding the result of which it now complains. Section 441's attachment rule has been on the books for over seven decades and, in fact, the Pennsylvania Supreme Court has emphasized the importance of strictly enforcing the attachment rule in two separate cases which are themselves more than five decades old. Therefore, in light of the ample legal notice provided to Federal Kemper, if it "suffered an unnecessary loss it has resulted solely from its own negligence." Sandberg, 20 A.2d at 231.[9]
Since there is no genuine issue of material fact regarding Federal Kemper's failure to attach the amendment to the policy, and further, since Mrs. Horowitz is entitled to judgment as a matter of law, the Court will grant her motion for summary judgment on Count III of her complaint and award her the proceeds of the policy.[10]
2. The Unfair Trade Practices and Consumer Protection Law (count I)
Mrs. Horowitz's second argument, contained in Count I of her Complaint, is that Federal Kemper violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law, Pa.Stat.Ann., tit. 73, §§ 201-1 201-9.2 (1968) (amended 1976). Her claim is based on a September 25, 1992, letter sent by Federal Kemper's claims representative, *1262 Mary Beth Jachec, to Frederick Hanselman, a lawyer for Dr. Horowitz's estate, in which Ms. Jachec notified Mr. Hanselman that Federal Kemper refused to pay Mrs. Horowitz's claim. Mrs. Horowitz argues that the letter was unfair and deceptive because it failed to notify her of the Pennsylvania statutes and court decisions discussed supra that establish her right to collect under the policy.
The Court will deny Mrs. Horowitz's motion regarding this claim because the UTPCPL does not provide a cause of action for bad faith conduct based upon an insurance company's refusal to pay a claim. See Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600, 604 (1988) ("The alleged improper refusal to [pay insurance proceeds] does not constitute actionable misfeasance [but merely nonfeasance]. Nonfeasance alone is not sufficient to raise a claim pursuant to the Unfair Trade Practices and Consumer Protection Law."). This Court has consistently adhered to the rule set forth in Gordon. See, e.g., MacFarland v. U.S. Fidelity & Guar. Co., 818 F.Supp. 108, 111 (E.D.Pa.1993) (failure to pay under an insurance contract constitutes nonfeasance and the UTPCPL only provides relief for misfeasance); Lombardo v. State Farm Mut. Auto. Ins. Co., 800 F.Supp. 208, 213 (E.D.Pa.1992) (the refusal to pay benefits to which plaintiff is entitled not actionable under the UTPCPL); McAlister v. Sentry Ins. Co., 1991 WL 102973, at *10 (E.D.Pa. June 11, 1991) (plaintiff cannot proceed under the UTPCPL for insurer's refusal to pay a claim because the UTPCPL targets fraud committed in the commerce of insurance policies rather than in the refusal to honor policies once issued), aff'd in part and vacated in part on other grounds, 958 F.2d 550 (3d Cir.1992). But see Sentry Ins. Co. v. Stillman, No. 90-2129, 1990 WL 96104 (E.D.Pa. July 5, 1990) (mere bad faith refusal to pay claims is actionable under the UTPCPL). The Court will therefore grant summary judgment in Federal Kemper's favor on Count I of the complaint.
3. Bad faith (count II)
In Count II of her complaint Mrs. Horowitz alleges that Federal Kemper's letter dated September 25, 1992, denying her payment under the policy, was sent in bad faith because Federal Kemper knew that it lacked a legal basis for the denial. She seeks punitive damages, costs, and attorneys' fees pursuant to 42 Pa.Cons.Stat.Ann. § 8371 (1990).
To make out a claim for bad faith "a plaintiff must show the absence of a reasonable basis for denying benefits of the policy and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim." D'Ambrosio v. Pennsylvania Nat'l. Mut. Cas. Ins. Co., 494 Pa. 501, 431 A.2d 966, 971 (1981) (refusing to recognize a cause of action for bad faith denial of a claim under Pennsylvania common law). In the present case it is undisputed that Dr. and Mrs. Horowitz knew about Dr. Horowitz's terminal cancer diagnosis on December 20, 1991, and that Dr. Horowitz misrepresented his medical condition to Federal Kemper when he signed the amendment on that day. Def.'s Summ. J. Mot., Ex. F at 77-80, 84-87, 98.
The Court finds that Dr. Horowitz's misrepresentation provided Federal Kemper with a reasonable basis for contesting the claim, even if its analysis of the law turned out to be wrong. See Kauffman v. Aetna Cas. & Sur. Co., 794 F.Supp. 137, 141 (E.D.Pa.1992) (insurance company's motion to vacate arbitration award, while premised on a legally tenuous theory, was insufficient, standing alone, to give rise to an action for bad faith); American Franklin Life Ins. Co. v. Galati, 776 F.Supp. 1054 (E.D.Pa.1991) (insurance company's action to rescind policy not in bad faith where insured misrepresented medical history). The Court will therefore deny Mrs. Horowitz's motion regarding her bad faith claim and grant summary judgment to Federal Kemper on Count II of the complaint.
III. CONCLUSION
The Court will grant summary judgment in favor of the plaintiff on Count III of the complaint and in favor of the defendant on Counts I and II.
An appropriate order shall be entered.
*1263 ORDER
AND NOW, this 30th day of August, 1994, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that the plaintiff's motion for summary judgment (docket no. 27) is GRANTED in part (Count III of the Complaint) and DENIED in part (Counts I and II of the Complaint); it is further ORDERED that defendant's motion for summary judgment (docket no. 28) is GRANTED in part (Counts I and II of the Complaint) and DENIED in part (Count III of the Complaint). Judgment in the amount of $1,000,000.00 shall be entered in favor of plaintiff and against defendant on Count III of the Complaint. Judgment shall also be entered in favor of defendant and against plaintiff on Counts I and II of the Complaint.
AND IT IS SO ORDERED.
JUDGMENT
AND NOW, this 30th day of August, 1994, JUDGMENT in the amount of $1,000,000.00 is hereby entered in favor of plaintiff and against defendant on Count III of the Complaint; JUDGMENT is also entered in favor of defendant and against plaintiff on Counts I and II of the Complaint.
AND IT IS SO ORDERED.
NOTES
[1] Federal Kemper issued Dr. Horowitz's policy on December 3, 1991.
[2] 28 U.S.C. § 1447(c) provides in pertinent part:
[I]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded ... A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
[3] See, e.g., Naylor v. Case & McGrath, Inc., 585 F.2d 557, 562-63 (2d Cir.1978) (citations omitted) ("The district court, nevertheless, has the power to grant leave to amend the complaint and the removal petition to show jurisdiction if that is in the interest of justice, taking into account all of the factors bearing on the court's exercise of its discretion."); D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145, 146-47 (5th Cir.1979) (failure to allege the citizenship of the parties at the time the suit was brought and at the time the removal petition was filed are not "fatal omission[s] which cannot be cured by amendment"), cert. denied, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980); Tech Hills II v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963, 968-69, (6th Cir.1993) (where petition for removal failed to allege the citizenship of individual members of plaintiff, a Michigan partnership, Court allowed defendant, a Connecticut corporation, to amend the petition because the "jurisdictional facts d[id] indeed exist, and the parties are in law entitled to invoke the jurisdiction of the federal court"); Barrow Dev. Co. v. The Fulton Ins. Co., 418 F.2d 316, 318 (9th Cir.1969) (where removal petition failed to allege either the place of incorporation or the principal places of business of the corporate parties, to deny amendment would be "to equate imperfect allegations of jurisdiction with the total absence of jurisdictional foundations, and would tend unduly to exalt form over substance and legal flaw-picking over the orderly disposition of cases properly committed to federal courts") (quoting Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 301 (10th Cir.1968)).
[4] In her complaint Mrs. Horowitz also alleged that "[t]he defendant Federal Kemper Life Assurance Company is an Illinois Corporation which at all times relevant hereto was doing business within Montgomery County in the Commonwealth of Pennsylvania." See Complaint, ¶ 3. In its removal petition, Federal Kemper alleged that it "is a corporation organized under the laws of the State of Illinois and has its principal place of business in the State of Illinois and is a citizen of Illinois." See Petition for Removal, ¶ 6. Mrs. Horowitz now claims that since her complaint did not allege Federal Kemper's principal place of business, diversity was not shown and remand is required. The Court disagrees. The failure to allege a corporation's principal place of business in a complaint is a jurisdictional defect that may be amended. See Wymard v. McCloskey & Co., 342 F.2d 495, 497 (3d Cir.) (in non-removal federal court action, plaintiffs, receivers of a corporation in bankruptcy, were given opportunity by court to amend complaint to allege corporation's principal place of business), cert. denied, 382 U.S. 823, 86 S.Ct. 52, 15 L.Ed.2d 68 (1965). In the present case, Mrs. Horowitz's allegation that Federal Kemper is an "Illinois Corporation" certainly makes it apparent that Federal Kemper is an Illinois citizen, even if the allegation is technically incorrect. Furthermore, the removal petition is technically correct in all respects regarding the allegation of Federal Kemper's citizenship.
[5] Even if the citizenship of all the parties could not be determined from the face of the complaint, as the Court has held it can in this case, it would be permissible for the Court to look to the removal papers to determine whether diversity of citizenship indeed existed. If that were not the case and the Court were limited to the allegations contained on the face of a complaint in making determinations of diversity jurisdiction, a plaintiff could thwart removal by purposefully failing to allege the defendant's citizenship in the complaint. See Woolard v. Heyer-Schulte, 791 F.Supp. 294, 296-97 (S.D.Fla.1992) (if a court could only examine the face of the complaint in making diversity determinations "a defendant's statutory right to removal would be wholly contingent upon the plaintiff's choice of words ... [a plaintiff] could foreclose the possibility of removal simply by omitting any allegation of the defendant's citizenship"). Such a rule would also be undesirable because there are many situations in which the facts necessary for federal diversity jurisdiction (i.e., the citizenship of the parties and the amount in controversy) will not appear in a state court complaint simply because local rules or practice do not require them. See Charles A. Wright, et al., Federal Practice and Procedure § 3734 at 542 (2d ed. 1985). The removal petition in this case alleges a proper basis for diversity jurisdiction, except for the allegations that Mrs. Horowitz is a "resident" of Pennsylvania and that Mr. Camner is a "resident" of Florida. See Petition for Removal, ¶¶ 6-11. As noted supra, since an allegation of residency is prima facie evidence of citizenship, it is apparent from the removal petition that diversity existed at the time the suit was filed and the Court will therefore allow Federal Kemper to amend the petition.
Mrs. Horowitz also cites Steel Valley Authority v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987), cert. dismissed, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988), and Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir.1985), as authority for her contention that, in making its determination of diversity, this Court is limited to the allegations contained in her complaint. However, those cases involved fraudulent joinder and the joinder of an indispensable party and are therefore distinguishable from the present case.
[6] The complete text of Section 441 is as follows:
All insurance policies, issued by stock or mutual insurance companies or associations doing business in this State, in which the application of the insured, the constitution, by-laws, or other rules of the company form part of the policy or contract between the parties thereto, or have any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application as signed by the applicant, or the constitution, by-laws, or other rules referred to; and, unless so attached and accompanying the policy, no such application, constitution, or by-laws, or other rules shall be received in evidence in any controversy between the parties to, or interested in, the policy, nor shall such application, constitution, by-laws, or other rules be considered a part of the policy or contract between such parties.
Pa.Stat.Ann., tit. 40, § 441 (1921).
[7] Defendant's counsel had a duty under Fed. R.Civ.P. 11 to conduct a reasonable investigation into the law and, by citing a vacated holding to this Court, they breached that duty. Cf. Terminix Intern. Co., L.P. v. Kay, 150 F.R.D. 532, 538 (E.D.Pa.1993) (failure to cite controlling authority violates Rule 11). No harm appearing to have been caused by this breach, the Court will not impose sanctions, but it cautions counsel to undertake their duties under Rule 11 more responsibly in the future.
[8] All courts must be concerned with one of the "fundamental maxims" of the common law: "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime." Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, 190 (1889). In Riggs, the question was whether Elmer Palmer, the grandson of Francis Palmer and the legatee of his will, was allowed to inherit under the terms of the will after he had poisoned his grandfather to prevent him from revoking the will. The New York Court of Appeals held that Elmer Palmer could not inherit under the will. The Court found that, even though the statute was silent regarding such a situation, the legislature could not have intended such a result. As noted supra, in the present case the Pennsylvania legislature and Supreme Court have decided that the policy of protecting consumers is sufficiently important that it must be enforced even when the result is to exclude meritorious defenses.
[9] Since the Court has ruled in Mrs. Horowitz's favor on the basis of her Section 441 argument, there is no need to reach her argument that Federal Kemper is bound by the results of its medical examination under Pa.Stat.Ann., tit. 40, § 511(a) (1921) (amended 1937 and 1951). There is also no need to reach Federal Kemper's rescission argument since its failure to attach the December 20 amendment to the policy prohibits it from asserting as a fraud defense any of the misrepresentations contained in the amendment, Part B of the application (completed on September 26, 1991), or Part F of the application (completed on October 3, 1991). See Sandberg, 20 A.2d at 231 (quoting Fidelity Title & Trust Co. v. Metropolitan Life Ins. Co., 305 Pa. 296, 157 A. 614, 616 (1931) ("The omission of a part, which of course includes a supplementary part, operates to exclude the whole.")).
[10] In Count III, Mrs. Horowitz seeks incidental and consequential damages, interest, costs, and attorneys' fees in addition to the proceeds of the policy. Since she did not move for partial summary judgment on liability only and failed to present any evidence that she suffered incidental and consequential damages as a result of Federal Kemper's breach of the insurance contract, the Court is without a basis to award these types of damages. Furthermore, since the general rule, apart from statute, is that the prevailing party in litigation is not entitled to attorneys' fees, see Dan B. Dobbs, Remedies § 3.8 (1973), the Court will not award Mrs. Horowitz her attorneys' fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261955/ | 132 Cal.Rptr.2d 748 (2003)
107 Cal.App.4th 1352
Christopher J. THOMPSON, a Minor, etc., et al., Plaintiffs and Appellants,
v.
SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
No. C039862.
Court of Appeal, Third District.
March 25, 2003.
*752 Jay-Allen Eisen, Jay-Allen Eisen Law Corporation, Eisen & Johnston Law Corp., Marian M. Johnston, Sacramento, CA, Jess C. Bedore, Sinclair, Wilson & Bedore, Roseville, CA, for Plaintiff and Appellant.
John M. LaPlante, LaPlante & Spinelli, Sacramento, and M. Teresa Abad Levenfeld, for Defendant and Respondent.
SCOTLAND, P.J.
Christopher J. Thompson (plaintiff), a minor, was injured during an argument in school when he was punched by another student. The injury occurred the day after it appeared that the assailant had threatened to hit another student and was suspected of having set fire to a poster on a school bulletin board.
Plaintiff and his parents appeal from the judgment entered in favor of the Sacramento City Unified School District (defendant) after the trial court granted defendant's summary judgment motion in this personal injury action. Appellants contend *753 that they have demonstrated a triable issue of material fact regarding defendant's liability for negligence due to its failure to suspend the assailant from school before plaintiff was injured and its failure to exercise reasonable care in supervising students in its charge. Appellants also argue that the court erred in excluding declarations of their experts. We shall affirm the judgment.
As we will explain, defendant did not owe a duty to plaintiff to suspend the assailant on the day before he injured plaintiff and, in any event, on the facts of this case, a properly instructed jury could not find that defendant acted unreasonably in failing to do so before completing an investigation of the allegations. As to defendant's alleged breach of its general duty to supervise students in its charge, appellants failed to present competent evidence to show the alleged negligence was the proximate cause of plaintiffs injury. The expert witness declarations in this regard were properly excluded because they were speculative and conjectural.
FACTS
Plaintiff, a high school student, was injured on January 22, 1999, during the lunch period at defendant's Kennedy High School.
Immediately before lunch, plaintiff and another student, Demario C, were in a physical education class. Someone told Demario that plaintiff was selling marijuana and was carrying a substantial amount of it. Demario related this information to his friend, Demarcus M., during lunch.
Demarcus and Demario quickly formed a plan to rob plaintiff of the marijuana they believed he was carrying. They decided that Demarcus would wait in the bathroom while Demario lured plaintiff inside with the prospect of a marijuana sale. In accordance with the plan, Demario approached plaintiff and whispered that he knew someone in the bathroom who wanted to buy some sacks (meaning marijuana). Plaintiff then followed Demario to the bathroom.[1]
Inside the bathroom, Demarcus told plaintiff to "come out of your pockets," indicating he was being robbed. When plaintiff refused to hand over anything, a scuffle ensued. Plaintiff broke free and left the bathroom. However, a few feet outside of the bathroom, he stopped and turned to confront Demarcus.[2] A fight ensued, and Demarcus hit plaintiff three or four times in the face, causing him to fall backwards and strike his head on the ground. Plaintiff suffered significant injury for which he seeks compensation from defendant.
Much of the evidence submitted on the summary judgment motion concerned Demarcus. It appears that he had a number of suspensions in primary school and middle school, some of which were related to fighting. In 1996, he was expelled from Sam Brannan Middle School for an assault on a student and apparently on the campus monitor who broke up the fight. The expulsion order imposed a number of requirements *754 that Demarcus would have to meet before requesting readmission. Demarcus attended a continuation school for the next year. In the spring of 1997, a district hearing was held at which the hearing officer was satisfied that Demarcus should be readmitted to public school.
Demarcus was assigned to Kennedy High School commencing in the fall of 1997. He performed adequately during his first year and a half of attendance there. For the most part he maintained passing grades. He was voted most inspirational player on the freshman football team and was elevated to the varsity in his second year. During this period, Demarcus was not involved in any fights or physical altercations. However, he had a few minor disciplinary actions, such as in-house suspensions or detentions and Saturday school sessions. These were for such things as failing to suit up for physical education, not writing sentences, being late to class, refusing to give up a walkman, and disrupting class. There was no evidence that he engaged in any threatening or violent behavior during that time.
On January 6, 1999, a female student attached a poster to an outdoor bulletin board, announcing her birthday. During the lunch period, someone deliberately set fire to the poster. The fire was quickly extinguished, and arson investigators were assigned to the case. On January 20, 1999, three students told vice-principal McClymonds that Demarcus had started the fire. McClymonds contacted the arson investigators to give them the names of the students. McClymonds was advised that the arson investigators would pursue the matter and that he should defer to them so he would not "muddy up" their investigation.[3]
Near the end of the school day on January 21, 1999, Demarcus got into an argument with another student, Yvonne J. It appears that Yvonne disputed Demarcus's comment that his former girlfriend was going to "do his hair." When Demarcus said he would hit his former girlfriend or "beat her ass" if she did not do his hair, Yvonne replied he was "helly messed up," and she may have threatened to hit him. Demarcus then threatened to hit Yvonne, but she retorted that she would get her dad if Demarcus tried to hit her. Continuing this scintillating colloquy, Demarcus said "f your dad." At that point, the teacher removed Demarcus from the classroom and called the campus monitors. The students were taken to the office and were told that they would have to go to conflict management.[4]*755 Demarcus said he would refuse to do so, and was told that refusal would result in suspension for three days. He said he did not care. No formal action was taken before lunch period of the following day, when Demarcus injured plaintiff.
In January 1999, security at Kennedy High School was provided by one full-time campus police officer, seven campus monitors, and volunteers from a group called Parents-On-Campus. Security personnel and volunteers roam the campus with hand-held radios that can be used to call in problems.
The F-wing restroom, where the fight occurred, was in the overlapping patrol areas of campus monitors Guzman and Conrad. Guzman patrolled past the restroom just before the fight started. He looked into the restroom and saw nothing amiss. After Guzman walked down the hallway, he noticed students going toward the restroom. So he returned and found plaintiff on the ground. Guzman estimated that only a minute and a half to two minutes had passed since he was at the restroom.
DISCUSSION
I
In reviewing an order granting a summary judgment motion, we independently review the record to determine whether there are triable issues of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) We view the evidence in a light most favorable to the plaintiff as the losing party. (Id. at p. 768, 107 Cal. Rptr.2d 617, 23 P.3d 1143.) Summary judgment will be upheld when, viewed in such a light, the evidentiary submissions conclusively negate a necessary element of plaintiffs cause of action, or show that under no hypothesis is there a material issue of fact requiring the process of a trial, thus defendant is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)
A
Appellants suggest that Demarcus should not have been readmitted to the district's public schools after his expulsion from middle school.
Upon expelling a student, the district governing board must recommend a plan of rehabilitation for the pupil. (Ed.Code, § 48916, subd. (b).) An expelled student is entitled to apply for readmission after he or she has served an appropriate period of expulsion. (Ed.Code, § 48916, subd. (a).) "Upon completion of the readmission process, the governing board shall readmit the pupil, unless the governing board makes a finding that the pupil has not met the conditions of the rehabilitation plan or continues to pose a danger to campus safety or to other pupils or employees of the school district." (Ed.Code, § 48916, subd. (c).)
Here, the record reflects that, after a year of expulsion, Demarcus applied for readmittance and, at an administrative proceeding, he satisfied the district's hearing officer that he should be readmitted to school.
The decision to readmit a student to school is a matter for which there is statutory immunity. Pursuant to Government Code section 815.2, subdivision (b), a public entity is not liable for the act or omission of an employee if the employee is immune from liability. And Government Code section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion *756 vested in him, whether or not such discretion be abused."
A school district's exercise of authority to expel and/or readmit a pupil involves the type of decision that entails "`the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination.'" (Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31, 39, 43 Cal. Rptr.2d 384, quoting Johnson v. State of California (1968) 69 Cal.2d 782, 795, 73 Cal.Rptr. 240, 447 P.2d 352; see also Thompson v. County of Alameda (1980) 27 Cal.3d 741, 747-749, 167 Cal.Rptr. 70, 614 P.2d 728; Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1462-1464, 81 Cal.Rptr.2d 165.)
Thus, defendant cannot be held liable to appellants on the basis of the district's decision to readmit Demarcus to public school in the fall of 1997.
B
Nevertheless, appellants contend there is a triable issue of material fact as to whether Demarcus should have been suspended immediately when Vice-Principal McClymonds learned that Demarcus may have been responsible for the poster fire and threatened to hit student Yvonne J. According to appellants, a jury could conclude that, if Demarcus had been suspended immediately on the afternoon of January 21, he would not have been on campus during lunch period the following day when he injured plaintiff. The contention fails.
Education Code section 48900 states that a student may not be suspended or recommended for expulsion unless the superintendent or principal of the school in which the student is enrolled finds that the student has committed one or more of certain specifically enumerated acts. As relevant here, the acts that may justify suspension or expulsion include causing, attempting to cause, or threatening to cause physical injury to another person (Ed.Code, § 48900, subd. (a)(1)); causing or attempting to cause damage to school property or private property (Ed.Code, § 48900, subd. (f)); and disrupting school activities or otherwise willfully defying the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties (Ed.Code, § 48900, subd. (k)).
Education Code section 48900.5 provides that suspension shall be imposed only when other means of correction fail to bring about the proper conduct. However, suspension may be imposed for a first offense for certain acts, including causing, attempting to cause, or threatening to cause physical injury. Suspension also may be imposed for a first offense if the principal or superintendent determines that the student's presence causes a danger to persons or property or threatens to disrupt the instructional process.
A suspension from school may be imposed for no more than five consecutive school days. (Ed.Code, § 48911, subd. (a).) The decision to impose a suspension may be made by the principal of the school, the principal's designee, or the superintendent of schools. (Ibid,)[5] Normally, a suspension must be preceded by an informal conference conducted by the principal, the principal's designee, or the *757 superintendent of schools, between the student and, whenever practicable, the teacher, supervisor, or school employee who referred the student for discipline. (Ed.Code, § 48911, subd. (b).) At the conference, the student must be informed of the reason for the disciplinary action and the evidence against the student, and must be accorded the opportunity to present his or her version of the incident and evidence in defense against the allegation. (Ibid.)
A student may be suspended without an opportunity for a conference only if it is determined that an emergency situation exists. (Ed.Code, § 48911, subd. (c).) An emergency situation "means a situation determined by the principal, the principal's designee, or the superintendent of schools to constitute a clear and present danger to the life, safety, or health of pupils or school personnel." (Ibid.) In the event of an emergency suspension, the conference must be held within two school days unless it is waived or the student is physically unable to attend. (Ibid.)
The clear and present danger standard is a test for determining when, despite constitutional requirements or limitations that otherwise would apply, the government can act to prevent a substantive evil from occurring. The test requires consideration of the extent to which the evil to be prevented is substantial or serious, the probability of its occurrence, and the extent to which it is imminent. To meet the clear and present danger test, the substantive evil must be extremely serious and the degree of imminence extremely high. (Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 542-543, 171 P.2d 885; see also Bridges v. California (1941) 314 U.S. 252, 262-263, 62 S.Ct. 190, 193-194, 86 L.Ed. 192, 202-203; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 367, 341 P.2d 310.) But there is no talismanic formula for application of the clear and present danger test; rather, it is by nature a balancing test requiring the exercise of significant judicial or quasi-judicial discretion. (Sun Co. of San Bernardino v. Superior Court (1973) 29 Cal.App.3d 815, 826-827, 105 Cal.Rptr. 873.)
Statutory procedures with respect to suspension of school students were enacted to meet the constitutional requirements of due process. In Goss v. Lopez (1975) 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725, the United States Supreme Court held that school students are entitled to due process of law in the decision to impose a short suspension. This requires that there be sufficient cause determined through fundamentally fair procedures. (Id. at pp. 573-574, 95 S.Ct. at pp. 735-736, 42 L.Ed.2d at pp. 734-735.) For short suspensions, the procedure need not be formal; however, at a minimum, it requires that the student be given oral or written notice of the charges, an explanation of the evidence against the student, and the opportunity to contest the charges. (Id. at p. 581, 95 S.Ct. at p. 740, 42 L.Ed.2d at p. 739.) Obviously, due process of law demands that the administrator who imposes discipline must make a fair and unbiased attempt to determine what happened and if it justifies suspension. (Id. at pp. 583-584, 95 S.Ct. at pp. 740-741, 42 L.Ed.2d at p. 740; see Perlman v. Shasta. Joint Jr. College Dist. Bd. Of Trustees (1970) 9 Cal.App.3d 873, 883, 88 Cal. Rptr. 563.) Appropriate procedures for suspension must precede the actual imposition of a suspension unless the student's presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process. (Goss v. Lopez, supra, 419 U.S. at p. 582, 95 S.Ct. at p. 740, 42 L.Ed.2d at p. 739.)
To briefly summarize the constitutional and statutory requirements for imposition *758 of a suspension: (1) a suspension may be imposed only by a relatively high level administrator, i.e., the principal, the principal's formal designee, or the superintendent of schools; (2) before imposing suspension, the administrator must be satisfied that he or she knows what happened and that the conduct warrants suspensionin this respect, the administrator must bear in mind the Legislature has expressed a preference that, if possible, misconduct be addressed by means other than suspension; (3) unless the administrator is satisfied that the situation constitutes a clear and present danger to life, health or safety, then the determination whether to suspend may not be made until the student is accorded a conference at which the student is informed of the charges and the evidence, and is given the opportunity to explain or contest the charges; and (4) in reaching a determination, the administrator must remain fair and unbiased.
In this light, only one reasonable conclusion can be drawn from the facts here: defendant cannot be held liable for the injury to plaintiff based on McClymonds's failure to immediately suspend Demarcus after his argument with Yvonne. We explain.
When a plaintiff seeks to impose liability upon a defendant for a particular act or omission, the plaintiff must establish that the act or omission breached a duty owed to the plaintiff. Duty is a question of law for the court to determine on a case-by-case basis. (Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 778, 38 Cal.Rptr.2d 291.) Duty is not a discoverable or immutable fact of nature; it is the expression of the sum total of those considerations of policy that lead the court to say that the particular plaintiff was entitled to protection from the particular act or omission alleged. (Ibid.; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1498, 57 Cal.Rptr.2d 406.) The factors that may be considered include "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.) When a public agency is involved, additional factors include the extent of the agency's powers, the role imposed on the agency by law, and the limitations imposed on it by budget. (Hernandez v. City of Pomona, supra, 49 Cal.App.4th at pp. 1498-1499, 57 Cal.Rptr.2d 406.)
In this case, several factors compel the conclusion that McClymonds did not owe a duty to plaintiff to immediately suspend Demarcus on the afternoon of January 21.
First, the conduct for which suspension allegedly should have been imposed was wholly unrelated to plaintiff. On January 21, Demarcus and plaintiff bore no antagonism toward one another, and they do not appear to have even known each other. Demarcus became a danger to plaintiff only during the lunch period on January 22, when he was told that plaintiff had a substantial amount of marijuana. While in appropriate circumstances a duty may arise when a person makes a specific threat of harm directed at a specific victim, courts otherwise generally decline to recognize a special duty. (See Thompson v. County of Alameda, supra, 27 Cal.3d at p. 754,167 Cal.Rptr. 70, 614 P.2d 728.)
*759 Second, the only basis upon which it can be claimed that the failure to immediately suspend Demarcus caused plaintiffs injury is that it enabled him to be on campus the following day. There was no other logical connection between Demarcus's prior conduct and plaintiffs injury. This does not establish a close connection between vice principal McClymonds's failure to suspend Demarcus and the injury, thus militating against a finding of duty. (See Bryant v. Glastetter, supra, 32 Cal.App.4th at pp. 781-782, 38 Cal.Rptr.2d 291.)
Third, and most significant, is the matter of McClymonds's power with respect to suspension and the role imposed upon him by law. Although he had the authority to suspend students, it was an authority that McClymonds was required to exercise in accordance with substantive and procedural requirements imposed by the Legislature and by the Constitution. These included recognition of the legislative preference for lesser measures of discipline; the requirement of a pre-suspension conference unless McClymonds was satisfied the student's presence created a clear and present danger; the requirement that McClymonds be satisfied he knew the facts and that the incident warranted suspension; and the requirement that he proceed in a fair and unbiased manner, unaffected by extraneous considerations.
Where, as here, the conduct raising an administrator's suspension authority is wholly unrelated to the plaintiff, and the plaintiffs only basis for asserting a causal connection is that the failure to impose an immediate suspension allowed the student to be on campus, the imposition of a special duty to suspend would undermine the role of an administrator in the suspension process. There would be an inevitable conflict between the administrator's obligation to act in a fair and unbiased manner and the fear of potential liability should anyone be injured during the period for which an immediate suspension could be imposed. This conflict precludes the recognition of a special duty to suspend a student under such circumstances.
C
In any event, even assuming for purpose of argument that a claim of negligence can be premised on McClymonds's failure to immediately suspend Demarcus on the afternoon of January 21, we are satisfied that a properly instructed jury could not find McClymonds acted unreasonably in failing to do so.
Although breach of duty generally is a question of fact, it may be determined as a question of law if reasonable jurors following the law could draw only one conclusion from the evidence. (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 652, 96 Cal.Rptr.2d 874; Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 712-713, 252 Cal.Rptr. 613.)
If a claim of negligence could be premised on McClymonds's failure to immediately suspend Demarcus, a jury would have to be informed of the statutory and constitutional requisites that inhere in the suspension decision. In particular, the jury would have to be instructed that an immediate suspension can be imposed only if the facts satisfy the administrator that the student's presence at school constitutes a clear and present danger. The jury also would have to be instructed that it may not second-guess the administrator's action through the benefit of hindsight; instead, it must defer to the administrator's judgment and discretion unless he acted unreasonably under the circumstances that existed at the time he acted. (See authorities cited in part B, ante.)
*760 Setting fire to a birthday poster is a matter for which suspension could be imposed. (Ed.Code, § 48900, subd. (f).) However, it is not a matter for which suspension can be imposed for a first offense unless it is determined that the student's presence poses a danger to person or property or threatens to disrupt the educational process. (Ed.Code, § 48900.5.) The poster was burned on January 6, and the students who implicated Demarcus waited two weeks, until January 20, to come forward. At that point the matter, including the students' credibility, had not been investigated and Demarcus had remained in school for two weeks without injurious consequences. These facts preclude a rational jury from finding that McClymonds acted unreasonably in awaiting an investigation before deciding what, if any, disciplinary action should be imposed for the alleged arson.
The same must be said with respect to Demarcus's argument with Yvonne J. near the end of the school day on January 21, when the two students got into a heated confrontation about whether Demarcus's former girlfriend was going to "do his hair." Yvonne called Demarcus "helly messed up" and may have said she was going to hit him. In turn, Demarcus threatened to hit her. Yvonne responded by stating she would get her dad if Demarcus tried to hit her; whereupon Demarcus said "f your dad." In other words, nothing more than vague threats were exchanged, the argument was mutual, and it did not escalate into violence. In his deposition, McClymonds testified that students have a habit of saying things like "I'm gonna whip your butt" and that, when threats are reported, he investigates to determine what happened and why, and what the next step should be. These facts preclude a rational jury from finding that McClymonds acted unreasonably in waiting for an investigation and conference with Demarcus before deciding upon the next step to take.
When Demarcus was escorted to the office after his argument with Yvonne, campus monitor Saldana told him he would have to go to conflict management. When Demarcus said he would refuse to do so, he was told that his refusal would result in an "automatic" three-day suspension. Appellants claim this exchange establishes that Demarcus should have been immediately suspended for three days and that, had he been suspended, he would not have been on campus to injure plaintiff. The contention fails.
An immediate suspension cannot be imposed except upon an individualized factual determination, made by the appropriate administrator, that the situation poses a clear and present danger to the life, safety, or health of pupils or school personnel. (Ed.Code, § 48911, subd. (c).) A blanket rule of immediate suspension would be contrary to the school's statutory authority and unlawful. And the record reflects only that Demarcus's refusal to take part in conflict management would result in an "automatic" suspension, not an "immediate" one. If, after investigation, McClymonds determined that conflict management was the appropriate response to the argument, a refusal to attend would be grounds for suspension. (Ed.Code, §§ 48900, subd. (k); 48900.5.) But it would be legally precipitous to impose an immediate suspensionbased on Demarcus's statement that he would not participate in conflict managementbefore the matter was investigated and a determination is made, and before a conference was held at which he was given the actual choice of going to conflict management or accepting a suspension.
Appellants argue that McClymonds was negligent in failing to go through the suspension *761 process before lunch period on the day following the argument. The record reflects that campus monitor Saldana orally informed McClymonds of the argument on the afternoon of January 21, and submitted a written report to his office the next morning. McClymonds may have spoken with Yvonne and her father on the morning of January 22.[6] However, there is no evidence that, before lunch period on January 22, McClymonds had the opportunity to consult the most important witness to the argument, Mr. DeLoach, the teacher in whose class the argument occurred and who referred the students to McClymonds.[7]
The Education Code recognizes the importance of information that can be provided by the teacher, supervisor, or school employee who refers a student for discipline. (Ed.Code, § 48911, subd. (b).) In this case, the statements of the students describing the argument are essentially similar and are equivocal as to the seriousness of the threats uttered. The teacher who witnessed the argument could shed light on such things as the volume and tone of the statements, the gestures and body language that accompanied the argument, whether mutual threats were made, and the apparent earnestness of the threats. Under these circumstances, a rational jury could not find that McClymonds was unreasonable in failing to act before he had all the relevant information concerning the argument.
For these reasons, we conclude that defendant cannot be held liable to appellants for McClymonds's failure to immediately suspend Demarcus following his argument with Yvonne. However, this conclusion does not end our inquiry.
D
It is well settled that "a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care." (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513, 150 Cal.Rptr. 1, 585 P.2d 851.) Thus, we must consider potential bases of liability other than the failure to suspend Demarcus.
For reasons that follow, we find no basis on which to conclude that defendant *762 owed a special duty of care to plaintiff.
A special duty of care may arise where a person makes a specific threat against a specific person or otherwise presents a foreseeable danger to a readily identifiable potential victim. (See Thompson v. County of Alameda, supra, 27 Cal.3d at pp. 752-754, 167 Cal.Rptr. 70, 614 P.2d 728.) Here, however, no aspect of Demarcus's prior conduct bore any relationship to plaintiff. It does not appear that Demarcus and plaintiff even knew each other before the lunch period on January 22. The danger to plaintiff from Demarcus arose suddenly during the lunch period in which plaintiffs injury occurred, when Demarcus was told that plaintiff was carrying a substantial amount of marijuana on his person. This does not constitute a basis upon which to attach a special duty of protection.
In an appropriate case, a special duty may arise where a school is aware that a particular location has become dangerous. For example, in Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193, a student was subjected to assault and attempted rape while using a stairway in the school's parking lot. The assailant attacked from behind unreasonably thick and untrimmed foliage and trees, and there had been previous assaults of a similar nature in that area. (Id. at p. 805, 205 Cal.Rptr. 842, 685 P.2d 1193.) The court held that, in light of the known danger, the school had a duty to warn students, to trim the foliage, or to take other reasonable measures to protect students. (Id. at p. 815, 205 Cal.Rptr. 842, 685 P.2d 1193.) Here, however, there was no evidence that the bathroom area where the fight occurred was the scene of previous fights or was otherwise in a dangerous condition.
This brings us to the question of defendant's general duty of care. "While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty to `supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.]'" (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360.) "The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care `which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.' [Citations.]" (Ibid.) "Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision." (Ibid.)
When an injury occurs despite a defendant's efforts to provide security or supervision, it is relatively easy to claim that, ipso facto, the security or supervision provided was ineffective. Without more, such claims fail. For analysis purposes, courts assume duty and breach and focus upon causation.
For example, in Nola M. v. University of Southern California (1993) 16 Cal. App.4th 421, 20 Cal.Rptr.2d 97, the plaintiff, who was attacked and raped on the university campus, obtained a judgment based on the testimony of an expert who criticized the university's security measures and found them wanting. It was clear that a duty was owed and the Court of Appeal simply assumed the evidence was sufficient to support breach. (Id. at p. 427, 20 Cal.Rptr.2d 97.) But the court *763 concluded the evidence demonstrated only "abstract negligence" and did not establish causation. (Id. at pp. 424, 439, 20 Cal. Rptr.2d 97.) The court noted "that reasonable protective measures cannot stop wanton violence and that even significant increases in police personnel cannot prevent all crime or any particular crime." (Id. at p. 436, 20 Cal.Rptr.2d 97.) To establish causation, plaintiff must demonstrate that a particular omission caused the injury. "Otherwise, where do we draw the line? How many guards are enough? Ten? Twenty? Two hundred? How much light is sufficient? Are klieg lights necessary? Are plants of any kind permissible or is USC to chop down every tree and pull out each bush? Does it matter if the campus looks like a prison? Should everyone entering the campus be searched for weapons? Does every shop, every store, every manufacturing plant, have to be patrolled by private guards hired by the owner? Does a landowner have to effectively close his property and prevent its use altogether? [Citation.] To characterize a landowner's failure to deter the wanton, mindless acts of violence of a third person as the `cause' of the victim's injuries is (on these facts) to make the landowner the insurer of the absolute safety of everyone who enters the premises." (Id. at p. 437, 20 Cal.Rptr.2d 97, fn. omitted; see also, Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483, 50 Cal. Rptr.2d 785; Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273, 263 Cal.Rptr. 202; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211-212, 223 Cal.Rptr. 645; Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 918, 214 Cal. Rptr. 395.)
In Saelzler v. Advanced Group 400, supra, 25 Cal.4th 763, 107 Cal.Rptr.2d 617, 23 P.3d 1143, the Supreme Court approved and applied the reasoning of these decisions. There, the plaintiff, who was criminally assaulted while attempting to deliver a package at the defendant's apartment complex, alleged that better security measures would have prevented the assault. The court observed that proof of causation cannot be based upon speculation and conjecture, and that a mere possibility of causation is insufficient. (Id. at pp. 775-776, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) To establish causation, the plaintiff must demonstrate some substantial link or nexus between omission and injury. (Id, at p. 778, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) The plaintiff must show it was more probable than not that different security precautions would have prevented the attack. (Id. at p. 776, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In the absence of actual proof of causation, an expert's opinion that better security measures would have prevented the assault is nothing more than speculation and conjecture and is insufficient. (Id. at p. 777, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) The court went on to reject the plaintiffs argument for a "common sense" or "practical approach" that would permit cause to be inferred from the hindsight observation that the injury occurred. (Id, at p. 778, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) The court also rejected the suggestion that the burden of proof on the causation issue should be shifted to the defendant. (Id. at p. 780, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) It is the plaintiffs burden to establish causation by competent evidence. (Ibid.)
The standard is no different simply because a school district is the defendant. It has long been held that school districts are not the insurers of the physical safety of students. (Dailey v. Los Angeles Unified Sch. Dist, supra, 2 Cal.3d at p. 747, 87 Cal.Rptr. 376, 470 P.2d 360.) To establish a right of recovery, a student must prove the traditional elements of actionable negligence, including causation. *764 (Ibid.) In fact, the Government Code expressly requires proximate causation for recovery against a public entity. (Gov. Code, § 815.2, subd. (a).)
This does not impose an impossible burden on an injured student; the requirement merely precludes recovery where it cannot properly be said that an injury has been caused by negligent supervision. For example, where a school fails to provide supervision and an injury results from conduct that would not have occurred had supervision been provided, liability may be imposed. (See Dailey v. Los Angeles Unified Sch. Dist, supra, 2 Cal.3d at p. 750, 87 Cal.Rptr. 376, 470 P.2d 360; Charonnat v. S.F. Unified Sch. Dist. (1943) 56 Cal. App.2d 840, 844, 133 P.2d 643; Forgnone v. Salvador U.E. School Dist. (1940) 41 Cal.App.2d 423, 426-427, 106 P.2d 932.) Where supervision is provided but the supervisor allows dangerous conduct to go on, liability may be imposed. (Tymkowicz v. San Jose etc. School Dist. (1957) 151 Cal.App.2d 517, 520, 312 P.2d 388; Buzzard v. East Lake School Dist. (1939) 34 Cal.App.2d 316, 318-319, 93 P.2d 233.)
In this case, two students, Demarcus and Demario, formed a hasty plan to rob plaintiff of the marijuana that they believed he was carrying. To do so, they decided to lure plaintiff to a place where they would be out of the immediate view of campus supervisory personnel for at least a couple of minutes. Plaintiff was amenable to meeting them there. Once the participants were at that place, the events unfolded extremely quickly. Within one and a half minutes to two minutes of the time he had patrolled past the area, campus monitor Guzman returned and found plaintiff already injured.
Short of a prison-like lockdown situation, students who, for their own purposes, deliberately intend to escape the direct scrutiny of supervisory personnel will inevitably find a way to do so. (See Ford v. Riverside City School Dist. (1953) 121 Cal.App.2d 554, 557, 563, 263 P.2d 626.) When, in such a case, an injury occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation, then claims of abstract negligence will not support recovery.
We must reject appellants' suggestion that the mere fact a fight occurred is sufficient, in itself, to establish actionable negligence. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 778, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) Where, as here, a claim of ineffective supervision is not supported by competent proof of causation, summary judgment is appropriate. (Id. at p. 781, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)
II
Appellants contend the trial court erred in excluding the declarations of their experts.
In one declaration, Steve Kaufer, a certified protection professional and security consultant, criticized defendant's security measures and opined that plaintiff would not have been attacked if there had been effective supervision in the F-wing during the lunch period. In another declaration, Thomas A. Barry, a retired school administrator, criticized McClymonds's handling of matters involving Demarcus and opined that plaintiff would not have been attacked if there had been effective intervention with respect to Demarcus.
This is precisely the type of expert declaration that has been held insufficient to establish a cause of action for negligence. A party cannot rely upon an expert's opinion to establish duty, which is a question of law for the court. (Asplund *765 v. Selected Investments in Financial Equities, Inc. (2000) 86 Cal.App.4th 26, 49-50, 103 Cal.Rptr.2d 34.) And while expert criticism of the defendant's security measures may establish abstract negligence, an expert's speculative and conjectural conclusion that different measures might have prevented an injury cannot be relied upon to establish causation. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 777-778, 107 Cal.Rptr.2d 617, 23 P.3d 1143; Nola M. v. University of Southern California, supra, 16 Cal.App.4th at pp. 429-430, 20 Cal.Rptr.2d 97.)
In this case, plaintiff was injured as the result of the criminal plan of Demarcus and Demario, which included enticing plaintiff to a location beyond the immediate scrutiny of supervisory personnel, and through plaintiffs own willingness to go to such a location. While experts may be able to describe a better way of providing supervision, on this record they cannot establish causation. Thus, the trial court properly excluded the expert declarations from consideration.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE and NICHOLSON, JJ.
NOTES
[1] Although the record reflects that plaintiff was a regular user of marijuana, it does not indicate one way or the other whether he in fact was selling marijuana or had it with him at the time of the attempted robbery. But there was no evidence presented to dispute Demario's testimony that plaintiff voluntarily followed him to the bathroom when told of a potential marijuana sale.
[2] One student witness testified she heard plaintiff and Demarcus arguing. When the matter could have been dropped because they were both walking away, a couple of girls chided plaintiff about letting Demarcus talk to him like that. This was when plaintiff stopped to confront Demarcus.
[3] The student witnesses talked to McClymonds, and he relayed the information to the arson investigators, just a day and a half before Demarcus injured plaintiff. The arson investigators did not interview the students until after plaintiff was injured. The interviews revealed that one student was simply relying upon what the others told her. Another student was about 40 feet away and saw Demarcus near the poster when the fire started. She apparently did not actually see him start the fire, although she said he called himself the "banner bandit." The third student said she was only two or three feet away, heard Demarcus say he was going to burn the banner, and saw him light it with a cigarette lighter.
Appellants suggest McClymonds was informed that Demarcus had set other fires at the school. There were multiple fires during the relevant time period, and evidence that Demarcus was responsible for one might raise a suspicion that he was responsible for others. However, this is no more than a suspicion. There is no evidence in the record to tie Demarcus to the other fires.
[4] Conflict management is an informal procedure afforded students who have been in an argument without blows being thrown. They meet with another student who has been trained in peer mediation in order to resolve their dispute without the necessity of further official measures.
[5] The principal's designee is any one or more administrators at the school site specifically designated by the principal in writing to assist with disciplinary procedures. (Ed.Code, § 48911, former subd. (i).) Here, it appears that vice-principal McClymonds was the principal's designee.
[6] Yvonne's father testified he went to the school on two days. On the first day, he spoke with the campus police officer and said he wanted to submit a citizen's complaint against Demarcus. On the second day, he and his daughter spoke with McClymonds. The father was unsure of the timing of these visits, but the officer's report places her contact with him on the morning of January 22. Under the circumstances, it is a real reach to assert, as appellants do, that Yvonne and her father spoke to McClymonds before plaintiff was injured.
[7] For at least part of the morning of January 22, McClymonds was involved in another unrelated disciplinary matter. That morning, a student was discovered with a knife. Possession of a knife that is of no reasonable use to the student requires the principal or superintendent of schools to recommend expulsion unless it is determined that expulsion is inappropriate due to the particular circumstance. (Ed.Code, § 48915, subd. (a)(2).) During the morning of January 22nd, McClymonds investigated the incident, took the student through the suspension process, started the emergency pre-expulsion hearing process, and attempted to contact the student's parents. At lunchtime, after failing to reach the parents, McClymonds and campus police officer Grajeda took the boy home and suspended him to his father.
In this respect, as in others, appellants misstate the record when they assert that the knife incident did not happen until lunchtime. The record reflects the student was taken home at lunchtime, but the investigation, suspension conference, and other actions occurred during the morning. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261956/ | 861 F.Supp. 698 (1994)
Richard CROSS, Plaintiff,
v.
ROADWAY EXPRESS, Defendant.
No. 93 C 2584.
United States District Court, N.D. Illinois, Eastern Division.
August 18, 1994.
*699 Charles F. Smith, Chicago, IL, for plaintiff.
Edward C. Jepson, Jr., Thomas G. Hancuch, Vedder, Price, Kaufman & Kammholz, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
Richard Cross ("Cross") has sued his employer Roadway Express, Inc. ("Roadway"), asserting that a series of disciplinary letters issued to Cross reflect racial discrimination in violation of both Title VII of the 1964 Civil Rights Act ("Title VII") and 42 U.S.C. § 1981 ("Section 1981"). Roadway has moved for summary judgment under Fed. R.Civ.P. ("Rule") 56, and all of the parties' memoranda and supporting materials are now in hand.[1] Based on this Court's review of the parties' submissions and for the reasons stated in this memorandum opinion and order, Roadway's motion is granted and this action is dismissed.
Summary Judgment Principles
Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the *700 record only those inferences that are reasonable" in the light most favorable to non-movant Cross (Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) and cases cited there). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" (McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir.1992)), that does not foreclose the potential for summary judgment in such cases (Washington v. Lake County, 969 F.2d 250, 254 (7th Cir.1992)). Moreover, "a plaintiff facing the prospect of summary adjudication cannot `sit back and simply poke holes in the moving party's summary judgment motion'" (Young In Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir.1993)). This opinion turns first to the evidentiary facts, then will proceed to the application of the just-stated principles.
Facts
Roadway is a transportation company with facilities nationwide, including one in Chicago Heights, Illinois (the "Facility") that comprises a terminal to which freight is delivered and a relay through which it is dispatched. Approximately 700 people are employed in the relay portion of the Facility, about half of whom ("drivers") are responsible for hauling freight between various Roadway depots via semi-tractor-trailer units. Drivers are overseen by driver supervisors and by line haul dispatchers ("dispatchers"), with the dispatchers also having responsibility for parceling out the drivers' work assignments.
Cross (who is black) worked off and on as a driver assigned to the Facility from July 28, 1984 until May 17, 1992, since which time he has been on personal sick leave. Like other Chicago-Heights-based drivers, Cross was a member of the bargaining unit represented by Local 710 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union").
Roadway has promulgated a well-defined and documented attendance policy governing its drivers' availability or unavailability to receive work assignments. Its Road Driver's Manual (the current version of which was first issued in 1986) provides:
Reporting for Duty
Under the hours of service regulations, you must be given a rest period of at least eight hours before you are recalled to duty. After eight hours, you are responsible for being available to receive a duty call. Unavailability is cause for disciplinary action.
When the dispatcher makes the duty call, he or she will instruct you when to report for work. Two hours' advance notice is usually given. Failure to report for work after a duty call will result in a loss of earnings, and may result in disciplinary action.
Drivers who are disabled for an extended period are eligible for two kinds of leaves of absence: a workers' compensation leave of absence if the disability is work-related and a personal medical leave of absence if it is not. Drivers are also permitted five additional sick days per year pursuant to the collective bargaining agreement ("CBA") negotiated between Roadway and Union.
Roadway's Labor Guide sets out guidelines for handling all personnel matters, including discipline. One of the primary areas of offense is absenteeism "unexcused absences" defined as (1) unavailability for dispatch and (2) failure to report for a run that a driver has accepted. Two unexcused absences within any 60 calendar days[2] constitute a first "offense." Both the first offense and the second offense trigger warning letters. Any third offense calls for a suspension. Still a fourth offense reverts to the issuance of one last warning letter. And the fifth offense calls for discharge of the offending employee.[3]
*701 In addition to absenteeism, Roadway drivers are subject to discipline for a variety of other matters. Roadway's practice is to assign a running time between its facilities, and drivers who arrive more than ".50 clicks" (a half-hour) after the assigned time are subject to discipline for delay of freight, absent extraordinary circumstances such as severe weather. Drivers can also be rebuked formally for failure to turn in their daily logs as required by Department of Transportation rules.
From November 1987 through December 1992 Mike Lamphere ("Lamphere") served as the Chicago Heights relay manager, in which capacity his responsibilities included reviewing prospective disciplinary actions before they were issued.[4] That chore included an investigation of the documentation supporting the proposed discipline as well as a review of the accused driver's overall record. Roughly 10 to 25 proposed disciplinary letters typically made their way across Lamphere's desk each week, a total reflective of the fact that supervisors and dispatchers were apparently not very shy about writing people up. Indeed it was not uncommon for a driver with several years' experience to have received more than a dozen written warnings and as the later discussion reflects, at least one white driver (whom Cross unsuccessfully points to as having been treated more favorably) has been tagged with fully 35 disciplinary measures for unauthorized absences during his time with Roadway.
Cross' Claims
Complaint ¶ 9 alleges racial discrimination in the form of harassment by Roadway "with the intent of terminating [Cross] or making him quit." Underlying both his Title VII and Section 1981 claims are a number of disciplinary letters issued to Cross by Roadway for various reasons, the most common being absenteeism.[5] Cross contends that those marks against his record were undeserved and that the decisions to discipline him were actually motivated by his race. In support of that claim Cross says that other white drivers were treated more leniently.
Mojica v. Gannett Co., 7 F.3d 552, 561 (7th Cir.1993) (en banc) has succinctly mapped out Cross' task here:[6]
In any discrimination case, the plaintiff bears the ultimate burden to prove, by a preponderance of the evidence, that his employment was adversely affected by his protected class status. Kizer v. Children's Learning Center, 962 F.2d 608, 611 (7th Cir.1992); Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988). The plaintiff can meet this burden either by presenting direct evidence of discrimination, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 [105 S.Ct. 613, 83 L.Ed.2d 523] (1985), or by successfully navigating the course of *702 shifting burdens authorized in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973). See also St. Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S.Ct. 2742 [125 L.Ed.2d 407] (1993).
Because Roadway offers nothing that can be characterized as direct evidence of unlawful discrimination (as described in Troupe v. May Dep't Stores Co., 20 F.3d 734, 736-37 (7th Cir.1994)), he like most discrimination plaintiffs must look to circumstantial evidence (id. at 736-37), most often considered through the McDonnell Douglas methodology (see, most recently, Timm v. Mead Corp., 32 F.3d 273, 275, (7th Cir.1994)).
Under that well-established framework Cross must first establish a prima facie case[7] "by showing that: (1) he belongs to some protected class, (2) he performed his job satisfactorily, (3) he suffered an adverse employment action, and (4) his employer treated similarly-situated employees outside his class more favorably" (Hughes v. Brown, 20 F.3d 745, 746 (7th Cir.1994)). That showing would in turn create a presumption of unlawful discrimination and would thus shift the burden to Roadway to advance a "legitimate, nondiscriminatory" explanation for the adverse employment action (St. Mary's Honor Center, ___ U.S. at ___-___, 113 S.Ct. at 2746-47). If Roadway did that, Cross would bear the burden of showing that Roadway's proffered explanation was merely pre-textual (id.).
Like many other cases, this one illustrates the practical difficulties in separating out the various components that make up employment discrimination analysis. For example, any examination of Cross' prima facie attempt to establish his own satisfactory job performance necessarily overlaps with the analysis of whether Roadway stated explanation for disciplining Cross (based on his un-satisfactory job performance) was pretextual. In the same way, the inquiry into the fourth prima facie element (allegedly less favorable treatment accorded to Cross) meshes inextricably with Cross' attempt to demonstrate pretext by identifying similarly-situated but better-treated non-blacks.
But there is no need to get caught up in such conceptual concerns. After all, McDonnell Douglas is not intended to prescribe an ironbound formula. It rather furnishes a useful device to assist in getting to the bottom of the matter as Loyd v. Phillips Bros., Inc., 25 F.3d 518, 521 (7th Cir. 1994) put it:
Sometimes, however, too rigid adherence to the formulaic prescriptions of the appellate courts (which are laid out with particular factual settings in mind and are seldom as generalizable as purported) blocks proper analysis of what should be uncomplicated issues of discrimination.
As has been done in such cases as Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1391 (7th Cir.1990), this opinion focuses from the outset on the proposition that Cross cannot survive the present motion unless he can create a genuine factual issue as to whether Roadway's stated reasons for disciplining him were really pretextual.
Roadway's proffered explanations for disciplining Cross are his habitual unavailability, his occasional late arrivals and his failure to comply with company rules relating to his log book.[8] In arguing that his performance was in fact up to snuff (and relatedly that Roadway's stated reasons were pretextual), Cross urges that there was no reasonable basis for disciplining him. But even the most cursory *703 review of the record reveals that position to be totally devoid of merit.
Cross' overall attendance record (or more precisely his nonattendance record) is really astonishing. Out of the almost exactly 10 years of his employment by Roadway, he has missed about two-thirds (a total of some 6½ years) because of workers' compensation leaves (indicated by "WCL") and personal sick leaves (designated "PSL"):
February 22, 1985 to April 8, 1985 (WCL)
April 13, 1985 to June 5, 1985 (WCL)
June 23, 1985 to August 1, 1988 (WCL)
November 9, 1988 to January 30, 1989 (WCL)
January 30, 1989 to February 24, 2989 (PSL)
October 8, 1989 to March 10, 1990 (PSL)
July 1, 1990 to September 4, 1990 (WCL)
May 17, 1992 to the present (PSL)
Those excused absences do not of course support any disciplinary action, although they may make it more difficult for Roadway to plan on matching its business needs with its available personnel. But Cross' file also reflects a host of citations documenting multiple instances of his unexcused unavailability for service (all admitted in Cross' GR 12(n)(1) statement). On each of those occasions a disciplinary letter was issued after Cross had either taken himself out of service after accepting a work call or had refused to receive a dispatch in the first place. Roadway has clearly documented each of those violations, as well as Cross' two admittedly late arrivals and an admitted failure to turn in his daily log on one occasion.
Cross primarily attempts to discredit Roadway's disciplinary explanations by contesting the soundness of its decisions to issue the sanctions. As to the many instances of his unexcused unavailability, for example, Cross cites various mitigating circumstances that he insists absolve him in some of those situations factors such as doctors' notes (D. 12(m) ¶¶ 49, 65, 66, 88, 89), illnesses that, though not necessarily medically substantiated, nonetheless in his judgment prevented him from driving safely (P. 12(n)(2) ¶¶ 5A-10A), his father's heart attack (id. ¶ 3A) and Union business (D. 12(m) ¶¶ 51-57). Cross also challenges the charges of late arrival, contending that his tardiness stemmed from obligatory but time-consuming pre-trip inspections (P. Mem. 7). Finally Cross contests Roadway's characterization of the log incident as a violation of policy, referring to a letter that he wrote two weeks later (D. 12(m) ¶ 113):
If a log was not turn [sic] in on the 25th, it could have been turned in at 1400 the next day. Must a person make a special trip to turn in a log when he will be coming to work in a short while?
But it is not this Court's role to referee such disputes. Instead it is enough to note that Cross' efforts to turn those quarrels into a showing of prohibited race discrimination are entirely misguided. Of course Roadway was and is entitled to enforce a reasonable, clearly-expressed and time-tried set of rules and procedures (particularly one that ensures employees an opportunity to defend themselves), and this Court is not about to jump in to overrule its supervisors' determinations. As our Court of Appeals has said again and again (although often ringing different locutionary changes on the same theme), no court may "sit as a super-personnel department that reexamines an entity's business decisions" (Roger v. Yellow Freight Systems, Inc., 21 F.3d 146, 151 (7th Cir. 1994); and see a myriad of other cases such as Timm, 32 F.3d at 275-276; Kralman v. Illinois Dep't of Veterans' Affairs, 23 F.3d 150, 156 (7th Cir.1994); McCoy, 957 F.2d at 373; Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988); Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560 (7th Cir.1987); and Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986)).
Instead of urging this Court to examine and resolve in his favor the factual disputes underlying various of the incidents in question (something that would not contribute to the analysis of race-based discrimination vel non), Cross would fare far better if he could point to other similarly-situated but nonblack drivers who were not similarly disciplined for comparable conduct. That is of course the classic form of circumstantial evidence *704 of discriminatory intent (see, e.g., Bush, 990 F.2d at 931), and there has been no hint that St. Mary's or any other more recent case law has affected that concept. If Cross could indeed identify a pattern under which white drivers were not disciplined for unexcused absences, late arrivals or log book malfeasance, Roadway's justification of Cross' citations would appear pretextual, for selective enforcement of facially neutral regulations is no less insidious than outright discrimination (Fallon v. State of Illinois, 882 F.2d 1206, 1211 (7th Cir.1989); Friedel v. City of Madison, 832 F.2d 965, 972 n. 5 (7th Cir.1987)).
But Cross fails totally in that effort. P. Mem. 6 proffers Clay Tucker ("Tucker"), a white driver who was hired on the same day as Cross back in 1984, contending that Tucker has neither been disciplined for illness or injury nor has even heard of anyone who had been (P. 12(n)(2) ¶ 11A, citing Tucker Dep. 15, 23). By thus focusing on a single white driver, Cross' counsel has been inattentive to the lesson taught by Bush, 990 F.2d at 931-32 as to what is required to show evidence of discrimination in that respect. But even taken on his own terms, Cross has presented a misleading portrayal of Tucker's testimony. What Tucker actually said was that he had never been disciplined while on leave with an extended injury or illness (id.). But neither has Cross for that matter it is only unexcused absences that have prompted his discipline. Much more relevant for purposes of comparison, therefore, are the times that Tucker was not on leave, had exhausted his five sick days and nevertheless reported in as sick or otherwise unavailable for work. As for those situations, Tucker Dep. 29 states (reflecting treatment entirely comparable to what Cross testified as to his own experience):
Q: But what about when you're at home and you called in and said you were sick and unavailable?
A: When I'm home and I'm sick and not available, I would say a good majority of the time I have always got a warning letter.[9]
It is plain that Tucker simply does not serve Cross' purposes here. When all is said and done, Cross admits that Tucker was disciplined no less than 35 times over his career, 16 of those instances (along with a three-day suspension) having stemmed from charges of absenteeism (D. 12(m) ¶¶ 138-39; Lamphere Aff. ¶ 23). Though Cross never suggests any exact figure as to how many times he himself was disciplined, there is no indication that his disciplinary file was thicker than Tucker's.[10] In any event, Cross has made no attempt to salvage his comparison by showing that Tucker was actually a more egregious offender and was disciplined relatively less frequently. In sum, absolutely nothing relating to Tucker supports any inference of pretext (see Sims v. Mulcahy, 902 F.2d 524, 540-41 (7th Cir.1990)).
Nor has Cross succeeded in tieing Roadway's adverse actions to any racial animus on Roadway's part. As Sims, id. at 541 has explained:
Not only did Sims fail to demonstrate that she was treated differently than similarly situated white employees, she also fell far short of establishing the required element of discriminatory intent. The record appears devoid of any example of evidence revealing that Sims' race was considered in any manner in the City's discipline of Sims for her tardiness.
Only a few moments need be spent on Cross's effort to imply such illegal motivation on Roadway's part.
Cross would have it that he "was repeatedly subjected to racial slurs and overtly discriminatory *705 conduct by Roadway personnel." But once again his record citations in purported support of that claim do not bear out his characterization. For one thing, on one occasion (about 1991) Cross was in the drivers' room at Roadway and heard someone call out the word "nigger" (Cross Dep. 194-95). But Cross has no idea who said it, nor did he bring the incident to management's attention (id.). Cross also complains of an incident in the latter half of 1991 when he asked a dispatcher named Don Soich ("Soich") if any long runs were available, to which Soich replied "the only thing he had long for me was in his pant[s], his long white dick" (Cross Dep. 280 errata).
It need scarcely be said that racial slurs are deplorable in an employment setting (Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir.1994)) or, for that matter, in any other. But one or two[11] truly isolated epithets encountered in the course of a multi-year employment relationship do not give rise to an actionable claim of racial harassment under Title VII or Section 1981 (North v. Madison Area Ass'n for Retarded Citizens-Developmental Ctrs. Corp., 844 F.2d 401, 409 (7th Cir.1988)). Exposure to those one or two episodes during a ten-year career as a truck driver (a profession not exactly known for its puritanical language in any case) is just not going to fill the bill.
Even beyond that, Cross has provided no evidence from which it could be inferred that any statement evincing any degree of racism was made by any person who had an actual hand in disciplining him. Because dispatcher Soich has never disciplined Cross (D. 12(m) ¶ 125) and because Cross cannot even ascertain who made the first comment, he has not been able to make the crucial connection linking the affront or affronts with Roadway's decisional process (Young In Hong, 993 F.2d at 1266; LaMontagne v. American Convenience Prod., Inc., 750 F.2d 1405, 1412 (7th Cir.1984)). And Cross' few other efforts to label innocuous events as connoting racial bias are so patently lacking in merit that they do not warrant discussion.
In summary, no evidence anywhere in Cross' submissions gives rise to even the remotest inference that Roadway disciplined him because of his race or the color of his skin. It is worth noting parenthetically that the percentage of Roadway's employees at the Facility who are black has remained a constant 21% from 1989 through 1993 (D. 12(m) ¶ 7 and P. 12(n)(1) ¶ 7)[12] scarcely an indication of race-based animus (see Bush, 990 F.2d at 932).
Conclusion
All of Cross' contentions of race discrimination have proved to be wholly empty. There is no genuine issue of material fact, and Roadway is entitled to a judgment as a matter of law. This action is dismissed in its entirety.
NOTES
[1] This District Court's General Rule ("GR") 12(m) facilitates resolution of Rule 56 motions by requiring every movant to submit statements of assertedly uncontested facts with citations to the record in support of each, to which GR 12(n) requires every nonmovant to respond point by point, with citations to the record in support of (1) any claimed contest of the movant's version of the facts and (2) any additional facts that the nonmovant chooses to assert. Citations to the GR 12 statements here will take the respective forms "D. 12(m) ¶____", "P. 12(n)(1) ¶____" and "P. 12(n)(2) ¶____". Where Cross has admitted any D. 12(m) statement, either no record citation will be given or only that document will be cited. And where Roadway disputes any P. 12(n)(2) statement, this Court will adhere to the principles set out in the next paragraph of the text.
[2] By framing the time calculation in those terms, the Labor Guide sets up constantly rolling periods of review.
[3] There is a lot to be desired in the way the Labor Guide is drafted in this area its literal language sounds as though the cumulation of offenses carries through a driver's entire tenure with Roadway, so that a driver might be discharged for five very widely spaced unexcused absences. But that reading is entirely inconsistent with some employees' accumulations of large numbers of warning letters, as referred to later in this opinion something that would imply that discharge can occur only if five such "offenses" are committed in the same 60-day period. In any event, the opaque nature of the Labor Guide in that respect makes no difference in the outcome here (though it certainly affects what is at risk for any repeat offender).
[4] After any stage of discipline, drivers who felt they were reprimanded unfairly could pursue any of four options: (a) do nothing; (b) present their case directly to Lamphere; (c) submit a letter of rebuttal; or (d) file a grievance pursuant to the CBA. Cross acknowledges that Lamphere sometimes lessened the force of disciplinary letters or withdrew them completely if a driver or Union representative successfully presented a case for doing so (P. 12(n)(1) ¶ 33). Although he admits that he never pursued any of his gripes with Lamphere personally, Cross says he was never told he could do that (id. ¶ 34).
[5] All but two of the charged episodes antedated November 21, 1991, the effective date of the statutory amendment intended to reverse the decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) by making actionable under Section 1981 any "racial harassment relating to the conditions of employment" (id. at 171, 109 S.Ct. at 2369) of the sort at issue here. Roadway itself was the prevailing party in the recent Supreme Court decision (Rivers v. Roadway Express, Inc., ___ U.S. ___, ___-___, 114 S.Ct. 1510, 1514-20, 128 L.Ed.2d 274 (1994)) that has held the 1991 amendment inapplicable to pre-enactment conduct. Thus virtually all of Roadway's challenged conduct drops out for Section 1981 purposes.
[6] Disparate treatment claims such as Cross' are subject to the same burdens of proof and production under both Title VII and Section 1981 (Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir.1993)).
[7] In the present summary judgment context, of course, Cross need not "establish" or "prove" anything. Instead his lesser burden is to create a genuine factual issue (after having been given the benefit of reasonable inferences) as to each of the substantive areas dealt with in this opinion. That is the standard applied throughout this opinion, even though it may often employ the more stringent-sounding language to avoid awkward repetition of the "genuine issue" phraseology and to mirror the discussion in the principal cases in the area.
[8] Cross does not deny that the violations ascribed to him allowed the punishment meted out by Roadway under its operative rules (thus employers' adverse actions based on similar conduct have been upheld as nonpretextual in such cases as Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir.1993)).
[9] Cross also often received no discipline under those circumstances (see D. 12(m) ¶¶ 48, 54, 64, 75, 87).
[10] Indeed, the inference appears to cut in the other direction, for D.Mem. 4 (attempting to portray Cross' most grievous deficiencies) refers to his having been disciplined six times in one 13-month period. If that really represents Cross' worst performance, it would seem his total would not be likely to match Tucker's. But it should be emphasized that what controls the decision here is a matter of Roadway's bona fides and not mere bean-counting, and nothing tendered by Cross creates any doubts as to those bona fides.
[11] Soich's crude remark would plainly be relevant in a case charging sex harassment, but it is at least questionable to classify it as exhibiting racial overtones. In any event, Cross is no better off even with the most favorable inference that would characterize the remark as race-biased.
[12] Those objective numbers directly controvert Cross Dep. 324, where he said without any substantiation:
Every time a black leaves they do not replace him or her with a black. The turnover for blacks to whites on the firing is a big ratio. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324425/ | 689 S.E.2d 280 (2010)
WESLEY
v.
The STATE.
No. S09A1376.
Supreme Court of Georgia.
January 25, 2010.
*281 DuPont K. Cheney, Jr., Greensboro, for the appellant.
Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Bettieanne C. Hart, Assistant District Attorneys, Elizabeth A. Harris, Assistant Attorney General, Thurbert E. Baker, Attorney General, Atlanta, for the appellee.
HUNSTEIN, Chief Justice.
Rufus Wesley was convicted of malice murder and related crimes arising out of the shotgun shooting of Michael Cooper. He appeals from the denial of his motion for new trial[1] asserting that the trial court erred by admitting improper character evidence and by finding that he received effective assistance of trial counsel. For the reasons that follow, we affirm.
1. Evidence was adduced at trial that appellant, while carrying a shotgun, approached the unarmed victim as the victim loitered around property managed by appellant; that appellant cursed the victim for returning to the property; and that, as the victim was backing up or running away, appellant fatally shot the victim in the head. This evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charged *282 crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Although appellant contends the trial court erred by admitting bad character evidence, his failure to object at trial to the evidence constitutes a waiver of appellate review of the issue. See Hicks v. State, 285 Ga. 386(4), 677 S.E.2d 111 (2009).
3. Appellant contends he received ineffective assistance of counsel at trial. In order to succeed on this claim, appellant must show that his counsel's performance was professionally deficient and that, but for counsel's unprofessional conduct, there is a reasonable probability the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 688, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Varner v. State, 285 Ga. 300(3), 676 S.E.2d 189 (2009). Our review of the record establishes that appellant failed to make the requisite showings.
(a) Based on our review of the transcript, which reveals that trial counsel on cross-examination brought into question whether the trial testimony of witnesses Fleetwood and Williams was the result of recent fabrication, improper influence or improper motive, the trial court did not err by allowing the State to introduce these witnesses' prior consistent statements. See generally Woodard v. State, 269 Ga. 317(2), 496 S.E.2d 896 (1998). Thus, trial counsel did not perform deficiently by failing to make a meritless objection to the admission of this evidence. See Hayes v. State, 262 Ga. 881(3)(c), 426 S.E.2d 886 (1993) (failure to make a meritless objection cannot be evidence of ineffective assistance).
(b) Trial counsel was not ineffective for failing to make a meritless objection to the State's introduction into evidence of a shotgun similar to the murder weapon, which was never recovered. See Boyd v. State, 264 Ga. 490(2), 448 S.E.2d 210 (1994).
(c) Appellant asserts that trial counsel was ineffective by commenting during his opening statement that appellant's version of the events was not the truth.[2] However, when counsel's comment is read in context with his entire opening remarks, we conclude that the jury would not have reasonably interpreted his comment as disparaging the truthfulness of appellant's alibi defense but would have instead understood it as part of a strategic attempt to discredit the State's witnesses. Accordingly, appellant has failed to show how he was prejudiced by trial counsel's comment. Accord Ohio v. Brooks, 2005 Ohio 548, 2005 WL 334623, 2005 Ohio App. LEXIS 588 (2005).
(d) Appellant argues that trial counsel performed deficiently by failing to object to the admission of hearsay evidence. As to witness Harris, appellant does not identify how he was prejudiced by any particular matter related by this witness and our review of the transcript citations provided by appellant reveals that the prosecutor acted diligently to limit Harris's testimony to matters he personally knew, thereby providing no basis for a meritorious objection by defense counsel. As to the testimony of witness Moyers, a review of the transcript reveals that her testimony regarding appellant's bad character was based upon her personal knowledge. Thus, her testimony was not subject to a hearsay objection.[3] See generally Wilson v. State, 233 Ga. 479(3), 211 S.E.2d 757 (1975) (evidence based on personal knowledge of witness admissible).
(e) Contrary to appellant's contention that the testimony by witnesses Fleetwood and Moyers was too speculative to be admissible such that trial counsel performed deficiently by failing to object, our review of the transcript reveals that these witnesses relied *283 upon their personal knowledge of appellant and his interactions with the victim when they testified. Trial counsel was not ineffective for failing to make a meritless objection. See Hayes v. State, supra, 262 Ga. at 884(3), 426 S.E.2d 886(c).
(f) Appellant contends that trial counsel performed deficiently by failing to challenge the reliability of the State's photographic lineup. Appellant predicates this contention solely on his assertion in his brief that the State, during the prosecutor's opening statement, "all but admitted that there was a problem" with the identification of appellant by witness Williams. The transcript reveals, however, that the prosecutor merely noted that different witnesses had different descriptions of the clothing appellant was wearing at the murder scene and asked the jury to keep its attention on the similarities in the descriptions. Nothing in the prosecutor's comments constituted in any manner an admission by the State that the photographic lineup was unreliable. Moreover, our review of the lineup reveals no problems with its admissibility. See generally Payne v. State, 233 Ga. 294(II), 210 S.E.2d 775 (1974). Appellant has failed to show ineffective assistance of counsel based upon a failure to challenge the reliability of the pretrial identification procedure. See Mohammed v. State, 295 Ga.App. 514, 672 S.E.2d 483 (2009).
(g) The autopsy photographs were properly admitted into evidence because they either depicted the victim's body as it appeared before any autopsy incisions or else they were necessary to show some material fact apparent only because of the autopsy. See Berryhill v. State, 285 Ga. 198(3), 674 S.E.2d 920 (2009). Trial counsel was not ineffective for failing to object to these photographs. See generally Hayes v. State, supra, 262 Ga. at 884(3), 426 S.E.2d 886(c).
(h) Extensive testimony from numerous witnesses was adduced at trial that corroborated appellant's claim that the victim was a drug dealer who had been barred by appellant from the property managed by appellant. Thus, although appellant contends he was prejudiced by trial counsel's failure to seek the admission of additional corroborative evidence regarding the crack pipe found on the victim's person after he was murdered, he has failed to show sufficient prejudice to warrant relief. See, e.g., Duran v. State, 274 Ga.App. 876(3), 619 S.E.2d 388 (2005) (trial counsel's failure to present cumulative evidence through additional testimony does not amount to ineffective assistance).
(i) Although appellant asserts the cumulative prejudicial effect of trial counsel's errors, see generally Waits v. State, 282 Ga. 1(4), 644 S.E.2d 127 (2007), he has failed to substantiate most of the asserted deficiencies of counsel and has failed to show prejudice sufficient to sustain his claim. See Jarvis v. State, 285 Ga. 787, fn. 4, 683 S.E.2d 606 (2009). Accordingly, we conclude that the trial court did not clearly err in its determination that appellant received effective assistance of counsel.
Judgment affirmed.
All the Justices concur.
NOTES
[1] The crimes occurred on August 1, 2004. Wesley was indicted May 30, 2006 in Fulton County on charges of murder, felony murder, aggravated assault and possession of a shotgun during the commission of a felony. He was found guilty of all charges on August 24, 2007 and was sentenced on September 7, 2007 to life imprisonment for malice murder with a consecutive five-year sentence for the possession charge. Wesley's timely motion for new trial, as amended, was denied in an order filed on January 8, 2009. A notice of appeal was filed January 26, 2009. The appeal was directed to the Court of Appeals, where it was docketed on March 27, 2009 and transferred to this Court on April 7, 2009. After the appeal was docketed here on May 4, 2009, it was submitted for decision on the briefs.
[2] The transcript reveals that defense counsel, after introducing himself to the jury, began his opening by stating, "[A]s you all know as adults, there is [sic] three or four sides to every story. There is the State's version, the defendant's version, and somewhere in between there, there is the truth."
[3] We note that appellant does not assert that trial counsel was ineffective for failing to object to the testimony of Moyers and other witnesses, such as Fleetwood, on the basis that their testimony constituted inadmissible evidence of bad character. See Division 2, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/763710/ | 175 F.3d 1011
Marie Phamv.Y Sa Ibrahim, Melinda Ibrahim
NO. 98-7446
United States Court of Appeals,Third Circuit.
February 25, 1999
1
Appeal From: M.D.Pa.
2
Appeal Dismissed. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1324467/ | 119 Ga. App. 410 (1969)
167 S.E.2d 360
McMULLEN
v.
LIBERTY MUTUAL INSURANCE COMPANY et al.
44129.
Court of Appeals of Georgia.
Submitted January 13, 1969.
Decided February 13, 1969.
*411 Albert P. Feldman, for appellant.
Greene, Buckley, DeRieux, Moore & Jones, James H. Moore, for appellees.
HALL, Judge.
An amendment to the Workmen's Compensation Act approved February 9, 1968, provides: "Notwithstanding any court decisions previously rendered construing this Code section `change in condition' as used herein insofar as it relates to Code sections 114-404 and 114-405 shall mean solely an economic change in condition occasioned by the employee's return or ability to return to work for the same or any other employer; or inability to work or continue to work for the same or any other employer, which inability is proximately caused by the accidental injury. A Supplemental Memorandum of Agreement as to Payment of Compensation or any other agreement between the claimant and employer duly signed by the parties and approved by the State Board of Workmen's Compensation is, in the absence of fraud, accident or mistake, conclusive as to such change in condition. An award of the Board based upon an approved agreement has the same legal effect and dignity as an award of the Board based upon evidence adduced at a hearing of the issues." Ga. L. 1968, pp. 3, 7, amending Code § 114-709. This provision does not apply to the supplemental agreement of March 21, 1967. "The settled rule for the construction of statutes is not to give them retrospective operation, unless the language so imperatively requires." Bank of Norman Park v. Colquitt County, 169 Ga. 534, 536 (150 SE 841); Leathers v. Turner, 75 Ga. App. 62, 65 (41 SE2d 921); Mauldin v. Georgia Cas. &c. Co., 119 Ga. App. 406.
The agreement of March 13, 1967, is controlled by the law applicable to awards and approved agreements made before February 9, 1968. It continues in force until a new award is made upon application on the ground of a change of condition. Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 751 (113 SE2d *412 611). On the hearing in this case the board should have applied the law applicable to the 1967 agreement as set forth in the cases of Complete Auto Transit, Inc. v. Davis, 106 Ga. App. 369 (126 SE2d 909); Employers Liab. Assur. Corp. v. Whitlock, 111 Ga. App. 440, 442 (142 SE2d 77); and U. S. Fidelity &c. Co. v. Gibby, 118 Ga. App. 758 (165 SE2d 455), cert. denied. 118 Ga. App. 867.
Judgment reversed with direction that the case be remanded to the board for further action consistent with this opinion. Jordan, P. J., and Whitman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324435/ | 167 S.E.2d 68 (1969)
4 N.C. App. 303
STATE of North Carolina
v.
Carolyn LEDBETTER.
No. 6929SC154.
Court of Appeals of North Carolina.
April 30, 1969.
Certiorari Denied June 18, 1969.
*70 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Bernard A. Harrell for the State.
Arthur J. Redden, Hendersonville, for defendant appellant.
CAMPBELL, Judge.
The first contention of the defendant is that Judge Collier erred in refusing to rule on her plea of former jeopardy entered at the commencement of her trial. The record shows that, during the week of 9 December 1968, Judge Bryson presided over a special criminal session of the Henderson County Superior Court; this case was called for trial; the defendant and her husband entered pleas of not guilty; a jury was selected and impaneled before the noon recess; immediately after the noon recess, Judge Bryson withdrew a juror and ordered a mistrial with the consent of all parties. In the order declaring the mistrial, Judge Bryson found as a fact that a juror had been taken to a hospital in serious condition as the result of a sudden illness. The record further shows that, during the week of 16 December 1968, Judge Collier presided over this special criminal session; this case was again called for trial; the defendant and her husband entered pleas of former jeopardy and not guilty, whereupon Judge Collier, the solicitor, and the attorneys for the defendant and her husband retired to the judge's chambers for a discussion; they subsequently returned to the courtroom and the solicitor on behalf of the State proceeded to select the jury. The defendant took an exception because her plea of former jeopardy was not formally and specifically denied.
The defendant now claims that the trial court was requested to rule on this plea; the request was refused; and she was denied the right to be heard on this matter. The record, however, does not reveal any such request, refusal or denial. It is manifest, however, that the plea was denied as a matter of law since the court proceeded with the trial. The failure to make a formal and specific ruling under the circumstances of this case was not prejudicial error. See State v. Garnett, N.C. App., 167 S.E.2d 63, for a discussion by Mallard, C. J., of a similar problem involving a trial judge's failure to specifically *71 rule upon a motion of a defendant for judgment as of nonsuit.
A plea of former jeopardy is properly denied when a mistrial is declared as the result of a juror's sudden illness. In State v. Battle, 267 N.C. 513, 148 S.E.2d 599, the defendants were charged with conspiracy to break and enter, with a felonious breaking and entering, and with possession of burglary tools. The defendants were arraigned and pleas of not guilty were entered. After a jury was selected and after the State began introducing evidence, a defense attorney became suddenly ill. The trial judge thereupon ordered a mistrial over the defendant's objection and continued the case. On the second trial a plea of former jeopardy was entered. The Supreme Court stated:
"Decision on the plea of former jeopardy depends upon the validity of the mistrial order. Unless that order can be upheld, jeopardy attached, and the plea would be good. If the order is valid, the plea is not good. * * * * * *
For obvious reasons the rule against a mistrial finds its maximum rigidity in capital cases. A more flexible rule applies in cases of less gravity. `The ordering of a mistrial in a case less than capital is a matter in the discretion of the judge, and the judge need not find facts constituting the reason for such order.' * * * `We conclude that the trial judge in cases less than capital may, in the exercise of sound discretion, order a mistrial before verdict, without the consent of defendant, for physical necessity such as the incapacitating illness of judge, juror or material witness
* * *. His order is not reviewable except for gross abuse of discretion, and the burden is upon defendant to show such abuse.' * * * The incapacitating illness of the only counsel for one defendant, which developed after the trial began, is within the rule. The order withdrawing a juror, declaring a mistrial, and continuing the case to the next session of the court was valid. Hence the plea of former jeopardy was properly denied."
To like effect, see State v. Pfeifer, 266 N.C. 790, 147 S.E.2d 190, where a juror became suddenly ill.
There was no abuse of discretion in the instant case. The evidence was sufficient to support the denial of the plea of former jeopardy as a matter of law. In addition, the defendant consented to the order of mistrial. In State v. Crocker, 239 N.C. 446, 80 S.E.2d 243, the following was stated:
"It is well established that the plea of former jeopardy cannot prevail on account of an order of mistrial when such order is entered upon motion or with the consent of the defendant."
The first contention of the defendant is without merit.
