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540 P.2d 1026 (1975)
Glenn CHAMBERS, Respondent,
v.
SCHOOL DISTRICT NO. 40, Wasco County, Oregon, Appellant.
Court of Appeals of Oregon.
Argued and Submitted July 28, 1975.
Decided September 10, 1975.
Charles A. Phipps, The Dalles, argued the cause for appellant. With him on the briefs were Phipps, Dunn & Mobley, The Dalles.
David R. Dierdorff, Bend, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
FORT, Judge.
Plaintiff Glenn Chambers brought an action against defendant school district alleging a breach of his contract to teach in the Tygh Valley elementary school during the *1027 1973-74 school year. After a jury trial a verdict was returned for plaintiff in the sum of $5,517.84, which was the amount prayed for in the complaint less the stipulated amount of $2,657.16 in mitigation. In this appeal brought by the district, the issue is whether the teaching contract was ambiguous, so as to allow the trial court to admit evidence as to its intended meaning and subsequently submit the issue of interpretation to the jury.
The district prepared, and the parties on May 9, 1973, executed the following contract:
APPENDIX A
By letter of July 24, 1973, Cecelia Cushing, chief administrative officer for the district and the person with whom plaintiff conducted all of his contract-related dealings, informed plaintiff that although some Title I funds would be forthcoming to the district, they would be insufficient to pay his entire salary. She further indicated that the funds received would instead be used to partially cover the salary of a certified aide. This action ensued.
At the opening of the trial the judge ruled that there was an ambiguity on the face of the teaching contract, and that the *1028 interpretation thereof was a question of fact for the jury. The portion referred to as ambiguous consisted of the typed-in words, "Salary contingent on allocation of Title I ESEA funds to District # 40." Plaintiff contended that the phrase meant that he would be entitled to employment for the upcoming school year at the agreed contract salary if any Title I funds were allocated to the district. The position of the district at trial was that the wording meant he would not be employed unless the entire $8,175 was received from the Title I program.
In this court the district in its second assignment of error also contends that at most the plaintiff should, as a matter of law, be paid the sum of $3,904, the amount actually received by it from Title I funds less the stipulated amount earned by plaintiff as mitigation from other sources during the contract period.
The construction of an unambiguous contract is a question of law for the court; however, in the case of an ambiguous contract, evidence tending to show the intention of the parties is admissible and the intended meaning of the ambiguous terms becomes a question for the trier of fact. Hekker v. Sabre Construction Co., 265 Or. 552, 510 P.2d 347 (1973); Rolfe v. N.W. Cattle & Resources, Inc., 260 Or. 590, 491 P.2d 195 (1971); Libby Creek Logging, Inc. v. Johnson, 225 Or. 336, 358 P.2d 491 (1960).
In Hekker v. Sabre Construction Co., supra, the court said:
"As a general rule the construction of a contract is a question of law for the court. However, if the contract is ambiguous evidence may be admitted tending to prove the meaning intended by the parties and under those circumstances the meaning of the contract will be decided by the trier of fact. [Citations omitted.]" (Emphasis supplied.) 265 Or. at 555, 510 P.2d at 349.
In Holcomb v. Mooney, 13 Or. 503, 11 P. 274 (1886), the court said:
"* * * `Ambiguity,' said Gibson, C.J., `is the effect of words that have either no definite sense or else a double one.' (Ellmaker v. Ellmaker, 4 Watts, 89, 90.) A latent ambiguity occurs when the deed or instrument is sufficiently certain and free from ambiguity; but the ambiguity is produced by something extrinsic, or some collateral matter out of the instrument. It is that, said Lord Bacon, `which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth ambiguity.' * * *" 13 Or. at 507, 11 P. at 275.
In Waterman Steamship Corporation v. Snow, 222 F. Supp. 892 (D.Or. 1963), aff'd sub nom General Accident Fire and Life Assurance Corporation Limited v. Snow et al., 331 F.2d 852, 64 A.M.C. 2173 (9th Cir.1964), the court said:
"The word `ambiguous' is defined as meaning `capable of being understood in either two or more possible senses; equivocal; * * *' Webster's New International Dictionary of the English Language, Second Edition; Whiting Stoker Co. v. Chicago Stoker Corp., 171 F.2d 248, 250 (7 Cir.1948). * * *" 222 F. Supp. at 898.
We agree with the trial court that the contract here was ambiguous. Indeed by its second assignment of error, the district in effect concedes there is a substantial uncertainty concerning the application of the contract language to the facts of this case, since that position is inconsistent with its first position, namely, that the receipt by it from Title I funds of less than all of the amount of $8,175 payable under the contract to plaintiff rendered the contract unenforceable. See also: Kinnaman v. Bailey, 241 Or. 634, 406 P.2d 145 (1965).
Here, the phrase "Salary contingent on allocation of Title I ESEA funds to District *1029 # 40," as plaintiff contends, also leaves in doubt whether an allocation of some funds, although lesser in amount than the total contract salary, was intended as being sufficient to obligate the district to employ plaintiff for the school year at the agreed salary. An ambiguity thus existed, and there was no error in submitting the question of interpretation of the contract to the jury. Rolfe v. N.W. Cattle & Resources, Inc., supra, 260 Or. at 601-02, 491 P.2d 195.
In its third and final assignment, defendant argues that plaintiff's testimony concerning his contract for the 1972-73 school year, and his testimony as to his interpretation of the contract in question, was received in violation of the parol evidence rule.
Oregon State Bar, Evidence, Parol Evidence § 4.19 (1973), states:
"If doubt arises from the language of the contract as to the parties' intention, parol evidence is admissible to aid the court in comprehending its meaning and applying its terms. [Citations omitted.] Evidence of the circumstances surrounding the execution of a writing is admissible whenever the writing must be `interpreted,' and some degree of interpretation in light of the circumstances is almost always called for. * * *" (Emphasis in original.)
Thus, the parol evidence rule has no application in this situation. Furthermore, by its very terms as codified in our statutes, the rule "does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in ORS 42.220, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud." (ORS 41.740; emphasis supplied.) See also: Doherty v. Harris Pine Mills, 211 Or. 378, 402-03, 315 P.2d 566 (1957).
The sole exception taken to the court's instructions relates to a matter not assigned as error or raised on appeal. In its second assignment of error the district appears to contend that the jury should have been instructed in any event to limit any recovery as above stated. No such instruction was requested, so far as this record shows, let alone exception to the failure to give it. We decline to consider it.
Affirmed.
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579 S.E.2d 699 (2003)
40 Va. App. 496
George Halcott NORMAN, III
v.
COMMONWEALTH of Virginia.
Record No. 1237-02-3.
Court of Appeals of Virginia, Salem.
May 6, 2003.
Jon Ian Davey, Danville, (Law Office of Jon I. Davey, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: BUMGARDNER, HUMPHREYS and CLEMENTS, JJ.
HUMPHREYS, Judge.
George Halcott Norman, III appeals his conviction, after a bench trial, for driving as an habitual offender, second or subsequent offense.[1] Norman contends the trial court erred in determining that he was an habitual offender because his driving privileges had been fully restored prior to his arrest on the charge. For the reasons that follow, we affirm the judgment of the trial court.
I. Background
On August 14, 2001, Deputy Sheriff H.L. Gatewood, of the Pittsylvania County Sheriff's Department, spotted Norman's vehicle travelling east on Route 57. Because he had been given a B.O.L. ("be on the lookout") message for that car by the dispatcher, Deputy Gatewood stopped the car. When he approached the car, he observed that Norman was the sole occupant of the car. He asked Norman for identification, but Norman was unable to produce his driver's license. However, he told Gatewood that he had "a license at home and it was a piece of paper issued by the Court." Deputy Gatewood observed that Norman had a gun in the car, which was lying on the front floorboard, with the barrel pointed toward the driver's side door. He further observed that Norman was "severely intoxicated." Gatewood arrested Norman for drunk driving and brandishing a firearm.
Gatewood checked Norman's social security number through his dispatcher and was told that Norman's driver's license was either "suspended or revoked." He then proceeded to Norman's home to obtain Norman's license. Norman's girlfriend gave Deputy *700 Gatewood a "green sheet of paper," stating that Norman's privilege to drive was restricted pursuant to a May 4, 2001 court order.
When he arrived at the police station, Deputy Gatewood ran Norman's criminal history and learned that he was a convicted felon. He also ran Norman's driver's license and found that he was indeed, driving on a restricted license. Norman was then additionally charged with driving as an habitual offender, second or subsequent offense, and possessing a firearm as a convicted felon.
At trial, the Commonwealth and Norman introduced several documents pertaining to the habitual offender charge. The documents are summarized as follows:
1. An October 13, 1989 order from the Circuit Court of Pittsylvania County, entering judgment on Norman's guilty plea of operating a motor vehicle after having been declared an habitual offender. The order directed that Norman be sentenced on the conviction to two years in prison, but suspended one year of the sentence on the conditions of good behavior and supervised probation.
2. A December 20, 1999 order from the Circuit Court of Pittsylvania County on Norman's petition "for restoration of his privilege to operate a motor vehicle in Virginia," which had been suspended since April 12, 1984. The order directed as follows:
Accordingly, the prayer of the petition should be granted, subject to the conditions set forth below ... it is ORDERED that pursuant to § 46.2-360 of the Virginia Code Annotated the privileges to operate a motor vehicle in the Commonwealth of Virginia should be restored and they are hereby restored to George Halcott Norman, III.