The second contention of the defendant is that the trial judge erred in refusing to grant her motions for a special venire. It is argued that, if she was to get a fair and impartial trial, a special venire should have been called or the action removed to another county. In support of this argument, it is pointed out that twenty-two of the forty-nine prospective jurors were excused for cause since, in their opinions, they were prejudiced against the defendant and her husband, or each of them and since, in their opinions, they could not give the defendant and her husband, or either of them, a fair and impartial trial.
It is a matter of discretion with the trial judge whether to call a special venire or to remove the action to another county. G.S. § 9-11(b) provides, inter alia, that "[t]he presiding judge may, in his discretion, * * * direct * * * a special venire be selected. * * *" G.S. § 9-12(a) provides, inter alia, that "any judge of the superior court, [on the motion of the defendant] if he is of the opinion *72 that it is necessary in order to provide a fair trial * * * may order as many jurors as he deems necessary to be summoned from any county or counties * * *." G.S. § 1-84 provides, inter alia:
"In all * * * criminal actions in the superior and criminal courts, when it is suggested * * * that there are probable grounds to believe that a fair and impartial trial cannot be obtained in the county in which the action is pending, the judge may order a copy of the record of the action removed to some adjacent county for trial, if he is of the opinion that a fair trial cannot be had in said county * * *."
In State v. Allen, 222 N.C. 145, 22 S.E.2d 233, the Supreme Court stated:
"A motion for change of venue or for a special venire, may be granted or denied in the discretion of the trial Judge, and his decision in the exercise of such discretion is not reviewable [in this Court] unless gross abuse [of discretion] is shown."
In State v. Scales, 242 N.C. 400, 87 S.E. 2d 916, the Supreme Court stated:
"A motion for a change of venue or for a special venire from another county, upon the ground that the minds of the residents in the county in which the crime was committed had been influenced against the defendant, is addressed to the sound discretion of the trial court."
See State v. Ray, 274 N.C. 556, 164 S.E.2d 457; State v. Conrad, 4 N.C.App. 50, 165 S.E.2d 771; State v. Porth, 269 N.C. 329, 153 S.E.2d 10.
The record in the instant case reveals no abuse of discretion by the trial judge in denying the motions for a special venire.
The second contention of the defendant is without merit.
The third contention of the defendant is that the trial judge erred in denying her motions for judgment as of nonsuit entered at the close of the State's evidence and renewed at the conclusion of all the evidence. It is argued that "[t]here is not one iota of evidence that the defendant placed a finger on the deceased child except to love and to care for the child." There is in fact no direct evidence that the defendant is the guilty party. However, there is circumstantial evidence to the effect that she committed the crime in question. State v. Langlois, 258 N.C. 491, 128 S.E.2d 803, is a case factually similar to the instant case. The Supreme Court held that the evidence raised only a mere conjecture as to the existence of the defendant's guilt and that her guilt could not be based on mere probability as to past events. By "past events" the Supreme Court was referring to the evidence that, prior to the time in question, she had been observed hitting the child with her fists and with the tongue of the child's wagon. However, these two cases are readily distinguishable.
In Langlois the deceased was a three-and-one-half-year-old boy who "had been suffering from anemia most of his life" and who was described as being clumsy and as falling often. In the instant case, the deceased was a three-year-old boy described as physically normal for a child his age. In Langlois the death resulted from extensive peritonitis caused by the rupture of the small intestine, a condition which had existed for twenty-four to forty-eight hours prior to death. The evidence did not reveal whether the defendant had actual control and custody of the child during this period of time. The doctor who performed the autopsy testified that the "`lacerations and bruises were traumatic in nature, that is, caused by blows to his body not self-inflicted.'" The lacerations and bruises numbered approximately 150, most of which were superficial. "There were approximately a dozen or more lacerations which were through the skin which would have required suturing * * * had the child lived. The laceration on the abdomen of the child was approximately three eights to one half inch deep." In the instant case *73 Dr. LaTourette, who performed the autopsy, testified:
"It is my opinion these conditions had existed for at least four hours before death. * * *
* * * I have an opinion satisfactory to myself as to what caused the death of Christopher Ledbetter and that is peritonitis or inflammation of the abdominal cavity and this condition existed in his body at least four hours prior to his death. * * *
* * * His death was caused by acute peritonitis which is a poisoning in the abdomen cavity which had been set up for some four hours, a little more or a little less. * * *"
He further testified:
"[B]efore the autopsy I observed bruises on the body, on the abdomen, arms, legs, forehead and face. * * *
* * * The abdomen was distended. It contained a mixture of fluid and gas and the bowel was bruises (sic) at several points. There was a wide open tear through the beginning of the small intestine. The supporting tissue that holds that part of the bowel had a tear through it. * * * [T]here was a bruise in the pancreas. * * *
* * * The condition of the head and brain consisted of a bruise two to three inches in diameter in the deep part of the scalp, over the back side of the skull and a fresh hemorrhage on the underside of the brain, under the left lobe of the cerebellum.
* * * [There was] a tear in the surface of the liver. * * *
I have an opinion satisfactory to myself what would cause injuries that I have observed upon the body of Christopher Ledbetter, that is, blunt force, and I believe there were more than one blow, approximately ten blows or more in my opinion."
The State's evidence was sufficient to show that, on 27 July 1967, the defendant had actual and exclusive control and custody of the child from 7:30 in the morning until between 2:00 and 3:00 in the afternoon when the child was taken to the office of Dr. Baker. The defendant's husband and father of the child was at his place of employment during such period. He testified that he had bathed the child the night before "and there were not any noticeable bruises on him to the extent that I would be concerned or alarmed about him." This evidence distinguishes the two cases, and it is abundantly clear that the State's evidence in the instant case is much stronger and probative than in Langlois.
"`On motion to nonsuit, the evidence must be considered in the light most favorable to the state, and the state is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the state's evidence, are for the jury to resolve, and do not warrant nonsuit. Only the evidence favorable to the state will be considered, and defendant's evidence relating to matters of defense, or defendant's evidence in conflict with that of the state, will not be considered.' * * *" State v. Young, 271 N.C. 589, 157 S.E.2d 10.
"The State's evidence is circumstantial, but the test of its sufficiency is the same whether the evidence be circumstantial, direct, or both. * * * `If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.'" (citation omitted) State v. Tillman, 269 N.C. 276, 152 S.E.2d 159.
"The rule stated in [State v. Tillman, supra] does not mean that the evidence, in the Court's opinion, excludes every reasonable *74 hypothesis of innocence. Should the Court decide that the State has offered substantial evidence of defendant's guilt, it becomes a question for the jury whether this evidence establishes beyond a reasonable doubt that defendant, and no other person, committed the crime charged." State v. Bailiff, 2 N.C.App. 608, 163 S.E.2d 398.
"[T]here must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of the facts." State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.
Again, quoting from Brock, J., in State v. Bailiff, supra: "Considering the evidence in the light most favorable to the State we think the combination of facts as disclosed by the evidence constitutes substantial evidence of defendant's guilt, and not merely suspicious circumstances."
The third contention of the defendant is without merit.
The fourth contention of the defendant is that the trial judge committed error in accepting the verdict of the jury. It is argued that the trial judge instructed "the jury that they could only find the defendant guilty or not guilty of involuntary manslaughter and could not find her guilty of manslaughter," but that "the jury convicted her of manslaughter directly contrary to the * * * charge." The record reveals the following:
"The jury returns in open court, the defendant being present and the Clerk taking the verdict stated:
CLERK: Members of the jury, have you reached a verdict?
FOREMAN: We have.
CLERK: How do you find? Do you find the defendant Carolyn Ledbetter, guilty or not guilty of manslaughter, as charged in the Bill of Indictment * * *?
(EXCEPTION NO. 5)
FOREMAN: We have found her guilty."
The bill of indictment (supra) is in accordance with the following definition:
"Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the commission of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpably negligent manner, when fatal consequences were not improbable under all the facts existent at the time, or resulting from the culpably negligent omission to perform a legal duty." 4 Strong, N.C.Index 2d, Homicide, § 6, p. 197.
Judge Collier in his charge to the jury, after defining voluntary manslaughter, stated:
"In this case, you are not to concern yourself with voluntary manslaughter. You are to concern yourself with involuntary manslaughter. * * *
So, I charge you * * * if you find from the evidence and beyond a reasonable doubt * * * that * * * the defendant * * * so mistreated and abused the deceased child * * * or that she so failed to use that degree of care toward the deceased child which a reasonably prudent person would use under the same or similar circumstances and that such conduct was accomplished by such wanton and reckless disregard of the consequences so as to amount to culpable or criminal negligence * * * and such conduct on her part was the proximate result of the death of Christopher Ledbetter, then it would be your duty to convict the defendant * * * of involuntary manslaughter."
*75 The charge, to which no exception was interposed, is concerned solely with one crime, involuntary manslaughter. Voluntary manslaughter was not involved in any manner, and this was unequivocally brought to the attention of the jury. There could have been no confusion in the jurors' minds as to what crime was submitted to them for consideration or as to what crime the clerk was referring to when he spoke of the bill of indictment.
In State v. Green, 266 N.C. 785, 147 S.E.2d 377, it was stated:
"There can be no doubt as to the identity of the criminal offense of which defendant was convicted. What was said in * * * State v. Thompson, 257 N.C. 452, 126 S.E.2d 58, is controlling here:
`A verdict, apparently ambiguous, "may be given significance and correctly interpreted by reference to the allegations, the facts in evidence, and the instructions of the court." * * * "The verdict should be taken in connection with the charge of his Honor and the evidence in the case." * * *'"
In the instant case there could be no doubt as to the identity of the criminal offense of which the defendant was charged, tried and convicted. "When the verdict is interpreted with reference to the warrant, the evidence, and the charge, it is unambiguous." State v. Anderson, 265 N.C. 548, 144 S.E.2d 581.
The fourth contention of the defendant is without merit.
The fifth contention of the defendant is that the trial judge committed error in attempting to take the verdict a second time after the clerk had taken the verdict once and after an exception had been interposed by the defendant. The following appears in the record:
"CLERK: How do you find? Do you find the defendant, Carolyn Ledbetter, guilty or not guilty of manslaughter, as charged in the Bill of Indictment * *?
(EXCEPTION NO. 5)
FOREMAN: We have found her guilty.
THE CLERK: You find the defendant guilty, so say you all?
THE COURT: Now, members of the jury, this is the last jury case we will have this week. (Jury excused).
MR. REDDEN: I move that the verdict be set aside. Your Honor charged that [they] could only find her guilty of involuntary manslaughter. They found her guilty of manslaughter as charged in the Bill of Indictment.
THE COURT: They were only considering involuntary manslaughter.
MR. REDDEN: Maybe so, but they came in with a general verdict of guilty as charged in the Bill of Indictment.
MR. LOWE: If your Honor would call them back.
MR. REDDEN: I don't know whether you can do that or not. I don't think you can do that at all. They have already rendered their verdict and I move to set it aside.
THE COURT: You had better bring them back, so we can clear it up. Sheriff, bring them on back. (Jury comes back in courtroom.)
MR. REDDEN: Will your Honor let the record show that the jury had left the courtroom and your Honor calls them back.
THE COURT: Yes, sir. Would you rise, please. (Jury stands)
THE COURT: It has been brought to my attention that in taking the verdict, the Clerk used the word manslaughter and I have asked him to take the verdict again before you leave. Take the verdict.
CLERK: How do you find? Do you find the defendant Carolyn Ledbetter guilty or not guilty of involuntary manslaughter, *76 as charged by the Court * * *? FOREMAN: We have found her guilty."
It is argued that the trial judge committed error in accepting the initial verdict and in not instructing the jurors to "retire and render a proper verdict based upon the instructions." As stated supra, it is clear that the defendant was properly found guilty of involuntary manslaughter. The initial verdict is unambiguous when interpreted with reference to the warrant, the evidence and the charge. When the jury returned and again stated that they had found her guilty of "involuntary manslaughter", this was nothing more than a simple change in form. The change, which was in fact unnecessary, did not prejudice the defendant in any way. It was simply a different way of saying the same thing. The substance and meaning of the verdict remained unaltered. The second purported taking of the verdict was mere surplusage and the defendant was in no way prejudiced. See State v. Whitley, 208 N.C. 661, 182 S.E. 338; State v. Snipes, 185 N.C. 743, 117 S.E. 500; and State v. Kinsauls, 126 N.C. 1095, 36 S.E. 31.
The fifth contention of the defendant is without merit.
The sixth contention of the defendant is that the trial judge committed error in refusing to grant her motion to set the verdict aside. It is argued that the trial judge should have set the verdict aside "as being inconsistent and directly contrary to his charge." However, as seen supra, such an argument is unfounded. The trial judge acted within his discretion, and there was absolutely no abuse of this discretion. State v. Massey, 273 N.C. 721, 161 S.E.2d 103.
The sixth contention of the defendant is without merit.
This was a difficult and emotional case, and it is apparent that the trial judge approached his task with the utmost concern and preparation. The defendant had a fair and impartial trial, and her rights were vigorously protected at each step of the proceedings. The triers of the facts found against the defendant. In law we find
No error.
BROCK and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324441/ | 167 S.E.2d 414 (1969)
209 Va. 743
GENERAL ELECTRIC CREDIT CORPORATION
v.
Elmer LUNSFORD et al.
Supreme Court of Appeals of Virginia.
April 28, 1969.
*415 Hampton W. Thomas, Roanoke (Apostolou, Place & Thomas, Roanoke, on brief), for appellant.
A. L. Larkum, Waynesboro, for appellees.
Before EGGLESTON, C. J. and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.
SNEAD, Justice.
Elmer Lunsford and Nellie Lunsford, husband and wife, appellees, filed a petition in the court below praying that the clerk of the court be directed, as provided by Code, § 55-66.5(b), to make a marginal release of a deed of trust on certain real property belonging to them. They alleged that the right of anticipation was reserved in the deed of trust securing a negotiable note held by General Electric Credit Corporation, appellant, and that they made tender of the amount due under an exercise of that right, which tender General Electric refused to accept. The case was heard ore tenus on May 16, 1967, and by order dated June 3, 1967, the relief sought was granted. The case is before us on the following "Agreed Stipulation of Facts".
"Elmer R. Lunsford and Nellie Lee Lunsford, husband and wife, were the owners of a one acre tract of unimproved land, lying and being in South River District, Augusta County, Virginia, as evidenced by that certain deed dated October 24, 1960 and recorded in the Clerk's Office of the Circuit Court of Augusta County, Virginia in Deed Book 457, at page 539 on November 7, 1960.
"The said Elmer R. Lunsford and Nellie Lee Lunsford, husband and wife, conveyed the aforesaid property by deed of trust dated October 16, 1963, to Peter W. Runkle and/or William W. Woodward, Jr., both of Richmond, Virginia in trust to secure payment of one negotiable promissory note payable unto Le-Wood Homes, Inc., a Virginia Corporation [for] the sum of $16,383.88, payable in *416 144 monthly installments; 12 for $92.00, 12 for $97.00, 24 for $107.00, 95 for $120.29, and 1 for $120.33, beginning January 3, 1964, copy of deed of trust and note are hereto attached and made a part hereof. This was a first lien purchase money deed of trust for a shell home purchased from Le-Wood Homes, Inc. and was recorded in the aforesaid Clerk's Office in Deed Book 487, page 67 on November 6, 1963. The note was subsequently negotiated by endorsement to General Electric Credit Corporation, who presently holds said note, having purchased same by discount on December 12, 1963.
"The purchase amount of of (sic) $16,383.88 for the shell home was computed as follows: $9,200.00 principal; $7,137.88 being 6% add on rate for term of land [loan] and $46.00 for insurance coverage, a total of $16,383.88 representing total purchase price.
"By letter dated August 25, 1966, Lunsford was advised that payoff of his account was $13,366.88 and that the offer of this figure was good until September 3, 1966. By letter dated January 10, 1967 Mr. A. L. Larkum, attorney for Lunsford was advised that General Electric Credit Corporation had computed this payoff based upon the Rule of 78's or sum of the digits methods which is commonly used by companies in the field of discounting paper.
"By letter dated January 4, 1967 from General Electric Credit Corporation Complainant was quoted a pay-off of $9,487.07, based upon $13,045.88 principal, $3563.41 refunds and $4.60 late charges.
"By letter dated February 2, 1967, Larkum tendered a certified check to General Electric Credit Corporation for $7,121.00 as payment in full. By letter dated March 8, 1967 he volunteered to forward an additional $200.96 to cover earned insurance premium conditional upon General Electric Credit Corporation's willingness to accept his offer of payment. By letter dated March 7, 1967, General Electric Credit Corporation refused this counteroffer and returned the check in the amount of $7,121.00 to Larkum. Demand was made for the balance due on the note.
"Larkum in this proceeding, moves this Honorable Court for judicial release of the said deed of trust in accordance with the provisions of the Code of Virginia § 55-66.5(b) as amended.
"General Electric Credit Corporation demands the balance due upon its note in the amount of $13,045.88, being $16,383.88 less $3,338.00 paid by Lunsford, and requests this Honorable Court to rule as to the amount General Electric Credit Corporation is entitled to be paid as a condition precedent to the granting of the aforesaid judicial release as requested."
The deed of trust contains this provision:
"* * * This deed of trust is made under the provisions of Sections 55-59 and 55-60 of the Code of Virginia of 1950, and shall be construed to impose and confer upon the parties hereto, including the beneficiary hereunder, all of the duties, rights and obligations therein prescribed, including * * * right of anticipation reserved * * *."
Code, § 55-60(6) provides:
"The words `right of anticipation reserved,' or words of like purport, shall be construed as if the deed set forth: `The grantor reserves the right to anticipate the payment of the debt hereby secured, or any part thereof which is represented by a separate note (or other obligation) at any interest period by the payment of principal and interest to the date of such anticipated payment only.'"
Code, § 55-66.5, upon which the relief sought by the Lunsfords is based, reads:
"(a) Any person who owns or has any interest in real estate or personal property *417 on which such encumbrance exists may, after twenty days' notice thereof to the person entitled to such encumbrance, apply to the circuit or corporation court of the county or corporation in whose clerk's office such encumbrance is recorded or to the Chancery Court of the city of Richmond, if it be in the clerk's office of such court, to have the same released or discharged; and upon proof that it has been paid or discharged * * * such court shall order the same to be entered by the clerk on the margin of the page in the book wherein the encumbrance is recorded, which entry, when so made, shall operate as a release of such encumbrance.
* * * * * *
"(b) If it be made to appear to the court * * * that tender has been made of the sum due thereon but the same has been refused for any reason by the party or parties to whom due, the court may in its discretion order the sum due to be paid into court, to be there held as provided by law, and to be paid upon demand to the person or persons entitled thereto, and thereupon the court shall order the same to be recorded as provided in subsection (a) hereof, which entry shall operate as a release of the encumbrance."
The trial court advised counsel by letter that it had concluded that the deed of trust should be released upon payment of $7,321.96 to General Electric, the noteholder. The court did not state how it arrived at that figure. Thereafter, General Electric petitioned the court for a re-hearing, which was denied. By order entered June 3, 1967, the court found, among other things, that the Lunsfords had paid into court $7,321.96, that being the amount of principal and interest due as of February 2, 1967, the date of tender. It directed the clerk to make a marginal release of the deed of trust and to pay the amount deposited to General Electric.
General Electric first contends that under § 55-66.5 the trial court was without jurisdiction to determine "collateral issues extending beyond the four corners of the instruments." In support of its position, General Electric cites Wagner v. Peters, 142 Va. 412, 416, 417, 128 S.E. 445, 446 (1925), wherein it is stated that under the statute, "there is only a single fact to be established, that is, payment or discharge of the debt", and that "[t]he statute cannote be construed to authorize the decision of such decisive collateral issues" as must arise in a determination of liability under a policy of insurance.
Sub-section (b) was added to § 55-66.5 subsequent to this decision. Sub-section (b) relates to tender and refusal of the sum due, while sub-section (a) relates to payment or discharge. The principle enunciated in Wagner excluding a determination of collateral issues from a proceeding under the statute applies with equal force to sub-section (b). However, in the case at bar we are faced with no collateral issues. The right of anticipation is in the deed of trust itself and a determination of what amount constitutes the "sum due" under an exercise of that right is contemplated by the statute and is necessary to a determination of whether the "sum due" has been tendered, and cannot be termed "collateral".
General Electric further contends that it is a holder in due course of the note for which the deed of trust is security and as such is entitled to rely on the terms contained within the four corners of the note. It points out that the note on its face is a non-interest bearing installment note in the principal amount of $16,383.88 and says that it is entitled to that amount less $3,338.00 paid by the Lunsfords. A proceeding under § 55-66.5 is not an action on the obligation; it seeks only a release of the security, and a proper consideration is limited to the contract between the parties relating to the security. It is by this contract that the security is created and its nature and extent defined.
*418 In Shanabarger v. Phares, 86 W.Va. 64, 68, 69, 70, 103 S.E. 349, 350, 351, several negotiable notes secured by a deed reserving a vendor's lien were negotiated to a holder in due course. The deed provided for an abatement in the purchase price of the real property in the event of a deficiency in acreage. There was no reference to this provision in the notes. A deficiency was thereafter discovered and a release of the lien was sought to the extent of the alleged abatement in the amount of the obligation. The holder in due course sought to enforce the lien for the face amount of the notes. The court held that the purchasers of the land were entitled to the benefit of the abatement provision. In speaking of the security agreement the court said:
"* * * It fixes the relative status of the land and the notes and the rights of the holder of the notes respecting the land, whatever his right may be respecting the money called for by the notes * * *. Though the two papers are executed at the same time and closely related, they have different subjects and purposes, and there is no rule of interpretation or construction requiring them to be so treated as to affect either subject in a manner different from that intended by the parties or to defeat any of the purposes intended. * * * Being separate or at least separable, the note may and does confer one right and the security another. The former is governed by the law merchant, and the latter by the law of real property and equitable rules and principles, * * *. Here we have under consideration a resort to the security only, and the subject of inquiry is the extent to which the land is bound by the terms and provisions of the deed reserving the lien. * * * [W]e conclude that the holder of the notes involved can have no greater right respecting the land than the deed reserving the lien confers by its terms properly interpreted, whatever its right may be, respecting the maker and endorsers thereof. The lien on the land is created and defined by the deed, not the notes. * * *"
General Electric is bound by the provisions of the instrument on which it relies and can have no greater interest in the land than that conferred by the instrument creating the security. The fact that General Electric might also be a holder in due course of a negotiable note for which the deed of trust is security does not extend General Electric's interest in the property beyond that granted by the deed of trust.[1]
That the right of anticipation exists in favor of the Lunsfords is apparent from the deed of trust itself, and under its terms is to be construed in accordance with the provisions of § 55-60. As has been stated, General Electric points out that the note, as described in the deed of trust, appears on its face to be a non-interest bearing instrument. It contends that the $7,137.88 item is not interest but represents the "time price differential" which was added to the cash price of $9200, plus $46 for insurance, to arrive at $16,383.88, the total "time price" for the purchase of the shell home from Le-Wood Homes, Inc.
Under the long established theory of "time price differential" the vendor of property may charge one price for immediate cash payment or a different price if payment is to be made at a future date or in installments. The former is the cash price, the latter the time price and the difference is the time price differential. Such a sum is not considered interest in the strict sense and may exceed an amount which, if considered interest, would be usurious. Graeme v. Adams, 64 Va. (23 Gratt.) 225, Hogg v. Ruffner, 66 U.S. 115, 1 Black 115, 17 L.Ed. 38, Richardson v. *419 C.I.T. Credit Corporation, 60 Ga.App. 780, 5 S.E.2d 250. Although a time price differential is not interest for purposes of the usury statutes, under any interpretation it represents a charge for credit and we do not think that § 55-60 requires a construction so narrow as to exclude such charges from the term "interest". We do not mean to say that a note or deed of trust may not provide otherwise, but the instruments here involved did not.
General Electric says that if a rebate is required it should be computed in accordance with the Standard Rule of 78. In its supplemental brief filed it has voluntarily offered to rebate on this basis. While this method of computation is recognized by the General Assembly in cases of certain loans,[2] it is not mentioned in the note or deed of trust, nor is there any statutory requirement for its application to a first deed of trust on real property of the character here involved.
As has been said the trial court determined that $7,321.96 was the amount due as of February 2, 1967 for a release of the lien. Neither General Electric nor the Lunsfords have challenged the correctness of this figure if the Lunsfords were entitled to a pro-rata rebate of the credit differential. We hold that for the purposes of releasing the deed of trust they were entitled to a rebate on that basis. The question of the Lunsfords' remaining liability on the note, if any, is not before us and we do not decide that issue.
The judgment appealed from is
Affirmed.
CARRICO, Justice (dissenting).
I would reverse the decree of the trial court and dismiss the petition because I am of opinion that Code § 55-66.5(b) is not applicable under the circumstances of this case to provide the relief sought in the petition.
I think the provisions of subsection (b) of Code § 55-66.5 are designed to provide relief only where the sum due upon an indebtedness clearly appears or is easily computable. I cannot conceive that the Legislature intended the Code section to apply to a situation where, as here, the court must inquire into and resolve the complicated and contested contractual undertakings of the parties in order to arrive at a sum due.
In Turnbull v. Mann, 94 Va. 182, 26 S. E. 510 (1897), and Wagner v. Peters, 142 Va. 412, 128 S.E. 445 (1925), this Court properly limited the application of subsection (a) of Code § 55-66.5 to those instances where actual payment or discharge of an indebtedness can be shown. I see no reason to extend the application of subsection (b) beyond those instances where the sum due upon an indebtedness is known or is readily ascertainable.
NOTES
[1] For a general discussion see Osborne on Mortgages, §§ 231, 232 and cases there cited.
[2] Loans to natural persons by industrial loan associations and loans secured by mortgages or deeds of trust other than by first mortgages or deeds of trust except on residential property consisting of more than four family dwelling units. Code, §§ 6.1-234 and 6.1-330, as amended. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324477/ | STATE OF NORTH CAROLINA
v.
RICHARD MCKINLEY REDMOND, Defendant.
No. COA09-508
Court of Appeals of North Carolina.
Filed December 22, 2009
This case not for publication
Attorney General Roy A. Cooper, III, by Assistant Attorney General Barry H. Bloch, for the State.
Don Willey, for defendant-appellant.
STROUD, Judge.
On 5 May 2008, defendant Richard McKinley Redmond was indicted on the charge of obtaining property by false pretenses. On 2 September 2008, defendant was indicted for attaining the status of an habitual felon. The case was tried at the 13 November 2008 Criminal Session of Superior Court, Henderson County. We find no prejudicial error.
The facts relevant to defendant's appeal are as follows: On 8 December 2007, Joyce Pruitt had a car accident in Fletcher, North Carolina. Pruitt testified that she was stopped at a light when she was rear-ended by a vehicle driven by the defendant. Pruitt was given a "green slip" by the investigating police officer which contained the defendant's name, phone number, and insurance information. Pruitt folded the slip and placed it in her wallet.
On 4 January 2008, Pruitt visited the Big Lots store in Hendersonville, North Carolina. Pruitt testified that when she left, she inadvertently left her wallet in a shopping cart in the parking lot. Pruitt's wallet was discovered by Alphia Willis. Willis testified that she found a wallet in a "buggy" next to her car in the parking lot at Big Lots. Upon discovering the wallet, Willis took it inside the store and told an employee about her discovery. Eventually, Willis opened the wallet while under the watch of a Big Lots employee. Inside the wallet, Willis found credit cards with a woman's name on it, and a blue-green piece of paper with a man's name and telephone number on it. Willis called the number on the piece of paper. Willis asked if the man had Pruitt's phone number. The man responded that Pruitt "was hard to keep up with." Willis then told the man about finding Pruitt's wallet at Big Lots in Hendersonville. The man told her he would pick it up. Willis then told the man that she had been told by a Big Lots employee that Pruitt would have to pick up the wallet herself and present identification. Willis asked the man to pass on the message to Pruitt, handed the wallet to a store employee, and left the store.
Norma Wegman, a manager at the Big Lots store, testified that she was working on 4 January 2008 and that a wallet was turned over to her by one of the store employees. Later that day, she received a phone call regarding the wallet. The caller, a woman, told Wegman that she had lost her wallet, could not come in to retrieve it, and was sending a man over to pick it up for her. The caller described the man and gave his name, and Wegman wrote down this information and placed it with the wallet. Joshua Flood, another manager at the Big Lots store, testified that, later that day, he saw the wallet in the cash box along with the note from Wegman. Flood testified that two people came into the store to claim the wallet. The first person was a man that Flood identified at trial as being the defendant. Flood testified that he gave defendant the wallet, and defendant left with the wallet.
Pruitt discovered her wallet was missing a few hours after she lost it. Pruitt immediately called the store and then headed to the store to retrieve her wallet. Upon arriving at the store, she spoke with Flood, but Flood was unable to return her wallet because he had already given the wallet to somebody else. Pruitt then called the police. After the police arrived, Pruitt and Flood observed the surveillance video from the store. After watching the video, Pruitt was unable to identify the man to whom Flood gave her wallet.
Pruitt testified that she had several conversations with the police in the days after her wallet went missing. In one of the conversations, she was asked if she was involved in a car accident in December. Pruitt testified that upon hearing the question, "it all clicked." Pruitt testified that she realized the man in the video, to whom the Big Lots store manager gave her wallet was the "guy from the accident." Pruitt then informed police about the green slip of paper in her wallet, told police she could identify the defendant, and also that the defendant was wearing the same jacket in the video that he wore on the day of the accident.
At trial, while Pruitt was testifying, defendant's counsel cross-examined her regarding her criminal history, her lack of money to pay legal fees to regain custody of her daughter, and her having spoken to an attorney about suing Big Lots. In response, during closing arguments, the prosecutor stated that defendant wanted the jury to focus on the victim, not the defendant. The prosecutor again conceded that the victim had child custody issues, as well as prior convictions, and claimed that defendant sought to "distract" the jury away from the fact that the defendant stole her wallet. The prosecutor then argued:
[THE STATE]: Ladies and gentleman, that distraction wouldn't work because Ms. Pruitt, unlike unlike the defendant, was able to tell you.
[DEFENDANT'S ATTORNEY]: OBJECTION.
[THE STATE]: She was able to tell you the truth about what happened. She told you, "Yeah, I had two misdemeanor larceny convictions when I was younger."
[DEFENDANT'S ATTORNEY]: OBJECTION.
[THE STATE]: I was
[THE COURT]: OVERRULED
[THE STATE]: young and stupid. I told she told you what a mistake it was. She told you how she pled guilty, how she took her punishment. She told you everything. She put up with scrutiny, she put up with embarrassment and she told you everything that was asked of her. But what does any of that have to do with this anyway? Nothing. It's not relevant at all. Nothing nothing to do with this case.
After the prosecutor concluded her closing argument, the trial court commented on the record concerning the defendant's objections that occurred during the prosecutor's closing argument:
But the first during the State's closing argument, the statement was made I don't remember the full sentence but the sentence began with, "Joyce Pruitt, unlike the defendant, is able to tell you" and the sentence went on, which that could be taken as a direct a direct reference to the defendant's failure to testify.
Now, it can be taken in another context, also, in that Mr. that the evidence may tend to show I can't remember the evidence exactly. Mr. Redmond might have been unable to explain to a law enforcement officer certain things.
But Mr. Foster did object a few seconds after that statement was made. It appears you were reflecting on it, Mr. Foster, I don't know. You might have been objecting to something else. I overruled the objection. I don't know that any curative instruction would be possible in this type of situation if it happens that Mr. Redmond is convicted and the Court of Appeals reviews this. But that's just that's just the circumstances of that comment.
Defendant was convicted of obtaining property by false pretenses and having achieved habitual felon status and was sentenced to a term of seventy to ninety-three months imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred by failing to give a curative instruction, or declare a mistrial, immediately following the prosecutor's improper comment regarding defendant's exercise of his right not to testify.
After careful review of the record, briefs and contentions of the parties, we find no prejudicial error. Our Supreme Court has stated:
A defendant has the right to refuse to testify under the Fifth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution. A defendant's exercise of this right may not be used against him, and any reference by the State to a defendant's failure to testify violates that defendant's constitutional rights. A statement that may be interpreted as commenting on a defendant's decision not to testify is improper if the jury would naturally and necessarily understand the statement to be a comment on the failure of the accused to testify. However, a prosecutor's reference to a defendant's failure to testify does not mandate an automatic reversal but requires the court to determine whether the error is harmless beyond a reasonable doubt.
State v. Mitchell, 353 N.C. 309, 326, 543 S.E.2d 830, 840-41 (citations omitted), cert. denied, 534 U.S. 1000, 151 L. Ed. 2d 389 (2001).
Assuming arguendo that the prosecutor's comment in the present case was an improper comment on defendant's decision not to testify, we conclude that any purported error was harmless beyond a reasonable doubt. In the instant case, defendant was positively identified by multiple witnesses as being the person who was given the wallet by Flood. First, Flood, as well as an associate in the store, Emma Ruff, identified the defendant at trial as being the man who claimed the wallet. Second, the victim, Pruitt, testified that the man she observed on the surveillance video receiving the wallet from Flood was the defendant. Finally, the jury was able to view the surveillance video during the trial and make its own decision whether the man seen claiming the wallet was the defendant. Accordingly, in light of the overwhelming evidence of defendant's guilt, we find no prejudicial error.
No prejudicial error.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261959/ | 133 Cal.Rptr.2d 161 (2003)
107 Cal.App.4th 307
The PEOPLE, Plaintiff and Respondent,
v.
Katherine M. BROUGHTON, Defendant and Appellant.
No. B156268.
Court of Appeal, Second District, Division Seven.
March 21, 2003.
Review Denied June 11, 2003.[*]
*163 Sylvia Koryn, under appointment by the California Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.
*162 PERLUSS, P.J.
Penal Code section 1381.5. requires the district attorney to bring a defendant imprisoned in a federal correctional institution to trial or for sentencing in state criminal proceedings within 90 days after receiving an assent from an authorized federal official for the release of the defendant from federal custody for that purpose. If the defendant is not brought to trial or for sentencing as required by section 1381.5,[1] the trial court must, on motion, "dismiss the action."
Although as a formal matter, if the trial court at a sentencing hearing suspends imposition of sentence and places the defendant on probation, the defendant has not yet been sentenced, we hold section 1381.5 applies only to defendants who have not been tried or afforded an initial sentencing hearing following conviction, not probationers awaiting a probation revocation hearing. Accordingly, we affirm the trial court's denial of Katherine M. Broughton's motion to dismiss the criminal actions against her notwithstanding the district attorney's failure to comply with the procedural requirements of section 1381.5 following Broughton's demand for a "speedy trial" of her probation revocation hearing.
FACTUAL AND PROCEDURAL HISTORY
1. The State Actions
On September 14, 1998 Broughton pleaded guilty to possession of rock cocaine (Health & Saf.Code, § 11350, subd. (a)) and was placed on diversion for 18 months (§ 1000.2) under specified terms and conditions. On December 18, 1998 Broughton pleaded guilty to transportation of marijuana (Health & Saf.Code, § 11360, subd. (a).) Diversion in the first matter was terminated, and the two cases were scheduled for sentencing. On January 19, 1999 the trial court suspended imposition of sentence in both cases and placed Broughton on three years felony supervised probation with certain terms and conditions, including the condition she serve 210 days in county jail.
*164 2. The Federal Case
On October 2, 1999 Broughton was sentenced to 30 months in a federal correctional facility. The record does not identify the federal charges for which she was tried or convicted.
3. The First Probation Violation
On January 19, 2001 Broughton appeared in the state trial court and admitted (and the court found true) that she had violated the terms of her probation by deserting probation in both state cases.[2] The trial court revoked probation, then reinstated it in both cases with the condition that she serve an additional one year in county jail. Probation was to terminate upon her release from jail. Pursuant to Broughton's request, the court stayed the county jail condition of probation until January 31, 2001, and ordered Broughton to surrender on that date. Broughton did not inform the court of her federal sentence or otherwise indicate an inability to surrender herself for custody.[3]
4. The Second Probation Violation
On January 31, 2001 Broughton failed to surrender as ordered. Instead, the program director of a federal parole center informed the trial court that Broughton was in federal custody and had approximately five months left on her 30 month federal sentence. The trial court revoked probation and issued a bench warrant.
5. The Section 1381.5 Demand for a "Speedy Trial" in the State Cases
On April 13, 2001, while incarcerated in a federal correctional facility, Broughton filed in the state trial court an in propria persona "Motion for Speedy Trial or Speedy Disposition of Warrant(s)" under section 1381.5 (April motion).[4] Broughton demanded a "speedy trial" "on all actions pending against her" in the state jurisdiction. The April motion stated Broughton was scheduled to be released from the Federal Correctional Institution, Dublin, on December 4, 2001. The trial court placed the motion in Broughton's case file and took no further action. There is no evidence the motion was served on the *165 district attorney or Broughton's probation officer.
On October 4, 2001 the district attorney's office received a section 1381.5 "speedy trial" demand from Broughton (October demand). This demand listed Broughton's projected release date only as "4, 2002," omitting the month. Following receipt of the October demand the district attorney's office did not inquire of the head of the federal correctional institution in which Broughton was confined whether and when Broughton could be released for sentencing in the state matters, as required by section 1381.5.
Broughton was released from federal custody on January 8, 2002. On January 18, 2002 Broughton appeared in the state court and moved to quash the bench warrant issued on January 31, 2001 and to dismiss both state cases on the ground the district attorney failed to take any action on her section 1381.5 demand. The trial court dismissed the bench warrant and probation violation associated with her failure to surrender but denied Broughton's motion to dismiss the entire action, finding that Broughton had not been prejudiced by the district attorney's inaction. The court reinstated the previous order of probation with the condition Broughton serve one year in county jail. Probation was to terminate upon her release from custody.
Broughton obtained a certificate of probable cause (§ 1237.5)[5] and filed a timely notice of appeal from the orders granting probation.[6]
CONTENTION
Broughton contends section 1381.5 requires dismissal of an action if the district attorney fails to act on a demand for a "speedy trial" by a probationer awaiting a probation revocation hearing.
DISCUSSION
Section 1381.5 permits federal prisoners with pending criminal proceedings in state court to request to be brought to trial or for sentencing in the state action. Upon receipt of a request of defendant for trial or sentencing, the district attorney "shall promptly inquire" of the warden of the federal correctional institution housing the defendant "whether and when such defendant can be released for trial or sentencing" in the pending state matter. (§ 1381.5.) The People must bring the defendant to trial or for sentencing within 90 days of receiving an assent from the federal authorities for defendant's release for trial or sentencing in the state matter. "If [the] defendant is not brought to trial or for sentencing as provided [in section 1381.5], the court in which the action is pending shall, on motion or suggestion of the ... defendant or his counsel, dismiss the action." (Ibid.)
In a closely analogous situation involving section 1203.2a,[7] the Supreme Court held that dismissal of a criminal action was mandatory, without any showing of prejudice, if a probation officer failed to comply with the statute's procedural requirements, *166 intended to permit a probationer has been incarcerated on another offense to request immediate imposition of sentence by the probationary court. (In re Hoddinott (1996) 12 Cal.4th 992, 1005, 50 Cal.Rptr.2d 706, 911 P.2d 1381 (Hoddinott).) Although not citing Hoddinott, Broughton urges us to adopt a similar construction of section 1381.5, compelling dismissal of the underlying criminal action whenever the district attorney fails to comply with the section's mandate that he or she promptly inquire whether the defendant can be released for trial or sentencing.[8] Before we may address Broughton's contention, however, we must determine whether section 1381.5 is available to probationers as to whom imposition of sentence was suspended when probation was granted at the initial sentencing hearing.[9]
The handful of Courts of Appeal that have considered this issue have concluded, most often in dicta, that section 1381.5, along with its companion statute section *167 1381,[10] is applicable to probationers as to whom impositions of sentence was suspended because they "remain to be sentenced" in a pending criminal proceeding. (See, e.g., Rudman v. Superior Court (1973) 36 Cal.App.3d 22, 26-27, 111 Cal. Rptr. 249 (Rudman); Boles v. Superior Court (1974) 37 Cal.App.3d 479, 484, 112 Cal.Rptr. 286; People v. Johnson (1987) 195 Cal.App.3d 510, 514, 240 Cal.Rptr. 748, disapproved on another ground in Hoddinott, supra, 12 Cal.4th at p. 1005, 50 Cal. Rptr.2d 706, 911 P.2d 1381.)[11] Those decisions, however, have employed an overly technical interpretation of sections 1381 and 1381.5 that is inconsistent with the statutes' overall language and purpose and leads to anomalous consequences.[12]
1. Section 1381.5 Does Not Apply to Incarcerated Probationers Awaiting a Probation Revocation Hearing
In this case we must determine whether section 1381.5 applies to an individual who has been tried and convicted and who then appeared at a timely initial sentencing hearing at which imposition of sentence was suspended when the court placed the defendant on probation. Specifically, is such an individual when facing a probation revocation hearing a defendant who "remains to be sentenced" and thus entitled to be "brought ... for sentencing" within the time constraints of section 1381.5, with the consequence of the failure to do so dismissal of the underlying conviction?
In approaching this task we are guided by well-established principles of statutory interpretation: "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But `[i]t is a settled principle *168 of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.] Thus, `[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.' [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute `with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' [Citation.]" (People v. Pieters (1991) 52 Cal.3d 894, 898-899, 276 Cal.Rptr. 918, 802 P.2d 420.)
The plain meaning of the actual words used in section 1381.5 manifests the Legislature's intent to provide a speedy trial right to persons awaiting trial or an initial sentencing hearing, not those facing probation revocation hearings. (See People v. Loeun (1997) 17 Cal.4th 1, 9, 69 Cal.Rptr.2d 776, 947 P.2d 1313 ["`In interpreting statutes, we follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law....' [Citation.]"]; People v. Farell (2002) 28 Cal.4th 381, 386, 121 Cal.Rptr.2d 603, 48 P.3d 1155 [best indication of legislative intent appears in the language of the enactment].)
The requirement that a defendant be brought to court "for sentencing" does not usually connote an appearance for a probation revocation hearing at which the court may find no violation occurred or, notwithstanding a violation, may continue probation on the same or modified terms. In fact, a defendant who has been placed on probation has already been brought before the court "for sentencing," fulfilling the mandate of the statute, although imposition of sentence has been suspended with the grant of probation. If the purpose of section 1381.5 were to ensure a prompt probation revocation hearing, moreover, there would be no need to distinguish between probationers for whom execution of sentence was suspended and those for whom imposition of sentence was suspended, nor would there be any reason to require dismissal of the entire action, rather than simply the probation violation charge, as the sanction for violation of the statute's time requirements.
When interpreting a statute, "`"[w]ords must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible." [Citation.] Interpretations that lead to absurd results or render words surplusage are to be avoided. [Citation.]'" (People v. Loeun, supra, 17 Cal.4th at p. 9, 69 Cal. Rptr.2d 776, 947 P.2d 1313.) If sections 1381 and 1381.5 were to apply to probation revocation hearings, the "action," not the pending proceeding, must be dismissed if the defendant is not brought to the hearing in the manner prescribed by those sections. Such a dismissal would lead to the peculiar result that a probationer could have a conviction dismissed under a "speedy trial" statute months or even years after the conclusion of his or her trial and appearance at a timely sentencing hearing at which imposition of sentence was waived in favor of probation.
In tacit recognition that such a result could not have been intended by the Legislature, in the only case to actually apply section 1381.5 or section 1381 to an incarcerated defendant facing a probation violation hearing, Rudman, supra, 36 Cal. App.3d 22, 111 Cal.Rptr. 249, the court simply ignored the express statutory command to dismiss "the action" and, without any analysis or explanation, directed the trial court to dismiss only the probation violation charge. (Id. at pp. 27-28, 111 Cal.Rptr. 249.) A far more reasonable construction of the statute is to limit its *169 application to defendants awaiting an initial sentencing hearing.
2. Section 1381.5 Is a Codification of the Constitutional Right to "Speedy Trial" as Applied to Incarcerated Persons
The history of the 1971 amendments to section 1381.5, which added the language we construe in this case, confirms the Legislature's purpose to expand the speedy trial right of individuals in custody facing new charges to include prisoners who had been tried and convicted but were still awaiting entry of judgment or other final appealable orderthat is, those defendants who had not yet been heard at an initial sentencing hearing. When first enacted in 1963, section 1381.5 provided individuals in federal custody with a procedure to obtain a speedy trial on any pending "indictment, information, or complaint charging such defendant with the commission of a crime...." (Stats. 1963 Ch. 1567, § 1, p. 3151.)[13] A similar right was afforded to state prisoners under section 1381. (Stats.1933, Ch. 650, § 1, p. 1689.) Under both statutes the People's failure to bring the defendant "to trial" as prescribed required the court to dismiss "the charge." (Stats.1933, Ch. 650, § 1, p. 1689 [§ 1381]; Stats.1963, Ch. 1567, § 1, p. 3151 [§ 1381.5].)
Former sections 1381.5 and 1381 were enacted in recognition that the right to a speedy trial extends to all individuals, including convicts. (Barker v. Municipal Court (1966) 64 Cal.2d 806, 813, 51 Cal. Rptr. 921, 415 P.2d 809 (Barker).) As the Supreme Court explained, the guarantee of a speedy trial, whether secured by the Constitution or by statute, "`serves a three-fold purpose. It protects the accused ... against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and ... it prevents him from being "exposed to the hazard of a trial, after so great a lapse of time" that "the means of proving his innocence may not be within his reach"as, for instance, by the loss of witnesses or the dulling of memory.' [Citations.] [¶] The foregoing purposes are equally served with respect to one already imprisoned for another crime. Even the purpose of preventing undue imprisonment is of some concern to a California prisoner, because if he is promptly convicted of an additional offense he may be sentenced to serve a term of imprisonment concurrently with the term already imposed (Pen.Code, § 669); if a defendant is brought to trial only after his sentence on another charge has been completed, the possibility of concurrent sentences is denied him." (Ibid.)
In 1968, in People v. Brown, supra, 260 Cal.App.2d at page 751, 67 Cal.Rptr. 288 (Brown), the Court of Appeal confronted the question whether former section 1381.5 applied to a defendant who had been convicted, but, because he was in federal custody, *170 had not appeared at his initial sentencing hearing. Relying on Barker's statement of the purposes for a speedy trial statute, the court held the term "`brought to trial'" in former section 1381.5 had to include all aspects of the prosecution through "the entry of a judgment or other final, appealable order. The imposition of sentence is an essential part of the speedy trial guaranteed to all accused." (Id. at pp. 750-751, 67 Cal.Rptr. 288.) Accordingly, the court held the district attorney's delay in inquiring of federal authorities whether and when defendant could be released from federal custody for his sentencing in the state case violated the directive of section 1381.5 and required the trial court to dismiss the action. (Ibid.)
In 1971 the Legislature amended section 1381.5 and section 1381 to extend the right to a "speedy trial" to prisoners against whom "there is pending in any court of this state ... any criminal proceeding wherein the defendant remains to be sentenced ....." (Italics added.) The sanction for violating the statute was also changed from dismissal of the "charge" to dismissal of the "action." (Stats.1971, Ch. 1556, § 2, p. 3080 [§ 1381.5]; Stats.1971, Ch 1556, § 1, p. 3078 [§ 1381].) In expanding the "speedy trial" right from individuals awaiting trial to include those awaiting sentencing, the Legislature intended to "conform[ ] Section 1381.5 to th[e] decision" in People v. Brown, supra, 260 Cal.App.2d 745, 67 Cal.Rptr. 288 and thereby "[p]romote the speedy disposition of pending sentencings for defendants imprisoned in this state or in a federal correctional institution." (Sen. Com. on Judiciary, com. on Sen. Bill No. 1508 (1971 Reg. Sess.) as introduced, p. 2.)
The fundamental policies advanced by speedy trial statutes such as section 1381.5avoiding prolonged imprisonment, limiting anxiety attendant to an unresolved criminal charge, reducing the effect of lapse of time on trial witnesses and providing the opportunity for imposition of concurrent sentenceapply to defendants who have not been afforded a sentencing hearing, as well as to defendants who have not yet been tried. (See, e.g., Brown, supra, 260 Cal.App.2d 745, 67 Cal.Rptr. 288.) Those policies are not similarly implicated, however, by the timing of a sentencing hearing following revocation of probation for a probationer whose case has been prosecuted to a conviction and who accepted probation at a timely sentencing hearing in lieu of speedy imposition of sentence.[14] Unlike a defendant who has not appeared at an initial sentencing hearing, a probationer is not languishing pending a "final judgment"; his case has been prosecuted to a "final judgment." (See § 1237 [order granting probation is "a final judgment" for purposes of appeal].) Indeed, a probationer who waives speedy imposition of sentence in lieu of probation is no different from any other defendant who, faced with the opportunity for a speedy trial, nonetheless expressly waives it in lieu of some perceived benefit, whether that benefit is the time to prepare for trial or, as in this case, the clemency of probation.
3. Probationers May Seek Concurrent Sentences By Using the Procedure Set Forth in Section 1203.2a
Our conclusion that section 1381.5 is not applicable to probation revocation *171 hearings is reinforced by the fact that the Legislature has provided a procedure by which state probationers incarcerated on another matter, like Broughton, may seek a concurrent prison term from the probationary court. Pursuant to section 1203.2a, a defendant who has been placed on probation and is thereafter incarcerated for another offense may request imposition of sentence or some other final order terminating the probationary court's jurisdiction.[15] (§ 1203.2a; Hoddinott, supra, 12 Cal.4th at p. 1000, 50 Cal.Rptr.2d 706, 911 P.2d 1381; but cf. Rudman, supra, 36 Cal.App.3d at p. 27, 111 Cal.Rptr. 249 [§ 1381.5 and § 1203.2a do not conflict; an "unsentenced probationer" has the option to employ either section].)
The purpose of section 1203.2a is to provide a mechanism advising the probationary court of the subsequent confinement, thereby permitting the probationary court to consider imposing a concurrent sentence if that is the court's decision. (Hoddinott, supra, 12 Cal.4th at p. 999, 50 Cal.Rptr.2d 706, 911 P.2d 1381; In re White (1969) 1 Cal.3d 207, 211, 81 Cal. Rptr. 780, 460 P.2d 980.) Although the opportunity for concurrent sentences is one of the factors supporting a "speedy trial" right for convicts (Barker, supra, 64 Cal.2d at p. 813, 51 Cal.Rptr. 921, 415 P.2d 809), and certainly the main factor underlying section 1203.2a (Hoddinott, supra, 12 Cal.4th at p. 999, 50 Cal.Rptr.2d 706, 911 P.2d 1381; Hayes v. Superior Court (1971) 6 Cal.3d 216, 220, 98 Cal.Rptr. 449, 490 P.2d 1137), section 1203.2a is not a speedy trial statute. Rather, section 1203.2a is a legislative recognition that the probationary court may inadvertently deny the probationer an opportunity for a concurrent sentence if not made aware of the probationer's incarceration. As such, section 1203.2a is a corollary to section 669, directing the trial court to determine whether terms of imprisonment are to run concurrently or consecutively and providing that terms are to run concurrently if the trial court fails to make the required determination. (In re White, supra, 1 Cal.3d at p. 211, 81 Cal.Rptr. 780, 460 P.2d 980.)
4. Viewing Section 1381.5 and Section 1203.2a in the Context of the Statutory Schemes of Which They Are Part Further Demonstrates Section 1381.5 Was Not Intended to Apply to Probationers, Regardless of Whether Imposition or Execution of Sentence Was Suspended at the Initial Sentencing Hearing
The differences between sections 1203.2a and 1381.5 and when and to whom they are to be applied are underscored by their respective locations within the Penal Code. (See People v. Pieters, supra, 52 Cal.3d at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420["[W]e do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is [a] part so that the whole may be harmonized and retain effectiveness.' "].) Section 1381.5, appearing in a chapter entitled "Dismissal of the Action for Want of Prosecution or Otherwise," is part of a statutory scheme contemplating dismissal of the action prior to the completion of the prosecution with an initial sentencing hearing. (See, e.g., § 1382 [dismissal of action for failure to file information or bring case to trial within time limit]; § 1385 [dismissal of action, cause of action or charge in "furtherance of justice" either prior to or at sentencing hearing].) Section 1203.2a, in contrast, appearing in a chapter entitled "Judgment and Execution," expressly applies, along with every other statute in that statutory *172 scheme, after a conviction and an initial sentencing hearing.[16]
Section 1381.5 also must be read in conjunction with section 1387, which, appearing in the same chapter of the Penal Code, permits the People to refile an action dismissed under section 1381.5. (§ 1387[17]; Crockett v. Superior Court (1975) 14 Cal.3d 433, 439, 121 Cal.Rptr. 457, 535 P.2d 321 [section 1387 constitutionally permits prosecutor to refile felony action dismissed under section 1381 in absence of defendant's demonstration of actual prejudice]; People v. Gutierrez (1994) 30 Cal.App.4th 105, 111-112, 35 Cal.Rptr.2d 526.) As the Supreme Court explained, section 1387's authorization to refile a charge following a dismissal under section 1381 is consistent with the purpose of protecting a defendant's right to a speedy trial. "When th[e] charge has been dismissed against [the defendant] ... because of failure to bring him to trial, the charge is no longer pending against him. We see no reason therefore why another information may not be filed against him after such dismissal. He has had the first charge dismissed and thus his right to a speedy trial protected. The filing of a new information for the same offense commences a new period of time." (People v. Godlewski (1943) 22 Cal.2d 677, 682-683, 140 P.2d 381, italics added; see also Gutierrez, at p. 111, 35 Cal.Rptr.2d 526.)
Although the statutory authorization to refile the action (§ 1387) makes sense if the action is dismissed for failure to prosecute in a timely fashion (including the failure to bring a defendant to a timely initial sentencing hearing), it is illogical to apply that section to a probationer awaiting a probation revocation hearing. The prosecution of such a defendant necessarily concluded upon the grant of probation, a final, appealable order. (See Brown, supra, 260 Cal.App.2d at p. 751, 67 Cal.Rptr. 288.) By the time a defendant is faced with a pending probation revocation hearing, neither the dismissal of the underlying action nor the refiling of it under a "new time clock" would in any way "protect" or further his or her speedy trial rights.
Section 1203.2a, in contrast, contemplates neither a "dismissal" of an action nor the "refiling" of an action precisely because the section only comes into effect once the action has been prosecuted to a final, appealable order, regardless of whether imposition or execution of sentence has been suspended. (§ 1237.) Under section 1203.2a, the sanction for failing to revoke probation and impose sentence or execute sentence if sentence has already been imposed, within the prescribed time period, is not "dismissal" of the action but, appropriately, the deprivation of the probationary court's further jurisdiction in the matter. In effect, section 1203.2a tells the probationary court, act on defendant's demand that you terminate your jurisdiction, either through imposition of sentence or execution of sentence if already imposed, or lose jurisdiction by operation of this statute.
Deprivation of the probationary court's continuing jurisdiction is thus wholly consistent with section 1203.2a's overall purpose of permitting the probationary court *173 to consider imposing a concurrent sentence and "`precluding] the inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant' when the statutory time limits are not observed." (Hoddinott, supra, 12 Cal.4th at p. 999, 50 Cal.Rptr.2d 706, 911 P.2d 1381.) Interpreting section 1381.5's dismissal of the "action" to apply to probationers after an initial sentencing hearing and the issuance of a final appealable order, in contrast, would be nonsensical, undermining both the purpose of section 1381.5 and the statutory scheme of which it is part.
5. Broughton's Demand Did Not Comport with the Requirements of Section 1203.2a
Even though Broughton intended to invoke a right to a speedy trial under section 1381.5, if either the April motion or the October demand was sufficient to trigger section 1203.2a, she is entitled to the protection of that statute. (See In re Flores (1983) 140 Cal.App.3d 1019, 1022, 190 Cal.Rptr. 388 [although section 1381 not available to sentenced probationer, his demand letter should have been evaluated under the requirements of section 1203.2a].) As applied to a probationer whose sentence has not been imposed, the probationary court has 30 days from the receipt of a valid, formal request from the defendant within which to impose sentence or lose further jurisdiction. (§ 1203.2a; Hoddinott, supra, 12 Cal.4th at p. 999, 50 Cal.Rptr.2d 706, 911 P.2d 1381.) Broughton's April motion did not meet the strict requirements for such a request; specifically, it did not include a waiver of the right to be present and to be represented by counsel. (§ 1203.2a.) In the absence of such a waiver, the court is without the constitutional power to impose sentence in the defendant's absence. (Hoddinott, at p. 999, 50 Cal.Rptr.2d 706, 911 P.2d 1381; see Hayes v. Superior Court, supra, 6 Cal.3d at p. 225, 98 Cal.Rptr. 449, 490 P.2d 1137 [that section 1203.2a affords opportunity for concurrent sentences, if that is the trial court's discretion, only after probationer waives his or her right to be present and represented by counsel is a "reasonable method of effectuating proper legislative purposes" and is not unconstitutional].)
Section 1203.2a also imposes a duty upon a probation officer to advise the probationary court within 30 days after being notified in writing of the defendant's confinement. The probation officer's failure to do so deprives the court of further jurisdiction, whether or not the letter includes a waiver of the right to be present and represented by counsel. (Hoddinott, supra, 12 Cal.4th at p. 1000, 50 Cal. Rptr.2d 706, 911 P.2d 1381; § 1203.2a) The record before us is silent as to whether the April motion or October demand was ever delivered to Broughton's probation officer. We therefore have no basis to find that section 1203.2a was invoked or that the trial court lacked jurisdiction to set aside the prior order revoking probation and to grant probation under the terms and conditions afforded.
Accordingly, the trial court did not err in denying Broughton's motion to dismiss the actions under section 1381.5 or in reinstating its earlier order of probation with the additional condition of one year in county jail.
DISPOSITION
The judgments (orders granting probation) in case numbers LA031136 and SA034513 are affirmed.
I concur: WOODS, J.
*174 JOHNSON, J., Dissenting.
I respectfully dissent.
I first want to compliment the majority for a sophisticated, indeed intricate, opinion explaining why the Legislature did not mean what it said in the statute at issue. One of the interesting and also confounding attributes of the many "canons" of legislative interpretation is that they often are in conflict and can be used to justify divergent interpretations of a given statute or statutory scheme. In this case, the majority fires a full battery of such canons aimed at demolishing the "literal" language the Legislature used to define who was entitled to the benefit of section 1381.5. Nonetheless, I am persuaded the prior courts got it right, albeit in dictum.[1] In my view, section 1381.5 does apply to California probationers who are in custody as federal prisoners.
The issue is rather simple. Does the clause "any criminal proceeding wherein the defendant remains to be sentenced"[2] include probationers who have yet to receive a term of confinement for an alleged probation violation? That is, has someone who received probation been "sentenced" or is she only sentenced when the court finds a violation of probation and imposes a term of imprisonment? Or assuming the initial grant of probation does constitute a "sentencing" does a later probation revocation proceeding represent a second "criminal proceeding wherein the defendant remains to be sentenced?" I grant the language is susceptible to either of these interpretations, but either one yields the same result a probation revocation proceeding falls within the broad term "any criminal proceeding wherein the defendant remains to be sentenced."
To find support for the conclusion a probationer is not "sentenced" until given a term of imprisonment pursuant to revocation of her probationary status, one need look no farther than section 1203.2a, the code section the majority finds clearly applicable to probationers.[3] That statute *175 speaks of defendants being "released on probation" not as "sentenced to probation." It further distinguishes the status of being on probation from receiving a sentence in defining the class of defendants and situations to which its provisions apply as those where "no sentence has previously been imposed for the offense for which he or she was granted probation...."
From this language in section 1203.2a, it is more than apparent the Legislature considers a probationer "remains to be sentenced" until the court revokes her probation and imposes a term of confinement. That is, a release on probation is not a sentence. Accordingly, until probation is revoked and a term of confinement imposed, a defendant in federal custody is subject to a "pending ... criminal proceeding where [she] remains to be sentenced." As a consequence, she is entitled to invoke the protections of 1381.5.
But as pointed out above, even if a defendant who receives probation is considered to have been "sentenced," that does not mean section 1381.5 is inapplicable when she faces probation revocation. This second proceeding also qualifies as a "criminal proceeding wherein the defendant remains to be sentenced." It can be construed as a second stage of the initial sentencing or as a separate proceeding. But once again, either way it constitutes a "criminal proceeding wherein the defendant remains to be sentenced." No one can seriously dispute a probation revocation hearing is a "criminal proceeding." And it seems difficult to dispute it is a proceeding where a "sentence is imposed" and until which it occurs the defendant "remains to be sentenced."
*176 At the policy level as opposed to interpretation of the statutory language the Legislature used, the majority seeks to distinguish a defendant's interest in a timely first sentencing from her interest in a timely probation revocation proceeding. (Maj. Opn. at pp. 170-171.) The majority summarizes these policy considerations as "avoiding prolonged imprisonment, limiting anxiety attendant to an unresolved criminal charge, reducing the effect of lapse of time on trial witnesses, and providing the opportunity for imposition of concurrent sentence." (Maj. Opn. at p. 170.) These policies, the majority emphasizes, "apply to defendants who have not been afforded a sentencing hearing" as well as those who have not yet been tried. (Ibid.) I submit they also apply to probationers who are alleged to have violated probation. Without the protection of section 1385.1, the possibility of probation revocation and the potential prison term resulting therefrom may remain unresolved until the federal term is completed perhaps many years hence. As a result, such probationers may experience anxiety, may lose witnesses who could disprove the alleged grounds for revocation, lose the opportunity for a concurrent sentence, and end up with prolonged imprisonment.
The majority makes much of section 1203.2a and the opportunity it affords for probationers to seek a concurrent sentence. (Maj. Opn. at pp. 171-172.) Unfortunately, this section requires probationers who wish to take advantage of its benefits to throw themselves on the mercy of the court. In order to plead for this measure of mercy, probationers must give up any opportunity to challenge the allegations they violated the terms of probation. They must surrender their rights to counsel or even to personally attend the proceeding if it can be called that where the trial court decides whether to grant the request for a concurrent sentence. This may be an adequate remedy for those who know they have no chance of defeating the revocation allegations or whose maximum term upon revocation will expire before or soon after the term they are serving presently. But for many probationers it is no substitute for the opportunity afforded by section 1385.1 (and its companion § 1381).
For these reasons, I would interpret section 1385.1 as embracing alleged probation violators as well as others involved in "criminal proceedings wherein the defendant remains to be sentenced."
NOTES
[*] Kennard, J., and Werdegar, Jr., dissented.
[1] Statutory references are to the Penal Code unless otherwise indicated.
[2] Broughton deserted probation immediately after it was granted in January 1999, approximately 10 months before her conviction and incarceration on the federal offense.
[3] It is not clear how Broughton, who began serving a 30-month federal sentence in October 1999, was able to appear at the state hearing on January 19, 2001. Although the trial court speculated Broughton may have been in a halfway house at that time, nothing in the record confirms that suggestion.
[4] Section 1381.5 provides: "Whenever a defendant has been convicted of a crime and has entered upon a term of imprisonment therefor in a federal correctional institution located in this state, and at the time of entry upon such term of imprisonment or at any time during such term of imprisonment there is pending in any court of this state any criminal indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced the district attorney ... upon receiving from such defendant a request that he be brought to trial or for sentencing, shall promptly inquire of the warden or other head of the federal correctional institution in which such defendant is confined whether and when such defendant can be released for trial or for sentencing. If an assent from authorized federal authorities for release of the defendant for trial or sentencing is received by the district attorney he shall bring him to trial or sentencing within 90 days after receipt of such assent, unless the federal authorities specify a date of release after 90 days, in which event the district attorney shall bring the prisoner to trial or sentencing at such specified time.... [¶] If a defendant is not brought to trial or for sentencing as provided by this section, the court in which the action is pending shall, on motion or suggestion of the district attorney, or representative of the United States, or the defendant or his counsel, dismiss the action." (Italics added.)
[5] Section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty" without first obtaining a certificate of probable cause for such an appeal. Because Broughton does not challenge the validity of her plea but only the denial of the motion to dismiss under section 1381.5, a certificate of probable cause was not required. (People v. Brown (1968) 260 Cal.App.2d 745, 746, 67 Cal.Rptr. 288.)
[6] An order granting probation is a "final judgment" for purposes of appeal (§ 1237).
[7] Section 1203.2a provides: "If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel. [¶] The probation officer may, upon learning of the defendant's imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation. [¶] Upon being informed by the probation officer of the defendant's confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in this case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made. If the case is one in which sentence has previously imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence. [¶] ... [¶] In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case."
[8] Unlike section 1381.5, which directs that the trial court shall "dismiss the action" if a defendant is not brought to trial or for sentencing as required by the statute, section 1203.2a provides that the court "shall be deprived of jurisdiction over defendant" in the event the probation officers fails to comply with the statute's requirements or the court fails to impose sentence as prescribed by the section.
[9] Because Broughton has already served her one year in county jail and probation has terminated, the issue on appeal is "technically moot." (Hoddinott, supra, 12 Cal.4th at p. 996, fn. 3, 50 Cal.Rptr.2d 706, 911 P.2d 1381.) We exercise our discretion to address the issue because proper adjudication of section 1381.5 as applied to probationers is a recurring issue of public importance. (See ibid.; Butt v. State of California (1992) 4 Cal.4th 668, 677, fn. 7, 15 Cal.Rptr.2d 480, 842 P.2d 1240.)
[10] Section 1381 affords a similar right to state prisoners. (§ 1381.) Because of the analogous nature of the two statutes, cases interpreting section 1381 are persuasive authority for interpreting section 1381.5. (People v. Garcia (1985) 171 Cal.App.3d 1187, 1191, 217 Cal.Rptr. 783.)
[11] Probationers who were sentenced following conviction, but as to whom execution of sentence was suspended when they were placed on probation, fall outside the scope of section 1381.5 under any interpretation of the statute. (Boles v. Superior Court, supra, 37 Cal.App.3d at p. 484, 112 Cal.Rptr. 286.) Providing different procedural rights to probationers depending on whether imposition or execution of sentence has been suspended does not violate the equal protection clause of the United States Constitution or the parallel provisions of the California Constitution. (Id. at p. 485, 112 Cal.Rptr. 286.)
[12] Although in Boles v. Superior Court, supra, 37 Cal.App.3d at page 484, 112 Cal.Rptr. 286, and People v. Johnson, supra, 195 Cal.App.3d at page 514, 240 Cal.Rptr. 748, the Court of Appeal, Third District read section 1381 as applicable to an in-custody defendant facing a probation revocation hearing, in both cases the court held the defendant fell outside the scope of the statutein Boles because the defendant had been sentenced, although execution of sentence was suspended; and in Johnson because the defendant was in custody out of state. Those decisions, therefore, did not need to consider whether their overly literal interpretation of a "defendant awaiting sentence" was reasonable in light of the purpose of section 1381 or the policies it was designed to further. As discussed post, at pages 168 to 169, in Rudman, supra, 36 Cal. App.3d at page 28, 111 Cal.Rptr. 249, the only court to directly apply section 1381 to a probationer awaiting a probation violation hearing, the court avoided the incongruous result that followed from its construction of section 1381 by simply ignoring the statute's mandate that the entire action be dismissed. None of these cases contains a persuasive analysis of the issue before us.
[13] Prior to 1971 section 1381.5 provided: "Whenever a defendant has been convicted of a crime and has entered upon a term of imprisonment therefor in a federal correctional institution, and at the time of entry upon such term of imprisonment or at any time during such term of imprisonment there is pending in any court of this State any indictment, information, or complaint charging such defendant with the commission of a crime, it is mandatory that the district attorney of the county in which such charge is pending, upon receiving from such defendant a request that he be brought to trial on such charge, promptly inquire of the warden or other head of the federal correctional institution in which such defendant is confined whether and when such defendant can be released for trial.... [¶] If an action is not brought to trial as provided by this section, the court in which the charge is pending shall, on motion or suggestion of . . . the defendant or his counsel, dismiss the charge." (Stats.1963, Ch. 1567, § 1, pp. XXXX-XXXX, italics added.)
[14] There are no statutory time limits on when a probation revocation hearing must be held. Due process requires that any delay not be "unreasonable." (See Morrissey v. Brewer (1972) 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484, [parole revocation hearing]; Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656, [extending due process safeguards established in Morrissey to probation revocations].)
[15] The text of section 1203.2a is set out fully in footnote 8, ante, at page 166.
[16] Section 1203.2a provides alternative procedures depending on whether imposition or execution of sentence was suspended when probation was granted.
[17] Section 1387 provides in part: "Dismissal as bar to prosecution; exceptions [11] (a) 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 or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter ..., or if it is a misdemeanor not charged together with a felony. ..."
[1] See, e.g., People v. Johnson (1987) 195 Cal. App.3d 510, 514, 240 Cal.Rptr. 748, disapproved on other grounds in In re Hoddinott (1996) 12 Cal.4th 992, 1005, 50 Cal.Rptr.2d 706, 911 P.2d 1381, Boles v. Superior Court (1974) 37 Cal.App.3d 479, 484, 112 Cal.Rptr. 286, and Rudman v. Superior Court (1973) 36 Cal.App.3d 22, 26-27, 111 Cal.Rptr. 249.
[2] Section 1381.5 provides: "Whenever a defendant has been convicted of a crime and has entered upon a term of imprisonment therefor in a federal correctional institution located in this state, and at the time of entry upon such term of imprisonment or at any time during such term of imprisonment there is pending in any court of this state any criminal indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced the district attorney ... upon receiving from such defendant a request that he be brought to trial or for sentencing, shall promptly inquire of the warden or other head of the federal correctional institution in which such defendant is confined whether and when such defendant can be released for trial or for sentencing. If an assent from authorized federal authorities for release of the defendant for trial or sentencing is received by the district attorney he shall bring him to trial or sentencing within 90 days after receipt of such assent, unless the federal authorities specify a date of release after 90 days, in which event the district attorney shall bring the prisoner to trial or sentencing at such specified time.... [¶] If a defendant is not brought to trial or for sentencing as provided by this section, the court in which the action is pending shall, on motion or suggestion of the district attorney, or representative of the United States, or the defendant or his counsel, dismiss the action." (Italics added.)
[3] Section 1203.2a provides: "If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel. [¶] The probation officer may, upon learning of the defendant's imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation. [¶] Upon being informed by the probation officer of the defendant's confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made. If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence. [¶] ... [¶] In the evenl the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261966/ | 618 A.2d 197 (1992)
John N. MIHAS, Appellant,
v.
UNITED STATES, Appellee.
No. 91-CM-326.
District of Columbia Court of Appeals.
Submitted May 14, 1992.
Decided December 30, 1992.
*198 Donna C. Becker, Washington, DC, appointed by this court, for appellant.
Jay B. Stephens, U.S. Atty., with whom Albert A. Herring, John R. Fisher, and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, DC, for appellee.
Before FERREN, Associate Judge, and PRYOR and BELSON, Senior Judges.
BELSON, Senior Judge:
A Superior Court judge found appellant John Mihas guilty of assault, in violation of D.C.Code § 22-504 (1989 Repl.), possession of a prohibited weapon, in violation of D.C.Code § 22-3214(b), and carrying a *199 deadly or dangerous weapon, in violation of D.C.Code § 22-3204, and sentenced him to time served (two months). Mihas contends that the evidence was insufficient to sustain a conviction on any of the three counts. We disagree, and therefore affirm.
I.
In the late afternoon of October 11, 1990, the complaining witness, Paul Rinehart, was walking down an alley in his neighborhood, Cleveland Park, headed in the direction of a Seven-Eleven store on Connecticut Avenue. In the alley, he encountered appellant, a sixty-one year old man who was "living on the street" and carrying his possessions with him. According to Rinehart, he glanced at appellant Mihas as they passed each other and, shortly thereafter, heard something drop. When Rinehart turned in the direction of the sound, he saw Mihas bend down and pick something up. The two men were about ten to twelve feet apart at that time. Until that time Rinehart had seen no knife in Mihas' possession.
At that juncture, according to Rinehart, Mihas spoke first, saying "[w]hat are you looking at, punk? Get out of here," and repeated that statement a couple of times. Mihas then took several steps toward Rinehart, and it was during that approach that Rinehart first saw the knife. Rinehart feared that he might actually be assaulted that Mihas might cut him. As Mihas approached, he held the knife pointed in the direction of Rinehart, holding it in his right hand at about belt-high, with the knife pointed downward at about a 45 degree angle. Mihas approached to within four or five feet of Rinehart. In response to Mihas' belligerent remarks, Rinehart responded, "What the hell do you want?" a couple of times. Rinehart made no further gestures toward Mihas; Rinehart then turned and left the alley; Mihas did not follow.
Testifying in his own behalf, Mihas said that he had the knife out before encountering Rinehart and was using it to clean his fingernails. When he confronted Rinehart, Mihas said, Rinehart looked at him "in a strange funny way, like that, you know, like who are you, but not speaking...." According to his own testimony, Mihas then said, "What are you looking at, Jocko?" and then as Rinehart passed by he added "reckless eyeballing can get you locked up," and then said "You're [sic] best bet, keep on going, you know, get back there." Rinehart, according to Mihas, might have tried to mumble something, and by then the individuals were twenty-five feet apart. When Mihas was later stopped by police, he was identified by Rinehart, and found to have in his possession a paring knife with a blade two and three quarters inches long.
The trial judge made several findings of fact, including "that there came a time when Mr. Mihas, with the knife still in his hand, displayed in a way in which Mr. Rinehart could see it, did approach Mr. Rinehart who remained stationary, and that the two gentlemen were close. That is, within five feet of each other." Without resolving whether Mr. Mihas said "what are you looking at, punk?" as distinguished from "what are you looking at, Jocko?" the trial judge found it was clear that from a close distance, with a knife held in his hand, Mihas did say "[y]our best bet is to keep on going" or "get out of here," words which ordered Rinehart to move along. The court went on to find that appellant committed the act of carrying the knife at the time of the confrontation whether or not it had earlier been carried for the purpose of cleaning nails and also found that the carrying of the knife was accompanied by several steps in the direction of Rinehart accompanied by words of commanding tone, and that Mihas' actions constituted a menacing threat, although not with any specific intent to injure. The trial court also found that Mihas had the apparent present ability to hurt Rinehart, that any person in the position of Rinehart would have felt concern for his safety, and that Mihas had the intent to act as he did, i.e., to tell Mr. Rinehart to be on his way at the point of a knife.
On the basis of the aforementioned findings of fact, the trial judge concluded that *200 appellant was guilty of criminal assault of the "intent-to-frighten" type, D.C.Code § 22-504 (1989 Repl.). With respect to possession of a prohibited weapon, the judge found that while there was no specific intent to injure, appellant had violated the statute, D.C.Code § 22-3214(b) because, as he explained to appellant, it was "a violation of the law to walk up to somebody, holding a knife, and order them around," or, in other words, that the appellant had used the weapon unlawfully against another in that he used it to commit an assault. The judge also concluded that the government had established that appellant had carried openly about his person a dangerous weapon which was capable of being concealed. The judge thereupon sentenced Mihas to the time he had served before trial.
II.
In assessing Mihas' argument that the government had failed to produce sufficient evidence to establish his guilt of any of the three offenses charged, we must view the evidence "in the light most favorable to the government, recognizing the factfinder's role in weighing the evidence, determining the credibility of witnesses, and drawing justifiable inferences from the evidence." Ford v. United States, 498 A.2d 1135, 1137 (D.C.1985). To prevail on this challenge, Mihas must establish that the government presented "no evidence" upon which a reasonable mind could find guilt beyond a reasonable doubt. Robinson v. United States, 506 A.2d 572, 573 (D.C.1986). Moreover, in reviewing bench trials, this court will not reverse unless an appellant has established that the trial court's factual findings are "plainly wrong," or "without evidence to support [them]." D.C.Code § 17-305(a) (1989).
Applying these standards, we are unable to agree with Mihas' contention that the evidence failed to establish that he committed an act which constituted an assault, or had the necessary criminal intent to do so. This jurisdiction recognizes two types of assault: (1) "[a]ttempted battery assault which requires proof of an attempt to cause a physical injury, `which may consist of any act tending to such corporal injury, accompanied with such circumstances as denoted at the time an intention, coupled with the present ability, of using actual violence against the person.'" Robinson v. United States, 506 A.2d 572, 574 (D.C. 1986) (quoting Patterson v. Pillans, 43 App.D.C. 505, 506-07 (1915)); and (2) intent-to-frighten assault which requires proof of "threatening conduct intended either to injure or frighten the victim." Robinson, supra, 506 A.2d at 574. In order to establish the latter type of assault, the government must offer "proof that the defendant intended either to cause injury or to create apprehension in the victim by engaging in some threatening conduct; and actual battery need not be attempted." Id. (citing W. LAFAVE & SCOTT HANDBOOK ON CRIMINAL LAW § 82 at 610-612 (1972)). In addition, the requisite intent is the general "intent to perform the acts which constitute the assault." Williamson v. United States, 445 A.2d 975, 978 (D.C.1982). We are satisfied that the record here clearly supports the trial court's conclusion that Mihas had engaged in this type of assault, and that the findings of fact provided an adequate basis for that conclusion. The actions of Mihas included initiating the conversation between the two with the hostile question "What are you looking at?" followed by the appellation "Jocko" or "punk," and further followed by Mihas' instruction to Rinehart that he should "get out of here." These utterances were combined with Mihas' approach from ten to twelve feet away to within four or five feet of Rinehart, while holding a knife pointed in the direction of Rinehart belt high, and pointed downward at a 45 degree angle. On this record, we cannot overturn the trial court's finding that any person in Rinehart's position would have felt concern for his safety, the crucial inquiry in a case of this sort. Robinson, supra, at 575.
Likewise, with respect to the charge of possession of a prohibited weapon with the intent to use it unlawfully, we are satisfied that the trial court's findings were not plainly wrong or without evidence *201 to support them. Mihas challenges the trial court's findings on the basis that the evidence was insufficient to show that the knife that Mihas carried was a "dangerous weapon" under the statute, and was similarly insufficient to show that appellant's intent in carrying the paring knife was to use it unlawfully against another. Historically, we have determined which knives constituted "deadly or dangerous weapons capable of being so concealed" described in § 22-3204, by focusing upon the intent of the person carrying the knife, as well as upon the design or construction of the knife carried. Scott v. United States, 243 A.2d 54, 56 (D.C.1968). Mindful that the carrying of a knife for a legitimate purpose is not prohibited by the statute, id., we have made the purpose for which the knife was being carried the ultimate test for determining whether it was a deadly or dangerous weapon. Nelson v. United States, 280 A.2d 531, 533 (D.C.1971); Clarke v. United States, 256 A.2d 782, 786 (D.C.1969); Leftwitch v. United States, 251 A.2d 646, 649 (D.C.1969).[1]
In the instant action, the trial court found, both in connection with the charge of possession of a prohibited weapon and the charge of carrying a dangerous weapon, that it was Mihas' "intent to carry that weapon in the context of telling Mr. Rinehart to stop looking at him and to get away from him, and that the knife was present, that he consciously, knowingly, presented [it] to Mr. Rinehart." Similarly, the element of Mihas' intent to use the weapon unlawfully against another person was established by the factual finding that Mihas acted with the specific intent to use the knife to warn Rinehart to be on his way, i.e., to use it in connection with the assault upon Rinehart which was committed with the purpose of frightening him into moving out of the alley. We find no reason to overturn that judgment.
Finally we are not persuaded by Mihas' attack on his conviction for carrying a concealed weapon. It is plain from our foregoing discussion that the evidence supported the trial court's finding that Mihas had the intention to do the acts which constituted the carrying of a deadly or dangerous weapon, and that Mihas' purpose in carrying it was its use as such. Mihas does not argue that the relatively small object he carried was incapable of being concealed on his person.[2]
For the foregoing reasons, we reject Mihas' argument that there was insufficient evidence to support the convictions entered by the trial court, and we therefore affirm.
Affirmed.
PRYOR, Senior Judge, dissenting:
I readily accept the majority's statement of facts in this matter and similarly understand that in reviewing the sufficiency of evidence, we customarily view the evidence in the light most favorable to the government, giving it the benefit of reasonable inferences.
Yet this case causes me to pause. It is notable in my view because the result is driven, almost imperceptibly, by inference built upon other inferences. Appellant was charged with a less common form of assault: conduct deemed an intentional effort to frighten another. In the prosecution of most criminal offenses, we normally focus on the state of mind of the accused. But in this instance, the guilt of the accused, depends, in part, on the subjective perceptions of the complaining witness. Thus on the barest of evidence, where, it seems to *202 me, that more attention has been given to the complainant's perceptions than the mens rea required of appellant, we are ultimately urged to give the prosecution the benefit of all inferences.
In an urban setting which includes a diverse range of many different types of people, it is undoubtedly true that appellant, a homeless person, and the complainant, a resident of an affluent section of the city, had a harsh encounter in an alley. However, when we look, on balance, at what happened, the government, in order to prevail, can only depend on a network of inferences. Even applying the customary litmus, the evidence is, in my opinion, insufficient. What we have is an unfortunate argument between two citizens which has been transformed into three criminal convictions. I respectfully dissent.
NOTES
[1] Appellant, extrapolating from D.C.Code § 22-3214(b) ("No person shall within the District of Columbia possess, with intention to use unlawfully against another ... [a] knife with a blade longer than 3 inches ..."), makes much of the fact that his knife was shorter than three inches. This selective reading, however, overlooks the very next words of the statute, which are "or other dangerous weapon." It was under this last-quoted language that Mihas was charged. He fails to offer any reason why the weapon he used does not come within this language. As length is just one factor to be considered, even a short knife, when wielded by one to use it unlawfully, can be dangerous.
[2] Mihas does not argue on appeal that the government can not charge him with both possession of a prohibited weapon and carrying a concealed weapon. We note, in any event, that the court simply sentenced Mihas to time served. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261967/ | 132 Cal.Rptr.2d 130 (2003)
107 Cal.App.4th 360
David ZIESMER, Petitioner,
v.
The SUPERIOR COURT of Ventura County, Respondent;
The People, Real Party in Interest.
No. B162045.
Court of Appeal, Second District, Division Six.
March 25, 2003.
As Modified on Denial of Rehearing April 22, 2003.
*131 Loftus and Associates, Richard A. Loftus, Westlake Village, Dawn M. Dunbar, for Petitioner.
Gregory D. Totten, District Attorney, William Haney, Kevin Drescher, Michael D. Schwartz, Senior Deputy District Attorneys, for Real Party in Interest.
No appearance for Respondent.
GILBERT, P.J.
Here we conclude that the dismissal of a grand jury indictment pursuant to Penal Code section 995, subdivision (a)(1)(A) terminates the action. Therefore, if the action is refiled and assigned to the same judge to whom the case was originally assigned, a party may disqualify the judge pursuant to Code of Civil Procedure section 170.6.
We grant David Ziesmer's petition for writ of mandate and direct respondent court to vacate its order denying Ziesmer's timely peremptory challenge to the judge assigned to his case.
FACTS
On August 21, 2000, the Ventura grand jury indicted Ziesmer for murder. On May 25, 2001, the case was assigned to Judge O'Neill for all purposes. Ziesmer did not challenge Judge O'Neill as permitted by Code of Civil Procedure section 170.6 ("section 170.6").[1] Judge O'Neill set the case for trial and heard pretrial motions concerning application of the attorney-client privilege to items seized during a special master search and issued orders restricting Ziesmer's communications in jail.