It is further ORDERED that this is not a license or privilege to drive in itself; that... petitioner is referred to Dan River ASAP for monitoring and supervision for twelve (12) months from the date of this Order; that the petitioner shall not possess or use alcohol, alcoholic beverages or drugs ...; that should petitioner incur any alcohol or drug related offense during the period of supervision as set forth herein, the Court may in its discretion issue process to the petitioner to show cause why his privilege to drive should not be suspended permanently.
The object of this proceeding having been accomplished, it is ORDERED that the same be, and it is hereby, removed from the docket and place[d] among the ended of cases.
3. An order dated May 4, 2001, from the Circuit Court of Pittsylvania County finding that Norman "violated the terms of the Court's Order of December 20, 1999," and granting Norman a restricted license to drive to work and to medical providers on the condition that he be monitored by Dan River ASAP for twelve months. The order directed that "should [Norman] have any violations of law during the period of supervision," his license would be "permanently" revoked.
4. An order issued by the Department of Motor Vehicles, dated May 7, 2001, stating that Norman sought "a restricted license after having been declared an habitual offender or having had [his] license revoked pursuant to Virginia Code § 46.2-391(B) three years or more prior to this date," and giving Norman a one-year restricted license, pursuant to the May 4, 2001 court order, authorizing him to drive to and from work, to and from the Dan River ASAP office, and when medically necessary.
Norman argued that despite the May 4, 2001 order, restricting his driving privileges, the December 20, 1999 order had fully restored his driving privileges and, thus, he could no longer be considered an habitual offender for the purpose of the charge at issue. The Commonwealth responded that the December 20, 1999 order did not fully restore Norman's privileges, but only restored them on a conditional basis. The Commonwealth further contended that the conditional restoration was revoked by the circuit court when Norman violated the terms of the December 20, 1999 order and was issued a restricted license on May 7, 2001.
The trial court agreed with the Commonwealth, finding that by signing the DMV *701 order of May 7, 2001, Norman acknowledged that his status as an habitual offender remained in effect, despite the purported restoration of his driving privileges in the December 20, 1999 order. The court then found him guilty of the habitual offender charge and sentenced him to serve two years in prison on that conviction.
II. Analysis
On appeal, Norman contends that the trial court erred in finding the evidence sufficient to support his conviction for operating a motor vehicle after having been declared an habitual offender. As he argued below, Norman maintains that the circuit court fully restored his driving privileges in its December 20, 1999 order and that, therefore, he was no longer an habitual offender at the time of the offense at issue. We disagree.
We first note that the standard for appellate review of criminal convictions is well established. "When a defendant challenges the sufficiency of the evidence, we are required to review the evidence `in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom.'" Collins v. Commonwealth, 13 Va.App. 177, 179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). "The conviction will not be reversed unless it is plainly wrong or without evidence to support it." Id.; see also Code § 8.01-680.
Code § 46.2-357(A) defines the felony offense of driving after being declared an habitual offender. "In pertinent part, Code § 46.2-357(A) states that `[i]t shall be unlawful for any person to drive any motor vehicle... on the highways of the Commonwealth while the revocation of the person's driving privilege remains in effect.'" Varga v. Commonwealth, 260 Va. 547, 550, 536 S.E.2d 711, 713 (2000) (quoting Code § 46.2-357(A)).
Code § 46.2-360 permits any person declared an habitual offender to petition the court for restoration of his or her driving privileges, providing as follows in relevant part:
Any person who has been found to be an habitual offender where the determination or adjudication was based in part and dependent on a conviction as set out in subdivision 1 b of former § 46.2-351, may petition the court in which he was found to be an habitual offender, or the circuit court in the political subdivision in which he then resides to:
1. Restore his privilege to drive a motor vehicle in the Commonwealth, provided that five years have elapsed from the date of the final order of a court entered under this article, or if no such order was entered then the notice of the determination by the Commissioner. On such petition, and for good cause shown, the court may, in its discretion, restore to the person the privilege to drive a motor vehicle in the Commonwealth on whatever conditions the court may prescribe ....
2. Issue a restricted permit to authorize such person to drive a motor vehicle in the Commonwealth in the course of his employment, to and from his home to the place of his employment or such other medically necessary travel as the court deems necessary and proper upon written verification of need by a licensed physician, provided that three years have elapsed from the date of the final order, or if no such order was entered then the notice of the determination by the Commissioner....
(Emphasis added).
Reading the habitual offender statutes in pari materia, it is clear that once a person is declared an habitual offender by order of a trial court, he retains that status and loses his driving privilege for so long as the order is effective. Thus, . . . the habitual offender status of the person so declared continues until that person successfully petitions the court to have that status removed and his privilege to drive restored under one of the code sections permitting such petitions.
Varga, 260 Va. at 551, 536 S.E.2d at 714.
Code § 46.2-360 is one of the code sections that allows a court to remove an individual's status as an habitual offender and to restore his or her privilege to drive. Indeed, that particular code section permits the court to:
*702 1) fully restore an individual's driving privileges; 2) restore an individual's driving privileges on certain conditions; or 3) grant an individual a restricted driving privilege, allowing the individual to drive only to and from work, when medically necessary, or to where the trial court otherwise deems necessary. See Travis v. Commonwealth, 20 Va. App. 410, 415, 457 S.E.2d 420, 422 (1995) (noting that relief under Code § 46.2-360(2) provides for a restricted license, whereas Code § 46.2-360(1) provides for "a full restoration of driving privileges"); see also Code § 46.2-360(1) and (2).
The parties do not dispute that here, in its December 20, 1999 order, the trial court granted Norman a "restoration" of his driving privileges, as opposed to a "restricted" privilege to drive. However, although the order appears somewhat inartfully written, when read as a whole, the trial court's order makes it clear that it granted Norman's petition for restoration, subject to certain conditions contained in the order. Specifically, the order required Norman to "present himself and [the] Order to the Department of Motor Vehicles for such administrative proceedings and payment of fees and costs as may be required," to present himself "to Dan River ASAP for monitoring and supervision for twelve (12) months from the date of [the] Order," and to refrain from possessing or using "alcohol, alcoholic beverages or drugs." The order further provided that if Norman were to "incur any alcohol or drug related offense during the period of supervision as set forth herein, the Court may in its discretion issue process to [Norman] to show cause why his privilege to drive should not be suspended permanently."[2] Thus, the court's actions, most significantly its conditional restoration of Norman's driving privileges and its continuing retention of authority over Norman's privilege to drive, belie Norman's assertion that his adjudication as an habitual offender was no longer valid pursuant to the December 20, 1999 order. See Travis, 20 Va.App. at 415, 457 S.E.2d at 422.[3]
Moreover, as the trial court correctly noted, Norman was aware that he retained habitual offender status when the circuit court found that he violated the provisions of the December 20, 1999 order and, by its order of May 4, 2001, revoked his "full" driving privileges, granting him instead, restricted driving privileges. Indeed, when he signed the resulting Restricted Driver's License Order, on May 7, 2001, Norman acknowledged that he was granted the restricted license privilege "after having been adjudicated/determined to be an habitual offender."
Accordingly, we hold that the trial court properly found the evidence sufficient to establish Norman's status as an habitual offender at the time of the offense, and we affirm the judgment of the trial court.
Affirmed.
CLEMENTS, J., dissenting.
I respectfully dissent from the majority's opinion. The dispositive issue in this case is whether the trial court's December 20, 1999 order restoring Norman's driving privileges terminated his status as an habitual offender. The majority concludes that, because the December 20, 1999 order provided, pursuant to Code § 46.2-360, for the conditional, rather than full, restoration of Norman's driving privileges, that order did not terminate Norman's status as an habitual offender. I disagree *703 with the majority's premise and conclusion.
As the majority notes, "the habitual offender status of [a] person so declared continues until that person successfully petitions the court to have that status removed and his privilege to drive restored." Varga v. Commonwealth, 260 Va. 547, 551, 536 S.E.2d 711, 714 (2000). Here, as reflected in the trial court's December 20, 1999 order, Norman petitioned the court "for restoration of his privilege to operate a motor vehicle in Virginia." The trial court, finding that Norman's petition to restore his driving privileges "should be granted, subject to the conditions set forth" in the order, ordered that "pursuant to [Code] § 46.2-360 ... the privileges to operate a motor vehicle in the Commonwealth of Virginia should be restored and they are hereby restored to" Norman. The trial court further ordered that Norman (1) report to the Department of Motor Vehicles before driving "for such administrative proceedings and payment[s] ... as may be required," (2) be monitored and supervised by "Dan River ASAP" for one year, and (3) "not possess or use alcohol . . . or drugs." The court further stated that, should Norman "incur any alcohol or drug related offense during the period of supervision as set forth herein, the Court may in its discretion issue process to the petitioner to show cause why his privilege to drive should not be suspended permanently."
Code § 46.2-360(1), which pertains to petitions to restore driving privileges,[4] provides, in pertinent part, that the court may, in granting a petitioner's request for restoration of his or her driving privileges, "restore to the person the privilege to drive a motor vehicle in the Commonwealth on whatever conditions the court may prescribe" or, "in lieu of restoring the person's privilege to drive, authorize the issuance of a restricted license."
Under basic rules of statutory construction, we examine a statute in its entirety, rather than by isolating particular words or phrases. When the language in a statute is clear and unambiguous, we are bound by the plain meaning of that language. We must determine the General Assembly's intent from the words appearing in the statute, unless a literal construction of the statute would yield an absurd result.
Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001) (citations omitted).
Applying these principles, I find that the legislature clearly intended that a court acting on a petition for restoration of driving privileges be permitted to take one of three actions under Code § 46.2-360(1):(1) deny the petition; (2) restore the person's driving privileges, with or without conditions; or (3) grant a restricted license. The statute draws no distinction between a "full restoration" and a "conditional restoration." Hence, an individual's privilege to drive is either restored or not restored under Code § 46.2-360(1).
Citing Travis v. Commonwealth, 20 Va. App. 410, 415, 457 S.E.2d 420, 422 (1995), Norman acknowledges in his appellate brief that one who has been granted only a restricted license "retains his habitual offender status." As the majority points out, however, it is undisputed in this case that the trial court did not grant Norman a restricted license but granted him a "restoration" of his privilege to drive.
Accordingly, the conclusion must be reached that, in entering the December 20, 1999 order, the trial court restored Norman's driving privileges. Based on that order, the Department of Motor Vehicles would have undoubtedly issued Norman a full, unrestricted operator's license. The fact that the court prescribed certain conditions in restoring Norman's privilege to drive and, thus, retained authority to enforce those conditions does not alter the conclusion that Norman's privilege to drive was restored. Indeed, given that the court cannot logically suspend *704 what does not exist, the trial court's admonition that it might suspend Norman's "privilege to drive" permanently if he failed to comply with the court's conditions only buttresses the conclusion that the court intended to restore Norman's driving privileges on December 20, 1999.
I would hold, therefore, that the trial court's order of December 20, 1999, terminated Norman's status as an habitual offender on that date. See Varga, 260 Va. at 552, 536 S.E.2d at 714 (holding that one's habitual offender status "remains in force until that person actually has his privilege to drive restored"). I would also hold that, because no court declared him an habitual offender subsequent to that date, Norman was not an habitual offender when he drove on August 14, 2001,[5] and the trial court erred in finding him so.
For these reasons, I would reverse Norman's conviction for driving as an habitual offender, second or subsequent offense.
NOTES
[1] Norman was also convicted of driving under the influence of alcohol, second offense within five years, possessing a firearm as a convicted felon and brandishing a firearm. Norman pleaded guilty to these charges and does not raise any issues as to these convictions on appeal.
[2] Since the issue is not before us, we need not consider here the authority of the trial court to "permanently" suspend the privilege to drive.
[3] The dissent's contrary interpretation of the statute renders the plain and unambiguous language of the statute meaningless. Indeed, the dissent recognizes that a conditional restoration is available pursuant to the terms of the statute. Nevertheless, in its analysis, the dissent ignores the term "conditional" and finds that any "restoration" of an individual's privilege to drive necessarily operates to remove the individual's status as an habitual offender and fully "restores" their privilege to drive, despite any statutorily permitted conditions imposed by a trial court. See Shelor Motor Co. v. Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001) ("When the legislature has used words of a plain and definite meaning, courts cannot accord those words a meaning that amounts to holding that the legislature did not mean what it actually expressed."); see also Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998) (noting the "settled principle of statutory construction that every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary").
[4] In reciting what it says is the "relevant part" of Code § 46.2-360, the majority includes subsection 2 of that statute in its recitation. That subsection, however, relates only to petitions for the issuance of a restricted license. Thus, because Norman's petition was for restoration of his privilege to drive rather than for a restricted license, Code § 46.2-360(2) is inapplicable in this case.
[5] I believe the majority's reliance on the trial court's finding that "Norman was aware that he retained habitual offender status" after December 20, 1999, is misplaced. Norman's perceptions and beliefs have no bearing on the issue of whether the trial court's December 20, 1999 order terminated his status as an habitual offender, the resolution of which is purely a matter of law.
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112 Ariz. 199 (1975)
540 P.2d 671
Marshall C. DONALDSON, Stanley Kesselman and Veda Kesselman, husband and wife, Appellants,
v.
John LeNORE and Marjorie A. LeNore, husband and wife, and Geneva C. Sizemore, Appellees.
No. 11724.
Supreme Court of Arizona, In Division.
September 23, 1975.
*200 Engdahl, Jerman, Butler & Estep, by Dean Estep, Phoenix, for appellants.
Behrens, MacLean & Jacques, by William F. Behrens, Phoenix, for appellees LeNore.
Arthur Van Haren, Jr., Phoenix, for appellee Sizemore.
HOLOHAN, Justice.
Plaintiffs, assignees of a broker's real estate commission, brought suit against defendants, vendors of the subject property, to recover from defendants the balance allegedly owed on the commission. The trial court, sitting without a jury, rendered judgment in favor of the defendants, and plaintiffs appealed.
Appellants (plaintiffs) contend that the trial court erred in ruling that the real estate commission was payable only out of the payments to be received from the purchasers pursuant to the contract of sale. Appellants also contend that appellees were estopped to deny liability for the balance of the commission because of a statement sent to them by appellees' attorney.
It has become familiar law that, "in the absence of a specific contract to the contrary, when a real estate broker has brought together the parties to a sale or exchange of real estate, and they have agreed fully on the terms and entered into a binding contract for such sale or exchange, his duties are at an end and his commission is fully earned, and it is immaterial that the parties to the contract rescind mutually or that one or the other thereof defaults and the sale or exchange is not fully effected." Lockett v. Drake, 43 Ariz. 357, 360, 31 P.2d 499, 500 (1934); Briskman v. Del Monte Mortgage Co., 10 Ariz. App. 263, 458 P.2d 130 (1969). Ordinarily, a broker does not assume the risk of nonperformance on the part of the purchaser. Bishop v. Norell, 88 Ariz. 148, 353 P.2d 1022 (1960). The vendor retains the capacity to protect himself in this respect by stipulating in the listing agreement that the broker's right to a commission is contingent upon the consummation of the sale. Roseberry v. Heckler, 84 Ariz. 247, 326 P.2d 365 (1958). There is authority which recognizes that when the vendor's promise to pay a commission is contained solely in a contract between the vendor and the prospective purchaser of the property, the vendor is released from his promise to pay the broker's commission if the prospective purchaser fails to complete his undertaking to purchase. Lawrence Block Co. v. Palston, 123 Cal. App.2d 300, 266 P.2d 856 (1954). This view, however, appears to be limited almost exclusively to California. 74 A.L.R.2d 431, 488. Our attention is directed to Maricopa Realty & Trust Co. v. VRD Farms, Inc., 10 Ariz. App. 524, 460 P.2d 195 (1969), in which Division II of the Court of Appeals adopted the California rule. We believe that the better and majority rule is that originally pronounced by this Court in Lockett v. Drake, supra. We continue to adhere to that settled principle of law.
It has been recognized, however, that under a special contract by which commissions are made dependent upon some condition beyond that implied by the regular broker's contract, the purchaser's nonperformance is fatal to the recovery of commissions by the broker. Green v. *201 Snodgrass, 79 Ariz. 319, 289 P.2d 191 (1955); Maslin v. Rucker, 7 Ariz. App. 257, 438 P.2d 326 (1968); 12 Am.Jur.2d Brokers § 195. In the case at bar, the vendor and purchaser agreed in the acceptance to the purchase contract and receipt that the total amount of the commission, excepting $1,000.00, was to be paid pro rata from the balance of the sales contract. The acceptance provision provided, in part:
I agree ... to pay the broker ... as commission the sum of six per cent payable $500.00 COE $500.00 upon receipt of $5000.00 [ ] bal from contract secured at 7% payable on prorata basis of contract total ... (dash supplied).[*]
This provision, in combination with the escrow instructions, indicate the intention of the parties to restrict payment of the commission to a particular fund, i.e., escrow fund, which requires the continuing sufficiency of that fund as a condition precedent to the vendor's liability for the commission. Once monies ceased to be paid in escrow, the escrow agent was without power to execute his instructions and, consequently, the appellants' right to recover future commission payments terminated. We hold that in circumstances in which the vendor and broker expressly stipulate that the broker's right to a commission is contingent on the purchaser continuing to make payments into escrow, this provision shall govern the parties' rights.
The second issue presented for review is whether an estoppel arose against the appellees because of statements contained in a letter sent to appellants by appellees' attorney. The attorney had said, based upon investigative data as of that date, that the commission obligation was unconditional. The letter was received by the appellants eleven months subsequent to the assignment of the broker's commission and one month subsequent to the date of forfeiture. After receipt of the letter the appellants waited for payment for about six months, and, upon repudiation of the letter by appellees, appellants brought this action. The trial court held that the appellants had failed to demonstrate by clear and satisfactory proof that the appellees' attorney had full knowledge of the relevant facts pertaining to the subject matter at the time of issuing the statement and that appellants had not changed their position, or in any other manner had relied to their detriment, in response to the statement. It clearly appears that the lower court was correct in its ruling, and that the parties' legal rights had become fixed by the date of forfeiture which had occurred prior to the letter from the attorney. There is no evidence of prejudice to appellants' legal rights attributable to the statement of counsel, which it must be conceded was a statement respecting a legal proposition rather than a statement of fact. See Ross v. Commissioner, 169 F.2d 483, 496 (1st Cir.1948); People v. Stuyvesant Insurance Co., 261 Cal. App.2d 773, 68 Cal. Rptr. 389, 396-97 (1968).