Prior to the date set for trial, Ziesmer moved to dismiss the grand jury indictment under Penal Code section 995, subdivision (a)(1)(A).[2] The superior court granted the motion because the Ventura County grand jury did not represent a fair cross-section of the community in violation of the Sixth Amendment of the United States Constitution. The order dismissing the indictment directed the People to resubmit the case to another grand jury or file a complaint. (See Pen.Code, §§ 997, 998 & 1010.) Immediately after the dismissal was entered, the People filed a *132 complaint under the same case number charging the same crimes as those in the dismissed indictment.
The master calendar department returned the case to Judge O'Neill. The day after the complaint was filed, Judge O'Neill granted Ziesmer's motion to continue the arraignment with a reservation of "any rights he might have or not have" to file a motion to disqualify the judge per section 170.6.
One day prior to the date set for arraignment, Ziesmer moved to disqualify Judge O'Neill per section 170.6. The People opposed the motion on the grounds that dismissal of the indictment did not terminate the action and that Ziesmer waived his right to challenge Judge O'Neill by failing to do so when he first learned of Judge O'Neill's assignment on May 25, 2001.
DISCUSSION
I
Cases have held that a trial court abuses its discretion when it erroneously denies a motion to disqualify a judge under section 170.6. (People v. Superior Court (Maloy) (2001) 91 Cal.App.4th 391, 395, 109 Cal.Rptr.2d 897; Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315, 104 Cal.Rptr.2d 173.) The test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478, 243 Cal.Rptr. 902, 749 P.2d 339.) The abuse of discretion standard is itself much abused. In deciding a section 170.6 motion, the trial court has no discretion. We think it appropriate to review a decision granting or denying a peremptory challenge under section 170.6 as an error of law. Therefore we review under the nondeferential de novo standard.
Section 170.6 guarantees a litigant "`an extraordinary right to disqualify a judge.'" (Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150, 154, 7 Cal.Rptr.2d 801.) When a challenge is timely and properly made, the challenged judge immediately loses jurisdiction and must recuse himself. If he does not, his subsequent orders and judgments are void. (In re Abdul Y. (1982) 130 Cal. App.3d 847, 854-855, 182 Cal.Rptr. 146.)
A party is limited to a single peremptory challenge "in any one action or special proceeding." (§ 170.6, subd. (3).) A challenge to a judge assigned for all purposes is timely if "the motion [is] made to the assigned judge ... by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance." (§ 170.6, subd. (2).) "A party's acquiescence of a judge to hear one action does not impair his or her right to exercise a challenge to prevent that judge from hearing another matter, even if that matter raises issues closely related to those in the first action." (Nissan Motor Corp. v. Superior Court, supra, 6 Cal. App.4th at p. 155, 7 Cal.Rptr.2d 801.)
II
Whether a dismissal under Penal Code section 995, subdivision (a)(1)(A)[3] terminates an action for purposes of section 170.6 is an issue of first impression. Paredes v. Superior Court (1999) 77 Cal. *133 App.4th 24, 91 Cal.Rptr.2d 350 provides guidance in resolving this issue. One of two defendants charged with murder timely moved to disqualify the trial judge and the cause was reassigned. Ultimately the prosecutor was unable to proceed and the case was dismissed pursuant to section 1382. Section 1382, subdivision (a)(2) provides in relevant part: "The court ... shall order the action dismissed.... In a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment...." A new complaint was filed, bearing a new case number, and reassigned to the same judge to whom it had been previously assigned. Section 1387, subdivision (a) provides in relevant part: "An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995...." After the reassignment, the second defendant moved to disqualify the judge. The trial court denied the motion on the ground that the refiled action was a continuation of the dismissed action.
After an extensive review of cases involving section 170.6, the appellate court held that two separate actions were involved and, therefore, the second defendant's challenge to the trial judge was timely. The court reasoned: "[A] rule that would treat the dismissed and refiled cases as one and the same case would make a mockery of the procedure permitted by Penal Code sections 1382 and 1387.... [¶] ... [¶] To prevent the mischief that would otherwise result, a `termination' pursuant to Penal Code section 1382, must be treated as a termination, not as a nit to be picked only when it serves the convenience of the prosecutor or the court.... We would, in effect, have created yet another judicial exception to ... sections 1382 and 1387. That is not our role." (Paredes v. Superior Court, supra, 77 Cal.App.4th at pp. 34-35, 91 Cal. Rptr.2d 350.)
The People contend Paredes is distinguishable because the order dismissing the indictment ordered the complaint to be refiled under the same case number (see § 997). Ziesmer remained in custody after the indictment was dismissed (see §§ 998, 1010), and Judge O'Neill decided contested issues of fact before the indictment was dismissed. These distinctions do not compel a different result. Paredes applies here because of one undeniable fact: the case was dismissed.
The People urge us to follow Anthony v. Superior Court (1980) 109 Cal.App.3d 346, 167 Cal.Rptr. 246. In Anthony, the appellate court held that the People's appeal of the dismissal of an indictment under section 995 was not an election of remedies by the state barring defendant's reindictment. The court said, "[A]n order setting aside an information does not `terminate' the action." (Anthony, at p. 357, 167 Cal.Rptr. 246.) As this statement is dictum, it has no precedential value. Moreover, Anthony and several other cases relied on by the People were decided before the 1981 amendments to section 1387 expressly designating dismissals under section 995 as terminations. (See Landrum v. Superior Court, supra, 30 Cal.3d at p. 5, 177 Cal. Rptr. 325, 634 P.2d 352.)
The People cite numerous cases holding that a peremptory challenge cannot be made in subsequent hearings that are a part or a continuation of the original proceedings. (See, e.g., Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190, 1 Cal. *134 Rptr. 9, 347 P.2d 9.) The People argue that these cases apply because the dismissal of the indictment under section 995 was a mere technicality and did not terminate the action for purposes of section 170.6. These cases are not persuasive. They involve post-judgment proceedings so closely related to the initial case in which the merits had been decided that they are a continuation of the former proceeding. For example, "[i]n situations involving guardianship and custody orders subsequent proceedings to obtain changes in custody are continuations of the original proceeding to determine custody." (Jacobs, at p. 190, 1 Cal.Rptr. 9, 347 P.2d 9.)
The parties cite cases involving the question whether an improperly constituted grand jury voids an indictment. Ziesmer urges us to follow Bruner v. Superior Court (1891) 92 Cal. 239, 28 P. 341, which holds that an indictment is void if the grand jury issuing it is not formed as prescribed by statute. The People argue that we should follow Fitts v. Superior Court (1935) 4 Cal.2d 514, 51 P.2d 66, which distinguishes Bruner and limits its holding to its facts. These cases are inapposite because they concern whether irregularities in the formation of grand juries void indictments issued by those bodies. The People make no argument that the indictment was valid after being dismissed.
Our decision is consistent with that established rule of statutory construction that similar statutes should be construed in light of one another. (Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 744, 250 Cal.Rptr. 869, 759 P.2d 504; National City v. Fritz (1949) 33 Cal.2d 635, 637, 204 P.2d 7.) Section 995, subdivision (a)(1)(A), like section 1382, pertains to dismissal of criminal cases. A dismissal under section 995, subdivision (a)(1)(A), like a section 1382 dismissal, is a termination for purposes of section 1387. (See, e.g., People v. Carreon (1997) 59 Cal.App.4th 804, 69 Cal.Rptr.2d 438; Bodner v. Superior Court (1996) 42 Cal.App.4th 1801, 50 Cal.Rptr.2d 236.) Section 1387 does not by its terms distinguish between types of dismissals: all dismissals made pursuant to the code sections specified are included, whether the dismissal was on the merits or for procedural deficiencies. (Casey v. Superior Court (1989) 207 Cal.App.3d 837, 842, 255 Cal. Rptr. 81; Lee v. Superior Court (1983) 142 Cal.App.3d 637, 640, 191 Cal.Rptr. 361.)
Our conclusion also is consistent with the established rule that section 170.6 should be liberally construed to effect its objects and to promote justice. (Hendershot v. Superior Court (1993) 20 Cal. App.4th 860, 865, 24 Cal.Rptr.2d 645; Nissan Motor Corp. v. Superior Court, supra, 6 Cal.App.4th at p. 154, 7 Cal.Rptr.2d 801.) When a statute is capable of more than one construction, or its provisions conflict, courts must attempt to harmonize and reconcile it in a manner that carries out the Legislature's intent. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788, 176 Cal.Rptr. 104, 632 P.2d 217.) At the same time, where a penal statute is ambiguous and susceptible to two reasonable interpretations, we must adopt the construction that is most favorable to defendant. (In re Christian S. (1994) 7 Cal.4th 768, 780, 30 Cal.Rptr.2d 33, 872 P.2d 574; see also Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 831, 56 Cal.Rptr.2d 870 ["We reject any argument that all criminal statutes must be construed so as to permit the most efficacious prosecution of suspects. Especially in the case of the removal of a traditional protection against possible injustice, we think it better to adhere to the principle that criminal statutes are, in case of doubt, to be *135 construed favorably to the defendant"].) Our decision honors this principle.[4]
We hold that dismissal of a criminal action pursuant to section 995 terminates the action for purposes of section 170.6. Therefore we conclude that Ziesmer's challenge was timely.
Let a writ of mandate issue directing respondent court to vacate its order rejecting Ziesmer's section 170.6 challenge as untimely and to enter a new and different order accepting the challenge for filing as of October 4, 2002. The order to show cause is discharged.
We concur: YEGAN and PERREN, JJ.
NOTES
[1] Section 170.6, subdivision (2) permits a party or his attorney to challenge a judge for prejudice by written or oral motion made under penalty of perjury. If the challenge is timely, the judge must immediately transfer the action to the master calendar court for reassignment.
[2] Penal Code section 995, subdivision (a)(1)(A) states that an "indictment ... shall be set aside by the court in which the defendant is arraigned, upon his or her motion ... [w]here it is not found, endorsed, and presented as prescribed in this code."
[3] All further statutory references, other than section 170.6, are to the Penal Code.
[4] Our disposition makes it unnecessary to discuss the remainder of the People's arguments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261975/ | 132 Cal.Rptr.2d 744 (2003)
107 Cal.App.4th 1227
The PEOPLE, Plaintiff and Respondent,
v.
Brandon E. GROVES, Defendant and Appellant.
No. A098585.
Court of Appeal, First District, Division Four.
March 20, 2003.
*746 Geri Lyn Green, under appointment by the Court of Appeal, San Francisco, for Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Acting Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Lisa Ashley Ott, Deputy Attorney General, for Respondent.
Certified for Partial Publication.[*]
*745 REARDON, J.
A jury convicted appellant Brandon E. Groves of two counts each of forcible oral copulation, kidnapping and carjacking, all committed in 1999. (See Pen.Code,[1] §§ 207, subd. (a), 215, subd. (a); see also former § 288a, subd. (c)(2), as amended by (Stats.1998, ch. 936, § 5.)) He appealed his conviction and his initial sentence of 59 years to life[2] in state prison. We affirmed the underlying conviction, but reversed a sentence of 25 years to life and remanded for resentencing. (People v. Groves (Oct. 26, 2001), A090570, 2001 WL 1301224 [non-pub, opn].)
In March 2002, Groves was resentenced to a total term of 42 years to life[3] in state prison.[4] He received an indeterminate term of 25 years to life for one count of oral copulation. (See §§ 667.61, subd. (d)(2).) He was also sentenced to serve a 17-year determinate terma consecutive eight-year aggravated term for the second count of oral copulation and a consecutive upper term of nine years for carjacking. Sentences for other offenses were stayed to avoid multiple punishment. (See § 654.) In his appeal after resentencing, Groves now contends that (1) the trial court erred by finding that the two counts of oral copulation occurred on separate occasions; (2) imposition of a full term consecutive term for the second count of *747 oral copulation violated his federal constitutional due process and jury trial rights because it was imposed without a jury finding based on a burden of proof less than proof beyond a reasonable doubt; and (3) his sentence constitutes cruel and/or unusual punishment. We affirm the judgment, including the sentence.
I. CONSECUTIVE TERMS[**]
II. JURY TRIAL AND DUE PROCESS
By statute, the trial court at sentencing is empowered to make the determination whether multiple sexual offenses occurred on separate occasions for purposes of imposing full consecutive terms. (See § 667.6, subd. (d); Cal. Rules of Court, rule 4.426(a)(2).) These findings are typically based on burden of proof by a preponderance of the evidence. (See, e.g., People v. Levitt (1984) 156 Cal.App.3d 500, 515, 203 Cal.Rptr. 276 [circumstances in aggravation].) In this case, the trial court found that both oral copulations occurred on separate occasions, warranting the imposition of a full term for the second offense to be served consecutive to the term of 25 years to life imposed for the first offense. In his next challenge, Groves argues that the imposition of these two consecutive terms without a jury finding that the offenses occurred on separate occasions violated his federal constitutional rights to a jury trial and to due process.[7] (See U.S. Const., 6th & 14th Amends.)
Groves first claims that he had a due process right to have the separate occasions determination made by proof beyond a reasonable doubt. (See U.S. Const., 14th Amend.) A criminal defendant has a federal constitutional due process right to have every fact necessary to conviction proven by proof beyond a reasonable doubt. (McMillan v. Pennsylvania (1986) 477 U.S. 79, 84-85, 106 S.Ct. 2411, 91 L.Ed.2d 67; In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368.) However, the United States Supreme Court has held that in a sentencing context, the state may link the severity of punishment to the presence or absence of a factor that the prosecution need not prove by proof beyond a reasonable doubt. (McMillan v. Pennsylvania, supra, 477 U.S. at p. 84, 106 S.Ct. 2411; Patterson v. New York (1977) 432 U.S. 197, 214, 97 S.Ct. 2319, 53 L.Ed.2d 281.) If the specific fact[8] at issue is not an element of the crime but is a factor that comes into play only after the defendant had been found guilty of the charges beyond a reasonable doubt and no increase in sentence beyond the statutory maximum for the offense established by the jury is implicated, then the state may consider this factor based on a lesser standard of proof. (Apprendi v. New Jersey, supra, 530 U.S. at p. 487, 120 S.Ct. 2348; McMillan v. Pennsylvania, supra, 477 U.S. at pp. 85-86, 106 S.Ct. 2411.) The facts setting the maximum term of a sentence and the trial court's power to impose that sentence are not elements of the crime for purposes of federal constitutional law. Within the range of sentence authorized by the jury's verdict, a trial court may exercise its discretion and expertise to impose a sentence. (See Harris v. United States (2002) 536 U.S. 545, 549-550, 566-567 [122 S.Ct. 2406, 2410, 2419].)
*748 In this case, the specific factwhether multiple offenses against the same victim occurred on separate occasions, based on a finding of whether Groves had a reasonable opportunity to reflect on his actions after the first offense but nevertheless chose to resume his sexually assaultive behavioris not an element of either oral copulation offense. (See former § 288a, subd. (c)(2).) Logically, this factor cannot come into play until the defendant has already been convicted of multiple separate offenses. (See § 667.6, subd. (d).)
Likewise, the statutory maximum term for forcible oral copulation is the full consecutive term that was imposed in this case for Groves's second conviction of oral copulation. The determinate sentencing law provides that consecutive terms are typically calculated at one-third the middle base term. (See former § 1170.1, subd. (a), as amended by Stats.1998, ch. 926, § 2.5.) A trial court may impose a full consecutive term for a second sexual assault offense, even if both offenses were committed during a single transaction. In such a situation, the trial court must offer a statement of reasons in support of its discretionary sentencing choice. (See § 667.6, subd. (c); Cal. Rules of Court, rule 4.406(b)(6).) If the trial court finds that both offenses were committed on separate occasions as the court did in Groves's case, the trial court must impose the full consecutive term for the second offense. (See § 667.6, subd. (d).) The mandatory imposition of this maximum possible sentence does not constitute an increase in the maximum possible sentence. Thus, we find that federal constitutional due process principles do not require that this finding be made by proof beyond a reasonable doubt.
Groves also asserts that he had a federal constitutional right to have a juryrather than the trial courtdetermine this issue. (See U.S. Const., 6th Amend.) If due process requires a sentencing factor to be established by a burden of proof beyond a reasonable doubt, then the issue must be submitted to a jury. (See Apprendi v. New Jersey, supra, 530 U.S. at p. 490, 120 S.Ct. 2348; see also Harris v. United States, supra, 536 U.S. at pp. 549-550 [122 S.Ct. at p. 2410].) However, as we have concluded that the reasonable doubt standard is not implicated in this case, neither does this sentence factor require a jury's input. In this case, the trial court properly made the finding it did by a preponderance of evidence and without submitting the issue to a jury. Thus, the full consecutive sentence for Groves's second offense of oral copulation was consistent with federal constitutional standards.
III. CRUEL AND/OR UNUSUAL PUNISHMENT[***]
We concur: KAY, P.J., and SEPULVEDA, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1 this opinion is certified for partial publication, with the exception of parts I. and III.
[1] All further statutory references are to the Penal Code.
[2] Groves was originally sentenced to two consecutive indeterminate terms of 25 years to life each for the two oral copulation counts and a consecutive determinate term of nine years for kidnapping. Sentences for the remaining three charges were stayed on section 654 grounds.
[3] In his briefs. Groves refers to a sentence of 33 years to life, but the abstracts of judgment make it clear that the sentence is one for 42 years to life.
[4] The trial court opted to sentence Groves anew on all counts, although the only sentence that substantially differed from the original sentence after the new sentence was imposed was that for the second oral copulation countthe sentence that was the subject of our remand for resentencing.
[**] See footnote *, ante.
[7] Groves raised this same issue in his earlier appeal in relation to the imposition of two life terms for these two offenses, but we did not address it because we had determined that his sentence was to be imposed anew on remand for resentencing on other grounds. (People v. Groves, supra, A090570.) Thus, the issue is properly before us for resolution.
[8] The fact of a prior conviction has been exempted from these requirements. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.)
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2225516/ | 340 Mass. 622 (1960)
165 N.E.2d 896
D. LAWRENCE FINN
vs.
VICTOR PETERS.
Supreme Judicial Court of Massachusetts, Suffolk.
March 9, 1960.
March 31, 1960.
Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, & CUTTER, JJ.
Sturtevant Burr, (James B. Winward with him,) for the defendant.
Russell J. Coffin & Edward A. Hutchinson, Jr., for the plaintiff, submitted a brief.
CUTTER, J.
The plaintiff in 1940 rented the first floor of a three story, three family dwelling. The defendant became the landlord in October, 1948, and he soon moved into another apartment in the building. Thereafter there were three increases in the plaintiff's rent, the last in September, 1955. There was no lease. Extending twenty feet along the whole width of the rear of the house was a porch or piazza enclosed only by a railing. At the left end of the porch (as one faces the rear of the house) were three steps and a platform, which "all the tenants had to use," to reach a door, also on the left end of the porch, leading to all three apartments. Anyone coming up the steps to go "to the door ... into the hall ... would stay within two or three feet of the hall."
On January 23, 1957, the plaintiff fell and was injured while leaning on the railing at the opposite end of the porch about twenty feet from the door. There was evidence that the railing was "rotted around the nail holes."
Prior "to the accident the defendant had made repairs by putting [in] nails ... on the porch," and had "replaced a beam under the porch." The record suggests that he also repaired the railing on the day after the accident. Neither the defendant "nor his wife had occasion to be on the piazza," although his wife tied up a rose bush to the railing, went there occasionally to call her children, and left baby carriages there. Otherwise there was no evidence of use of the right end of the porch by adult occupants of the house other than the plaintiff and his wife. Before the defendant became the landlord in 1948, the plaintiff's wife "had the use of the porch to herself." In 1952 or 1953, when the defendant's *624 children were two years old, they began to play on the porch, and did so at the time of the accident.
The plaintiff "never noticed anything wrong with the railing" which "appeared to be in very good condition." The plaintiff's wife, about six months before the accident, had told the defendant that the rail was shaking and broken and that "the children were going to get hurt." She had told the children "to get off the porch, which they did and then came right back." They left toys there and "put their hands all over her clothes which she had hung out" to dry, the "only use she made of the porch." She felt "it was her back porch; and that she had a right to tell them to get off."
In an action to recover for his injuries, the plaintiff had a verdict. The evidence is stated above in the aspect most favorable to the plaintiff. The defendant's bill of exceptions presents for review the propriety of (a) the denial of the defendant's motion for a directed verdict; (b) the admission of certain evidence; and (c) the refusal of certain additional instructions.
1. If the portion of the porch upon which the plaintiff was injured had not been demised to him but remained in the defendant's control, then the defendant was bound to use reasonable care to maintain it in the same condition, in respect of safety, in which it was or appeared to be at the time of the letting. See Sneckner v. Feingold, 314 Mass. 613, 614; Stedfast v. Rebon Realty Co. Inc. 333 Mass. 348, 350. If, however, the defendant did not retain control of the place where the plaintiff fell, the defendant "would not be liable for a defective condition ... to a tenant." Minkkinen v. Nyman, 325 Mass. 92, 94.
That part of the porch near the door and the area "reasonably incident thereto" (see Phelan v. Fitzpatrick, 188 Mass. 237, 238; cf. Gill v. Jakstas, 325 Mass. 309, 311-312) doubtless remained in the control of the landlord as a common means of access to the door. The place where the accident took place, however, was about twenty feet from the door. It was not shown to be "reasonably incident" to any common use of the steps and the door. There was no evidence *625 that the defendant expressly agreed that he would repair the piazza. The only possible basis of liability would be that the defendant by agreement retained control of the porch by the terms of the letting.
In the absence of later agreements (see Levin v. Rose, 302 Mass. 378, 381) based upon express arrangement or perhaps inferred from the conduct of the parties (see Restatement: Contracts, § 21; Williston, Contracts [3d ed.] § 90; Corbin, Contracts, §§ 564, 574) the terms of the tenancy would be fixed at its inception. See Miles v. Janvrin, 200 Mass. 514, 517-518. In determining what the oral terms were, weight may be given to the parties' conduct during the tenancy. See Ruane v. Doyle, 308 Mass. 418, 420-421; Dreher v. Bedford Realty, Inc. 335 Mass. 385, 389. The repairs made by the defendant and the use of the porch by his children, and by his wife for support of her rosebush and for storing baby carriages, are conduct suggesting a retention of control. Where the terms of a tenancy are established, the landlord by making voluntary repairs does not show that he is bound to repair. See Conahan v. Fisher, 233 Mass. 234, 238. See also Barrett v. Wood Realty Inc. 334 Mass. 370, 375. Nevertheless, such repairs by a landlord, or other use by him or those claiming under him, may be evidence of his control, where as here there is ambiguity about the arrangement, at least with respect to a part of the premises not shown to have been physically separate from an area used by others. See Boday v. Thibault, 337 Mass. 243, 245, and cases cited. A verdict for the defendant could not have been directed despite the circumstances indicating that in 1948 the plaintiff had been given exclusive use of the area.
2. The judge did not err in admitting, "on the question of control," evidence that the defendant repaired the railing after the accident. The authorities already cited show that such evidence was relevant on that question in view of the ambiguity of the oral arrangement.
3. After the charge and some additional instructions, the defendant requested further instructions (a) that the question *626 whether the area of the accident had been demised "must be determined as of the beginning of the tenancy" and (b) that "the increasing of rent does not begin or terminate a tenancy." The record does not show that the defendant filed requests for instructions prior to the arguments. See Rule 71 of the Superior Court (1954).
The judge in his additional instructions presented for decision by the jury the question whether the "portion of the piazza ... was ... used in common throughout the tenancy." He had previously charged in effect that the actual use and the defendant's actions might bear on the "question of control." The whole tenor of the instructions in fact given sufficiently related the question of control to the beginning of the tenancy. The judge did not improperly suggest (see Denny v. Burbeck, 333 Mass. 310, 313) that a new tenancy arose upon an increase in rent. The record does not show that the increases in rent were discussed at all beyond a brief reference to them in the plaintiff's testimony. It has not been shown that the failure to give an additional instruction on this "single consideration bearing upon an issue" was prejudicial (see Runels v. Lowell Sun Co. 318 Mass. 466, 473-475) or that an additional instruction was "necessary to render substantial justice." Cf. Sullivan v. Sullivan, 333 Mass. 512, 514.
Exceptions overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750588/ | 650 So. 2d 242 (1995)
Toby VINCENT
v.
JUSTISS OIL COMPANY, INC.
No. 94-C-2869.
Supreme Court of Louisiana.
January 27, 1995.
Denied.
VICTORY, J., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261969/ | 861 F.Supp. 664 (1994)
Walter E. EDWARDS
v.
Veronica CABRERA and Harry T. Redmond.
No. 93 C 945.
United States District Court, N.D. Illinois, Eastern Division.
August 10, 1994.
*665 *666 *667 Gregory E. Kulis, Law Offices of Gregory E. Kulis, Chicago, IL, for plaintiff.
Jeffrey Edward Schiller, Mary A. Kerr, Michael F. Braun, Schuyler, Roche & Zwirner, Chicago, IL, Barbara M. Meyer, Village of Skokie Law Dept., Corp. Counsel, Skokie, IL, Mark S. Stein, Village of Skokie, Skokie, IL, for defendants.
MEMORANDUM OPINION
GRADY, District Judge.
Before the court are plaintiff's motion for summary judgment and defendants' cross-motions for summary judgment. For the reasons stated in this opinion, plaintiff's motion will be granted as to Count I and denied as to Count II, and defendants' cross motions will be denied.
BACKGROUND
In this lawsuit, plaintiff Walter Edwards charges in Count I that defendant Skokie *668 Police Officers Veronica Cabrera and Harry T. Redmond are liable to him under 42 U.S.C. § 1983 for wrongly detaining him for investigation and then wrongly arresting him, in violation of the Fourth and Fourteenth Amendments to the Constitution. Count II alleges a state claim for false imprisonment by both defendants. Except where noted, the facts are undisputed.
On the evening of May 13, 1992, the Skokie Police Department received a call from a dispatcher for PACE, a public bus transit agency. The dispatcher reported that an unnamed PACE bus driver had thought he had seen a drug transaction involving five black men at the Greyhound bus station in Skokie. Defendant Cabrera, a Skokie police officer, arrived at the bus station within about three minutes.
When she arrived, Cabrera saw four black men standing together outside the bus station. One of them was the plaintiff's brother, Eugene Edwards. Another was the plaintiff, Walter Edwards. Eugene boarded a Greyhound bus, and Walter walked toward a parked car. As Walter walked toward the car, Cabrera approached him and asked him if she could talk to him. Walter complied, although he maintains that Cabrera spoke in "an ordering tone" that made him feel compelled to answer Cabrera's questions. (Cabrera maintains that she simply asked to speak with Walter.) Walter told Cabrera that Eugene was his brother and had boarded the bus to go home to Forest City, Arkansas. Cabrera then asked Walter to accompany him to the bus; the parties again dispute whether she did so in a coercive manner. Walter complied.
Cabrera, who was in uniform, stepped aboard the bus and asked Eugene, by name, to step off. He did so. Cabrera then asked both Walter and Eugene for identification. Around this time, defendant Redmond arrived at the scene in his marked police car. After Eugene fetched a garment bag and produced his identification, Cabrera and Redmond noticed a large wet spot on the front of Eugene's pants. Cabrera assumed that he had urinated in his pants from being nervous, and Redmond recalled in his deposition testimony that Eugene told him he had been unable to get to a bathroom. As Redmond and Cabrera spoke with Eugene and Walter Edwards, a third Skokie police officer arrived and questioned two black men and a black woman who were standing against a wall at the bus station.
Meanwhile, Cabrera asked Eugene if she could look in the bag. The parties dispute whether Eugene clearly consented to the request, but Cabrera went ahead and searched the bag. Inside Eugene's bag, Cabrera found two self-sealing plastic bags containing an unspecified amount of a substance that appeared to be marijuana.
Cabrera and Redmond arrested Eugene. But in an action with particular significance to this case, they also arrested his brother Walter, the plaintiff. Walter and Eugene were transported in Redmond's car to the Skokie police station, but Walter was released an unspecified time later without being charged.
Walter alleges in Count I and in his summary judgment motion that Cabrera and Redmond violated his constitutional rights in two respects. First, he alleges that when Cabrera first approached him on his way back to his car, her initial questioning of him was an improper investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Second, he alleges that his arrest by Cabrera and Redmond was without probable cause, in violation of his Fourth Amendment right against unreasonable seizure.
In their cross motions for summary judgment, the officers argue that Cabrera's initial questioning of Walter Edwards was fully consensual and thus need not have met the requirements of Terry, which defendants say was complied with in any event. As to Walter's arrest, they argue they had sufficient probable cause. The defendants also assert the defense of qualified immunity as to both components of Walter Edwards' claim in Count I. As to Count II, they argue they are immune from the state tort claim under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq.
*669 ANALYSIS
I. The Applicable Legal Standards
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." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A "genuine issue of material fact exists only where `there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Dribeck Importers, Inc. v. G. Heileman Brewing Co., 883 F.2d 569, 573 (7th Cir.1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). In considering such a motion, the court must view all inferences in the light most favorable to the nonmoving party. See Regner v. City of Chicago, 789 F.2d 534, 536 (7th Cir.1986). In other words, although the district court's role on summary judgment is not to sift through the evidence and decide whom to believe, the court will enter summary judgment against a party who does not come forward with evidence that would reasonably permit a finder of fact to find in his or her favor on a material question. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Walter Edwards brings this lawsuit under 42 U.S.C. § 1983, which states in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. To establish a prima facie case for a violation of § 1983, a plaintiff must plead and prove: (1) the deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988).
The question of whether the prima facie case under § 1983 also requires some showing as to the defendant's culpable state of mind has been the source of some confusion among scholars and judges. See Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3.01 at 136-141 (3d ed. 1991). The proper view is that no state of mind requirement exists independent from the required inquiry under § 1983 into whether plaintiff can establish that a constitutional violation occurred. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the United States Supreme Court noted that "[n]othing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights." Id. 451 U.S. at 534, 101 S.Ct. at 1912. Therefore a negligent deprivation of a constitutional right is actionable under § 1983. Id.; McKinnon v. City of Berwyn, 750 F.2d 1383, 1391 (7th Cir.1984); Bell v. City of Milwaukee, 746 F.2d 1205, 1238 (7th Cir.1984). The important distinction here is between a constitutional deprivation that happens to be negligent, and a negligent act that is not a constitutional deprivation because the applicable constitutional provision is not violated by mere negligence. Once the § 1983 plaintiff establishes that the defendant committed a constitutional deprivation, the plaintiff need not show that the defendant acted with any particular state of mind. But in § 1983 cases predicated on certain constitutional provisions, the plaintiff will not be able to establish that a constitutional deprivation took place unless the plaintiff can show that the defendant's conduct went beyond negligence.
The Supreme Court's decision in Parratt was overruled in part on this precise distinction. Daniels, 474 U.S. at 330-31, 106 S.Ct. at 664-65. The Daniels and Parratt cases *670 both involved § 1983 claims in which prisoners alleged deprivations of due process. In Parratt, the petitioner's jailers lost a hobby kit he had ordered through the mail. In Daniels, the petitioner hurt himself when he slipped on a pillow that his jailers had left on the stairs. Daniels held that Parratt went too far in ruling that negligence by state actors could ever give rise to a claim for violation of due process, which historically had been interpreted to prohibit deliberate or arbitrary government conduct. Daniels, 474 U.S. at 330-31, 106 S.Ct. at 664-65. But Daniels did not take issue with the portion of Parratt stating that a plaintiff states a claim under § 1983 by (1) alleging a constitutional deprivation (2) by a person acting under color of state law. See West, 487 U.S. at 48, 108 S.Ct. at 2254. Daniels simply held that in a § 1983 case predicated on a deprivation of due process, the plaintiff cannot clear the first hurdle of the prima facie case by alleging mere negligence. The Court in Daniels explicitly stated that "we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold, as we do, that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment." Id. 474 U.S. at 334, 106 S.Ct. at 666.
In § 1983 claims by convicted prisoners for violations of the Eighth Amendment and by pretrial detainees for violations of the Fourteenth Amendment, federal courts similarly have held that prisoners who are negligently subjected to some indignity cannot hold prison or jail officials liable under § 1983 because the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment applicable to pretrial detainees are violated only by deliberate acts or deliberate indifference to the prisoners' suffering. See Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir.1992) (Fourteenth Amendment); Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992) (Eighth Amendment). These cases show how a court's inquiry into a § 1983 defendant's subjective state of mind is folded into the inquiry into whether the plaintiff actually has suffered a constitutional violation, and not whether state of mind is a defense to the violation, once established. See Wade v. Hegner, 804 F.2d 67, 69-70 (7th Cir.1986).
Therefore, this court must inquire into whether a Fourth Amendment violation requires any particular mental state on the part of the offending officer. The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. In cases involving seizures of persons, there is little doubt that a Fourth Amendment violation at least requires the officer's intentional act of terminating the person's freedom of movement. See Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 1381-82, 103 L.Ed.2d 628 (1989) (stating that Fourth Amendment seizure occurs "only when there is a governmental termination of freedom of movement through means intentionally applied"). But this intent requirement applies to whether a seizure has occurred. For example, a police officer has not made a seizure for Fourth Amendment purposes by unintentionally crashing a squad car into the plaintiff, Apodaca v. Rio Arriba County Sheriff's Dep't, 905 F.2d 1445, 1447 (10th Cir.1990), but an intentional crash would constitute a Fourth Amendment seizure. Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1570 (11th Cir.1992), rev'd on other grounds, 998 F.2d 923 (11th Cir.1993).
Once a court determines that a Fourth Amendment "seizure" has taken place, the analysis must turn to whether the seizure was "reasonable." Pliska v. City of Stevens Point, 823 F.2d 1168, 1176 (7th Cir. 1987). The reasonableness analysis has never entailed an examination of the officer's state of mind or intent. The reasonableness of a search or seizure is judged by an objective standard, Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), or whether the officer's acts were "objectively reasonable" in light of the facts and circumstances confronting the officer. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). This reasonableness determination reflects "`a careful balancing of governmental and private interests.'" Soldal v. Cook County, ___ U.S. ___, ___, 113 S.Ct. 538, 549, 121 L.Ed.2d 450 (1992) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985)). "What matters is the intrusion *671 on the people's security from government interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house were undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all." Soldal, ___ U.S. at ___, 113 S.Ct. at 548 (emphasis added); see also Graham, 490 U.S. at 397, 109 S.Ct. at 1872 (stating in Fourth Amendment use of force case that "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional"). Applying Graham to a § 1983 claim alleging unlawful arrest, the Ninth Circuit held that it was error to instruct the jury that the plaintiff had to show the defendant officer specifically intended to violate the plaintiff's Fourth Amendment rights. Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992). So although a violation of the Fourth Amendment is no less a deprivation if done negligently, the question of the officer's "objective good faith" will come into play during the later stage of the analysis when the court determines whether a remedy is available for the deprivation, i.e. whether the officer may assert the defense of qualified immunity. Specht v. Jensen, 832 F.2d 1516, 1523 (10th Cir.1987), remanded on other grounds, 853 F.2d 805 (1988) (en banc), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989). The officer's subjective good faith is relevant only if it concerns one of the substantive elements of the constitutional wrong, but it will always be irrelevant to the objective inquiry of qualified immunity. See Elliott v. Thomas, 937 F.2d 338, 344 (7th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 973, 117 L.Ed.2d 138 (1992).
Once a § 1983 plaintiff establishes the prima facie case, a defendant public official may plead qualified immunity as an affirmative defense. However, courts should analyze qualified immunity only after resolving the "purely legal question" of whether the plaintiff has established a violation of a constitutional right. Sivard v. Pulaski County, 17 F.3d 185, 189 (7th Cir.1994). Qualified immunity is a judicially created doctrine that stems from the conclusion that few persons would enter public service if they would incur personal liability for their reasonable decisions. Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430 (7th Cir.1989), cert. denied, 498 U.S. 949, 111 S.Ct. 368, 112 L.Ed.2d 331 (1990). Qualified immunity generally shields government officials from civil liability arising from their performance of discretionary functions to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir.1993) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Whether an official is entitled to qualified immunity on the facts, it is a question of law for the court. Rakovich v. Wade, 850 F.2d 1180, 1201 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988).
In this case, the parties do not dispute that Walter Edwards had a clearly established constitutional right against being detained without reasonable suspicion and being arrested without probable cause. Defendants dispute that their acts deprived Edwards of his Fourth Amendment rights and argue that even if they did, defendants are entitled to qualified immunity.
II. Cabrera's Initial Questioning of Walter Edwards
Defendants argue that when Walter Edwards was questioned near his parked car and near the bus, he was never subjected to anything more than a consensual encounter with the police. Edwards argues that the questioning constituted an investigative detention, for which the necessary reasonable articulable suspicion was lacking.
In what has become known as a Terry stop, a police officer may briefly detain a person for investigation if the officer has a "reasonable articulable suspicion" of criminal activity. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-81. The Terry stop is a Fourth Amendment "seizure," but if the officer simply seeks a person's voluntary cooperation through noncoercive questioning, the policecitizen *672 encounter is consensual and does not implicate the Fourth Amendment. United States v. Adebayo, 985 F.2d 1333, 1337-38 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2947, 124 L.Ed.2d 695 (1993). In such a consensual encounter, "`the degree of suspicion that is required is zero.'" United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990) (quoting United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988)). In determining whether a police-citizen encounter is consensual, the Seventh Circuit considers several factors:
whether the encounter occurred in a public or private place;
whether the person consented to talk with the law enforcement agents;
whether the agents informed the person that he was not under arrest and was free to leave;
whether the agents removed the person to another area;
the threatening presence of several officers;
the display of a weapon by an officer; and
some physical touching of the person.
Adebayo, 985 F.2d at 1338.
According to Walter Edwards' own testimony, Cabrera approached him at the public bus station and asked, "Could I talk to you for a minute?" Edwards then consented to talk to her. Defendant's Rule 12(n) Statement, Exh. A at 32. Cabrera was by herself at first, her service weapon was holstered, and she did not yell at or frisk Edwards. Id. at 32-33. Walter Edwards also recalled that after asking him a couple of questions about his brother Eugene, Cabrera then asked, "Do you mind stepping back to the bus with me?" Id. at 34. By this time, two other officers had arrived, but only one of them, Redmond, was involved in the questioning of the Edwards brothers outside the bus. Walter Edwards does not allege that Cabrera or Redmond ever touched him at this point in their encounter. The evidence does not include facts showing that during this initial questioning, Cabrera ever told him he was free to leave, but a consideration of all of the above factors strongly indicates that the initial questioning was no more than a consensual encounter. Walter Edwards argues that it was not consensual because: (1) Cabrera asked him to accompany her to the bus, in addition to asking him questions, and (2) he believed he had to comply.
Plaintiff's argument that Cabrera's request that he accompany her to "another location"[1] converted the encounter into a Terry stop has no merit. The undisputed facts show that the bus was about 20 or 25 feet from where Cabrera first approached Walter Edwards. Defendant's Rule 12(n) Statement, Exh. A. at 33. This is hardly "another location." Cabrera's request that he follow her to the bus was no more coercive than her request to ask him a few questions. It does not add any legal weight to Edwards' testimony that he subjectively felt compelled to comply with the officer's requests. The test remains whether a reasonable person would believe he was at liberty to disregard the officer's request.[2]Edwards, 898 F.2d at 1276. In the absence of any evidence of coercion by Cabrera at this stage of the encounter, this court finds no genuine issue of fact as to whether a reasonable person would have felt free to decline her requests and to leave. Id.
Because a consensual police-citizen encounter is not a seizure and does not implicate the Fourth Amendment, Edwards has failed to meet the first prong of the § 1983 prima facie case. He has failed to present a genuine issue of fact as to whether Cabrera's initial questioning of him actually amounted to a constitutional violation. Therefore Cabrera is entitled to summary judgment on this component of Count I, and the court *673 need not consider defendants' qualified immunity argument as to this issue.
Defendant Redmond also is entitled to summary judgment on this issue. Plaintiff does not dispute that Redmond was not yet present at the bus station when the bulk of the encounter occurred. Therefore there is no genuine issue of fact as to whether Cabrera's initial questioning of Walter Edwards could be construed as a constitutional deprivation by Redmond. Even if there were a genuine dispute over whether Redmond was present, or even if he were undoubtedly present, he would be entitled to summary judgment for the same reasons as is Cabrera. The undisputed facts show that Walter Edwards' constitutional rights were not violated at this stage of his encounter with Cabrera and Redmond.
III. Walter Edwards' Arrest by Cabrera and Redmond
The subsequent arrest of Walter Edwards entails roughly the same inquiry: Is there a genuine issue of fact as to whether Edwards suffered a constitutional violation at the defendants' hands, and if so, are the officers entitled to qualified immunity? Defendants do not dispute that they arrested Walter Edwards, or that the arrest was a "seizure" for purposes of the Fourth Amendment. Instead, they argue that the arrest was reasonable because it was supported by probable cause, and that if it was not supported by probable cause, qualified immunity applies because a reasonable officer could have believed there was probable cause.
A. The Arrest Was Without Probable Cause
Probable cause is "a fluid concept" that turns on the assessment of particular factual contexts, rather than a set of overarching legal rules. Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). In general, probable cause to arrest exists when the officer has, at the moment of arrest, knowledge of facts and circumstances grounded in reasonably trustworthy information and sufficient in themselves to warrant a belief by a prudent person that an offense has been or is being committed by the person to be arrested. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). Where the facts and circumstances involve a tip from an informant, the tip may be the basis of probable cause if the officer reasonably corroborates it. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The probable cause determination must be informed by an analysis of the totality of the circumstances, including the "veracity," "reliability" and "basis of knowledge" of informants. Gates, 462 U.S. at 233, 238, 103 S.Ct. at 2329, 2332. The totality-of-the-circumstances analysis allows a deficiency in any of these areas to be compensated for, in determining the overall reliability of a tip, by a strong showing as to another, or by some other indicia of reliability. Id. at 233, 103 S.Ct. at 2329. "It is enough, for purposes of assessing probable cause, that `[c]orroboration through other sources of information reduced the chances of a reckless or prevaricating tale,' thus providing `a substantial basis for crediting the hearsay.'" Id. at 244-45, 103 S.Ct. at 2335 (quoting Jones, 362 U.S. at 269, 271, 80 S.Ct. at 735, 736). The courts ordinarily require greater corroboration where the tip is of low reliability, and lesser corroboration where it is of proven reliability. Alabama v. White, 496 U.S. 325, 330-32, 110 S.Ct. 2412, 2416-17, 110 L.Ed.2d 301 (1990). White also suggested that an informant's accurate prediction of a suspect's future behavior carried particular weight in the reasonableness of a police officer's belief that the informant had reliable information about the suspect's illegal activities. Id. at 332, 110 S.Ct. at 2417. The court may decide whether probable cause existed as a matter of law where the facts and inferences drawn from them leave no room for a difference of opinion on the issue. Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir.1993).
Gates illustrates the sort of corroboration that may satisfy probable cause. In Gates, an anonymous informant named a husband and wife and provided specific information about how the wife would drive a car to *674 Florida so it could be loaded with drugs before the husband would drive it back to Illinois a few days later. Gates, 462 U.S. at 225, 103 S.Ct. at 2325. The authorities independently corroborated that the couple's car was in Florida, that the husband would be flying there in a day or so and that he would be driving north toward Illinois. Id. at 244, 103 S.Ct. at 2335. Although the tip in Gates gave no indication of its reliability or the basis for the informant's knowledge, and although the couple's travel could have suggested an innocent vacation trip, the Court noted that if an informant is right about some facts, he is "more probably right" about other facts, including the claims involving the suspect's criminal activity. Id. at 227, 243-44, 103 S.Ct. at 2326, 2334-35. The officers' independent corroboration of some significant aspects of the tip sufficed for "the practical, common-sense judgment called for in making a probable cause determination." Id. at 244, 103 S.Ct. at 2335.
In Gates, the Court was considering whether probable cause existed to issue a search warrant. Id. at 226, 103 S.Ct. at 2325. But the Gates analysis also applies to whether probable cause existed to support a warrantless arrest. United States v. Towns, 913 F.2d 434, 439-40 (7th Cir.1990). In Towns, an informant with no history of reliability accurately described a bank robbery suspect, his car, his living situation and his first name. The Seventh Circuit held that police had probable cause to arrest the suspect once they independently corroborated those facts. Id. at 439-41. In United States v. Herrera, 757 F.2d 144 (7th Cir.1985), an anonymous tipster gave police the suspect's last name, said he was among a group of people dealing heroin at a specific address, and said a person named "Javier" was associated with the house. Id. at 146. After learning that a person named Javier was listed as the subscriber for telephone and electrical service at that house, the police found traces of heroin in the garbage abandoned outside the house. Id. at 146-47. The suspect, who was not Javier, and another man arrived at the house while the police were obtaining a search warrant, and they emerged from the house a few minutes later carrying plastic and brown paper bags. Id. at 149. The appeals court affirmed the district court's conclusion that under the totality of the circumstances, probable cause existed to arrest the suspect, despite his argument that police had no evidence linking him to the house. Id. at 149. In United States v. Foxworth, 8 F.3d 540 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1414, 128 L.Ed.2d 85 (1994), a reliable informant accurately predicted the suspect's procedures and movements in conducting a drug transaction in a motel parking lot, providing the police with probable cause to make a warrantless arrest. Id. at 543-44.
Defendants in this case point out that the informant was not entirely anonymous. The officers knew that the informant was a PACE bus driver. But there is no evidence that the officers knew the identity of the driver, and therefore they could not have known whether this particular driver had provided reliable information in the past. Defendants argue that because the tipster was a bus driver, he or she had no motive to lie. The tipster's occupation might suggest that the tip was reported as a part of the driver's official duties, but other than that, the officers would have had no basis to conclude that bus drivers are less prone to lying or exaggerating than anyone else. The need to corroborate the tip was not lessened by the fact that it came from a PACE bus driver.
So what corroboration did the officers achieve? The tipster said that five black men were at the bus station, and that he or she thought the men were involved in a drug deal. Defendant's Rule 12(n) Statement, Exh. A at 57. The tip included no description of the five black men, other than their race. It included no observations or other facts that might have supplied a basis for the tipster's having "thought" there was a drug deal. In short, the tipster provided very little information to corroborate. Defendants argue that they nonetheless corroborated the tip when Cabrera went to the bus station a few minutes later and found: (1) four black men standing relatively close together outside the station, and (2) two self-sealing bags of a substance that appeared to be marijuana in Eugene Edwards' garment bag.
*675 The court does not doubt that Cabrera corroborated the part about several black men being at the station. Obviously that falls far short of probable cause to arrest Walter Edwards. Defendants go on to argue that they also verified that a drug deal had taken place once Cabrera found the drugs in Eugene's garment bag, after having observed him as one of the four black men at the station. Defendants argue that at this point Cabrera was aware of "reasonably trustworthy information" from which "there can be no question that a reasonably `prudent person' would believe that a drug transaction had just occurred at the bus station." Defendant Redmond's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment, at 8.
The court simply does not agree with that conclusion. By itself, the observation of several black men at a bus station could not serve as reasonable corroboration for the information that a drug deal had taken place, unless one were to accept the absurd proposition that because the men were black, they were involved with drugs. The discovery of drugs in Eugene's bag, coupled with his being among the black men standing at the bus station, did not corroborate any suspicion that a drug transaction had just taken place outside the bus. Black men plus drugs still does not equal a drug deal.[3] The officers in this case do not state they saw drugs or money change hands. They do not present evidence that they spoke to any witness who had actually seen a drug deal, or that they attempted to identify, locate or interview the informant bus driver. They present no evidence that Eugene Edwards, Walter Edwards or anyone else (including the group of black persons interviewed by the third officer on the scene) admitted to them that a drug deal had taken place. They do not assert facts showing that Eugene or Walter gave a false name, lied to the police or told them an unlikely or contradictory story. They have pointed to no furtive behavior by anyone at the station. They have submitted no evidence that they located the sellers or recovered any cash that might have been used to buy the drugs. Eugene certainly obtained the marijuana from someone, somewhere at some definite time, but that could have been from anyone, anywhere and anytime. Eugene may have had a large wet spot on the front of his pants, and this might or might not have supported the inference that Eugene was nervous about talking to the police, but that along with the other evidence could not persuade a reasonable officer that a drug deal had just taken place or that Walter Edwards was involved in one. At most, the defendants' corroborative efforts yielded probable cause to arrest Eugene Edwards for possession of marijuana, but no more.
Defendants further argue that "[t]he discovery of drugs on Eugene, one of the few black men located at the bus terminal, within minutes of the tip led to the reasonable conclusion [that] Eugene's brother, Plaintiff, had also been one of the black men reported as participating in the transaction." Id. at 9. But probable cause to arrest Walter Edwards still hinges on probable cause to believe that a drug transaction had taken place involving him, and as we have concluded, the officers had not sufficiently corroborated that notion. This lack of corroboration did nothing to compensate for the tip's weak "basis of knowledge" regarding drug activity. In addition, defendants argue that because Eugene was the suspected purchaser of the drugs and hailed from Arkansas, it would be reasonable for the officers to conclude that he needed someone with ties in the Chicago area to procure a local drug seller. "Eugene's brother, Plaintiff, was a likely candidate for that role given his local residence and relationship with Eugene." Id. at 8. This latter argument also crumbles in the absence of probable cause to believe that a drug deal had taken place. Moreover, there is no evidence to support the suggestion that someone with "local ties" was needed. In any event, the court is concerned only with the officers' information and beliefs at the *676 time of the arrest. The portion of defendants' brief in which this argument appears contains no citation to the record, and there is no evidence that Cabrera or Redmond entertained such a belief at the time they arrested Walter Edwards.
Defendants cite United States v. Allen, 986 F.2d 1354 (10th Cir.1993), in which the police received an anonymous tip that two black men from Detroit, Michigan, were at a certain apartment in Junction City, Kansas, in possession of a large amount of cocaine. Id. at 1355. After locating the two men in a nearby parking lot, police recognized one of them as a person wanted on a warrant. Upon searching him, they found a large amount of cocaine. No cocaine was found on the other man, Brandon Allen, who later challenged the grounds for his arrest. The Tenth Circuit held that the arrest was proper, even if based only on the discovery of cocaine on Allen's companion. Id. at 1357. But the Allen court also noted that "[t]he informant had correctly described the suspects and predicted their location and the crack cocaine that they would be carrying." Id. In addition, the police in Allen knew at the time of arrest that a man from Detroit named "Brandon" was involved in the drug trade in Junction City. Id. at 1356. In Walter Edwards' case, the informant provided no description specific enough to be corroborated, either of the men at the bus station or of the drugs that supposedly were being sold. The informant did not even go so far as to say that he or she had seen a drug transaction, or that one had definitely taken place.
To the extent this court would follow Allen, we find it distinguishable.[4] Defendants Cabrera and Redmond have presented no evidence that they had independent knowledge or corroboration that either Walter or Eugene Edwards had been involved in drug dealing. The facts of this case are unlike those in Gates, Towns, Herrera or Foxworth. In those cases, the tips provided information that, once corroborated, led to a valid determination of probable cause; the tip accurately predicted a suspect's future behavior; or the police investigation led to the officers' having observed the suspect doing some act that indicated criminal behavior. As this opinion has explained, the tip in this case provided very little specific or incriminating information in the first place, other than what, from all the officers could surmise, could have been merely the tipster's hunch that a drug transaction had taken place. The subsequent police investigation revealed that Walter Edwards' only apparent connections to drugs were his presence at the bus station and his familial relationship to the man on whom the drugs were found. These undisputed facts do not create a genuine issue as to whether Cabrera and Redmond had probable cause to arrest Walter Edwards. Clearly, they did not, and Edwards has therefore established his prima facie case under § 1983.[5]
B. Qualified Immunity
Qualified immunity will shield the officers from liability to the extent their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir.1993) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). The Seventh Circuit has described the qualified immunity inquiry as having two prongs:
First, the plaintiff must show that the law was clearly established when the challenged conduct occurred. In this Circuit, we ask "whether the law was clear in relation to the specific facts confronting the public official when he or she acted." Apostol v. Landau, 957 F.2d 339, 341 (7th Cir.1992). Second, we evaluate the objective legal reasonableness of the defendants' conduct. We inquire whether reasonably competent officials would agree on the application *677 of the clearly established right to a given set of facts. (citations omitted).
McDonnell v. Cournia, 990 F.2d 963, 968 (7th Cir.1993).
First, the defendants do not dispute that Walter Edwards had a clearly established right against being arrested without probable cause. The real question, and one which defendants have declined to address, is whether Walter Edwards had a clearly established right "in a particularized sense." See Hinnen v. Kelly, 992 F.2d 140, 142-43 (7th Cir.1993). That is, the broad legal standard involving probable cause determinations may be clearly established, but where the application of any legal standard is highly fact dependent, "the `law' can rarely be considered `clearly established.'" Rakovich, 850 F.2d at 1213 (quoting Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.1986), cert. denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986)). The contours of the right must be sufficiently clear so that reasonable officials would understand that what they are doing violates the right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The Seventh Circuit has stated that "closely analogous cases" are required to find that a constitutional right is clearly established, but the cases need not be precisely on all fours. Sivard, 17 F.3d at 189. It is enough that in light of pre-existing case law, the unlawfulness of the action is apparent. Id. (citing Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). In this case, prior Supreme Court decisions such as Gates and White clearly applied to police officers' conduct at the time of Walter Edwards' arrest in May 1992. Under the clearly established law at that time, probable cause for a warrantless arrest based on an informant's tip would not exist without some independent corroboration suggesting to a prudent person that a crime had been or was being committed. In light of Gates and White, it would have been apparent to a reasonable officer in defendants' position that Walter Edwards had a clearly established right against being arrested on the basis of an anonymous informant's sketchy tip that was insufficiently corroborated. See Hinnen, 992 F.2d at 143-144 (citing United States v. Skinner, 972 F.2d 171, 176 (7th Cir.1992)).
Next, the court must evaluate the objective legal reasonableness of Walter Edwards' arrest by asking whether the police acted reasonably under the settled law in the circumstances, and not whether a more reasonable view of the situation can be constructed after the fact. Hunter v. Bryant, 502 U.S. 224, ___, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). Police officer defendants will be entitled to qualified immunity from § 1983 unlawful arrest claims if any officer could reasonably have thought there was probable cause to arrest. Krueger v. City of Algoma, 1 F.3d 537, 539 (7th Cir. 1993) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)); Biddle, 992 F.2d at 676. In other words, Walter Edwards must demonstrate that reasonable officers assessing the specific facts and relevant law would have known that their conduct violated his constitutional rights. Maxwell v. City of Indianapolis, 998 F.2d 431, 435 (7th Cir.1993).
The court already has held that, as a matter of law, defendants arrested Walter Edwards without probable cause. But for purposes of determining whether qualified immunity applies, the United States Supreme Court has stated that in a case where probable cause does not exist, the police officer's mistaken conclusions often may be reasonable nonetheless. Anderson, 483 U.S. at 635, 107 S.Ct. at 3034. It may sound counterintuitive to hold that an officer was reasonably mistaken in acting unreasonably, or that an act deemed "unreasonable" under the Fourth Amendment may receive qualified immunity's protection for reasonable official action. The Second Circuit very recently touched upon this apparent anomaly in the law of qualified immunity in § 1983 actions brought for Fourth Amendment violations:
It is not surprising that the District Court, after ruling as a matter of law that the officers' conduct was unlawful, also ruled as a matter of law that it was objectively unreasonable for the officers to believe that their conduct was lawful. At first blush, the two rulings appear to involve the same question whether the officers' conduct was objectively reasonable. Indeed, *678 there is a seeming circularity to inquiring first whether the circumstances as perceived by a reasonably prudent police officer would justify the belief that the persons to be arrested had committed a crime, and, after finding that the circumstances would not justify such a belief, proceeding to inquire whether a police officer could reasonably believe that the officer's conduct was lawful. It is not readily apparent how a police officer could have an objectively reasonable belief that conduct was lawful when the unlawfulness of that conduct rests on a determination that an objectively reasonable police officer would not have acted. And the situation is especially perplexing in a case like the pending one, where, for purposes of removing the first issue from the jury, it has been determined, correctly in our view, that no reasonable juror could fail to find that the officer's conduct was unlawful.
Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994); see also McGaughey v. City of Chicago, 664 F.Supp. 1131, 1139 (N.D.Ill.1987) (Aspen, J.) ("[i]t is difficult, or perhaps impossible, to separate the question of whether an officer had probable cause to arrest an individual from the question of whether an officer acted in a manner which was objectively reasonable under clearly established constitutional law"), vacated in part on reconsideration, 690 F.Supp. 707 (N.D.Ill.1988). The Seventh Circuit has seemed to recognize this conundrum at least implicitly by holding that juries should not be instructed on qualified immunity because "[t]o go on and instruct the jury further that even if the police acted without probable cause they should be exonerated if they reasonably (though erroneously) believed that they were acting reasonably is to confuse the jury and give the defendants two bites at the apple." Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir.1985) (en banc).[6]
Yet the Supreme Court in Anderson has taken the position that qualified immunity in effect does give the defendant two bites at the apple. Rejecting what it termed the "reasonably unreasonable" argument against qualified immunity, the Court noted the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment and added that police officers "whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law." Id. at 643-44. The Court has provided precious little guidance, however, on how lower courts should apply the "objective reasonableness" standard at the qualified immunity stage in a Fourth Amendment case after finding that a defendant police officer lacked an objective basis for probable cause.
In Hinnen, the Seventh Circuit applied Anderson in a § 1983 case brought by plaintiffs who had been named in an anonymous letter as being involved in a drug conspiracy. Hinnen, 992 F.2d at 141. Although the police had corroborated substantial details of the letter before obtaining a search warrant, courts later determined the warrant to have been issued in error for lack of probable cause. Id. at 442. The officer had confirmed that a person named in the letter owned a particular auto shop, had learned that a package mentioned in the letter had been sent to that same auto shop, and had confirmed the letter's description of several of the individuals' names, addresses, criminal records and relationships among each other. Id. at 444. The Hinnen court noted that the probable cause issue had been "a close legal question," and one that turned on law not clearly established at the time the warrants were executed. Id. at 143. In holding the officers qualifiedly immune, the court also relied on the fact that lower courts had found the officers had relied in good faith on a facially valid warrant, citing United States v. *679 Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In the circumstances of Hinnen, the Supreme Court's "reasonably unreasonable" distinction in Anderson seemed to apply. The officers corroborated much of the tip and obtained a warrant, but the warrant's failure on Fourth Amendment grounds did not control the determination of whether a reasonable officer would have known he or she was acting unlawfully. The officers were reasonably mistaken in their belief that the search was reasonable. Hinnen, 992 F.2d at 144.
This is not such a case. The lack of probable cause to arrest Walter Edwards was not a close legal question. Defendants did not act pursuant to a facially valid warrant. For purposes of § 1983 liability, qualified immunity draws the line where no reasonable police officer would believe that probable cause existed, and these defendants crossed that line. Our appeals court has had several occasions to hold that police officers' mistakes or misdeeds regarding probable cause were not reasonable. In Jones v. City of Chicago, 856 F.2d 985 (7th Cir.1988), the court held that the defendant police officers were not entitled to qualified immunity against a § 1983 suit where they arrested the plaintiff for murder based on witness identifications that were "worthless." Id. at 995. In Juriss v. McGowan, 957 F.2d 345 (7th Cir.1992), the court rejected the defense of qualified immunity where the police arrested the plaintiff for aiding a fugitiveher ex-husband despite having strong reason to believe that she did not know he was a fugitive. Id. at 349-51. In Jones and Juriss, the facts demonstrated some sort of affirmative misfeasance by the police. The case law also states that qualified immunity does not protect "the plainly incompetent" or "those who knowingly violate the law." Biddle, 992 F.2d at 678 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)).
By arresting Walter Edwards without probable cause, defendants Cabrera and Redmond may have been merely incompetent, or they may have known of the illegality of the arrest. Either way, they are not entitled to qualified immunity, because no reasonable officer, knowing what defendants knew, could have believed that arresting Walter Edwards was lawful under those circumstances. There was probable cause to arrest Eugene Edwards, in whose garment bag the drugs were found. But as to the plaintiff, Walter Edwards, defendants had no information linking him to the drugs in his brother's bag or to any drug deal. All they knew for sure was that Walter Edwards had stood next to two men and his brother Eugene before Eugene boarded the bus with some marijuana in his bag, and that an anonymous PACE bus driver had thought a drug deal had taken place a few minutes earlier. If defendants had independently collected any evidence of a drug deal or of suspicious behavior by Walter Edwards, this might be a closer case. But on these undisputed facts there was not enough evidence to persuade any reasonable officer to believe there was probable cause to arrest Walter Edwards. Cf. Scott v. Glumac, 3 F.3d 163, 166-67 (7th Cir.1993) (reversing grant of summary judgment in favor of a police officer defendant who asserted the defense of qualified immunity in suit for destruction of plaintiff's seized automobile where no evidence could support a reasonable officer in believing that plaintiff had driven the car to facilitate his drug offenses).
Accordingly, defendants Cabrera and Redmond may not avail themselves of the shield of qualified immunity. Defendants' cross-motions for summary judgment on Count I therefore will be denied, and plaintiff's motion for summary judgment on Count I will be granted as to the defendants' liability under § 1983.
IV. Count II: The False Imprisonment Claim
Under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct. 745 ILCS 10/2-202. The Act defines "willful and wanton conduct" as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, *680 shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210.
Unlike the objective analysis involved in deciding qualified immunity, the question of willful and wanton conduct goes to the subjective intent of the individual defendants. See Sank v. Poole, 231 Ill.App.3d 780, 173 Ill.Dec. 319, 323-24, 596 N.E.2d 1198, 1202-03 (4th Dist.1992) (citing Loitz v. Remington Arms Co., 138 Ill.2d 404, 150 Ill.Dec. 510, 563 N.E.2d 397 (1990)). The evidence submitted so far on this motion for summary judgment consists primarily of the testimony taken at the hearing on Eugene Edwards' motion to suppress evidence in state criminal court. That transcript provides a great deal of information as to the events at the bus station on the day of the arrest. But it provides little or no information concerning the defendants' mental state, or whether their conduct "approaches the degree of moral blame attached to intentional harm" or the deliberate or reckless infliction of "a highly unreasonable risk of harm upon others." See Sank, 173 Ill.Dec. at 323-24, 596 N.E.2d at 1202-03.
Therefore the record is not sufficiently developed for the court to determine whether a genuine issue of material fact exists as to the defendants' state tort immunity from the allegations in Count II. For these reasons, all motions for summary judgment on Count II will be denied.
CONCLUSION
For the reasons explained in this opinion, the court grants plaintiff's summary judgment motion as to § 1983 liability in Count I and denies it as to Count II. Defendants' cross-motions for summary judgment are denied as to both counts.
NOTES
[1] See Plaintiff's Memorandum in Support of His Reply to Defendant Cabrera's Response, at 4.
[2] In this sense, Cabrera's testimony that she considered the questioning an "investigatory stop" is irrelevant. If an officer's acts were deemed coercive every time he or she intended to question a person for investigatory purposes, almost any police-citizen encounter would have to be analyzed as a Terry stop, even if the officer did no more than ask for the citizen's voluntary cooperation.
[3] The court is excluding the tip itself from the calculus of whether the officers had probable cause. Unless some degree of trustworthy corroboration is found, the tip will be of little or no value in the determination of whether probable cause existed based on the totality of the circumstances. The tip itself cannot be used to bootstrap defendants' argument that they corroborated the tip.
[4] It should be noted that Allen is susceptible of a distinct factual gloss because Brandon Allen was initially arrested for possession of marijuana after the officers found an unsmoked marijuana cigarette next to his foot and heard him say he "smoked pot." Id. at 1354.
[5] The defendants do not dispute that, as Skokie police officers, they were acting under color of state law when they arrested Walter Edwards.
[6] In Oliveira, the Second Circuit remanded the "objective reasonableness" component of qualified immunity for consideration by the jury, identifying certain fact disputes that the court said would bear upon whether it was objectively reasonable for the officers in that case to have believed they were acting lawfully. Oliveira, 23 F.3d at 649-50. In this case, the facts bearing upon the officer's objective reasonableness are not in dispute, making qualified immunity ripe for determination on summary judgment as a matter of law, as the law of this circuit dictates it should be. Rakovich, 850 F.2d at 1202. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312880/ | WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendants' Motion to Dismiss ("Defendants' Motion"), ECF No. 21, to which Plaintiffs have objected, ECF No. 23. For the following reasons, Defendants' Motion is granted.
I. Factual Background
In 2016, the Rhode Island General Assembly passed the Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act of 2016 ("RhodeWorks Act"), R.I. Gen. Laws § 42-13.1-1 et seq., to redress the fact that 23 percent of Rhode Island bridges are "classified as structurally deficient" and the sources of revenue on which the state had historically relied to fund its transportation infrastructure are insufficient to fund the necessary maintenance and improvements to those bridges. See R.I. Gen. Laws § 42-13.1-2(2) - (7). The General Assembly found that large commercial trucks "cause in excess of seventy percent (70%) of the damage" to Rhode Island's roads and bridges but contributed *127"less than twenty percent (20%) of the state's total annual revenues to fund transportation infrastructure." R.I. Gen. Laws § 42-13.1-2(8). The General Assembly also found that, even after making several changes to the state's funding strategy, there still existed a "funding gap between the revenue needed to maintain all bridges in structurally sound and good condition and the annual amounts generated by current dedicated revenue sources." R.I. Gen. Laws § 42-13.1-2(7).
To fill this funding gap, the General Assembly passed the RhodeWorks Act, which authorized RIDOT to collect tolls exclusively from "large commercial trucks" and expressly prohibited RIDOT from collecting similar tolls from any other type of vehicle, including "passenger cars." R.I. Gen. Laws § 42-13.1-4, - 5. Under the Act, the Rhode Island Department of Transportation ("RIDOT") is vested with the power to determine the locations and amounts of the tolls, while the Rhode Island Turnpike and Bridge Authority ("RITBA") collects the tolls and deposits the revenues into a special account, called the "Rhode Island bridge replacement, reconstruction, and maintenance fund" ("RI Bridge Fund"), that can be used only to fund the "replacement, reconstruction, maintenance, and operation of Rhode Island bridges"; surplus revenues "shall not revert to the general fund but shall remain" in this special account. R.I. Gen. Laws §§ 42-13.1-4, - 9 ; see also RITBA's Mot. Intervene 1, ECF No. 16. The Act imposes a $ 20.00 daily limit on the amount of tolls that a truck making a "border-to-border through trip" using I-95 may be charged. R.I. Gen. Laws § 42-13.1-4(c). In contrast, the Act imposes a $ 40.00 daily limit on the amount of tolls that a truck making other trips may be charged. R.I. Gen. Laws § 42-13.1-4(d).
The first toll facilities became active in June 2018 and, at the time the Complaint was filed, tolls were being collected at two locations in southwestern Rhode Island on I-95. Compl. ¶¶ 61-62. Plaintiffs-various trucking, transport, and freight companies-filed a Complaint in July 2018 asking this Court to declare the tolls unconstitutional and to enjoin their collection. Compl. ¶¶ 1, 13. Plaintiffs contend that the tolling regime violates the Commerce Clause of the U.S. Constitution because (1) it intends to discriminate in favor of in-state, and against out-of-state entities; (2) it has the practical effect of discriminating against trucks traveling in interstate commerce; and (3) it imposes excessive costs on interstate vehicles as it is not a fair approximation of the payers' uses of the tolled facilities. Compl. ¶¶ 5-7; see U.S. Const. art. I, § 8, cl. 3.
Defendants - Peter Alviti, in his official capacity as the Director of RIDOT, and RITBA1 - have moved to dismiss on three grounds. First, they argue that the tolls constitute "a tax under State law" as described in the Tax Injunction Act ("TIA") and, therefore, the Court lacks subject matter jurisdiction to enjoin the "assessment, levy or collection" of those tolls. 28 U.S.C. § 1341 ; Defs.' Mot. to Dismiss ("Defs.' Mot.") 7-25, ECF No. 21. Second, even if the tolls are not "taxes" under the TIA, they argue that principles of comity and federalism nonetheless require the Court to decline to exercise its jurisdiction. Defs.' Mot. 25-30. Third, Defendants argue that the Eleventh Amendment protects them from suit. Defs.' Mot. 30-38.
*128II. Discussion
A. Tax Injunction Act
The TIA provides: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341. The parties do not dispute that Rhode Island state courts offer a "plain, speedy and efficient remedy" for Plaintiffs' Commerce Clause claims. Therefore, the only question before the Court is whether the RhodeWorks tolls constitute "a tax" under the TIA.
The question presents a close call, one which pits the actual language of the TIA and the context surrounding its enactment in the 1930s against several more modern decisions of the First Circuit that attempt to distinguish between fees and taxes. "The Supreme Court has not addressed the precise issue in dispute here, the means of defining a 'tax' for purposes of the Tax Injunction Act." See Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Mgmt. Dist., 166 F.3d 835, 838 (6th Cir. 1999). It has, however, differentiated between a "tax" and a "toll" in other situations, most notably in its opinion in Sands v. Manistee River Imp. Co., 123 U.S. 288, 8 S.Ct. 113, 31 L.Ed. 149 (1887). In that case, a Michigan law allowed private corporations to clean up and improve sections of the Manistee River and then charge tolls to recoup the costs of that clean up. The improvements had to be approved by the governor and the attorney general; the toll amounts had to be set by an administrative agency and could only be imposed upon the improved section of the river based on the distance traveled; and the use of the improved area had to remain open to all travelers, subject to their payment of the tolls. Sands used the improved section of river to transport his logs downstream but failed to pay the requisite tolls, leading the plaintiff, Manistee River Import Co., to sue for the payment of the delinquent tolls.
In his defense, Sands argued that the imposition of tolls, "without notice to the parties interested, or affording them any opportunity of contesting the validity or propriety of such tolls," amounted to a deprivation of property without due process in violation of the Fourteenth Amendment. Id. at 114-15 ; U.S. Const. amend. XIV. Sands further argued that the Michigan statute allowing for the imposition of tolls violated the Contracts Clause because a 1787 ordinance provided that navigable waters in the territory of Michigan would be forever free from taxes, imposts, and duties. According to Sands, the ordinance functioned as a contract between the federal government and the citizens of the territory and the imposition of tolls on the Manistee River amounted to a "tax" in violation of that contract. Sands, 8 S.Ct. at 115.
The Court first held that the tolls did not violate the Due Process Clause because a toll did not constitute a taking of property "any more than there is a taking of property from a traveler in requiring him to pay for his lodgings in a public inn ... The tolls exacted from the defendant are merely compensation for benefits conferred, by which the floating of his logs down the stream was facilitated." Id. It further found that it was impossible to give Sands, or any other citizen "who may have occasion to use the stream," notice or opportunity to "present their views upon the tolls to be charged" because "[s]uch parties cannot be known in advance." Id. at 116.
In expounding on why imposing a "toll" did not constitute a deprivation of property without due process, the Court distinguished tolls from taxes, observing that:
*129There is no analogy between the imposition of taxes and the levying of tolls for improvement of highways; and any attempt to justify or condemn proceedings in the one case, by reference to those in the other, must be misleading. Taxes are levied for the support of government, and their amount is regulated by its necessities. Tolls are the compensation for the use of another's property, or of improvements made by him; and their amount is determined by the cost of the property, or of the improvements, and considerations of the return which such values or expenditures should yield.
Id. at 115.
The Court also rejected Sands' Contracts Clause argument. It primarily relied on the fact that the U.S. Constitution preempted all existing laws, including the 1787 ordinance at issue, and that Michigan assented to this preemption when it became a state in 1837. Id. at 116. However, it took the opportunity to opine that, even in the absence of preemption, there was a distinction between "taxes" and "compensation for improvements," which would defeat the Contracts Clause claim. Id. at 117 (" 'By the terms [']tax, impost and duty,['] mentioned in the ordinance, is meant a charge for the use of the government, not compensation for improvements.' ") (quoting Huse v. Glover, 119 U.S. 543, 549, 7 S.Ct. 313, 30 L.Ed. 487 (1886) ) (emphasis added).
In the years between the publication of Sands and the enactment of the TIA, a number of state courts similarly concluded that "tolls" and "taxes" were mutually exclusive. See, e.g., Ruler v. York County, 290 Pa. 427, 139 A. 136 (1927) (holding that "[t]olls on highways are not taxes") (citing Sands, 123 U.S. at 294, 8 S.Ct. 113 ); Masters v. Duval County, 114 Fla. 205, 154 So. 172 (1934) (holding that "[t]olls are not taxes" under the Florida Constitution because "tolls are collected from every one who uses the bridge as a passageway whether a resident or a nonresident of the taxing unit ... while taxes may be levied upon residents or upon property having its situs in the taxing unit") (citing Sands, 123 U.S. at 294, 8 S.Ct. 113 ); People ex rel. Curren v. Schommer, 392 Ill. 17, 63 N.E.2d 744, 747 (1945) (concluding that "[t]here appears to be a clear cut and definite distinction between the legal conception of tolls and taxes" and explaining the difference between the two by reference to Sands ); In re Opinions of the Justices, 81 N.H. 552, 120 A. 629, 630 (1923) (holding that the legislature, which was constitutionally precluded from assessing certain taxes, was within its authority to impose tolls for use of state highways because "[t]here is no analogy between the imposition of taxes and the levying of tolls for improvement of highways") (quoting Sands, 123 U.S. at 294, 8 S.Ct. 113 ).
Additionally, a treatise on the Law of Taxation, published approximately a decade before the TIA was enacted, differentiated between tolls and taxes as follows:
A 'toll' is a sum of money for the use of something, generally applied to the consideration which is paid for the use of a road, bridge or the like, of a public nature. The term toll, in its application to the law of taxation, is nearly obsolete. It was formerly applied to duties on imports and exports; but tolls, as now understood, are applied most exclusively to charges for permission to pass over a bridge, road or ferry owned by the person imposing them. Tolls are not taxes. A tax is a demand of sovereignty; a toll is a demand of proprietorship.
Thomas A. Cooley, The Law of Taxation 77 (Clark A. Nichols ed., 4th ed. 1924) (emphasis added) (internal citations omitted).
*130Although neither Sands, nor the subsequent state court cases, nor the Cooley treatise, purport to analyze the meaning of the term "tax" as it is used in the TIA, these authorities nonetheless provide compelling evidence that, at the time Congress enacted the TIA in 1937, it would have understood "taxes" and "tolls" to be mutually exclusive concepts. "A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ; see also Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) ("[W]here a common-law principle is well established ... courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.") (quotation omitted).
Defendants naturally disagree. They argue that there was not a clear distinction between "taxes" and "tolls" prior to the enactment of the TIA, as evidenced by the fact that some cases, published immediately before and after the TIA was enacted, described certain toll-like exactions as "taxes."
First, Defendants contend that, in several cases decided in the years immediately before and after the enactment of the TIA, the Supreme Court used the term "tax" to discuss certain tolls similar to the tolls here. See Defs.' Reply 3, ECF No. 25. However, in all the cases to which Defendants cite, the challenged exactions were called "taxes" in the enabling legislation and the Court's analysis did not appear to turn on the difference between "taxes" and "tolls." See generally Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551 (1928) (addressing a Commerce Clause challenge to a Connecticut statute imposing a one-cent-per-mile "excise tax" on vehicles traveling interstate); Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155 (1932) (addressing various constitutional challenges to a Kansas statute imposing a variety of obligations and classifications on vehicles traveling interstate, including a "tax of five-tenths mill per gross ton mile"); Dixie Ohio Exp. Co. v. State Rev. Comm'n of Ga., 306 U.S. 72, 59 S.Ct. 435, 83 L.Ed. 495 (1939) (addressing a Commerce Clause challenge to the "Georgia Maintenance Tax Act"). Defendants' point is that the Court chose to describe these so-called "tolls" as taxes because that was what they really were, not because that is what the legislatures chose to call them. The point is a fair one inasmuch as the Court could have found the fees to be tolls regardless of the label. But these cases do little to undermine the fundamental distinction between tolls and taxes found by the Court in the Sands case.
Second, Defendants contend that, to determine whether an exaction is a "tax" within the meaning of the TIA (as opposed to the pre-TIA landscape discussed above), the Court must engage in the three-pronged test set forth in San Juan Cellular Telephone Co. v. Pub. Serv. Comm'n of P.R., 967 F.2d 683 (1st Cir. 1992). That test weighs the characteristics of the challenged assessment to determine whether it is more akin to a "tax" or a "regulatory fee."2 San Juan Cellular, 967 F.2d at 685.
*131In San Juan Cellular, the First Circuit laid out a spectrum of government-imposed assessments, placing the "classic tax" at one end and the "classic fee" at the other:
The classic 'tax' is imposed by a legislature upon many, or all, citizens[,] [and] raises money, contributed to a general fund, and spent for the benefit of the entire community ... The classic 'regulatory fee' is imposed by an agency upon those subject to its regulation ... [to] serve regulatory purposes directly by ... deliberately discouraging particular conduct by making it more expensive ... [o]r ... indirectly by ... raising money placed in a special fund to help defray the agency's regulation-related expenses.
Id. at 685. To determine whether an exaction constitutes a "tax" or a "regulatory fee," the court laid out three factors for consideration: (1) the nature of the entity imposing the exaction; (2) the scope of the population subject to the exaction; and (3) whether the revenues from the exaction are expended for general public purposes, of a sort often financed by a general tax, or whether the revenues provide more narrow benefits to regulated individuals and entities and serve to defray the agency's cost of regulation. Id. at 686. Although none of these factors is dispositive, in close cases, the First Circuit has instructed courts to "emphasize the revenue's ultimate use, asking whether it provides a general benefit to the public, of a sort often financed by a general tax, or whether it provides more narrow benefits to regulated companies or defrays the agency's costs of regulation." Id. at 685.
The first factor - the nature of the entity imposing the charge - clearly favors finding the RhodeWorks tolls to be fees or tolls, and not taxes. The toll amounts and locations are set by RIDOT, a government agency, and not by the General Assembly itself. See Bidart Bros. v. California Apple Comm'n, 73 F.3d 925, 931 (9th Cir. 1996) ("An assessment imposed directly by the legislature is more likely to be a tax than an assessment imposed by an administrative agency.").3
Likewise, the second factor - the nature of the population subject to the charge - also cuts in favor of finding the tolls to be akin to fees and not taxes. The tolls are imposed upon a narrow class of payors (large commercial trucks) which, by RIDOT's own estimates, makes up only 2.5 percent of weekday traffic and 0.8 percent of weekend traffic. Bidart, 73 F.3d at 931 ("An assessment imposed upon a broad class of parties is more likely to be a tax than an assessment imposed upon a narrow class."). However, "an assessment upon a narrow class of parties can still be characterized as a tax under the TIA" if it serves a revenue-raising purpose that benefits the community as a whole. Id. (citing Wright v. McClain, 835 F.2d 143, 145 (6th Cir. 1987) (finding assessments imposed only upon parolees to be "a tax" under the TIA because the funds were used for purposes that "related directly to the general welfare of the citizens of Tennessee") ). But see *132GenOn Mid-Atlantic, LLC v. Montgomery Cty., Md., 650 F.3d 1021, 1022 (4th Cir. 2011) (finding an "excise tax" to be a "fee," despite that it was projected to raise between $ 11.7 and $ 17.6 million annually, which would be deposited directly into the general fund, because the class of payors (a single energy plant) was too narrow to qualify as a "tax" under the TIA).
The third factor - whether the revenue is used for general public purposes that benefit the community as a whole, or for more limited regulatory purposes that benefit the regulated group and defray the agency's costs of administration - suggests the tolls are "taxes." Although not referred to as "taxes" in the authorizing legislation, the tolls were enacted with the express intention of raising revenues to cover a longstanding infrastructure "funding gap" and are expected to raise approximately $ 500 million over ten years. Defs.' Reply 28; R.I. Gen. Laws § 42-13.1-2(7) ; see Wright, 835 F.2d at 144 ("[T]he label given an assessment by state law is not dispositive of whether the assessment is a 'tax under state law.' Rather, the definition of the term 'tax' is a question of federal law[.]"). Even if, as Plaintiffs argue, this amount constitutes only a small percentage of Rhode Island's overall state budget, these truck "tolls" still serve a critical revenue-raising purpose (transportation infrastructure), that but for their collection, would require the General Assembly to fund through general revenue. See Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Mgmt. Dist., 166 F.3d 835, 840 (6th Cir. 1999) ("The [TIA] makes no exception for challenges to taxes which constitute a small portion of a state's revenue sources rather than a large portion."). Additionally, although the revenues from the tolls are deposited into a special account, not the general fund, the purpose for which the funds are used is unquestionably a general public purpose that benefits the community as a whole: Plaintiffs would be hard-pressed to demonstrate that highway construction and bridge maintenance benefit less than the entire community.
The First Circuit has held that "the most salient factor in the decisional mix concerns the destination of the revenues raised by the impost" and that the "revenue's ultimate use" is paramount. San Juan Cellular, 967 F.2d at 685 ; Cumberland Farms, Inc. v. Tax Assessor, State of Me., 116 F.3d 943, 947 (1st Cir. 1997) (citation omitted); see also Am. Landfill Inc., 166 F.3d at 839-40 (holding that, despite being deposited into a special fund, waste disposal "assessments" were taxes because they were approved by the legislature, were separate from the permitting fees which provided payors with the privilege of operation, and served several public purposes that benefitted the entire community). The use of a special fund here is little more than a budgeting device that is allowing the state to pay for what would otherwise be raised through general revenue taxation through a separate off-budget fee. The use of the fund does not change the character of the fee.
Moreover, the Supreme Court's holding in Sands and the analysis of San Juan Cellular are not at odds. The holding in Sands that tolls are not taxes is still good law; and the TIA would not operate to deprive district courts of jurisdiction in a case that challenged the constitutionality of an actual toll. But for a fee to be a toll - as conceived by Sands and consistent with the San Juan Cellular test - it must have certain characteristics: per Sands, it must be a fee that compensates the owner of something for use of that thing by another - a ferry, a private highway - or to compensate a person for certain improvements to property made by him. In other words, there is a direct correlation between the fee or toll and the use of the property. As stated in the Cooley treatise above, it is "a demand of proprietorship" not sovereignty. In contrast, a tax, as the *133Court said in Sands and the First Circuit discussed in San Juan Cellular, is essentially a revenue raising device, a demand of the sovereign. It is often, but not always imposed on a broad class of persons but, more importantly, it supplants other government revenue sources which would be needed to fund necessities like roads and bridges and the like.
Here, the facts are clear that the fees, while dubbed "tolls," are really a highly targeted and sophisticated tax designed to fund infrastructure maintenance and improvements that would otherwise need to be paid for by other forms of tax-generated revenue. As such, the Court is without jurisdiction under the TIA; the federal case must be dismissed and ultimately heard in the courts of Rhode Island.
III. Conclusion
For the above-stated reasons, Defendants' Motion to Dismiss (ECF No. 21 ) is GRANTED.
IT IS SO ORDERED.
The Court granted RITBA's Motion to Intervene as a defendant (ECF No. 16 ) on August 17, 2018.
A regulatory fee, for purposes of this analysis, is roughly the same thing as a toll in the sense that it is a fee that has certain specific characteristics that distinguish it from what we commonly think of as a tax.