Appellants contend that they were prejudiced by the letter from appellees' counsel because 1) they were denied notice of the forfeiture proceedings and 2) they refrained from asserting their legal rights upon learning of the forfeiture due to the assurances of forthcoming commission payments *202 expressed in the subject letter. We find this contention without merit. Appellants had no interest in the real property. Any rights which they had were based upon a contract between the seller and their assignor. The contract of assignment did not give them purchaser status or an interest in the real property. Since appellants were not parties to the agreement of sale, appellants retained, by virtue of the commission instructions to the escrow agent, merely a vested interest in a portion of the purchase price proceeds as they were deposited in escrow. Valley National Bank of Arizona v. Byrne, 101 Ariz. 363, 419 P.2d 720 (1966); Demand v. Foley, 11 Ariz. App. 267, 463 P.2d 851 (1970). This interest, however, did not entitle appellants to notice of the forfeiture proceedings. See 11 A.R.S. § 33-741.
Appellants seek to avoid the necessity of proving reliance, an element normally required of estoppels, Holmes v. Graves, 83 Ariz. 174, 318 P.2d 354 (1957), by invoking quasi estoppel. Quasi estoppel differs from other forms of estoppel in that it appeals to the conscience of the court to prevent injustice by precluding a party from asserting a right inconsistent with a position previously taken by him, and does not require ignorance or reliance as essential elements. Unruh v. Industrial Commission, 81 Ariz. 118, 301 P.2d 1029 (1956); Sailes v. Jones, 17 Ariz. App. 593, 597 & n. 1, 499 P.2d 721, 725 & n. 1 (1972); 31 C.J.S. Estoppel § 107. It is necessary, however, that any representation made to the party claiming quasi estoppel must have been based upon full knowledge of the facts. Cook v. Ball, 144 F.2d 423, 438 (7th Cir.), cert. denied, 323 U.S. 761 (1944); Sailes v. Jones, supra; 31 C.J.S. Estoppel §§ 107-08. As previously noted, the trial court found that the appellants had not sufficiently demonstrated that the representation in question was made with full knowledge of the facts. In any event, the rights of the appellants were derivative and were explicitly set forth in the purchase contract and receipt of which appellants were, or should have been, fully aware. We conclude, in light of the evidence before us, that no unjust or unconscionable result occurred by the appellees having repudiated the statement characterizing the commission as unconditional.
Affirmed.
LOCKWOOD and HAYS, JJ., concurring.
Note: Justice FRANK X. GORDON, Jr. did not participate in the determination of this matter and retired Justice LORNA E. LOCKWOOD sat in his stead.
NOTES
[*] The punctuation inserted appears consistent with a fair and logical reading of the acceptance provision and its correctness is reinforced by the wording of the commission instructions directed to the escrow agent. The commission instructions read as follows:
A total commission of $9,900.00
From the proceeds of the sale, $500.00
From the $5,000.00 payment due us under the above numbered collection bearing no interest payable on or before June 1, 1970 you are to pay $500.00 which shall not bear interest either.
The balance of $8,900.00 shall be paid in monthly installments of $90.00 or more on or before the 1st day of every month beginning July 1, 1969 with interest at 7% per annum from June 1, 1969 the interest to be first deducted from the regular monthly installment and the difference to be applied to the principal until paid in full.
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682 S.E.2d 201 (2009)
BISHOP
v.
The STATE.
No. A09A1437.
Court of Appeals of Georgia.
July 16, 2009.
*202 Wystan B. Getz, for appellant.
Richard R. Read, Dist. Atty., Roberta A. Earnhardt, Asst. Dist. Atty., for appellee.
MIKELL, Judge.
Brian Roger Bishop entered a plea pursuant to North Carolina v. Alford[1] to possession of tools for the commission of a crime and loitering and prowling in the Superior Court of Rockdale County. Bishop received an aggregate sentence of two years to serve under the First Offender Act. Bishop filed a motion to withdraw his guilty plea, arguing that he should be allowed to do so because his trial counsel was ineffective for failing to file a motion to suppress evidence seized during a stop of Bishop's vehicle. The trial court entered an order denying the motion, from which Bishop appeals. In his sole enumeration of error, Bishop maintains that the trial court erred when it denied his motion to withdraw.
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 such discretion. When the validity of a guilty plea is challenged, the state bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily. However, if the motion to withdraw is based on an ineffective assistance of counsel claim, the defendant bears the burden of showing that, had it not been for the attorney's deficient representation, a reasonable probability exists that he would have insisted on a trial.[2]
Where the failure to file a motion to suppress is the basis for the ineffectiveness claim, "the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion."[3] Because Bishop has not made a strong showing that the evidence would have been suppressed, we affirm.
Deputy Renny Shirley of the Rockdale County Sheriff's Department testified that at approximately 10:30 a.m. on Sunday, June 29, 2008, he was patrolling the Dogwood Circle area, where people illegally dump trash and leave abandoned vehicles. There had been a rash of catalytic converter thefts in the area, and the neighboring businesses were closed at the time. Shirley testified that he saw a minivan driving out of the driveway of a vacant lot. He did not know how long the *203 vehicle had been in the lot; and he did not see anyone discard anything while there. Nonetheless, as he could think of no legitimate reason for the vehicle's presence in the lot, Shirley decided to stop the van because he suspected that its occupant had been dumping trash illegally.
Shirley motioned to the driver, Bishop, to stop as the minivan passed.
According to Shirley, Bishop explained that he had spent the night in the lot, after arguing with his wife, and Bishop denied that he dumped anything on the lot. Shirley asked Bishop if he would walk back on the property, and Bishop agreed to do so. Shirley did not observe any trash where Bishop's vehicle had been parked, but as they walked back to the vehicle, he asked Bishop for consent to search his vehicle. Bishop consented. Shirley found a reciprocating saw, large pliers, and gloves in the vehicle and arrested Bishop.
Trial counsel testified that he initially filed a skeletal motion to suppress in the case, but that after visiting the site and reviewing the police report, he determined that a motion to suppress would have been unsuccessful, particularly since Bishop did not dispute that he consented to the search. Additionally, trial counsel testified that he had personal knowledge of several catalytic converter thefts in the area as a result of his relationship with the owner of a nearby business. Bishop testified that trial counsel never talked with him about filing a motion to suppress and that he would not have entered a guilty plea if the evidence could have been suppressed.
In its order denying Bishop's motion to withdraw his guilty plea, the trial court concluded that Deputy Shirley had a reasonable articulable suspicion to warrant the stop; and therefore, Bishop failed to make the "strong showing" that the evidence found in his vehicle would have been suppressed. Bishop maintains that the stop was not authorized because the fact that he was exiting a vacant lot did not give the officer reasonable articulable suspicion to stop him.
Our Supreme Court has stated that the law in this area is clear:
[A]lthough an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The U.S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court's Fourth Amendment jurisprudence.[4]
In the instant case, Officer Shirley testified that he stopped Bishop because he thought that Bishop had dumped trash on the vacant lot, which would have been a violation of a county ordinance that the officer was authorized to enforce. Additionally, Shirley testified about recent catalytic converter thefts in the area and also explained that he had attached a list of ten cases involving vehicles that had been stolen or burglarized in the area to the police report filed in connection with the instant case.
A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. The "totality of the circumstances" test allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.[5]
*204 Although an investigative stop would not generally be authorized merely by the defendant's act of driving lawfully late at night in a high crime area on a public road,[6] given the totality of the circumstances here, Officer Shirley was authorized to stop Bishop's car. Thus, the items seized were not tainted by an unlawful stop and consequently would not have been suppressed. "As a matter of law, therefore, [Bishop] cannot make the requisite strong showing that, had trial counsel filed a timely motion, evidence seized as a result of the investigatory stop would have been suppressed. Accordingly, [Bishop's] ineffective assistance claim fails."[7]
The cases cited by Bishop, Howden v. State[8] and State v. Winnie,[9] do not warrant a different conclusion. Bishop argues that these cases support his position that the stop was not justified, but both cases are factually distinguishable from the instant case. In Howden, the defendant was stopped late at night after exiting a deserted parking lot in an area known for criminal activity.[10] We reversed the denial of the defendant's motion to suppress, finding that the officer's testimony proved "only that defendant's warehouse [was] in an area known for criminal activity and that a van was leaving this warehouse late at night."[11] We specifically noted therein that the officer did not articulate any particular fact indicating that the defendant was or was about to be engaged in criminal activity nor did he explain that crimes had been committed in the area.[12] In the instant case, however, additional circumstances were present. Shirley testified that he thought Bishop had engaged in illegal dumping and explained that the crimes of illegal dumping, theft, and burglary had been committed in the area.
In Winnie, an officer testified that he saw a truck enter and exit a closed facility's parking lot, and the officer decided to initiate a stop because the occupants could have been there to commit a burglary.[13] The trial court granted the motion to suppress, relying on the fact that the truck had begun to exit the parking lot when the officer approached.[14] We affirmed, noting that there was no claim that the truck had been parked or out of the officer's sight long enough for a burglary to occur. We reasoned that even if the officer suspected an attempted burglary, the basis for his suspicion disappeared when the truck started to leave the parking lot.[15] Here, the officer did not see Bishop enter the lot; rather, he only saw him exiting a lot where people illegally dumped trash. It was this factor that prompted the officer's suspicion, particularly given his additional knowledge of the area. The officer testified unequivocally that he stopped Bishop because he thought that Bishop had dumped trash on the lot. Therefore, unlike in Winnie, there was no evidence here from which the inference could be made that the reason for the stop dissipated with Bishop's exit from the lot.
As stated earlier, when an ineffectiveness claim is based on the failure to file a motion to suppress, "the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion."[16] Bishop has not done so. Therefore, the trial court did not abuse *205 its discretion when it denied Bishop's motion to withdraw his guilty plea.
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
[2] (Citation omitted.) Hammett v. State, 288 Ga. App. 255, 653 S.E.2d 852 (2007).
[3] (Punctuation omitted.) Id. at 256(2), 653 S.E.2d 852, citing Davis v. State, 267 Ga.App. 245, 246(2), 599 S.E.2d 237 (2004).
[4] (Citation and punctuation omitted.) Hughes v. State, 269 Ga. 258, 259-260, 497 S.E.2d 790 (1998), citing Vansant v. State, 264 Ga. 319, 320(2), 443 S.E.2d 474 (1994).
[5] (Punctuation and footnotes omitted.) Esposito v. State, 293 Ga.App. 573, 576, 667 S.E.2d 425 (2008) (stop not arbitrary or harassing where officer inferred from his training, experience, and common sense that the defendant, looking to engage in criminal activity, was "casing" a parking lot the officer was hired to secure).
[6] But see generally Hughes, supra at 261, 497 S.E.2d 790 (investigative stop not authorized where only circumstances are that defendant was driving at night lawfully on a public road in a high crime area); Young v. State, 285 Ga.App. 214, 215-216, 645 S.E.2d 690 (2007) (same); Lyttle v. State, 279 Ga.App. 659, 661, 632 S.E.2d 394 (2006) (same).
[7] (Footnote omitted.) Arnold v. State, 253 Ga. App. 307, 309(1), 560 S.E.2d 33 (2002).
[8] 240 Ga.App. 139, 522 S.E.2d 279 (1999).
[9] 242 Ga.App. 228, 529 S.E.2d 215 (2000).
[10] Howden, supra at 140, 522 S.E.2d 279.
[11] Id. at 141, 522 S.E.2d 279.
[12] Id. at 140, 522 S.E.2d 279.
[13] Winnie, supra at 229, 529 S.E.2d 215.
[14] Id. at 230, 529 S.E.2d 215.
[15] Id.
[16] Hammett, supra.
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579 S.E.2d 758 (2003)
260 Ga. App. 330
HOWARD et al.
v.
BRANTLEY COUNTY.
No. A03A0886.
Court of Appeals of Georgia.
March 14, 2003.
*759 Houston & Golub, Phillip N. Golub, Blackshear, for appellants.
W. Vincent Settle, III, Waycross, for appellee.
ELDRIDGE, Judge.
This appeal arises out of plaintiff-appellee Brantley County's ("county") suit to recover money had and received by defendants-appellants Southern Striping, Inc. and Neal Howard a/k/a Davis Neal Howard ("Southern Striping") for paint striping applied to Brantley County roads. Southern Striping appeals from the trial court's grant of summary judgment for Brantley County, arguing: (1) that a jury question remains as to whether road striping is a "specialized service" under OCGA § 32-4-63(5), permitting it to negotiate for such service outside the competitive bidding process;[1] and (2) that the provisions of OCGA § 36-10-1, requiring that "[a]ll contracts entered into by the county ... shall be in writing and entered on its minutes[,]" are here inapplicable under the voluntary payments doctrine, the county having paid the invoices and failed to timely assert the provisions of such Code section. Southern Striping's challenges to the grant of summary judgment as without merit, we affirm.
The facts relevant to this appeal are undisputed. In February 2000, Harry Riggins, the Chairman of the Brantley County Board of Commissioners, entered into a negotiation with Southern Striping for the purpose of obtaining road striping on certain county roads. Southern Striping undertook the project incrementally, invoicing the county six times in the period March 6, 2000, through June 15, 2000, upon the completion of each segment of the job. The county, in turn, paid Southern Striping in full as to each invoice, cumulatively a sum of $190,600. The activities invoiced to the county were not approved by the Board of Commissioners following a competitive bidding process. Neither were they presented to, approved, consented to, or voted upon at any meeting of the Board of Commissioners. Moreover, there was no written contract for the road striping done, and no "contract" for the same was approved by the county and entered on the minutes. Rather, Chairman Riggins negotiated for the work upon the agreement of fellow commissioners, Robert Moore and Charles Harris. Chairman Riggins and Commissioners Moore and Harris were then candidates for reelection. On December 29, 2000, upon motion of Commissioner Moore and seconded by Commissioner Harris, the Board of Commissioners by a 3-2 vote[2] amended its 2000 county budget, transferring $172,153.09 to the $20,000 line item in the budget which had been allocated for road stripingthis to ensure payment upon the invoices which Southern Striping had submitted. The county filed the instant action for *760 money had and received on May 17, 2001. Held:
1. Southern Striping contends that a jury question remains as to whether road striping is a specialized service under OCGA § 32-4-63(5),[3] allowing the instant negotiation for its road striping services to proceed as an exception to the OCGA § 32-4-64 requirement that all county contracts be let by public bid. OCGA § 32-1-3(6) expressly defines road striping as a form of road construction.[4] It follows that we are not at liberty to construe it otherwise, that is, as a special service within the meaning of OCGA § 32-4-63(5). "Where a ... statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms." (Citations and punctuation omitted.) Simpson v. Southwire Co., 249 Ga.App. 406, 409(1), 548 S.E.2d 660 (2001).
2. Neither did the superior court err in granting the county summary judgment upon the claim that OCGA § 36-10-1 is inapplicable for the county's payment of the invoices in issue and its failure to timely assert noncompliance with the provisions thereof in bar of payment.
In Twiggs County v. Oconee Elec. Membership Corp., 245 Ga.App. 231, 536 S.E.2d 553 (2000), we held that a county may not raise the argument that the provisions of OCGA § 36-10-1 were not followed "when it paid the amounts and then waited more than two years to ... recover the monies paid." Id. at 233(1), 536 S.E.2d 553. We did so upon the doctrine of voluntary payments, id.; see OCGA § 13-1-13; Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 349 S.E.2d 368 (1986), and as consistent with certain limited circumstances in which judgment has already been entered and our courts have declined to enforce the provisions of OCGA § 36-10-1 as not timely asserted. Twiggs County v. Oconee Elec. Membership Corp., supra at 233-234, 536 S.E.2d 553; see Hall County v. Smith, 178 Ga. 212(4), 172 S.E. 645 (1934); Early County v. Fielder & Allen Co., 4 Ga.App. 268(1), 63 S.E. 353 (1908) (post-judgment county not allowed to raise argument that contract with it was not written). However, in doing so, we emphasized that our decision did not extend to circumstances in which public funds were illegally paid in that the contract in issue, had it been written, was ultra vires as beyond the legal authority of the county to enter. Twiggs County v. Oconee Elec. Membership Corp., supra at 233, 536 S.E.2d 553; Burke v. Wheeler County, 54 Ga.App. 81, 86, 187 S.E. 246 (1936); Gwinnett County v. Archer, 102 Ga.App. 813, 118 S.E.2d 97 (1960).
OCGA § 32-4-63(1) bars counties from negotiating contracts in excess of $20,000, and contracts for road striping in amounts greater than $20,000 are not exempt from the competitive bidding process as a "specialized service." OCGA § 32-4-63(5); Division 1, supra. Thus, the instant contract, even if written, was illegal as beyond Brantley County's authority. "Where public funds are illegally paid out by county officials or by some agency of the county, it is proper for the county to bring a suit for the recovery of the same. The matter of the disposition of the funds recovered by the county is of no concern of the plaintiff." Burke v. Wheeler County, supra.
It is axiomatic that on motion for summary judgment, all reasonable inferences must be construed in favor of the nonmovant and that summary judgment is warranted only when the record shows by plain, palpable, and undisputed evidence that a party is entitled to judgment as a matter of law.
*761 (Citations omitted.) Connell v. Guarantee Trust Life Ins. Co., 246 Ga.App. 467, 468-469(1), 541 S.E.2d 403 (2000). So reviewed, the trial court did not err in granting summary judgment for the county.
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] OCGA § 32-4-64 pertinently provides that "[e]xcept as authorized by Code Section 32-4-63, all contracts shall be let by public bid."
[2] Riggins, Moore, and Harris voted for the amendment. The remaining two commissioners voted against it.
[3] "A county is prohibited from negotiating a contract except a contract ... [f]or engineering or other kinds of professional or specialized services." (Emphasis supplied.) OCGA § 32-4-63(5).
[4] "Construction" means the planning, location, surveying, designing, supervising, inspecting, and actual building of a new road; or the paving, striping, restriping, modifying for safety purposes, grading, widening, relocation, reconstruction, or other major improvement of a substantial portion of an existing public road together with all activities incident to any of the foregoing.
(Emphasis supplied.) OCGA § 32-1-3(6).
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226 S.C. 219 (1954)
84 S.E.2d 637
SIMEON H. GARDNER, Respondent,
v.
MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, Appellant.
16928
Supreme Court of South Carolina.
November 12, 1954.
*220 Messrs. Herbert & Dial, of Columbia, for Appellant.
Messrs. Leppard & Leppard and Turner Clayton, of Chesterfield, for Respondent.
*221 November 12, 1954.
TAYLOR, Justice.