However, RIDOT does contract with the State Tax Division to collect delinquent tolls and, therefore, the collections-process includes at least one tax-specific actor. See 28 U.S.C. § 1341 ("The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law ....") (emphasis added); Defs.' Reply 23, Ex. A - Memorandum of Understanding Between Rhode Island Division of Taxation and RIDOT. This Court may consider extrinsic evidence, such as the Memorandum of Understanding, in determining whether it has jurisdiction. See Ins. Brokers West, Inc. v. Liquid Outcome, LLC, 241 F.Supp.3d 339, 342-43 (D.R.I. 2017). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1324468/ | 209 Va. 798 (1969)
WILLIAM HENRY ANDERSON
v.
C. C. PEYTON, SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.
Record No. 6870.
Supreme Court of Virginia.
April 28, 1969.
Present, All the Justices.
1. Decision as to who to strike from jury panel is peculiarly a matter in which counsel should use his own discretion and judgment. Neither father of law partner of prosecuting attorney nor son of owner of another store in county is for these reasons disqualified as juror in trial for statutory burglary of store.
2. Counsel not ineffective for failure to request any instructions when instructions requested by Commonwealth, and granted, were adequate to present defense.
3. Defendant has burden of proving the charge of ineffective counsel. Mistakes in judgment on trial tactics not enough when it is by no means certain that a different course of action by counsel would have produced different result.
Error to a judgment of the Circuit Court of Hanover County. Hon. Ernest P. Gates, judge designate presiding.
Robert P. Beaver for plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for defendant in error.
HARRISON
HARRISON, J., delivered the opinion of the court.
On June 1, 1966, William Henry Anderson, defendant, was convicted by a jury of statutory burglary, and sentenced to serve 5 years in the penitentiary This court refused to grant defendant a writ of error and supersedeas, thereby affirming the judgment of conviction. *799
On December 9, 1966, defendant filed his petition for a writ of habeas corpus in the court below, claiming that his conviction was void because of ineffective representation by counsel. The case was heard by the judge designate, and the writ was denied. We granted defendant a writ of error.
The background of this case is as follows: On February 8, 1966, a store, owned by J. R. Mills, and located on Route 33 in Hanover County, was burglarized. Travis Ray Chisholm, James Rudolph Chisholm, Hammond W. Wood, Jr. and the defendant Anderson were arrested and charged with the burglary. Travis Ray Chisholm and Wood were indicted, pleaded guilty and were sentenced to the penitentiary. James Rudolph Chisholm, an infant of 15, was tried as a juvenile and committed to the State Board of Welfare and Institutions.
On March 17, 1966, James C. Kent of Ashland, Virginia was appointed counsel for defendant. Kent was 47 years old and had been engaged in the general practice of law in Hanover and surrounding counties and the City of Richmond since 1951.
A preliminary hearing for defendant resulted in the case being certified to the grand jury. Kent was then appointed to represent the defendant in his trial in the circuit court.
Between the preliminary hearing and the jury trial of defendant in the court below, Kent had interviews with defendant, ascertained the names of witnesses, interviewed Virginia Trooper L. B. Mitchell on several occasions, talked to two of the parties who were involved in the robbery and made and received many phone calls.
The record shows that at the trial of defendant, Kent made an opening statement, conducted examination and cross-examination of witnesses, interposed some objections, noted exceptions to certain actions of the trial court, made final argument to the jury and upon the return of the verdict of guilty, moved that it be set aside as contrary to the law and the facts in the case. He excepted to the action of the court in overruling the motion. His actions enabled defendant to petition for a writ of error and have this court review and consider the merits of his case.
In the habeas corpus proceeding now before us, defendant points to numerous acts of omission and commission by Kent in the conduct of his trial for statutory burglary, and contends that his counsel's representation was so ineffective as to make the trial a farce and a mockery of justice. We examine his several allegations of ineffectiveness. *800
Defendant complains because Kent did not strike from the jury panel Leslie D. Campbell, Sr., father of Leslie D. Campbell, Jr., who is a law partner of Andrew J. Ellis, Jr., the Commonwealth's Attorney of Hanover County. There is nothing in the record to indicate that Mr. Campbell was prejudiced, biased or influenced by the fact that his son is the law partner of Ellis. Kent stated that he knew Campbell, Sr. well enough to conclude that the relationship would have no bearing on his sitting as a juror.
Defendant further points to the failure of Kent to strike Floyd T. Ball, who is alleged to be the son of the owner of another store in Hanover County that had been burglarized. Kent was not personally acquainted with Mr. Ball, and there is nothing to indicate that Ball was prejudiced or biased.
The decision as to who should be stricken from a jury panel is peculiarly a matter in which counsel must use his own discretion and judgment, for there are many factors and considerations involved. Jurors Campbell and Ball were not disqualified for the reasons alleged by defendant, and there is no evidence from which we could infer that defendant was, or might have been, prejudiced by their service on the jury that tried him.
Defendant complains because no instructions were asked for by his attorney. Kent testified that he had prepared instructions but did not submit them because those requested by the Commonwealth's Attorney, and granted by the court. were basically the same as the ones he had prepared. He felt that additional instructions would only confuse the issue.
The trial court instructed the jury that defendant was presumed to be innocent and that this presumption went with defendant throughout all stages of the trial; that the burden of proof rested on the Commonwealth; and that the duty was on the Commonwealth to show that defendant was guilty beyond a reasonable doubt.
Whether additional instructions were needed was the decision for the attorney trying the case, and a trial tactic which necessarily varies with cases and with counsel. The instructions given in the trial of defendant were adequate to present his defense and upon which he predicated his argument to the jury.
Defendant points to instances in which his attorney failed to interpose objections to leading and argumentative questions asked by the Commonwealth's Attorney. True, the record does show questions asked that were leading and to which no objection was made. In every trial a decision has to be made by counsel as to what extent *801 he will interpose objections to leading and improper questions. Kent evidently concluded that defendant's cause was not being hurt either by the questions, or the sharp examination by the Commonwealth's Attorney, and we cannot say that this conclusion was an error, or that his judgment was the result of his ineffectiveness.
The most serious allegation challenging the conduct by Kent in the defense of Anderson is that at the conclusion of the direct testimony of Trooper Mitchell, Kent should not have cross-examined this witness. And that, in any event, he should not have asked the trooper: "What was your basis for issuing those warrants?" This referred to warrants issued against defendant, the Chisholms and Wood. Defendant claims that at this point in the trial no witness had connected him with the burglary, and that the question had the effect of letting in hearsay evidence upon which he was convicted.
Admittedly, at this stage in the trial the Commonwealth had not proved its case. The owner of the store had testified regarding the burglary, the manner in which the store had been entered and the items stolen. Trooper Mitchell had testified of his investigation of the burglary; that five days after the crime he was called by Richmond police who had obtained information pertaining to the case; that a search warrant for the home of Travis R. Chisholm at 908 Perry Street, in Richmond, had uncovered certain stolen property; and that at the same time Chisholm had taken them next door to 910 Perry Street and picked up a saw which was identified as having been stolen from the Mills store.
Kent then took Mitchell on cross-examination and asked "the basis for issuing the warrants". Responding to this question, the trooper said that Travis Ray Chisholm stated when arrested that a green Chevrolet pickup truck was the vehicle used to transport the parties and the stolen goods; that the Chisholms and Wood described the man who drove the truck as "Willie", his age as approximately 45, and the fact that he was known to frequent beer joints in the south side of Richmond; that when he inquired of the Richmond Police Department if they had any knowledge of such a person as "Willie", they showed him a picture of defendant, Anderson; and that the two Chisholms and Wood identified the man in the picture as the "Willie" who drove the truck and participated in the burglary.
Trooper Mitchell further testified that all three confessed, but that when the defendant was arrested on March 12th, he denied ever having been at or near Mills Store. However, Trooper Mitchell, *802 referring to the actions of defendant at a later date, March 17th, testified:
{"At this time he wanted to make a deal, that he either be dismissed or get a suspended sentence on this charge in return for information that he would give to the Police Department of Henrico County. I told him that I could not make a deal, that I would relay the information to Mr. Ellis, who was Commonwealth Attorney."
Trooper Mitchell also said: "I asked him if he would tell me about the trip up 33, that is when he said he wanted to make a deal. I told him that I couldn't make any deal."
Following the testimony of the trooper, the Commonwealth's Attorney called Travis Ray Chisholm and James R. Chisholm who admitted that they and Wood burglarized the Mills store. They refused to implicate defendant, and, in effect, denied having made any statements to the trooper, or in previous trials, involving defendant, or as having identified defendant as the "Willie" who drove the truck. It was the alleged sharp and argumentative examination of these two witnesses by the Commonwealth's Attorney that defendant says should have been objected to by Kent.
At this point the Commonwealth's Attorney rested his case. He was later permitted, over the objection of Kent, to recall Trooper Mitchell for the purpose of contradicting the testimony given by the Chisholms. The Commonwealth's Attorney stated to the trial court that the testimony of the Chisholms took him by surprise in that they testified differently from what he had anticipated they would, in view of their prior testimony in court and prior statements made to him personally. Upon recall, the trooper said that Travis Ray Chisholm had testified in a previous trial that defendant was present at the time of the burglary, and during his investigation and conferences with him, Chisholm had identified the picture of "Willie" as that of defendant.
If no cross-examination had been conducted by Kent of Trooper Mitchell, and if we assume that the testimony of the Chisholms would have been the same, and that the Commonwealth's Attorney would not have recalled the trooper for further questioning or introduced any further evidence, the evidence was not sufficient to have convicted defendant.
However, we cannot make such an assumption, and apparently Kent did not. In considering whether counsel was ineffective we *803 have to view this case in its setting, and in the same perspective as it must have been viewed by Kent.
The Mills burglary had been thoroughly aired in the county, circuit and juvenile courts of Hanover County by the time defendant was tried on June 1, 1966. In preparing for trial, Kent had ascertained that three of the participants had admitted guilt and been sentenced. He had interviewed the trooper and knew what evidence he would most likely give. He also knew that when arrested both Chisholms and Wood had stated that there was a fourth participant in the burglary, known to them as "Willie", and that the three had positively identified a picture of the defendant, William H. Anderson, as the "Willie" who was their accomplice.
It is true that Kent had reason to believe on the day of trial that the Chisholm boys and Wood were going to testify for Anderson. But he undoubtedly had qualms about whether their testimony would stand up under cross-examination in view of their previous contradictory testimony and statements. Kent concluded that his best strategy was to focus on the unreliability of the evidence of the three alleged accomplices of the defendant, the vagueness and confusion in their testimony and identification, and the fact that they had identified defendant from a picture which was not in evidence. Manifestly Kent feared that the Commonwealth had sufficient evidence to connect defendant with the burglary but hoped that the jury would view this evidence with suspicion, and regard the testimony as too vague and confusing to justify a finding of guilt beyond a reasonable doubt.
It is obvious from the testimony of Trooper Mitchell that he regarded the voluntary statements of defendant on March 17, 1966, when defendant was seeking a deal, as a confession by defendant and as implicating him in the burglary. While this testimony was elicited on cross-examination we cannot assume that had it been necessary to prove a case the Commonwealth's Attorney would not have recalled Mitchell to give the same testimony. Neither can we say that the judgment exercised by Kent in conducting his case, with the background that existed, and with his knowledge of the facts and the principals involved, was erroneous.
The principles which control the issues here have been cogently stated and pertinent authorities collected by Mr. Justice Snead in Peyton Fields, 207 Va. 40, 147 S.E.2d 762 (1966) and Mr. Chief Justice Eggleston in
Hoffler Peyton, 207 Va. 302, 149 S.E.2d 893 (1966). We quote from the Hoffler case as follows: *804
{"One who is serving a sentence and seeks relief by habeas corpus on the ground that the negligence and incompetence of the attorney who conducted his defense amounted to a denial of his right to the assistance of counsel guaranteed under the State and Federal Constitutions has the burden of proving the charge made. [Citing cases and authority.]"
{"Ordinarily, lack of preparation, mistakes or errors of judgment, improper advice or trial strategy in connection with a case are insufficient to justify setting aside a judgment of conviction. [Citing authorities.]"
{"Among the cases which support this principle is Penn Smyth, 188 Va. 367, 49 S.E.2d 600. There we held that the failure of counsel employed by the defendant to 'exercise a high degree of professional diligence' did not constitute an ineffective representation of counsel or render the trial a nullity; that the 'acts of omission and commission by counsel' are merely risks which every litigant must take. 188 Va. at 372, 49 S.E.2d at 602."
{"In United States ex rel. Bloeth Denno, 2 Cir., 313 F.2d 364, 374, it was said that, 'Poor tactics of experienced counsel, * * * even with disastrous result, may hardly be considered lack of due process, * * *.'"
{"In the recent case of Tompa Commonwealth of Virginia, 4 Cir., 331 F.2d 552, 554, it was held that mistakes in judgment or trial tactics by defense counsel do not deprive an accused of a constitutional right and do not entitle him to a writ of habeas corpus. [Citing cases.]"
{"Where the delinquencies of counsel chosen and employed by a defendant are concerned the representation must be so inadequate as to make the trial a farce and a mockery of justice in order that the judgment of conviction may be avoided. [Citing authorities.]"
{"In the recent case of Root Cunningham, 4 Cir., 344 F.2d 1, it is said: 'Ordinarily, one is deprived of effective assistance of counsel only in those extreme instances where the representation is so transparently inadequate as to make a farce of the trial. Snead Smyth, 273 F.2d 838 (4th Cir. 1959). This is especially true where, as here, the defendant chose and employed his own counsel.' [Citing numerous cases.]" 207 Va. at 308, 309, 310, 149 S.E.2d at 897, 898.
We have examined carefully the record in this and the burglary case. We have noted and considered the numerous actions of Kent *805 which, the defendant contends, show ineffective representation. The most that can be said is that the attorney for defendant may have made mistakes in judgment or trial tactics. Undoubtedly, if the case were retried, Kent would pursue a different course of action and adopt other trial tactics. This can be said of most attorneys who find themselves on the losing side of a case. Furthermore it is by no means certain that had Kent pursued a different course in the instant case the result would have been different.
We hold that defendant has failed to carry the burden of proving the charge of ineffective assistance of counsel. The judgment of the trial court denying and dismissing the writ of habeas corpus is therefore
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261972/ | 618 A.2d 1314 (1992)
David MERRILEES, et al.
v.
TREASURER, STATE OF VERMONT, et al.
No. 91-114.
Supreme Court of Vermont.
October 2, 1992.
*1315 Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
At issue is whether passage of Senate Bill 39 (1985), codified at 13 V.S.A. §§ 7281-7283, levying a $5.00 surcharge on certain penalties and fines paid to the state, violated the origination clause of the Vermont Constitution, Chapter II, § 6 (revenue bills must originate in the House of Representatives). The issue was raised in a class action brought by plaintiff Merrilees on behalf of all those against whom the surcharge had been levied. The trial court found that the contested measure was not a revenue bill and entered summary judgment in defendant's favor. This appeal followed. We affirm.
Following our policy of deciding cases on nonconstitutional grounds, we asked the parties to brief an issue which they had not raised, that is, whether this appeal is controlled by Chittenden Trust Co. v. MacPherson, 139 Vt. 281, 284-85, 427 A.2d 356, 358-59 (1981) (in actions to recover monies required to be paid pursuant to judicial proceeding, appeal must be taken directly; absent fraud, res judicata bars collateral attack on issues that were or could have been raised in proceeding).
In response to this request, plaintiffs challenge this Court's authority to raise sua sponte the issue of res judicata. Res judicata is an affirmative defense that is waived if not raised by the parties. V.R.C.P. 8(c). Ordinarily, if such a defense is not raised in the pleadings, it is not available at trial or on appeal. Brouha v. Postman, 145 Vt. 449, 452, 491 A.2d 1038, 1040 (1985). The rule, however, is subject to exceptions. See City of Burlington v. Mountain Cable Co., 151 Vt. 161, 163, 559 A.2d 153, 154 (1988) (Court will recognize unraised affirmative defense of illegality "if of a serious nature"). Rule 8(c) is a notice provision, intended to prevent unfair surprise at trial. But notice considerations are not implicated here. No factual development is required to decide res judicata, and the parties have been given an opportunity to fully brief the issue.
In addition, ample and persuasive precedent allows a court to raise res judicata on its own where the parties have failed to raise it and consequently waived the right to do so. Dakota Title & Escrow Co. v. World-Wide Steel Systems, Inc., 238 Neb. 519, 525-26, 471 N.W.2d 430, 434-45 (1991) (adopting the principle and citing authority). Allowing an appellate court to raise res judicata is consistent with policies of avoiding unnecessary judicial waste, id. at 526, 471 N.W.2d at 435, and fostering reliance on judicial decisions by precluding relitigation, Wilson v. United States, 166 F.2d 527, 529 (8th Cir.1948). Moreover, it is consistent with the rule that judgments are entitled to be affirmed if any legal ground exists to do so, even one not raised by the parties, Robertson v. Interstate Securities *1316 Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971), a rule long followed by this Court in other contexts. See, e.g., Richards v. Union High School District No. 32, 137 Vt. 132, 134, 400 A.2d 987, 989 (1979).
Res judicata bars parties from relitigating, not only those claims and issues that were previously litigated, but also those that could have been litigated in a prior action. Converse v. Town of Charleston, ___ Vt. ___, ___, 605 A.2d 535, 537 (1992). Although there is no record on this point, the parties do not dispute that members of the plaintiff class were subject to criminal or administrative proceedings in which each paid the surcharge without objecting on constitutional grounds. The origination clause issue, without doubt, could have been raised in those proceedings. Instead, these litigants were joined together in a class action, a collateral proceeding initiated after their own individual proceedings were completed, which is precisely the type of attack that MacPherson condemns.
To the contrary, plaintiffs assert that a criminal conviction should not support issue preclusion in a later civil action. Assuming this principle were correct, it would not apply here. This case is res judicata by virtue of claim, not issue, preclusion, which bars parties from litigating claims or causes of action that were or should have been raised in previous litigation where the parties, subject matter, and causes of action are identical or substantially identical. American Trucking Ass'ns v. Conway, 152 Vt. 363, 370, 566 A.2d 1323, 1328 (1989). The doctrine specifically bars defendants from using defenses available in one action as the basis for a claim in a later action. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4414, at 111 (1981).
Even though res judicata governs this case, plaintiffs nonetheless argue that policies favoring class actions should be recognized over those favoring res judicata. As a practical matter, plaintiffs assert, no individual litigant would have attempted to recover a minor sum ($5.00) in light of the time and expense involved in litigation and appeal, and consequently, only a class action suit makes this litigation possible. Res judicata is a "judicially created rule of law," American Trucking, 152 Vt. at 371, 566 A.2d at 1328, and a very small number of cases avoid preclusion on broad grounds of "public interest" or "unwarranted injustice." 18 Wright, Miller & Cooper, supra, at 131-35. Plaintiffs ask us, in effect, to create such an exception and, in the process, to overrule the direct precedent of MacPherson. They make no compelling argument for us to do either.
MacPherson cannot be distinguished. In that case, executors who had paid probate distribution fees when closing estates later sought to bring a class action to recover the fees on the ground they were unconstitutional taxes. This attempt was barred by res judicata because each class member could have raised the constitutional issue in the prior probate proceeding. As here, the individual executors may have had little incentive to challenge the allegedly unconstitutional tax. Small amounts were at issue, and the main focus of the proceeding was to close the estate. Yet, we found these reasons insufficient to disturb the finality of prior judgments. 139 Vt. at 285, 427 A.2d at 359.
Plaintiffs' argument for class status is far weaker than that in MacPherson. Unlike the probate context, many of the class members subject to the surcharge would have been represented by public defenders; they would not personally be forced to bear the cost of raising the constitutional issue. Moreover, many of the cases would have been contested and many would have been appealed. Any one of them could have been a vehicle for receiving a decision from this Court.
Here, as in MacPherson, the issue is finality, not the obvious utility of aggregating small claims in a class action. By failing to raise the asserted illegality of the surcharge to the court assessing the charge, plaintiffs, by their own inaction, have created the necessity for aggregation. If they prevail, the burden shifts to the state to locate and reimburse persons who *1317 failed to complain about the charge when it was directly before the court. Under these circumstances, plaintiffs' aggregation argument does not outweigh the need for finality.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324564/ | 167 S.E.2d 868 (1969)
5 N.C. App. 217
STATE of North Carolina
v.
Rayvon CROSS.
No. 6922SC269.
Court of Appeals of North Carolina.
June 18, 1969.
Atty. Gen. Robert Morgan and Staff Atty. Carlos W. Murray, Jr., Raleigh, for the State.
P. G. Stoner, Jr., Stoner & Stoner, Lexington, for defendant appellant.
CAMPBELL, Judge.
The defendant assigns several errors in the trial of the case, but we find it necessary to discuss only the first, which is the denial of the defendant's motion to quash the bill of indictment for failure to describe the charge with sufficient exactness to allow the defendant to prepare a defense.
The bill of indictment did not set out wherein the American Express Money Order had been altered, changed or defaced so as to constitute the claimed forgery. A photostatic copy of the money order itself was attached to the bill of indictment. The evidence, however, disclosed that the money order as originally issued was for 1.00 Dollar. The forgery consisted of extending the base of the one (1) so as to eliminate the period between the one (1) and the first zero (0), and thereby making the money order appear to be for 100 Dollars. The alteration was so cleverly done that the Assistant Cashier of the bank which cashed the money order thought it was for 100 Dollars and directed the teller to give that sum of money in payment for the money order.
The bill of indictment did not in any way set out the manner and method in which the money order had been altered, *869 changed or defaced. The warrant which was issued in this case for the original arrest, did set out, among other things, that the defendant "* * * did wittingly, and falsely make, forge, and alter an American Express Money Order, from $1.00 to read $100.00, with intent to defraud * * *."
In this case, however, the defendant was tried on a bill of indictment for the felony of forgery. He was not tried on the warrant, and the warrant was not a part of the charge.
Even though the offense of forgery is charged in statutory language in the bill of indictment, in order to be a valid bill of indictment, it is necessary that the statutory words be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged. State v. Coleman, 253 N.C. 799, 117 S.E.2d 742. In the instant case, the bill of indictment failed to do this, and since the warrant was not a part of the charge in the bill of indictment and since the defendant was placed on trial for the charge contained in the bill of indictment, the motion to quash should have been sustained.
"Where the alteration of a genuine instrument is charged, an indictment for forgery must clearly set forth the alteration alleged, with the proper allegations showing alteration of a material part of the instrument. Thus, in an indictment for forgery effected by interpolating words in a genuine instrument, as by raising the amount of a note, the added words should be quoted and their position in the instrument shown, so that it may appear how they affect its meaning." 36 Am.Jur.2d, Forgery, § 35, p. 700.
Reversed.
MALLARD, C. J., and MORRIS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261973/ | 861 F.Supp. 1017 (1994)
Daniel R. BERNARD, Plaintiff,
v.
DOSKOCIL COMPANIES, INC., Defendant.
Civ. A. No. 92-1644-MLB.
United States District Court, D. Kansas.
August 26, 1994.
*1018 Frederick C. Davis, II, Bruce & Davis, Wichita, KS, for plaintiff.
W. Stanley Churchill, Ross A. Hollander, Martin, Churchill, Overman, Hill & Cole, Wichita, KS, for defendant.
MEMORANDUM AND ORDER
BELOT, District Judge.
This case comes before the court on defendant's second motion for partial summary judgment (Doc. 68). The facts of the case were previously set forth in the court's order concerning defendant's first motion for partial summary judgment (Doc. 84, pp. 3-7). Additional pertinent facts will be reviewed as necessary.
In its first motion for summary judgment, defendant sought judgment as a matter of law on the second, third, fourth, fifth and sixth causes of action in plaintiff's complaint. The motion was granted as to causes of action 2 through 5 and denied as to the sixth cause of action for intentional infliction of emotional distress. In its second motion, defendant seeks summary judgment on plaintiff's first cause of action, which alleges racial discrimination and seeks recovery under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
SUMMARY JUDGMENT STANDARDS
Rule 56(c) of the Federal Rules of Civil Procedure directs the entry of summary judgment in favor of the party who "show[s] 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." The court's inquiry is to determine "whether there is the need for a trial whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 *1019 (1986); see Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir. 1991).
The burden of proof at the summary judgment stage is similar to that at trial. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact by informing the court of the basis for its motion, Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993), and the nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial," Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993). The court views the evidence in a light most favorable to the nonmoving party. See, e.g., Thrasher v. B & B Chemical Co., Inc., 2 F.3d 995, 996 (10th Cir.1993).
Plaintiff's Cause of Action under Title VII
In his "first cause of action," plaintiff essentially sets forth a claim for racial discrimination predicated on allegations of racial harassment. Plaintiff alleges that "defendant discriminated against [him] with respect to the terms, conditions, and privileges of his employment because of plaintiff's race and color, in violation of Section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)." (Doc. 1, ¶ 10). According to plaintiff, these "differential terms and conditions of employment included" (1) racial harassment and (2) his termination. Id. at ¶ 18. Plaintiff specifically lists a number of alleged incidents of racial harassment, Id. at ¶¶ 11-17, including defendant's denying him a raise in July 1991, id. at ¶ 15. Plaintiff claims that such harassing conduct was "not experienced by whites similarly situated." Id. at ¶ 18. According to plaintiff, the hostility aimed at him because of his race became so intolerable that continued employment with defendant was impossible. Id. at ¶ 10.
Defendant contends it is entitled to summary judgment on plaintiff's racial harassment claim. In addition, defendant seeks summary judgment on two other types of Title VII claims plaintiff has seemingly raised in his complaint: discriminatory discharge and pay discrimination. Initially, the court will address defendant's concerns regarding a claim of pay discrimination.
As stated supra, plaintiff's complaint includes an allegation that he was denied a pay raise in July 1991. From this, defendant has apparently discerned a possible pay discrimination claim. However, plaintiff's complaint clearly does not state such a claim. Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1), specifically prohibits discrimination "with respect to [an employee's] compensation, terms, conditions, or privileges of employment." (emphasis added). In his "first cause of action," however, plaintiff does not list "compensation" as a basis for his Title VII claim. Rather, plaintiff simply includes an allegation that he was denied a pay raise given to other employees among those allegations supporting his claim of racial harassment. Indeed, in his response to defendant's second motion for partial summary judgment, plaintiff maintains that his allegation concerning defendant's failure to grant a pay raise is merely "part and parcel to his overall race discrimination and harassment argument" that the denial of a pay raise is a "predicate act (among several other predicate acts) establishing [the existence of] a racially hostile work environment." (Doc. 82, pp. 33-36). Accordingly, the court finds that no separate claim of pay discrimination has been made and, therefore, defendant's motion for summary judgment on such a claim is moot.
Turning to plaintiff's racial harassment claim, both parties agree that the starting point for evaluating such a claim is the Supreme Court's decision in Harris v. Fork Lift Systems, ___ U.S. ___, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). In that case, a female employee alleged that her male supervisor had engaged in sexually harassing conduct to such an extent as to create an "abusive" or "hostile" work environment in violation of Title VII. Id. ___ U.S. at ___, 114 S.Ct. at 369. The district court held plaintiff's supervisor's conduct did not create an abusive environment because it did not "`seriously affect [plaintiff's] psychological well-being.'" Id. ___ U.S. at ___, 114 S.Ct. at 370. The Sixth Circuit affirmed, and the Supreme Court granted certiorari to consider whether *1020 proof of a serious psychological affect is necessary to establish the existence of an abusive or hostile work environment under Title VII. Id.
Looking to its decision in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court noted that the phrase "terms, conditions, or privileges of employment" in Title VII encompasses a prohibition on "requiring people to work in a discriminatorily hostile or abusive environment." Id.
When the workplace is permeated with "discriminatory intimidation, ridicule, and insult," ... that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," ..., Title VII is violated.
Id. (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. at 2405). The Court further noted that evidence of a hostile work environment must satisfy both subjective and objective standards, revealing an environment that the plaintiff actually and reasonably perceived to be abusive. Id. The Court found that this did not require the plaintiff to submit evidence of a serious psychological injury:
Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, 477 U.S., at 67, 106 S.Ct., at 2405, there is no need for it also to be psychologically injurious.
Id. ___ U.S. at ___, 114 S.Ct. at 371. The Court held that, ultimately, "whether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances," which may include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id.
Applying Harris and Meritor Savings to the present case, the court finds that plaintiff has presented sufficient evidence of a racially hostile work environment to overcome defendant's motion for summary judgment. Plaintiff has pointed to the following alleged incidents of harassing conduct, most of which were discussed in the court's previous order, in support of his racial harassment claim: (1) Marcus Pousson, plaintiff's assistant foreman, calling him a "black boy"; (2) Pousson's stating in front of others that "we don't allow your kind at the water fountain"; (3) an employee in the research and development department using the term "nigger rig"; (4) co-workers telling racial jokes; (5) co-workers changing the dial settings on plaintiff's are welder while he was away from his work station; (6) co-workers sneaking up and banging hammers on plaintiff's work table; (7) Arley Philbrick, plaintiff's leadman, threatening to wrap a rag saturated with lacquer thinner around plaintiff's neck while plaintiff was welding; (8) an unidentified co-worker placing a tungsten welding tip in plaintiff's chair which punctured his buttocks; (9) being denied a raise; and (10) the simple fact that plaintiff was singled out as Reno Technology's only black employee. "[L]ooking at all the circumstances," these allegations are sufficient, for purposes of summary judgment, to demonstrate a racially hostile work environment. Harris, ___ U.S. at ___, 114 S.Ct. at 371. They reveal relatively frequent and sometimes severe harassing conduct, including physical threats and actions which interfered with plaintiff's performance of his job. Id. Viewing the allegations and evidence that supports them in a light most favorable to plaintiff, summary judgment is manifestly inappropriate.
As defendant points out, the veracity and probative value of a number of plaintiff's allegations can be called into question. For example, plaintiff admits not hearing any racially derogatory jokes or Pousson's alleged "black boy" comment; he concedes the alleged reference to the term "nigger rig" was not directed at him; and he does not controvert defendant's representation that he was hired at an hourly rate equal to that of a welder with two years of experience. (The court identified some of these and other shortfalls in its previous order, specifically, in the section regarding intentional infliction of emotional distress). However, who to believe and what weight certain evidence *1021 should be given are not matters this court can appropriately decide at the present time. To do so would be to exceed the boundaries of summary judgment and encroach upon the province of the finder of fact.[1]
Defendant contends that the court should consider separately those allegations involving "behavior commonplace in the `blue collar environment' from that conduct motivated by a racial animus" in evaluating plaintiff's evidence supporting his racial harassment claim. (Doc. 69, p. 15). Defendant argues that most of the conduct alleged by plaintiff is merely innocuous "horseplay" and should not be characterized as evidence of racial hostility. As support for this proposition, defendant relies on Judge Rogers's decision in Bolden v. PRC, Inc., CIV. A. No. 90-4160-R, 1993 WL 245128 (D.Kan. June 11, 1993).
In Bolden, a black male (Bolden) alleged that his working environment was racially hostile because co-workers made crude, derogatory remarks (some of them racial in nature), occasional racial jokes (though none were told in his presence), and, on two occasions, farted ("expelled flatulence"), while in his presence. Id. at *2. Unlike the present case, Bolden never reported any of the alleged racial comments to any supervisor or manager at PRC. Id. When he did tell one supervisor about being called an "asshole," PRC "effectively handled" the situation. Id. Bolden eventually filed a complaint with the Kansas Commission on Civil Rights (KCCR), and, after a settlement conference, PRC took additional corrective action. Id. at *3.
In analyzing this evidence under the standards set forth in Meritor Savings, Judge Rogers noted that there were "only a few incidents where co-workers made racial slurs or racial comments or told racial jokes." Id. at *4. He found that "[t]he other incidents noted by plaintiff were apparently commonplace [in] the blue collar environment of the electronics shop at PRC" and that there was "no evidence that any of these incidents were racially motivated ... since plaintiff admit[ted] that other employees were subjected to the same crude, rude and boorish behavior." Id. (emphasis added). Judge Rogers further found that Bolden had admitted "that his direct supervisor was unaware of any of the racial slurs, comments or jokes" and "that PRC responded effectively to his complaints concerning the other matters." Id. at *5. Based on these findings, Judge Rogers concluded that Bolden had not presented sufficient evidence of a hostile working environment or sufficient evidence that, if a hostile environment did exist, PRC should be held liable. Id. at *4-5.
There are at least two significant distinctions between Bolden and the present case. First, in the present case, as noted supra, it is undisputed that plaintiff's supervisors were well aware of many of the alleged incidents of harassment. At least one of the incidents that was discussed, Mr. Pousson's water fountain comment, involved possible racial hostility.
Second, and more importantly given the grounds upon which defendant is seeking summary judgment, there is evidence in the present case suggesting a "racial motivation" behind some of the so-called blue collar "horseplay" that went on at Reno Technology. Unlike Bolden, the plaintiff in this case appears to have been subjected to a quantitatively and qualitatively greater level of harassment than his co-workers. While horseplay, pranks, and foul language may be commonplace at Reno (many of the Reno employees deposed indicated that it is), the horseplay, pranks, and language directed at plaintiff appear to have been uniquely mean-spirited and numerous. The reason for this is, of course, not entirely clear. But the fact that plaintiff was the only black employee certainly suggests to this court that the motivating reason was plaintiff's race. Defendant does not directly counter this suggestion (i.e., by positively stating that the motivation behind the horseplay, pranks, and comments was not plaintiff's race), and it is rather disingenuous for defendant to do so indirectly by trying to make this case look like *1022 Bolden. Plaintiff has set forth sufficient evidence and deserves the opportunity to prove that the harassment directed at him was racially motivated and that it rose to such a level as to "alter the conditions of [his] employment and create an abusive working environment." Meritor Savings, 477 U.S. at 67, 106 S.Ct. at 2405.
Finally, defendant also seeks summary judgment on plaintiff's Title VII claim to the extent it is based on allegations of discriminatory discharge. Looking to the familiar Title VII prima facie "framework" developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and clarified in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and St. Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), defendant contends that there is no evidence that its proffered legitimate, nondiscriminatory reason for plaintiff's discharge the work restrictions prescribed by Dr. Hanson was merely a pretext for racial discrimination.
In response to defendant's pretext argument, plaintiff points out that his discriminatory discharge claim is intertwined with his allegations of racial harassment. Plaintiff claims that he was discharged because it was easier for Reno Technology to fire him than to try to rectify its hostile and abusive work environment. Furthermore, plaintiff points to Dr. Eyster's letter (referred to in the court's previous order) and numerous deposition excerpts which he contends establish that he could have performed the duties of a welder at Reno Technology even after the puncture wound to his buttocks. Plaintiff observes that it would be "truly ironic" for his buttocks injury, resulting from racial harassment, to deprive him of his discriminatory discharge claim under Title VII.
Having thoroughly reviewed the arguments and evidence of both parties, the court finds sufficient evidence of pretext. Under St. Mary's Honor Center, an employer's proffered legitimate, nondiscriminatory reason for its employment decision "cannot be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." ___ U.S. at ___, 113 S.Ct. at 2752 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94). Hence, in this case, there are two elements to refuting defendant's explanation that it fired plaintiff because of Dr. Hanson's work restrictions: (1) presenting evidence that this explanation is unworthy of credence; and (2) presenting evidence that the real reason for discharge was plaintiff's race. Plaintiff has satisfied element (1) by pointing to his supervisor's knowledge of the letter from Dr. Eyster and deposition testimony suggesting that he was still qualified to be a welder. (See Doc. 82, pp. 26-32). Plaintiff has satisfied element (2) by pointing to the connection between the alleged racial harassment and his discharge that is, by setting forth evidence that the real reason for his discharge was defendant's unwillingness to correct its racially hostile work environment. (See Doc. 82, pp. 32-33).
IT IS ACCORDINGLY ORDERED that defendant's second motion for partial summary judgment (Doc. 68) is hereby denied. The court's direction in its previous order with respect to a motion for reconsideration applies equally to this order.
Counsel shall submit a pretrial order by September 9, 1994.
NOTES
[1] Because the court denied summary judgment with respect to plaintiff's claim for intentional infliction of emotional distress, and plaintiff has demanded a jury trial, a jury will be necessary in this case. The jury will give an advisory verdict on plaintiff's Title VII claims. The ultimate decision on Title VII will, however, rest with the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261976/ | 132 Cal.Rptr.2d 872 (2003)
107 Cal.App.4th 1299
In re Christopher CAPISTRAN, on Habeas Corpus.
Court of Appeal, Second District, Division Six.
April 21, 2003.
*873 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Julie L. Garland, Susan Duncan Lee, Supervising Deputy Attorneys General, Heather Bushman, Deputy Attorney General, for Appellants Gray Davis, Governor of the State of California, and Jim Hamlet, Warden, Correctional Training Facility.
Rowan K. Klein, Los Angeles, under appointment by the Court of Appeal, and *874 Keith Wattley for Respondent Christopher Capistran.
PERREN, J.
In In re Rosenkrantz (2002) 29 Cal.4th 616, 676-677, 128 Cal.Rptr.2d 104, 59 P.3d 174, our Supreme Court held that the Governor's decision to deny parole will not be disturbed if supported by "some evidence." But, in reaching that conclusion a reviewing court must also be satisfied that the Governor's decision was based on the same factors "which the parole authority is required to consider." (Cal. Const., art. V, § 8(b) [hereafter Article V, section 8(b) ].) Here we conclude that the report of the Governor required by Article V, section 8(b) was, in part, based upon facts for which there was not "some evidence," and that the Governor failed to make an individualized consideration of the same factors upon which the Board of Prison terms (hereafter the Board) relied.
In 1985, Christopher Capistran was convicted of second degree murder and sentenced to an indeterminate term of 15 years to life in state prison. In 1999, the Board found that he was suitable for parole and set a parole date. After Governor Gray Davis reversed the Board's decision, Capistran filed a petition for a writ of habeas corpus. The trial court granted the petition and directed the Board to set a parole date. The Governor and Jim Hamlet, Warden of the Correctional Training Facility, appeal.
Because we conclude that the Governor's decision does not comply with Article V, section 8(b), writ relief is appropriate. We agree with the Governor and the Warden, however, that the trial court erred in ordering Capistran's release. On remand, the Governor shall be ordered to vacate the decision and thereafter to proceed to review the Board's decision in accordance with due process of law. (In re Rosenkrantz, supra, 29 Cal.4th at p. 658, 128 Cal.Rptr.2d 104, 59 P.3d 174.)
FACTS AND PROCEDURAL HISTORY
I.
The Conviction Offense
In September 1984, 17-year-old Capistran and approximately 14 members of the Santa Maria street gang approached victim Joey Padilla and his friend, both of whom were members of the rival Guadalupe gang, in a Santa Maria parking lot. Capistran initiated a fight by striking Padilla in the face. In the ensuing melee, Padilla was stabbed 15 times and subsequently died. Capistran reportedly bragged about the crime to others and was arrested after he and his accomplices drove past the crime scene. At the time of his arrest, he was wearing clothing that was stained with Padilla's blood.
II.
The Board's Decision
On July 19, 1999, the Board held a parole hearing and found Capistran suitable for parole. The Board reasoned that Capistran "has enhanced his ability to function within the law upon release through participation in educational programs, self-help and therapy programs, vocational programs and institutional job assignments. He also lacks a significant criminal history of violent crime.... He has realistic parole plans which include a job offer and family support.... And he has recently maintained positive institutional behavior which indicates significant improvement in self-control. Also, he shows signs of remorse. He indicated that he understands the nature and magnitude of the offense and accepts responsibility for the criminal behavior...." The Board also referred to a psychological report prepared *875 in May 1998, indicating that Capistran "has made some significant and positive changes in his life which will result in his being a much different person and a contributory citizen upon his release." In concluding, one of the commissioners noted, "I think you've done an extraordinary job. You started off at a very early age. You didn't commit the act of stabbing the person to death. There are a lot of things in your favor and I hope that other people in the legal review process recognize that and allow you that second chance that you asked for. You deserve it."
The Board's decision was affirmed by the decision review unit on November 2, 1999.
III.
The Governor's Decision
On November 18, 1999, the Governor issued his decision reversing the Board's decision to parole Capistran. The Governor's report to the Legislature provided, in its entirety: "Early on the morning of September 3, 1984, in a Santa Maria parking lot, victim Joey Padilla and one of his friends, both members of the `Guadalupe' gang, found themselves surrounded by approximately fifteen members of the hostile `Santa Maria' gang. After insults were exchanged, Mr. Capistran struck Joey Padilla in the face. This started a brutal attack on the two victims by the fifteen or so rival gang members. During the fight, Joey Padilla was stabbed fifteen times, including a fatal stab wound to the heart. Mr. Padilla died approximately three hours later. [¶] Mr. Capistran is reported to have bragged about how much he and the others had hurt Mr. Padilla. Capistran and his friends were arrested when they drove past the crime scene. After his arrest, Mr. Capistran was discovered to have bloodstains on his pants, evidence that he was an active participant in this brutal assault. [¶] Moreover, Mr. Capistran exhibited violent behavior during the initial years of his imprisonment. He was disciplined for fighting, using force and violence with other inmates, and was cited for plotting with other inmates to kill a correctional officer in order to escape. [11] The Santa Barbara District Attorney is opposed to parole for Mr. Capistran based on the extreme violence and circumstances of this crime. I agree with the District Attorney that Mr. Capistran has not served a sufficient term in prison for his active participation in this vicious murder. [11] Due to the circumstances surrounding this very serious crime, I have grave concerns about releasing Mr. Capistran into the community. Upon review of this matter, I REVERSE the Board of Prison Terms' decision that Mr. Capistran be paroled."
IV.
The Habeas Corpus Petition
On August 21, 2001, Capistran filed a petition for writ of habeas corpus challenging the Governor's decision. On May 31, 2002, the trial court granted the petition on the ground that the Governor's decision was not supported by some evidence in the record. The court concluded that the nature of Capistran's offense was insufficient by itself to justify the denial of parole, and noted that the Governor's statement that Capistran had been implicated in an escape plot was "an egregious misstatement of the record" because the record unequivocally reflected that Capistran was cleared of any involvement in the plot. The court also noted that the Governor had failed to discuss Capistran's positive institutional behavior and his expression of remorse, and referred to two different instances in 1998 when Capistran was commended by prison staff for committing heroic acts. In *876 issuing the writ, the court ordered the Board to release Capistran subject to the previously imposed terms.
DISCUSSION
"The petitioner in a habeas corpus proceeding bears the ultimate burden of proving the factual allegations that serve as the basis for his or her request for habeas corpus relief. [Citation.]" (In re Rosenkrantz, supra, 29 Cal.4th at p. 675, 128 Cal.Rptr.2d 104, 59 P.3d 174.) In conducting our review of a trial court's order granting or denying habeas relief, "[w]e presume that the trial court accepted as true petitioners' undisputed factual allegations, including any undisputed matters contained in the exhibits incorporated by reference into his pleadings. [Citations.]" (Id. at p. 676, 128 Cal.Rptr.2d 104, 59 P.3d 174.)
The trial court granted Capistran's petition for a writ of habeas corpus on its finding that the Governor had exceeded his authority in reversing the Board's decision to grant parole. The Governor's constitutional authority to conduct that review is set forth in Article V, section 8(b), which provides in full: "No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action." The statutory procedures governing this review are set forth in Penal Code section 3041.2 (hereafter section 3041.2), which states: "(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority's decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [¶] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision."
In In re Rosenkrantz, supra, 29 Cal.4th at page 679, 128 Cal.Rptr.2d 104, 59 P.3d 174, the California Supreme Court instructed that our review of the Governor's parole decisions pursuant to his constitutional and statutory authority "strictly is limited to whether some evidence supports the Governor's assessment of the circumstances of petitioner's crimenot whether the weight of the evidence conflicts with that assessment...." The court also recognized, however, that Article V, section 8(b) and section 3041.2 "give rise to a protected liberty interest" in that "a prisoner granted parole by the Board has an expectation that the Governor's decision to affirm, modify, or reverse the Board's determination will be based upon the same factors the Board is required to consider." (Id at p. 660, 128 Cal.Rptr.2d 104, 59 P.3d 174.) Moreover, "this liberty interest underlying a Governor's parole review decisions is protected by due process of law." (Id. at p. 661, 128 Cal.Rptr.2d 104, 59 P.3d 174.)
Due process thus requires the Governor's decision to "reflect an individualized consideration of the specified criteria" *877 that also must be considered by the Board in making parole decisions. (In re Rosenkrantz, supra, 29 Cal.4th at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.) The factors to be considered in determining parole suitability are set forth in title 15 of the California Code of Regulations, section 2402 (hereafter section 2402). For example, "the absence of serious misconduct in prison and participation in institutional activities that indicate an enhanced ability to function within the law upon release are factors that must be considered on an individual basis by the Governor in determining parole suitability. [Citations.]" (Rosenkrantz, at p. 682, 128 Cal.Rptr.2d 104, 59 P.3d 174; § 2402, subd. (d)(9).) The Governor also must consider any evidence indicating that the prisoner has expressed remorse for his crimes, as well as any evidence demonstrating that "[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release." (§ 2402, subd. (d)(8).)
The Governor and the warden contend that some evidence supports the Governor's decision to deny parole because the circumstances of Capistran's conviction offense are sufficient by themselves to support the denial of parole. But, the Governor's decision does not purport to rely exclusively on the nature of Capistran's offense to justify the denial of parole. The decision also purports to rely on the facts that Capistran exhibited violent behavior in the initial years of his incarceration and had been disciplined for fighting and using force and violence against other inmates, and that he had been implicated in a plot to escape and kill a correctional officer. While it is true that Capistran was disciplined for breaking a window in 1988 and for an incident of fighting in 1989, the record unequivocally shows that Capistran was cleared of any involvement in the escape plot, which apparently took place in 1985. Because the Governor's decision purports to rely on facts regarding Capistran's institutional behavior that are not supported by some evidence, the decision cannot be sustained on the ground that the other aspects of the Governor's decision are supported by some evidence. (Cf. In re Rosenkrantz, supra, 29 Cal.4th at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174 [portion of Governor's decision not supported by some evidence disregarded where "the Governor's decision made clear that he would have reached the same conclusion regarding parole suitability" in its absence].)
In any event, although the nature of an offense may constitute some evidence sufficient to justify the denial of parole, it can only be so if the decision reflects an individualized consideration of all other factors relevant to parole suitability. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 682-683, 128 Cal.Rptr.2d 104, 59 P.3d 174.) We agree that the Governor's statement pertaining to the nature of Capistran's offense is supported by some evidence, but the decision makes no mention of Capistran's institutional behavior or other facts demonstrating that he is suitable for parole at this time. For example, in 1998 he was commended for committing an "exceptional and heroic act" by coming to the aid of another inmate who had been injured. That same year, he was also commended for preventing injury to a staff member by helping to restrain a psychotic inmate while performing his job duties as a radiology technician. He also has demonstrated excellent prospects for employment upon his release and drew high praise from prison staff for his work ethic and positive attitude. The Governor's decision further fails to acknowledge that Capistran has recently demonstrated remorse for his crimes.
*878 Accordingly, we conclude that Capistran is entitled to writ relief. We disagree with the trial court, however, that Capistran is necessarily entitled to be released on parole at this time. In Rosenkrantz, the Supreme Court instructed that in cases where the Board's findings are not supported by the record, "the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (In re Rosenkrantz, supra, 29 Cal.4th at p. 658, 128 Cal.Rptr.2d 104, 59 P.3d 174.) The Governor and the Board possess equal discretion in reviewing parole suitability (id. at pp. 658-662, 128 Cal.Rptr.2d 104, 59 P.3d 174), so the Governor should be ordered to vacate his decision reversing the Board's decision and may thereafter proceed in accordance with due process.
Capistran's claims that the Governor is biased against parole and has a blanket no-parole policy, as well as his contention that application of section 3041.2 to him violates the ex post facto clauses of the state and federal Constitutions, have been rejected by the California Supreme Court (In re Rosenkrantz, supra, 29 Cal.4th at pp. 637-652, 683-686, 128 Cal.Rptr.2d 104, 59 P.3d 174), and we are bound by that decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937).
DISPOSITION
The judgment granting Capistran's petition for writ of habeas corpus is affirmed. On remand, the trial court shall order the Governor to vacate his November 18, 1999, decision. The Board's decision to grant parole shall be deemed reinstated as of the date of the superior court's vacation order. The Governor, in his discretion, may thereafter issue a new decision pursuant to his authority under Article V, section 8(b), and section 3041.2.
We concur: GILBERT, P.J., and COFFEE, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261981/ | 861 F.Supp. 282 (1994)
NEW ALLIANCE PARTY, Lenora A. Fulani and Rafael Mendez, Plaintiffs,
v.
NEW YORK STATE BOARD OF ELECTIONS, Libertarian Party, Democratic Party, Republican Party, Conservative Party, Right to Life Party, and Liberal Party, Defendants.
No. 90 Civ. 6226 (RJW).
United States District Court, S.D. New York.
August 30, 1994.
*283 Gary Sinawski, New York City, for plaintiffs.
G. Oliver Koppell, Atty. Gen., Judith T. Kramer, Joel Graber, Asst. Attys. Gen., Peter S. Kosinski, Sp. Counsel, NY State Bd. of Elections, New York City, for defendant NY State Bd. of Elections.
*284 Mark N. Axinn, New York City, for defendant Libertarian Party.
Gerard E. Harper, Glenda G. Grace, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant Democratic Party.
Jeffrey T. Buley, Albany, NY, for defendant Republican Party.
ROBERT J. WARD, District Judge.
In this action challenging the constitutionality of N.Y.Elec.Law § 7-116 ("Section 116"), plaintiffs New Alliance Party ("NAP"), Lenora B. Fulani, and Rafael Mendez move for summary judgment, pursuant to Rule 56, Fed.R.Civ.P. Defendant New York State Board of Elections (the "State") cross-moves for an order, pursuant to Rule 12(b)(6), Fed. R.Civ.P., dismissing the complaint for failure to state a claim upon which relief can be granted.[1] For the following reasons, NAP's motion is denied, the State's motion is granted and the Court finds that Section 116 does not deprive plaintiffs of their constitutional rights.[2]
BACKGROUND
Under New York Election Law, there are two varieties of political organizations "parties" and "independent bodies." A "party" is defined as "any political organization which at the last preceding election for governor polled at least fifty thousand votes for its candidate for governor." N.Y.Elec.Law § 1104(3). On the other hand, an "independent body" refers to "any organization or group of voters which nominates a candidate or candidates for office to be voted for at an election, and which is not a party as herein provided." Id. § 1-104(12). While independent bodies are not subject to any organizational requirements, parties must maintain state and county committees of elected representatives and must conduct primary elections in the event more than one person seeks its nomination for public office. NAP is an independent body that has fielded candidates for federal and state office since its formation in 1979. It, along with its chairperson and one of its supporters, alleges that Section 116, New York's ballot placement statute, is unconstitutional.[3]
Section 116 provides two methods for arranging political candidates on the ballot in New York, one for the candidates of political parties, the other for the candidates of independent bodies. Pursuant to Section 116, party candidates are listed before independent body candidates, and are positioned in descending order based on their performance in the preceding gubernatorial election. N.Y.Elec.Law § 7-116(1).[4] At present, New York has five parties, and, as a result of their performance in the 1990 gubernatorial election, their order on election ballots for the subsequent four years has been as follows: (1) Democratic; (2) Republican; (3) Conservative; (4) Right to Life; and (5) Liberal. While Section 116 directs that the independent bodies follow the parties, it does not prescribe a particular method for arranging these candidates, and leaves the order of placement to the discretion of the State. Id. § 7-116(2).[5] Currently, the State determines *285 the arrangement of independent bodies by a lottery.
When this action was instituted in 1990, NAP sought to challenge the States's discretionary authority and the methods it employed in positioning independent bodies on the ballot. On September 27, 1990, NAP brought an order to show cause for a preliminary injunction requiring the State to list all political organizations on the November 1990 general election ballot in descending order based on performance in the 1986 gubernatorial election. In particular, NAP claimed that it should be slotted sixth after the five parties because it had been the only independent body to run a candidate for governor in the 1986 election in which NAP received 24,100 votes. As a result of the lottery which was held on September 18, 1990, however, NAP placed third among independent bodies and was therefore to be situated in the eighth position overall.
This Court denied NAP's motion for a preliminary injunction on the ground that plaintiff failed to prove irreparable harm. New Alliance Party v. New York State Board of Elections, 1990 WL 155590 (S.D.N.Y. Oct. 9, 1990). Were the motion granted, the Court explained, NAP would have been slotted sixth rather than seventh. While case law has sometimes found that position advantage inheres in the first slot on the ballot, no case has held, nor did NAP submit evidence showing, that movement from one intermediate position to another closer to the first position confers an advantage on the candidate. The Court also noted that NAP might have had more support for its motion had the ballot remained as originally arranged after the lottery was conducted. Subsequent to the lottery, the second ranked independent body was removed from the ballot and NAP was switched from eighth to seventh position. This move was significant because in the 1990 gubernatorial election, New York City voting machines were arranged in horizontal rows of seven columns. Placement in the eighth slot, the Court theorized, might have harmed NAP because it would have been positioned on the second horizontal row.
In the 1990 gubernatorial election, NAP received approximately 31,100 votes, the highest vote tally among the independent bodies.[6] Plaintiff then moved for summary judgment contending that the State's policy deprives the independent bodies of benefiting from positional advantage on the ballot in relation to their voting strength, something the parties enjoy. NAP claimed the board was discriminating against the independent bodies in violation of the Constitution under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Court denied the summary judgment motion on account of a disputed factual issue. New Alliance Party v. State Board of Elections, 1991 WL 196263 (S.D.N.Y. Sept. 25, 1991). As with the preliminary injunction motion, plaintiff's claim was premised on intermediate position advantage, and here too it neglected to offer any concrete evidence of such advantage. The Court, therefore, found that absent statistical evidence or expert testimony, plaintiff would be incapable of establishing the necessary foundation for its claims. Id. at *6. Although, at the end of its decision, the Court directed the parties to engage in discovery and submit a pre-trial order, the action was discontinued without prejudice by stipulation and order on May 29, 1992.
Then, on September 9, 1992, the State held its lottery for the presidential election to be held on November 3, 1992. Six independent bodies participated and NAP drew fifth place. Because the sixth ranked independent body failed to file timely acceptances, it was disqualified from being listed on the ballot and NAP fell to last place. As a result of the lottery, NAP was "double columned" or "double rowed" on the 1992 ballot in New York State. For that election, the State used two styles of voting machines. In New York City and the city of Albany, the ballot *286 was arranged horizontally in a row of nine columns designated "A" through "H." Additional independent bodies were doubled-up under other independent bodies, and thus NAP in slot "J" was situated directly below Ross Perot's No Party in slot "G." Appendix A, infra. On all other ballots in the State, the voting machines listed candidates vertically in a column of nine rows. On this ballot, NAP was the only independent body doubled-up, also adjacent to the No Party. Appendix B, infra.
After its poor performance in the 1992 lottery, NAP once again decided to challenge New York's ballot placement statute through an order to show cause seeking a preliminary injunction. At oral argument held on October 9, 1992, plaintiff argued that it would suffer irreparable harm by its allotted placement on the ballot because of the space limitations that exist on voting machines in New York. Subsequent to oral argument, plaintiff withdrew its motion for a preliminary injunction, while the Court agreed to vacate the stipulation of discontinuance and grant plaintiff leave to serve and file a supplemental complaint.
Through its supplemental complaint, plaintiff now seeks declaratory and injunctive relief from the procedures employed by the State in listing and ordering all candidates for political office on the electoral ballot in New York. Specifically, plaintiff contends in Count I that the statutory scheme abridges its First and Fourteenth Amendment rights to cast an effective vote, to associate for the advancement of political ideas, and to create and develop a new political party. It also alleges, in Count II, that Section 116 violates the Equal Protection Clause of the Fourteenth Amendment, insofar as the statute denies independent bodies the same opportunity parties have to be listed in the first position on the ballot or even on the first row or column.[7] Plaintiff offers no empirical evidence in support of its claims, but asserts that ballot placement advantage is a self-evident fact. According to NAP, the Court need only glance at the ballots used in the 1992 election to determine that a doubled-up party is relegated to a confused, obscure and disadvantaged position.
As an alternative to Section 116, NAP proposes that a uniform method be applied to all political entities listed on a ballot or that a rotational system be devised whereby each entity qualifying for the ballot is assigned each position on the ballot in an equal number of voting districts. Plaintiff submits that twenty-seven states now provide for complete or partial ballot rotation. In New York State, however, the ballot rotation device is used only in New York City primary elections.
DISCUSSION
A summary judgment motion may be 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 the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P.; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). No genuine issue of material fact exists when no rational fact finder could find in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). However, in ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991).
On a motion for summary judgment, a movant has a heavy burden. He must show that the facts which would warrant granting the motion are undisputed because "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions not those of a judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). In making a summary judgment determination, therefore, *287 the Court does not resolve disputed issues of fact but assesses whether material issues remain for the trier of fact. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990).
To dismiss a complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6), Fed.R.Civ.P., it must "appear[] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). In ruling on the motion, a court must limit itself to the facts stated in the complaint, Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991), accept those facts as true, Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992), read the complaint generously, and draw all reasonable inferences in favor of the pleader. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989) (citing Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir.1985)). In this action, plaintiff not only fails to prove that no genuine issue of material fact is in dispute but it is unable to prove any set of facts which would support the claims it has alleged.
I. Ballot Position Advantage
Plaintiff's reconstituted challenge to Section 116 is predicated on a claim of "position bias," the frequently-held belief that "the candidate occupying the first position on the ballot will receive a substantial number of `extra' votes from voters who are either uninformed or uninterested in the candidates and habitually select the first name on the ballot." Ulland v. Growe, 262 N.W.2d 412, 414 (Minn.) (en banc), cert. denied sub nom, Berg v. Growe, 436 U.S. 927, 98 S.Ct. 2822, 56 L.Ed.2d 770 (1978). Uninformed or indifferent voting behavior is referred to as the "windfall vote" or, at times, more derisively as the "donkey vote" inasmuch as those who vote randomly will often "uncritically check off whoever [sic] is at the top of the ballot, especially if the candidate is also an incumbent." Clough v. Guzzi, 416 F.Supp. 1057, 1063 (D.Mass.1976). In this action, NAP contends that windfall voting extends to the top row of a double-columned ballot, and that it is disadvantaged by position bias both because it has no chance of being slotted first on the ballot and because it has only a diminished chance of being listed in the top row.
Yet, plaintiff has tendered no empirical evidence in support of its claims. It has proffered no statistical studies or expert testimony demonstrating the existence of position bias and its effects on the outcome of an election in New York State nor has it submitted any evidence that a doubled-up candidate suffers because of position bias.[8] Instead, plaintiff argues that empirical evidence is unnecessary because it is beyond dispute that double columning or double rowing confuses voters and has a negative impact on the doubled-up party's performance in the election. NAP asserts that the Court may take judicial notice of the existence and effects of "position bias" because it is a "self-evident" feature of voter behavior, which is confirmed more by the worth society attributes to first position than any results deduced by a study or theory. NAP states:
[S]ociety has attributed substantial significance to ballot position and placed a substantial value on ballot positions that are perceived to confer an advantage.... [I]t is difficult and perhaps misguided to seek underlying or intrinsic value in ballot position by means of statistical studies or similar empirical methodology. Rather the value of ballot positions that are perceived to confer an advantage can be empirically *288 verified by the sociological fact that people attribute value to such positions.
Plaintiffs' Reply Memorandum at 8, n. 5.
However, courts have consistently held that the effect of ballot placement on election outcomes is a factual determination. Sangmeister v. Woodard, 565 F.2d 460, 465 (7th Cir.1977), cert. denied and appeal dismissed sub nom., Illinois State Board of Elections v. Sangmeister, 435 U.S. 939, 98 S.Ct. 1516, 55 L.Ed.2d 535 (1978); McLain v. Meier, 637 F.2d 1159, 1166 (8th Cir.1980). Indeed, this Court denied NAP's earlier motion for summary judgment precisely because plaintiff had failed to submit empirical evidence demonstrating the existence or effects of intermediate ballot position advantage. NAP seeks to distinguish its present challenge by arguing that it relies on a commonly-held belief. That position bias is a popular perception of the voting public, however, is not sufficient to exempt NAP from the burden of proving its claims. It certainly does not justify disposition on a motion for summary judgment which would preempt a jury from assaying a material issue of fact.
Judicially noticed facts are those which exhibit a high degree of indisputability. McCormack v. Cheers, 818 F.Supp. 584, 597 n. 14 (S.D.N.Y.1993). Under Rule 201(b), Fed.R.Evid., judicial notice encompasses facts that are either "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," or they are "generally known within the territorial jurisdiction of the trial court." In this Court's view, the existence and effects of position bias are not subject to judicial notice under either one of these standards.
A. Capable of Accurate and Ready Determination by Resort to Sources whose Accuracy cannot Reasonably be Questioned
1. The Original View
Academic studies and articles, as well as case law, have often adopted the view that position bias exists on an election ballot. The authoritative study on the subject is a report that analyzed the effects of ballot placement in Michigan city and county elections from 1951 to 1952. Henry M. Bain & Donald S. Hecock, Ballot Position and Voter's Choice: The Arrangement of Names on the Ballot and its Effect on the Voter (1957) [hereinafter Bain & Hecock]. This study formulated a statistical equation, which quantifies the advantages of being listed first on the ballot, while taking into account other factors that contribute to election performance. Id. at 47-54. Other studies following the Bain & Hecock model "have yielded almost unanimous results: all other factors being equal, the name appearing first in a list of candidates attracts a larger than random share of the vote." William James Scott, Jr., Note, California Ballot Position Statutes: An Unconstitutional Advantage to Incumbents, 45 So.Cal.L.Rev. 365, 366 (1972) (listing other studies and conducting its own study of California elections); see also, Sangmeister v. Woodard, 565 F.2d at 463 n. 3 (listing studies).
Based on similar statistical analyses provided by experts at a trial or hearing, some courts have declared state statutes or policies which reserve the first slot in a race to a particular candidate or party unconstitutional on account of position bias. Such schemes have included granting first place to the party that filed first, Weisberg v. Powell, 417 F.2d 388 (7th Cir.1969); arranging the ballot alphabetically, Kautenburger v. Jackson, 85 Ariz. 128, 333 P.2d 293 (1958); situating one's own party first, Sangmeister v. Woodard, supra; and allotting the first or left hand column to the party that had received the most votes in a previous election. McLain v. Meier, supra. Other schemes, however, have been held to be constitutional. Ulland v. Growe, supra (listing party candidates before those of independent bodies and ordering parties by performance in last general election); Krasnoff v. Hardy, 436 F.Supp. 304 (E.D.La.1977) (placing independent candidate to right of established parties on a horizontal ballot).
The most controversial ballot placement schemes have been the "incumbent first" statutes in which the incumbent in a particular race is guaranteed first position. Over twenty years ago, New York determined such legislation to be unconstitutional when it *289 struck down an amendment to the election law which afforded incumbents the first slot in all primary races. Holtzman v. Power, 62 Misc.2d 1020, 313 N.Y.S.2d 904 (Sup.Ct.), aff'd, 34 A.D.2d 917, 311 N.Y.S.2d 824 (App. Div.), aff'd, 27 N.Y.2d 628, 313 N.Y.S.2d 760, 261 N.E.2d 666 (1970). California's incumbent first legislation was also invalidated after expert testimony introduced at a trial demonstrated the advantages of top ballot placement. Gould v. Grubb, 14 Cal.3d 661, 665, 122 Cal.Rptr. 377, 536 P.2d 1337 (1975) (in banc). In fact, the experts who testified in Gould were Henry M. Bain and William James Scott, Jr., whom the decision characterized as preeminent authorities on the question of ballot placement preference. Id. at 667 n. 6, 122 Cal.Rptr. 377, 536 P.2d 1337.
2. The Opposing View
Nevertheless, not every authority or case has concurred with or unquestionably accepted the views advanced by Bain & Hecock. In fact, one study explicitly concluded that position bias did not affect election outcomes. Gary C. Byrne & J. Kristian Pueschel, But Who Should I Vote for For County Coroner?, 36 Jo. of Politics, 778, 781 (1974). The study states: "Contrary to much popular opinion and several earlier studies, first place on a ballot gives a candidate no advantage. One of the primary reasons for this discrepancy between our data and some of the earlier works, we suspect, stems from the failure to disentangle the effects of incumbency from the effects of ballot position." Id.
Indeed, some states have actually upheld "incumbent first" procedures precisely because of the varied and inconclusive effects of position bias on election outcomes. In Massachusetts, incumbents in both primary and final elections were not only listed first on the ballot, they were designated as candidates for re-election. Clough v. Guzzi, 416 F.Supp. at 1059 n. 1 (citing 53 Mass.Gen. Laws § 34 and 54 Mass.Gen.Laws § 41). When this ballot placement method was challenged, the court analyzed both written studies and expert testimony and concluded that whereas the designation of incumbency confers an advantage on the incumbent, plaintiff had not proved that a substantial advantage inheres in first ballot position alone. Id. at 1065-66. Moreover, in cases that have invalidated incumbent first mechanisms, such as Gould, courts were compelled to limit their findings of position bias to the "so-called `low visibility' races, in which voters are more likely to be unfamiliar with many of the candidates." Gould v. Grubb, 14 Cal.3d at 668, 122 Cal.Rptr. 377, 536 P.2d 1337. Even those experts in Gould, who found position bias in most elections, would not go so far as to state that it existed in presidential or gubernatorial elections. Id.
Due to the indeterminate and imprecise nature of position bias, a multi-factored analysis must be employed in examining the effects of ballot position on election outcomes. Besides position bias, other factors, such as the visibility of the race, the number of candidates on the ballot, and the type of election is it partisan or non-partisan contest and is it a primary or general election often influence election outcomes. As one court summarized the findings of the expert testimony it received:
(1) Positional bias exists in most elections, but with a variable impact.
(2) Candidates' party affiliation is the single most important factor influencing a voter.
(3) Because of the importance of party affiliation, the effect of positional bias is considerably more pronounced in nonpartisan elections.
(4) The magnitude of positional bias tends to vary in inverse proportion to the visibility of a particular election. The less important (for whatever reason) the election, the greater the effect of positional bias.
(5) Numerous factors other than ballot placement, including sex, ethnic background, and age, can influence an uninformed voter.
Ulland v. Growe, 262 N.W.2d at 414-15.
Studies show that position bias is most evident in low visibility contests insofar as fewer voters in those races actually cast their votes out of preference for a particular candidate. Mark E. Dreyer, Note, Constitutional Problems with Statutes Regulating Ballot Position, 23 Tulsa L.J. 123, 127 (1987). In non-partisan and primary elections position *290 bias is more pronounced, because voters are not furnished with the party identification of the particular candidate which would enable them to make a more informed choice. Id. Yet, Bain & Hecock theorized that, "even in a general election, where the voters have more clearcut guidance provided by party labels in making their choice, there is considerable advantage to be gained by appearing in certain positions." Bain & Hecock at 14. As a result, some cases have even found that position bias exists on a general election ballot which is arranged by party affiliation. See, e.g. Sangmeister v. Woodard, 565 F.2d at 464 (affirming a trial court holding that ballot position preference inheres even in a general election ballot).
One recent study, however, determined that position effect does not occur at all in American general elections in which party listings serve as a cue on the ballot and where voters were asked to pick only one candidate among those running in a contested election. Robert Darcy, "Position Effects with Party Column Ballots," 39 Western Political Quarterly, 648, 661 (1986). In Darcy's view, previous court decisions that relied on earlier studies are problematic because the original studies failed to adequately distinguish the effects of ballot placement on partisan general elections as opposed to non-partisan and primary elections. Darcy writes:
Existing research while failing to document position effects in American general elections suggests that such effects are nevertheless present. The weight of scholarly opinion, reinforced by political folklore, has led to a number of court decisions premised on ballot position effects in general elections [citing decisions].... These court decisions, along with legislative actions similarly premised, have led to a number of states adopting ballot rotation procedures. There is, however, good reason for expecting position effects to be absent from American general elections.
Id. at 651 (emphasis added).
Whether or not Bain & Hecock remains instructive and whether or not earlier case law is authoritative in examining the existence of placement effects on a ballot, it is clear that this Court cannot find that position bias is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Position bias is not a fact that can be easily determined, in the way that, for example, the fact that August 30, 1994 is a Tuesday can be verified by simply looking at a calendar. Position bias is a disputable fact because its existence is dependent upon the circumstances in which it operates. The advantage to being placed both in the first slot on the ballot and, by extension, in all slots along the top row of the ballot is not something that can be easily confirmed by looking at the 1992 ballot.
In fact, were this Court to attempt to determine the advantages or disadvantages of ballot placement by simply looking at the ballots used in New York in 1992, it might arrive at conclusions that contradict NAP's assertions. For example, it could be argued that on a horizontal ballot, such as exist in New York City and Albany, Appendix A, infra, the far right position is the most advantageous slot. Certainly, well-read newspapers, such as "The New York Times" and "The Wall Street Journal," have found it beneficial to situate the lead article in the far right column. Likewise, in the vertical ballot used elsewhere in New York in 1992, Appendix B, infra, NAP might have benefitted from being the only independent body doubled-up in the second column inasmuch as it is isolated and could invite attention. Finally, on both versions of the 1992 ballot, NAP was doubled-up under or adjacent to Ross Perot's No Party, which garnered 1,091,000 votes. Statistical Abstract of the United States 1993, at 265 (113th ed.).[9] Clearly, any column or row in which so many votes are tallied cannot be characterized as obscure. Moreover, that an avowed anti-incumbent, such as Perot, collected so many votes may mean that windfall voting is not necessarily monopolized by incumbents or major party candidates listed at the top of the ballot.
*291 B. Generally Known within the Territorial Jurisdiction of the Trial Court
The more difficult question for this Court, however, is whether it should take judicial notice of position bias, in any event, because it is a fact which is "generally known within the territorial jurisdiction of the trial court" as is meant by Rule 201(b)(1), Fed.R.Evid. The parameters of this standard have not received much judicial attention. Nonetheless, courts appear to have invoked this basis for judicial notice for facts that reflect the common customs, practices and behavior of those residing within the geographical area of the court. For example, it was appropriate for a court in the Southern District of Florida to take judicial notice of the fact that many Hispanics in the area either did not speak English, were not citizens, or lacked some other prerequisites for jury duty. United States v. Esle, 743 F.2d 1465, 1474 (11th Cir.1984); see also, Rivera Puig v. Garcia Rosario, 785 F.Supp. 278, 281 (D.Puerto Rico 1992) (among other local facts, a court in Puerto Rico took judicial notice of the fact that no record is generally made of preliminary hearings conducted in Puerto Rico's courts and that the customary practice in the local courts is for lawyers to bring their own recording equipment).[10]
NAP argues the position bias must be subject to judicial notice within the territorial jurisdiction of this Court because, in Holtzman, a New York court characterized first place advantage on a ballot as a matter of common knowledge. That court stated: "Aside from the factual determination, such a belief [in the existence of position bias] appears to be so widespread and so universally accepted as to make it almost a matter of public knowledge." Holtzman v. Power, 313 N.Y.S.2d at 907. New York is not the only jurisdiction in which such a sentiment has been expressed. In 1958, the Arizona Supreme Court noted: "It has been recognized, we think correctly, that it is a common known and accepted fact that where there are a number of candidates for the same office, the names appearing at the head of the list have a distinct advantage." Kautenburger v. Jackson, 85 Ariz. at 295, 333 P.2d 293 (citing Elliott v. Secretary of State, 295 Mich. 245, 249, 294 N.W. 171 (1940) (finding this commonly known and accepted fact equally applicable to primary and general elections)).
California courts have also discussed the general knowledge justification for judicial notice of position bias. When mandamus actions were first brought in that state challenging the constitutionality of incumbent first procedures, the petitions were denied because of the existence of a factual dispute concerning the extent of preference that flowed to the top ballot position. See, Mexican-American Political Ass'n v. Brown, 8 Cal.3d 733, 106 Cal.Rptr. 12, 505 P.2d 204 (1973); Diamond v. Allison, 8 Cal.3d 736, 106 Cal.Rptr. 13, 505 P.2d 205 (1973). The California Supreme Court explicitly stated:
The existence of the alleged preference is not a fact which is either of such common knowledge or which is subject to such accurate determination by resort to sources of reasonably indisputable accuracy that is not reasonably subject to dispute. Accordingly, it is not a fact properly the subject of judicial notice.
Id. 8 Cal.3d at 734 and 737, 106 Cal.Rptr. 12, 505 P.2d 204. However, Justice Tobriner dissented in those cases, and he authored Gould, which ultimately invalidated California's incumbent first procedure. Noting that position bias is a commonly known and accepted fact, Justice Tobriner commented: "Virtually all of the published empirical data supports this common sense proposition.... Under these circumstances, I believe this court ... should take judicial notice of the advantage accruing to a candidate placed first on the ballot." Id. at 735, 106 Cal.Rptr. 12, 505 P.2d 204 (Tobriner, J., dissenting).
Nevertheless, it must be emphasized that no court has ever based a finding of position bias on judicial notice. Both Kautenburger *292 and Holtzman were based on factual findings made by a trial court or referee after hearing evidence on the subject. Even in Gould, which acknowledged the general existence of position bias, the trial court's findings were made after "a four-day trial at which both parties introduced considerable expert testimony on the question of whether or not a candidate gained any significant advantage by virtue of top ballot position." Gould v. Grubb, 14 Cal.3d at 666, 122 Cal.Rptr. 377, 536 P.2d 1337. Thus, notwithstanding dicta in some cases, it is not the practice of courts to take judicial notice of position bias. Rather, courts make a factual finding based on statistical evidence or expert testimony submitted at a trial or hearing.[11]
More importantly, that position bias has been viewed by some as common knowledge does not mean that it is necessarily subject to judicial notice. Not all commonly-held beliefs can be transformed into judicially-mandated beliefs that are immune from the adversarial process. By way of analogy, it may be a widely held view that cigarette smoking causes cancer, but courts do not simply take judicial notice of this fact to relieve a tort plaintiff from his burden of establishing liability on the part of a cigarette manufacturer. This causal predicate must be established through evidentiary methods. In cigarette tort litigation, courts have taken judicial notice, not of the commonly-held belief that smoking causes cancer, but of the existence of evidence implicating cigarette smoking as a cause of cancer. Clemmons v. Bohannon, 918 F.2d 858, 865 (10th Cir.1990); Sias v. Secretary of Health and Human Services, 861 F.2d 475, 479 (6th Cir.1988). However, even in taking judicial notice of the existence of this evidence, a court would not be bound to accept the truth of the matters asserted in such evidentiary materials. In other words, a court may take judicial notice of the 1989 Surgeon General's Report identifying tobacco as a carcinogen, but the plaintiff would still have the burden of presenting evidence at trial to support the Surgeon General's findings and to demonstrate that the cancer he suffered from was, in fact, caused by cigarette smoking.
Likewise, if NAP had asked this Court to take judicial notice of evidence that supported a "widely accepted belief" of position bias, this Court might have been willing to do so. Such evidence, however, would not have relieved NAP of the burden of establishing at an evidentiary hearing that its constitutional rights have been severely burdened by New York's ballot placement methods. Moreover, even if such evidence were sufficient to establish position bias, it could not establish that a doubled-up party is at an inherent disadvantage. That phenomenon has never been characterized as a matter of common knowledge and further evidence would be required. In truth, position bias may be a commonly-held belief in this jurisdiction, but its imprecise and conditional nature preclude it from being characterized as a judicially noticed fact which is "generally known within the territorial jurisdiction of the trial court." Such knowledge refers to facts for which evidentiary support only needlessly burdens judicial time and resources, not disputed questions in which one side enjoys popular support.
II. Constitutional Analysis of Section 116
Even accepting plaintiffs' contentions of position bias, this Court need not find that Section 116 is constitutionally invalid. New York's election statutes, as with other state legislative enactments, have been afforded a strong presumption of constitutionality. Velez v. Board of Elections, No. 90 Civ. 5598 (JFK), 1990 WL 130767 (S.D.N.Y. Sept. 5, 1990). Although the presumption is rebuttable, "invalidity must be demonstrated beyond a reasonable doubt." McGee v. Korman, 70 N.Y.2d 225, 519 N.Y.S.2d 350, 352, *293 513 N.E.2d 236, 238 (1987) (citing Wiggins v. Town of Sommers, 4 N.Y.2d 215, 173 N.Y.S.2d 579, 582, 149 N.E.2d 869, 871 (1958)). To prevail on the constitutional claims alleged in their complaint, therefore, NAP would need to show beyond a reasonable doubt either that Section 116's dual method of ballot placement severely burdens a substantial constitutional voting right or that it distinguishes between the parties and the independent bodies in contravention of the Equal Protection Clause.
A. The Fundamentality of Voting
Voting is integral to democracy. As the Supreme Court recently reaffirmed: "`No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.'" Burdick v. Takushi, ___ U.S. ___, ___, 112 S.Ct. 2059, 2067, 119 L.Ed.2d 245 (1992) (quoting Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964)). The Supreme Court has, as a result, derived a variety of constitutional voting rights from the First and Fourteenth Amendments including: the right to associate for the advancement of political purposes, NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958); the right to cast an effective vote, Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968); and the right to create and develop new political parties, Norman v. Reed, 502 U.S. 279, ___, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). Although these rights have been classified as "fundamental," Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979), their fundamentality has been constrained by state supervision of the democratic process. Burdick v. Takushi, ___ U.S. ___, 112 S.Ct. at 2063, 119 L.Ed.2d 245.[12] In this vein, "the right to vote" has been clarified to mean "the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system." Id.
Subsumed within fundamental voting rights is a political party's right to have access to the ballot. Williams v. Rhodes, 393 U.S. at 29, 89 S.Ct. at 10. In Williams, the Supreme Court held that, in much the same way state regulation of elections cannot contravene an express provision of the Constitution, it cannot violate a right encompassed within the Equal Protection Clause of the Fourteenth Amendment. Id. In particular, Williams found that an Ohio provision, which made it significantly more burdensome for newer parties to gain access to the ballot, was a violation of equal protection. The Supreme Court identified access to ballot as a vital feature of democratic elections by stating:
The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot.
Id. at 31, 89 S.Ct. at 10-11. Severe restrictions on access to ballot strike "at the core of the right of political association" by depriving a party of "[t]he right to have one's voice heard and one's views considered." Id. at 41, 89 S.Ct. at 16 (Harlan, J. concurring).
Subsequent to Williams, however, the Supreme Court has resolved to restrict the scope of access to ballot claims and has rarely found a state restriction to be a constitutional violation. States may limit the number of candidates that appear on the ballot as a way to prevent voter confusion. Storer v. Brown, 415 U.S. 724, 732, 94 S.Ct. 1274, 1280, 39 L.Ed.2d 714 (1974). States are allowed to winnow the field of candidates by demanding evidence of public support before permission to be listed on the ballot is granted. Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, *294 1976, 29 L.Ed.2d 554 (1971). And, especially in general elections contests that are reserved for major contenders states are expected to condition access to ballot on proof of sufficient voter support. Munro v. Socialist Workers Party, 479 U.S. 189, 196, 107 S.Ct. 533, 537-38, 93 L.Ed.2d 499 (1986) (citing Storer v. Brown, 415 U.S. at 735, 94 S.Ct. at 1281-82). Moreover, the Supreme Court has stressed that the Constitution protects real and not mere theoretical access to the ballot. American Party v. White, 415 U.S. 767, 783, 94 S.Ct. 1296, 1307, 39 L.Ed.2d 744 (1974). It is only when a restriction on access to ballot "operate[s] to freeze the political status quo" that it should be held to be invalid. Jenness v. Fortson, 403 U.S. at 438, 91 S.Ct. at 1974.
By restraining the reach of access to ballot claims, the Supreme Court has recognized the importance of state regulatory control over elections. The states' constitutional power to regulate elections is justified as a way to ensure orderly, rather than chaotic, operation of the democratic process. Storer v. Brown, 415 U.S. at 730, 94 S.Ct. at 1279.[13] Indeed, "structuring elections in a way that avoids `confusion, deception, and even frustration of the democratic process,'" is not merely a legitimate but a "compelling [state] interest." LaRouche v. Kezer, 990 F.2d 36, 39 (2d Cir.1993) (quoting Jenness v. Fortson, 403 U.S. at 442, 91 S.Ct. at 1976); see also, American Party v. White, 415 U.S. at 782 n. 14, 94 S.Ct. at 1307 n. 14. States may enact complex and comprehensive election codes, and while an election law might affect an individual's rights to vote and to associate for political ends, state interests are generally sufficient to justify the restrictions. Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569-70, 75 L.Ed.2d 547 (1983). Therefore, the Constitution will only condemn a restriction "that, without compelling justification, significantly encroach[es] upon the rights to vote and to associate for political purposes." Unity Party v. Wallace, 707 F.2d 59, 62 (2d Cir.1983) (emphasis added).
B. Analyzing NAP's Challenge to Section 116
1. The Analytic Framework
Because constitutional protection is dependent not on the question of the voting rights' fundamental nature but on the extent to which a restriction impinges upon exercise of those rights, the Supreme Court established a balancing test for distinguishing valid from invalid restrictions. Anderson v. Celebrezze, 460 U.S. at 789, 103 S.Ct. at 1570. First, a court weighs "the character and magnitude of the asserted injury" to plaintiff's constitutional rights. Id. Then, the court "identif[ies] and evaluate[s] the precise interests put forward by the State as justifications for the burden imposed by its rule." Id. At that point, the court may "determine the legitimacy and strength of those interests," as well as "the extent to which those interests make it necessary to burden the plaintiff's rights." Id.
In other words, it is only after examining the full impact a regulation has on the exercise of voting rights, that a court may invoke the proper level of scrutiny. When voting rights are "severely" burdened by election law restrictions, heightened scrutiny applies and "the regulation must be `narrowly drawn to advance a state interest of compelling importance.'" Burdick v. Takushi, ___ U.S. at ___, 112 S.Ct. at 2063 (quoting Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992)). In contrast, where the challenged regulation "imposes only `reasonable nondiscriminatory restrictions'" on voting rights, minimal scrutiny applies and "`the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. ___ U.S. at *295 ___-___, 112 S.Ct. at 2063-64 (quoting Anderson v. Celebrezze, 460 U.S. at 788, 103 S.Ct. at 1570).[14]
2. NAP's Claims
NAP contends that its constitutional rights have been significantly impaired under New York's ballot placement methods because it has been denied access to the preferred positions on the ballot. It alleges that Section 116 has a significant impact on its First and Fourteenth Amendment voting rights and warrants heightened scrutiny insofar as "in New York, `ballot access' means `ballot status.'" Memorandum in Support of Plaintiffs' Motion for Summary Judgment at 17 (emphasis in original). Under New York's Election Law, independent body candidates must comply with petitioning requirements in order to obtain access to the ballot. According to NAP, these petitioning requirements are onerous and drain its financial resources. As a result, NAP claims it can presently only gain access to the ballot for a handful of candidates. All of these burdens, NAP contends, are a result of Section 116 impeding its opportunity for growth. Plaintiff surmises that were it able to increase its gubernatorial vote by tallying over 50,000 votes, it would "be able to field not handfuls, but hundreds of candidates in subsequent general elections." Id. at 18.