This appeal comes from the Court of Common Pleas for Chesterfield County wherein the Presiding Judge refused to strike Paragraphs III, IX, X, and XXII of respondent's complaint on the ground that there is no allegation of any facts alleged to have been represented by defendant's agent which were false or any allegation that plaintiff suffered injury or damage through said alleged false representations and further to strike Paragraphs IV, V, VI, VII, VIII, and XIII upon the grounds that the allegations contained in said Paragraphs are irrelevant and do not constitute a cause of action. The complaint appears as follows:
"Plaintiff, for his complaint in the above entitled action, respectfully alleges and shows:
"I
"That the defendant, on information and belief, at all of the times hereinafter mentioned, was, and now is, a foreign corporation duly organized and existing under the laws of one of the States of the United States of America.
"II
"That heretofore and on or about the 1st day of May, 1951, the defendant, through its officers and agents, approached plaintiff and solicited an application for family hospital expense policy of insurance on and covering plaintiff and his wife, Essie Gardner representing that in consideration of an initial quarterly premium of Seventeen & 25/100 Dollars ($17.25) it would issue plaintiff a family hospital expense policy of insurance, insuring plaintiff and his dependent against loss by hospital, ambulance and nurse expense resulting from bodily injury to the above named persons by accidental means, and further, that it would insure plaintiff and his dependent against loss by hospital and ambulance expense resulting from sickness contracted during any of the term of the policy by plaintiff and/or his wife, Essie Gardner.
*222 "III
"That the defendant's agent did, in the course of his duties, fraudulently represent to plaintiff that the policy of insurance that he was attempting to sell to plaintiff was better than that already possessed by the plaintiff with the Equity Life Insurance Company, covering the same dependent. Defendant's agent did fraudulently represent to the plaintiff that Mutual Benefit Health and Accident Association would, under all conditions, pay the plaintiff more money in the event that he, or his dependent named in the policy were hospitalized, and that the rider contained in the Equity Life Insurance Company's policy was `dead.'
"IV
"That the defendant's agent did fraudulently represent to plaintiff that the policy of insurance with the Mutual Benefit Health and Accident Association would cover plaintiff and his dependent named therein for any and all periods of hospitalization regardless of any injury or illness that either of them had heretofore had.
"V
"That the defendant's agent did, in the course of his duties, solicit information from the plaintiff and his wife, Essie Gardner, relative to their physical condition and previous medical history. That in replying to questions propounded to them by the defendant's agent they gave correct oral answers. That the defendant's agent, in the course of his duties, did falsely and fraudulently fill in the application with answers that were not the same nor as complete as those given by the plaintiff and his wife; that the defendant's agent did request plaintiff to sign the application that he had filled out, whereupon the plaintiff read the application and pointed out to the defendant's agent the errors and inaccuracies therein to which defendant's agent did then, in the course of his duties, fraudulently represent to plaintiff and his wife that he had filled out the application properly and that it was in accordance with the requirements of *223 the Company and that he had on the application all the pertinent information that was necessary; that the history as given by the plaintiff and his wife was so remote in point of time that it was unnecessary to include that upon the application whereupon plaintiff signed the application.
"VI
"That the plaintiff's wife, Essie Gardner, also read the application and informed the defendant's agent as to the omission of her medical history to which the defendant's agent did fraudulently inform her and plaintiff again that the form was proper and that he had filled in the answers as were required by the Company.
"VII
"That the defendant's agent did, in the course of his duties, fraudulently represent to plaintiff and plaintiff's wife that this policy of insurance with Mutual Benefit Health and Accident Association would completely insure the plaintiff and his wife regardless of any illness that either of them had heretofore had, since there had been a complete recovery to each and every one of these illnesses.
"VIII
"That the representations heretofore set forth were fraudulently made by the defendant's agent under the circumstances that entitled plaintiff to rely thereon. That the defendant's agent did represent himself as being an expert and learned man in and pertaining to hospitalization insurance, not only by his own statement, but by his acts and conduct in analyzing his own insurance policy and the policy of Equity Life Insurance Company.
"IX
"That at the time the application for the policy with the defendant Company was filled out, plaintiff had in full force and effect a hospitalization insurance policy with Equity Life Insurance Company, said policy having been in effect for some period of time, and having similar clauses *224 to the policy involved in this action; that defendant's agent made statements and false, fraudulent representations to the plaintiff to the fact that it would not be to the plaintiff's detriment to discontinue the aforementioned policy of insurance and purchase the policy with the defendant Company; that the defendant's policy would provide further and more accurate coverage than that contained in the Equity Life Insurance Company's policy, and that there was no way in which it would be injurious to the plaintiff for him to cancel his policy with the Equity Life Insurance Company, and to purchase the one that was being sold by the defendant Company, all of which statements and representations were false and fraudulently made, all to the knowledge of the defendant.
"X
"That in reliance upon the statements and representations of the defendant's agent, the plaintiff cancelled his policy of insurance with Equity Life Insurance Company, and in lieu thereof took out and paid for the policy of insurance with the defendant Company; that the aforementioned statements and recommendations of the defendant's agent were falsely made and were fraudulently made under circumstances which entitled plaintiff to rely thereupon, and which the plaintiff did rely upon.
"XI
"That heretofore and on or about the 9th day of July, 1951, and while said policy of insurance was in full force and effect, the wife of the plaintiff, being one of those persons covered by said policy of insurance, suffered an illness and sickness covered by the aforementioned policy of insurance, which required her to enter a hospital. That it was necessary for the said Essie Gardner to have surgical treatment as covered by the policy in addition to the normal hospitalization and medical care. That the said Essie Gardner remained in the hospital for a period of five (5) days, being discharged therefrom on the 14th day of July, 1951, *225 and that the medical and surgical and hospital bills totalled One Hundred Seven Dollars ($107.00).
"XII
"That the plaintiff has duly performed all the conditions of said contract of insurance on his part to be performed.
"XIII
"That plaintiff has made due demand on defendant to pay him the said sum of One Hundred Seven Dollars ($107.00), but defendant has refused to pay the same and has denied any liability to plaintiff thereon.
"XIV
"That subsequently and on the 23rd day of October, 1951, the said Essie Gardner became ill and was confined to a hospital for a period of twenty-three (23) days, and therein and thereby incurred hospital expenses in the amount of Two Hundred Fifty and 50/100 Dollars ($250.50).
"XV
"That the plaintiff has performed all the conditions of said contract of insurance on his part to be performed relative to the hospitalization hereinabove mentioned.
"XVI
"That plaintiff has made due demand upon the defendant to pay to him the said sum of Two Hundred Fifty and 50/100 Dollars ($250.50), but defendant has refused to pay the same, and has denied any liability to Plaintiff therefor.
"XVII
"That subsequently and on the 15th day of July, 1951, plaintiff became ill and was confined in a hospital and therein and thereby incurred hospital expenses in the amount of Ninety-seven and 75/100 Dollars ($97.75), which, under the provisions of said contract or policy of insurance, defendant became due and liable to pay to plaintiff.
*226 "XVIII
"That plaintiff has duly performed all the conditions of said contract of insurance on his part to be performed.
"XIX
"That plaintiff has made due demand on defendant to pay him the said sum of Ninety-seven and 75/100 Dollars ($97.75), but defendant has refused to pay the same and has denied any liability to the plaintiff therefor.
"XX
"The defendant Company did, on the 12th day of March, 1952, tender to plaintiff the premium refund in the amount of Sixty-three Dollars ($63.00), contending that the answers appearing on the application by the defendant's agent were incorrect and because of these erroneous answers coverage would be declined as to plaintiff and his dependent.
"XXI
"That Mrs. Essie Gardner died of illness on the 12th day of May, 1953.
"XXII
"That because of the acts of the defendant, Mutual Benefit Health and Accident Association, the plaintiff caused to be cancelled the policy of insurance with Equity Life Insurance Company that would have provided coverage for some of the illness and hospital bills involved in this action; that in addition thereto, because of the present physical condition of the plaintiff, and the past physical condition of Mrs. Essie Gardner, it is, and has been, impossible for the plaintiff to obtain other similar insurance, and he is therefore, because of the fraudulent acts of the defendant, unable to obtain this similar insurance.
"XXIII
"That because of the acts of the defendant, its agents, servants and employees in fraudulently deceiving the plaintiff by its representations and acts hereinabove alleged, the *227 plaintiff has been damaged in the sum of Three Thousand Dollars ($3,000.00), actual and punitive damages.
"Wherefore, plaintiff prays judgment against the defendant for the sum of Three Thousand Dollars ($3,000.00), actual and punitive damages plus the costs and disbursements of this action."
The allegations of the complaint, in our opinion, state a cause of action for fraud and deceit in that false representations were made by appellant's agent to respondent which led to the cancellation by respondent of an insurance policy then in force with the Equity Life Insurance Company and such allegations relative to the policy with the defendant company may be relevant upon the question of damages. Upon trial of the case, it may well be that the trial Judge with the application and policies before him might properly conclude that certain paragraphs of the complaint should be stricken, but the record before the hearing Judge was not such as to require such action at that time, further the question of whether or not the order under review is appealable was not raised and hence not before the Court.
We are of the opinion, therefore, that the Order appealed from should be affirmed and it is so ordered.
STUKES, OXNER, and LEGGE, JJ., and M.M. MANN, Acting Associate Judge, concur.
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23 Cal.Rptr.3d 877 (2005)
126 Cal.App.4th 472
Stacy Marie ASTENIUS, a Minor, etc., et al., Plaintiffs and Appellants,
v.