In addition, plaintiff alleges that its equal protection rights have been violated by an unconstitutional two-tiered ballot. According to NAP, under Section 116, a vote for an independent body gubernatorial candidate is diluted relative to votes cast for the party candidates, because performance in the gubernatorial race determines placement in future elections only for parties and not for independent bodies. Moreover, plaintiff asserts that by limiting the lottery mechanism to independent bodies, the State deceives "anti-party" voters. NAP speculates that these voters are likely to vote for the most viable non-party candidate and will incorrectly infer from the first part of the ballot that all organizations on the ballot are arranged according to past performance.
(a) The Character and Magnitude of the Alleged Injury
This Court finds that NAP has suffered no injury to its constitutional rights. It does not claim to have been excluded from the ballot or to have been unable to fairly obtain access to the ballot. The State has in no way prevented NAP from making its views known to the public or prevented its supporters from voting for the candidate of their choice. All that plaintiff really alleges is that its opportunity to capture the windfall vote has been impeded. While access to ballot may, at times, be afforded constitutional protection, access to a preferred position on the ballot so that one has an equal chance of attracting the windfall vote is not a constitutional concern. Indeed, it should not be. The Constitution does not protect a plaintiff from the inadequacies or the irrationality of the voting public; it only affords protection from state deprivation of a constitutional right. "Voters have no constitutional right to a wholly rational election, based solely on a reasoned consideration of the issues and the candidates' positions, and free from other `irrational' considerations as a candidate's ethnic affiliation, sex, or home town." Clough v. Guzzi, 416 F.Supp. at 1067.
(b) The State's Interests
Because no constitutional right has been impaired, the Court need not balance any alleged injury against the State's interest before determining the proper level of scrutiny.[15] Nevertheless, this Court takes note of *296 the compelling nature of the State's interest in organizing a comprehensible and manageable ballot. A manageable ballot is one where the parties, offices and candidates are presented in a logical and orderly arrangement. Were the ballot to be arranged in a scattershot fashion, the average voter would be unable to discern an underlying rationale to the ballot's organization. Identifying candidates who can demonstrate the support to qualify for party affiliation and separating them from those who cannot is one method of keeping the ballot in a format that the voter can easily read and assimilate.
(c) Extent to which the Interests Burden the Rights
Plaintiff's argument that its injuries outweigh the State's interests in preventing voter confusion and creating a manageable ballot is, at best, conjectural. The status of NAP is determined not so much by the State's ballot placement methods as by the independent body's performance at the polls. To attribute their inability to gather 50,000 votes less than one percent of registered voters in New York State to the State's regulation of elections is akin to a professional football team blaming its loss in a playoff game and its elimination from Super Bowl contention on its opponent's home-field advantage. Under N.F.L. rules, home-field advantage in the playoffs is granted to the teams with the best regular season records. Home turf might have an effect on performance, but the key ingredients to a team's achieving the status of Super Bowl competitor are talented players, a skilled coach and supportive fans. Likewise, NAP itself, its candidates and its policies are the most important factors in determining the extent to which it upgrades its status from an independent body to a party. The independent body can improve its performance in elections and become a party by informing voters of its policies and by publicizing its candidates for office. To this extent, the State's interest in managing the ballot does not burden NAP's rights to vote, associate politically and develop itself as a party any more than the NFL's rule granting home-field advantage burdens the visiting team's ability to play, practice and develop into a championship contender.
The State's regulatory interests also do not burden NAP's equal protection rights. In claiming that its supporters' votes are diluted relative to the votes cast by party candidates, NAP relies on the reapportionment cases in which states have been found to have quantitatively diluted the weight of votes by malaportioning legislative districts. See, e.g., Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964) ("the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."). When districts are malaportioned there is arithmetical dilution of the vote and a violation of the "one man one vote" principle, because the same number of representatives will be elected from legislative districts of unequal size. "[T]he Constitution calls for one person's vote to be worth as much as another's as nearly as is practicable ... and that, in apportioning legislative seats through districting, a state must make a good faith effort to achieve the goal of `one-person, one-vote.'" City of New York v. U.S. Dep't of Commerce, 34 F.3d 1114, 1127 (2d Cir.1994).
Yet, the reapportionment cases have already been held to be inapposite to position bias. The victims of reapportionment are the voters of the larger district, whose votes actually count for less representation than *297 votes cast in the smaller district. No such dilution of the value of one's vote exists in the context of position bias because an irrational vote is just as much of a vote as a rational one. Ulland v. Growe, 262 N.W.2d at 416. Moreover, in the reapportionment context, the victims experience inescapable inequality because "the district lines and populations [are] fixed and the effects of malaportionment [are] unavoidable for voters within the disadvantaged districts." Clough v. Guzzi, 416 F.Supp. at 1067. No such unavoidability exists where an independent body has access to windfall voters and may be able to educate them and eradicate the supposed effects of position bias. Id.
NAP's contention that its constitutional rights have been impaired by a lottery system that misleads anti-party voters is nothing but pure speculation. Is there really a class of voters who shun a political organization just because it amassed 50,000 votes in the last gubernatorial election? Indeed, that New York only requires a threshold of 50,000 votes for a political organization to become a party demonstrates the State's lenient ballot access requirements. New York is not merely a two-party state, it has five parties. Were one inclined to vote against the major parties, he or she might conclude that the minor parties the Conservative, Liberal and Right to Life are a more effective outlet as a protest vote.[16] More importantly, the Supreme Court has rejected the view that a burden on the ability to cast a "protest vote" is unconstitutional. It recently wrote: "the function of the election process is `to winnow out and finally reject all but the chosen candidates,' not to provide a means of giving vent to `short-range political goals, pique or personal quarrel[s].'" Burdick v. Takushi, ___ U.S. at ___, 112 S.Ct. at 2066 (quoting Storer v. Brown, 415 U.S. at 735, 94 S.Ct. at 1282). In short, on no account can it be said that the State's interests in creating a manageable ballot burden plaintiff's constitutional rights.
C. The Constitutionality of Section 116
Inasmuch as Section 116 imposes no restrictions or only reasonable ones, if any at all on NAP's First and Fourteenth Amendment rights, it is subject to minimal scrutiny. The challenged statute need only bear "some rational relationship to a legitimate state end" and will only be struck down as constitutionally invalid if it is "based on reasons totally unrelated to the pursuit of this goal." McDonald v. Bd. of Election Comm'rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). Moreover, the State need not make a particularized showing of the existence of voter confusion in justifying the regulation. Munro v. Socialist Workers Party, 479 U.S. at 194-95, 107 S.Ct. at 536-37. "Legislatures ... should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively." Id. at 195-96, 107 S.Ct. at 537.
Clearly, Section 116 is rationally related to the State's compelling need to construct and order a manageable ballot and prevent voter confusion. A statute that positions parties in all races based on performance in the prior gubernatorial election assists voters by constructing a symmetrical pattern on the ballot. For example, on the ballot used in New York City and Albany during the 1992 general elections, Appendix A, infra, no matter what the race, the Democratic Party was always listed first. Such an arrangement, however, did not ensure Democratic hegemony over the entire election. They may have captured the presidency in 1992, but in New York, a Republican was reelected senator. That Senator D'Amato was an incumbent probably added a boost to his campaign, but that he was precluded from the supposedly advantageous first position on the ballot seems not to have hindered his performance. Indeed, an even more compelling defense of New York's ballot placement mechanism can be found in New York City's 1993 Mayoral race. In that election, a Republican *298 challenger defeated a Democratic incumbent, even though the Democrats were listed first.
Statutes that link a party to a given column or row on a ballot should not be confused with incumbent first formats, in which first place is allotted in every race to the incumbent, regardless of party affiliation. Incumbent first statutes do not produce a symmetrical ballot. Even were all incumbents to be from the same party, there is no guarantee that the remaining parties would be listed in a parallel order. A voter who rationally casts his votes by allegiance to party will have a more burdensome task of finding his candidates of choice under the incumbent first method than on a format which allots a particular column on the ballot to each party. It could be reasonably argued, if position bias does exist on a ballot, that incumbent first statutes are really intended to suppress opposition by freezing the status quo, not to prevent voter confusion.
In this action, plaintiff encourages this Court to find that Section 116, which links a party's position to a particular column or row, also seeks to hide its true objective of unfairly advantaging incumbents behind a veneer of preventing voter confusion. NAP cites McLain, in which the Eighth Circuit reviewed a number of North Dakota election provisions, including a statute that resembles Section 116, to support its argument. That statute "reserve[d] the `first or left-hand column' of the ballot for the party which received the most votes in the last congressional election, the second column for the party with the next greatest number and so forth." McLain v. Meier, 637 F.2d at 1166. There, as in the instant action, the appellant contended that it had access to the ballot but that it was disadvantaged by position placement. Although acknowledging that the rational basis test had to be used to scrutinize the statute, the Eighth Circuit nevertheless found the ballot placement method unconstitutional. It reasoned that the statute was an "incumbent first" statute, and, as such, was designed to serve the convenience of those voters who support incumbents and not, as North Dakota asserted, to create a convenient and intelligible ballot. Id. at 1167.
This Court believes that the Eighth Circuit's analysis of the North Dakota's statute is flawed. First, as previously noted, the Supreme Court has held that prevention of voter confusion is not merely a legitimate but a compelling state interest, which need not be supported by particularized evidence. It is difficult to understand how McLain could simply overlook the strength of this interest, especially when invoking the rational basis test. Second, McLain did not involve an incumbent first statute. The Eighth Circuit, itself, highlighted that under the statute at issue "the political party which captures North Dakota's congressional race in one election is listed first in all races in the next election." Id. at 1166 (emphasis in original). In North Dakota, all candidates from the party that prevailed in the previous congressional election were slotted first, regardless of whether they were incumbents. As a result, the North Dakota statute, as is true of Section 116, ensured that all races on the ballot were listed symmetrically.
Like the statute in McLain, Section 116 is not an incumbent first statute. Its stated purpose to create a logical and manageable ballot, thereby preventing voter confusion is reasonable enough to withstand rational basis scrutiny. Indeed, an organized ballot is of utmost importance in the administration of a democracy. If position bias exists, the ballot still does not necessarily benefit the most successful candidate i.e. the incumbent; it benefits a party. That a ballot is arranged by party affiliation means that voters are automatically afforded more information about the candidate. They can identify his or her views as part of a political agenda or philosophical approach and thereby engage in more rational voting behavior. Therefore, the Court deems it rational for a state to arrange its parties on a ballot according to their performance in a past election.
Rational voting behavior may also be fostered by a two-tiered ballot in which recognized parties are listed before independent bodies. As another case involving NAP noted, "a State need not, and indeed probably should not, treat minor parties and independents the same as major parties." New Alliance *299 Party v. Hand, 933 F.2d 1568, 1575 (11th Cir.1991). In fact, courts have consistently upheld two-tiered ballot placement schemes as constitutionally valid under the Equal Protection Clause. See, e.g., Bd. of Election Comm'rs v. Libertarian Party, 591 F.2d 22, 25 (7th Cir.1979) (upheld ballot placement plan that listed the two established political parties before the new parties). In Libertarian Party, the Seventh Circuit explained that a two-tiered ballot can prevent voter confusion by ensuring that there are no gaps on the ballot between the names of candidates competing for specific offices, since many of the minor parties run candidates in only a few elections. The court stated: "[T]he relatively slight disadvantage that may result from placement below the top two ballot positions is more than outweighed by the state's interest in assuring the quality of the election." Id. at 27. Positioning parties in some logical fashion is crucial to an efficient ballot. A ballot should not be formatted like a dartboard; it must have a sensible order to it, one in which, for example, candidates are coordinated spatially by party and office. The ballot should enable the voter to easily and effectively identify the candidate of his or her choice. Thus, to assure the orderly conduct of elections, a State may design a ballot which rationally distinguishes between those entities that previously attracted significant public support and those that did not.
Another North Dakota statute examined in McLain underscores that providing disparate treatment for party nominees and independent candidates on a ballot is constitutional. McLain v. Meier, 637 F.2d at 1168. Under the statute, party candidates were allotted their own column, but all independent candidates were grouped together in one column. Similar to plaintiff in this action, the independent candidate challenging the statute contended that the two-tiered scheme relegated independents to an obscure and insignificant position on the ballot. The Eighth Circuit, however, found the mechanism to be rationally related to the State's interest in ordering a manageable ballot. It noted that separating independents from party candidates serves an informational function by demonstrating to the public those candidacies which have exhibited "the modicum of support required to qualify as a party candidate." Id. So too, in Section 116, differentiating between parties and independent bodies provides a useful informational function that facilitates more informed and rational voting behavior.
More importantly, McLain understood that a two-tiered ballot is often necessary to promote a manageable election. Including independents, eleven presidential candidates were listed on the North Dakota ballot in 1976. Due to the large number of candidates, the Eighth Circuit concluded that the ballot was likely to become unwieldy and, as a result, the state's concern over voter confusion had to be given more weight. The analysis supplied in McLain demonstrates why a scheme like New York's, which may result in double rowing or double columning, is not irrational. Voting machines do not have endless space. When an election involves many candidates, such as a presidential race, there are bound to be some doubled-up candidates. Because only the major parties generally run full slates of candidates, it would be inefficient to double column or double row them.
Thus, it is apparent that Section 116 is rationally related to the creation of a manageable ballot. NAP has failed to show why the Court should scrutinize New York's ballot placement methods under a more heightened analysis. Preferred position on a ballot, if such a thing exists, is simply not protected by the Constitution. By trying to convince this Court, through conjecture and unsupported claims, that its attack on the statute is of constitutional dimension, plaintiff appears to be transplanting a political grievance to a judicial forum. What seems to disturb NAP is that it cannot muster 50,000 votes in a gubernatorial election so that it can be classified as a party. Assuring NAP political success is beyond the scope of this Court; NAP is accountable for its own destiny. In the words of Jean Paul Sartre: "Man can will nothing unless he has first understood that he can count on no one but himself." Being and Nothingness (1943).
*300 CONCLUSION
For the foregoing reasons, NAP's motion for summary judgment is denied and the State's motion to dismiss the complaint is granted. This Court finds that N.Y.Election Law § 7-116 does not violate plaintiffs' constitutional rights under the First and Fourteenth Amendments.
It is so ordered.
*301 APPENDIX A
*302 APPENDIX B
NOTES
[1] The board also moved to dismiss the complaint, pursuant to Rule 12(b)(7), Fed.R.Civ.P., for failure to join the necessary parties, under Rule 19, Fed.R.Civ.P. The State asserted that disposition of the instant action in favor of plaintiffs would adversely affect the five established political parties, who were not originally included in the lawsuit. Subsequently, plaintiffs stipulated to joinder of these parties as defendants.
[2] Throughout this opinion, the Court generally refers to plaintiff NAP in the singular, although technically this action has been brought as well by Fulani and Mendez.
[3] Lenora Fulani, NAP's national and state chairperson, was also its candidate for president in 1992 and its candidate for governor of New York in 1986 and 1990. Rafael Mendez is a registered voter in New York State, who supported NAP in the 1992 election and seeks to support its candidates in the future.
[4] N.Y.Elec.Law § 116(1) reads in full:
In printing the names of candidates on the ballot, the candidate or candidates of the party which polled for its candidate for the office of governor at the last preceding election for such office the highest number of votes shall be in column A or one and the candidates of the other parties shall be placed on such ballot in descending order of such votes.
[5] N.Y.Elec.Law § 7-116(2) provides in pertinent part:
The officer or board who prepares the ballot shall determine the order in which shall appear, below the names of party candidates the nominations made only by independent bodies....
[6] Of the other two independent bodies running candidates for governor in 1990, the Libertarians collected approximately 24,600 votes and the Socialist Workers Party got approximately 12,750 votes.
[7] As part of Count II, NAP also alleges that Section 116's methods for assigning ballot placement are violative of 42 U.S.C. § 1983 inasmuch as they encourage the State, acting under color of state law, to deprive plaintiff of its constitutional rights.
[8] All plaintiff offers in support of its claims is the uncorroborated and untested hypothesis of Thomas W. Wallace, former executive director of the State Board of Elections. Wallace stated at his deposition:
I believe anyone who's double rowed will suffer there a potential confusion by voters. In addition, the confusion is heightened by the fact that the finger pointers which are required carry the name at the beginning of the row or column, and if there is double rowing or columning, the two names are usually put in there. Again, I can't speak that well for New York City but outside of New York City this is the method and again it harms the identity of the simple independent body.
Sinawski Decl., Ex.D. at 70.
[9] Although NAP asks this Court to invalidate Section 116 based on the format of the 1992 presidential election, plaintiff has submitted no results or statistics from that election.
[10] Judicial notice under Rule 201(b)(1) has also been invoked with respect to facts that are so widely known that they transcend jurisdiction and could be recognized by courts anywhere in the country. See, e.g., Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 500 n. 1 (2d Cir.1982) (taking judicial notice of the traditional characteristics of all snowmen because the traditional features of snowmen are widely known).
[11] Empirical evidence has been viewed as instrumental in access to ballot claims, where a party challenges an election law provision limiting its opportunity to be listed on the ballot. "In appraising the collective burden imposed by access requirements, one must place substantial weight on empirical evidence demonstrating how often minority parties and independent candidates have actually been able to satisfy them." Laurence H. Tribe, American Constitutional Law, 784 (1978). If in the access to ballot context, empirical evidence is needed, it is even more crucial in a position bias case where the challenge is based not merely on access to ballot but on the more attenuated claim of access to a preferred position on the ballot.
[12] Theoretically, these rights retain their fundamentality. However, the analytic framework developed by the Supreme Court for examining an election law regulation often means that when voting rights are burdened by a restriction, they are not afforded the same level of protection generally guaranteed fundamental rights. Practically speaking, therefore, it is correct to say that fundamentality is not inherent to voting rights but is dependent upon the degree of burden imposed on those rights.
[13] State regulation of elections has been derived from Art. I, § 4, cl. 1 of the United States Constitution, which reads: "The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." Burdick v. Takushi, ___ U.S. at ___, 112 S.Ct. at 2063 (citing Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973)); New York State Democratic Party v. Lomenzo, 460 F.2d 250 (2d Cir.1972). State regulatory power has also been grounded in Art. I, § 2, cl 1 which provides that states are given the initial task of determining the qualifications of voters who elect members of congress. Storer v. Brown, 415 U.S. at 729-30, 94 S.Ct. at 1278-79.
[14] Anderson made no distinction between claims brought under the right to vote and the right to associate politically as opposed to claims brought under the Equal Protection Clause. Inasmuch as plaintiff's allegations are premised under both constitutional grounds, the Court will apply the balancing test for both.
[15] The Anderson test assumes that a constitutional right is being burdened whenever a state regulates elections. It is premised on the belief that "[e]ach provision of these [election law] schemes, whether it governs the registration and qualification of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects at least to some degree the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. at 788, 103 S.Ct. at 1570. As the instant case indicates, however, there are election law regulations which do not burden constitutional rights and as such render the Anderson test superfluous.
Indeed, it appears that the Supreme Court has, at times ignored the Anderson test entirely and applied the traditional two-step analysis in assessing constitutional scrutiny. In Eu v. San Francisco County Democratic Cent. Committee, 489 U.S. 214, 222, 109 S.Ct. 1013, 1019-20, 103 L.Ed.2d 271 (1989) (citations omitted), the Supreme Court followed such a course: "To assess the constitutionality of a state election law, we first examine whether it burdens rights protected by the First and Fourteenth Amendments. If the challenged law burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest and is narrowly tailored to serve that interest." When the regulation does not burden these rights, the Court simply examines the challenged regulation under the rational basis test.
[16] In fact, New York distinguishes not only between parties and independent bodies but between major parties and minor parties. "The term `major political parties' means the two parties which polled for their respective candidates for the office of governor the highest and the next highest number of votes at the last preceding election for such office." N.Y.Elec.Law § 1-104(24). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261982/ | 132 Cal.Rptr.2d 465 (2003)
107 Cal.App.4th 921
Jeffrey HEYMAN, Plaintiff and Appellant,
v.
FRANCHISE MORTGAGE ACCEPTANCE CORPORATION et al., Defendants and Respondents.
No. G030352.
Court of Appeal, Fourth District.
April 8, 2003.
Review Denied July 9, 2003.[*]
*467 Miller, Starr & Regalia, George B. Speir, Thomas S. McConnell, Walnut Creek; Stanbury, Fishelman, Wisner & Adsit and Bruce C. Fishelman, Los Angeles, for Plaintiff and Appellant.
Baker & Hostetler and Peter W. James, Los Angeles, for Defendants and Respondents.
*466 OPINION
O'LEARY, J.
Jeffrey Heyman appeals the judgment in his breach of contract and fraud action. He had voluntarily dismissed the identical lawsuit eight years earlier after settling with the defendants. Heyman challenges the trial court's refusal to set aside the dismissal of the prior action on the ground it had been procured through extrinsic fraud and he contends the trial court improperly excluded evidence that would have enabled him to prove extrinsic fraud. We affirm.
FACTS AND PROCEDURE
The 1992 Action
In 1992, Heyman sued Franchise Mortgage Acceptance Corporation (FMAC), Wayne Knyal, Dennis Fitzpatrick, Arthur Brazy, and other defendants. Heyman alleged that in 1988, his research on the loan default rate of fast food franchisees had knocked conventional lending wisdom on its headthe default rate was "actually very low." Thus, he "originated and developed the idea of a securitized pool of franchisee loans."
Knyal and Fitzpatrick were principals of CBI Financial Services. Heyman met with them and confidentially explained his plan for securitizing franchisee loans. CBI had an ongoing relationship with Taco Bell, but had been unsuccessful at setting up a franchisee loan program for Taco Bell franchisees. Heyman, Knyal, and Fitzpatrick entered into an oral joint venture agreement to develop Heyman's loan program; CBI and Heyman would split the profits. In January 1989, Knyal confirmed the joint venture in writing, and CBI entered into an agreement with Taco Bell to initiate Heyman's program.
By July 1989, Knyal had begun to shut Heyman out of the business. He ceased "regular communications" with Heyman and concealed information about the joint venture's progress. In 1990, CBI declared bankruptcy and assigned its interest in the joint venture to FMAC, a corporation in which Knyal and Brazy were principals. By 1991, FMAC had secured financing for up to $100 million in franchise mortgage loans for Taco Bell franchisees and had actually made over $50 million worth of loans. Needless to say, Heyman had not seen a dime of the profits.
Heyman's 1992 complaint contained breach of contract, accounting, and tort causes of action. In November 1992, Heyman entered into a settlement with Knyal, Fitzpatrick and FMAC. He accepted $80,000 in full settlement of the dispute *468 and he subsequently dismissed the entire action with prejudice.
The Current Action
Heyman filed the current action in 1999 against FMAC, Knyal, and others. After restating the basic factual allegations from the 1992 complaint, he alleged that while the 1992 action was pending, he had requested a full accounting of the venture. Knyal had given Heyman a document indicating that Knyal's interest in loans being made by FMAC would yield about $514,000 in earnings "under the most optimistic scenario," and that FMAC had less than $150,000 cash on hand. While the 1992 action was pending, Knyal and Brazy made verbal representations to Heyman that the document accurately represented FMAC's financial picture. In reliance on those representations, Heyman settled the 1992 action for $80,000. Heyman alleged that in fact, the financial prospects of FMAC were much better than represented. Heyman alleged Knyal had concealed that FMAC was going to receive an estimated $4.7 million in revenues from future franchise loans, and Knyal's earning would be about $1.7 million. FMAC had applications pending for another $10 million in franchisee loans. In 1997, Knyal took the business public, and in the initial public offering of shares it was valued at about $130 million. Heyman alleged that when he settled the 1992 action he was unaware of the true facts, and did not learn them until they became public in another action involving Knyal and some of his business associates.
The first three causes of action in the current complaint were to set aside Heyman's settlement of the 1992 action fraud, constructive fraud, and rescission. The court ordered those causes of action bifurcated.
Trial Evidence
At trial, Heyman contended Knyal had created and used deceptive financial records to induce him to settle the 1992 action. Specifically, he claimed that Knyal hid from him the substantial revenues FMAC would receive from servicing the franchisee loans. It was uncontroverted that the only financial record Heyman reviewed prior to entering into the 1992 settlement was a 10-page financial statement given to him by Knyal during settlement talks. Heyman conducted no formal discovery in the 1992 action and although he had been offered the opportunity to examine all of FMAC's books and records, he did not.[1]
Heyman claimed the 10-page financial statement, as it turned out, improperly consolidated loan servicing revenues with loan servicing expenses, making it look as though FMAC had no profit on loan servicing. In fact, Heyman claimed, loan servicing revenues were being diverted to a separate holding company owned by Knyal. Heyman testified that he first learned about Knyal's deceptive records in 1999 after another of Knyal's partners, Maurice DeWald, successfully sued Knyal for fraud involving the loan servicing rights.
*469 Following a two-day bench trial, the court ruled that any fraud committed by Knyal was intrinsic to the 1992 action, not extrinsic, and thus the 1992 dismissal could not be set aside. Accordingly, it granted judgment for the defendants, Heyman appeals.
DISCUSSION
The issue presented here is mercifully narrow: All agree that Heyman's voluntary dismissal of his 1992 action operates as an absolute bar to the present litigation unless Heyman can establish that dismissal was obtained through extrinsic as opposed to intrinsic fraud.[2]
"Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, convincing the other party not to obtain counsel because the matter will not proceed (and it does proceed). [Citation.] A party's representation of the value of an asset, favorable to himself, does not constitute extrinsic fraud. [Citation.] Extrinsic mistake involves the excusable neglect of a party. [Citation.] When this neglect results in an unjust judgment, without a fair adversary hearing, and the basis for equitable relief is present, this is extrinsic mistake. [Citation.] Reliance on an attorney who becomes incapacitated, or incompetence of the party without appointment of a guardian ad litem, are examples of extrinsic mistake. [Citation.] [¶] Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so. [Citation.] Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time. Where the defrauded party failed to take advantage of liberal discovery policies to fully investigate his or her claim, any fraud is intrinsic fraud. [Citation.]" (In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937-938, 33 Cal.Rptr.2d 761, italics added; see also Home Ins. Co. v. Zurich Ins. Co., supra, 96 Cal.App.4th at p. 26, 116 Cal. Rptr.2d 583; City and County of San Francisco v. Cartagena (1995) 35 Cal. App.4th 1061, 1067, 41 Cal.Rptr.2d 797.)
The trial court here correctly concluded the alleged fraud of Knyal in securing Heyman's dismissal of the 1992 action through misleading statements about the value of FMAC (or of the loan servicing rights) was intrinsic. Heyman settled his action upon reviewing a single 10-page financial statement. He conducted no formal discovery and undertook no review of the financial records of the company he claimed to have an interest in. The court noted that the financial records produced at this trial were "a good [four] inches thick." But, as the court pointed out in ruling, because Heyman did not conduct any formal discovery in the 1992 action, it is impossible to know what he would have *470 learned about his fraud claim and the financial condition of FMAC.
Home Ins. Co. v. Zurich Ins. Co., supra, 96 Cal.App.4th 17, 116 Cal.Rptr.2d 583, is instructive. There the insurer's attorney misrepresented the policy limits to be $15,000, when they were in fact $500,000. The injured party's attorney conducted no discovery, but settled the underlying suit for $15,000. The court held the fraud to have been intrinsic because, "A reasonable investigation and use of discovery would have disclosed the true extent of insurance coverage." (Id. at p. 27, 116 Cal.Rptr.2d 583.) Similarly, we must agree with the trial court here that Knyal's alleged misstatements about the financial condition of FMAC and the profitability of loan servicing rights were intrinsic where they related to the value of the company, and the loan revenues were the very subject of the lawsuit and Heyman conducted no investigation or discovery into the financial accounts of the company.
Heyman's heavy reliance on Sime v. Malouf (1949) 95 Cal.App.2d 82, 212 P.2d 946, is misplaced. The facts in that case were extraordinarily complicated involving a sophisticated conspiracy involving some of the directors and officers of a corporation for which the plaintiff was working. The action was the plaintiffs direct action for the fraud perpetrated by those directors and others against him. Only some of the acts pertained to a lawsuit against the corporation in which the plaintiff had filed a cross-complaint and which the plaintiff had been fraudulently induced to settle for far less than the actual value of his interests. The court rejected the defendants' assertion that the plaintiffs settlement of the one action in which he was involved, and in which most of the defendants were not parties, released them from liability for their fraudulent acts. Furthermore, it rejected the defendants' claim that the plaintiff would have uncovered the fraud had he conducted further discovery in the underlying action. "Plaintiff could not fairly have been charged with notice of facts which he could have learned only out of the mouths of the conspirators, who were successfully endeavoring to conceal them." (Id. at p. 107, 212 P.2d 946.) Sime was not an action to set aside the judgment in the action in which the plaintiff was involved and thus it did not distinguish between extrinsic and intrinsic fraud. But we are satisfied that Sime presented a clear case of extrinsic fraud, because much of the fraud was unrelated to the underlying lawsuit.
By contrast, Heyman settled his 1992 action based on Knyal's alleged misrepresentations about the very subject matter of the litigation: the profitability of the franchisee loans and the financial condition of FMAC. But Heyman conducted no formal discovery to obtain the financial documents relating to those issues. There is no evidence of an elaborate conspiracy to keep those records or the information from him. He simply chose not to investigate further.
Heyman contends two evidentiary errors by the trial court precluded him from proving the alleged fraud was extrinsic. We find no error.
First, Heyman sought to have Knyal's former partner, DeWald, testify. DeWald had successfully sued Knyal in 1999 for fraud involving the same franchisee loan servicing rights that Heyman claimed Knyal had lied to him about. Heyman offered that DeWald would testify the "books" created by Knyal to conceal his diversion of loan servicing revenues were "sufficiently deceptive to have deceived Mr. DeWald despite his sophistication as an accountant." Thus, Heyman argues, DeWald's testimony would have proved that the financial records Knyal gave Heyman to induce him to *471 settle were deceptive, and Knyal intended to deceive Heyman with them. But as the court noted, whether there was fraud was not relevant to the issue of whether the alleged fraud was extrinsic or intrinsic to the lawsuit. The court did not err in excluding the testimony.
Heyman also complains the court improperly refused to permit him to present expert testimony from Terry Lloyd. Heyman argued that Lloyd's testimony would prove that even had Heyman done formal discovery and looked at the financial records of FMAC, they would not have revealed that loan servicing revenues were being diverted by Knyal. But Heyman conceded that Lloyd had not reviewed the underlying books and financial records of FMAC that would have been available to Heyman when he settled his case in 1992. Rather, his testimony would be based upon his review of the document Heyman received from Knyal and an audit report of FMAC prepared in 1993 for the 1992 fiscal year. The trial court did not abuse its discretion in excluding Lloyd's expert testimony. The expert witness was in no position to testify about what Heyman would have found had he reviewed the books and records of FMAC when he had not reviewed those records.
The judgment is affirmed. The Respondents are awarded their costs on appeal.
We Concur: SILLS, P.J., and RYLAARSDAM, J.
NOTES
[*] George, C.J., and Brown, J., did not participate therein.
[1] The financial statement was an exhibit at trial. Additionally, other financial records of FMAC, which Heyman claims demonstrate Knyal's fraudulent conduct were also admitted into evidence at trial. On appeal, Heyman did not file a Rule 18 notice (Cal. Rules of Court, rule 18) designating any exhibits to be considered by this court. Accordingly, we cannot assume that any of this documentary evidence supports Heyman's position. (See Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291, 130 Cal. Rptr.2d 436 ["Where exhibits are missing we will not presume they would undermine the judgment"].)
[2] Much of the respondents' brief is devoted to a discussion of the litigation privilege contained in Civil Code section 47, subdivision (b). The discussion is irrelevant because although the litigation privilege bars a direct action for fraud committed in a judicial proceeding, it "does not apply to an equitable action to set aside a settlement agreement for extrinsic fraud." (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26, 116 Cal.Rptr.2d 583.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327592/ | 201 Ga. App. 483 (1991)
411 S.E.2d 294
NOBLES
v.
THE STATE.
A91A1047.
Court of Appeals of Georgia.
Decided September 10, 1991.
Reconsideration Denied October 15, 1991.
Jackson & Schiavone, Michael G. Schiavone, Mark E. Smith, for appellant.
Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.
McMURRAY, Presiding Judge.
This is the third appearance of this case. Nobles, who was 16 years old at the time of the crimes, was indicted for murder and possession of a knife during the commission of a felony and convicted of voluntary manslaughter and the knife possession charge on April 28, 1988. In Nobles v. State, 191 Ga. App. 594 (382 SE2d 637), where the pertinent facts are stated, these convictions were reversed because a statement taken from Nobles in violation of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 637)), was introduced in evidence. After remand for retrial, a second appeal was brought from the denial of Nobles' double jeopardy claim, in which this Court held that although the in-custody statement should not have been admitted, the remaining evidence was sufficient to support both convictions. Nobles v. State, 195 Ga. App. 725 (394 SE2d 613). Nobles was retried before a jury and on October 4, 1990, was again found guilty of voluntary manslaughter and possession of a knife during the commission of a felony. He was sentenced to ten years on the first count and five years on the second, to be served consecutively in a youthful offender facility. He appeals therefrom and enumerates 27 errors. Held:
1. Appellant Nobles contends that the trial court erred in answering a juror's question by misleading and confusing the jury and making the court's opinion known to the jury. The juror inquired whether, if he came on a scene where his wife was being threatened and he thought she was going to be killed, he would be guilty of voluntary manslaughter if he killed the person who threatened his wife. The *484 judge replied that he could not tell the juror the answer to the question, but he would try to give him "a pure example without self-defense." He explained that where "two people are at a bar drinking and they have an argument and they get in a fight and one person kills the other[, t]hat's voluntary manslaughter. It's not murder, because there was no malice involved; there was just anger caused by what happened at the bar, the argument they got into." The judge then reinstructed the jury on reasonable doubt. Appellant Nobles argues that the correct answer was "no," and that a recharge on self-defense should have been given at that time. We find no reversible error. Appellant has demonstrated no impropriety in the example given by the trial court or in the instructions following it, and we discern nothing in the illustration which might serve to mislead or confuse the jury. Also, the trial judge did subsequently recharge on self-defense, as he said at the time he intended to do later. Nor is appellant correct in asserting that the court prejudiced the instruction by stating that it was given at appellant's request, as the judge actually told the jury that he had discussed it with "the attorneys and we thought" a recharge on self-defense should be given.
The court has the right on receiving a request for further instructions to give such a reply as the facts may warrant. Miller v. State, 195 Ga. App. 89 (3) (392 SE2d 334). "`Where the trial judge in charging the jury correctly states the law governing the case, but exception is taken to an illustration used by the court explanatory of the illustration given, this court will not narrowly scrutinize the illustration, if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury.' [Cit.] The illustration given by the judge tended to show what is meant in law by [voluntary manslaughter], and was an apt illustration of the idea intended to be conveyed." Hall v. State, 239 Ga. 832, 833 (2) (238 SE2d 912).
2. The jury foreman also requested the court to give the jurors some guidelines on which to base their determination of what constituted justifiable force; the judge instructed them that they had to set their own standards and "determine from the facts in this case and from the viewpoint of the defendant what a reasonable man would have done under similar circumstances." Appellant complains that this recharge was reversible error because it failed to inform the jury that under the law a person is justified in using force which is intended or likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.
"`Where the jury, after having been charged by the court, returns into court and requests an instruction upon a specific question, it is not error for the judge to confine his instruction to the specific point *485 suggested by the jury's inquiry. (Cits.) It is within the court's discretion to recharge in full or only upon the point or points requested. (Cits.). . . The jury asked for a charge on a specific point and the jury was charged upon that point. . . . This was sufficient to satisfy the requirements of the law.' [Cit.]" Dyer v. State, 167 Ga. App. 310, 311 (3) (306 SE2d 313). Accord Brown v. State, 258 Ga. 152, 154 (4) (366 SE2d 668).
3. The trial court refused the jury's request to see a transcript of the testimony of appellant and his girl friend, which had not been prepared at that time, stating that although there was a tape recording he would not allow it to be played because it would "spotlight [the] testimony out of context with the entire trial." Appellant contends that this was the only evidence offered on his defense of self-defense and, since the jury was denied the opportunity to clarify the facts, appellant did not receive a fair trial. There were numerous witnesses who testified at trial concerning the events leading up to the stabbing of the victim from which the jury could determine the facts. Whether or not to grant a jury's request to rehear portions of such evidence is within the discretion of the trial judge, and appellant has failed to carry his burden of showing that the court abused its discretion here. Coleman v. State, 194 Ga. App. 404 (2) (391 SE2d 15). See Morris v. State, 254 Ga. 273, 274 (2) (328 SE2d 547).
4. Appellant asserts that the trial court erroneously denied his motion for directed verdict at the close of the State's evidence and his motion for new trial on the general grounds. These enumerations are without merit. The evidence adduced at trial was virtually the same as the evidence adduced at the first trial and it was sufficient to authorize the jury's finding that defendant was guilty, beyond a reasonable doubt, of voluntary manslaughter and possession of a knife during the commission of a felony. Nobles v. State, 191 Ga. App. 594, 597 (1, b), supra; Rose v. State, 195 Ga. App. 399, 400 (2) (393 SE2d 459).
5. Error is assigned to the trial court's allowance of the pathologist's testimony, over appellant's objection, that the cause of the victim's death was "hypovolemic shock secondary to blood loss" because the autopsy report provided to him pursuant to OCGA § 17-7-211 did not contain this information. We are unable to perceive what harm this testimony may have occasioned, and do not agree with appellant that without the cause of death the State could not prove that a crime had been committed which formed the basis of the indictment. Any autopsy report must necessarily be related to the cause of death, and the final diagnosis was delineated on the first page of the report as "stab wound, right flank with transection of liver, colon, duodenum and diaphragm." The authority upon which appellant relies relates to empirical test results of the amount of drugs present in the defendant's blood and urine, concerning which this Court held that the failure *486 to produce the written scientific report left the defense at a "huge disadvantage" in trying to cross-examine the State's witnesses as to the implications of the test results and the formation of their opinions. See Durden v. State, 187 Ga. App. 154 (1), 158 (369 SE2d 764). No grounds for reversal have been shown here.
6. Appellant contends that the trial court erred in quashing a subpoena of a television news reporter, and in denying a hearing on his motion for new trial which precluded a determination of whether the mistrial should have been granted because of jury misconduct or tampering. We note in the record, however, a letter dated November 15, 1990, from defense counsel to the trial judge that not only refers to a hearing on the motion for new trial held on November 9, 1990, but also discusses "another hearing scheduled for December 6, 1990, at which time [appellant] will be given an opportunity to introduce the tape from WSAV in reference to the Court's ruling granting the Motion to Quash [the] subpoena of [the news reporter] in this matter."
No transcript of either of the hearings referred to appears in the record before us on appeal, but the trial transcript and the order granting the motion to quash show that on the morning before the jury returned its verdict, appellant's attorney informed the court that a reporter on the WSAV-TV 6:00 news had stated that he had learned the jury was eleven to one for conviction and one juror was holding out and would not budge. After the jury rendered its verdict of guilty on both counts, the trial court asked the foreman to state how they stood when they were dispersed the previous evening. When the foreman replied that they stood nine to three, the court further questioned the jury as a whole as to whether any of them had seen the telecast in question. All said they had not. Accordingly, the trial court ruled that since the television report was inaccurate and the jury did not see it or hear about it, no impropriety had taken place and piercing the reporter's shield of confidentiality would bring forth no relevant information as required by OCGA § 24-9-30.
Under OCGA § 24-9-30, "[a]ny person, company, or other entity engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that the privilege has been waived or that what is sought: (1) Is material and relevant; (2) Cannot be reasonably obtained by alternative means; and (3) Is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item." (Indention omitted.)
While this case was the subject of intensive news coverage, nothing *487 in the language of this new statute, which first became effective on July 1, 1990, indicates to us that it was meant to be used to uncover the source of mere courtroom gossip or speculation that appears to have been involved here. Nor has it been shown that the disclosure of the source of this erroneous information was in any way material or relevant, or necessary to the presentation of appellant's case. Moreover, the trial court had instructed the jury on several occasions that they were not to read, listen or watch any news reports, nor to discuss the case among themselves or with anyone else. When questioned by the judge they all assured him that they had not seen the telecast. "Qualified jurors, under oath, are presumed in the absence of clear evidence to the contrary to follow the procedural directives of and to honestly respond to questions of the trial judge. [Cit.]" Dykes v. State, 191 Ga. App. 879 (2), 880 (383 SE2d 210). We find no error.
7. Error is assigned to the trial court's refusing to excuse for cause two jurors. The first juror indicated that he had heard about appellant and his older brother and felt like the brothers had a "trouble type attitude." During voir dire this juror said it would not be easy, but he "would like to think" he could separate that from his mind and be a fair and impartial juror. When further questioned by the trial court, he responded that "just [in] this courtroom" he could judge the appellant's guilt or innocence without any preconceptions regarding his family. The second juror stated during voir dire that he had heard and read about the case, but he would "require evidence to prove' whether appellant was guilty or innocent of manslaughter. After the judge inquired whether this juror could decide the case solely from what he heard in the courtroom and any law that he was charged, and not from anything else, the juror stated unequivocally that he could do so.
"`In order to disqualify a juror for cause, it must be established that the juror's opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. [Cit.]' [Cit.]" Chancey v. State, 256 Ga. 415, 425 (349 SE2d 717). "`The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause. (Cits.)' [Cit.]" Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416). "While a venireman may initially express doubt as to his or her ability to be impartial, this fact alone does not demand that the prospective juror be excused for cause. When the venireman indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve. [Cit.] The trial court has the discretion as to whether to strike a juror for cause. [Cits.] We find no abuse of the trial court's discretion. The court followed the provisions of OCGA § 15-12-164 for setting aside a juror for cause and *488 found that the juror[s] in question could render a fair and impartial verdict." Lattany v. State, 193 Ga. App. 438 (338 SE2d 23). Accord Ward v. State, 193 Ga. App. 137, 140 (8) (387 SE2d 150). We find no abuse of discretion here.
8. The appellant's contention that the trial court used a different standard for the State than it did with the defense in excusing jurors for cause is not supported by the trial transcript. The two jurors to whom he refers both indicated sympathy for appellant because of his age. One woman said appellant reminded her of her young grandson, and that she could not answer if she could decide the case based on the evidence because she did not know if she could keep her feelings separate. The other woman indicated she had a son and could feel for both sides, but that her husband had worked with appellant's father. When the trial court inquired if she could decide the case without these influences, she replied that she did not think she "could come up with a real clean fair judgment." Absent a manifest abuse of discretion, which has not been shown, we find no grounds for reversal. Scott v. State, 193 Ga. App. 577, supra.
9. Appellant contends that the trial court improperly excused a juror for sickness and substituted an alternate because he did not talk to the juror directly but accepted the word of her employer. Unlike Baptiste v. State, 190 Ga. App. 451 (379 SE2d 165), upon which appellant relies, an alternate juror was available to serve here, and thus he "has not shown how he was prejudiced by the use of an alternate, since pursuant to OCGA § 15-12-169 alternates are selected in the same manner and must have the same qualifications as members impaneled as the jury." Forney v. State, 255 Ga. 316, 317 (1) (338 SE2d 252). Harm, as well as error, must be shown to authorize a reversal by this Court. Baptiste v. State, 190 Ga. App. 451, supra at 453 (1).
10. A request to charge relating to the credibility of a witness testifying under a promise of no prosecution by the State was submitted by appellant, but the trial court gave only the standard jury instruction on credibility, to which error is assigned. The charge as given instructed the jurors to consider the witnesses' interest or lack of interest in the case. Also, this witness testified that he had given a statement to the police before he was arrested or knew he was going to be arrested in connection with the stabbing. Where the requested instruction is at least minimally covered adequately by the charge given on credibility of witnesses, the court's failure to charge in the language requested does not constitute reversible error. Jones v. State, 188 Ga. App. 240, 241 (3) (372 SE2d 828). The Suggested Jury Pattern Instruction on credibility of witnesses alone was sufficient. Sharp v. State, 196 Ga. App. 848, 850 (4) (397 SE2d 186).
11. Appellant insists that he was entitled to a change of venue because of the extensive pretrial publicity surrounding the case. *489 "`The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of discretion. [Cits.]' [Cit.]" Chancey v. State, 256 Ga. 415, 430, supra. "`Traditionally, a defendant seeking a change of venue on the basis that the setting of the trial is inherently prejudicial relies heavily if not primarily or exclusively on news media reports, particularly newspapers (because they are easier to collect). However, widespread or even adverse publicity is not in itself grounds for a change of venue. [Cits.] On appeal, the impact of media publicity is evaluated by various factors, such as the size of the community and the extent of media coverage (number of articles and their circulation); whether it is related to the discovery of the crime (e.g., facts regarding the victim) or to the apprehension or interrogation of the defendant (and whether any publicized confession was admitted at trial); the prominence and content of the reports (e.g., facts vs. speculation and emotionalism, and the accuracy and admission into evidence of those facts); and the time interval between the publicity and the trial. [Cits.]' [Cit.]" Cargill v. State, 255 Ga. 616, 628 (10) (340 SE2d 891).
While the trial of the case sub judice was of considerable interest and certainly was well-covered in the Savannah, Chatham County area news reports, our review of the evidence of record does not convince us that the publicity was so inflammatory, the area so small, or the citizenry so subject to community pressures as to require a change of venue. Defense counsel was allowed individual sequestered voir dire, and the transcript reveals that he was allowed "`wide leeway' in asking questions and to excuse for cause any person who was `suspect at all.'" Jackson v. State, 258 Ga. 810, 811 (4), 812 (375 SE2d 454). The newspaper articles were generally factual and without emotionalism, speculation or acceptance of appellant's guilt. Moreover, the time interval between the two trials was sufficiently long to allow memories and passions to fade.
"In any event, `the record of publicity in the months preceding, and at the time of, the . . . trial does not reveal the "barrage of inflammatory publicity immediately prior to trial," [cit.], amounting to a "huge. . . wave of public passion," [cit.], that the court found in Irvin [v. Dowd, 366 U. S. 717 (81 SC 1639, 6 LE2d 751)].' [Cit.] `(T)here is no evidence of a "total inundation of the judicial process by the media" at this trial. [Cits.]' [Cit.] We cannot say that the setting of the trial was inherently prejudicial as a result of pretrial publicity." Chancey v. State, 256 Ga. 415, supra at 430-431. Appellant "has not shown inherent prejudice as a result of pre-trial publicity or widespread community fear and bias, nor has he shown actual prejudice in the jury selection process. [Cit.]" Jackson v. State, 258 Ga. 810, supra at 812.
12. The assertion that the trial court erred in denying his first *490 plea of double jeopardy in 1988 concerning the juvenile court proceedings was decided unfavorably to appellant by this Court in Nobles v. State, 191 Ga. App. 594, 597 (3), supra.
13. Error is also asserted in the trial court's denial of appellant's second plea of double jeopardy on March 2, 1990, allowing him to be retried for the same offenses. This enumeration is likewise without merit. In Nobles v. State, 195 Ga. App. 725, supra, this Court noted that while appellant's convictions of voluntary manslaughter and possession of a knife were reversed on a determination that his in-custody statement should not have been admitted into evidence in the first Nobles, "we expressly held that the remaining evidence was sufficient to support both convictions. . . The prior holding of this court with respect to the sufficiency of the evidence was binding upon the trial court, which consequently did not err in denying the appellant's plea of former jeopardy. [Cits.]" Id.
14. Appellant's claim that his motion to quash the order transferring the case from juvenile court to superior court before the first trial was erroneously denied has also been fully addressed and adversely adjudicated. Nobles v. State, 191 Ga. App. 594, 597 (4), supra.
15. The trial court allowed in evidence, over appellant's objection, a photograph of the victim's body taken at the morgue before the autopsy which shows the knife wound and also another photograph as evidence relevant to the State in excluding a theory of self-defense and to assist the jury in determining the location of the wound relative to the rest of the body. "`"A photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant." [Cit.]' [Cit.] [Such photographs are] `relevant and material to show the location of the wounds, [cit.]. . .'" Brooks v. State, 258 Ga. 20, 22 (3) (365 SE2d 87). Accord Motes v. State, 192 Ga. App. 302, 305 (5) (384 SE2d 463). We find no error in admitting the photographs objected to by appellant.
16. Contrary to appellant's argument, his requested charges on misdemeanor involuntary manslaughter while acting in self-defense were properly rejected. "This classic complaint, after long debate, has been resolved in this state. '(A) defendant who seeks to justify homicide under the "self-defense" statute, OCGA § 16-3-21 (cit.), is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, (OCGA § 16-5-3 (b) (cit.)). . ." Kennedy v. State, 193 Ga. App. 784, 787 (3) (389 SE2d 350).
17. Nor was appellant entitled to a charge on mistake of fact under OCGA § 16-3-5, since his defense was based on justification and self-defense and the trial court instructed the jury on these points. Pullin v. State, 257 Ga. 815, 817 (3) (364 SE2d 848).
18. This Court upheld the refusal to charge a similar request on *491 homicide by accident in Nobles v. State, 191 Ga. App. 594, 599 (8), supra, which is also cited as error here. As stated in the previous case, "appellant testified he stabbed the victim because he thought the victim was assaulting appellant's girlfriend. There was no evidence adduced at trial that appellant was attempting to stab an assailant of his girlfriend and the victim unfortunately came in between the intended victim and the blow. Thus, appellant's requested charge discussed a principle not applicable to the facts of the case and the trial cussed a principle not applicable to the facts of the case and the trial court did not err by failing to give that charge to the jury. [Cit.]" Id. at 599.
19. The objections raised by appellant to the trial court's charge that a person will not be presumed to act with criminal intent do not warrant a reversal of his conviction. While he contends that the instruction lessened the presumption of innocence and relieved the State of its burden of proof, immediately prior to the language he deems unsuitable the court charged that intent was the essential element of the crime and must be proved beyond a reasonable doubt by the State. "The failure of the trial court to charge in the exact language requested is not reversible error where the charge given substantially covered the same legal principles. [Cits.]" Stephens v. State, 196 Ga. App. 29, 30 (2) (395 SE2d 353). Accord Walthour v. State, 196 Ga. App. 721, 722 (5) (397 SE2d 10).
20. Appellant contends that the trial court's charge on reasonable doubt violated due process because it lessened the standard of proof required for a conviction. However, this instruction has been approved in Thomas v. State, 248 Ga. 247, 250 (6) (282 SE2d 316), where the Supreme Court held that it "is clearly not burden-shifting. It merely defines the degree of proof required of the State to carry its burden of proof." Here, as in Thomas, the charge was given in connection with an instruction on the State's burden of proving the guilt of the accused beyond a reasonable doubt.
21. We do not agree with appellant that the trial court's inadvertent use of the word "evident" rather than the correct word "imminent" in referring to the use of unlawful force in the charge on self-defense was confusing or misleading to the jury. In any event, the trial court recharged the jury on the same issue using the correct language. "A mere verbal inaccuracy in a charge, which results from a palpable `slip of the tongue.' and clearly could not have misled the jury, is not reversible error. [Cit.] Even treating the charge as erroneous, no harm resulted to appellant because the court subsequently gave the correct charge.. . . Under such circumstances, we find no error." Hadden v. State, 181 Ga. App. 628, 629 (3) (353 SE2d 532).
22. It was not necessary for the trial court to give the appellant's requested instructions on his contention that his girl friend was being subjected to the forcible felony of aggravated assault when she was *492 hit and kicked, and to explain that hands and feet may be deadly weapons so that the appellant was justified in killing the victim if the victim manifestly intended to commit a felony. "In its charge on self- defense, the trial court charged the jury, in part, that a person is justified in using force which is intended or likely to cause death or great bodily injury only if he reasonably believes such force is necessary to prevent death or great bodily injury to himself. This was a correct statement of the law, OCGA § 16-3-21 . . ., and whether fists and feet can be dangerous weapons under certain circumstances was not material to the issue of self-defense. The determining factor in self-defense is not whether the victim was using a deadly weapon, but whether appellant reasonably believed the amount of force he used was necessary to prevent death or great bodily harm to himself [or another]." Ellis v. State, 168 Ga. App. 757, 760 (5) (309 SE2d 924).
"`It is unnecessary to give the precise language of a requested charge when the principles upon which the jury must make its decision have been clearly explained by the trial court. Such being the situation in this case, the assignment of error is without merit.' [Cit.]" Moore v. State, 197 Ga. App. 9, 10 (2(a)) (397 SE2d 477).
23. Appellant asserts error in the failure of the trial court to give a requested charge "that one reacting to an attack by an aggressor in repelling such attack, to protect his own life or the life of a third person, is not acting under the excitement of passion as contemplated by the voluntary manslaughter statute, but rather is acting in self-defense." The trial court gave adequate instructions on self-defense and the requested charge essentially informs the jury that one always acts in self-defense if he is resisting an attack. For the reasons stated in Division 22 herein, we find no error in refusing to give this charge.
24. After the jury requested an explanation of voluntary manslaughter during deliberations, the trial court recharged the subject and then attempted to explain the instructions in layman's terms with the preface that it was "always dangerous for a judge to go beyond the stilted language of the law, because you never know what the appellate court might think of what you say here. . . ." Appellant claims that this remark, to which he objected, constituted reversible error because it conveyed the impression that the trial court believed he would be found guilty and have to appeal. See Faust v. State, 222 Ga. 27 (2) (148 SE2d 430). "We do not agree. Although `(i)t is error for any judge in any criminal case . . . to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused,' OCGA § 17-8-57, the comment challenged here did not constitute a statement of opinion either as to proof or as to guilt. . . . [Cit.] `While it is better practice, during the trial of cases, for the court and counsel not to make references to . . . the reviewing courts except to cite their decisions as authority; yet the statement here . . . *493 could in no wise be so construed as prejudicial to the accused. .. .' [Cit.]" Najmaister v. State, 196 Ga. App. 345, 346 (1) (a) (396 SE2d 71). Accord Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605); Mullen v. State, 197 Ga. App. 26 (4) (a) (397 SE2d 487).
25. Nor do we agree that the trial judge suggested to the jury on recharge that the verdict should be voluntary manslaughter in explaining that voluntary manslaughter was the type of homicide charged in the case. McMullen v. State, 199 Ga. 521, 525 (2) (34 SE2d 892). Having considered all of appellant's enumerations of error, we find no grounds warranting reversal for any reason cited.
Judgment affirmed. Sognier, C. J., and Andrews, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261998/ | 900 F.Supp. 186 (1995)
The PROCTER & GAMBLE COMPANY, Plaintiff,
v.
BANKERS TRUST COMPANY and BT Securities Corporation, Defendants.
No. C-1-94-735.
United States District Court, S.D. Ohio, Western Division.
October 3, 1995.
*187 Thomas S. Calder, John D. Luken, Dinsmore & Shohl, Cincinnati, OH, Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, OH, James J. Johnson, General Counsel, Gary Hagopian, Procter & Gamble Co., Cincinnati, OH, Matthew Gluck, Fried, Frank, Harris, Shriver & Jacobson, New York City, for Procter & Gamble Co.
Thomas Ridgley, Glenn V. Whitaker, Daniel J. Buckley, Vorys, Sater, Seymour & Pease, Cincinnati, OH, Michael A. Cooper, Richard H. Klapper, Sullivan & Cromwell, New York City, Michael E. Wiles, Debevoise & Plimpton, New York City, for Bankers Trust Co.
Richard M. Goehler, Christopher Ehrman, Frost & Jacobs, Cincinnati, OH, Victor A. Kovner, Lankenau Kovner & Kurtz, New York City (Kenneth M. Vittor, Sr. Vice Pres. & General Counsel, The McGraw-Hill Cos., Inc., New York City, of counsel), for McGraw-Hill.
OPINION AND ORDER REGARDING McGRAW-HILL COMPANIES, INC. v. PROCTER & GAMBLE COMPANY, ET AL.
FEIKENS, District Judge.
I. Background
On October 27, 1994, plaintiff, The Procter & Gamble Company (P & G), filed suit against defendants, Bankers Trust Company and BT Securities Corporation, in the United States District Court for the Southern District of Ohio. Plaintiff alleged that defendants had engaged in fraudulent conduct to induce plaintiff to enter into and to remain in two complex leveraged derivative transactions. The case was assigned to the Honorable Carl B. Rubin, and on January 17, 1995, he signed a stipulated protective order, thereby protecting confidential materials produced in discovery. Regrettably, Judge Rubin became ill and died, and Chief Judge Gilbert S. Merritt designated me to handle the case.
On September 1, 1995, plaintiff filed a motion for leave to amend its complaint together with a supporting memorandum and a RICO (Organized Crime Control Act of 1970, 18 U.S.C. § 1961, et seq.) case statement. These supporting materials, which include allegations of RICO violations and utilize confidential discovery information, were filed under seal pursuant to the terms of the protective order.
At or about 5:00 p.m. on September 13, 1995, plaintiff and defendants' counsel contacted me and jointly requested a restraining order to enforce the protective order. The parties sought to prevent The McGraw-Hill Companies, Inc., doing business as Business Week Magazine, from publishing that evening a story which included confidential information regarding Procter & Gamble's motion *188 for leave to amend. I concluded that the parties would suffer irreparable harm and issued a restraining order prohibiting publication of the court-protected confidential information. This order only prohibited publication until consent to publish was received from this court and did not limit access to trial proceedings, restrain publication of information revealed at trial, or restrain information that was obtained independently of the discovery process.
Rather than seek a hearing in this court either that evening or the next day, Business Week sought expedited review in the United States Court of Appeals for the Sixth Circuit. Five days later, on September 18, 1995, that court dismissed that appeal for lack of jurisdiction. Rather than move for a hearing in this court, Business Week again sought appellate review, this time with the United States Supreme Court. Simultaneously, Bankers Trust sought a show cause hearing in this court. That hearing was scheduled for Thursday, September 21. Business Week vociferously argued that such a hearing was premature and sought an emergency stay from the Sixth Circuit Court of Appeals. That motion was denied and the hearing occurred as scheduled. It is significant that Business Week, while repeatedly arguing in appellate courts and to the media that it had been denied a hearing on my restraining order, vigorously opposed and avoided such a hearing from the very beginning. The reason for this duplicity became clear when factfinding hearings were finally held.
II. The Need for a Hearing
While the temporary restraining order entered on September 13 was issued under exigent circumstances, I was always available to provide a full hearing. Finally, after much delay precipitated by the appeals of Business Week, I held hearings on my order restraining Business Week on Thursday, September 21, and Wednesday, September 27, 1995. The purpose of these hearings was to determine whether the protected, confidential information obtained by Business Week was acquired lawfully and independently of the discovery process. As suggested by Justice John Paul Stevens in his denial of Business Week's application for a stay pending the filing of a petition for certiorari, the manner in which Business Week came into possession of the protected discovery information has an important bearing on its right to publish it. See The McGraw-Hill Companies, Inc. v. Procter & Gamble Company, et al., ___ U.S. ___, 116 S.Ct. 6, 132 L.Ed.2d 892 (U.S. 1995). Moreover, as will be discussed in greater detail below, the Supreme Court has explicitly limited the right to disseminate court-protected information which is obtained only through the civil discovery process.
III. Contentions of the Parties
Business Week has contended throughout this case that there was no need for a hearing because the September 13, 1995 restraining order was a prior restraint in violation of the First Amendment of the United States Constitution. Citing New York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), Business Week argued that it is irrelevant how it obtained the protected information because, once the press has obtained information, it is irrelevant whether it acquired it illegally. Alternatively, Business Week has argued that it obtained the information legally, even though it resisted a hearing.
Defendants and plaintiff have insisted that Business Week, with full knowledge of the protective order, obtained the confidential documents illegally and by duping a Bankers Trust attorney. Defendants have sought a permanent injunction prohibiting Business Week from publishing the court-protected confidential information.
IV. Findings of Fact
Business Week contends that the confidential documents (the memorandum in support of the motion to amend, the proposed amended complaint and the RICO case statement) fortuitously fell into its lap and that when this serendipitous event occurred, it was unaware of the protective order sealing these documents. Two days of evidentiary hearings have made it clear, however, that Business Week knew that these documents were sealed and unavailable while it actively attempted and eventually succeeded in procuring *189 them. During the evidentiary hearing there was uncontroverted testimony that Zachary Schiller, Cleveland Bureau Chief for Business Week, was aware of the protective order well before the sealed documents at issue were filed. Greg Rossiter, Supervisor of Corporate Communications for Procter & Gamble, testified that he and Schiller were in regular contact regarding Procter & Gamble's lawsuit against Bankers Trust. Rossiter testified that he discussed with Schiller the existence of the protective order in June and July 1995, when Schiller inquired about the filing of a writ of mandamus in the case. It is noteworthy that during his testimony Schiller did not deny he was so informed.
On August 31, Rossiter alerted Schiller to an unspecified, impending development in the case that he thought Schiller would find of interest for a story Schiller was preparing. Rossiter encouraged Schiller to look for a new filing in the case. Acting on this tip, Schiller sent a stringer, Joseph Levy, to the Clerk's Office of the U.S. District Court in Cincinnati, Ohio, on Wednesday, September 6. He instructed Levy to obtain any new filings in the Procter & Gamble case. Rossiter testified that Schiller called him on September 6 and stated that he had received a copy of the motion to amend from his stringer, but wanted to know if he could somehow obtain the documents attached to it. Rossiter stated that he informed Schiller that they were under seal and unavailable to the public.
Schiller denies that he was so reminded of the protective order or informed that the documents supporting the motion to amend were sealed. Schiller testified that the stringer was unable to obtain any documents until a second trip to the courthouse on September 7. He claims that he only called Rossiter on September 6 to inquire as to whether any new filings had actually occurred because Levy was having difficulty acquiring the documents.
Levy testified that he had experience in obtaining court documents but inexplicably had problems when he went to the courthouse on September 6. He stated that he went to the District Court Clerk's Office four times on the afternoon of September 6. He stated that the first time he was told there were no new filings. On the second visit, he was told that there was a motion but that the Clerk's Office did not have "any papers on it." On the third visit, after calling Schiller and again being told to get the new filing, Levy testified that the clerk "basically said that the papers had been lost or not exactly lost, that they weren't readily available, that they were somewhere in the court building floating around essentially." Transcript of Sept. 27, 1995 Proceedings (Tr.) at 36. Levy stated that he then stepped out, got a drink of water, and that "they located some papers" and "[w]hen I got back they handed me three pieces of paper with the motion." Id. at 36. Levy claims he then called Schiller and read the motion to him over the phone.
This perplexing testimony is further complicated by Levy's admitted review of the docket sheet in this case. Levy testified that on his second visit to the Clerk's Office he and a clerk reviewed the docket sheet on a computer screen. While it is hard to believe that Levy, as a professional journalist, did not notice that the docket sheet showed that the new filing was filed under seal, it is incomprehensible that the court clerk would have missed this capitalized notation and not so informed Levy.
Levy further testified that Schiller called him on Thursday, September 7, and requested that he return to the district court to obtain the documents attached to the motion to amend. He stated that when he returned that afternoon, he was informed that the documents were sealed and unavailable. He also testified that he informed Schiller of this reality that same afternoon. Therefore, even if one does accept the dubious testimony of Levy, the Cleveland Bureau Chief for Business Week, Schiller knew the documents at issue were sealed as of September 7, six full days before this court was compelled to enter its temporary restraining order.
The testimony of Schiller is even less credible than that of Levy. In response to important questions Schiller was either equivocal or simply stated he could not "recall" *190 what his conduct had been.[1]
Schiller's testimony was also compromised by the contradiction between his testimony and his actions. He testified that he would have taken seriously the protective order if he had been aware of it. However, when he learned that the documents were sealed, he did not so inform the reporters working on the case because he was too busy doing other things and because the story had a low priority, even though he knew that at least one of them, Linda Himelstein, was actively attempting to obtain the documents.
Schiller claimed that he was preparing for an interview for an unrelated story and for a two and one-half day trip to San Francisco. Yet, this was four days before Schiller was to leave for California. On Wednesday, September 6, and Thursday, September 7, Schiller admittedly was in constant contact with his reporters. He also called attorneys for plaintiff on September 6 and 7 in an admitted attempt to get the documents. He even emailed one of the reporters and informed her that "[o]ne way or another, we'll get the P & G filing." Finally, Schiller gave no reason as to why on Friday, September 8, and Saturday, September 9, he could not inform his reporters of the protective order, even though he was in his office on both days.
The sealed documents in this case were actually obtained by Himelstein. She testified that she acquired the documents on behalf of McGraw-Hill from a "confidential source" on Tuesday, September 12. Himelstein, an accomplished legal reporter who has written hundreds of stories regarding business and the law, acknowledged that she knew what protective orders are and that 99.9% of pleadings are public documents. Given this understanding, it is not difficult to understand why she would turn to "confidential sources" to procure documents after Schiller had informed her that he could not obtain the documents.
On the second day of hearings, September 27, it was learned that this confidential source was Steven Holley, a partner in the law firm of Sullivan & Cromwell. While Sullivan & Cromwell represents Bankers Trust in the Procter & Gamble suit, Holley was not working on the case. Himelstein called Holley, a person with whom she had previously become acquainted, chatted a while, and then off-handedly asked if he had a copy of the Bankers Trust complaint that contained the RICO claim. He said no, but since it was a pleading, he was confident he could find one. Holley called an associate on the case, Richard Pepperman, and requested *191 a copy of the complaint. Pepperman did not indicate the document was sealed, Holley picked it up, and then left it for a courier from Himelstein. Notwithstanding this bizarre development, Business Week still continues disingenuously to say that it did not know it was dealing with court-protected materials.
With these findings, I conclude that Business Week was aware of the protective order before it obtained the sealed documents and that Business Week actively sought to obtain the sealed documents while it knew of the protective order. Moreover, Schiller's knowledge and intent concerning the protective order and the sealed documents are properly imputed to Business Week. It is well settled that notice to an agent, while acting for his principal, as to facts affecting the character of the transaction, is constructive notice to the principal. Restatement (Second) of Agency § 268. Similarly, knowledge acquired by an agent acting within the scope of his authority is imputed to the principal. Restatement (Second) of Agency § 272.
The U.S. Court of Appeals for the Sixth Circuit has applied these rules in holding that corporations may be held liable for the acts of employees, even in the criminal context. In Continental Baking Co. v. United States, 281 F.2d 137 (6th Cir.1960), a case involving illegal price-fixing, the Sixth Circuit held a corporation liable for the acts of a plant manager who had authority over corporate prices in his district. The court explained that where there is "an officer or agent of a corporation with broad express authority, generally holding a position of some responsibility, who performs a criminal act related to the corporate principal's business," the corporation will be held liable "so long as the criminal act is directly related to the performance of the duties which the officer or agent has the broad authority to perform." Id. at 149. The court emphasized that a corporation "cannot divorce itself from its responsible agent to insulate itself from criminal prosecution." Id. at 150.
In United States v. Carter, 311 F.2d 934 (6th Cir.), cert. denied sub nom. Felice v. United States, 373 U.S. 915, 83 S.Ct. 1301, 10 L.Ed.2d 415 (1963), the Sixth Circuit noted that "a corporation, through the conduct of its agents and employees, may be convicted of a crime, including a crime involving knowledge and willfulness," so long as the agent's illegal acts are "related to and done within the course of his employment and have some connection with the furtherance of the business of such corporation." Id. at 941. The court concluded that the "knowledge and willfulness" of the defendant's president "must be charged" to the corporation, and explained: "The corporate person can only act and know through its officers, and the guilty knowledge and willful conduct of its chief executive officer will be charged to the corporate person." Id. at 942 (citing authorities).
The decisions in Continental Baking and Carter are two of many federal decisions which hold that corporations may be held criminally liable for unlawful acts of agents who were acting within the scope of their employment and with the intent to benefit the corporation.[2] Under such circumstances, the knowledge, willfulness, and intent of the agent are properly imputed to the corporation, and courts have so held.[3]
The rules holding that an agent's knowledge, willfulness and intent are properly imputed to his principal are equally applicable to claims that a corporation has acted in violation of a judicial order or decree. In United States v. Cable News Network, 865 F.Supp. 1549 (S.D.Fla.1994), for example, the court held that, based on the acts of its employees, CNN "knowingly and wilfully violated the court's restraining order." Id. at 1564. To similar effect, in United States v. *192 Twentieth Century Fox Film Corp., 882 F.2d 656 (2d Cir.1989), cert. denied, 493 U.S. 1021, 110 S.Ct. 722, 107 L.Ed.2d 741 (1990), the court held a corporation liable for the knowing and willful conduct of the manager of a Midwest branch office which violated a consent decree. The court found ample evidence that the branch manager had "willfully violated the consent decree while acting within the scope of her authority," noted that "a corporation may be held criminally responsible for antitrust violations committed by its employees or agent acting within the scope of their authority," and found "no reason to establish higher standards of proof" for violations of judicial decrees." Id. at 658-60.
V. Conclusions of Law
Because of my findings of fact in this case, I conclude as a matter of law that Business Week cannot be permitted to use the confidential materials it obtained to publish its story. Business Week knowingly violated the protective order and is thus not entitled to any relief.
Business Week argues that it is irrelevant how they obtained the confidential information. It contends that once information is acquired by the press, it is a prior restraint in violation of the First Amendment for this court to prohibit immediate publication. However, the Supreme Court, in Seattle Times v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), specifically addressed whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process. The Court held that where a protective order is entered on a showing of good cause, is limited to the context of pretrial discovery, and does not restrict the dissemination of the information if it is gained from sources other than protected discovery, it does not offend the First Amendment.
In addressing plaintiff's prior restraint argument, the Court first noted that "[f]reedom of speech ... does not comprehend the right to speak on any subject at any time." Seattle Times, 467 U.S. at 31, 104 S.Ct. at 2206, quoting American Communications Assn. v. Douds, 339 U.S. 382, 394-95, 70 S.Ct. 674, 681-82, 94 L.Ed. 925 (1950). The Court then stated that "an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny," 467 U.S. at 33, 104 S.Ct. at 2208, because "such a protective order prevents a party from disseminating only that information obtained through use of the discovery process." Id. at 34, 104 S.Ct. at 2208. Twice in its opinion the Supreme Court stressed the unique character of the discovery process, Seattle Times, 467 U.S. at 34 and 36, 104 S.Ct. at 2208 and 2209. In so doing, it emphasized that "[l]iberal discovery is provided for the sole purpose of assisting in the preparation and trial, or settlement, of litigated disputes." 467 U.S. at 34, 104 S.Ct. at 2208.
The Court posited the following test to determine when judicial action to prevent the dissemination of information, which has been obtained pursuant to court-ordered discovery, is constitutional:
If the judicial practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression and if the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved, such judicial action is constitutional.
Seattle Times, 467 U.S. at 32, 104 S.Ct. at 2207. It is therefore necessary to consider whether the protective order furthers a substantial governmental interest unrelated to the suppression of expression and whether my order prohibiting Business Week's publication is no greater than is necessary to protect that substantial interest.
I find that the protective order which Judge Rubin had entered in this case served a substantial governmental interest because it facilitated efficient pretrial discovery of sensitive material without extensive court involvement. The protection afforded to the parties to maintain the privacy of this information permitted full inter-party disclosure, a prerequisite in our modern adversarial process.
*193 Moreover, my order prohibiting Business Week's publication of the confidential discovery is not a greater limitation than is necessary to protect the substantial government interests in efficient pretrial discovery and the sanctity of court orders. The efficient administration of discovery necessitates that I be able to prevent Business Week from publishing what never would have existed independently of the discovery process. If the parties to litigation cannot rely on the protective orders of a court, they will surely resist discovery of sensitive information. The burdensomeness of pretrial discovery is well documented; permitting publication of unlawfully obtained and protected discovery information can only make this situation substantially worse.
In addition, I cannot permit Business Week to snub its nose at court orders. Business Week was aware of the protective order in this case but nevertheless continued to pursue the sealed information. The integrity of a court and the entire judicial system requires that its orders be acknowledged and obeyed. To make an exception for Business Week will render future orders of this court of questionable validity and effect.
Thus, I conclude that Business Week may not use the confidential materials that it obtained unlawfully. However, this does not end the matter. In a companion Opinion and Order, entered on this same date and time, I have held and ordered that Procter & Gamble may amend its complaint to include a RICO count. In granting this motion, I have concluded that the memorandum in support of the motion to amend, the proposed amended complaint, the RICO case statement, and Bankers Trust's opposition papers to the motion to amend become a part of the public record. Hence, while I am here holding that Business Week cannot publish the information it obtained illegally and in violation of a protective order, this same information has independently become a part of the public record and may be disseminated by anyone so interested.
In the companion Opinion, I ordered that it not become effective until October 3, 1995 at 4:00 p.m. I likewise hold that this Order will not become effective until that same time and date, namely October 3, 1995 at 4:00 p.m.
IT IS SO ORDERED.
NOTES
[1] Q. Have you attempted to obtain, in other matters, documents that you knew were filed under seal?
A. I'm not sure. Not that I can recall exactly. I have seen certain documents under seal, just the outsides of them, but no.
THE COURT: Ever?
THE WITNESS: Well maybe I don't understand the question properly.
THE COURT: Put it to him again.
Q. Yes. Have you ever, not in this case, but in any matter, when you have been advised that something was filed under seal, have you continued to attempt to obtain them?
A. I really can't recall. Not that I remember. It's possible, but I don't remember ever trying to do that exactly.
Q. In fact, you take seriously, if a protective order is in place and documents are filed under seal in a court, you wouldn't attempt to go behind that, would you?
A. No. Generally, I wouldn't.
THE COURT: What does "generally" mean?
THE WITNESS: Well, it means hard to predict my course of conduct in the future of every instance that I might be confronted with. I don't think I would do that, no.
Tr. at 81-82.
....
Q: When did you first disclose to anyone in New York that these documents were under seal?
A: It was sometime, sometime on the 13th. I imagine it was, I don't know, late morning or something. I don't really remember when exactly I told them.
Q: So it's your testimony that you had conversations with Kelley Holland or perhaps others in New York before you disclosed to them that these documents were under seal?
A: Well, I probably mentioned it to her. I can't recall. We had a whole variety of conversations that day, and exactly when we might have discussed this in detail I can't recall.
Q: In the deliberative process leading up to the decision to publish that evening, did you disclose to anyone in New York that as early as September 7th you knew that the documents that had been obtained were under seal?
A: I don't recall telling them that then. I really don't remember.
THE COURT: You think you might have?
THE WITNESS: I doubt it, but I'm not sure really. (Emphasis added)
Id. at 92-93.
[2] See, e.g., United States v. Automated Medical Laboratories, Inc., 770 F.2d 399 (4th Cir.1985); United States v. Gold, 743 F.2d 800 (11th Cir. 1984), cert. denied 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985); United States v. Bi-Co Pavers, Inc., 741 F.2d 730 (5th Cir.1984); United States v. Demauro, 581 F.2d 50 (2d Cir.1978).
[3] See, e.g., United States v. Investment Enterprises, 10 F.3d 263, 267 (4th Cir.1985); United States v. Bank of New England, N.A., 821 F.2d 844, 856-57 (1st Cir.1987), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 356 (1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262001/ | 900 F.Supp. 1520 (1995)
Mary L. ROBERTSON, Plaintiff,
v.
Shirley S. CHATER, Commissioner of Social Security.[1]
No. 94-4226-SAC.
United States District Court, D. Kansas.
August 11, 1995.
*1521 *1522 *1523 Patrick H. Donahue, Kansas Legal Services, Inc., Topeka, KS, Judith A. Jones, Hiawatha, KS, for plaintiff Mary Robertson.
Melanie D. Caro, Office of United States Attorney, Topeka, KS, for defendant HHS Secretary, Donna Shalala.
MEMORANDUM AND ORDER
CROW, District Judge.
This is an action to review the final decision of the Secretary of Health Human Services [42 U.S.C. § 405(g)] denying disability insurance benefits to the plaintiff, Mary L. Robertson. The case is ripe for decision on the plaintiff's motion for summary reversal or remand (Dk. 9) and on the Secretary's motion for an order affirming the Secretary's decision (Dk. 10).[2]
PROCEDURAL HISTORY
On August 21, 1992, Robertson filed her application for disability insurance benefits alleging she was unable to work as of July 12, 1991, because of a torn rotator cuff. Her claim was denied initially and on reconsideration. At the hearing on December 3, 1993, before the administrative law judge ("ALJ"), Robertson appeared with a representative who was not an attorney. Following the hearing, the ALJ issued his decision on February 19, 1994, finding that Robertson was not under a "disability" at any time from the alleged onset date through the date of the ALJ's decision. With the aid of an attorney, Robertson requested review before the Appeals Council. Robertson submitted arguments and additional evidence consisting of Dr. Richard Wendt's treatment notes and Lawrence Memorial Hospital's records from her admissions in January and May of 1994. After considering the argument and new evidence, the Appeals Council on September 23, 1994, denied Robertson's request for review. Thus, the ALJ's decision stands as the Secretary's *1524 final decision. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.1994) (citing See 20 C.F.R. § 404.981).
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is more than a scintilla and is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 1427-28, 28 L.Ed.2d 842 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). "A finding of `"no substantial evidence" will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."'" Trimiar v. Sullivan, 966 F.2d 1326, 1328 (10th Cir.1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir. 1973)). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.1994) (citation omitted).
The court's review also extends to determining whether the Secretary applied the correct legal standards. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). Besides the lack of substantial evidence, reversal may be appropriate when the Secretary uses the wrong legal standards or the Secretary fails to demonstrate reliance on the correct legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994).
The court's duty to assess whether substantial evidence exists:
"is not merely a quantitative exercise. Evidence is not substantial `if it is overwhelmed by other evidence particularly certain types of evidence (e.g., that offered by treating physicians) or if it really constitutes not evidence but mere conclusion.'"
Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985)). The court is not to reweigh the evidence or substitute its judgment for the Secretary's. Glass v. Shalala, 43 F.3d at 1395. The court typically defers to the ALJ on issues of witness credibility. Hamilton v. Secretary of Health & Human Services, 961 F.2d 1495, 1498 (10th Cir.1992). The courts, however, do not mechanically accept the Secretary's findings. Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D.Kan.1985); see Ehrhart v. Secretary of Health & Human Services, 969 F.2d 534, 538 (7th Cir.1992) ("By the same token, we must do more than merely rubber stamp the decisions of the Secretary." (citation omitted)). Nor will the findings be affirmed by isolating facts and labelling them substantial evidence, as the court must scrutinize the entire record in determining whether the Secretary's conclusions are rational. Holloway v. Heckler, 607 F.Supp. 71, 72 (D.Kan.1985). "`We examine the record as a whole, including whatever in the record fairly detracts from the weight of the Secretary's decision and, on that basis determine if the substantiality of the evidence test has been met.'" Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir.1994) (quoting Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800-01 (10th Cir.1991)); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951).
Any new evidence submitted to the Appeals Council and considered by it in denying a request for review becomes a part of the administrative record. O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994); Jones v. Sullivan, 804 F.Supp. 1398, 1404 (D.Kan. 1992). Thus, the court reviews the ALJ's decision for substantial evidence considering not only the evidence before the ALJ but also the evidence first submitted to the Appeals Council. Id.
For evaluating a claim of disability, the Secretary has developed a five-step sequential process. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290-91, 96 L.Ed.2d 119 (1987). This process comes to an end if at any point the Secretary determines the claimant is disabled or not. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir.1993). The first four steps are not at issue in this appeal. The ALJ denied benefits here at step five. Once the claimant proves his disability prevents him from engaging in his prior work for a continuous *1525 period of twelve months, the burden shifts to the Secretary to show that the claimant has the residual functional capacity ("RFC") to do other work that exists in the national economy. Thompson, 987 F.2d at 1487. RFC is "what the claimant can still do despite his ... limitations." Id. The Secretary satisfies this burden of proving RFC and existing jobs if substantial evidence supports her findings. Id.
ALJ'S DECISION
In his order of February 19, 1994, the ALJ made the following findings:
1. The claimant met the earnings requirements of the Act on July 12, 1991, the date she stated she became unable to work, and continued to meet them through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since July 12, 1991.
3. The medical evidence establishes that the claimant has the following severe impairments: is status post a right acromioplasty and repair of a rotator cuff tear, has small internal hemorrhoids, is status post angioedema of the left eye, degenerative joint disease of the lumbar spine and some mild spinal stenosis. Nevertheless, she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's testimony and that of her witness is not found credible when considered in light of the medical signs and findings, history of medical treatment, reports of treating and examining physicians and the inconsistencies in the claimant's testimony, all of which is discussed more fully in the Rationale section of this decision.
5. The claimant has the residual functional capacity to perform work-related activities except for work involving lifting or carrying more than 20 pounds maximum occasionally and 10 pounds frequently, reaching overhead and requiring a sit$stand option at the claimant's discretion (20 CFR 404.1545).
6. The claimant is unable to perform her past relevant work as a machine operator.
7. The claimant is 52 years old, which is defined as a individual closely approaching advanced age (20 CFR 404.1563), and she has a high school education (20 CFR 404.1564).
8. The claimant has no acquired work skills which are transferable to the skilled or semi-skilled work functions of other work within her residual functional capacity (20 CFR 404.1568).
9. After considering the vocational expert's testimony in conjunction with the claimant's above described residual functional capacity for less than the full range of light work and her age, education, past relevant work and nonexertional impairments, the undersigned Administrative Law Judge is persuaded that the claimant would be able to make a vocational adjustment to work which exists in significant numbers in the local and national economies.
10. The claimant has not been under a "disability," as defined in the Social Security Act, as amended, at anytime since her alleged onset date of disability of July 12, 1991, and through the date of this decision (20 CFR 404.1520(f)).
(Tr. 19-20). Robertson argues the ALJ failed to develop an adequate record, failed to consider the total limiting effects of her different impairments, erred in evaluating the limiting effects of her pain, erred in evaluating her credibility, and erred in assessing the impact of her nonexertional limitations. As background to its discussion of these different issues, the court summarizes the events and medical records relevant to them.
FACTS
At the time of the hearing, Robertson was a fifty-two year old woman who had been married to her husband for thirty-two years. From 1969 until her on-the-job injury on July 12, 1991, Robertson had worked at Hallmark. Her last job assignment at Hallmark involved operating a packaging machine.
In July of 1991, Robertson strained her right arm. She was put on light duty and *1526 seen by her treating physician, Dr. Sosinski. Hallmark referred her to Dr. Delgado. Conservative medical treatment did not alleviate the problems in Robertson's right shoulder. An arthrogram revealed a torn rotator cuff. In October of 1991, Dr. Delgado surgically repaired the torn rotator cuff. After a couple of weeks, Dr. Delgado referred Robertson to physical therapy. Later in November, Robertson returned to light-duty work.
In January of 1992, Dr. Delgado recorded that Robertson's motion in her shoulder was improving with less pain and better strength. Dr. Delgado expected she would be able to return to regular work activity in a month. In February, Robertson still complained of shoulder pain associated with work, so the light duty restrictions were not lifted. The next month, Robertson was subjected to complete isometric upper extremity testing and a bilateral range of motion shoulder study. The results showed "poor endurance for sustained activities" and identified her most difficult problem in the right shoulder "with pain an obvious limiting factor." (Tr. 151). In July 1992, Dr. Delgado apparently concluded his treatment of Robertson noting "excellent" range of motion, "adequate strength," and "no crepitation." He further observed:
She could [be] strengthening it but at this point I doubt if Ms. Robertson is motivated to return to work activities. She had no other complaints related to the arm neck and normal neurological evaluation. She had no clinical atrophy, fasciculations or fibrillations and no particular tenderness in the shoulder.
(Dk. 155). Robertson filed against Hallmark a worker's compensation claim that was eventually settled. After months of light duty work, Robertson testified that her shoulder prevented her return to Hallmark.
Beginning in April of 1992, Robertson apparently saw William Miller, a chiropractor, for pain complaints in the lower back, neck and rotator cuff. The records obtained from Miller do not show the number or frequency of Robertson's visits or the treatment received. Miller opined in a letter dated November 24, 1993, that Robertson's condition prevents her from returning "to any type employment." (Tr. 208).
In July of 1992, Robertson was admitted to Lawrence Memorial Hospital on complaints of chest pain. A chest x-ray, blood tests, and a cardiac enzyme did not yield any abnormal results of concern.
In 1987, Robertson was referred to Dr. Richard Sosinski for chest pains, and his records suggest that he then became her regular treating physician. In her disability report, Robertson identified Dr. Sosinski as her "regular doctor." (Tr. 116). In May of 1987, Dr. Sosinski concluded that Robertson's chest pains were "probably muscular with a large anxiety component." He prescribed medications for the anxiety. In July of 1991, Dr. Sosinski treated her for rectal bleeding caused by internal hemorrhoids. In September of 1992, the plaintiff visited Dr. Sosinski for swelling of her left eye. He treated the condition as allergic and it eventually improved. In October of 1992, Robertson complained of left flank pain, and he conducted various procedures to rule out renal and gastrointestinal causes of the pain.
In January of 1993, the psychiatric consultant in this case contacted Dr. Sosinski to discuss Robertson's anxiety problems for which he had prescribed Xanax. The notes from that contact state:
He [Dr. Sosinski] indicated that her [Robertson's] anxiety was related to her concern about the significance of symptoms she has had involving various organ systems including her back, shoulder, kidneys, heart and colon. He also indicated that her anxiety has not been of major significance as far as her being able to work is concerned.
(Tr. 192). Another consultant contacted Dr. Sosinski in February of 1993 with regards to Robertson's back problems:
Dr. Sosinski did indicate that he had seen Ms. Robertson recently. He did not feel she had any major problem with her ability to stand and walk. She was having back pain which was somewhat different than the flank pain that he had evaluated her for in the past. He estimated her range of motion to be somewhat restricted to approximately 70 to 80 degrees.
*1527 (Dk. 193). Dr. Sosinski was last contacted in August of 1993, and the notes from that contact, signed by Dr. Sosinski, read:
Mary Robertson is a 51-year-old White female who I have seen at first as a consultant and then as her primary care physician since 1987. She has had a few medical problems. When I first saw her she was having chest pain, but ended up having normal coronary angiography in 1987. She also later on several years ago had some bright red rectal bleeding, but work-up was likewise negative and included colonoscopy. She has had a history of osteoarthritis mostly affecting her back, but has not had radicular signs or symptoms. An MRI scan showed some mild spinal stenosis and no herniated disc or nerve root compression. She also recently, on 7-12-93 had an auto accident with a whiplash injury, but has not followed up and I presume feels reasonably well from that. She is a very anxious lady and has had some difficulty with anxiety over the years. She has no known cardiac, pulmonary or renal disease or any other serious disease of which I am aware.
I believe that she is able to do work-related activities such as sitting, standing, moving about, handling objects. Hearing, speaking and traveling are no problem and there is no evidence of mental impairment or ability to reason, to make occupational, personal or social adjustments. She should not lift or carry more than 20 pounds and should not do frequent stooping or lifting. Should there be any further questions, please contact me.
(Dk. 200).
In April of 1993, Robertson began seeing Dr. Richard Wendt for her back pain in the low lumbar area and leg pain. Dr. Wendt noted that the x-rays showed some changes at L5-S1 but they were not very significant degenerative changes. Dr. Wendt prescribed an epidural block, changed her pain medicine, and referred her to therapy. His notes showed that this treatment improved her conditions somewhat but that on follow-up examinations she still complained of the same or similar problems. Medical notes show two other epidural blocks were given and the pain medications were changed several times.
In January of 1994, Robertson was briefly admitted to Lawrence Memorial Hospital on complaints of chest pain with considerable anxiety. On admission, it was believed her pain was musculoskeletal but angina needed to be ruled out. Later tests showed no myocardial injury, and she was released with no observed substernal chest pain. In May of 1994, Robertson again appeared at the emergency room with similar complaints of chest pain and was admitted for observation. She was initially assessed as having a history of anxiety disorder.
At the hearing held on December 3, 1993, Robertson testified she left Hallmark because of "pain with my back, shoulder and the anxiety attacks." (Tr. 33). She described these anxiety attacks as when "I just get kind of disoriented and hyperventilating." (Tr. 33). Robertson said she could not work now because she was in "pain all the time" that was located in her "back, arm, shoulders and neck." (Tr. 34).
The ALJ described light duty work and asked if she thought she could do it. Robertson answered "I don't think I could do it" offering that she "couldn't concentrate." (Tr. 34). Robertson then explained her concentration problem in these terms: "I don't know. It seems like I don't know if it's old age or what, but I just seem to lose my concentration a lot my train of thought or what I when I start talking, I and I sometimes blame it on the medication but I don't know." (Tr. 35). The ALJ later repeated his question whether she could do light duty work, and Robertson answered: "Because of the pain and the I'd have to keep moving and I don't think I could keep my concentration on what I was doing." (Tr. 36).
As far as Robertson's daily activities, she testified to being able to drive, attend church and do housework. Robertson offered that driving in unfamiliar places caused her anxiety and that walking very far was a problem. In the forms she completed in September of 1992 on her daily living activities, Robertson said she washed small loads of laundry every day. Her washing machine and dryer are located in the basement. Her husband helps with the more strenuous housework like vacuuming and carrying the larger loads of laundry. Robertson reported that she goes shopping *1528 nearly every day because she can carry only one sack of groceries. She plays golf with her husband on occasion. She also reported that she sometimes walks two miles in the morning and in the winter months sometimes walks three miles in the high school gym. She is able to carry her grandchildren but only with her left arm.
Robertson's husband testified that he believed his wife's testimony had been true and correct. The ALJ then asked him if he knew of any work that his wife could do. He answered: "Well, there's probably a lot of them. But it would be something where couldn't lift or be hard to find, I would think." (Tr. 39). The ALJ followed up with a question whether he thought his wife could handle a job answering the telephone. He answered: "I'd think it would be all right. I don't know exactly how she feels, but I would think she could do something like that." (Tr. 39).
The final witness to testify at the hearing was Janice Hastert, a vocational rehabilitation consultant. The ALJ posed a hypothetical question that assumed certain uncontested facts and the following:
[I]f I find further that this claimant has impairments that include a past history of injury to her right shoulder and difficulties with her back and neck her arms and shoulders and considering her impairments, the claimant would be limited in her work activities to work where she would not have to lift at a maximum anything in excess of 20 pounds and perhaps at the most 10 pounds of lifting with any frequency and if I should find further that the claimant would be precluded from doing jobs that would involve lifting overhead or reaching overhead because of her shoulder impairment and that, further, this claimant would need an opportunity to sit or stand at her work activity, at least for a good bit of the work day. Given those limitations, what kind of jobs could such an individual do?
(Tr. 41-42). Ms. Hastert answered that possible jobs include doorkeeper, photocopy machine operation, and small bench assembly positions. Hastert also testified that a concentration problem or an attendance problem would prevent the person from performing competitive employment.
MERITS
Robertson first argues the ALJ failed to develop an adequate record on her anxiety problems. She principally contends that the ALJ erred in not following the special procedures for evaluating mental impairments, in not ordering a consultative psychiatric examination, and in not developing a sufficient record for evaluating the severity of this nonexertional limitation.
"When a record `contains evidence of a mental impairment that allegedly prevented claimant from working, the Secretary is required to follow the procedure for evaluating the potential mental impairment set forth in his regulations and to document the procedure accordingly. See 20 C.F.R. § 404.1520a'" Andrade v. Secretary of Health and Human Services, 985 F.2d 1045, 1048 (10th Cir.1993) (quoting Hill v. Sullivan, 924 F.2d 972, 975 (10th Cir.1991) (citing See 20 C.F.R. § 404.1520a)).[3] This procedure works in conjunction with the process used for evaluating physical impairments and ensures "that all evidence needed for the evaluation of a claim which involves a mental impairment is obtained and evaluated." Hargis v. Sullivan, 945 F.2d 1482, 1487 (10th Cir.1991).
The procedure requires first a careful review of the case record to determine if a *1529 mental impairment exists. 20 C.F.R. § 404.1520a(b)(1). At this stage, the procedure requires the Secretary "to record the pertinent signs, symptoms, findings, functional limitations, and effects of treatment contained in ... [the] case record." 20 C.F.R. § 404.1520a(b)(1). Upon finding a mental impairment, the Secretary must:
determine the presence or absence of `certain medical findings which have been found especially relevant to the ability to work,' sometimes referred to as the `Part A' criteria. 20 C.F.R. § 404.1520a(b)(2). The Secretary must then evaluate the degree of functional loss resulting from the impairment, using the `Part B' criteria. 20 C.F.R. § 404.1520a(b)(3).
Cruse v. United States Department of Health and Human Services, 49 F.3d 614, 617 (10th Cir.1995).
The Secretary must record her conclusions on a standard document. Id. "A standard document ... must be completed ... in each case at the initial, reconsideration, [and] administrative law judge hearing ... levels." 20 C.F.R. § 1520a(d). See also Montgomery v. Shalala, 30 F.3d 98, 99 (8th Cir.1994). This standard document is called a Psychiatric Review Technique Form (PRT form) that tracks the listing requirements and evaluates the claimant under the Part A and B criteria. Cruse, 49 F.3d at 617. "At the ALJ hearing level, the regulations allow the ALJ to complete the PRT form with or without the assistance of a medical advisor and require the ALJ to attach the form to his or her written decision." Id. (citing Woody v. Secretary of Health and Human Services, 859 F.2d 1156, 1159 (3d Cir.1988)).
Robertson alleges a mental impairment and the record contains evidence of one. Dr. Sosinski's notes are replete with references to Robertson's anxiety problem. In 1987, he observed a "large anxiety component" to her complaints. (Tr. 181). Robertson's principal complaint at that time was chest pains, and Dr. Sosinski had noted that the chest pain and radiating pressure had interfered with her daily activities and her work. (Tr. 185). In 1987, Dr. Sosinski prescribed Xanax for her anxiety problem. The record shows that Robertson continues to take Xanax on as needed basis for anxiety attacks. (Tr. 112). In 1993, Dr. Sosinski said, "[s]he is a very anxious lady and has had some difficulty with anxiety over the years." (Tr. 200). In 1994, Robertson was admitted twice to the hospital on complaints of chest pain. The physicians noted "considerable anxiety" and assessed her condition as in part due to an anxiety disorder. The ALJ did not consider the 1994 hospital admissions in his decision, but this evidence was presented to the Appeals Council and is considered part of the administrative record. See Jones, 804 F.Supp. at 1404. At the reconsideration level, a psychiatric consultant, Arthur Hoyt, M.D., completed a PRT form showing that Robertson suffered from a mental impairment he diagnosed as a somatoform disorder but that the mental impairment was not severe.
The evidence here of Robertson's mental impairment is more than her own subjective testimony unsupported by any objective medical evidence. See Howell v. Sullivan, 950 F.2d 343, 348 (7th Cir.1991); Shields v. Sullivan, 801 F.Supp. 151, 158 (N.D.Ill.1992). Nor can the evidence of Robertson's mental impairment be ignored as "minimal references." See Sloan v. Shalala, No. 93-6314, 1994 WL 325416, at *4, 1994 U.S.App. LEXIS 16925, at *11 (10th Cir. July 7, 1994). The record plainly contains enough evidence of a mental impairment to trigger the special procedure for evaluating a mental impairment.
The ALJ did not complete and attach to his decision a PRT form. The ALJ did not ask a medical consultant to complete a PRT form. The ALJ's written decision does not substantially track the special procedure required for mental impairments.[4] Because *1530 the procedure was not followed, the court is unable to determine if substantial evidence supports the ALJ's decision. See Anthis v. Shalala, No. 92-1533-FGT, 1995 WL 311753, at *4, 1995 U.S.Dist. LEXIS 6851, at *10-*11 (D.Kan. Apr. 4, 1995). The court must remand the case for proper and full consideration of Robertson's mental impairment, singularly and in combination with her physical impairments. See Hill v. Sullivan, 924 F.2d 972, 975 (10th Cir.1991).
Robertson argues the ALJ erred in not obtaining a consultative examination when the record has conflicting diagnoses of anxiety disorder and somatoform disorder. The pertinent inquiry is "whether the record contained sufficient medical evidence for the [Secretary] to make an informed decision as to [claimant's] alleged mental impairment," without the need for a consultative psychological examination. Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir.1989); accord Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977) ("To be very clear, `full inquiry' does not require a consultative examination at government expense unless the record establishes that such an examination is necessary to enable the administrative law judge to make the disability decision."). In every social security case, the ALJ has a basic duty to see that an adequate record is developed on which to decide the issues raised. Henrie v. United States Dept. of Health & Human Services, 13 F.3d 359, 360-61 (10th Cir.1993). The ALJ's duty "is one of inquiry, ensuring that ... [he] is informed about `facts relevant to his decision and learns the claimant's own version of those facts.'" Id. at 361 (quoting Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.1987)). This duty exists whether or not the claimant is represented by counsel. Henrie, 13 F.3d at 361.
The court believes there is a serious issue whether the ALJ can make an informed decision about Robertson's mental impairment without a consultative psychological examination. The medical records from Dr. Sosinski are incomplete with regards to his diagnosis and medical treatment of the anxiety disorder, and his recorded statements are really nothing more than bare conclusions. The evidence of record seems insufficient for drawing any reliable inferences about the frequency or severity of the anxiety attacks, the effectiveness of the prescribed medications, the impact of the anxiety problems on daily activities, the possibility of a somatoform disorder, and her alleged concentration problems. On remand, the court directs that a consultative psychological examination be conducted.
In light of the necessary remand, the court will discuss Robertson's other arguments in a cursory manner. On remand, the court expects the written decision will address the new evidence obtained through the consultative examination, as well as Dr. Wendt's treatment notes and the recent hospitalizations. Such evidence is relevant in considering the total limiting effect of plaintiff's different conditions, in assessing Robertson's mental impairment, and in evaluating the credibility of her pain testimony. In light of the new evidence, it may be necessary for the ALJ to obtain additional testimony from a vocational expert.
IT IS THEREFORE ORDERED that Robertson's motion for summary reversal or remand (Dk. 9) is denied in part and granted in part, and the Secretary's motion for an order affirming the Secretary's decision (Dk. 10) is denied.
IT IS FURTHER ORDERED that the Secretary's decision is reversed, and the case is remanded to the Secretary for additional proceedings consistent with this opinion.
NOTES
[1] Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. P.L. No. 103-296. The court hereby substitutes the Commissioner for the Secretary in the caption of this case. In the body of the order, however, the court will still refer to the Secretary who was the acting party in the underlying proceedings.
[2] The parties appear to have followed D.Kan. Rule 503 which provides for the filing of "an appropriate dispositive motion and memorandum" for a social security appeal. The Tenth Circuit in Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579 n. 29 (10th Cir.1994), disapproved this rule and, specifically, the motion practice under it. The court is in the process of changing D.Kan.Rule 503 to comply with the holding in Olenhouse and to conform with Fed. R.App.P. 15. For purposes of the present appeal, the court attaches no legal significance to the dispositive motions that accompany the parties' memoranda. The court intends to follow the well-established standard of review for social security appeals and to rely only on what evidence is found within the administrative record.
[3] In a recent case, this court also enunciated the rule that "whenever an adult claimant alleges a mental impairment, `a special procedure must be followed ... at each level of administrative review.' 20 C.F.R. §§ 404.1520a(a) and 416.920a(a)." Tibbits v. Shalala, 883 F.Supp. 1492, 1498 (D.Kan.1995); see also Montgomery v. Shalala, 30 F.3d 98, 99 (8th Cir.1994). There will be social security cases where a claimant alleges a mental impairment but the record is devoid of any evidence. See, e.g., Sloan v. Shalala, No. 93-6314, 1994 WL 325416, at *3-4, 1994 U.S.App. LEXIS 16925, at *10-*11 (10th Cir. July 7, 1994). Of course, the converse can also happen where the claimant does not allege a mental impairment yet the evidence suggests the possibility of one. Since the ALJ has a duty to develop an adequate record, the court believes the better rule is that the special procedure is triggered by evidence of a mental impairment. This case, as with most social security cases involving a mental impairment, has both allegations and evidence.
[4] Indeed, the ALJ's discussion of Robertson's mental impairment consists mostly of citations to Dr. Sosinski's statements that Robertson's "anxiety had not been of major significance in regard to her ability to work" and that he saw "no evidence of a mental impairment or impairment in ability to reason, make occupational, personal or social adjustments." (Tr. 16). The ALJ cannot rely on the latter statement as conclusive proof that Robertson did not suffer from a mental impairment. Dr. Sosinski did not complete a PRT form, and the record does not show that he made this statement in contemplation of the governing social security regulations and procedures. Moreover, Dr. Sosinski's comment, when fairly read in context with the rest of his statement and his other statements and treatment notes, should be interpreted as just an opinion going to the severity of a mental impairment. The ALJ did comment that no examining or treating physician had observed that Robertson's "anxiety attacks would cause any significant difficulty in working." Since the ALJ did not follow the required procedure for evaluating mental impairments, this finding is not properly supported by the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262003/ | 900 F.Supp. 768 (1995)
HOME INSURANCE COMPANY
v.
Norman PERLBERGER, Esq.; Perlberger & Haft, P.C.; and Perlberger Law Associates,
and
Diane Strausser.
Civ. A. No. 95-2029.
United States District Court, E.D. Pennsylvania.
September 26, 1995.
*769 *770 Arthur W. Lefco, Victor M. Verbeke, Sherr, Joffe & Zuckerman, P.C., West Conshohocken, PA, for Home Insurance Company.
Norman Perlberger, Perlberger Law Associates, P.C., Bala Cynwyd, PA, pro se.
John M. Elliott, Mark J. Schwemler, Elliott, Reihner, Siedzikowski, North & Egan, P.C., Blue Bell, PA, James C. Schwartzman, Schwartzman & Associates, Philadelphia, PA, for Diane Strausser.
OPINION
LOUIS H. POLLAK, District Judge.
This action is one by a legal malpractice insurer, The Home Insurance Company ("Home"), a New Hampshire corporation with its principal place of business in New York, seeking a declaratory judgment that, pursuant to the terms of a malpractice policy entered into as of June 22, 1988, it need not indemnify or defend its insureds Norman Perlberger, Esq.; his present law firm (Perlberger Law Associates); and his previous law firm (Perlberger & Haft, P.C.) in an action brought against them in the Court of Common Pleas of Montgomery County, Pennsylvania by Diane Strausser, a former client. Strausser brought her lawsuit in March, 1992, and filed an amended complaint in September, 1994. On February 17, 1995, Home advised Perlberger that it would not indemnify him or his law firms for the claims set forth in the amended complaint. Home then, on April 7, 1995, filed the present diversity action against Perlberger, a citizen of Pennsylvania; his past and present law firms, also citizens of Pennsylvania; and against Strausser, a citizen of New Jersey, who has been deemed by Home to be an indispensable party.
I. Factual Background.
The allegations in Strausser's amended complaint in the Court of Common Pleas are that Perlberger, a divorce lawyer, had a romantic relationship with Strausser during his representation of her and subsequently influenced her use of the very large settlement that she received from her ex-husband. Strausser argues that Perlberger, either negligently or intentionally, induced her to manage her assets in ways that benefited him and disadvantaged her. For instance, she claims that he induced her to purchase a series of houses that she then had difficulties in selling, and on one of which the mortgage lender foreclosed. She also alleges that Perlberger's law firms benefited from Perlberger's misuse of her assets. Based on these allegations, Strausser makes five broad categories of claims legal malpractice, breach of contract, breach of fiduciary duty, fraud, and unjust enrichment against Perlberger, his present law firm, and his previous firm (hereinafter, "Perlberger and his law firms").
Home's complaint in this court grounds its disclaimer of any obligation to indemnify Perlberger on five independent arguments:
(a) "Prior Acts" exclusion. A separate endorsement to Home's policy states that losses resulting from claims "arising from any acts, errors, omissions, or personal injuries occurring or alleged to have occurred prior to 6-22-88" are excluded. See Prior Acts Exclusion Endorsement, Exhibit B to Home's Complaint. Home asserts, based upon this exclusion, that it need not indemnify Perlberger and his law firms for some or all of Strausser's claims.
(b) "Professional Services" provision. Home's policy states that it will only insure against claims made "by reason of any act, error or omission in professional services rendered or that should have been rendered by the insured ... and arising out of the conduct of the insured's profession as a lawyer or notary public." See Professional Liability Insurance Policy, Exhibit A to Home's Complaint. Home asserts that Perlberger and his law firms "did not render any professional services to Diane Strausser after June 22, 1988, which are alleged to have caused her any harm."
(c) "Wrongful Acts" provision. Home's policy states that it does not apply "to any judgment or final adjudication based upon or arising out of any dishonest, deliberately fraudulent, criminal, maliciously or deliberately wrongful acts or omissions committed by the insured. However, notwithstanding *771 the foregoing the Company will provide a defense for any such claims without any liability on the part of the Company to pay such sums as the Insured shall become legally obligated to pay as damages." Id. Home asserts that this exclusion bars it from liability for some or all of Strausser's claims.
(d) "Innocent Party" provision. Home's policy provides that it will provide coverage, despite the "wrongful acts" exclusion, as to persons "who did not personally commit or personally participate in" the commission of the wrongful act, provided that they comply with the terms of the exclusion after receiving notice of the failure of their co-insured to do so. Id. Home asserts that Perlberger's law firms "are not innocent parties, and ... were fully aware of the acts and omissions committed by Defendant Perlberger and personally participated in committing the dishonest, deliberately fraudulent and maliciously [sic] acts." Complaint, ¶ 20.
(e) Public policy. Home asserts that, as a matter of law, "it is against public policy to provide insurance coverage for the intentional acts set forth in Strausser's Amended Complaint."
Strausser has moved for judgment on the pleadings, asserting, inter alia, that Home's request for a declaratory judgment cannot be granted because the case is not ripe for judicial adjudication. Strausser also counterclaims for legal fees and costs, arguing that Home's action is frivolous and brought for an improper purpose.
The declaratory relief sought by Home can be divided into three categories: (1) a request for a declaratory judgment as to Home's duty to defend Perlberger, (2) a request for a declaratory judgment as to whether public policy and/or the "wrongful acts" and "innocent party" provisions of the malpractice policy free Home of any duty to indemnify Perlberger, and (3) a request for a declaratory judgment as to whether the "prior acts" and "professional services" provisions have the same effect. Each of these three requests fails, although for distinct reasons. The first request cannot succeed on its merits, at least at the present stage of the underlying litigation; the second request is not yet ripe for judicial adjudication; and the third request presents a substantial risk of interference with the pending state court proceedings, and hence constitutes a claim with respect to which this court exercises its discretion not to entertain a declaratory judgment action. Strausser's counterclaim also must fail, because there is no basis for an award of fees or costs under the applicable legal standard.
II. Duty to Defend.
Certain of Home's requested grounds for declaratory relief its "wrongful acts," "innocent party," and public policy arguments affect only Home's duty to indemnify Perlberger and his law firms, not Home's duty to defend them. Home's own policy states that Home will defend its insureds against allegations of "wrongful acts" although it will not indemnify him for judgments based on such conduct. See Exhibit A to the Home Insurance Company's Complaint for Declaratory Judgment. Home's "innocent party" claim is an exception to the "wrongful acts" exclusion, and so is also not relevant to Home's duty to defend. Finally, as to Home's assertion that insurance for intentional acts is contrary to public policy, the court assumes that Home does not intend for this argument to apply to Home's duty to defend its insureds, only to its duty to indemnify them, the usual context in which such "public policy" arguments are made.
Thus, this court need only consider whether Home's "prior acts" and "professional services" arguments affect Home's duty to defend Perlberger and his law firms. "Under Pennsylvania law, an insurance company is obligated to defend an insured whenever the complaint filed by the injured party may potentially come within the policy's coverage." Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3rd Cir.1985) (emphasis in original). Moreover, "an insurer is required to defend the entire claim if some of the allegations in the complaint fall within the terms of coverage and others do not." Safeguard Scientifics, Inc. v. Liberty Mutual Insurance Co, 766 F.Supp. 324, 329 (E.D.Pa. 1991). Thus, if this court can identify at *772 least one claim in Strausser's state-court complaint which could potentially come within the coverage of Home's policy that is, allegations that Perlberger rendered professional services to Strausser after June 22, 1988 then it must find that Home has a duty to defend Perlberger.
There are two, and possibly three, allegations in Strausser's complaint that fall into this category. The state-court complaint alleges: (a) that Perlberger provided legal advice to Strausser in her purchase of a house in Villanova, Pennsylvania, a purchase that was completed on June 30, 1988, see Plaintiff's Amended Complaint, Exhibit C to the Home Insurance Company's Complaint for Declaratory Judgment, ¶¶ 84-85; (b) that Perlberger provided legal advice to Strausser in her purchase of a house in Avalon, New Jersey, a purchase that was completed on March 23, 1989, see id. at ¶¶ 106-110; and (c) that Perlberger wrote a letter to Strausser in June 1988 stating that his firm "would continue to act as her legal counsel," and that he advised Strausser on transactions (whether occurring before or after June 22, 1988 is unclear) in which Strausser used certain of her assets to subsidize Perlberger's new law firm, which was established at about that time, see id. at ¶¶ 93-94.
Thus, it would appear that, at the present stage of the state-court litigation, this court cannot find that Home has no duty to defend Perlberger. The court therefore grants Strausser's motion for judgment on the pleadings as to Home's duty to defend Perlberger.
III. Duty to Indemnify.
A. Home's "Wrongful Acts," "Innocent Party," and Public Policy Claims.
Home's "wrongful acts," "innocent party," and public policy claims all amount to requests for declarations that Home need not indemnify Perlberger for judgments based on intentional conduct, and need not indemnify his law firms for judgments based on conduct of which they were aware or in which they participated. At oral argument, Home clarified its position somewhat, agreeing that certain portions of Strausser's complaint appeared to be based upon negligence theories, and that these aspects of the complaint would not be within the "wrongful acts" provision. Home proposed that this court parse Strausser's state-court complaint and identify the claims with respect to which Home would not be obliged to indemnify its insureds. Home also clarified that it did not ask the court to find any facts as to whether Perlberger actually committed "wrongful acts," as any such factfinding could prejudice its insured in the state-court proceeding.
Home's request is not ripe for judicial determination. The controlling Third Circuit case is Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3d Cir.1990). That case involved a suit by an installer of computer systems against two computer equipment manufacturers. The installer had been sued by some of the firms to which it had provided computer systems, and sought a declaratory judgment that the firms from which it had bought the equipment were liable to it for any damages. The Step-Saver court found that a declaratory judgment action was not appropriate in these circumstances, as the case was not ripe. See id. at 645-50.
The Step-Saver court set forth a three-part test for the ripeness of a declaratory judgment action. Under this test, courts must consider (1) the adversity of the interests of the parties to the action, (2) whether a declaratory judgment would be conclusive, i.e., whether it would "define and clarify the legal rights or relations of the parties," id. at 648, and (3) the utility of a declaratory judgment. In Step-Saver, the court found (1) that the parties' interests were not clearly adverse, as the independent lawsuits at issue could end by establishing a defect for which the Step-Saver defendants were not liable, and as the defendants had indeed not even denied that they were liable for the harm at issue; (2) that the court's decision would not be conclusive, as the plaintiff Step-Saver was asking the court to rule on a hypothetical set of facts, inviting later litigation of the question whether the outcomes of the independent lawsuits matched those facts; and (3) that the court's decision would have little utility, as the *773 "vouching-in" procedure under U.C.C. § 2-607(5)(a) had already established a basis for holding the manufacturers liable in a subsequent proceeding. See Step-Saver, 912 F.2d at 647-650.
As to the first Step-Saver factor, adversity, the analysis pulls in two different directions. In contrast to Step-Saver, Home has denied that it is required to indemnify Perlberger. However, the adversity of the parties' interests as to the duty to indemnify will not be complete until after the resolution of the state-court action, when it will be clear whether Perlberger can assert a claim for indemnity from Home. This court need not, however, decide whether the fact that Home has given notice to Perlberger that it will not indemnify him suffices to render the parties' interests adverse for ripeness purposes, since the "conclusiveness" stage of the ripeness analysis is determinative.[1]
To turn to that analysis, a declaratory judgment would not conclusively resolve the dispute between Home, Perlberger, and Strausser as to the "wrongful acts" and "innocent party" provisions, or as to whether it would be contrary to public policy for Home to indemnify Perlberger. Home seeks to distinguish Step-Saver by arguing that Home's complaint does not present the type of contingent liability at issue in that case, as Strausser's state-court complaint provides a sufficient set of completed facts on which to base Home's complaint. In fact, however, Home's request for declaratory judgment seems to be more similar to that in Step-Saver than Home acknowledges. Plaintiff Step-Saver had sought a federal court declaration that, if the state-court suits against it found a defect that was attributable to the defendant manufacturers, the latter would be liable. Step-Saver did not, however, ask the federal court to decide whether Step-Saver or the manufacturers of the computer equipment had actually been responsible for the defect. In the view of the Third Circuit, this created the risk that, subsequent to the hypothesized declaratory judgment and the termination of the state-court litigation, yet a third round of litigation would be required to determine whether the state-court decisions were within the scope of the declaratory judgment. (Such a situation could, for instance, be presented if the state-court decisions did not clearly allocate blame for the defect between Step-Saver and the manufacturers.) This meant that the declaratory judgment would not be conclusive. See Step-Saver, 912 F.2d at 643. The Step-Saver court also observed that Step-Saver's request for a declaratory judgment amounted to a request for an advisory opinion, because Step-Saver sought a declaration as to a contingency.
The declaratory relief requested by Home seems to be similarly contingent. Consider what would occur if, in the pending state-court action, a jury were to reach a verdict for Strausser on her legal malpractice, breach of contract, breach of fiduciary duty, or unjust enrichment claims based either (a) only on a finding of negligent or reckless conduct by Perlberger, or (b) on unclear grounds. In the first case, the declaratory judgment would be irrelevant; in the second, its applicability would be uncertain, requiring further court proceedings. These are precisely the circumstances that led the Step-Saver court to find that a declaratory judgment in that case would not be conclusive. This court must come to the same conclusion.[2]
*774 For purposes of analytical completeness, the court will now consider the third element of the Step-Saver analysis, "utility". It appears that Home does indeed have an adequate case as to the utility of a declaratory judgment action. Home argues that the act of clarifying which claims are covered under its policy will facilitate settlement, avoiding the need for a prolonged jury trial. A similar argument was endorsed by the Third Circuit in ACandS, Inc. v. Aetna Casualty & Surety Co., 666 F.2d 819, 823 (3d Cir.1981), which noted that "[i]t would turn the reality of the claims adjustment process on its head to hinge justiciability of an insurance agreement on the maturation of a suit to a judgment when the overwhelming number of disputes are resolved by settlement. The respective interests and obligations of insured and insurers, when disputed, require determination much in advance of judgment since they will designate the bearer of ultimate liability in the underlying cases and hence the bearer of the onus and risks of settlement."
B. Home's "Prior Acts" and "Professional Services" Claims.
There is a strong possibility that a ruling by this court that Perlberger's conduct was outside the "prior acts" and "professional services" clauses of Home's policy, if it came before the conclusion of the state-court proceeding, would collaterally estop some aspects of that proceeding. If this court found that Perlberger did not render any professional services to Strausser after June 22, 1988, that finding could well preclude Strausser from making any claim of professional malpractice, breach of contract, or breach of fiduciary duty against Perlberger based on conduct occurring after that date. A finding that Perlberger did render professional services after June 22, 1988 could, correspondingly, result in preclusion adverse to Perlberger, possibly barring, for instance, a finding that Perlberger had no contract with Strausser during that period.
The courts have broad discretion to decline to entertain declaratory judgment proceedings during the pendency of parallel state-court proceedings. The extent and character of this discretion was first described by the Supreme Court in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), and was recently reaffirmed by the Court in Wilton v. Seven Falls Co., ___ U.S. ___, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). Brillhart involved a federal declaratory judgment action filed by an insurer in anticipation of a state-court garnishment proceeding in which it was to be a defendant. In that case, the Court found that the federal courts had discretion to decide whether or not to entertain an action under the Declaratory Judgment Act, and should decline to hear cases in which "the questions in controversy between the parties in the federal suit, and which are not foreclosed under the applicable substantive law, can better be settled in the proceeding pending in the state court." Brillhart, 316 U.S. at 495, 62 S.Ct. at 1176. Wilton, in reaffirming Brillhart, found that the test set forth by the Court in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), under which a court may decline jurisdiction in favor of a pending state-court action only in "exceptional" circumstances, id. at 818-20, 96 S.Ct. at 1246-47, did not apply to declaratory judgment actions, Wilton, ___ U.S. at ___-___, 115 S.Ct. at 2141-42.
The facts of Brillhart and Wilton were somewhat different from those at issue here. In those cases, the parallel state-court proceeding raised essentially the same legal issues, between the same parties, as were at issue in the federal proceeding. Here, the parallel state-court proceeding does not involve the same parties; Home Insurance is not a party to the state action. Moreover, the state-court proceeding will not necessarily resolve all of the legal issues before this court. It may do so, of course: for instance, as to those claims on which Perlberger prevails in the state-court action, the question of Home's duty to indemnify him will be moot. Likewise, if judgment is entered against Perlberger on Strausser's fraud claim, the "wrongful acts" exception may well apply directly, freeing Home of any obligation to *775 indemnify Perlberger for any award of damages on that claim.[3]
Brillhart and Wilton are not limited to their facts, however. Brillhart set forth a list of factors for courts to take into account in the exercise of their discretion to entertain declaratory judgment actions, but emphasized that future cases might reveal other relevant factors, 316 U.S. at 495, 62 S.Ct. at 1175-76; Wilton endorsed this view, see ___ U.S. at ___, 115 S.Ct. at 2141. Panels of the Fourth and Sixth Circuits, both considering cases resembling that before this court and both applying the Brillhart standard, have found it inappropriate for a district court to entertain such actions. See Mitcheson v. Harris, 955 F.2d 235, 237-40 (4th Cir.1992); American Home Assurance Co. v. Evans, 791 F.2d 61, 63 (6th Cir.1986).[4] In Mitcheson, tenants sued their landlord in state court for injuries allegedly caused by lead exposure on his property, and the landlord's insurer, after agreeing to defend its insured, filed a declaratory judgment action in federal court claiming that the lead poisoning was an "occurrence" that was not covered by the policy. The Sixth Circuit found that it was inappropriate for the district court to have heard the case, given the fact that it predominantly involved issues of state law that were most appropriately decided by the state itself, 955 F.2d at 237-38, and because of the interest in "resolving all litigation stemming from a single controversy in a single court system," id. at 239, and thereby avoiding, for instance, collateral estoppel of aspects of the state action by the federal action. A concurring opinion noted that a decision as to when the lead poisoning occurred for purposes of insurance coverage could significantly affect the state court action, and have preclusive effect, for instance, as to statute of limitations or laches defenses. See id. at 242 (Hall, J., concurring).
The facts of Evans are similar, and involved the question whether the conduct of an insured lawyer was within a malpractice insurance policy's "dishonesty" exclusion. 791 F.2d at 62. Evans applied a five-part test for the exercise of a district court's discretion to hear a declaratory judgment action; one of the included elements was "whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction." Id. at 63.[5] The Evans test has been applied in the Eastern District of Pennsylvania, although in a case with facts somewhat different from those at issue here. See Nationwide Mutual Insurance Company v. Flynn, 704 F.Supp. 592, 594 (E.D.Pa.1988).
Given the substantial risk that a pronouncement by this court on the applicability of the "prior events" and "professional services" clauses of Home's policy would have a preclusive effect on the pending state-court proceedings, this court will stay any consideration of those aspects of Home's complaint until the latter proceedings are concluded. See Wilton, ___ U.S. at ___ n. 2, 115 S.Ct. at 2143 n. 2 ("We note that where the basis for declining to proceed is the pendency of a state proceeding, a stay will often be the preferable course, insofar as it assures that the federal action can proceed without risk of a time bar if the state case, for any reason, fails to resolve the matter in controversy.").
IV. Strausser's Counterclaim for Fees and Costs
Strausser argues that she is entitled to an award of legal fees and costs under *776 New Jersey law, and, in the alternative, under Pennsylvania and federal law. Strausser provides no legal argument as to the basis for her request for costs, and the court will therefore disregard this request. Turning to Strausser's request for legal fees, the court finds that the Pennsylvania rule for attorney's fee awards, not the New Jersey or federal rule, applies. A federal court sitting in diversity is bound to apply the choice-of-law rules of the forum state, which in this case is Pennsylvania. See Klaxon Co. v. Stentor Electric Manuf. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). There seems to be no room to doubt that the Pennsylvania courts would conclude that settled choice-of-law principles, applicable in Pennsylvania as in other states, would mandate the application of the substantive law of Pennsylvania to the central dispute in this action.[6] The substantive law of Pennsylvania also governs the subsidiary issue of attorney's fees. See First State Underwriters v. Travelers Ins. Co., 803 F.2d 1308, 1318 (3rd Cir.1986).
In 1986, in First State, the Third Circuit predicted that the Pennsylvania courts would find that awards of attorney's fees are appropriate in cases of "bad faith" or "obdurate" behavior. See First State, 803 F.2d at 1318. And that prediction has been vindicated. See, e.g., Marino v. General Accident Ins. Co., 416 Pa.Super. 1, 9, 610 A.2d 477, 481 (1992). Strausser has not shown such behavior by Home in this case. Strausser argues that Home's complaint was filed with the sole purpose of delaying or interfering with the pending state-court action. This court does not agree; Home does have a valid interest in clarifying its duties to its insured, and, as the foregoing discussion suggests, it was by no means a legal certainty that the federal courts would decline to entertain Home's declaratory judgment action. Thus, Strausser's motion for an award of fees must be denied.
V. Conclusion
For the foregoing reasons, Home's request for a declaratory judgment as to the "prior acts" and "professional services" provisions of its policy will be stayed, and the remainder of Home's complaint will be dismissed.
There are a number of outstanding motions relating to discovery disputes in this matter. Because Home's complaint will be dismissed in part and stayed in part, discovery will cease, rendering these motions moot. Therefore, these motions will be dismissed.
An appropriate order accompanies this opinion.
ORDER
For the reasons set forth in the memorandum filed herewith, it is ORDERED:
1. that Diane Strausser's Motion for Judgment on the Pleadings (doc. no. 14) is GRANTED in part and DENIED in part. Home Insurance Company's request for a declaratory judgment as to its duty to defend Norman Perlberger, Esq. is DISMISSED without prejudice; its request for a declaratory judgment as to its duty to indemnify Norman Perlberger is STAYED as to the "prior acts" and "professional services" provisions in Home's policy, and DISMISSED without prejudice as to the remaining provisions cited by Home;
2. that Home Insurance Company's Motion for Judgment on the Pleadings as to Diane Strausser's counterclaim for fees and costs (doc. no. 16) is GRANTED, and the counterclaim is DISMISSED;
3. that Home Insurance Company's Motion for a Protective Order (doc. no. 13), and Diane Strausser's Motion for a Protective Order, Sanctions, and Stay of Discovery (doc. no 20) are DISMISSED as moot.
NOTES
[1] A further question is which parties are to be considered for purposes of determining adversity. Strausser observes that Perlberger agrees with Home that his conduct was not within the "professional services" condition, suggesting that the interests of the two are not adverse. Home replies, however, that Home and Strausser have adverse interests, and argues that this degree of adversity should suffice for purposes of this case. Strausser, Home notes, is an indispensable party, and the Third Circuit has found that injured parties can bring declaratory judgment actions against insurers to establish coverage, Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 353 (3rd Cir.1986), so that it is not inappropriate for Home correspondingly to assert non-coverage against Strausser.
[2] The defect in Home's request is that Home did not ask this court to find the facts that would form the basis for its declaratory judgment. This is not to say that Home's pursuit of a declaratory judgment would have been more successful had Home asked the court to engage in fact-finding, however, as such a declaratory judgment request might be disfavored as interfering with a pending state-court proceeding. See infra.
[3] The state court may also be able to assist in resolving questions as to the applicability of the "prior acts" and "professional services" provisions by exercising its discretion to permit special interrogatories to be submitted to the jury.
[4] In doing so, the Evans court reviewed the trial court's decision to entertain the declaratory judgment action de novo, see 791 F.2d at 63, and the Harris court applied a similar standard, see 955 F.2d at 242 (Hall, J., concurring) (noting that the majority's standard of review was unclear, but appeared to be de novo). It is possible that one or both circuit courts might have allowed the challenged district court decision to stand under the "abuse of discretion" standard of appellate review endorsed by the Supreme Court in Wilton, see ___ U.S. at ___, 115 S.Ct. at 2144.
[5] The other elements are "whether the judgment would settle the controversy," "whether the declaratory action would serve a useful purpose in clarifying the legal relations at issue," "whether the declaratory remedy is being used merely for the purpose of `procedural fencing' or `to provide an arena for a race to res judicata,'" and "whether there is an alternative remedy that is better or more effective". Id.
[6] Although the insurance contract involved lacks a choice-of-law clause, the great majority of the conduct involved occurred in Pennsylvania, and some aspects of the case will entail inquiry into what types of conduct amount to the rendering of legal services in Pennsylvania. Insurance contracts are in any case virtually always governed by the law of the insured's domicile. See Eugene F. Scoles and Peter Hay, Conflict of Laws 666 (2nd ed. 1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262005/ | 132 Cal.Rptr.2d 538 (2003)
107 Cal.App.4th 1077
Dulce Marie QUINTANA, Plaintiff and Appellant,
v.
Raul GUIJOSA, Defendant and Respondent.
No. B158202.
Court of Appeal, Second District, Division Five.
March 13, 2003.
LACBA Domestic Violence Project and Alisa E. Sandoval; and Legal Aid Foundation of Los Angeles and Jane S. Preece, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
ARMSTRONG, J.
On January 15, 2002, appellant Dulce Marie Quintana applied for a restraining order and temporary restraining order against her husband, Raul Guijosa,[1] under the Domestic Violence Prevention Act. (Fam.Code, § 6200 et seq.) With her applications, appellant declared that Guijosa was violent and that she feared him. She specified that in November of 2001, he tried to force her into sex and tried to cut her face with a piece of glass "so that no one would want her." When she attempted to get away, he cut her wrist and palm. On December 30, 2001, he damaged the prosthesis in her right eye by hitting it, and on December 31, 2001, from midnight until 2:00 in the morning, he kicked the front door of the home where she was staying and yelled obscenities. He constantly called her, and stalked her. She was afraid that he would hurt her, and as a result had stopped going to her English classes.
The trial court denied the request for a temporary restraining order, and when the matter was called for a hearing on February 7, denied the application without a hearing. The court stated its reasons with reference to a single sentence in the declaration: "our children are in Mexico."
The trial court first noted that it had denied the request for a temporary restraining order because "I didn't see, first of all, what she is doing in this country when her children are in Mexico because a mother's primary duty and a father's primary duty is to their children. And I *539 didn't see why should she even be in this court since she should be where her children are." The court told appellant's counsel that all appellant had to do to be free from Guijosa's violence was to "go back to where she came from, where her children are, and be with her children," then ruled that "I'm not going to afford her the benefit of the court's protection when her children are abandoned in Mexico" and that "the court is not going to be a party to condoning or facilitating the abandonment of these children, so I respectfully decline to offer her a restraining order and I am dismissing the case without prejudice."[2]
At that point, Guijosa asked to speak. He told the court that he was the victim, not the victimizer, and the court advised him, too, to return to Mexico.
We agree with appellant that the trial court abused its discretion by deciding this case on facts entirely irrelevant to the Domestic Violence Prevention Act, the purpose of which is not to mandate that parents live with their children, but to "prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (Fam.Code, § 6220.)
The Legislature has set forth the relevant factors in Family Code section 6300, by providing that a domestic violence restraining order may be issued "if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." "Abuse" is defined. It means intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another. (Fam. Code, § 6203.)
Given all this, the trial court's comments were not merely legally unsound, but offensive, and ignored the fact that the law affords its protections to all the people described in the statutes, not just those individuals whose choices please the trial court.
Appellant has asked us to remand this case for a hearing on the merits, before a different judicial officer. That is our ruling. (Code Civ. Proc., § 170.1(c).) We note in closing that if appellant had sought relief through petition for writ of mandate, rather than through an appeal, we would have been able to afford speedier, and perhaps more effective, relief.
Disposition
The trial court ruling is reversed, and the case is remanded to the Superior Court for hearing, with direction to that court to assign the matter to a different judicial officer. Appellant shall recover her costs of appeal.
We concur: GRIGNON, Acting P.J, and MOSK, J.
NOTES
[1] He has not filed a brief on this appeal.
[2] There was no evidence that the children had been "abandoned." The only evidence was that they were not living with their parents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324486/ | 119 Ga. App. 259 (1969)
167 S.E.2d 220
TABOR
v.
FOWLER.
44155.
Court of Appeals of Georgia.
Submitted January 8, 1969.
Decided February 28, 1969.
Dan E. McConaughey, for appellant.
Frank A. Bowers, for appellee.
DEEN, Judge.
1. This is an appeal from a contest for letters of administration in the Court of Ordinary of DeKalb County, following a verdict in the superior court in favor of D. W. Fowler, the alleged common law husband of the decedent Willa Nell Fowler, and against the decedent's sister, Evelyn Tabor. The court, after correctly instructing the jury that the sole issue in the case was whether appellee was the common law husband of the decedent, charged in part as follows: "The provisions of Code § 53-101 are as follows: in order for there to be a valid marriage in this State, there must be parties able to contract, an actual contract, consummation according to law. .. [Consummation] cannot be construed as requiring cohabitation as man and wife by the parties who have entered into an informal agreement to be man and wife before their agreement is valid. Consummation may be brought about by . . . an actual agreement, in words of the present tense, to be man and wife, with the intention of thereby and thereupon assuming the relationship. . . A contract of marriage may be inferred from proof of cohabitation and the parties holding themselves out as man and wife. However, gentlemen, cohabitation is not essential. Marriage may be complete when parties able and willing to contract have actually contracted to be man and wife. Sexual intercourse is not essential to consummation of a valid marriage. . . . I further charge you at common law no particular ceremony or formal solemnization is necessary to constitute a valid marriage. All that is required is that there shall be an actual and mutual agreement to enter into the marriage relation, permanent and exclusive of all others, by persons capable of marrying, consummated by their cohabitation as *260 man and wife or their mutual assumption openly of marital duties and obligations. This is called a marriage contract per verba de praesenti." Enumerations of error are directed at this excerpt from the charge.
There can be no doubt but that the court instructed the jury that if they found the parties had entered into an informal agreement with each other to be man and wife a common law marriage resulted regardless of whether or not there was cohabitation. This is in line with the majority opinion in Lefkoff v. Sicro, 189 Ga. 554 (6 SE2d 687, 133 A.L.R. 738). In Drewry v. State, 208 Ga. 239, 243 (65 SE2d 916), the court held it would be erroneous to charge that if "the defendant and John E. Drewry by agreement, in words of the present tense, to be man and wife, and being at the time capable of contracting marriage, with the intention thereby and thereupon to assume such relation, that such informal contract would be a valid marriage in this State." It further expressly overruled Lefkoff and adopted as the law the dissenting opinion in that case which states in part: that cohabitation (dealt with as synonymous with consummation) "is treated as essential, if not the main factor in establishing in this State a common law marriage." P. 580. See also Hayes v. Hay, 92 Ga. App. 88, 92 (88 SE2d 306). It follows that an informal agreement not consummated by cohabitation between the parties is insufficient to establish a common law marriage, and that the instructions given the jury were most confusing on this issue. Although the charge was not objected to at the time, since it erroneously presented the sole issue for decision, it must be held reversible error under Code Ann. § 70-207 (c). Brown v. Brown, 222 Ga. 446, 449 (150 SE2d 615).
2. The undisputed facts of this case show that the deceased and the appellee had formerly been married and divorced, and that thereafter D. W. Fowler had moved back to Mrs. Fowler's house and occupied a room as a tenant or had moved back and entered into a common law marriage with his former wife. The appellant, sister of the deceased, was asked whether Mrs. Fowler gave her an explanation of why Mr. Fowler was living at the house, and an objection to the question was sustained. On the other hand, the court admitted over objection a church bulletin published two days after the death containing a statement: "Our sincere Christian *261 sympathy to Mr. D. W. Fowler and family in the death of Mrs. Fowler. They lived next door to our associate pastor." The testimony was offered respectively by each side to prove that the parties were, or were not, married at the time of death one by statements of a person since deceased (ordinarily inadmissible under Code § 38-1603 (1) and the other by a written statement the source of which was not shown (ordinarily inadmissible as hearsay). Both of these classes of evidence, if admissible at all, are so as exceptions to the general hearsay rule and derive any force they may have from the necessity of the case. Todd v. State, 200 Ga. 582, 588 (37 SE2d 779); Burke v. State, 54 Ga. App. 225 (1) (187 S.E. 614). Reputation is proved by showing what people generally say. Teague v. State, 208 Ga. 459 (10) (67 SE2d 467). On an issue of market price it was stated in Columbian Peanut Co. v. Pope, 69 Ga. App. 26, 31 (24 SE2d 710): "It is the general rule that a reliable and trustworthy trade journal or newspaper is admissible in evidence as an exception to the hearsay-evidence rule." A much broader ruling was made in Rainey v. Moon, 187 Ga. 712, 719 (2 SE2d 405) on an issue of marriage vel non in a contest over the administration of the estate of a decedent. A newspaper article referring to the parties as "Mr. and Mrs. Hinton Rainey" was admitted over the objection that it did not tend to show reputation in the community as to the common law marriage. Proof of such reputation where it becomes an issue is itself an exception to the hearsay rule. Green, Georgia Law of Evidence, § 321. A church bulletin falls reasonably in the same category, and is admissible as a circumstance, but the jury should be cautioned that it should be considered only on the issue of general reputation in the (church) community. Equally, any evidence offered by its opponents tending to denigrate its effect by proof of the manner in which it came to be inserted in the bulletin would be admissible in rebuttal. Equally, the testimony of statements of the deceased tending to show that she accepted Fowler back in the house for a purpose other than marriage is admissible under the ruling in Drawdy v. Hesters, 130 Ga. 161, 167 (60 S.E. 451, 15 LRA (NS) 190), where the statements of one since deceased that he had not entered into a marriage relationship "taken in connection with the equivocal act of cohabitation existing at the time of the declarations . . . were admissible under the theory of *262 res gestae, as tending to indicate the character of the cohabitation, and should have been admitted, not for the purpose of proving an independent fact, but as a part of the conduct relied upon to characterize the cohabitation."
Judgment reversed. Bell, P. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324483/ | 119 Ga. App. 306 (1969)
167 S.E.2d 198
HARRIS et al.
v.
SMITH et al.
43884.
Court of Appeals of Georgia.
Submitted September 6, 1968.
Decided February 3, 1969.
Rehearing Denied March 6, 1969.
Payne, Barlow & Green, William O. Green, Jr., Richard C. Alderman, for appellants.
Long, Weinberg & Ansley, Ben L. Weinberg, Jr., Charles E. Walker, for appellees.
*307 HALL, Judge.
Knowledge of the driver's incompetency is an essential element of the rule which holds an owner liable for furnishing his automobile to an incompetent driver and such knowledge must be actual rather than constructive. Hines v. Bell, 104 Ga. App. 76 (3b) (120 SE2d 892); Roebuck v. Payne, 109 Ga. App. 525 (136 SE2d 399); Lee v. Swann, 111 Ga. App. 88 (140 SE2d 562); Saunders v. Vikers, 116 Ga. App. 733 (158 SE2d 324).
On the issue of the defendants' knowledge of the driver's incompetency the following showing was made by the plaintiff in opposition to the defendant's motion for summary judgment: The defendants' son was born in 1941. His mother testified that she knew of a wreck he had in 1955 (when he would have been age 14) and in the mother's opinion it was not her son's fault. The son left home in 1963 when he married. During the 22 months from November 1960 to September 1962 the son (when he was 19 to 21 years of age) had 11 traffic offenses, as shown by the records of the Municipal Court and the Traffic Court of the City of Atlanta. For these offenses he received various sentences of 4, 6, or 8 months, suspended upon payment of fines, and suspensions of his driver's license. The fines assessed totaled over $700. Four of these penalties are shown to be for speeding, another for "red light," one for "an accident," six for driving with license revoked. The same records show that in 1965 before the incident on October 23 giving rise to this suit, the son had two violations for which he was fined, for "stop sign" and "improper backing, accident."
Answering questions as to whether she had had trouble with her son and whether he had ever been arrested before, the mother testified, "Well, maybe for a little minor yeah he had been arrested before because he had worked on a car here and drove it down there into Johnson Road and because he didn't have the muffler on it, why, they arrested him there." Again, in answer to a question whether she had ever heard of her son getting any traffic tickets, the mother testified, "I told you that he got some for fixing cars and not having mufflers and things on." Thereafter she testified that she didn't know of any more than one. A letter to the defendants from their liability insurer on *308 December 20, 1965, states: "As you are aware, your son was excluded from the . . . policy on January 11, 1962, and has been excluded on each renewal thereafter. The insurance company did not wish to provide coverage because of his previous driving record." The defendants admitted receipt of this letter, but denied that their son's driving record was the reason for his exclusion from coverage and denied knowledge of his driving record.
We hold there was sufficient circumstantial evidence to authorize a jury to draw the inference that the defendants had actual knowledge that their son was an incompetent driver. The defendants denied on deposition that they had any knowledge of their son's driving propensities. Does their testimony destroy as a matter of law the above circumstantial evidence and prevent the jury from determining whether or not their testimony is true or false? The answer is found in the recent Supreme Court case of McCurry v. Bailey, 224 Ga. 318 (162 SE2d 9), a summary judgment case involving a similar issue on the credibility of a defendant's sworn testimony. In considering the positive sworn testimony of the defendant in that case and the circumstantial evidence, the Supreme Court held: "`Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence, relied on by the plaintiff it was affirmatively shown that no such fact existed.'. . The very `guts' of the question is on the one hand unquestionably the inert body of the defendant in the driver's position, and on the other the defendant who is interested in the outcome testifying that the deceased was driving. Was he telling the truth? Circumstances say not. Does this contradiction yield to determination as a matter of law, or rather does it call for a jury verdict of men who are acquainted with the facts of life? We unhesitatingly hold that such a conflict is beyond the reach of mere judicial decision and can be resolved only in the American way by the verdict of twelve jurors. The only human resolution of such conflicts can, under our jurisprudence, be *309 made by a jury who alone can impeach, who alone can judge credibility, and who alone can decide issues of fact. They might in their wisdom growing out of human experience lawfully say the physical fact as to the position of the defendant's body under the steering wheel outweighs his contrary testimony as an interested party, or contrariwise. Judges are not under our Constitution invested with authority to usurp this power which is reserved by law to the jury." See also Young v. Reese, 119 Ga. App. 179 (2).
Under the McCurry ruling, it cannot be said as a matter of law that the sworn testimony of the defendant parents is, in the words of our Supreme Court, "perfectly consistent with the circumstantial evidence." Therefore, it is for the jury rather than the trial court to judge the credibility of the defendants' statements that they had no actual knowledge of their son's previous reckless driving record.
The trial court erred in granting the defendants' motion for summary judgment.
Judgment reversed. Bell, P. J., Jordan, P. J., Pannell and Deen, JJ., concur. Felton, C. J., Eberhardt, Quillian and Whitman, JJ., dissent.
QUILLIAN, Judge, dissenting. The question here involved is whether the trial judge correctly granted the defendant's motion for summary judgment because the evidence conclusively showed that the defendants had no actual knowledge of any past reckless driving on the part of Jerry Smith or any knowledge of past conduct sufficient to support an action against him based on the theory of negligent entrustment.
In the instant case the plaintiff introduced records showing that Jerry Smith had been convicted eleven times for various offenses while he was living with his parents up to 1963. However, both parents positively denied that they had any knowledge of Jerry Smith's propensity for reckless driving. There was no direct evidence showing that the defendants knew, other than as to one transaction, of Jerry Smith's driving record or were informed, prior to the collision here involved, as to why he was not insured under the policy.
In this regard, according to the testimony of Mr. Wilcox, *310 the insurance agent, the policy itself merely stated: "`It is agreed that such insurance as is afforded by the policy for bodily injury liability, for property damage liability, for automobile medical payments and for collision or upset does not apply to accidents or loss occurring while any automobile is being personally driven by,' and then the name `Jerry Smith' is inserted." He also testified that there was a specific notation on the front of the policy which provided: "Never include coverage for the boy . . . has own car." The letter relative to why Jerry Smith was excluded from coverage on the defendants' policy, to which the majority opinion makes reference, was written after the accident in question occurred. Being after the fact, it had no evidentiary value.
"However difficult it may have been to the plaintiffs when faced with the owner's statement of his limited knowledge of a single incident of recklessness, it was incumbent upon them to show in opposing the motions for summary judgment that he had actual knowledge of a pattern of reckless driving or facts from which such knowledge could be reasonably inferred in order to preserve the issue for jury determination." Saunders v. Vikers, 116 Ga. App. 733, 736, supra. "While it may be difficult to prove the existence of actual knowledge on the part of one who denies it (because in such case direct evidence is not attainable, unless he admits it), nevertheless, even actual knowledge can be demonstrated by the proof of circumstances which will admit of no other reasonable conclusion than that the party who asserts his ignorance of a given fact actually knew it, and that his denial is untrue." Roebuck v. Payne, 109 Ga. App. 525 (3) (136 SE2d 399).
There are federal cases holding that the fact a witness is a party or interested in the result of the case, along with other circumstances, is sufficient to raise a question as to his credibility and require the submission of such issue to a jury. See Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (64 SC 724, 88 LE 967), using this reasoning as a basis for denying summary judgment. However, since a motion for summary judgment is analogous to a motion for directed verdict, we consider the Georgia rule in determining whether the evidence demands a verdict or not.
*311 This rule finds comprehensive explanation in Lankford v. Holton, 187 Ga. 94, 102 (200 S.E. 243) which holds: "Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, cannot be arbitrarily rejected by a jury or other trior of the facts upon the mere surmise that it perhaps might not be in accord with the truth," and in Myers v. Phillips, 197 Ga. 536 (4) (29 SE2d 700).
As is reiterated in cases explaining this rule, where there are facts or circumstances which tend to contradict, or are inconsistent with, the witness's direct testimony or such testimony is inherently improbable, then the witness's credibility is for the jury and they may disregard such testimony. Pantone v. Pantone, 206 Ga. 305, 308 (57 SE2d 77); Williams v. Paul F. Beich Co., 74 Ga. App. 429, 432 (40 SE2d 92); Nicholson v. State, 112 Ga. App. 306, 307 (145 SE2d 282).
Under the facts of this case we should not hold as a matter of law that the circumstances were such as to admit of no other reasonable conclusion than the parties asserting ignorance of the fact actually knew such fact and their denials were untrue. The fact that Jerry Smith's driving record was studded with convictions, standing alone, would not give rise to an inference that the defendants had knowledge of such record so as to create an issue for the determination of a jury. Our own experience tells us that when a boy has committed an infraction he will, if possible, keep that information from his parents; they are the last who are likely to learn of it. If he could arrange to dispose of the traffic charges without seeking aid from his parents, it was the most likely and natural course for the boy to follow. Hence, their positive testimony that they did not have any knowledge of the occasions does not conflict with any circumstantial evidence to the contrary.
McCurry v. Bailey, 224 Ga. 318, supra, does not conflict with *312 this view, since it is authority for the proposition that where circumstances do conflict with positive testimony a jury question is presented.
For the foregoing reasons I dissent.
I am authorized to state that Chief Judge Felton and Judges Eberhardt and Whitman concur in this dissent.
EBERHARDT, Judge, dissenting. I find it impossible to reconcile the majority opinion with the holdings in NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 (171 S.E. 151); Crisp v. Wright, 56 Ga. App. 338 (129 S.E. 390); Hines v. Bell, 104 Ga. App. 76 (3), supra; Marques v. Ross, 105 Ga. App. 133, 138 (123 SE2d 412); Roebuck v. Payne, 109 Ga. App. 525 (3), supra; Lee v. Swann, 111 Ga. App. 88, supra; Saunders v. Vikers, 116 Ga. App. 733, supra; Young v. Kickliter, 213 Ga. 42 (1) (96 SE2d 605); Chattanooga Pub. Co. v. Fulton, 215 Ga. 880, 883 (114 SE2d 138), and others similar, all requiring as a prerequisite to the imposing of liability under the negligent entrustment theory a showing of actual knowledge on the part of the owner that he was turning the vehicle over to an incompetent driver, or that the vehicle had some mechanical defect.
It was held in Hines v. Bell, 104 Ga. App. 76, supra, that "An allegation in the petition that the owner of the car had knowledge, or in the exercise of ordinary care should have known, that the driver whom he allowed to operate the car was a dangerous, reckless and incompetent driver of automobiles and had such a reputation is subject to demurrer. . . Under Georgia law actual knowledge of the incompetency is necessary to impose liability on the owner for negligent acts of a driver operating with the consent of the owner but not as his servant or agent." And see especially Lee v. Swann, 111 Ga. App. 88, supra. Cf. R. J. Reynolds Tobacco Co. v. Newby, 145 F2d 768.
Although the majority assert that their holding is rested on a matter of circumstantial evidence as showing actual knowledge, it seems to me that the real effect of the holding is to substitute constructive or imputed knowledge for actual knowledge as the test. It is to be noted too, that the circumstance upon which they most strongly rely is an after the fact one a letter written by the father's insurance company on December *313 20, 1965, reciting that the son had been excluded from the coverage since January, 1962. The collision here involved occurred October 24, 1965, some two months before the letter was written. And although it is stated in that letter that the company "did not wish to provide coverage because of his previous driving record," that information was apparently not divulged to the father until the writing of this letter. The father positively asserts that he had no such knowledge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324618/ | 689 S.E.2d 344 (2009)
CHARTER CLUB ON the RIVER HOME OWNERS ASSOCIATION
v.
WALKER.
No. A09A2108.
Court of Appeals of Georgia.
December 3, 2009.
Reconsideration Denied January 8, 2010.
*345 Weissman, Nowack, Curry & Wilco, George E. Nowack, Jr., Jason A. LoMonaco, Kristin P. Killeen, Atlanta, for appellant.
Lipshutz & Greenblatt, Randall M. Lipshutz, Atlanta, Jody L. Peskin, for appellee.
Hyatt & Stubblefield, Wayne S. Hyatt, Joanne P. Stubblefield, amici curiae.
MIKELL, Judge.
Appellee Constance Walker purchased a home located at 885 Charter Club Drive on September 23, 2004. At the time of the purchase, the Charter Club Home Owners Association's Declaration of Protective Covenants (the "Declaration"), which was filed in the Gwinnett County Superior Court on June 29, 1994, permitted home owners to lease their residences. On May 11, 2005, however, appellant Charter Club Home Owners Association ("Charter Club") passed an amendment to the Declaration to prohibit the leasing of residences (the "Amendment"). At that time, Walker had already leased her home to four students and continued to lease her home after that lease expired.
After Charter Club assessed several fines against Walker for various violations of the Declaration, Walker brought the instant action, alleging, inter alia, breach of contract, nuisance, and unjust enrichment. Charter Club answered and filed a counterclaim requesting that the court require Walker to evict her tenants and order Walker to pay various fines for violating the Declaration. Cross-motions for summary judgment were filed, and Charter Club filed a motion for a temporary restraining order and interlocutory injunction. The trial court granted Walker's motion in part as to the counterclaims filed by Charter Club and denied Charter Club's motions. Charter Club appeals the trial court's rulings,[1] and we affirm.
*346 At issue in this case is the construction of OCGA § 44-5-60(d)(4), which provides, in pertinent part, that "no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made." The trial court ruled that OCGA § 44-5-60(d)(4) rendered the amendment to the Declaration inapplicable to Walker because it imposed a greater restriction on Walker's use of the land to which she did not consent. Charter Club argues that the statute does not apply because the amendment does not impose a greater restriction on the land; rather, it imposes an occupancy restriction. We agree with the trial court and affirm.
In construing OCGA § 44-5-60(d)(4), "we apply the fundamental rules of statutory construction that require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage."[2] In our review of restrictive covenants, we are mindful that "[t]he general rule is that the owner of land has the right to use it for any lawful purpose. Restrictions upon an owner's use of land must be clearly established and must be strictly construed. Moreover, any doubt concerning restrictions on use of land will be construed in favor of the grantee[,]"[3] because restrictions on private property are not favored in Georgia.[4] As such, they will not be enlarged or extended by construction.[5]
The pertinent portion of the Declaration at issue here is Section 5 of Article VI, entitled "Use, Restrictions and Rules," which provides simply that "[r]esidences may be leased for residential purposes."[6] The amended Section 5 provided, in pertinent part, as follows:
Section 5. Leasing. ... Except as provided herein, the leasing of the [r]esidence is prohibited. The Board shall have the power to make and enforce reasonable rules and regulations and to fine, in accordance with the Declaration and Bylaws, in order to enforce the provisions of this Paragraph. (a) Definitions. ... (ii) "[g]randfathered owner" means an [o]wner of a[r]esidence on the date this document is recorded. ... (iv) "Leasing" means the regular exclusive occupancy of a[r]esidence by any person(s) other than: (1) the [o]wner or a parent, child or spouse of the [o]wner, or (2) a person who occupies the [r]esidence with the [o]wner or parent, child or spouse of the [o]wner, so long as such [o]wner or parent, child or spouse of the [o]wner is occupying the [r]esidence as his or her primary residence. (b) Leasing Restriction. No [o]wner of a[r]esidence may lease his or her [r]esidence unless: (1) the [o]wner is a [g]randfathered [o]wner, or (2) the [o]wner is not a [g]randfathered [o]wner but has received a hardship leasing permit from the [b]oard as provided below.[7]
While the amended Section 5 redefines "leasing" and limits who can occupy the residence, we agree with the trial court's reasoning that it goes beyond a mere restriction on occupancy. The Amendment prohibits a specific use of the property, i.e., *347 residential leasing to anyone chosen by the owner, which was specifically within Walker's ownership rights when she purchased the property. For this specific reason, OCGA § 44-5-60(d) renders the Amendment inapplicable to Walker. We point out that the statute does not condemn all amendments to restrictive covenants; rather, it simply provides that owners must consent to those amendments that further restrict the use of their property. Accordingly, as Walker did not consent to the amendment, the trial court's conclusion that the amendment was not applicable to her is correct.
Charter Club argues that because the original Declaration contained a provision that allowed amendments to the Declaration with the appropriate number of votes, to which Walker agreed, the statute does not protect her. But the plain language of the statute clearly contemplated amendments to declarations when it provided that "no change in the covenants ... will be enforced."[8] Additionally, when construing restrictive covenants, we are required to "consider the entire document and not merely the provision in question."[9] "Restrictive covenants will be construed to carry out the intention of the parties, if that intention can be ascertained from a consideration of the whole instrument."[10] As the trial court wrote in its order:
The argument by [Charter Club] that the Amendment imposed a mere occupancy restriction that was not a "use restriction" flies in the face of the language of the document itself. The provision on leasing is contained within Article VI, "Use Restrictions and Rules." By definition, the parties have agreed that the Leasing provision in Section 5, whether the original version or the amended version, is a "Use Restriction." [Charter Club] itself distinguished between the "Leasing" restriction and restrictions on occupancy when the Amendment also added Article VI, Section 33 governing occupancy,[11] and [Charter Club] will be held to the language of its own Amendment.
Accordingly, we affirm the trial court's grant of summary judgment to Walker.
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] Charter Club asserts as error the denial of its motion for an injunction but offers no argument, citation to the record, or citation of authority in support thereof. Thus, this claimed error is deemed abandoned. Court of Appeals Rule 25(c)(2).
[2] (Citation and punctuation omitted.) Mills v. Allstate Ins. Co., 288 Ga.App. 257, 258, 653 S.E.2d 850 (2007).
[3] (Punctuation omitted.) Douglas v. Wages, 271 Ga. 616, 617(1), 523 S.E.2d 330 (1999), citing Holbrook v. Davison, 258 Ga. 844, 845(1), 375 S.E.2d 840 (1989). See also Westpark Walk Owners v. Stewart Holdings, LLC, 288 Ga.App. 633, 636(2), 655 S.E.2d 254 (2007).
[4] Lake Arrowhead Property Owners Assn. v. Dalton, 257 Ga.App. 655, 656(1), 572 S.E.2d 25 (2002).
[5] Id.
[6] Also contained in Section 5 were the term requirements for the leases, a provision that the tenants should abide by the Declaration, and the penalties to an owner for a tenant's failure to do so.
[7] (Emphasis supplied.) The parties agree that Walker's original lease was a "grandfathered" lease and thus is not at issue here, but any subsequent lease was not considered to be "grandfathered."
[8] (Emphasis supplied.) OCGA § 44-5-60(d)(4).
[9] (Citation omitted.) Licker v. Harkleroad, 252 Ga.App. 872, 874(2)(a), 558 S.E.2d 31 (2001).
[10] (Citation omitted.) Westpark Walk Owners, supra.
[11] Section 33 limited the maximum number of occupants in a residence to two people per bedroom. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324613/ | 689 S.E.2d 769 (2010)
55 Va. App. 742
Malachi Antonio BYRD
v.
COMMONWEALTH of Virginia.
Record No. 2197-08-1.
Court of Appeals of Virginia, Chesapeake.
March 9, 2010.
*771 T. Gregory Evans, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Jennifer C. Williamson, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Present: HUMPHREYS, McCLANAHAN, JJ., and WILLIS, S.J.
HUMPHREYS, Judge.
Malachi Antonio Byrd ("appellant") was convicted at a bench trial of possession of a Schedule I or II controlled substance, in violation of Code § 18.2-250; and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. On appeal, appellant contends that the trial court erred when it denied his motion to suppress the evidence obtained from the search of the vehicle and appellant because the police lacked probable cause for the search. Appellant asserts that the confidential informant's tip lacked the detail necessary to support probable cause. Appellant also argues that the trial court erred when it refused to strike the charge of possession of a firearm by a convicted felon. For the following reasons, we agree that the trial court erred in denying appellant's motion to suppress; however, the motion to strike issue is not properly before this Court because it is procedurally defaulted.
*772 BACKGROUND
On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (citation omitted). So viewed, the evidence is as follows.
At the suppression hearing held on January 8, 2008, Virginia Beach Police Officer William Canada ("Canada") testified that on March 27, 2007, at approximately 1:00 a.m., he received a tip from a reliable confidential informant ("CI") that in approximately thirty (30) minutes a drug transaction involving crack cocaine was going to take place at the Harris Teeter grocery store at 29th and Arctic Boulevard in Virginia Beach. Canada stated that the CI told him a green four-door vehicle, driven by a black female with a black male passenger, would pull into the Harris Teeter parking lot where the drug transaction would take place. The CI further told him that the male in the car had a gun. At the suppression hearing, Canada testified that he did not know the basis of the CI's knowledge with regard to this tip.
After receiving the information from the CI, Canada, Officers Jason Gregory ("Gregory"), and Robert Ernest ("Ernest") set up surveillance at the Harris Teeter. Gregory testified at the suppression hearing that Canada told them the CI stated a green Dodge with a black female driver and black male passenger would drive to the Harris Teeter, the passenger would get out, conduct a drug transaction, get back in the car, and they would leave. He further told them that the drug would be crack cocaine and the passenger would be armed.
The officers were in position at Harris Teeter ten minutes after receiving the tip. They waited for approximately twenty minutes when they saw a green four-door Dodge pull into the parking lot with a black female driver and a black male passenger. The driver pulled into a parking space, and after one minute the passenger got out and walked directly into the Harris Teeter. Approximately two minutes later, the passenger walked out of the store without anything in his hands and returned to the vehicle. They then drove out of the parking lot. The officers did not see what occurred in the store, nor did they see any visible purchases on the man.
Based on the information from the CI and the officers' observation, Canada stated that they stopped the vehicle on 28th Street and removed appellant, the black male passenger, and the female driver from the car. The officers detained the individuals and placed them in separate police cars. They then searched the passenger compartment and found a loaded Jimenez nine-millimeter handgun in the glove compartment. The female driver claimed ownership of the weapon.
After discovering the gun, Gregory took appellant to the Second Precinct police station where he read him his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Appellant then waived his right to remain silent and to consult with counsel and indicated that he wanted to speak with Gregory. Appellant informed Gregory that even though his girlfriend owned the gun, his fingerprints would be found on it because he had moved it the previous night. After Gregory interviewed appellant at the police station, Ernest transferred him to the detective bureau where appellant was wanted on a different matter. Upon arriving at the First Precinct, Ernest took him to an interview room, and based on department policy had him remove his pants because he had a pair of shorts on underneath them. As appellant pulled off his pants, a small baggie containing a white substance fell to the floor underneath appellant's pant leg. Ernest testified that there had been nothing on the floor when they entered the room and that he saw the baggie fall to the floor. The certificate of analysis entered into evidence showed that the baggie contained .27 gram of cocaine.
Canada testified that the Harris Teeter area was known as a high crime drug area in which several narcotics arrests had been *773 made. With regard to the CI, Canada testified that he knew the identity of the CI, and had worked with this CI for about eighteen (18) months with the last six (6) months of that time being after the CI had completed the process of becoming a confidential informant. Canada stated that the information the CI provided during this time was reliable, never found to be false, involved narcotics, and had resulted in "over twelve search warrants, seizures of large quantities of money, drugs, firearms, people with arrest warrants."
The trial court denied the motion to suppress on the grounds that there was a sufficient basis for the stop based on the CI's information and the totality of the circumstances. Specifically, the trial court stated that this case was distinguishable from Russell v. Commonwealth, 33 Va.App. 604, 535 S.E.2d 699 (2000), in that the information in this case was sufficient because the informant had been a source of twelve previous search warrants that resulted in seizure of significant quantities of drugs, weapons, and money, the accurate description of the vehicle and the occupants of the vehicle, and the time and place it was going to stop. The trial judge further observed that he did not think the officers needed to physically observe the criminal transaction before they made a stop.
At trial, the Commonwealth admitted, without objection, a copy of California Penal Code § 12021.1 along with a conviction order from the Superior Court of California, San Diego County, finding appellant guilty of possession of a firearm by a person previously convicted of a specified violent crime in violation of California Penal Code § 12021.1(a).
This appeal followed.
ANALYSIS
I. Motion to Suppress
Appellant contends that the police lacked probable cause to search him and the car based on the CI's tip and, thus, the evidence found in the stop and flowing from the subsequent arrest should be suppressed.[1] When reviewing a trial court's denial of a motion to suppress, this Court considers the evidence given at both the suppression hearing and the trial, DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 542-43 (1987), and views the evidence "in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from it," Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002) (citing Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991)).
This Court is "bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)). However, "we review de novo the trial court's application of legal standards. . . to the particular facts of the case." McCracken v. Commonwealth, 39 Va.App. 254, 258, 572 S.E.2d 493, 495 (2002) (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663). "`Ultimate questions of reasonable suspicion and probable cause . . . involve questions of both law and fact and are reviewed de novo on appeal.'" Ramey v. Commonwealth, 35 Va.App. 624, 628, 547 S.E.2d 519, 521 (2001) (quoting Neal v. Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)). "The burden is on the defendant to show that the denial of his suppression motion, when the evidence is considered in the light most favorable to the Commonwealth, was reversible error." McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
"The Fourth Amendment . . . protects `the right of the people to be secure in their persons, houses, papers, and effects, *774 against unreasonable searches and seizures.'" Johnson v. Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143, 147 (1998) (citation omitted). "[A] `highly intrusive, full-scale . . .' search[] . . . must be based upon probable cause to believe that a crime has been committed by the suspect." McGee, 25 Va.App. at 198, 487 S.E.2d at 261 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)). If probable cause exists for a search, then a warrantless search of an automobile is permitted under the "automobile exception," and it does "not contravene the Warrant Clause of the Fourth Amendment." California v. Acevedo, 500 U.S. 565, 569, 111 S. Ct. 1982, 1986, 114 L. Ed. 2d 619 (1991) (citing Carroll v. United States, 267 U.S. 132, 158-59, 45 S. Ct. 280, 287, 69 L. Ed. 543 (1925)). The reasons for this exception are the ready mobility of the vehicle as well as the fact that "`the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.'" California v. Carney, 471 U.S. 386, 391, 105 S. Ct. 2066, 2069, 85 L. Ed. 2d 406 (1985) (quoting South Dakota v. Opperman, 428 U.S. 364, 367, 96 S. Ct. 3092, 3096, 49 L. Ed. 2d 1000 (1976)). "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031 (1996).
"[P]robable cause exists when `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009) (quoting United States v. Grubbs, 547 U.S. 90, 95, 126 S. Ct. 1494, 1499, 164 L. Ed. 2d 195 (2006)). An officer has probable cause sufficient for a warrantless search if "`the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949) (quoting Carroll, 267 U.S. at 162, 45 S.Ct. at 288).
In this case, a confidential informant was the basis for the police officer's probable cause. "When a confidential informant provides the basis for probable cause, there are two considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the informant and (2) the informant's basis of knowledge." Byrd v. Commonwealth, 50 Va.App. 542, 551, 651 S.E.2d 414, 419 (2007) (citing Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527 (1983)).
The reliability and basis of knowledge of an informant are not independent elements that must be proved in order to find probable cause, Polston v. Commonwealth, 24 Va.App. 738, 744, 485 S.E.2d 632, 635 (1997), but instead "`are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'" Byrd, 50 Va.App. at 552, 651 S.E.2d at 419 (quoting Gates, 462 U.S. at 233, 103 S.Ct. at 2329).
Robinson v. Commonwealth, 53 Va.App. 732, 738, 675 S.E.2d 206, 209 (2009).
"In `applying the totality-of-the-circumstances analysis,' the Supreme Court has `consistently recognized the value of corroboration of details of an informant's tip by independent police work.'" McGuire v. Commonwealth, 31 Va.App. 584, 594, 525 S.E.2d 43, 48 (2000) (quoting Gates, 462 U.S. at 241, 103 S.Ct. at 2334). "[A]n officer `may rely upon information received through an informant, rather than upon direct observations,' so long as the officer has reasonable grounds to believe the informant's statement is true." Id. at 594-95, 525 S.E.2d at 48 (quoting Gates, 462 U.S. at 242, 103 S.Ct. at 2334).
In this case, the trial court found that the information provided by the CI and his history of being a source were sufficient to support the stop and search of the vehicle and its occupants. Canada had worked with the CI in the present case for six months, *775 and the CI had provided information prior to the instance in this case that had proved to be reliable. Canada stated that the CI had never provided false information in the time that he worked with him. Further, the information provided in the past by the CI had resulted in twelve search warrants that produced evidence of drugs, weapons, and money.
The reliability of the CI in this case is similar to the reliability of the informant in Byrd, 50 Va.App. at 552, 651 S.E.2d at 419. In that case, the informant had provided information to the officer that resulted in one search warrant, three arrests, and six recoveries of narcotics, and the information provided was never inaccurate. Id. Therefore, we agree that the record in this case supports the trial court's conclusion that the CI in this case was reliable.
Although we agree with the trial court's determination that the CI was reliable, our analysis does not end there, for we must also consider the CI's basis of knowledge of the purported criminal activity. See id. ("Nevertheless, although the confidential informant used . . . was reliable, the informant did not provide any basis for his knowledge of [defendant's] criminal activity.").[2]
"The basis of an informant's tip must be `something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.' Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 589, 21 L. Ed. 2d 637 (1969). For example, a confidential informant may provide the basis of his knowledge by claiming that he personally observed the crime that he is reporting. See e.g., Askew [v. Commonwealth], 38 Va.App. [718,] 720, 568 S.E.2d [403,] 405 [(2002)] (confidential informant personally observed the defendant in possession of narcotics); Lester v. Commonwealth, 30 Va.App. 495, 501-02, 518 S.E.2d 318, 321 (1999) (confidential informant personally observed the defendant in possession of stolen property); Boyd v. Commonwealth, 12 Va.App. 179, 182, 402 S.E.2d 914, 916 (1991) (anonymous informant had personally observed the defendant in possession of cocaine). In other cases, although the informant does not explicitly claim personal knowledge, his tip may be `so detailed as to raise an inference either of personal observation or of acquisition of the information in a reliable way.' McGuire, 31 Va.App. at 595, 525 S.E.2d at 49."
Robinson, 53 Va.App. at 739, 675 S.E.2d at 210 (quoting Byrd, 50 Va.App. at 552-53, 651 S.E.2d at 419-20). Appellant contends that the informant provided no basis as to how the CI obtained the information he provided and that the information corroborated by the officers was general information. We agree.
As we noted in Byrd, Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), is the classic case where an informant's basis of knowledge is not given, yet this deficiency is overcome by corroboration of extensive detail given by the informant. Byrd, 50 Va.App. at 553, 651 S.E.2d at 420 (citing Gates, 462 U.S. at 242, 103 S.Ct. at 2334) The informant in Draper told the officers that Draper would be carrying heroin when he arrived in Denver on a train from Chicago on one of two specific days. Draper, 358 U.S. at 309, 79 S.Ct. at 331. The informant specifically described Draper's physical appearance, what he would be wearing, the specific bag he would be carrying, and that he "walked real fast." Id. When the officers arrested Draper, he had just stepped *776 off a train in Denver that had arrived from Chicago on one of the two specified dates, was dressed exactly as the informant said he would be, and was walking fast. Id. at 310, 79 S.Ct. at 331. The Court in Draper concluded that the police had probable cause to arrest him even though the officer did not witness the accomplishment of the mission because the officer was able to verify that Draper arrived when predicted, had the exact physical characteristics, was dressed exactly as described, and was walking quickly. Id. at 313-14, 79 S.Ct. at 333-34.