The STATE of California, Defendant and Respondent.
Samantha Beth Geary, a Minor, etc., et al., Plaintiffs and Appellants,
v.
The State of California, Defendant and Respondent.
No. B173131.
Court of Appeal, Second District, Division 6.
February 2, 2005.
*878 Hugh Duff Robertson, Vivian M. Lum and Allan A. Sigel, Los Angeles, for Plaintiffs and Appellants.
Bill Lockyer, Attorney General, James Humes, Chief Assistant Attorney General, James M. Schiavenza, Senior Assistant Attorney General, and Joel A. Davis, Supervising Deputy Attorney General, for Defendant and Respondent.
GILBERT, P.J.
Plaintiffs are children of a woman who died in an accident on a trail within a recreational area owned and operated by the State of California. We conclude the state is immune from liability under Government *879 Code section 831.4.[1] We affirm the judgment entered following the trial court's sustaining of the state's demurrer.
FACTS
Tammy Geary died from injuries received while driving an off-highway vehicle (OHV) in the Hungry Valley State Vehicular Recreation Area (Hungry Valley). Hungry Valley is owned and operated by the California Department of Parks and Recreation. Guardians ad litem for two sets of Geary's children by prior marriages filed separate wrongful death suits against the state. The substantive allegations of the complaints are identical. The actions were consolidated.
The complaints allege as follows:
Prior to 1980, Hungry Valley was unimproved and not regulated or maintained by the state. Nevertheless, it was well known and widely used for OHV recreation. Beginning in the early 1980's, the state developed Hungry Valley by planning, grading, mapping, marking, inspecting and rating trails. The state also developed campgrounds, a ranger station and visitor's center. The state charged an entrance fee and provided a guide book showing trails and areas of Hungry Valley. The guide book contained a trail rating system. The book stated the trail ratings are intended to make trail use easier and safer. The book also stated that some areas contain hazards, such as erosion gullies, ditches and drop-offs, but that the hazards have been marked.
On July 13, 2002, Geary drove her OHV to Hungry Valley, paid the entrance fee and was given a guide book. She was an experienced driver who had participated in competitions. She was riding on the top of an area known as Rattler Hill. At the bottom of the hill are two major trails. Geary decided to descend the hill on a trail that "appeared to be well used" and was located within a mile of a campground. Before descending the trail Geary stopped, evaluated the trail and looked for barriers and warning signs. There were no indications that the trail was hazardous.
Geary cautiously started down the trail. Having started down, it was impossible to go back. The alignment of the trail required Geary to maintain her OHV off balance to the right or left. The grade of the trail was extremely steep. The tread surface of the trail was extremely rough and in poor condition with deep gullies, not visible from the start of the trail. In addition, along the trail were protruding rocks. During Geary's descent, she lost control. Her OHV overturned and slid down the trail, eventually coming to rest at the bottom. Geary suffered severe injuries and died later that day.
The state uses a publication known as the Wernex Manual to plan, mark, maintain and assess the level of difficulty on trails and areas of Hungry Valley. Factors of alignment, grade, tread surface and obstacles determine the level of difficulty. The trail Geary used contains the extreme of each factor. No OHV user would expect to encounter the extreme of each factor combined into one trail. Such a trail would be impossible for anyone to negotiate.
The state knew the trail was located in a high traffic area and was dangerous. There had been eight prior reported accidents on the trail caused by its dangerous condition. The state awarded a contract to place a fence around the area to prevent people from using the trail. The state failed to warn OHV users of the dangerous condition.
*880 The trial court sustained the state's demurrer on the grounds that the state had immunity under sections 831.4 and 831.7.
DISCUSSION
I
The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286, 200 Cal. Rptr. 354.) In assessing the sufficiency of a demurrer, all facts pleaded in the complaint must be deemed true. (Holland v. Thacher (1988) 199 Cal.App.3d 924, 928, 245 Cal.Rptr. 247.) But we do not assume the truth of contentions, deductions, or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) If upon consideration of all the facts stated, it appears that the plaintiff is entitled to any relief, the complaint will be held good. (Chase Chemical Co. v. Hartford Accident & Indemnity Co. (1984) 159 Cal.App.3d 229, 242, 205 Cal.Rptr. 469.)
II
Section 831.4 provides in part: "A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: [¶] (a) Any unpaved road which provides access to ... riding, including ... all types of vehicular riding .... [¶] (b) Any trail used for the above purposes."
Geary[2] argues section 831.4 applies only to unimproved land. In support of her argument, Geary cites a legislative committee comment to section 831.2. The comment states that sections 831.2 and 831.4 provide absolute immunity from liability for injuries resulting from the natural conditions of a state park area where the only improvements are recreational roads and trails. (See Legis. Com. com., reprinted at 32, West's Ann. Gov.Code (1995) foll. § 831.2, p. 328; id. Deering's Ann. Gov.Code (1982) foll. § 831.2, p. 251.)
Geary's reference to a legislative committee's comment is unconvincing. The best place to find legislative intent is in the language of the statute. When the Legislature has intended to limit governmental immunity to unimproved property, it has expressly said so. (See § 831.2 limiting immunity to injuries arising from "a natural condition of any unimproved public property".) Section 831.4 contains no such limiting language and we decline to add it.
Geary argues the state is not entitled to immunity under section 831.4 because it failed to warn of the dangerous condition. But nothing in section 831.4 makes immunity contingent on giving proper warnings. The immunity granted by section 831.4 is absolute. For the same reason, the fee charged by the state to enter the park did not abrogate the state's immunity. (See Bartlett v. State of California (1988) 199 Cal.App.3d 392, 398, 245 Cal.Rptr. 32.)
Nor does the state's duty under Public Resources Code sections 5090.32 and 5090.35 to maintain trails affect its immunity. Even assuming those sections create a mandatory duty, any breach of that duty comes within the scope of the immunity provisions of section 831.4. (See Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 411, 205 Cal.Rptr. 1.)
Geary argues that although the second amended complaint refers to the accident site as a "trail," that was only for ease of reference. She claims that after she filed the second amended complaint, *881 she learned that the accident occurred in an open riding area known as Rattler Hill. If given leave to amend, Geary would amend her complaint to refer to the accident site as Rattler Hill.
The state objects on the ground that Geary is attempting to change her theory on appeal. Our concern is not that she is attempting to change her theory, but that she is attempting to plead around the facts. An amendment that contradicts an admission in the original pleadings will ordinarily not be allowed. (Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1130, p. 585.)
The facts pleaded show that Geary did not simply ride at random down the hill. Instead, she chose a path that "appeared to be well used." The complaint describes how Geary had to balance her OHV on one side or another in order to follow the path. Section 831.4 does not define the term "trail." Thus we give it its usual and ordinary meaning. (Estate of Griswold (2001) 25 Cal.4th 904, 911, 108 Cal.Rptr.2d 165, 24 P.3d 1191.) The facts alleged in the complaint show that Geary was on a "trail" within the usual and ordinary meaning of that term. That the trail may have been within an area designated for free riding is irrelevant.
Section 831.4 grants immunity to the state. We need not decide whether the state has immunity under section 831.7.
The judgment is affirmed. Costs are awarded to respondent.
We concur: YEGAN and COFFEE, JJ.
NOTES
[1] All statutory references are to the Government Code unless otherwise stated.
[2] For the purpose of convenience we refer to the plaintiffs collectively as Geary.
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23 Cal.Rptr.3d 676 (2005)
126 Cal.App.4th 131
Mark E. OVERLAND et al., Petitioners,
v.
SUPERIOR COURT of Los Angeles County, Respondent;
The County of Los Angeles et al., Real Parties in Interest.
No. B175442.
Court of Appeal, Second District, Division Three.
January 28, 2005.
Review Denied May 11, 2005.
Certiorari Denied October 11, 2005.
*677 Overland Borenstein Scheper & Kim and Mark A. Borenstein for Petitioners.
No appearance for Respondent.
Morrison & Foerster, John W. Alden, Jr. and Cynthia L. Gillette, Los Angeles, for Real Parties in Interest.
Certiorari Denied October 11, 2005. See 126 S.Ct. 426.
KLEIN, P.J.
Petitioners Mark E. Overland (Overland), Overland & Borenstein LLP (O & B) and Pamela A. Poloski (Poloski) (collectively, petitioners) seek a writ of mandate directing respondent superior court to vacate its order sustaining a demurrer to their first cause of action without leave to amend and to enter an order overruling the demurrer.
The real parties in interest are the Los Angeles County Superior Court and John A. Clarke, the court's executive officer and clerk (clerk) (collectively, the court defendants).
The issue presented is whether the court defendants' refusal to pay the petitioners pre-exoneration interest on their cash bail deposits constitutes a taking of private property for public use for which petitioners are entitled to just compensation.
We conclude the court defendants' refusal to pay petitioners pre-exoneration interest on their cash bail deposits does not constitute a "taking" because there was no confiscation of private property by the *678 court defendants for a public purpose, or at all. Rather, when petitioners voluntarily deposited cash bail to free the criminal defendants from custody, petitioners entered into contracts with the government by which petitioners guaranteed the appearance of the criminal defendants released on bail at all required court proceedings. The terms of the contract did not include a provision for payment of pre-exoneration interest. Therefore, petitioners cannot state a claim based on the court defendants' refusal to pay such interest. The petition for writ of mandate is denied.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background.