Like the informant in Draper, the CI in this case did not state that he was personally observing the activity nor did he provide detailed information sufficient "`to raise an inference . . . of acquisition of the information in a reliable way.'" Robinson, 53 Va. App. at 739, 675 S.E.2d at 210 (quoting Byrd, 50 Va.App. at 553, 651 S.E.2d at 420). However, unlike the informant in Draper, the information that the CI gave in this case was not "`accurate and detailed predictions of future events'" demonstrating "`personal or "inside" knowledge of the suspect's activities.'" Id. at 740, 675 S.E.2d at 210 (quoting Byrd, 50 Va.App. at 554, 651 S.E.2d at 420). The information the CI provided merely included the appellant's gender and race, the location of the appellant as the passenger, the color and make of the vehicle, the destination, and an estimate that it would take place in the next thirty minutes. The CI predicted that the appellant would be armed and that the drug transaction would take place in the parking lot. The officers were able to corroborate the generic description of the vehicle, individuals, and location prior to stopping the car; however, they did not observe appellant engage in any conduct corroborating the existence of a drug transaction. While the officers are not required to witness the transaction if they have verified all the information provided in order to have probable cause, see Robinson, 53 Va.App. at 740, 675 S.E.2d at 210-11 (citing Draper, 358 U.S. at 313, 79 S.Ct. at 333), the information provided in this instance was not so detailed as to provide the inference that the CI obtained the information in a reliable way or that he had inside or personal knowledge of the appellant's activities.
"Because the tip provided no basis of knowledge, the question of probable cause turns on whether, under the totality of the circumstances, the evidence showing the informant's reliability is strong enough to overcome the lack of evidence regarding the informant's basis of knowledge." Byrd, 50 Va. App. at 554, 651 S.E.2d at 420.
[I]f "a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge [will] not serve as an absolute bar to a finding of probable cause based on his tip."
Id. (quoting Askew, 38 Va.App. at 723, 568 S.E.2d at 406) (emphasis in original).
In Askew, this Court held that the informant's "undisputed history of reliability" compensated for his lack of establishing his basis of knowledge. Askew, 38 Va.App. at 724, 568 S.E.2d at 406. The informant in Askew had been a paid informant for three years, provided information that led to over 200 arrests, and had never given unreliable information. Id. at 720, 568 S.E.2d at 404-05. In Byrd, this Court held that the informant did not have such unusual reliability so as to compensate for his failure of setting forth his basis of reliability. Byrd, 50 Va. App. at 555, 651 S.E.2d at 421. The informant in Byrd had provided information on six prior occasions, but the record did not show what the prior occasions were in order for the court to determine whether or not he was unusually reliable. Id. In addition the court noted that there was no evidence regarding the quality and quantity of the information provided or whether the previous information had ever led to a conviction. Id.
While it is not necessary that an informant have as extensive a track record as the informant in Askew, merely providing accurate information on six previous occasions does not make an informant so reliable that he can simply be taken at his word without providing some basis of knowledge for any accusation he makes.
Id.
This case is similar to Byrd in that the CI does not have such an unusual history *777 of reliability that it compensates for his failure to set forth the basis of his knowledge for the information he relayed to Canada. The record in this case shows that the CI provided information to the police that led to "over twelve search warrants, seizures of large quantities of money, drugs, firearms, people with arrest warrants," yet it does not inform as to how many of those search warrants led to actual seizure of evidence or whether the information led to convictions.[3] In addition, while the record shows that the information provided by the CI generally related to narcotics, it does not demonstrate the quantity or quality of the information provided on those previous occasions.
Under the totality of the circumstances, we hold that the CI's tip in this case did not provide the officers with probable cause. The CI did not provide his basis of knowledge, nor did he provide such detailed information that it could be inferred he had personal knowledge of the criminal activity. Finally, his history of reliability was not so unusual on its own to support a finding of probable cause. For these reasons, we hold that under the totality of the circumstances, the police officers lacked probable cause for the warrantless search of the vehicle and appellant.[4]
II. Motion to Strike
Appellant contends that the trial court erred when it did not strike the charge of possession of a firearm by a convicted felon because the California statute is not substantially similar to the Virginia statute. Because we remand for a new trial based upon the trial court's error with regard to the suppression issue, we must address appellant's sufficiency argument to avoid any potential double jeopardy issue on re-trial. See Sanchez v. Commonwealth, 41 Va.App. 319, 334, 585 S.E.2d 327, 334 (2003), rev'd on *778 other grounds, 268 Va. 161, 167, 597 S.E.2d 197, 200 (2004) (noting that double jeopardy principles require a sufficiency analysis even though reversing defendant's conviction on other grounds); see also Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 2150-51, 57 L. Ed. 2d 1 (1978) (establishing that a full sufficiency analysis is required to satisfy the mandate of the Double Jeopardy Clause); Parsons v. Commonwealth, 32 Va.App. 576, 581, 529 S.E.2d 810, 812-13 (2000) (recognizing that a sufficiency analysis must be addressed in cases remanded for other error in order to satisfy the Double Jeopardy Clause); Timbers v. Commonwealth, 28 Va.App. 187, 201-02, 503 S.E.2d 233, 240 (1998) (discussing sufficiency of the evidence due to requirements of Double Jeopardy Clause).
The appellant was convicted of possession of a firearm in violation of Code § 18.2-308.2 after he had been convicted of a violent felony as defined in Code § 17.1-805. Code § 17.1-805 lists as a violent felony a violation of Code § 18.2-308.2 (which makes it unlawful for a convicted felon to possess a firearm), or any substantially similar offense under the laws of any state. In 2006, appellant was convicted in the Superior Court of California, County of San Diego, of possession of a firearm by a person previously convicted of a specified violent crime under California Penal Code § 12021.1(a). The Commonwealth introduced the California conviction into evidence without objection by the appellant.
"No ruling of the trial court. . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except of good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5A:18. The purpose of "`Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.'" Neal v. Commonwealth, 15 Va.App. 416, 422, 425 S.E.2d 521, 525 (1992) (quoting Martin v. Commonwealth, 13 Va.App. 524, 530, 414 S.E.2d 401, 404 (1992)).
"The ends of justice exception is narrow and is to be used sparingly," and only when a trial court error is "clear, substantial and material." Brown v. Commonwealth, 8 Va.App. 126, 132, 380 S.E.2d 8, 11 (1989). "In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred." Id. (citing Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987)). "In examining a case for miscarriage of justice, we do not simply review the sufficiency of the evidence under the usual standard, but instead determine whether the record contains affirmative evidence of innocence or lack of a criminal offense." Lewis v. Commonwealth, 43 Va.App. 126, 134, 596 S.E.2d 542, 546 (2004), rev'd on other grounds, 269 Va. 209, 608 S.E.2d at 907 (2005). See also Michaels v. Commonwealth, 32 Va.App. 601, 529 S.E.2d 822 (2000); Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997).
Tooke v. Commonwealth, 47 Va.App. 759, 764-65, 627 S.E.2d 533, 536 (2006).
The appellant never raised the issue of the lack of substantially similar statutes in the trial court despite the fact that the appropriate time to do so would have been when the California court conviction order was tendered as an exhibit. Thus, because a contemporaneous objection was not made and a ruling obtained, appellant is precluded from raising it for the first time on appeal. Although appellant asks this Court to apply the ends of justice exception, the application of this exception is not warranted here because the record does not show "`affirmative evidence of innocence or lack of a criminal offense.'" Id. at 765, 627 S.E.2d at 536 (citing Lewis, 43 Va.App. at 134, 596 S.E.2d at 546). Moreover, except for any double jeopardy implications involved in the procedural posture of this appeal, the issue is otherwise rendered moot by our remand to the trial court and we need not address it further.
CONCLUSION
For these reasons, we hold that the trial court erred in denying appellant's motion to suppress the evidence seized from the car and his person, and we remand for a new *779 trial or other proceedings not inconsistent with this opinion. We further hold that the motion to strike was procedurally defaulted and not properly before this Court.
Reversed and remanded.
McCLANAHAN, J., concurring, in part, and dissenting, in part.
In reversing the trial court's determination that probable cause for searching Byrd's vehicle was established, the majority concludes that: (a) the informant "was reliable," but was just not reliable enough; (b) the informant's tip was "detailed," but was just not "so detailed" as to support an inference that it was obtained in a "reliable way" through "inside personal knowledge of [Byrd's] activities"; and (c) the fact there was no direct evidence of the informant's basis of knowledge regarding Byrd's activities further undermined the informant's reliability. I disagree with all three conclusions, and would affirm the trial court's denial of Byrd's suppression motion, in light of the totality of the circumstances presented to the police at the time they conducted the search. I do agree, however, with the majority's analysis of Byrd's alternative challenge to his firearm conviction to the extent the majority concludes that his argument is procedurally barred.
I.
It has long been well established that "`information received through an informant, rather than upon [a police officer's] direct observations,'" may provide probable cause for a search "so long as the officer has reasonable grounds to believe that the [information] is true." McGuire v. Commonwealth, 31 Va.App. 584, 594-95, 525 S.E.2d 43, 48 (2000) (quoting Illinois v. Gates, 462 U.S. 213, 242, 103 S. Ct. 2317, 2334, 76 L. Ed. 2d 527 (1983)); see Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Wright v. Commonwealth, 222 Va. 188, 278 S.E.2d 849 (1981). In Gates, the controlling authority in this area of Fourth Amendment law, the United States Supreme Court abandoned the "two-prong test" established in Aguilar and Spinelli ("direct[ing] analysis into two largely independent channelsthe informant's `veracity' or `reliability' and his `basis of knowledge'"), in favor of "the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations." Gates, 462 U.S. at 233-38, 103 S.Ct. at 2329-32. The Gates Court recognized in adopting this approach that "probable cause determinations involve diverse factual scenarios that are `not readily, or even usefully, reduced to a neat set of legal rules.'" United States v. White, 549 F.3d 946, 949 (4th Cir.2008) (quoting Gates, 462 U.S. at 232, 103 S.Ct. at 2329); see Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (stating that the Court in Gates "reject[ed] a hypertechnical, rigid, and legalistic analysis of probable cause determinations"). In Robinson v. Commonwealth, 53 Va.App. 732, 738, 675 S.E.2d 206, 210 (2009), this Court recently reaffirmed that we are not bound by any "technical standard concerning informant reliability." Rather, the "totality of the circumstances" approach under Gates "`permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending' the informant's tip." Id. (quoting Gates, 462 U.S. at 234, 103 S.Ct. at 2330). The Gates Court characterized this approach as the establishment of a "flexible, common-sense standard . . . [that] serves the purpose of the Fourth Amendment's probable-cause requirement." Gates, 462 U.S. at 239, 103 S.Ct. at 2333.
Gates thus directs courts to assess whether officers acting on an informant's tip had probable cause "by examining all of the facts known to officers leading up to the [search and/or] arrest, and then asking `whether these historical facts, viewed from the standpoint of an objectively reasonable police officer,' amount to probable cause." White, 549 F.3d at 950 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911 (1996)). In short, the facts "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Gates, 462 U.S. at 232, 103 S.Ct. at 2329; see McGuire, 31 Va.App. at 595, 525 S.E.2d at 48-49 ("Gates opened the *780 door for police officers to establish the credibility of an informer in a variety of ways. . . ." (citation and internal quotation marks omitted)).[5]
Probable cause, in turn, as the Gates Court reiterated and as the term implies, "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13; see Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009) ("`[P]robable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place."'" (quoting United States v. Grubbs, 547 U.S. 90, 95, 126 S. Ct. 1494, 1499, 164 L. Ed. 2d 195 (2006))); Slayton v. Commonwealth, 41 Va.App. 101, 106, 582 S.E.2d 448, 450 (2003) ("Probable cause relies on a `flexible, common-sense standard'" and "does not `demand any showing that such a belief [regarding criminal activity] be correct or more likely true than false.'" (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502 (1983))). "By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens' demands." Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13.
II.
The majority in this case has undertaken an overly "legalistic" review of the facts presented, Derr, 242 Va. at 421, 410 S.E.2d at 666, and, in the process, applied an excessively "rigorous definition of probable cause," Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13, all in contravention to the teaching of Gates and its progeny. On the facts here presented, I would hold the trial court did not err in finding the police had probable cause for the warrantless search of Byrd's vehicle and his subsequent arrest, which resulted in his conviction for illegal possession of both drugs and a firearm as a convicted felon.
At the suppression hearing, Virginia Beach Police Officer William Canada testified that at approximately 1:00 a.m., he received information from a reliable informant that a drug transaction involving crack cocaine was going to take place in approximately 30 minutes in the parking lot of the Harris Teeter grocery store located at 29th and Arctic Boulevard in Virginia Beach. The informant told Canada that a green four-door vehicle occupied by two people, a black male and a black female, was going to pull into the parking lot. The informant also told Canada that the female would be driving the vehicle and that the male passenger would be armed with a firearm. The grocery store, according to Canada, was located in what was known to be a high drug crime area where numerous narcotics arrests had been made.
Canada testified that he had worked with the informant for approximately eighteen *781 months. More specifically, the informant had been a "confidential informant" for six months prior to the subject incident; but he had also been "a source of information" for a year prior to completing the process of becoming a confidential informant. Canada stated that during that time the informant had "provided very reliable information," which generally involved narcotics related criminal activity. This information "result[ed] in over twelve search warrants, seizures of large quantities of money, drugs, [and] firearms," along with a number of arrests. Furthermore, Canada indicated that all of the information he had received from the informant over the eighteen-month period had proven to be reliable.
As to the subject incident, consistent with the informant's tip, Canada and two other officers observed a green four-door vehicle pull into the Harris Teeter parking lot at about 1:35 a.m. A black female was driving the vehicle, and a black male, later identified as Byrd, was in the passenger seat. The driver parked the car and, approximately a minute later, the officers saw Byrd exit the vehicle and enter the grocery storethis latter development being in variance with what the informant had expected, having indicated that a drug transaction would take place in the parking lot. Less than two minutes later, however, Byrd exited the store empty-handed. He then got into the waiting vehicle, and the two suspects drove away.
The officers subsequently stopped and searched the vehicle in which Byrd was a passenger and recovered the loaded nine-millimeter handgun that led to Byrd's arrest for possession of a firearm as a convicted felon. Then at the police station, one of the officers discovered that Byrd was carrying a bag of cocaine on his person, resulting in his drug charge.
In view of the totality of the circumstances presented to the police at the time they stopped and searched Byrd's vehicle, I do not believe this Court can conclude, as a matter of law, that the police lacked probable cause to conduct the search. That is, I do not agree with the majority that we can say, under the circumstances, no reasonable police officer could have believed there was a fair probability that criminal activity was afoot.
Upon reviewing similar circumstances involving a confidential informant, even in certain instances where the police had no prior history with the informant, courts in a number of other jurisdictions have concluded that the police had probable cause for executing a warrantless search and/or arrest. See, e.g., United States v. Gagnon, 373 F.3d 230, 232-38 (2d Cir.2004) (informant, previously unknown to the police, but cooperating after being apprehended for possession of a large quantity of marijuana, advised that Gagnon would be arriving at a certain date, time, and location, driving a tractor trailer with the name "Lanfort" on the side of the trailer, for the purpose of receiving the shipment of marijuana located in the informant's trailer); United States v. Marchena-Borjas, 209 F.3d 698, 699-700 (8th Cir.2000) (a reliable informant advised that a named Hispanic male was in possession of methamphetamine at a certain trailer park, and would be delivering it at a certain time to a certain location, driving a silver Oldsmobile mini-van with Nebraska license plates); United States v. Miller, 925 F.2d 695, 696-700 (4th Cir.1991) (informant, previously unknown to the police but providing information to gain leniency on pending charges, advised that Miller would be arriving at the bus station on a certain day wearing blue jeans and a blouse, carrying a brown tote bag, and would be in possession of drugs); Williams v. Commonwealth, 147 S.W.3d 1, 6-8 (Ky.2004) (reliable informant advised police that a black male, who would be in possession of crack cocaine, would be driving a blue El Camino to a certain apartment complex and picking up another black male); State v. Abbott, 277 Kan. 161, 83 P.3d 794, 796-98 (2004) (reliable informant advised that Abbott would be traveling in a two-tone van to a certain location, giving the date and time, to purchase methamphetamine); State v. Munson, 594 N.W.2d 128, 132-37 (Minn.1999) (reliable informant advised that "in 1 1/2 to 2 hours a rented, green 1996 `Bronco or Jeep type vehicle' with Minnesota license plates" would arrive at a certain location occupied by three African-American males, and the vehicle would contain *782 a large quantity of crack cocaine); Commonwealth v. Bakoian, 412 Mass. 295, 588 N.E.2d 667, 668-72 (1992) (reliable informant advised that Bakoian and another named individual, traveling in a black Thunderbird with a beige roof bearing a Massachusetts license plate, would "soon" arrive at a certain location with a shipment of heroin).
III.
While concluding the police did not have probable cause to conduct the search of Byrd's vehicle in this case, the majority acknowledges that the confidential informant "was reliable." The majority nevertheless discounts the informant's degree of reliability because there was no testimony that the informant's tips to the police over the period of approximately eighteen monthsall of which were reliableever resulted in a conviction. Yet, what we do know is that the informant's tips resulted in the execution of twelve search warrants, seizures of large quantities of money, drugs, and firearms, and a number of arrests, which was more than sufficient to establish the informant as a highly reliable source of information. As stated in United States v. Johnson, 351 F.3d 254, 259 (6th Cir.2003), even if "previous successful searches based on [the informant's] statements had not led to successful prosecutions, this would by itself not have thrown any doubt on the reliability or truthfulness of the informant," as the "mere fact that contraband was discovered where he claimed it was going to be discovered is sufficient indicia of his reliability." See United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir.1986) ("If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions," and "the inference of trustworthiness is even stronger" if "the information provided in the past involved the same type of criminal activity as the current information." (citations omitted)).
As Professor LaFave explains:
Courts have consistently held that an informant's track record is sufficiently established by a showing (i) that on one or more prior occasions the informant indicated that a certain object, usually narcotics, but sometimes such other items as stolen property, counterfeit money, or even the body of a homicide victim are concealed at a certain place, and (ii) the information was verified as true by a search which uncovered the specified items at the place indicated. This is a sound result, for the fact that evidence was turned up which the informant indicated would be turned up bears very directly upon the informant's credibility. . . . [A]s a general proposition such a showing may be more convincing than an assertion that the informer's prior information led to convictions, forexcept in those cases where conviction follows from the single fact of a defendant's possession of a certain object, which the informant may have previously asserted as a facta conviction is likely to follow from an accumulation of several facts above and beyond those communicated by the informant.
2 Wayne R. LaFave, Search and Seizure § 3.3(b), at 116 (4th ed. 2004) (footnotes and internal quotation marks omitted); see Sexton v. State, 397 A.2d 540, 546 (Del.1979) ("The test for determining the reliability of an undisclosed informant is not his record in aiding arrests or convictions, but whether his information has ever been verified in the past."); People v. Arnold, 186 Colo. 372, 527 P.2d 806, 809 (1974) (explaining it would be "an undue restriction" on the police to require that the informant's information led to convictions because "[t]he information previously furnished may be in connection with cases not yet tried or may relate to prosecutions dismissed for reasons unrelated to the reliability of the informant's information").[6]
The majority also concludes that the confidential informant did not provide Officer Canada with enough detail to infer that the informant had "personal knowledge of [Byrd's] criminal activity." To the contrary, *783 the informant provided critical details "relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted," Gates, 462 U.S. at 245, 103 S.Ct. at 2335-36; and the Supreme Court has "consistently recognized the value of corroboration of [such] details of an informant's tip by independent police work" in establishing probable cause. Id. at 241, 103 S.Ct. at 2334.
As outlined above, thirty-five minutes before Byrd's arrival at the Harris Teeter grocery store located at 29th and Arctic Boulevard in Virginia Beach, the informant accurately advised Canada that Byrd, identified as a black male, would be arriving at that location in approximately thirty minutes, that he would be a passenger in a green four-door vehicle, and that he would be accompanied by a black female, who would be driving the vehicle. The informant also advised that a drug transaction would be taking place in the grocery store parking lot. Canada and two other officers then corroborated all but the latter piece of information, as Byrd quickly entered and exited the grocery store, empty-handed, rather than engaging in a transaction in the grocery store parking lot. The fact that there was a discrepancy with this latter piece of information does not mean that the police should have concluded the tip was unreliable. See United States v. Diallo, 29 F.3d 23, 26 (1st Cir.1994) (rejecting contention that informant's tip was unreliable because he had predicted "there would be three men in a red Toyota [who were going in engage in a drug transaction on a particular night] when in actuality there were four men in two cars" and declaring that "[a] tipster need not deliver an ironclad case to the authorities on the proverbial silver platter" (citation and internal quotation marks omitted)); United States v. Morales, 923 F.2d 621, 625 (8th Cir.1991) ("While Morales was not wearing a black T-shirt at the time of arrest as the informant had predicted, he did arrive at the depot at the appointed time in a red pick-up with a white topper accompanied by a woman."). Once again, we are to apply a totality-of-the-circumstances analysis, viewed from the perspective of a reasonable police officer.
Furthermore, the fact that "all of the corroborat[ed] detail . . . was of entirely innocent activity" does not diminish its significance. Gates, 462 U.S. at 245 n. 13, 103 S.Ct. at 2335 n. 13. "In making a determination of probable cause the relevant inquiry is not whether particular conduct is `innocent' or `guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." Id.; see Morales, 923 F.2d at 625 ("[T]he corroboration of minor, innocent details can suffice to establish probable cause." (citation and internal quotation marks omitted)). Thus, when the officers evaluated the seemingly innocent details of the corroborating information in conjunction with the informant's history of veracity, they could have reasonably believed that the uncorroborated portion of the informant's tip, i.e., Byrd's predicted illegal activity, was also correct. "[Because] an informant is right about some things, he is more probably right about other facts, . . . including the claim regarding . . . criminal activity." Gates, 462 U.S. at 244, 103 S.Ct. at 2335 (internal citation and quotation marks omitted); see Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959) (discussed at length in Gates, wherein the Court described Draper as the "classic case on the value of corroborative efforts of police officers," Gates, 462 U.S. at 242, 103 S.Ct. at 2334). In addition, as we pointed out in Ramey v. Commonwealth, 35 Va.App. 624, 631, 547 S.E.2d 519, 523 (2001) (quoting Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301 (1990)), "`[b]ecause only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to have access to reliable information about that individual's illegal activities."
Finally, in light of the totality of the circumstances here presented including the informant's eighteen-month history of providing accurate information to the police; the informant's prediction of Byrd's future behavior; the police's near-total corroboration of that prediction; the fact that the subject location was known to police as a high drug crime area where numerous narcotics arrests *784 had been made; and the fact that Byrd quickly entered and exited the grocery store empty-handedI disagree with the majority in terms of the negative weight it attaches to the fact there was no direct evidence of the informant's basis of knowledge regarding Byrd's activities. If there is a "strong showing" of "some other indicia of [the informant's] reliability," there need not be any indicia of the informant's basis of knowledge. Gates, 462 U.S. at 233, 103 S.Ct. at 2329. As the Supreme Court explained in Gates, consistent with the "totality-of-the-circumstances analysis," "a deficiency in [the showing of either the informant's `veracity' or his `basis of knowledge'] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. (emphasis added); see 2 LaFave supra § 3.3(f), at 190 (The Gates Court "specifically approved of corroboration as a means of overcoming the lack of a more direct showing of an informant's basis of knowledge.").
IV.
For these reasons, I would affirm the decision of the trial court in denying Byrd's motion to suppress the evidence obtained from the search of his vehicle (the firearm) and the custodial search of his person (the cocaine) on the grounds that the police had probable cause to search the vehicle, which led to his arrest and custodial search. I would also hold that Byrd's alternative argument challenging his firearm conviction is barred under Rule 5A:18.
NOTES
[1] Appellant does not contend that there was no reasonable suspicion for the stop or that his arrest lacked probable cause.
[2] While the dissent correctly notes that the United States Supreme Court "abandoned the `two-prong test' established in Aguilar [v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964),] and Spinelli [v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969),] in favor of `the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations,' Gates, 462 U.S. at 233-38, 103 S.Ct. at 2329-32," it nevertheless overlooks the fact that while the United States Supreme Court did away with the "two-prong test," both the reliability and basis of knowledge factors are still considered in looking at the "totality-of-the-circumstances" in order to determine whether probable cause existed based solely on a confidential informant's tip to conduct a search. See Robinson, 53 Va.App. at 737-38, 675 S.E.2d at 209; Byrd, 50 Va.App. at 551-52, 651 S.E.2d at 419; Askew v. Commonwealth, 38 Va.App. 718, 723, 568 S.E.2d 403, 406 (2002); McGuire, 31 Va.App. at 593-95, 525 S.E.2d at 48-49; Russell, 33 Va.App. at 610-11, 535 S.E.2d at 702.
[3] The dissent contends that this latter factor does not discount the informant's degree of reliability. While the record is not clear whether the past information provided led to convictions, whether it did is certainly a consideration in a totality-of-the-circumstances analysis in determining whether or not the informant was so unusually reliable as to overcome the necessity to establish an adequate basis of knowledge. See Byrd, 50 Va.App. at 555, 651 S.E.2d at 421 ("There is no evidence that any information previously provided by the informant had ever led to a conviction."). The dissent's citation to LaFave for the proposition of when "an informant's track record is sufficiently established" overlooks the constitutional requirement that what is needed in the present situation, absent any evidence of the informant's basis of knowledge, is a showing that the CI was "unusually reliable," not that he was just simply reliable.
[4] The dissent ignores this Court's previous application and analysis of the law in Byrd, Robinson, and Askew to arrive at its conclusion to the contrary while simultaneously claiming that we have applied a standard that is not "flexible." Specifically, the dissent asserts that we have "undertaken an overly `legalistic' review of the facts presented, and, in the process, applied an excessively `rigorous definition of probable cause,' all in contravention to the teaching of Gates and its progeny." (Citations omitted.) While we agree with the dissent that the informant had been reliable in the past, presumably on those prior occasions the law was properly applied and any search warrant issued on those occasions was the result of a judicial official reviewing both the informant's track record for providing accurate information and also whether the information was acquired by him firsthand or through third parties who may or may not share the same level of reliability.
The thrust of our disagreement with the dissent is that where the dissent would apparently end its analysis with the trial court's factual finding that the CI had been reliable in the past and hold that this fact alone supports probable cause, we cannot ignore the remaining constitutional requirement that the totality of the circumstances to establish probable cause must also consider the basis of the informant's knowledge in conjunction with his level of reliability. Since any competent police officer, before applying for a search warrant, would likely ask an informant for details he would be expected to supply to a magistrate or testify to in a suppression hearing including how the informant knows the incriminating information he is passing along, presumably the basis for this informant's knowledge could have been easily established by the prosecution it simply was not. It may be that the Commonwealth can remedy this deficiency if it is inclined to proceed further, but whether such is the case is not properly a part of our analysis. Thus, we have merely followed the approach used by this Court in examining both the informant's reliability and his basis of knowledge in light of the totality of the circumstances in determining whether a CI's tip provides a sufficient basis for probable cause. See Robinson, 53 Va. App. at 738-40, 675 S.E.2d at 209-11; Byrd, 50 Va.App. at 552-55, 651 S.E.2d at 419-21; Askew, 38 Va.App. at 723-24, 568 S.E.2d at 406; McGuire, 31 Va.App. at 595-96, 525 S.E.2d at 49; Russell, 33 Va.App. at 613-15, 535 S.E.2d at 703-04.
[5] We thus said in Robinson, more specifically, that "neither Askew [v. Commonwealth, 38 Va. App. 718, 568 S.E.2d 403 (2002),] nor any other controlling case law"meaning Byrd v. Commonwealth, 50 Va.App. 542, 651 S.E.2d 414 (2007), as wellestablishes any "technical standard concerning informant reliability," and we declined the invitation to create any such standard in Robinson. Robinson, 53 Va.App. at 738, 675 S.E.2d at 210. To have done so, of course, would have been in contravention to Gates. The majority is, therefore, mistaken in relying on Askew, Byrd, and Robinson as support for its assertion that there was a "constitutional requirement" that the confidential informant in the instant case had to be "unusually reliable."
The origin of the phrase "unusually reliable" in the current context is Gates, where the Supreme Court was simply illustrating, by way of example, the flexible nature of the totality-of-the-circumstances approach to assessing probable cause, in contrast to the rigid two part Aguilar-Spinelli test. After explaining that any number of factors, either alone or in combination, may serve as satisfactory "indicia of reliability" for a informant's tip, the Court stated:
If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip.
Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30. In any event, the Gates Court went on to make clear that a case-by-case review of the totality of the circumstances, "which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip," is still the ultimate test. Id. at 234, 103 S.Ct. at 2330 (emphasis added).
[6] Thus, even if we assume arguendo that the informant in this case had to be "unusually reliable" for probable cause to have been established, as the majority contends, the informant should certainly be viewed in that light due to the informant's eighteen-month similar history of providing reliable information to Officer Canada regarding significant criminal activity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327338/ | 35 U.S. 103 (____)
10 Pet. 103
*NELSON J. ELLIOTT
v.
SAMUEL SWARTWOUT.
Supreme Court of United States.
*104 The case was argued by Mr. Ogden for the plaintiff, and by Mr. Butler, attorney-general, for the defendant.
The attorney-general, Mr. Butler, for the defendant.
*112 *150] *Mr. Justice THOMPSON delivered the opinion of the court.
This is an action of assumpsit to recover from the defendant the sum of three thousand one hundred dollars and seventy-eight cents, received by him for duties as collector of the port of New York, on an importation of worsted shawls with cotton borders, and worsted suspenders with cotton straps or ends. The duty was levied at the rate of 50 per centum ad valorem, under the second article of the second section of the act of the 14th of July, 1832, entitled "An act to alter and amend the several acts imposing duties on imports," as manufactures of wool, or of which wool was a component part. Upon the trial of the cause, it appeared that the shawls imported, and upon which the duty of 50 per centum ad valorem had been received, were worsted shawls with cotton borders sewed on; and that the suspenders were worsted with cotton ends or straps. And it appeared in evidence, that worsted was made out of wool, by combing, and thereby become a distinct article, well known in commerce under the denomination of worsted, and upon the trial, the judges were divided in opinion upon the following questions:
1. Whether the said shawls and suspenders were or were not a manufacture of wool, or of which wool was a component part, within the meaning of the words "all other manufactures of wool, or of *113 which wool is a component part," in the second article of the second section of the act of congress of the 14th of July, in the year 1832.
2. Whether the collector is personally liable in an action to recover back an excess of duties paid to him as collector, and by him in the regular or ordinary course of his duty paid into the treasury of the United States; he, the collector, acting in good faith, and under instructions from the treasury department; and no protest being made at the time of payment, or notice not to pay the money over, or intention to sue to recover back the amount given him.
3. Whether the collector is personally liable in an action to recover back an excess of duties paid to him as collector, and by him paid over in the regular and ordinary course of his duty into the treasury of the United States; he, the collector, acting in good faith, and under instructions from the treasury department, a *notice [*151 having been given him at the time of payment, that the duties were charged too high, and that the party paying, so paid to get possession of his goods, and intended to sue, to recover back the amount erroneously paid, and a notice not to pay over the amount into the treasury.
1. The act of 1832, in the section under which this question arises, after imposing a specific duty on a number of enumerated articles, concludes in these words: "and upon merino shawls made of wool, all other manufactures of wool, or of which wool is a component part, and on ready-made clothing, 50 per centum ad valorem." And the only question under this point is, whether worsted shawls with cotton borders, and worsted suspenders with cotton ends or straps, are manufactures of wool, or of which wool is a component part. It is stated in the point, as a fact, and to be taken in connexion with the question, that worsted is made out of wool by combing; but that it becomes thereby a distinct article, well known in commerce under the denomination of worsted.
Laws imposing duties on importations of goods, are intended for practical use and application by men engaged in commerce; and hence it has become a settled rule in the interpretation of statutes of this description, to construe the language adopted by the legislature, and particularly in the denomination of articles, according to the commercial understanding of the terms used. This rule is fully recognized and established by this court, in the case of two hundred chests of tea, reported in 9 Wheat. 438. The court there say, the object of the duty laws is to raise revenue, and for this purpose to class substances according to the general usage and known denominations of trade. Whether a particular article was designated by one name or another, in the country of its origin; or whether it were a simple or mixed substance; was of no importance in the view of the legislature. It applied its attention to the description of articles, as they derived their appellations in our own markets, in our domestic as well as our foreign traffic; and it would have been as dangerous as useless, to attempt any other classification than that derived from the actual *114 business of human life. It being admitted, in this case, that worsted *152] is a distinct article, well known in commerce under *that denomination, we must understand congress as using the term in that commercial sense, and as contradistinguished from wool, and woollen goods, and other well-known denomination of goods. The classification of the article in this section, shows that congress had in view a class of goods known as worsted goods, as contradistinguished from wool, and upon which a different duty is laid. A duty of ten per centum ad valorem is laid on worsted stuff goods, shawls, and other manufactures of silk and worsted, and on worsted yarn, twenty per centum ad valorem. If, because worsted is made of wool, all manufactures of worsted become woollen manufactures, there would be no propriety in enumerating worsted goods as a distinct class.
Suppose the shawls, in this case, had been without borders; they would then have been entirely composed of worsted. It could not, certainly, in such case, be pretended that they were manufactures of wool, if there is any distinction between worsted and wool. Nor would they be a manufacture of which wool is a component part. Such manufactures are, where the article is composed of different materials compounded; but these shawls, without the borders, would be entirely worsted, and no compound of different materials. And if the shawls, without the borders, would be worsted, and not woollen goods, the addition of a cotton border would not make them woollen. If the border had been wool instead of cotton, it might with some propriety be said, that wool was a component part. But adding cotton to worsted, cannot with any propriety be said to make the article woollen. The same remarks may be applied to the suspenders; adding cotton ends or straps to worsted suspenders, cannot make them woollen goods.
This view of the case, would be an answer to the question as put in the point. The court is not called upon to say what is the duty imposed by the law upon these articles, but only to say whether they are subject to a duty of fifty per centum ad valorem, as manufactures of wool, or of which wool is a component part. But as this question may arise upon the trial, it is proper for the court to express an opinion upon it. The question is certainly, as it respects the suspenders, not free from difficulty. The language of the act is obscure, and not susceptible *153] of an *interpretation entirely satisfactory. There is no part of this section that will cover the goods in question, except that which imposes a duty of ten per centum ad valorem on worsted stuff goods, shawls, and other manufactures of silk and worsted. This duty is imposed upon shawls of some description, and none but worsted, would at all answer the denomination. Merino shawls, made of wool, are specifically enumerated and made subject to a duty of fifty per centum. The clause imposing the duty on worsteds may well admit of reading "worsted stuff goods and worsted shawls;" they are certainly not a manufacture of worsted and silk. It might be a proper subject of inquiry upon the trial, whether shawls of this description are usually denominated worsted shawls in the *115 market, and if so, the rule of construction alluded to, would apply to the case. At all events, the answer to be given to the question as put, must be, that the shawls and suspenders are not a manufacture of wool, or of which wool is a component part.
2. The case put in the second point, is whether the collector has received the money in the ordinary and regular course of his duty, and has paid it over into the treasury, and no objection made at the time of payment, or at any time before the money was paid over to the United States. The manner in which the question is here put, presents the case of a purely voluntary payment, without objection or notice not to pay over the money, or any declaration made to the collector of an intention to prosecute him to recover back the money. It is therefore to be considered as a voluntary payment, by mutual mistake of law; and in such case, no action will lie to recover back the money. The construction of the law is open to both parties, and each presumed to know it. Any instructions from the treasury department could not change the law, or affect the rights of the plaintiff. He was not bound to take, and adopt that construction. He was at liberty to judge for himself, and act accordingly. These instructions from the treasury seem to be thrown into the question for the purpose of showing, beyond all doubt, that the collector acted in good faith. To make the collector answerable, after he paid over the money, without any intimation having been given that the duty was not legally charged, cannot be sustained *upon any sound principles [*154 of policy or law. There can be no hardship in requiring the party to give notice to the collector that he considers the duty claimed illegal, and put him on his guard, by requiring him not to pay over the money. The collector would then be placed in a situation to claim indemnity from the government. But if the party is entirely silent, and no intimation of an intention to seek a repayment of the money; there can be no ground upon which the collector can retain the money, or call upon the government to indemnify him against a suit. It is no sufficient answer to this that the party cannot sue the United States. The case put in the question, is one where no suit would lie at all. It is the case of a voluntary payment under a mistake of law, and the money paid over into the treasury: and if any redress is to be had, it must be by application to the favour of the government, and not on the ground of a legal right.
The case of Morgan v. Palmer, 2 Barn. and Cres. 729, was an action for money had and received, to recover back money paid for a certain license; and one objection to sustaining the action was, that it was a voluntary payment. The court did not consider it a voluntary payment, and sustained the action: but Chief Justice Abbot, and the whole court, admitted that the objection would have been fatal, if well-founded in point of fact. The court said it had been well argued, that the payment having been voluntary, it could not be recovered back in an action for money had and received. And in Brisbain v. Dacres, 5 Taunt. 154, the question is very fully examined by Gibbs, justice, and most of the cases noticed and commented *116 upon, and with the concurrence of the whole court, except Chambre, justice, lays down the doctrine broadly, that where a man demands money of another, as matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum of money voluntarily, he cannot recover it back. It may be, says the judge, that, upon a further view, he may form a different opinion of the law; and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, many inconveniences may arise. There are many doubtful questions of law. When they arise, the defendant has an option either to litigate the question, or *155] submit to the demand and pay the money. But *it would be most mischievous and unjust, if he, who has acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money. This doctrine is peculiarly applicable to a case where the money has been paid over to the public treasury, as in the question now under consideration, Lord Eldon, in the case of Bromley v. Holland, 7 Vesey, 23, approves the doctrine, and says it is a sound principle, that a voluntary payment is not recoverable back. In Cox v. Prentice, 3 Maul and Selw. 348, Lord Ellenborough says: I take it to be clear, that an agent who receives money for his principal, is liable, as a principal, so long as he stands in his original situation, and until there has been a change of circumstances, by his having paid over the money to his principal, or done something equivalent to it. And in Buller v. Harrison, 2 Cowp. 568, Lord Mansfield says, the law is clear, that if an agent pay over money, which has been paid to him by mistake, he does no wrong, and the plaintiff must call on the principal; that if, after the payment has been made, and before the money has been paid over, the mistake is corrected, the agent cannot afterwards pay it over without making himself personally liable. Here, then, is the true distinction: when the money is paid voluntarily, and by mistake to the agent, and he has paid it over to the principal, he cannot be made personally responsible; but if, before paying it over, he is apprized of the mistake, and required not to pay it over, he is personally liable. The principle laid down by Lord Ellenborough, in Townsend v. Wilson, 1 Campbell, 396, cited and relied upon on the part of the plaintiff, does not apply to this case. He says, if a person gets money into his hands illegally, he cannot discharge himself by paying it over to another: but the payment, in that case, was not voluntary: for, says Lord Ellenborough, the plaintiff had been arrested, and was under duress when he paid the money. In Stevenson v. Mortimer, 2 Cowp. 816, Lord Mansfield lays down the general principle, that if money is paid to a known agent, and an action is brought against the agent for the money, it is an answer to such action that he has paid it over to his principal. That he intended, however, to apply this rule to cases of [*156 voluntary payments made by *mistake, is evident from what fell from him in Sadler v. Evans, 4 Bur. 1987. He there said, he kept clear of all payments to third persons, but where it is to a *117 known agent; in which case the action ought to be brought against the principal, unless in special cases, as under notice, or mala fides: which seems to be an admission that, if notice is given to the agent before the money is paid over, such payment will not exonerate the agent. And this is a sound distinction, and applies to the two questions put in the second and third points in the case now before the court. In the former, the payment over is supposed to be without notice; and in the latter, after notice and a request not to pay over the money. The answer, then to the second question is, that under the facts there stated, the collector is not personally liable.
3. The case put by the third point, is where, at the time of payment, notice is given to the collector that the duties are charged too high, and that the party paying, so paid to get possession of his goods; and accompanied by a declaration to the collector, that he intended to sue him to recover back the amount erroneously paid, and notice given to him not to pay it over to the treasury.
This question must be answered in the affirmative, unless the broad proposition can be maintained, that no action will lie against a collector to recover back an excess of duties paid him; but that recourse must be had to the government for redress. Such a principle would be carrying an exemption to a public officer beyond any protection, sanctioned by any principles of law or sound public policy. The case of Irving v. Wilson and another, (4 Term Rep. 485,) was an action for money had and received, against custom-house officers, to recover back money paid to obtain the release and discharge of goods seized, that were not liable to seizure; and the action was sustained. Lord Kenyon observed, that the revenue laws ought not to be made the means of oppressing the subject; that the seizure was illegal; that the defendants took the money under circumstances which could by no possibility justify them; and, therefore, this could not be called a voluntary payment.
The case of Greenway v. Hurd, (4 Term, 554,) was an action against an excise officer, to recover back duties illegally *received; [*157 and Lord Kenyon does say, that an action for money had and received will not lie against a known agent, but the party must resort to the superior. But this was evidently considered a case of voluntary payment. The plaintiff had once refused to pay, but afterwards paid the money; and this circumstance is expressly referred to by Buller, justice, as fixing the character of the payment. He says, though the plaintiff had once objected to pay the money, he seemed afterwards to waive the objection by paying it. And Lord Kenyon considered the case as falling within the principle of Sadler v. Evans, 4 Bur. 1984, which has already been noticed. In the case of Snowden v. Davis, 1 Taunt. 358, it was decided that an action for money had and received, would lie against a bailiff, to recover back money paid through compulsion, under colour of process, by an excess of authority, although the money had been paid over. The court say, the money was paid to the plaintiff, under the threat of a distress; and although paid over to the sheriff, and by him into *118 the exchequer, the action well lies; the plaintiff paid it under terror of process to redeem his goods, and not with intent, that it should be paid over to any one. The case of Ripley v. Gelston, 9 Johns. 201, was a suit against a collector to recover back a sum of money demanded by him for the clearance of a vessel. The plaintiff objected to the payment, as being illegal, but paid it for the purpose of obtaining the clearance, and the money had been paid by the collector into the branch bank to the credit of the treasurer. The defence was put on the ground that the money had been paid over, but this was held insufficient. The money, say the court, was demanded as a condition of the clearance; and that being established, the plaintiff is entitled to recover it back, without showing any notice not to pay it over. The cases which exempt an agent do not apply. The money was paid by compulsion. It was extorted as a condition of giving a clearance, and not with intent or purpose to be paid over. In the case of Clinton v. Strong, 9 Johns. 369, the action was to recover back certain costs, which the marshal had demanded on delivering up a vessel which had been seized, which costs the court considered illegal; and one of the questions was whether the payment was *158] voluntary. The court said the payment, could *not be voluntary. The costs were exacted by the officer, colore officii, as a condition of the redelivery of the property; and that it would lead to the greatest abuse to hold that a payment under such circumstances, was a voluntary payment precluding the party from contesting it afterwards. The case of Hearsey v. Pryn, 7 Johns. 179, was an action to recover back toll which had been illegally demanded; and Spencer, justice, in delivering the opinion of the court, says the law is well settled, that an action may be sustained against an agent who has received money, to which the principal had no right, if the agent has had notice not to pay it over. And in the case of Fry v. Lockwood, 4 Cowen 456, the court adopts the principle, that when money is paid to an agent for the purpose of being paid over to his principal, and is actually paid over, no suit will lie against the agent to recover it back. But the distinction taken in the case of Ripley v. Gelston, is recognized and adopted; that the cases which exempt an agent when the money is paid over to his principal without notice, do not apply to cases where the money is paid by compulsion, or extorted as a condition, &c. From this view of the cases, it may be assumed as the settled doctrine of the law, that where money is illegally demanded and received by an agent he cannot exonerate himself from personal responsibility by paying it over to his principal; if he has had notice not to pay it over. The answer, therefore, to the third point must be, that the collector is personally liable to an action to recover back an excess of duties paid to him as collector, under the circumstances stated in the point; although he may have paid over the money into the treasury.
This cause came on to be heard on the transcript of the record from the circuit court of the United States, for the southern district of *119 New York, and on the questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court, on the first question, that the said shawls and suspenders were *not a manufacture of [*159 wool, or of which wool is a component part, within the meaning of the words "all other manufactures of wool, or of which wool is a component part," in the second article of the second section of the act of congress of 14th July, 1832.
On the second question, it is the opinion of this court, that, under the facts as stated in the said second question, the collector is not personally liable.
On the third question, it is the opinion of this court that the collector, under the circumstances as stated in the said question, is liable to an action to recover back an excess of duties paid to him as collector, although he may have paid over the money into the treasury. Whereupon, it is ordered and adjudged by this court to be so certified to the said circuit court of the United States for the southern district of New York. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324497/ | 689 S.E.2d 230 (2010)
Michael C. MUNGER, Barbara Howe, and Mark Whitely Cares, Plaintiffs,
v.
STATE of North Carolina; James T. Fain III, Secretary of the North Carolina Department of Commerce, in his official capacity; Reginald Hinton, Acting Secretary of the North Carolina Department of Revenue, in his official capacity; David T. McCoy, State Budget Officer for the Office of State Budget and Management, in his official capacity; Michael F. Easley, Governor of the State of North Carolina, in his official capacity; Google Inc.; and Madras Integration, LLC, Defendants.
No. COA09-375.
Court of Appeals of North Carolina.
February 16, 2010.
*232 North Carolina Institution for Constitutional Law, by Robert F. Orr, Asheville, and Jeanette K. Doran, for Plaintiffs.
Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., Pressly M. Millen, and Sean Andrussier, Raleigh, for Defendants Google, Inc., and Madras Integration, LLC.
Attorney General Roy Cooper, by Special Deputy Attorney General Norma S. Harrell and Special Deputy Attorney General I. Faison Hicks, for Defendants State of North Carolina, James T. Fain, III, Reginald Hinton, David T. McCoy, and Governor Michael F. Easley.
ERVIN, Judge.
The present appeal stems from another in a series of challenges to economic incentive legislation enacted by the General Assembly as violative of various provisions of the North Carolina Constitution. After careful consideration of the record in light of the applicable law, we conclude that Plaintiffs lack standing to assert the only claims that have been brought forward for our consideration on appeal and that the trial court correctly dismissed those claims pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1).
I. Factual Background
A. Substantive Facts
According to the allegations of the amended complaint, a series of meetings involving, at different times, representatives of Google; representatives of Burke, Caldwell, and McDowell Counties; various State officials, including employees of the Department of Commerce and the Department of Revenue; representatives of the City of Lenoir; and representatives of Duke Energy Carolinas, were held relating to the proposed project beginning in December, 2005. On or about 8 February 2006, the Caldwell County Commission and the Lenoir City Council made "an enhanced grant proposal" to Google relating to the construction of a proposed data center.
On 24 May 2006, a bill was introduced in the North Carolina House of Representatives that would, if enacted, have exempted internet data centers from certain sales and use taxes. On 25 May 2006, a substantially similar bill was introduced in the North Carolina Senate. On 10 July 2006, the Governor signed into law 2006 N.C. Sess. L. c. 66, which was entitled An Act to Modify the Current Operations and Capital Appropriations Act of 2005 (2006 Current Operations Appropriations Act). Among the components of the 2006 Current Operations Appropriations Act were certain amendments to Chapter 105 of the General Statutes, which had the effect of exempting entities defined as "eligible internet data centers" from certain sales and use taxes. The General Assembly *233 defined an "eligible Internet data center" in that legislation as:
A facility that satisfies each of the following conditions:
a. The facility is used primarily or is to be used primarily by a business engaged in Internet service providers and Web search portals industry 51811, as defined by NAICS.
b. The facility is comprised of a structure or series of structures located or to be located on a single parcel of land or on contiguous parcels of land that are commonly owned or owned by affiliation with the operator of that facility.
c. The facility is located or to be located in a county that was designated, at the time of application for the written determination required under sub-subdivision d. of this subdivision, either an enterprise tier one, two, or three area or a development tier one or two area pursuant to [N.C. Gen.Stat. § ] 105-129.3 or [N.C. Gen.Stat. § ] 143B-437.08, regardless of any subsequent change in county enterprise or development tier status.
d. The Secretary of Commerce has made a written determination that at least two hundred fifty million dollars ($250,000,000) in private funds has been or will be invested in real property or eligible business property, or a combination of both, at the facility within five years after the commencement of construction of the facility.
N.C. Gen.Stat. § 105-164.3(8e). Furthermore, the 2006 Current Operations Appropriations Act amended N.C. Gen.Stat. § 105-164.13 by inserting new language providing that "[t]he sale at retail and the use, storage, or consumption in this State of the following tangible personal property and services are specifically exempted from the tax imposed by this Article: ..."
(55) Sales of electricity for use at an eligible Internet data center and eligible business property to be located and used at an eligible Internet data center. As used in this subdivision, "eligible business property" is property that is capitalized for tax purposes under the Code and is used either:
a. For the provision of Internet service or Web search portal services as contemplated by [N.C. Gen.Stat. § ] 105-164.3(8e)a., including equipment cooling systems for managing the performance of the property.
b. For the generation, transformation, transmission, distribution, or management of electricity, including exterior substations and other business personal property used for these purposes.
c. To provide related computer engineering or computer science research.
N.C. Gen.Stat. § 105-164.13(55). The General Assembly attempted to ensure that the level of investment contemplated by N.C. Gen.Stat. § 105-164.3(8e)d was actually made at the required location by mandating, in certain circumstances that are not relevant to this case, the forfeiture of the exemption and the repayment of avoided taxes with interest. N.C. Gen.Stat. § 105-164.13(55). Although Plaintiffs have alleged that these sales and use tax exemptions for eligible internet data centers were enacted for the specific purpose of providing incentives to facilitate the construction and operation of an internet data center in Caldwell County by Google, Inc., none of the statutory language in question makes any reference to Google or any Google affiliate and the same tax treatment is available to any other entity that meets the criteria specified in N.C. Gen.Stat. § 105-164.3(8e).[1]
B. Procedural History
On 25 July 2007, Plaintiffs Michael Munger, Barbara Howe and Mark Whitley Cares, *234 acting in their capacities as individuals who pay state income taxes and state sales and use taxes, filed a complaint against James T. Fain, III, in his official capacity as Secretary of the North Carolina Department of Commerce; Reginald Hinton, in his official capacity as Acting Secretary of the North Carolina Department of Revenue; David T. McCoy, in his official capacity as State Budget Officer; Michael F. Easley, in his official capacity as Governor of the State of North Carolina (the State Defendants); Google; and Madras Integration, LLC., which is a subsidiary of Google (the Google Defendants). In their complaint, Plaintiffs sought a declaration that the various incentives provided for eligible internet data centers violated the exclusive emoluments, public purpose, fair and equitable taxation, and uniformity of taxation provisions of the North Carolina Constitution, and requested that the State Defendants be enjoined from providing any incentives to the Google Defendants and recoup any incentive amounts that had already been provided to the Google Defendants. On 16 August 2007, Plaintiffs amended their complaint as a matter of right in order to add a claim that the incentives provided for eligible internet data centers violated the law of the land provision of the North Carolina Constitution.
On 16 October 2007, the Google Defendants filed a motion to dismiss Plaintiffs' complaint pursuant to N.C. Gen.Stat. § 1A-1, Rules 12(b)(1) and 12(b)(6), on the grounds that Plaintiffs lacked standing to advance any of the claims asserted in their amended complaint and that Plaintiffs had failed to state a claim for which relief could be granted. On 18 October 2007, the State Defendants filed a motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rules 12(b)(1) and 12(b)(6), on the grounds that, even if the factual allegations of Plaintiffs' amended complaint were true, their claims would fail as a matter of law and that they had failed to allege sufficient facts to demonstrate that they had standing to bring the claims asserted in their amended complaint.
On 14 November 2008, the trial court entered an Order and Memorandum of Decision. The trial court dismissed Plaintiffs' Claims for Relief 4, 5, 6, 9 and 10, which alleged violations of the provisions of N.C. Const. art. V, §§ 2(1) and (7) requiring that the taxation and appropriation powers be exercised for "public purposes only," pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) on the grounds that "the challenged governmental activity in this case" was for a public purpose and that "the incentives offered to Google and those similarly situated, as a matter of law, benefit the public generally." The trial court dismissed Plaintiffs' Claims for Relief 1, 2 and 3, which alleged violations of the exclusive emoluments clause contained in N.C. Const. art. I, § 32, pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) on the grounds that, since the incentives in question have "been determined to `promote the public benefit' under the Public Purpose Clause, [they] necessarily [are] not an exclusive emolument." (emphasis in the original) (citing Blinson v. State, 186 N.C.App. 328, 342, 651 S.E.2d 268, 277-78 (2007)), appeal dismissed and disc. review denied, 362 N.C. 355, 661 S.E.2d 241 (2008) (citing Peacock v. Shinn, 139 N.C.App. 487, 496, 533 S.E.2d 842, 848 (2000), disc. review denied and app. dismissed, 353 N.C. 267, 546 S.E.2d 110 (2000)). The trial court dismissed Claims for Relief 7, 8 and 11, which rest upon the "just and equitable" taxation provision of N.C. Const. art. V, § 2(1); the uniformity of taxation provision of N.C. Const. art. V, § 2(2); and the "law of the land" clause of N.C. Const. art. I, § 19, for lack of standing pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(1). As a result of the fact that the 12th and final claim for relief set out in Plaintiffs' amended complaint "merely seeks the remedy of a declaratory judgment" and "[b]ecause each of the bases for the judgment that Plaintiffs seek have been considered and dismissed above," the trial court also dismissed Claim for Relief 12, which was the only remaining claim asserted in the amended complaint. On 12 December 2008, Plaintiffs noted an appeal from the trial court's order to this Court.
II. Legal Analysis
On appeal, Plaintiffs contend that they have standing in their capacity as taxpayers to challenge the sales and use tax exemptions granted to "eligible internet data centers" in the 2006 Current Operations Appropriations *235 Act as violative of the uniformity in taxation provisions of N.C. Const. art. V, §§ 2(1) and 2(2) and the "law of the land" clause of N.C. Const. art. I, § 19.[2] After careful consideration, we conclude that Plaintiffs lack standing to assert the claims that they have brought forward on appeal from the trial court's order.
A. Standard of Review
The rationale of [the standing rule] is that only one with a genuine grievance, one personally injured by a statute, can be trusted to battle the issue. The `gist of the question of standing' is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.
Mangum v. Raleigh Board of Adjustment, 362 N.C. 640, 642, 669 S.E.2d 279, 282 (2008) (quoting Stanley v. Dep't of Conservation & Dev., 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973)) (internal quotations omitted). As the party attempting to invoke the jurisdiction of the General Court of Justice, Plaintiffs have the burden of establishing standing. Coker v. DaimlerChrysler Corp., 172 N.C.App. 386, 391, 617 S.E.2d 306, 310 (2005), aff'd per curiam, 360 N.C. 398, 627 S.E.2d 461 (2006). "If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim." Estate of Apple v. Commercial Courier Express, Inc., 168 N.C.App. 175, 177, 607 S.E.2d 14, 16, disc. review denied, 359 N.C. 632, 613 S.E.2d 688 (2005). For that reason, the absence of standing is appropriately addressed by a dismissal motion lodged pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1). Peninsula Prop. Owners Ass'n v. Crescent Res., LLC, 171 N.C.App. 89, 93, 614 S.E.2d 351, 354, appeal dismissed and disc. review denied, 360 N.C. 177, 626 S.E.2d 648 (2005).
"When reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), a trial court may consider and weigh matters outside the pleadings." DOT v. Blue, 147 N.C.App. 596, 603, 556 S.E.2d 609, 617 (2001), disc. review denied and cert. denied, 356 N.C. 434, 572 S.E.2d 428-29 (2002) (citing Smith v. Privette, 128 N.C.App. 490, 493, 495 S.E.2d 395, 397 (1998)). "However, if the trial court confines its evaluation to the pleadings, the court must accept as true the plaintiff's allegations and construe them in the light most favorable to the plaintiff." Blue, 147 N.C.App. at 603, 556 S.E.2d at 617 (citing Privette, 128 N.C.App. at 493, 495 S.E.2d at 397). "We note that this Court's review of an order granting a Rule 12(b)(1) motion to dismiss is de novo, `except to the extent the trial court resolves issues of fact and those findings are binding on the appellate court if supported by competent evidence in the record.'" Id. (citing Privette, 128 N.C.App. at 493, 495 S.E.2d at 397); see also Fuller v. Easley, 145 N.C.App. 391, 395, 553 S.E.2d 43, 46 (2001) (stating that a trial court's decision to dismiss a case pursuant to N.C. Gen.Stat. § 1A1, Rule 12(b)(1) for lack of standing is reviewed on a de novo basis). Since the trial court did not resolve issues of fact in determining that the Plaintiffs lacked standing to assert Claims for Relief 7, 8, and 11 as alleged in the amended complaint, we review the trial court's decision to grant Defendant's motion to dismiss Plaintiffs' claims pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(1) using a de novo standard of review.
B. General Principles of Taxpayer Standing
The Supreme Court has stated that, "[a]lthough we caution[]" against the hindrance of the North Carolina government "by lawsuits from taxpayers who merely disagree with the policy decisions of government officials, we [have] concluded that `the right of a citizen and taxpayer to maintain an action in the courts to restrain the unlawful use of public funds to his injury cannot be denied.'" Goldston v. State, 361 N.C. 26, 33, 637 S.E.2d 876, 881 (2006) (quoting Teer v. Jordan, 232 N.C. 48, 59 S.E.2d 359 (1950)). For that reason, "a taxpayer has standing to bring an action against appropriate government *236 officials for the alleged misuse or misappropriation of public funds." Goldston, 361 N.C. at 33, 637 S.E.2d at 881. "A taxpayer injuriously affected by a statute may generally attack its validity[;][t]hus, he may attack a statute which ... exempts persons or property from taxation, or imposes on him in its enforcement an additional financial burden, however slight." In re Appeal of Barbour, 112 N.C.App. 368, 373, 436 S.E.2d 169, 173 (1993) (quoting Stanley v. Department of Conservation and Dev., 284 N.C. 15, 29, 199 S.E.2d 641, 651 (1973)). On the other hand, "[a] taxpayer, as such, does not have standing to attack the constitutionality of any and all legislation." Nicholson v. State Education Assistance Authority, 275 N.C. 439, 447, 168 S.E.2d 401, 406 (1969) (citing Wynn v. Trustees, 255 N.C. 594, 122 S.E.2d 404 (1961); Carringer v. Alverson, 254 N.C. 204, 118 S.E.2d 408 (1961); Fox v. Commissioners of Durham, 244 N.C. 497, 94 S.E.2d 482 (1956); Turner v. Reidsville, 224 N.C. 42, 29 S.E.2d 211 (1944)). "If a person is attacking the statute on the basis that the statute is discriminatory, however, the person `has no standing for that purpose unless he belongs to the class which is prejudiced by the statute.'" Barbour, 112 N.C.App. at 373, 436 S.E.2d at 173 (quoting In re Appeal of Martin, 286 N.C. 66, 75, 209 S.E.2d 766, 773 (1974) (citation omitted)) (citing State v. Vehaun, 34 N.C.App. 700, 703-04, 239 S.E.2d 705, 708 (1977), cert. denied 294 N.C. 445, 241 S.E.2d 846 (1978); Roberts v. Durham County Hosp. Corp., 56 N.C.App. 533, 538-39, 289 S.E.2d 875, 878, motion to dismiss denied, disc. review allowed, 306 N.C. 387, 294 S.E.2d 205 (1982), aff'd per curiam, 307 N.C. 465, 298 S.E.2d 384 (1983)); see also Nicholson, 275 N.C. at 448, 168 S.E.2d at 407 (citations omitted) (stating that "[t]he constitutionality of a provision of a statute may not [be challenged in the absence of proof] that the carrying out of the provision he challenges will cause him to sustain, personally, a direct and irreparable injury, apart from his general interest as a citizen in good government in accordance with the provisions of the constitution"). Thus, the decisions of the Supreme Court and of this Court with respect to "taxpayer standing" differentiate between (1) actions challenging the constitutional validity of a statute on the grounds that it allows public funds to be dispersed for reasons other than a "public purpose," in which a taxpayer generally has standing, and (2) actions challenging the constitutional validity of a statute on the grounds that the statute discriminates among classes of persons, in which a taxpayer must show that he belongs to a class that receives prejudicial treatment.
C. Nature of Plaintiffs' Claims
The present appeal centers on whether Plaintiffs, in their capacity as individuals who pay North Carolina income and sales and use taxes, have standing to challenge the sales and use tax exemptions for eligible internet data centers on the grounds that they (1) violate N.C. Const. art. V, § 2(1), which states that "[t] he power of taxation shall be exercised in a just and equitable manner"; (2) violate N.C. Const. art. V, § 2(2), the uniformity of taxation clause, which states that "[n]o class of property shall be taxed except by uniform rule, and every classification shall be made by general law uniformly applicable in every county, city and town, and other unit of local government"; and (3) violate the "law of the land" clause of N.C. Const. art. I, § 19, which provides that "[n]o person shall be ... deprived of his life, liberty, or property, but by the law of the land" or "denied the equal protection of the laws...."
In their complaint, Plaintiffs attempted to establish their standing to assert Claims for Relief 7, 8 and 11 on the basis of the following allegations:
2. This action arises from legislation (the "Google legislation") adopted by the North Carolina General Assembly on July 6, 2006 providing tax benefits and exemptions from retail sales and use tax totaling approximately tens of millions of dollars to Google with respect to its building and operating an internet data center in North Carolina. N.C. Gen.Stat. § 105-164.3(8e), 164.13(55). The Google legislation discriminates among taxpayers, creates a taxing scheme which is not uniform, which discriminates among taxpayers, which is not for a public purpose only, *237 which establishes an exclusive emolument not in exchange for public service, is contrary to the Law of the Land, and constitutes an unjust and inequitable exercise of the power of taxation thereby violating various provisions of the North Carolina Constitution.....
PARTIES
(Plaintiffs)
....
4. Plaintiff Michael C. Munger is a citizen and resident of the State of North Carolina, and is a taxpayer to the government of the State of North Carolina. Plaintiff Munger pays various types of taxes to the government of the State of North Carolina, including state income taxes and state sales taxes on items purchased.
5. Plaintiff Barbara Howe is a citizen and resident of the State of North Carolina, and is a taxpayer to the government of the State of North Carolina. Plaintiff Howe pays various types of taxes to the government of the State of North Carolina, including state income taxes and state sales taxes on items purchased.
6. Plaintiff Mark Whiteley Cares is a citizen and resident of the State of North Carolina, and is a taxpayer to the government of the State of North Carolina. Plaintiff Howe[3] pays various types of taxes to the government of the State of North Carolina, including state income taxes and state sales taxes on items purchased.
....
55. Google's operation of the facility in question in Lenoir, Caldwell County, North Carolina will be a business operation pursuant to Google's overwhelmingly predominant intention and objective of maximizing Google's profitability. Those profit-making intentions and objectives of Google are similar to the profit-making intentions and objectives of numerous other businesses in North Carolina. Google's operation of the facility in question in Lenoir, Caldwell County, North Carolina will not be for the provision of public social services or public infrastructure or public amenities. Rather, the Google facility in question is a facility to enable Google to satisfy customers of Google.
....
57. Plaintiffs are not eligible for and have not received any tax forbearance or subsidies or grants similar to the tax benefits for Google.
58. Through the present time, defendant State does not plan to provide any person or entity, other than Google, tax exemptions, grants, and subsidies pursuant to the Google legislation.
59. Plaintiffs are, have been, and/or will be directly and/or sufficiently injured by the tax benefits for Google in that those benefits unlawfully deplete the funds of the State to which the Plaintiffs contribute through their tax payments, thereby diminishing the funds available for lawful purposes and imposing disproportionate, additional, and increased financial burdens on the Plaintiff taxpayers.
....
Count 7-N.C. Constitution
(Violations of the "Taxation Must Be Fair and Equitable Clause")
....
76. The tax benefits for Google, and the purported laws, as applied for Google and/or on their face, constitute an unfair, unjust, inequitable, arbitrary, and capricious exercise of the power of taxation, and accordingly violate Article V, Section 2(1) of the North Carolina Constitution, which states, *238 "The power of taxation shall be exercised in a just and equitable manner...."
Count 8-N.C. Constitution
(Google Legislation Violates the Uniformity of Taxation Clause)
....
78. The Google legislation and the tax benefits for Google and the purported laws violate Article V, Section 2(2) of the North Carolina Constitution in that they violate the requirement of uniformity of taxation within classifications and were not enacted by general law nor are they uniformly applicable to all businesses in every county, city and town and other unit of local government, and in that the legislation, purported laws, and tax benefits were specifically enacted for the benefit of Google. The Google legislation and the tax benefits for Google and the purported laws also violate Article V, Section 2(2) of the North Carolina Constitution in that they treat Google in a massively preferential way relative to other similarly situated taxpayers, and do so without a rational basis[.]
....
Count 11-N.C. Constitution
(Violations of the "Law of the Land" Clause)
....
84. References herein to the "Eligible" refer to anyone eligible for the tax breaks and exemptions contemplated by the Google legislation.
85. Providing Google with the tax benefits for Google is state governmental favoritism for Google, relative to other persons and entities (including plaintiffs) who contribute mightily to the economic well-being of this State but who do not receive such benefits and do not qualify to be among the Eligible.
86. Providing any of the Eligible with the tax breaks and exemptions contemplated by the Google legislation is unearned and undeserved state governmental favoritism for Google, relative to other persons and entities (including plaintiffs) who contribute mightily to the economic well-being of this State but who do not receive such tax breaks and exemptions and do not qualify to be among the Eligible.
87. The favoritism referred to in the preceding two paragraphs accrues only to Google and to those who are the Eligible by meeting the arbitrary criteria of the Google legislation.
88. The favoritism referred to in the preceding three paragraphs does not promote, is not sufficiently causally related to promoting, and in fact detracts from this State's overall economic well-being, all the while directly promoting the well-being of Google.
89. The tax benefits for Google and the purported laws, as applied for Google and/or on their face, constitute unreasonable and arbitrary state action, and are state action not sufficiently related to the accomplishment of sufficiently compelling state objectives.
90. As applied for Google and/or on their face, the tax benefits for Google and the purported laws impose burdens and costs which significantly outweigh the public good likely to result from such tax benefits and purported laws.
91. Accordingly, the tax benefits for Google and the purported laws, as applied for Google and/or on their face, violate Article I, Section 19 of the North Carolina Constitution, i.e. violate the Law of the Land Clause.
....
103. Plaintiffs have sufficient interest and stake in the subject matter of this action. An actual controversy, and adverseness of interest, exist between plaintiff[s] and defendants with respect to the subject matter of this action. The subject matter of this action does not present mere *239 abstract questions, but presents a concrete and real conflict between adverse interests.
On appeal, Plaintiffs contend that they have standing sufficient to support maintenance of the present action for three reasons. First, they argue that Claims for Relief 7, 8 and 11 are not subject to the standing requirement applicable to discrimination-based challenges to taxation statutes. In essence, Plaintiffs argue that, "where a taxpayer is challenging a tax exemption, rather than a tax levy, he need not be among the class eligible for the specific tax exemption in question in order to challenge the constitutionality of the exemption." Secondly, Plaintiffs argue that, despite Defendants' contentions to the contrary, they have not "raise[]d a true discrimination claim" so that "the standing calculus for such claims is inapplicable." Finally, Plaintiffs argue that, even if the claims in question are discrimination-based and subject to heightened standing requirements, they satisfy the applicable standing requirement by virtue of their status as persons who pay the relevant taxes. After carefully reviewing the authorities upon which Plaintiffs rely, we do not find any of their arguments persuasive.
D. Plaintiff's Standing to Assert Constitutional Claims
1. Plaintiffs are not Eligible to Assert Traditional Taxpayer Standing
In arguing that traditional taxpayer standing rules apply to the claims that they have brought before us on appeal, Plaintiffs note the Supreme Court's statement in Goldston that "[o]ur cases demonstrate that a taxpayer has standing to bring an action against appropriate government officials for the alleged misuse or misappropriation of public funds," Goldston, 361 N.C. at 33, 637 S.E.2d at 881, and argue that, "[w]hile Goldston did not specifically articulate that taxpayer standing applies equally to the unconstitutional failure to collect revenue, the rationale of Goldston is just as compelling to the latter situation." In essence, Plaintiffs argue that, since "[t]he justification of Goldston was simply that the misuse or misappropriation of public money results in a loss of funds available for legitimate public purposes" and since "[t]he same result follows in the government's failure to levy and collect taxes," "both situations warrant taxpayer standing."[4]
The fundamental difficulty with this aspect of Plaintiffs' argument is that it treats Goldston as having worked a fundamental change in North Carolina standing jurisprudence. A careful reading of Goldston provides no indication that the Supreme Court intended such a result. On the contrary, by stating that "our cases demonstrate that a taxpayer has standing to bring an action against appropriate government officials for the alleged misuse or misappropriation of public funds," Goldston, 361 N.C. at 33, 637 S.E.2d at 881, the Supreme Court clearly indicated that it viewed its standing decision in that case as nothing more than a restatement of established law. However, established North Carolina law also requires that a person seeking to challenge "the validity of a discriminatory statute ... belong[] to the class which is prejudiced by the statute." Appeal of Martin, 286 N.C. at 75, 209 S.E.2d at 773; see also Nicholson, 275 N.C. at 447, 168 S.E.2d at 407. Nothing in Goldston suggests that the Supreme Court had any intention of calling into question the decisions which require membership in the class adversely affected by an allegedly discriminatory tax statute as a precondition for mounting a challenge to its constitutionality. Perhaps for that reason, a prior panel of this Court, in a post-Goldston decision, did not treat Goldston as having *240 altered the test to be applied in determining whether a taxpayer had standing to mount a discrimination-based challenge to a tax statute. Blinson, 186 N.C.App. at 333-35, 651 S.E.2d at 273-74. As a result, we conclude that the mere fact that Plaintiffs pay North Carolina income and sales and use taxes, without more, does not give them standing to challenge the sales and use tax exemption afforded to eligible internet data centers.
2. Plaintiffs' Claims Are Discrimination-Based
Next, Plaintiffs contend that the trial court erroneously "concluded that Plaintiffs lacked standing to pursue their fair tax claims because they were not in the class of taxpayers discriminated against by" the sales and use tax exemptions for eligible internet data centers. In essence, Plaintiffs contend that the trial court reached the erroneous conclusion that their claims were discrimination-based because of a mistaken reading of this Court's decision in Barbour. According to Plaintiffs, we concluded in Barbour "that the plaintiff in that case had standing for uniformity claims which were challenges to the existence of a tax exemption rather than those claims which challenged the discriminatory features of the exemption." Instead of alleging "that the qualifying criteria operate in a discriminatory manner," Plaintiffs claim to "have alleged that the creation of a special tax exemption-without regard to the qualifying criteria-is unconstitutional" (emphasis in the original). Based upon that analysis, Plaintiffs contend that they have not asserted a discrimination-based claim.
The statute at issue in Barbour exempted from taxation "[r]eal and personal property owned by a home for the aged, sick, or infirm, that is exempt from tax under Article 4 of [Chapter 105], and is used in the operation of that home." N.C. Gen.Stat. § 105-275(32). According to N.C. Gen.Stat. § 105-275(32), the "home" had to be "owned, operated, and managed" by a religious body, a Masonic organization, or a non-profit corporation controlled by a board of directors, a majority of whom were selected by a religious body or Masonic organization. In discussing the standing issue in Barbour, we first noted the plaintiff's allegation "that N.C. [Gen. Stat.] § 105-275(32) discriminates against the class of individual residential property owners who own their own property for private personal residences and are not exempt under the statute from taxation." Since the plaintiff "is a member of this class, and the exemption of property under this statute affects him as a residential property owner subject to taxation," we found that the plaintiff had "standing to challenge the statute on this basis." Barbour, 112 N.C.App. at 373, 436 S.E.2d at 173. In addition, the plaintiff alleged "that N.C. [Gen. Stat.] § 105-275(32) discriminates against the class of homes for the aged, sick, or infirm, which are non-religious and non-Masonic." Id. Since the plaintiff was "not a member of this classification" and since "taxpayers of this State who are members of this class are under no disability to challenge this statute as discriminating against them," we held that the plaintiff "lack[ed] standing to challenge the statute on the basis that it discriminates against non-religious, non-Masonic homes for the aged, sick, or infirm." Barbour, 112 N.C.App. at 373-74, 436 S.E.2d at 173-74.
After carefully studying the discussion of the standing issue in Barbour, we are unable to find any support for the distinction upon which Plaintiffs rely in this case. Barbour explicitly describes both of the theories upon which the plaintiff in that case claimed to have standing to challenge N.C. Gen.Stat. § 105-275(32) as resting upon assertions that classes of taxpayers were being discriminated against. In addition, both theories under which the plaintiff asserted the right to challenge the constitutionality of N.C. Gen.Stat. § 105-275(32) involved an argument that it was unconstitutional to exempt homes for the aged owned, operated, or managed by religious or Masonic bodies from taxation while denying the same exemption to private homeowners or homes for the aged that were owned, operated, or managed by nonreligious or non-Masonic bodies. In fact, this Court has cited Barbour as authority for the traditional requirement that, "in order to establish standing to challenge a statute under the Uniformity of Taxation Clauses, plaintiffs must demonstrate that they `belong[] to the class which is prejudiced by the statute.'" Blinson, 186 N.C.App. at 335, 651 *241 S.E.2d at 274 (quoting Barbour, 112 N.C.App. at 373, 436 S.E.2d at 173, (quoting Appeal of Martin, 286 N.C. at 75, 209 S.E.2d at 773)). As a result, we are unable to find any support for a distinction between challenges to the existence of an exemption and challenges to the "qualifying criteria" associated with an exemption in our Barbour opinion.
A careful reading of the three claims that Plaintiffs have brought forward on appeal indicates that each of them is, as the trial court concluded, discrimination-based. In their complaint, Plaintiffs allege that the relevant statutory provisions "discriminate[] among taxpayers [and] create[] a taxing scheme which is not uniform, which discriminates among taxpayers." In Claim for Relief 7, Plaintiffs allege that the sales and use tax exemption for eligible internet data centers is "inequitable" and "unfair." In Claim for Relief 8, Plaintiffs allege that the sales and use tax exemptions "violate the requirement of uniformity of taxation within classifications" "in that they treat Google in a massively preferential way relative to other similarly situated taxpayers, and do so without a rational basis[.]" Finally in Claim for Relief 11, Plaintiffs allege that Google has received "unearned and undeserved state government favoritism" in the form of "tax breaks and exemptions" while other equally-deserving persons, such as Plaintiffs, have not "receive[d] such tax breaks and exemptions."[5] At bottom, the crux of each of Plaintiffs' claims is that eligible internet data centers have received more favorable tax treatment than Plaintiffs and other similarly-situated persons, which makes their claims quintessentially discrimination-based. As a result, we conclude that the trial court correctly concluded that Plaintiffs had to demonstrate that they "`belong[ed] to the class which is prejudiced by the statute,'" Barbour, 112 N.C.App. at 373, 436 S.E.2d at 173, as a prerequisite for maintaining a constitutional challenge to the sales and use tax exemption for eligible internet data centers.
3. Plaintiffs do not Belong to the Class Prejudiced by the Challenged Statute
Finally, Plaintiffs contend that, even if they must demonstrate membership in the class harmed by the challenged statute as a precondition for launching a discrimination-based attack on its constitutionality, the trial court erred by "view [ing] the `class' to which plaintiffs must belong as the class attempting to qualify for the exemption rather than the class subject to the tax itself." According to Plaintiffs, "a plaintiff must be in the class of taxpayers who pay the tax exempted by the challenged tax exemption" and "need not be discriminated against by the criteria for the exemption itself" in order to challenge an exemption from the sales and use tax. In reaching this conclusion, Plaintiffs rely on this Court's decision in Barbour to grant the plaintiff standing to challenge an exemption from county property taxes granted to homes for the aged owned, operated, or managed by religious or Masonic bodies based on his status "as a residential property owner subject to taxation." Barbour, 112 N.C.App. at 373, 436 S.E.2d at 173. According to Plaintiffs, they "do not seek to vindicate the rights of other companies which cannot qualify for the tax exemptions" and instead "seek to vindicate their own personal rights-the right to have taxes levied in a uniform manner and to have those tax[] revenues available to fund lawful government purposes."
As we have already noted, our opinion in Barbour does not make any explicit distinction between challenges to the existence of an exemption and challenges to the "qualifying criteria" associated with an exemption. For that reason, we conclude that the fundamental *242 premise upon which Plaintiffs' standing argument rests lacks support in the language of our Barbour opinion. Thus, we must determine whether Plaintiffs' status as individuals who pay North Carolina sales and use taxes makes them members of a "`class which is prejudiced by the statute,'" Barbour, 112 N.C.App. at 373, 436 S.E.2d at 173, entitled to challenge the sales and use tax exemption granted to eligible internet data centers. In our opinion, that question has already been answered in the negative by our decision in Blinson.
In Blinson, plaintiffs contended that "their status as taxpayers, suffering an increased tax burden as a result of the Dell incentives, [was] sufficient to provide [them] with standing" to challenge certain tax incentives and tax credits made available to major computer manufacturing facilities. Blinson, 186 N.C.App. at 334, 651 S.E.2d at 273. In concluding that the Blinson plaintiffs lacked standing to assert discrimination-based claims under "the Uniformity of Taxation Clauses of the North Carolina Constitution and Dormant Commerce Clause of the United States Constitution," this Court explained that:
Plaintiffs' claims that the Computer Legislation violates the Uniformity of Taxation Clauses and the Federal Dormant Commerce Clause do not relate to any injury plaintiffs themselves have sustained. Rather, plaintiffs' claims under these provisions pertain only to a theoretical injury that might be suffered by other businesses that may attempt to compete with Dell. In other words, plaintiffs lack any "`personal stake in the outcome of the controversy'" with respect to their challenges under these provisions. [Goldston, 361 N.C. at 30, 637 S.E.2d at 879] (quoting Stanley, 284 N.C. at 28, 199 S.E.2d at 650).
....
Plaintiffs have not demonstrated that they belong to a class that is prejudiced by the operation of the Computer Legislation. Accordingly, we hold the trial court properly concluded that plaintiffs lack standing to bring their claims under both the Uniformity of Taxation Clauses and the Dormant Commerce Clause.
Blinson, 186 N.C.App. at 334-35, 651 S.E.2d at 274. As a result, this Court held that the fact that individuals seeking to challenge tax incentives provided to major computer manufacturers paid the taxes from which those computer manufacturers were exempt, without more, did not suffice to give them standing to advance a discrimination-based challenge to the constitutionality of those tax incentives.
The argument upon which Plaintiffs predicate their claim to have standing in this case does not differ materially from the argument utilized by the Blinson plaintiffs, which, as we have already noted, hinged solely upon the fact that they paid the taxes from which the affected computer manufacturers were exempt.[6]Blinson, 186 N.C.App. at 334, 651 S.E.2d at 273. In this case, Plaintiffs have made essentially the same argument, which is that they pay sales and use tax, that the same sort of exemption available to eligible internet data centers is not available to them, and that the existence of the sales and use tax exemption for eligible internet data centers forces them to bear more of the burden of financing the activities of state government than would be the case in the absence of the exemption. The fact that the class at issue here (that of all sales and use taxpayers) is indistinguishable on any principled basis from the class at issue in Blinson (that of all persons paying the taxes from which the large computer manufacturers were exempt) necessitates a conclusion that the Plaintiffs lacked standing to assert the discrimination-based claims set out in Claims for Relief 7, 8 and 11. Thus, the trial court *243 correctly dismissed the challenges to the exemptions from the sales and use tax available to eligible internet data centers enacted as part of the 2006 Current Operations Appropriations Act set out in Claims for Relief 7, 8 and 11 of the amended complaint for lack of standing.[7]
III. Conclusion
As a result, we hold that the trial court correctly concluded that Plaintiffs lacked standing to assert the discrimination-based Claims for Relief 7, 8, and 11 asserted in their amended complaint. For that reason, the trial court's order should be, and hereby is, affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge JACKSON concur.
NOTES
[1] The complaint also contains allegations relating to the constitutionality of assistance provided to Google from the Job Development Investment Grant Program. However, since Plaintiffs have not brought their challenge to any Job Development Investment Grant that may be made to Google or its affiliates forward on appeal and since the parties' briefs suggest that no such grant may have actually been made, we will not discuss the Job Development Investment Grant Program further in this opinion.
[2] Plaintiffs do not challenge the trial court's decision to dismiss Claims for Relief 1, 2, 3, 4, 5, 6, 9, 10, and 12 as asserted in their amended complaint on appeal.
[3] Presumably, the reference to Plaintiff Howe is a typographical error and should be understood as a reference to Plaintiff Cares.
[4] According to Plaintiffs, the decision in Stanley, 284 N.C. at 15, 199 S.E.2d at 641, is "eerily similar to the instant case." However, the issue addressed in Stanley, which involved whether "the creation of the Halifax, Northampton, and Jones County Authorities for the purpose of financing pollution abatement and control facilities or industrial facilities for private industry by the issuance of tax-exempt revenue bonds is ... for a public purpose," Stanley, 284 N.C. at 41, 199 S.E.2d at 658, is very different than the issue Plaintiffs seek to raise in this case, which revolves around the extent to which the General Assembly acted unconstitutionally by exempting eligible internet data centers, but not other taxpayers, from certain sales and use taxes. For that reason, we cannot agree with Plaintiffs' contention that Stanley is "eerily similar" to the present case.
[5] The claim that the Plaintiffs asserted in their amended complaint in reliance upon N.C. Const. art. I, § 19, appears to rest on that portion of the relevant constitutional provision that prohibits denial of the "equal protection of the laws." However, in the portion of their brief addressing their substantive claims, Plaintiffs appear to rely on that portion of Article I, Section 19, that equates to "substantive due process." We do not, however, believe that the exact portion of Article I, Section 19, upon which Plaintiffs' claim relies makes any difference in our standing analysis, since it is clear from an analysis of the substantive argument advanced in Plaintiffs' brief that the crux of their position remains that "[t]here is no fundamental difference between Google and any other taxpayer and yet the Google legislation, by its effect, singles out Google for preferential tax treatment" and is "repugnant to the administration of justice."
[6] Plaintiffs describe the decision in Bickett v. State Tax Commission, 177 N.C. 433, 99 S.E. 415 (1919), as a case in which third parties were "permitted to prosecute claims for enforcement of a tax statute." In Bickett, the Governor instituted a mandamus proceeding to compel the enforcement of tax legislation which the State Tax Commission deemed unconstitutional. The Farmers Union was allowed to intervene because it was "largely interested in the enactment and enforcement of the statute." Id., 177 N.C. at 434, 99 S.E. at 416. Bickett does little to elucidate the present case, since the Farmers Union was defending, not challenging, the constitutionality of the relevant tax legislation.
[7] The Blinson opinion does not discuss the facts of Barbour in any detail. However, the facts at issue in the two cases are clearly different. In Barbour, a residential property owner was allowed to challenge a tax exemption granted to the owner of another tract of property used for residential purposes. In Blinson, however, a group of individuals who paid property, income, and sales and use taxes were not allowed to challenge tax exemptions provided to large computer manufacturers. As a result, the taxpayer who brought suit in Barbour was attempting to challenge a tax exemption associated with the type of property that he did, in fact, own, while the same could not be said of the taxpayers who brought suit in Blinson. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324566/ | STATE OF NORTH CAROLINA
v.
WILLIAM BRADLEY CICCOLELLA, Defendant.
No. COA09-630
Court of Appeals of North Carolina.
Filed December 22, 2009
This case not for publication
Attorney General Roy A. Cooper, III, by Assistant Attorney General Tenisha S. Jacobs, for the State.
Carol Ann Bauer, for defendant-appellant.
STROUD, Judge.
On 27 July 2007, defendant William Bradley Ciccolella ("defendant") was convicted of a single count of assault on a female in district court. The district court sentenced defendant to a suspended sentence of 60 days imprisonment, with 18 months unsupervised probation. Defendant appealed to superior court, and he was tried during the 22 January 2008 Criminal Session of Superior Court, Forsyth County. We find no error.
Evidence from trial establishes the following factual background: The incident leading to defendant's conviction occurred on 24 March 2007 and involved defendant's wife, Elizabeth Ann Rice Ciccolella ("Ms. Ciccolella"). Ms. Ciccolella testified that she and defendant were separated but still legally married. On the morning of the incident, Ms. Ciccolella awoke and began making breakfast for their children. As she was making breakfast, defendant made a cup of coffee for himself with hot water from the faucet and then sat down at the dining room table. Ms. Ciccolella asked the children to help, and defendant began telling her that she was antagonizing the children. Defendant ordered Ms. Ciccolella to admit that she was antagonizing the children. When she would not do so, he started to get up and called her obscenities. He then came around to the corner of the stove, where she was standing. Defendant put his coffee cup on the corner of the stove and looked down at it. Ms. Ciccolella flinched and tried to get away, but could not. She explained what happened next: "[T]he next thing I knew, I had the contents of his warm coffee all over my hair, all over my left side left side and down my arm, down the front of me, and on the left side of my body." Ms. Ciccolella did not see defendant throw the coffee but testified that no one else was around and no one else in the house drinks coffee.
Ms. Ciccolella called 911 and Deputy J.E. Moore of the Forsyth County Sheriff's Department responded. Deputy Moore testified that he interviewed defendant and Ms. Ciccolella. He learned that they had an argument and that warm coffee had been poured on Ms. Ciccolella. According to Deputy Moore, defendant admitted that he poured the coffee on Ms. Ciccolella.
On 24 January 2008, a jury found defendant guilty of a single count of assault on a female. The trial court imposed a suspended sentence of 45 days imprisonment, with 18 months unsupervised probation. As a condition of probation, defendant was required to serve an active term of three days in the custody of the Forsyth County Sheriff. Defendant gave timely written notice of appeal.
On appeal, defendant raises only one assignment of error. Defendant contends that the trial court erred in telling defendant that if the jury found defendant guilty, the court would likely impose an active sentence. Here, defendant was convicted of a Class A1 misdemeanor and had a prior conviction level of I. Pursuant to N.C. Gen. Stat. § 15A-1340.23(c)(2) (2007), the trial court could have imposed community, intermediate, or active punishment of one to sixty days. Thus, the three-day active sentence as a condition of probation was within the presumptive range for defendant's class of offense and prior conviction level. "A sentence within the statutory limit will be presumed regular and valid. However, such a presumption is not conclusive." State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). Accordingly, defendant must overcome the presumption that his sentence was valid.
The presumption that a sentence is valid is overcome "[i]f the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence." Id. Additionally, our Supreme Court has held that "[a] judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962).
Our appellate courts have recognized that "[a] defendant has the right to plead not guilty, and `he should not and cannot be punished for exercising that right.'" State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003) (quoting State v. Boone, 293 N.C. 702, 712-13, 239 S.E.2d 459, 465 (1977)), disc. review denied, 358 N.C. 157, 593 S.E.2d 83 (2004). A defendant is entitled to a new sentencing hearing "[w]here it can be reasonably inferred the sentence imposed on a defendant was based, even in part, on the defendant's insistence of a jury trial[.]" State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002). Defendant claims the trial court gave him a three-day active sentence as a condition of his probation to punish defendant for exercising his right to a jury trial. Defendant claims that the following comment, made by the court prior to trial, is indicative of the court's improper consideration:
If 12 people find that the defendant has assaulted someone, this court will impose some active sentence, subject to hearing arguments. But, . . . this court generally would impose for stealing and for assaulting human beings, this court almost always imposes some active sentence. So I just make everyone aware of that going in . . . .
Defendant relies on State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977) for this contention. In Boone, the trial court indicated that it would impose an active sentence if defendant persisted in pleading not guilty and did not accept a lesser plea bargain offered by the State. Id. at 712, 239 S.E.2d at 465. Our Supreme Court held that the sentence imposed was induced by defendant's exercise of his right to a jury trial and vacated the judgment. Id. at 712-13, 239 S.E.2d at 465.
We find Boone readily distinguishable from the instant case. After reviewing the record, we do not find any error that would overcome the presumption that defendant's sentence was valid. Before the trial court stated that it typically imposes "some active time" for offenses such as stealing and assaulting human beings, subject to hearing arguments, the court explained:
The judgment below I know nothing about the case. It may be that the defendant based on the fact that he's competent, the jury will find, well, he either he feels no danger of being found guilty by unanimous verdict of 12 people.
On the other hand, I'll say this. I note the defendant received one day jail credit, 60 days suspended, unsupervised probation for a period of 18 months on the condition he pay a $100 fine, not assault . . . Timeout assessment, further recommend stay away from the prosecuting witness.
Thus, the court explained that it knew nothing about the case, noted the district court's sentence, and explained to the parties that it was not bound by the district court and generally imposes active time in assault cases. See State v. Tice, ___ N.C. App. ___, ___, 664 S.E.2d 368, 373 (2008) (finding the trial court's pretrial colloquy to be a notification to the defendant of the risks of going forward, rather than an implicit warning of an increased sentence if defendant pled not guilty). The trial court made no mention of defendant's not guilty plea, nor did the court indicate that defendant should have taken a plea bargain from the State. Indeed, the record does not appear to contain any evidence that the State offered a plea arrangement or that defendant rejected one. When read in the context of the court's entire statement, we simply do not find this statement indicates any improper motive as was plainly apparent in Boone. Accordingly, we conclude that the trial court's imposition of a three-day active sentence did not constitute error.
No error.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324598/ | 602 S.E.2d 845 (2004)
268 Ga. App. 798
LAMAD MINISTRIES, INC.
v.
DOUGHERTY COUNTY BOARD OF TAX ASSESSORS.
No. A04A1386.
Court of Appeals of Georgia.
July 29, 2004.
*847 Thomas James, Stephen Dillard, James, Bates, Pope & Spivey, Macon, for Appellant.
William Lee, Albany, Peter Olson, Brandon Bowen, Cartersville, Vann Parrott, Long & Denton, Quitman, for Appellee.
ELDRIDGE, Judge.
On January 20, 2004, after a bench trial the Dougherty County Superior Court affirmed the multi-year appeal of Lamad Ministries, Inc. from the Board of Equalization of Dougherty County's decision, finding no tax exemption for it either as a "place[] of religious worship," OCGA § 48-5-41(a)(2.1)(A) or (B), or exempt, as a home for the aged under OCGA § 48-5-41(a)(12). The trial court found that it is not a place of religious worship or a property owned by and operated exclusively as a church, an association or convention of churches, a convention mission agency, or as an integrated auxiliary of a church or convention or association of churches. Further, the trial court found it does not operate as a religious institution. The trial court also found that it provided a residence to persons over the age of 55 but was not as a "nonprofit home for the aged," OCGA § 48-5-41(a)(12)(A), because Lamad Ministries did not operate the home for the aged as a separate tax exempt corporation. Finding errors of law and of factual findings that were clearly erroneous, we affirm in part and reverse in part.
The only evidence in the record was submitted by Lamad Ministries; therefore, there was no conflict in the evidence. The trial court's findings of fact omitted much of the evidence that Lamad Ministries considered essential and is included here for amplification only. In deciding this case, the facts as found by the trial court are relied upon, and the law is applied to the facts thus found.
It is undisputed that Lamad Ministries, as a church, is a member of the Mallary Baptist Association, the Georgia Baptist Convention, and the Southern Baptist Convention. There are no stockholders or ownership interest in this nonprofit tax exempt corporation, and there is no affiliated or brother-sister corporation. The trial court found that Lamad *848 Ministries religious charitable operations include: (1) a broadcast ministry; (2) a church; (3) a Christian counseling center; and (4) a nonprofit Christian home for the aged.
The central issue is the taxability of Lamad Ministries' home for the aged, which it operates as the Seasons Christian Care Center ("SCCC"). The trial court found that "the statute ... calls for non-profit homes for the aged to be separate entities, in order that the tax exemption can be clearly granted to the home." The trial court found that SCCC is comprised of 21 acres, and there are 170 residents in 135 residential units made up of 43 two-and three-person villas and apartments.[1] Residents cannot be younger than 55, and the average age of residents is 77.7 years.
According to Lamad Ministries, an applicant must provide evidence that he is over 55 years of age, capable of living independently, and possess a genuine belief that it is God's will for him or her to reside there. There is no denominational or theological litmus test for prospective residents; in fact, accommodation can be made for atheists or agnostics. After the application, and reservation fees, the resident selects the floor plan and pays a one-time "ministry deposit" that can be afforded by the prospective resident. The balance of the ministry deposit is funded by the Lamad Ministries. Such ministry deposit defrays the cost of construction, of refurbishing the living units, and to refund former residents or their designated heirs between 85 and 100 percent of the initial ministry deposit paid. The initial ministry deposit is refunded at a reduction of three percent per year for the first five years and thereafter eighty five percent is refunded. Depending upon the level of care, i.e., Basic Watchcare, Supervised Watchcare, and Private Home Care, each resident pays a "resident service expense" to defray their living expenses and care costs. If at any time the resident is no longer able to pay the monthly fee, then the fee is waived and the resident continues to occupy his unit.
Lamad Ministries contends that the entire campus of this home for the aged constitutes "a place of worship, prayer, nurture, and care" and is used exclusively for religious, charitable, and educational purposes. The undisputed evidence is that there is a ministry center, including the church offices; the Worship and Fellowship Center where worship services are held; the Gideon Memorial Worship and Prayer Station, where individuals can pray; the Shepard Memorial Meditation Garden in the form of a cross with prayer stations; the Villa Tree Park Worship and Assembly Area and Gazebo; and the outdoor Worship and Confession altar for Catholic residents. The president and CEO of Lamad Ministries is the Reverend Bill Eidernire, an ordained minister, who provides for the religious needs of the residents. Reverend Joe Holden is the associate pastor who conducts the prayer ministry. The worship center office and chapel houses are comprised of: the chapel, kitchen, offices, beauty shop, and exercise room.
Erroneously as a matter of law, the trial court found "[t]his case does not present the question of whether the corporation known as `Lamad Ministries, Inc.' is exempt from income tax, but rather, whether the real property (that is, the tax parcels named above) which contains the Seasons Christian Care Center is exempt from ad valorem property tax." However, OCGA § 48-5-41(a)(12) requires such determination. On May 11, 1987, Lamad Ministries filed Form 1023 "Application for Recognition of Exemption Under Section 501(c)(3)" with the Internal Revenue Service("IRS"). Such application for federal tax exemption under 26 USC § 501(c)(3) covered "church related and church supporting Christian ministry designed to promote charitable missionary, evangelistic, biblical instruction, nurture and care activities with a context of worship and prayer." Specifically, the tax exemption covered a church, Christian counseling center, a radio broadcast ministry, and a senior adult Christian care residence ministry. On October 28, 1987, the IRS requested that Lamad Ministries provide additional information regarding its "counseling activities," "plan to operate a Christian care facilities," and church; the IRS required that Lamad Ministries address in detail the 14 criteria of the *849 agency for the classification as a "church." On November 15, 1987, Lamad Ministries provided the IRS an 11-page, single-spaced letter, providing the details of the scope and breadth of its planned ministry. On March 17, 1988, the IRS issued to Lamad Ministries a determination letter stating "[b]ased on the information you supplied, and assuming your operations will be as stated in your application for recognition of exemption, we have determined that you are exempt from federal income tax under section 501(c)(3)." On October 9, 2001, the Georgia Department of Revenue gave a determination letter that under OCGA § 48-7-25, Lamad Ministries was tax exempt.
The trial court found that Lamad Ministries operates its home for the aged as SCCC and that SCCC does not have a 26 USC § 501(c)(3) federal tax exemption as a separate corporation from Lamad Ministries.
1. Lamad Ministries contends that the trial court erred in not requiring the Dougherty County Board of Tax Assessors to prove by a preponderance of the evidence its assessment on the SCCC property under OCGA § 48-5-311(g)(3). We do not agree.
The general appeal procedure under OCGA § 48-5-311(g)(3) covers all appeals. Thus, as general legislation, such Code section must be read in pari materia with OCGA § 48-5-41; such specific legislation must be given effect, since it was neither repealed nor modified when OCGA § 48-5-311(g)(3) was passed. Ryan v. Commrs. of Chatham County, 203 Ga. 730, 732(1), 48 S.E.2d 86 (1948); Allison v. Domain, 158 Ga.App. 542, 544, 281 S.E.2d 299 (1981); Undercofler v. L.C. Robinson & Sons, Inc., 111 Ga.App. 411, 414-415(1), 141 S.E.2d 847 (1965), aff'd, L.C. Robinson & Sons, Inc. v. Undercofler, 221 Ga. 391, 144 S.E.2d 755 (1965); see also Monticello, Ltd. v. City of Atlanta, 231 Ga.App. 382, 383(1), 499 S.E.2d 157 (1998) (physical precedent only). Generally, in statutory construction, a specific statute prevails over a more general statute when they are in conflict, absent any indication of a contrary legislative intent. Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592(2), 436 S.E.2d 219 (1993); First Nat. Bank of Atlanta v. Sinkler, 170 Ga.App. 668, 670(1), 317 S.E.2d 897 (1984); see also Monticello, Ltd. v. City of Atlanta, supra at 384, 499 S.E.2d 157. "The construction which will give effect to a statute or rule is preferred to a construction which will destroy it." (Citations omitted.) Brown v. State Merit System of Personnel Admin., &c., 245 Ga. 239, 242(1)(d), 264 S.E.2d 186 (1980). Newer statutes are construed in connection and in harmony with existing laws, because "[a]ll statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; they are to be construed in connection and in harmony with the existing law." (Citation and punctuation omitted.) State of Ga. v. Davis, 246 Ga. 761-762(1), 272 S.E.2d 721 (1980); McPherson v. City of Dawson, 221 Ga. 861, 862, 148 S.E.2d 298 (1966).
Under OCGA § 48-5-41, anyone seeking exemption must carry the burden of proof to show entitlement, and the exemption statute is strictly construed against the person claiming the exemption. Fulton County Bd. of Tax Assessors v. Visiting Nurse Health System of Metro. Atlanta, 243 Ga.App. 64, 67(2), 532 S.E.2d 416 (2000); see also decided under former law Leggett v. Macon Baptist Assn., 232 Ga. 27, 205 S.E.2d 197 (1974); Gold Kist v. Jones, 231 Ga. 881, 885, 204 S.E.2d 584 (1974). Other than such burden to prove the exemption, the Board of Tax Assessors has the burden of proof by a preponderance of evidence that its assessment is correct. OCGA § 48-5-311(g)(3).
2. Lamad Ministries contends that the trial court erred as a matter of law in holding that it is not entitled to the "home for the aged" exemption under OCGA § 48-5-41(a)(12)(A). We agree.
The trial court erred as a matter of law in construing OCGA § 48-5-41(a)(12) as requiring that a home for the aged must be a separate tax exempt corporation from the tax exempt organization that operates both a home for the aged and other tax exempt operations such as a church, a radio ministry, and as a counseling center. The subsection sets only five qualifications for tax exemption:(1) that the home for the aged be a nonprofit corporation; (2) that the corporate *850 entity have no stockholders; (3) that no income or profits be distributed to or for the benefit of any private person; (4) that the nonprofit corporation have IRS tax exemption; and (5) that the nonprofit corporation be subject to Georgia law regulating nonprofit and charitable corporations. There is no condition that the nonprofit tax exempt Georgia corporation only engage in the operation of a home for the elderly in order to be exempt from ad valorem taxes. All of these conditions have been met and satisfied as a matter of law by Lamad Ministries.
Nowhere in the language of the Act does the statute prohibit a nonprofit corporation, that operates a home for the aged, from engaging in other tax exempt activities or mandate that the building and operation of the home for the aged be its exclusive activity. See generally McPherson v. City of Dawson, supra at 862, 148 S.E.2d 298 ("`All statutes are presumed to be enacted ... with full knowledge of the existing condition of the law and with reference to it; [laws] are ... to be construed in connection and in harmony with the existing law.'").
The clear and unambiguous purpose of the exemption was to encourage the building and operation of homes for the aged by offering ad valorem tax exemption to nongovernmental tax exempt nonprofit Georgia corporations, because there is a growing aging population and a need for housing for them; therefore, the scheme and purpose of the Act was to encourage, and not to discourage, the creation of homes for the aged. The trial court's construction would discourage and undermine the purpose for the Act, because such construction would bar ad valorem tax exemption to numerous tax exempt nonprofit Georgia corporations engaged in other ad valorem tax exempt activities. See generally Pennington & Evans v. Douglas, Augusta & Gulf Ry. Co., 3 Ga.App. 665, 678(3), 60 S.E. 485 (1908) (general scheme and purport of the proposed legislation). The trial court's construction would limit, hinder, and deter such function of building and operating homes for the aged by religious, charitable, fraternal, or veteran organizations that engage in a wide range of other tax exempt activities. "It is the duty of the court to consider the results and consequences of any proposed construction and not [to] so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature." (Citations, punctuation and emphasis omitted.) Gen. Elec. Credit Corp. &c., v. Brooks, 242 Ga. 109, 112, 249 S.E.2d 596 (1978). "In the construction of [any] statute a court may decline to give a legislative act such construction as will attribute to the General Assembly an intention to pass an act which is not reasonable, or as will defeat the purpose of the proposed legislation." (Citation and punctuation omitted.) Bd. of Trustees of the Policemen's Pension Fund v. Christy, 246 Ga. 553, 554(1), 272 S.E.2d 288 (1980). In construing statutes, interpretations which cause an unreasonable intent to be found, an intent to do an unreasonable thing, or intent to do futile and useless things, will not be found to be the legislative intent; instead, the construction of intent should further the purpose of the Act. Trust Co. Bank v. Ga. Superior Court Clerks' Coop. Auth., 265 Ga. 390, 456 S.E.2d 571 (1995); City of Jesup v. Bennett, 226 Ga. 606, 609, 176 S.E.2d 81 (1970).
The caption to an Act states the purpose of such legislation as intended by the General Assembly.
In construing legislation, nothing is more pertinent, towards ascertaining the true intention of the legislative mind in the passage of the enactment, than the legislature's own interpretation of the scope and purpose of the act, as contained in the caption. The caption of an act of the legislature is properly an index to the contents of the statute as construed by the legislature itself, a summarizing of the act, made right at the time when the discussion of every phase of the question is fresh in the legislative mind.
(Citations and punctuation omitted.) Copher v. Mackey, 220 Ga.App. 43, 45(4), 467 S.E.2d 362 (1996).
In Ga. L.1977, p. 1152, the first exemption for homes for the elderly was passed by the General Assembly, and the caption used language expressing its intent almost identical to OCGA § 48-5-41(a)(12)(A). The caption to the first Act reads: "qualified as *851 exempt organizations under the United States Internal Revenue Code of 1954, section 501(c)(3), as amended, and section 92-3105 [(OCGA § 48-5-41(a)(12)(A))], as amended, of the Georgia Code of 1933." Significantly, the caption went on to express the intent of the General Assembly that the Act was "to provide that the exemption herein granted is cumulative and not in derogation of relief granted by other laws." Such language plainly indicated that the General Assembly expected that a nonprofit tax exempt corporation would already be engaged in other tax exempt activities and could be exempt under multiple provisions. Thus, such new exemption was not restricted to a tax exempt corporation only engaged in operating a home for the aged. The General Assembly expressed its clear and unambiguous intent that nonprofit Georgia corporations operating other ad valorem tax exempt activities would be permitted to operate a tax exempt home for the aged without any risk of losing such other ad valorem tax exemptions. Therefore, a Georgia nonprofit tax exempt corporation may receive tax exemption from ad valorem taxes when it operates a home for the aged exclusively or when it operates a home for the aged as well as other tax exempt activities.
Further, when 26 USC § 501(c)(3) of the IRS Code is specifically adopted and incorporated by reference by Georgia statute, the federal regulations that interpret such statute are also incorporated into such Georgia statute. See Greene County v. North Shore Resort at Lake Oconee, 238 Ga.App. 236, 244(3), 517 S.E.2d 553 (1999) (physical precedent only). Under 26 CFR § 1.501(c)(3)-1 (a)(1), the IRS Regulations explicitly provide that an exempt organization under 26 USC § 501(c)(3) may be "operated exclusively for one or more of the purposes specified in such section." Therefore, when the General Assembly incorporated 26 USC § 501(c)(3) into OCGA § 48-5-41(a)(12), the General Assembly's intent was to include nonprofit tax exempt corporations that were engaged in the operation of more than homes for the elderly, because such exemption was passed with full knowledge of the existing federal tax exemption law and the IRS Regulations. McPherson v. City of Dawson, supra at 862, 148 S.E.2d 298.
3. Lamad Ministries contends that the trial court erred as a matter of law in holding that it is not entitled to the "place [] of religious worship" and "property owned and operated exclusively [by] a church" exemptions provided by OCGA § 48-5-41(a)(2.1)(A) and (B) for SCCC property. We agree.
Division 2 controls as to the tax exemption as to all of the SCCC property used primarily as a home for the elderly. However, this and all other properties seeking exemption shall be approached by a primary use analysis, which requires the property to be examined in its separate divisible and primary use parts. In fact, on the first and fourth pages of the judgment, the property was returned in two separate parcels, which received different treatment from the Dougherty County Board of Equalization and which the parties agreed to treat in the same way. In Thomas v. Northeast Ga. Council, Inc., Boy Scouts of America, 241 Ga. 291, 244 S.E.2d 842 (1978), it was held that of a tract of land, one portion should be exempt from ad valorem tax, while the remainder by primary use would not be exempt; it logically follows that one portion of land may be exempt from ad valorem taxes by one primary use, while the remainder by primary use is exempt from ad valorem taxes for a different exemption.
Thus Division 3 applies to the rest and remainder of the property devoted primarily to religious purposes, i.e., the Chapel; Shepard Memorial Meditation Garden; Villa Tree Park Worship and Assembly Area and Gazebo; Worship and Prayer Trail; and Gideon Memorial Worship and Prayer Station. The other property was used primarily as a home for the aged as found in Division 2 and as found by the trial court and therefore, is exempt already.
"[I]t is the rule that all grants of exemption [from taxation] must be strictly construed in favor of the State, and that nothing passes by implication; but this rule must not be pushed to unreasonableness." (Citations and punctuation omitted.) Rayle Elec. Membership Corp. v. Cook, 195 Ga. *852 734-735(2), 25 S.E.2d 574 (1943); see also Roberts v. Atlanta Baptist Assn., 240 Ga. 503, 507, 241 S.E.2d 224 (1978); Church of God &c. v. City of Dalton, 213 Ga. 76, 78, 97 S.E.2d 132 (1957).
The trial court found that Lamad Ministries was not entitled under OCGA § 48-5-41(a)(2.1)(A) to exemption, because: "[SCCC] residents have no restrictions on their religious faith, and no restrictions or obligations regarding their activities"; (2) "the original Resident handbook ... has absolutely no mention of any religious or spiritual element" and a subsequent edition only had "one small paragraph on `spiritual development'"; (3) "participation in [spiritual] activities is voluntary"; (4) the chapel at the SCCC is small (with only 25 members [according to the trial court and 70/75 according to Lamad Ministries]), and most residents attend church elsewhere or not at all; and (5) other than three weekly church services [(Wednesday, Saturday, and Sunday)], "there are no organized religious activities at the facility."
"`(A)ny judicial analysis of a religion is a sensitive and perilous undertaking where it is addressed to the relationship of Church and State. For this reason, courts are loath to inquire into the merits or truth of any set of purportedly religious beliefs.'" (Citation omitted.) Roberts v. Ravenwood Church of Wicca, 249 Ga. 348, 350(3), 292 S.E.2d 657 (1982). Here, the trial court described the modern nondenominational Protestant church and some main-line denominations as well.[2] The trial court went on to find:
There was much testimony to demonstrate that Lamad ... is an organization which feels it is its mission or calling to own a senior living facility, and provide a good place to live to seniors. Yet, having such a calling does not make the property a "place of religious worship"; nor are the owner's feelings and beliefs relevant factors in determining tax exemption. The primary use of the property is as a senior living facility, and it is not primarily a place of religious worship.
Thus, under the findings of fact made by the trial court, the primary use of the property was "as a senior living facility," which in Division 2 was held to be tax exempt. The trial court should have made a separate determination of exemption as to those portions of the property used primarily for a home for the elderly from those parts of the parcels of property primarily used as a place of religious worship. Therefore, the use of other parts of the property primarily for religious purposes would be a place of religious worship, because the trial court found that SCCC was primarily used as a home for the aged as to all the property, which we have found to be exempt; even though the trial court erred as a matter of law in applying the law to the facts as to the home for the aged, its erroneous application of the law to the facts found as to the property primarily used for a home for the aged also applied to that portion of the property used primarily for worship. Such aggregation of all the property together to determine the primary purpose for exemption deprived that portion of the property used primarily as a place of worship from tax exemption.[3] The trial court treated all of parcels one and two the same and made no specific finding as to the Chapel, Gardens, Gazebo, undeveloped land, and other areas. In fact, there was no evidence in the record showing that the Chapel, Gardens, Gazebo, undeveloped land, and other areas were used for purposes other than as a place of religious worship. Roberts *853 v. Atlanta Baptist Assn., supra at 505, 241 S.E.2d 224. Thus, the trial court's finding as to these parts of the property to be a home for the elderly was without any evidentiary support and clearly erroneous.
The Tax Assessors are fully capable of separating the tax exempt property from nonexempt property and assessing for tax purposes each property appropriately where required. Thus, in looking to the primary use of this part of the property, it comes within a place of religious worship.
[A] place of [religious] worship is not necessarily a church, nor is the term synonymous with a church; and, in the connection in which the words are used ... they mean the gathering of individuals for public worship, at whatever place they may be, whether in the open air, under a tent, beneath an arbor, in a warehouse, and in an opera-house ... If the presence of the omnipotent and omnipresent God cannot be restricted to a mere man made edifice, surely it was not intended to limit the worship of such a God to a building. Neither is the fact that fewer members than a complete, separate, organized church met in this assembly, controlling.
(Citation, punctuation, and emphasis omitted.) Roberts v. Atlanta Baptist Assn., supra at 508-509, 241 S.E.2d 224. The tax exemption as "a place of religious worship" depends upon the primary purpose for which the property is used. Roberts v. Ravenwood Church of Wicca, supra at 351, 292 S.E.2d 657. Further, "the words `religious worship' import a concept of a congregation assembling in a place open to the public to honor the Deity through reverence and homage." Leggett v. Macon Baptist Assn., supra at 30(II), 205 S.E.2d 197.
The trial court found that the chapel and other areas were regularly used for worship at various times during the week and were open to public worship. The trial court found that the residents were free to worship there, not to worship at all, or to go elsewhere to worship, which erroneously was given as one basis for finding no primary place of religious worship. Clearly, three religious services were held in the chapel each week on Wednesday, Saturday, and Sunday and at least twenty-five residents attended, and "[t]he essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." (Citation and omitted.) Roberts v. Ravenwood Church of Wicca, supra at 350(3), 292 S.E.2d 657. It is not the number of worshipers or the frequency of worship, but the primary use that defines a place of worship. A place of worship is no less a place of worship, because it allows all to freely worship as they believe or chose and does not impose a dogma or ritual. Id.
While Lamad Ministries is Baptist by affiliation, it does not exclude other denominations from worship and is ecumenical in approach, welcoming all to worship.
When "the evidence establishes without dispute that religious activities are an integral part of every aspect of the use of the property... the property [is] exempt from taxation as a place of worship." Pickens County Bd. of Tax Assessors v. Atlanta Baptist Ass'n, 191 Ga.App. 260, 261, 381 S.E.2d 419 (1989).
[I]n applying the exemption authorized by basic Georgia law to the facts in the individual case, we must look to the use of the property, not merely its ownership, and we must also look to the primary use of the property to determine whether it is exempt from taxation. In addition, we are mindful, in applying these principles, that all tax exemptions are to be strictly construed since taxation is the rule and exemption is the exception.
(Citation omitted.) Leggett v. Macon Baptist Assn., supra at 28(I), 205 S.E.2d 197.
As to those portions of SCCC not used primarily as a home for the elderly and shown to have been used primarily as a place of worship, the trial court erred as a matter of law in denying tax exemption.
4. Lamad Ministries contends that the trial court erred as a matter of law in holding OCGA § 48-5-41(d) precludes it from qualifying for the statutory exemptions noted therein. We agree.
The trial court erred as a matter of law in finding that Lamad Ministries acting as *854 SCCC was not exempt as a home for the aged under OCGA § 48-5-41 as found in Division 2 and as a place of religious worship under OCGA § 48-5-41 as found in Division 3; therefore, the trial court's legal conclusion that Lamad Ministries does not come under OCGA § 48-5-41(d) also is legal error.
5. Lamad Ministries contends that the trial court erred as a matter of law in holding that the denial of tax exempt status did not violate its rights under the Free Exercise and Equal Protection Clauses of the federal constitution.
Having decided Divisions 2, 3, and 4 in favor of Lamad Ministries' ad valorem tax exempt status under OCGA § 48-5-41 on state legal grounds, there is no need to address the federal constitutional issues.
Judgment affirmed in part and reversed in part.
RUFFIN, P.J., and ADAMS, J., concur.
NOTES
[1] Lamad's evidence shows that there are 167 living units for 145 residents.
[2] Roberts v. Atlanta Baptist Assn., supra at 505-506, 241 S.E.2d 224, in finding tax exemption for land found that "[t]he attenders are generally youth groups of grammar schools, high school and college age, of various denominations, including Catholic, under the direction of ministers and Christian lay workers of the various religious groups."
[3] Mixed questions of law and fact are governed by the clearly erroneous standard as to the findings of fact only; however, "the clearly erroneous standard applies solely to the trial court's factual findings and that we owe no deference to the trial court's legal conclusions." Suggs v. State, 272 Ga. 85, 88(4), 526 S.E.2d 347 (2000). "Under this standard of review, we must defer to the trial court's factual findings unless clearly erroneous, but are not bound by its legal conclusions." (Footnote omitted.) Garden Club of Ga. v. Shackelford, 274 Ga. 653, 655(1), 560 S.E.2d 522 (2002). "[A]ppellate court must independently apply the legal principles to the facts." (Citation omitted.) Id. at 655, n. 7, 560 S.E.2d 522. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324547/ | 689 S.E.2d 132 (2010)
GREEN
v.
The STATE.
No. A10A0078.
Court of Appeals of Georgia.
January 6, 2010.
*133 Mullis & Oliver, Marnique Williams Oliver, for appellant.
Samuel H. Altman, Dist. Atty., Mary K. McKinnon, Asst. Dist. Atty., for appellee.
ELLINGTON, Judge.
An Emanuel County jury found Pamela Green guilty beyond a reasonable doubt of burglary, OCGA § 16-7-1; and theft by deception, OCGA § 16-8-3. Following the denial of her motion for a new trial, Green appeals, challenging the sufficiency of the evidence and contending that she received ineffective assistance of counsel. Finding no error, we affirm.
1. Green contends there was no evidence that she entered the burgled residence or otherwise participated in the burglary committed by her husband and another man. In addition, with regard to the charge of theft by deception, Green contends there was no evidence that she made any false statement or confirmed any false fact to the victim, who bought a stolen trailer from her husband.
On appeal from a criminal conviction, [the appellate court] view[s] the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the appellate court] must uphold the jury's verdict.
(Citations omitted.) Rankin v. State, 278 Ga. 704, 705, 606 S.E.2d 269 (2004).[1] The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged. Clark v. State, 275 Ga. 220, 221(1), 564 S.E.2d 191 (2002).
*134 Viewed in the light most favorable to the verdict, the evidence showed the following. In May or early June 2007, Green's husband and an acquaintance, Gregory Young, went to Lee Moore's house in Emanuel County, which someone had told them was "abandoned," at least four times and took a large utility trailer, appliances, tools, and various other items. On the third trip, Green's husband and Young went inside the house, and it was apparent that someone still lived there. After Young refused to go back in the house, Green's husband told Young that he was going to go back to the house to get a welder. Green went along on at least two trips to Moore's house, including the trip when they took the trailer, and told her husband what she wanted him to take from Moore's property.
During the same time period, Green and her husband offered to sell the stolen trailer to Verlon Gillis for $2,000. Gillis asked Green if the trailer was "clear," and she responded that it was, that her husband had owned the trailer for two years. Gillis offered to pay $1,500 for the trailer, and Green and her husband accepted. Gillis paid them a partial payment of $1,000 immediately and took possession of the trailer. Gillis returned the following week and paid Green the balance.
In June 2007, Moore returned to his house after a month's absence and discovered that the house had been burgled. Many items had been stolen, including the trailer, a welder and numerous other tools, sports memorabilia and collectibles, and Moore's mother's Bible and driver's license.
A few days later, Green's husband approached Larry Bennett in the grocery store where he worked and asked if he wanted to buy a welder or knew anyone who did. Bennett called the sheriff's department to report the suspicious encounter and described Green, a man and a woman who were with him, and Green's truck with the welder in the back. Later that day, investigators stopped Green's husband's truck; Green was with her husband, and the welder was still in the back, along with some of Moore's tools. As a result, investigators arrested Green's husband and, with Green's consent, searched their house. Investigators found much of the stolen property, including some of the tools, sports memorabilia, and collectibles. Later, investigators discovered that Gillis was in possession of the stolen trailer and, in questioning him, learned of Green's involvement in the sale of the stolen trailer. In a second search of Green's residence, investigators found Moore's briefcase, containing his mother's Bible and driver's license, in Green's closet.
After Green's husband was arrested, Green asked Young to take the blame and to tell investigators that he sold the stolen property to Green's husband. Green also wrote to a sheriff's deputy, saying, "[the investigators] know I didn't burglary [sic] no place by myself."
(a) We conclude that, although there was no direct evidence that Green personally entered Moore's house,[2] the evidence authorized the jury to find beyond a reasonable doubt that Green participated in the burglary of Moore's house by actively aiding, abetting, and encouraging it. See OCGA § 16-2-20.[3] Specifically, the evidence that Green, knowing that her husband and Young were removing portable property from the house of an unknown person, asked her husband to take specific items of property that she wanted is sufficient to sustain her conviction as a party to the crime of burglary. Dunn v. State, 245 Ga.App. 847, 847-848, 539 S.E.2d 198 (2000) (the evidence was sufficient to convict the defendant of burglary as a party to the crime where he counseled and encouraged others to *135 commit burglaries by telling them that he would buy particular types of guns and then buying their stolen weapons); Todd v. State, 189 Ga.App. 538, 539-540(2), 376 S.E.2d 917 (1988) (the evidence was sufficient to convict the defendant of burglary as a party to the crime where he counseled and encouraged others to commit burglaries by telling them that he would buy particular types of guns and electronic equipment, later buying their stolen goods, and asking them where the goods were stolen so that he could resell in a different area).
(b) In addition, we conclude that the evidence was sufficient to convict Green of theft by deception. Under OCGA § 16-8-3(a), "[a] person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property." A person deceives if he or she intentionally:
(1) Creates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false; ...
(4) Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid ... legal impediment to the enjoyment of the property[.]
OCGA § 16-8-3(b). In this case, although there was contradictory evidence,[4] there was evidence that Green told Gillis that her husband had clear title to the trailer and had owned it for two years, when she knew that, in truth, her husband had taken the trailer from Moore's unattended house within the month preceding, and that she then accepted Gillis's payment for the trailer. The evidence authorized the jury to find beyond a reasonable doubt that Green obtained funds from Gillis by deceptive means. Drake v. State, 274 Ga.App. 882, 883(1), 619 S.E.2d 380 (2005) (evidence authorized conviction for theft by deception where the defendant represented himself as the legal owner of stolen tools and sold them to a pawn shop); Watson v. State, 252 Ga.App. 244, 247(3), 555 S.E.2d 896 (2001) (evidence authorized conviction for theft by deception where the defendant stole a boat trailer and then sold it to the victim).
2. Green contends, for the first time on appeal, that her conviction should be reversed and she should be granted a new trial because she received ineffective assistance of trial counsel.
It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at the earliest practicable moment. The rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised before appeal if the opportunity to do so is available. If the claim is not raised at the earliest practicable moment, it is waived.
(Punctuation and footnotes omitted.) Alford v. State, 293 Ga.App. 512, 515-516(4), 667 S.E.2d 680 (2008). In the case at bar, appellate counsel filed Green's motion for a new trial but failed to raise an ineffective assistance of counsel claim. As a result, this claim has been waived. Id.
Judgment affirmed.
ANDREWS, P.J., and DOYLE, J., concur.
NOTES
[1] See also OCGA § 24-9-80 ("The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.").
[2] See OCGA § 16-7-1(a) ("A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another[.]").
[3] (a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.
(b) A person is concerned in the commission of a crime only if he: ... Intentionally aids or abets in the commission of the crime; or ... Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.
OCGA § 16-2-20.
[4] Green relies on her husband's testimony that she did not know the trailer was stolen and that it was he, not she, who told Gillis that he owned the trailer. Young, however, testified that Green was present when he and her husband took Moore's trailer. Furthermore, Gillis testified that Green is the one who told him that her husband had owned the trailer for two years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324560/ | 689 S.E.2d 188 (2010)
STATE of North Carolina
v.
McCoy Antwan RICHARDSON.
No. COA09-621.
Court of Appeals of North Carolina.
February 16, 2010.
*190 Attorney General Roy Cooper, by Associate Attorney General Eryn E. Linkous, for the State.
Greene & Wilson, P.A., by Thomas Reston Wilson, New Bern, for defendant.
ELMORE, Judge.
On 17 January 2008, a jury found McCoy Antwan Richardson (defendant) guilty of possession with intent to distribute cocaine, resisting a public officer, and possession of drug paraphernalia. He received a sentence of nine to eleven months' imprisonment for possession with intent to distribute cocaine, sixty days' imprisonment for resisting a public officer, and 120 days' imprisonment for possession of drug paraphernalia. For the reasons set forth below, we vacate all three convictions.
Background
On 28 February 2008, at approximately 5:20 p.m., the Greenville Police Department executed a search warrant for 508-A Contentnea Street. Greenville Police Officer Dennis Grimsley approached the front of the residence and yelled, "police, search warrant." Some other officers went to the back of the residence to prevent people from leaving the house through the back door. Officer Grimsley then pushed the front door open and saw a man and woman in the front room. He also saw several men running out the back door. Officer Grimsley followed them out the back door and noticed four men on the ground, all of whom had been detained by officers. Defendant was one of those men and he had a sum of money in his hands. Officer Grimsley handcuffed defendant and put the cash in defendant's pocket. Officer Grimsley patted down defendant, but found no weapons or contraband; he did find additional cash in defendant's pocket. The cash from defendant's hand and pocket totaled $1,060.00. Officer Grimsley also found a plastic baggy containing a 9.4-gram crack rock on the ground near defendant. The baggy was located about two feet from defendant's feet. The other men who had been detained were the same distance from defendant.
Officer Grimsley continued his search inside the house and found a "set of black digital scales, a small amount of suspected marijuana," and "an open box of sandwich bags which were similar to" the bag containing the crack rock. These items were found in a side room in the house. Officer Grimsley also found a "glassine" pipe in the lower left cabinet of the kitchen.
Before executing the search warrant, police had observed defendant "in the area of 508-A Contentnea Street" at least five, but no more than ten times. Officer Grimsley had observed defendant "[g]oing in and out of the house, standing on the front porch, standing in the yard." However, the officers did not specify a particular time span during which they saw defendant at the house; the officers had patrolled that neighborhood for years.
The house was rented by Benny Bullock, Jr., and defendant lived at a different address in the same neighborhood. There was no evidence that defendant lived at the house on Contentnea street.
Arguments
Defendant first argues that the trial court erred by denying his motion to dismiss the charge of possession with intent to distribute cocaine. We agree. A motion to dismiss should be denied if there is substantial evidence "(1) of each essential element of the offense charged . . ., and (2) of defendant's being the perpetrator of such offense." State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quotations and citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, we "view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve." Id. (citations omitted).
Section 90-95 of our General Statutes provides, in relevant part, that it is *191 "unlawful for any person . . . [t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[.]" N.C. Gen.Stat. § 90-95(a)(1) (2009). "The offense of possession with intent to sell or deliver has the following three elements: (1) possession of a substance; (2) the substance must be a controlled substance; (3) there must be intent to sell or distribute the controlled substance." State v. Carr, 145 N.C.App. 335, 341, 549 S.E.2d 897, 901 (2001) (citations omitted). Here, the second element is not at issue: it is undisputed that the substance in the baggy was crack cocaine, a controlled substance. However, defendant argues that the State presented insufficient evidence of possession.
In a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of nonexclusive, constructive possession is sufficient. Constructive possession exists when the defendant, while not having actual possession,. . . has the intent and capability to maintain control and dominion over the narcotics.
* * *
Where [contraband is] found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.
State v. McNeil, 359 N.C. 800, 809-10, 617 S.E.2d 271, 277 (2005) (quotations and citations omitted; alterations in original). Here, it is undisputed that defendant did not have actual physical possession of the crack, did not reside in any way at 508-A Contentnea Street, and did not have exclusive control of 508-A Contentnea Street when the police executed the search warrant. Therefore, we must determine whether the State showed "other incriminating circumstances."
The State put forth, as "other incriminating circumstances," defendant's proximity to the baggy of crack, his previous visits to the house, and defendant's own home in the same neighborhood. Our Supreme Court recently observed that "[o]ur cases addressing constructive possession have tended to turn on the specific facts presented." State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 595 (2009) (citations omitted). In Miller, the Court reviewed a number of constructive possession cases and concluded that "two factors frequently considered are the defendant's proximity to the contraband and indicia of the defendant's control over the place where the contraband is found." Id. at 100, 678 S.E.2d at 594. The Court found sufficient evidence of both where the defendant was found sitting on the same end of a bed from which cocaine was recovered, a bag containing the defendant's birth certificate and state-issued identification card were found in that bedroom, and the bedroom was in a home in which two of his children lived with their mother. Id.
Here, there was no indicia of defendant's control over the place where the contraband was found. He was not listed as a renter, none of the utilities were in his name, no documents with defendant's name on them were located there, none of defendant's family members lived there, and there was no evidence that he slept there or otherwise lived there. The State points to State v. Baize to support its contention that defendant's residence in the same neighborhood and previous visits to 508-A Contentnea Street, along with his proximity to the drugs after being detained by the police in the backyard, are a sufficient basis for constructive possession. We cannot agree. In Baize, this Court held that the State had presented sufficient evidence of constructive possession when a witness personally observed the defendant produce a plastic bag of cocaine and then hand it to another person, from whom the plastic bag was eventually recovered. State v. Baize, 71 N.C.App. 521, 523, 531, 323 S.E.2d 36, 38, 42 (1984). The scenario in Baize is too dissimilar from the scenario at hand to be instructive. We cannot find any authority that would support a finding of constructive possession given the factual scenario before us. Accordingly, we hold that *192 the trial court erred by denying defendant's motion to dismiss and we vacate that conviction.
Defendant next argues that the trial court erred by denying his motion to dismiss the charge of possession of drug paraphernalia because the State presented insufficient evidence of possession. We agree.
General statute section 90-113.22 provides, in relevant part:
It is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance which it would be unlawful to possess, or to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.
N.C. Gen.Stat. § 90-113.22(a) (2009). The police recovered the following drug paraphernalia from the house: glassine pipe, digital scales, and plastic sandwich bags. Again, the State progressed under a theory of constructive possession and, again, we cannot find that there was sufficient evidence of defendant's possession of any of the drug paraphernalia. Defendant was first identified in the backyard, although it could be reasonably inferred that he ran out of the house into the backyard through the kitchen. However, the glassine pipe was found in a lower cabinet in the kitchen and no other evidence connected the pipe to defendant. In addition, no evidence connected defendant to the room in which the scales and plastic sandwich bags were found. The connection between defendant and these objects is even more tenuous than the connection between defendant and the baggy of crack, which we found insufficient to withstand a motion to dismiss. Accordingly, we hold that the trial court erred by denying defendant's motion to dismiss the charge of possession of drug paraphernalia and we vacate that conviction.
Defendant next argues that the trial court erred by denying his motion to dismiss the charge of resisting an officer. We agree. General Statute section 14-223 provides, "If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor." N.C. Gen.Stat. § 14-223 (2009). The State asserts that defendant's flight after Officer Grimsley announced, "police, search warrant," at the front door is sufficient evidence of resisting an officer. Every appellate opinion interpreting § 14-223 implicates only the constitutional prohibition of unreasonable seizures of the person, generally in the context of an arrest or investigatory stop. See, e.g., State v. Swift, 105 N.C.App. 550, 555, 414 S.E.2d 65, 68 (1992) (holding that a defendant does not have the right to resist a legal investigatory stop and his "flight from a lawful investigatory stop contribute[s] to probable cause that [he] was in violation of . . . § 14-223") (citation omitted). Here, though, the police officers were at the house to execute a search warrant, not an arrest warrant, and Officer Grimsley was not making an investigatory stop when he announced "police, search warrant" at the front door. We find no authority for the State's presumption that a person whose property is not the subject of a search warrant may not peacefully leave the premises after the police knock and announce if the police have not asked him to stay. Defendant's flight rightly suggests that some criminal activity was afoot, but, as we observed in Swift, "the Biblical provision that `[t]he wicked flee when no man pursueth,' Proverbs 28:1, does not have the force of law. The innocent may flee if frightened enough." Swift, 105 N.C.App. at 554, 414 S.E.2d at 68. Accordingly, we hold that the trial court erred by denying defendant's motion to dismiss the charge of resisting an officer for insufficiency of the evidence and we vacate that conviction.
Having vacated all of defendant's convictions, it is unnecessary for us to address defendant's final argument.
Vacated.
Judges STEELMAN and HUNTER, JR., ROBERT N., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324620/ | 689 S.E.2d 444 (2009)
STATE of North Carolina
v.
Donna Marie SMALL, Defendant.
No. COA09-222.
Court of Appeals of North Carolina.
December 8, 2009.
*445 Attorney General Roy A. Cooper, III, by Assistant Attorney General, Karen A. Blum, for the State.
Mercedes O. Chut, Greensboro, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Donna Marie Small ("defendant") appeals from felony convictions for discharging a firearm into occupied property and assault with a deadly weapon inflicting serious injury. After careful review, we find no error.
Background
The evidence at trial tended to show that on 1 September 2006, Arthur Lee Hunt, Jr. ("Hunt") and his girlfriend, Wanda Small ("Wanda"), decided to spend the night at the home of Dennis Russell ("Russell"). Hunt is defendant's ex-boyfriend, and Wanda is defendant's sister. Also present in the home were Russell's wife and three children.
On 2 September 2006 between 2:30 a.m. and 3:00 a.m., Russell was awakened by a ringing telephone, which he did not answer. At that time, Russell noticed a vehicle in front of the house, and upon investigation, he saw someone disturbing Hunt's motorcycle. He then saw the same person retrieve a knife and shotgun out of a nearby car. Russell proceeded to awaken Hunt and tell him that someone was "messing with his bike." Russell then went to get his gun and call 911 as Hunt exited the front door.
From inside the house, Russell heard a shotgun blast, and Hunt immediately reappeared, yelling that defendant shot him. Russell saw defendant standing at the front door holding the shotgun, yelling: "Send Snoop[1] back out here so I can finish what I came for." Russell testified that he held defendant at gunpoint until the police arrived and arrested her. At the Thomasville Police Department, defendant signed a written statement before Officer Jason Annas ("Officer Annas") in which she admitted to shooting Hunt.
It was later determined in the emergency room that Hunt had been shot in the arm, shattering the bone, an injury which required a hospital stay of over a week. After arresting defendant, officers observed one broken window and pellet holes in the siding of Russell's house.
*446 Defendant was indicted on one count of discharging a firearm into occupied property and one count of assault with a deadly weapon inflicting serious injury. Prior to trial, defendant made a motion to dismiss all charges, alleging that the State failed to comply with North Carolina's discovery procedures by not disclosing statements made by Wanda and Hunt to members of the district attorney's office. The court denied defendant's motion, but ordered the State to proffer Hunt's testimony outside the presence of the jury to enable the court to determine whether a discovery violation had occurred. After considering the State's proffer and arguments of counsel, the court denied defendant's renewed motion to dismiss. Defendant then made a motion in limine to exclude Hunt's testimony, which was also denied.
On 9 July 2008, defendant was convicted by a jury of both charges. She was sentenced to two consecutive sentences of 25 to 39 months imprisonment.
Analysis
I.
Defendant first argues that the trial court erred in denying her motion to dismiss and motion in limine on the grounds that the State failed to comply with N.C. Gen.Stat. § 15A-903(a)(1) (2007) by not disclosing to defendant Hunt's pre-trial statement to the prosecution. Specifically, defendant claims that Hunt told the prosecution that he did not remember giving a statement to police on the night of the shooting, but the officer's report, which was disclosed to defendant, contained a statement made by Hunt to the officer.
The purpose of our discovery statutes is "to protect the defendant from unfair surprise." State v. Tucker, 329 N.C. 709, 716, 407 S.E.2d 805, 809-10 (1991). "Whether a party has complied with discovery and what sanctions, if any, should be imposed are questions addressed to the sound discretion of the trial court." Id. at 716, 407 S.E.2d at 810. "[The] discretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the state in its noncompliance with the discovery requirements." State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986). "[O]nce a party, or the State has provided discovery there is a continuing duty to provide discovery and disclosure." State v. Blankenship, 178 N.C.App. 351, 354, 631 S.E.2d 208, 210 (2006).
N.C. Gen.Stat. § 15A-903(a)(1) provides that, upon defendant's motion, the court must order the State to make available to the defense, inter alia, all witness statements and investigating officers' notes. In addition, any oral statements made by a witness to a prosecuting attorney outside the presence of a law enforcement officer must be provided in writing or in recorded form if there is "significantly new or different information in the oral statement from a prior statement made by the witness." Id.
During the trial court's inquiry into the alleged discovery violation, the State presented Officer Annas's report, which provided in part that "Mr. Hunt was coherent and also stated that Ms. Donna Marie Small shot him." The State provided this report to defendant during discovery. Upon voir dire examination, Hunt testified as follows:
Q. And could you see in what position your bike was in?
A. It was upright, and she was standing beside of it.
Q. And by "she," who do you mean, sir?
A. Donna Small.
Q. And what happened after you saw Ms. Small?
A. She said, "Come here, I want to talk to you."
Q. Okay. And what did you do after that?
. . . .
A. I went in and put my shoes on, and as I was coming back out the door, I shut the door `cause I didn't want nobody to hear us arguing, and when I shut the door when I turned around, I seen a barrel pointing at me, and I didn't say anything.
Q. After Ms. Small pointed the gun at you, what happened next?
A. Well, as I was closing the door, I seen a barrel pointing at me. So I didn't *447 say anything or do nothing, I just took a jump, and pow.
Q. Took a what? Took a jump?
A. Took a leap. And when I did, my arm goes out like this, and pow, blew it right behind me.
Q. Where did you leap to, sir?
A. I jumped tried to jump between the brick column. I didn't make it, so I stood back up and I ran in the house and told my cousin to call the ambulance, that Donna Small shot me.
Hunt then testified regarding a pre-trial interview between himself and prosecutor Wendy Terry ("Terry"), which defendant claimed was never provided to her during discovery:
Q. And you said you have no remembrance of talking to any officer?
A. I was shocked. I don't remember what got there first, the ambulance or a police officer.
Q. Do you remember ever talking to a police officer?
A. No. All I remember is the ambulance.
Based on the foregoing, the trial court made the following findings of fact and conclusions of law:
[T]he Court finds that the alleged victim in this matter issued a statement to the initial investigating officer, which is contained in an incident investigation report with an addendum or attachment entitled, "Reporting Officer Narrative," which reads in part as follows: "Mr. Hunt was coherent and also stated Ms. Donna Marie Small shot him."
. . . .
The Court further finds that this statement made to the officer constitutes a prior statement under N.C.G.S. § 15A-903(a)(1), and that while the alleged victim's proffer of testimony does offer contextual details not included in the prior statement, that the testimony does not constitute a significantly new or different statement from the prior statement given to the officers.
. . . .
The Court finds and concludes that this statement was disclosed to the defendant in discovery. The Court finds that, further, the defendant has provided a Mirandized statement, according to the discovery to the officers, wherein she admits to shooting the alleged victim.
(Emphasis Added.)
Ultimately the trial court concluded that the pre-trial statement made to Terry did not offer any significantly new or different information from what had already been provided in prior discovery disclosures and therefore no discovery violation had occurred.
Hunt testified during voir dire that defendant shot him, which is precisely the same information conveyed to Officer Annas and included in the officer's report, which was disclosed to defendant. Further, the assertion that defendant shot Hunt was contained in other witness statements and that of defendant herself. Nothing in the record indicates that Hunt at any point made a statement to prosecutors contradicting or in any way altering his statement that he was shot by defendant. The only divergence in Hunt's oral pretrial statement to the State was that he did not remember speaking with officers on the night of the shooting. However, Hunt's account of the actual incident remained consistent.
In sum, Hunt's statement that he could not remember giving a statement to the police does not constitute any unfair surprise to defendant; rather, Hunt's proffered testimony comports with his earlier statement that defendant shot him. Therefore, although Hunt did make a subsequent statement to prosecutors, since it did not contain significantly new or different information from his prior statement, the State was under no duty to disclose the second statement. Accordingly, we find no abuse of discretion in the trial court's denial of defendant's motion to dismiss the charges or denial of her motion in limine.
II.
Defendant next contends that the trial court erred by providing a jury instruction on transferred intent. The State opposes *448 consideration of this issue on the ground that defendant failed to object to the instruction at trial. "Where a defendant fails to make a proper objection at trial, he waives the issue on appeal, absent a finding of plain error." State v. Ferebee, 177 N.C.App. 785, 789, 630 S.E.2d 460, 463 (2006) (citations omitted).
A. Preservation of Issue
The discussion of transferred intent first arose during defendant's motion to dismiss the charge of discharging a firearm into occupied property. In arguing that the State had presented sufficient evidence of intent as to that charge, the prosecutor cited State v. Fletcher, 125 N.C.App. 505, 481 S.E.2d 418, disc. review denied, 346 N.C. 285, 487 S.E.2d 560, cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299 (1997), and explained that
[i]n that case, the court upheld the trial court's use of the doctrine of transferred intent to satisfy the intent element of the crime of discharging a firearm into an occupied residence where the evidence tended to show the defendant intended to shoot a person, but instead shot into an occupied residence.
The trial court then ruled that "defendant's motion to dismiss the charge of firing into an occupied dwelling at the close of all of the evidence is denied on the basis of 125 N.C.App. 505, 481 S.E.2d 418." At that point, the judge indicated his intent to include a transferred intent charge by stating: "I'm not sure how transferred intent is crafted by that trial judge, but they clearly upheld it." When asked if he had anything further, defense counsel stated: "Please Your Honor to each of the court's findings of fact, conclusions of law and rulings, the defendant respectfully excepts, respectfully objects and excepts."
After recalling the jury for defendant to rest, the court proposed delivery of a jury charge that included incorporation of the transferred intent charge within the substantive charge of discharging a firearm into occupied property. After additional discussion regarding the submission of lesser-included offenses and proposed instructions by defense counsel, the court began addressing defendant's objections to the State's second proposed instruction, an expansion of the substantive charge of discharging a firearm into occupied property to include a definition of willful and wanton. Subsequently, the court stated:
I will then, over the defendant's objections, include the special instruction requested by the [State] as to transferred intent to read as follows: If you find that the defendant, Donna Marie Small, intended to shoot Arthur Lee Hunt, Junior, and in doing so discharged a weapon into 9 Park Street, Thomasville, North Carolina, then you may infer that Donna Marie Small willfully, wantonly and intentionally shot into 9 Park Street, Thomasville, North Carolina.
The State contends that the trial court mis-spoke in stating that defense counsel had objected to the transferred intent instruction, when in actuality, he had objected to the definition of willful and wanton. However, it is significant that immediately after ruling on the transferred intent instruction, the trial court stated, "I don't think, guys, I don't know that we need could you guys expand a little bit more why you think we need to define wanton for the jury?" Shortly thereafter, the court "sustain[ed] the defendant's objection to including an expanded definition in the jury instructions themselves." Thus, it is clear from the record that the trial court considered these two issues separately and was cognizant from all previous discussions that defendant objected to the transferred intent instruction and the instruction that defined willful and wanton.
A complete review of the record indicates that defendant excepted to both proposed instructions. This showing, in combination with the trial court's clear perception that defendant specifically objected to the transferred intent portion of the charge, is sufficient for this Court to review defendant's assignment of error.
B. Jury Instruction Transferred Intent
When evaluating a challenge to a jury instruction, this Court must determine whether the trial court "instruct[ed] the jury on the law arising on the evidence." State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 *449 (1989). "Failure to instruct upon all substantive or material features of the crime charged is error." Id.; accord State v. Lanier, 165 N.C.App. 337, 354, 598 S.E.2d 596, 607 (2004) (stating that "[f]ailure to instruct on each element of [the] crime is prejudicial error requiring a new trial"). Therefore, we must determine whether incorporation of the transferred intent instruction properly conveyed to the jury the elements of discharging a weapon into occupied property.
According to our Supreme Court, discharging a firearm into occupied property is defined as "intentionally, without legal justification or excuse, discharg[ing] a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons." State v. Williams, 284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973) (emphasis omitted); N.C. Gen. Stat. § 14-34.1 (2007). Defendant contends that inclusion of the transferred intent instruction inaccurately informed the jury of these elements.
Defendant cites State v. James, 342 N.C. 589, 466 S.E.2d 710 (1996), for the proposition that the statute requires proof that defendant knew the structure into which she shot was occupied. When instructing on the elements of this offense, the trial court instructed that the third element the State must prove was "that Donna Marie Small knew that 9 Park Street, Thomasville, North Carolina was occupied by one or more persons." In the final mandate of that instruction the trial court stated:
If you find from the evidence beyond a reasonable doubt that on or about September 2, 2006, Donna Marie Small willfully or wantonly and intentionally discharged a firearm into 9 Park Street, Thomasville, North Carolina, while it was occupied, and that the defendant knew that it might be occupied, it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
It is clear from the record that the jury was properly instructed that the State was required to prove knowledge that the home was occupied before finding defendant guilty of this charge.
Defendant further argues that the doctrine of transferred intent may not be applied when a defendant is charged with a different crime than he or she apparently intended to commit, or if the crime charged is not a specific intent crime. Defendant cites State v. Jordan, 140 N.C.App. 594, 537 S.E.2d 843 (2000), for this proposition; however, defendant's reliance on Jordan is misplaced.
In Jordan, this Court reversed the defendant's conviction due to erroneous jury instructions because the trial court submitted "a logical impossibility for the jury's consideration," and also instructed in "an inherently inconsistent manner." Id. at 596, 537 S.E.2d at 845. When instructing on second-degree murder, the trial judge described deliberation as a required element when, in fact, deliberation was not required. Id. Thus, this Court's decision in Jordan was not a prohibition against utilizing the doctrine of transferred intent to satisfy the intent element of a different crime or a restriction of its use to only specific intent crimes; rather, Jordan narrowly held that the instructions in that case were misleading.
In contrast, this Court has expressly authorized the use of the transferred intent doctrine "to satisfy the intent element of discharging a firearm into occupied property, where the evidence tends to show that defendant intended to shoot a person, but instead shot into an occupied residence." Fletcher, 125 N.C.App. at 513, 481 S.E.2d at 423. In Fletcher, the evidence showed that the defendant fired shots at the victim's back as she attempted to flee. Id. at 508, 481 S.E.2d at 420. The victim sought refuge at a nearby residence. Id. When police arrived, the occupant of the residence identified several areas where bullets had penetrated the house. Id. This Court found no error in the trial court's utilization of the transferred intent instruction to transfer the intent to shoot a particular person to the offense of discharging a firearm into the occupied property of another. Id. at 513, 481 S.E.2d at 423. Rationale for this treatment is based on the fact that N.C. Gen.Stat. § 14-34.1, which prohibits *450 discharging a weapon into occupied property, was "enacted for the protection of occupants of the premises" and is therefore "an offense against the person, and not against property." Id.
In the case sub judice, the State presented evidence that defendant intentionally fired a weapon toward Hunt and that some projectiles penetrated the exterior of Russell's home. Further, evidence was introduced showing that defendant knew persons other than Hunt were present inside the home. Nothing in the trial court's instructions to the jury negated the requirement that the jury find: (1) an intentional discharge of the firearm; (2) into an occupied building; and (3) defendant had knowledge, or reasonable grounds for believing that the building was occupied at the time of the discharge.
Thus, the trial court's substantive instructions on discharging a weapon into occupied property accurately conveyed the elements of the offense to the jury and comported with the evidence presented. The trial court, therefore, did not err in incorporating the transferred intent doctrine into the instruction for this offense.
III.
Finally, defendant argues that the trial court erred in failing to dismiss the charge of discharging a firearm into occupied property due to insufficiency of the evidence. Specifically, defendant argues that the State failed to present evidence that the firearm discharged by defendant met the requisite velocity specifications set forth in N.C. Gen. Stat. § 14-34.1(a). This argument is without merit.
A motion to dismiss due to insufficiency of the evidence is properly denied if the State has presented substantial evidence of each essential element of the offense charged and that the defendant is the perpetrator. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed. 2d 150 (2000). Substantial evidence is that which a reasonable fact finder might find sufficient to support a conclusion. State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987). The court "must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455.
The applicable statute provides that:
Any person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class E felony.
N.C. Gen.Stat. § 14-34.1(a) (emphasis added). A firearm is defined as "[a] handgun, shotgun, or rifle which expels a projectile by action of an explosion." N.C. Gen.Stat. § 14-409.39(2) (2007).
Of particular relevance is the legislature's use of the word "or" in N.C. Gen.Stat. § 14-34.1(a). This Court has held that "`[w]here a statute contains two clauses which prescribe its applicability, and the clauses are connected by a disjunctive (e.g. `or'), the application of the statute is not limited to cases falling within both classes, but will apply to cases falling within either of them.'" State v. Conway, 194 N.C.App. 73, 77-78, 669 S.E.2d 40, 43 (2008) (quoting Grassy Creek Neighborhood Alliance, Inc. v. City of Winston-Salem, 142 N.C.App. 290, 296, 542 S.E.2d 296, 300 (2001)). There are two categories of weapons covered by this statute; firearms and other barreled weapons. The question then becomes whether the descriptive phrase "capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second" refers only to "barreled weapons" or also applies to "any firearm." Although this is a novel issue, the plain language of the statute, legislative intent, and previous treatment by North Carolina Courts indicate that the minimum muzzle velocity requirement applies only to "barreled weapons" and not to firearms in general.
"The primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. To *451 determine this intent, the courts should consider the language of the statute, the spirit of the act, and what the act seeks to accomplish." Tellado v. Ti-Caro Corp., 119 N.C.App. 529, 533, 459 S.E.2d 27, 30 (1995) (citation omitted).
The title of the statute at issue is "Discharging certain barreled weapons or a firearm into occupied property." N.C. Gen. Stat. § 14-34.1. The most reasonable interpretation is that all firearms are implicated in the statute, but only certain barreled weapons are included those with a muzzle velocity of at least 600 feet per second. Also, the intent of this statute is to protect occupants of the building. Williams, 284 N.C. at 72, 199 S.E.2d at 412. Thus, the most logical interpretation is that the General Assembly was primarily concerned with the use of traditional firearms to shoot into occupied property but further recognized the potential for individuals to use non-traditional barreled weapons for this same purpose. Therefore, the legislature included the traditional firearm in the statute, but further included other barreled weapons that have a propensity to penetrate a structure and injure occupants.
Additionally, a person is guilty of this felony if "he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons." Williams, 284 N.C. at 73, 199 S.E.2d at 412 (emphasis omitted). The jury was properly instructed as to these elements. Defendant fails to cite any cases, and we have found none, requiring presentation of evidence of muzzle velocity as part of the State's prima facie case for this charge.
In sum, because there was substantial evidence to satisfy each element of the crime charged, and that defendant was the perpetrator, we conclude that the trial court did not err in denying defendant's motion to dismiss.
Conclusion
For the foregoing reasons, we hold that the trial court did not abuse its discretion when it determined that the State did not violate the discovery statutes; the trial court did not err in incorporating transferred intent into the jury instructions; and the trial court did not err in denying defendant's motion to dismiss the charge of discharging a firearm into occupied property.
No error.
Chief Judge MARTIN and Judge BRYANT concur.
NOTES
[1] Snoop is a nickname for Arthur Hunt. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324494/ | 689 S.E.2d 39 (2009)
BDI LAGUNA HOLDINGS, INC.
v.
MARSH.
Marsh
v.
BDI Laguna Holdings, Inc.
Nos. A09A0990, A09A0991.
Court of Appeals of Georgia.
November 19, 2009.
Reconsideration Denied December 16, 2009.
*41 Bondurant, Mixson & Elmore, Tiana S. Mykkeltvedt, Jeffrey O. Bramlett, Frank M. Lowrey IV, Corey F. Hirokawa, Atlanta, for appellant.
Baker, Donelson, Bearman, Caldwell & Berkowitz, Steven G. Hall, Robert G. Brazier, Kevin A. Stine, Atlanta, for appellee.
DOYLE, Judge.
These consolidated appeals arise from a dispute over employee compensation. In Case No. A09A0990, BDI Laguna Holdings, Inc. ("BDIL") appeals from a jury verdict in favor of Charles Marsh, a former company employee, awarding him the value of certain company stock promised to him. Specifically, the company contends that the trial court erred in entering the judgment because there was inadequate consideration supporting the promise of stock. We agree and reverse.
In Case No. A09A0991, Marsh cross-appeals, enumerating as error (1) the grant of summary judgment to BDIL on Marsh's claims for breach of trust, conversion, and tortious deprivation; (2) the grant of BDIL's motion for judgment notwithstanding the verdict ("j.n.o.v.") as to a portion of the verdict; and (3) the grant of a directed verdict to the former chief executive officer of BDIL. For the reasons stated below, we affirm in that case.
Case No. A09A0990
1. "[A]fter rendition of a verdict, all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict."[1] So viewed, the evidence shows that Marsh was an executive at a consumer electronics retailer, and in 1997, Jay Wertheimer, the majority shareholder and chief executive officer of BDI Distributors, Inc. ("BDI Distributors"), approached Marsh to employ him as an officer at BDI Distributors and to help grow the company in order to attract a potential buyer. Marsh began working for BDI Distributors, and in March 1999, Marsh executed an employment agreement which provided for a renewable five-year term of employment in exchange for certain stated compensation. In addition to the stated compensation, the agreement provided that BDI Distributors, "in the sole and absolute discretion of the Chief Executive Officer [Wertheimer], may pay additional incentive compensation or bonuses to" Marsh.
By January 2000, BDI Distributors had identified an investor group that was making arrangements to purchase a stake in the company. Under the terms of the transaction, BDI Distributors would acquire a smaller company called Laguna Corporation, and the investor group would purchase 20 percent of the combined company for $20 million. The new investors wanted management employees to own stock in the new company to ensure continuity. Marsh and Wertheimer discussed this arrangement, and it was orally proposed that Marsh would be entitled to two percent of the stock of the new company.
In June 2000, BDI Distributors' shareholders executed an agreement requiring each to contribute sufficient shares to make a stock distribution to management employees. It contained a vesting schedule whereby half of the stock distribution would vest to the employee if the employee was employed two years after the date of the agreement, with the second half vesting if the employee was employed four years after the agreement date. BDI Distributors then merged with Laguna and became BDIL. BDIL transferred all of its operating assets to BDI Laguna, Inc., a new wholly owned subsidiary of BDIL.
On June 16, 2000, Wertheimer issued a letter to Marsh notifying him that the merger was complete and that the shareholders had "agreed to make you the owner of the *42 percentage of the stock of the Company as set forth below (subject to a vesting schedule)." The letter contained no vesting schedule but listed Marsh's percentage as two percent. The letter further stated that the company was "reviewing alternative methods to implement your stock ownership."
In December 2001, a restructuring agreement was executed along with an amended shareholders agreement, reorganizing the ownership of the company and eventually making Peter Castenfelt, an outside investor, the chief executive officer and chairman of the board. The agreement characterized the employee stock incentive as "stock or stock option ownership." By 2002, Castenfelt decided to offer stock options rather than stock itself to Marsh and the other management employees. Castenfelt then offered the stock options to Marsh at a price of $400,000, which Marsh declined.
The first (two-year) vesting period passed in 2002 without Marsh receiving stock, and Marsh ultimately resigned at the end of 2003, which reflected the end of his five-year term of employment under his 1999 employment agreement. Marsh filed suit against Wertheimer and BDIL seeking damages for breach of contract and other claims based on the failure to transfer the allegedly promised company stock. Following discovery, and after the denial of the defendants' motion for summary judgment as to the breach of contract claim, a jury trial was held in which the jury found BDIL liable for breach of contract and awarded Marsh $2,208,724, which amount reflected testimony and argument that Marsh was entitled to 2,000 shares of stock valued at $788.83 per share, and which included a "gross-up" award of $631,064 based on an alleged promise by BDIL to pay taxes associated with the transfer of stock. The trial court awarded a stipulated amount of $400,000 in attorney fees pursuant to OCGA § 13-6-11, based on the jury's finding of bad faith on the part of BDIL.
BDIL moved for a new trial and j.n.o.v., which motion the trial court partially granted as to the $631,064 "gross-up," reducing the final award to $1,577,660 (the value of the stock alone) plus $400,000 in attorney fees. BDIL appeals from that order.
BDIL contends that it was entitled to a directed verdict because the promise of stock, as opposed to stock options, was unenforceable due to a lack of consideration. Because Marsh was already obligated under his employment contract to perform duties allegedly supporting the promise of stock, we agree.
Marsh traces the promise of stock to the June 16, 2000 letter from Wertheimer stating that the shareholders had agreed to make him the owner of two percent of the stock of the company. According to Marsh, this letter manifested a promise to pay him stock pursuant to the following provision of his 1999 employment agreement: "In addition to the foregoing compensation [i.e., salary and bonus formulas], the Company, in the sole and absolute discretion of the Chief Executive Officer, may pay additional incentive compensation or bonuses to Employee." Based on this language, Marsh argues that the June 16 letter created an enforceable promise to pay him additional compensation in the form of stock.
However,
[w]here one undertakes to perform for another service or labor for a given sum, any amount paid in excess of that sum, not based upon a new consideration, is a mere gratuity. Such a promise, made at the beginning of the employment, is enforceable, though it would not be if made pending the term or after the performance was completed.[2]
Therefore, had the promise of stock in the June 16 letter been a part of the original agreement at the beginning of Marsh's employment, it would have been enforceable, assuming it was sufficiently definite. But based on the unambiguous language of Marsh's employment agreement, no such promise was made at the beginning of Marsh's employment. "Whenever the language of a contract is plain, unambiguous, *43 and capable of only one reasonable interpretation, no construction is required or even permissible, and the contractual language used by the parties must be afforded its literal meaning."[3] The most that can be said of the language in Marsh's employment agreement, i.e., "the Company ... may pay additional incentive compensation or bonuses," is that BDIL might pay Marsh additional compensation. But this discretionary language was, as a matter of law, insufficient to create an enforceable promise.
Therefore, because Marsh's employment contract unambiguously made no enforceable promise of a stock bonus when the employment contract was executed, there was no promise of additional compensation on the part of BDI Distributors in exchange for additional performance on Marsh's part. Accordingly, when the subsequent alleged promise was made in the June 16 letter, there was no additional consideration because in that context the bonus was something extra for which no services were rendered and no return promise was required.[4] As pointed out by BDIL, the June 16 letter did nothing to change Marsh's employment requirements and there was no additional burden taken on by Marsh in return for the stock. Accordingly, the promise of stock was not supported by consideration.
Marsh argues that his continued service to BDIL after the merger provided a basis for the jury to find consideration supporting the promise of stock. However, this ignores the duties Marsh originally agreed to perform under his employment contract. With respect to Marsh's service as an officer or board member of BDIL, the plain, unambiguous language of the contract required Marsh to
devote his entire working time, attention, skill and energies exclusively to the Business of the Company [BDI].... If Marsh is elected as a director of the Company or as a director or officer of any of its affiliates, the Employee will fulfill his duties as such director or officer without additional compensation.
Therefore, Marsh's continued service to BDI Distributors and its affiliate BDIL was part of his original employment contract, and it could not serve as an additional obligation he performed in exchange for the promise of stock.
Marsh also points to the fact that his employment agreement was assigned to the new operating company, BDI Laguna, Inc., and he argues that his service after the assignment of his employment contract to the new entity constituted consideration for the promise of stock. He argues that because his contract was for personal services, it was not assignable absent the consent of the parties. However, "[a]lthough a duty is generally not delegable where performance by the delegate would vary materially from performance by the original obligor, the parties may nonetheless agree to such an assignment or delegation."[5] Pretermitting whether employment by BDI Distributors' post-merger corporate affiliate would vary materially from BDI Distributors itself, we conclude that the plain and unambiguous language of the contract reflects Marsh's consent to the assignment at the initiation of his employment. Marsh's employment contract states:
This Agreement shall inure to the benefit of and be binding upon (a) the Company, its Permitted Successors and Assigns, and (b) the Employee, his heirs, guardians and personal and legal representatives. Permitted Successors and Assigns shall mean (i) any corporation or other entity which may acquire all or substantially all of the Company's assets and business, (ii) any corporation or other entity with or into which the Company may be consolidated or merged, or (iii) any corporation or other entity that is the successor corporation or entity in an exchange of stock or partnership interest. The duties and covenants of the Employee under this Agreement are *44 personal and may not be delegated or assigned.
Therefore, while Marsh could not assign his obligations under contract, he explicitly agreed that his obligations inured to the benefit of BDI Distributors or the successors and assigns described therein.
Marsh relies on Gold Kist v. Wilson[6] to dispute this conclusion, but that case, which is physical precedent only,[7] is not controlling, and its analysis is not persuasive in the present factual context. In Gold Kist, the plaintiffs were farmers who produced eggs or young hens to be marketed by defendant Gold Kist, Inc. When Gold Kist, Inc., sold its egg processing facility, it assigned the plaintiffs' production contracts to the purchaser. Without explanation, citation, or further analysis, this Court held that "[p]hrases in the production contracts which contemplated an assignment thereof did not amount to a consent to an assignment of those contracts...."[8] We do not find this logic applicable in the present factual scenario, in which it is undisputed that all parties contemplated an impending sale of BDI Distributors, and the contract itself explicitly stated that Marsh's employment would be for the benefit of BDI Distributors' successors and assigns.
Finally, any prior or subsequent oral communications between Marsh and Wertheimer or Marsh's employers are immaterial to Marsh's compensation under his employment agreement because the contract contained the following merger clause:
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may be amended, changed, modified, extended or rescinded only by a writing signed by the party against whom any such amendment, change, modification, extension or rescission is sought.
Therefore, as there was no evidence of a signed writing amending the agreement, Marsh's compensation was governed by the language of his employment agreement, which did not create an enforceable promise of a stock distribution. The June 16 letter, to the extent that it was sufficiently definite, was not an amendment to the employment agreement; rather, it was merely notice of a stock payment to be made in the discretion of the chief executive officer, as contemplated by the discretionary payment provision of Marsh's employment contract. Therefore, the trial court erred in denying BDIL's motion for directed verdict.
BDIL's remaining enumerations are moot.
Case No. A09A0991
In Case No. A09A0991, Marsh cross-appeals from (1) the grant of summary judgment to BDIL on his claims for breach of trust, conversion, and tortious deprivation; (2) the grant of BDIL's motion for j.n.o.v. as to the tax "gross-up" portion of the verdict; and (3) the grant of a directed verdict to the former chief executive officer of BDIL.
2. With respect to the first two enumerations, Marsh's arguments are moot in light of our holding in Case No. A09A0990. Marsh's claims against BDIL for breach of trust, conversion, and tortious deprivation all depend on either a breach of a duty to provide stock or a wrongful withholding of stock to which Marsh either was entitled or already had title.[9] However, as we concluded *45 in BDIL's appeal, any promise of stock was not enforceable, a stock award under Marsh's employment agreement was within the sole discretion of the chief executive officer, and the company was therefore within its rights to offer Marsh, as it did, stock options as opposed to stock itself. Therefore, these enumerations present nothing for review.
3. In his final enumeration, Marsh challenges the trial court's grant of a directed verdict to Wertheimer regarding Marsh's claim that to entice Marsh to work at BDI Distributors, Wertheimer made a separate oral promise to pay him a stock commission upon the sale of Wertheimer's interest in BDI Distributors, amounting to between eight and fifteen percent of the stock of the company. However, Marsh's subsequent written employment agreement, which contained a merger clause, did not contain such a promise.
It is axiomatic that contracts must be construed to give effect to the parties' intentions, which must whenever possible be determined from a construction of the contract as a whole. Whenever the language of a contract is plain, unambiguous, and capable of only one reasonable interpretation, no construction is required or even permissible, and the contractual language used by the parties must be afforded its literal meaning. Where a conflict exists between oral and written representations, it has long been the law in Georgia that if the parties have reduced their agreement to writing, all oral representations made antecedent to execution of the written contract are merged into and extinguished by the contract and are not binding upon the parties. In written contracts containing a merger clause, prior or contemporaneous representations that contradict the written contract cannot be used to vary the terms of a valid written agreement purporting to contain the entire agreement of the parties....[10]
Here, as alleged in Marsh's amended complaint, he entered into the employment agreement "to increase the marketable goodwill of the company in preparation for efforts to sell the company." The employment agreement contained a merger clause stating that the "[a]greement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof." Because the employment agreement established the entire agreement as to Marsh's compensation for coming to work at BDI Distributors and its successors, Marsh could not enforce a prior oral promise to pay him a percentage of the company stock offered to entice him to work at BDI Distributors. That Wertheimer made substantial extra cash payments to Marsh during his employment does not change this result because those subsequent payments were gratuitous and made in Wertheimer's "sole and absolute discretion" as chief executive officer pursuant to Marsh's employment agreement.[11] Further, any subsequent oral discussion of a stock commission purporting to modify the terms of the agreement would not have been enforceable because modifications of the employment agreement were required to be in writing. Finally, even if Wertheimer's alleged oral promise to pay Marsh eight to fifteen percent of the stock was not subject to the merger clause, it was not sufficiently definite to be enforceable.
A contract is an agreement between two or more parties for the doing or not doing of some specific thing. In order that there may be an agreement, the parties must have a distinct intention common to both *46 and without doubt or difference. Until all understand alike, there can be no assent, and, therefore, no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode is agreed on by which it may be settled, there is no agreement.[12]
The alleged oral promise to Marsh was that he would receive eight to fifteen percent of the stock depending on the sales price of the company, and according to Marsh, "neither one of us could have predicted at that point" what the sales price would be, and "it would have been impossible to set the exact percentage at that point." Therefore, the "amount of ... compensation promised [Marsh] was not definite or objectively ascertainable from the promise made,"[13] and the trial court did not err in concluding that the alleged promise was too indefinite to be enforceable.[14]
Judgment reversed in Case No. A09A0990. Judgment affirmed in Case No. A09A0991.
BLACKBURN, P.J., and ADAMS, J., concur.
ON MOTION FOR RECONSIDERATION
On motion for reconsideration, Marsh argues that BDIL was able to attract outside investors because of its promise to transfer him stock, and that this benefit was consideration supporting the promise of stock. However, the merger documents that comprise the transaction belie this argument. First, it is undisputed that the outside investors were satisfied by an offer of stock options to Marsh and that Marsh was offered those options. Thus, it cannot be said that their investment was contingent on a promise of a stock grant to Marsh. Second, the shareholder agreement setting aside the stock for management employees explicitly stated that "[n]othing contained in this Agreement shall be construed to confer upon any Person who is not a signatory hereto any rights or benefits, as a third party beneficiary or otherwise." (Marsh was not a signatory.) Third, neither the merger agreement nor the shareholder agreement identifies Marsh as a recipient of stock nor states how much he was to receive and in what form, leaving the chief executive officer with discretion to determine the details of the stock plan. Therefore, any consideration flowing to BDIL as of the merger date could not have supported a specific promise to give Marsh two percent of stock in the form of actual shares, as opposed to the options he was offered. Accordingly, the motion for reconsideration is denied.
Motion for reconsideration denied.
NOTES
[1] (Punctuation omitted.) Williamson v. Strickland & Smith, Inc., 263 Ga.App. 431, 587 S.E.2d 876 (2003).
[2] (Citation and punctuation omitted; emphasis in original.) Mgmt. Search v. Morgan, 136 Ga. App. 651, 653(1), 222 S.E.2d 154 (1975).
[3] First Data POS v. Willis, 273 Ga. 792, 794(2), 546 S.E.2d 781 (2001).
[4] See Mgmt. Search, 136 Ga.App. at 653-654(1), 222 S.E.2d 154.
[5] Dennard v. Freeport Minerals Co., 250 Ga. 330, 334(2), 297 S.E.2d 222 (1982).
[6] 227 Ga.App. 848, 490 S.E.2d 466 (1997) (physical precedent only).
[7] See Court of Appeals Rule 33(a) ("If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.").
[8] Gold Kist, 227 Ga.App. at 852(2), 490 S.E.2d 466.
[9] See Levenson v. Word, 294 Ga.App. 104, 106(1), 668 S.E.2d 763 (2008) ("Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.") (punctuation omitted); Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga.App. 439, 446-447(2), 638 S.E.2d 879 (2006) (describing tortious deprivation as the prevention of the "exercise of intangible rights of the kind customarily merged in a document is subject to a liability similar to that for conversion") (citation, punctuation and emphasis omitted.); All Business Corp. v. Choi, 280 Ga.App. 618, 621(1), 634 S.E.2d 400 (2006) ("An action for breach of trust cannot lie absent evidence of a fiduciary duty. A claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.") (punctuation omitted).
[10] (Punctuation and footnotes omitted.) First Data POS, 273 Ga. at 794-795(2), 546 S.E.2d 781.
[11] Indeed, Marsh's appellate brief characterized those extra payments by Wertheimer as an exercise of chief executive officer discretion under the agreement in contemplation of the alleged stock commission promise.
[12] (Citation and punctuation omitted.) Aero Constr. Co. v. Grizzard, 76 Ga.App. 649, 652(2), 46 S.E.2d 767 (1948).
[13] Jackson v. Ford, 252 Ga.App. 304, 306(1)(a), 555 S.E.2d 143 (2001).
[14] See Arby's, Inc. v. Cooper, 265 Ga. 240, 241, 454 S.E.2d 488 (1995) ("the promise of future compensation must ... be for an exact amount or based upon a formula or method for determining the exact amount of the bonus") (punctuation omitted). | 01-03-2023 | 10-30-2013 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.