Overland posted cash bail in the amount of $500,000 by way of a cashier's check to secure the appearance of Abdul Aziz Mohd Alkhelaifi in People v. Alkhelaifi (Super. Ct. L.A. County, No. BA206456). The cash bail was posted with the Los Angeles County Sheriff's Department at the inmate reception center at the Los Angeles County Jail. The sheriff then transferred the $500,000 to the clerk, who deposited the bail money with the County's auditor-controller into the Los Angeles County TK7 Trust Fund on September 21, 2000.[1] On June 19, 2001, the $500,000 bail was exonerated by court order. On July 20, 2001, the clerk requested the auditor-controller to transfer the $500,000 from the TK7 Trust Fund to the clerk's "Special Trust Fund" for return of the cash bail to Overland. The auditor-controller effected the transfer on July 26, 2001. The clerk then wrote a check to Overland, which was mailed to him on August 3, 2001. When Overland received the $500,000, he made repeated requests for interest on the deposited money from the date Alkhelaifi's bail was posted to the day it was exonerated and from the date of exoneration to the date the money was returned to him. No interest was ever paid.
Pamela Poloski deposited cash bail on December 20, 2002, in the amount of $35,000 by way of cashier's check to secure the presence of Robert Poloski in People v. Robert Alan Poloski (Super.Ct.L.A.County, No. PA042651). The procedures followed in the Alkhelaifi case also were used in the Poloski action. On February 10, 2003, the complaint against Robert Poloski was dismissed and the $35,000 bail was exonerated. Poloski did not receive the $35,000 back until March 26, 2003. She received no interest on the bail deposit from the date she deposited the bail to the date the bail was exonerated, or from the date of exoneration to the date the money was actually returned to her.
O & B is a law firm which, on July 12, 2003, deposited cash bail in the amount of $250,000 by way of a cashier's check to secure the appearance of Leonard McSherry pending his appeal of a misdemeanor judgment entered against him in People v. Leonard James McSherry (Super.Ct.L.A.County, No. 3BH00547-01). The $250,000 bail was exonerated on July 25, 2003. The cash bail was returned to O & B on September 5, 2003, without interest.
2. Proceedings.
On September 26, 2003, all three petitioners filed a complaint against the court defendants and others[2] for "unlawful taking *679 without compensation; unjust enrichment; injunctive relief; declaratory relief and petition for writ of mandate to compel payment of interest." They brought the action on behalf of themselves and for all persons similarly situated.
The complaint's first cause of action pled an "unlawful taking of property without compensation against all defendants interest earned between deposit and exoneration."
The second cause of action alleged an "unlawful taking of property without compensation against all defendants interest earned between exoneration and return."
Additionally, the complaint pled a cause of action for unjust enrichment, and requested injunctive and declaratory relief, as well as a writ of mandate directing defendants to pay interest on cash bail deposits.
The court defendants filed a motion for judgment on the pleadings or, in the alternative, demurrers to all claims asserted against them in the complaint. The matter was heard in the Orange County Superior Court. On March 17, 2004, the trial court overruled the demurrer to the second cause of action (relating to post-exoneration interest), and otherwise sustained the demurrers without leave to amend. With regard to the first cause of action, for pre-exoneration interest, the trial court ruled Fresno Fire Fighters v. Jernagan (1986) 177 Cal.App.3d 403, 222 Cal.Rptr. 886 (Fresno) controlled and precluded an award of interest. As to the second cause of action, for post-exoneration interest on bail, the trial court determined the Fresno case did not control.[3]
Petitioners thereafter brought the instant petition for writ of mandate on March 24, 2004, seeking review of the trial court's order sustaining the demurrer to their first cause of action without leave to amend. We issued an order to show cause.
CONTENTIONS
Petitioners contend that in light of the United States Supreme Court's decisions in Phillips v. Washington Legal Foundation (1998) 524 U.S. 156, 118 S.Ct. 1925, 141 L.Ed.2d 174 (Phillips) and Brown v. Legal Foundation of Wash. (2003) 538 U.S. 216, 123 S.Ct. 1406, 155 L.Ed.2d 376 (Brown), the Court of Appeal's decision in Fresno, supra, 177 Cal.App.3d 403, 222 Cal.Rptr. 886, is no longer good law, and their first cause of action states a claim for an unconstitutional taking of pre-exoneration interest without just compensation.
DISCUSSION
1. Standard of appellate review.
In determining whether a plaintiff has properly stated a claim for relief, "our standard of review is clear: `"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has *680 abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citations.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal.Rptr.2d 709, 45 P.3d 1171.) Our review is de novo. (Ibid.)
2. Pertinent case law.
a. Fresno held depositors are not entitled to the interest earned on cash bail deposits in criminal actions.
In Fresno, supra, 177 Cal.App.3d 403, 222 Cal.Rptr. 886, a firefighters association filed a class action on behalf of all public and private cash depositors in court proceedings to compel return of all interest earned on monies deposited with the courts of Fresno County. (Id. at p. 406, 222 Cal.Rptr. 886.) The lower court ruled the owners of all cash court deposits are entitled to the interest earned on the money. (Id. at p. 405, 222 Cal.Rptr. 886.)
The reviewing court affirmed the lower court's ruling concerning cash deposits in civil actions but reversed as to interest on cash bail deposits in criminal proceedings. (Fresno, supra, 177 Cal.App.3d at p. 406, 222 Cal.Rptr. 886.)
With respect to interest on cash deposits in civil actions, Fresno held such deposits are controlled by the superior court and that the superior court is the owner of any interest earned thereon, but the court's ownership is that of a trustee for the person who is ultimately entitled to receive the deposited money. (Fresno, supra, 177 Cal.App.3d at p. 409, 222 Cal.Rptr. 886.) Fresno concluded the owners of all cash deposits in civil actions within the three-year period before the filing of the firefighters' complaint were entitled to the interest earned on their monies while on deposit in the general fund of the county. (Ibid.)
On the other hand, with respect to interest earned on cash bail deposits in criminal actions, Fresno held the county's retention of interest accrued on such deposits "is not an unconstitutional taking of private property." (Fresno, supra, 177 Cal.App.3d at p. 413, 222 Cal.Rptr. 886.) Fresno reasoned that bail money is deposited for a public purpose, namely, securing a defendant's appearance, and the interest earned thereon is reasonably needed to support the court system. (Id., at p. 412, 222 Cal.Rptr. 886.)
Fresno explained, "[T]he California Legislature has declared that the interest earned on any bail money deposited in criminal proceedings may, if the board of supervisors so directs, be used by the county for the support of the courts of that county. (Gov.Code, § 53647.5.)[4] This is a reasonable need since the operation of the courts is essential to the `general welfare' of the people. Further, unlike cash deposits in civil cases . . . where the money is deposited only for the benefit of a private person or entity, bail money is deposited for a public purpose security for the appearance of the defendant at all required court hearings. This arises because the public as well as the defendant is entitled to the orderly determination of the truth or falsity of the charges against the defendant. If the defendant fails to appear, the bail money is forfeited to the county to help defray the costs of apprehending the defendant. Since the public *681 has a vested interest in the defendant's appearance at all court hearings, it has a vested interest in the bail money deposited to secure that appearance. Hence, the public purpose of bail justifies the denial to the owner of the beneficial use of the money while it is on deposit with the court. [Citations.]" (Fresno, supra, 177 Cal.App.3d at p. 412, 222 Cal.Rptr. 886.)
Petitioners contend Fresno is no longer good law in that in Phillips, supra, 524 U.S. 156, 118 S.Ct. 1925, 141 L.Ed.2d 174, and Brown, supra, 538 U.S. 216, 123 S.Ct. 1406, 155 L.Ed.2d 376, the United States Supreme Court "overruled sub silentio, the legal underpinning of the Court of Appeal's decision in Fresno Fire Fighters v. Jernagan." We now turn to those cases.
b. Phillips held the interest earned on a lawyer's trust account is the private property of the client.
In Phillips, supra, 524 U.S. 156, 118 S.Ct. 1925, 141 L.Ed.2d 174, the plaintiffs challenged the constitutionality of the Texas Interest on Lawyers Trust Account (IOLTA) program. Under the IOLTA program, certain client funds held by an attorney in connection with his or her practice of law were deposited in bank accounts, with the resulting interest paid to foundations that finance legal services for low income individuals. (Phillips, at pp. 159-160, 118 S.Ct. 1925.) The plaintiffs alleged the IOLTA program violated their rights under the Fifth Amendment by taking their property without just compensation. (Phillips, at p. 163, 118 S.Ct. 1925.)
The Supreme Court noted the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, "provides that `private property' shall not `be taken for public use, without just compensation.' Because the Constitution protects rather than creates property interests, the existence of a property interest is determined by reference to `existing rules or understandings that stem from an independent source such as state law.' [Citation.] [¶] All agree that under Texas law the principal held in IOLTA trust accounts is the `private property' of the client. [Citations.] ... The question in this case is whether the interest on an IOLTA account is `private property' of the client for whom the principal is being held." (Phillips, supra, 524 U.S. at pp. 163-164, 118 S.Ct. 1925.)
The high court relied on the established common law rule that "`interest follows principal.'" (Phillips, supra, 524 U.S. at p. 165, 118 S.Ct. 1925.) The court continued, "Indeed, in Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980), we cited ... the general rule that `any interest ... follows the principal.'" (Phillips, supra, at p. 166, 118 S.Ct. 1925.)
In Webb's, the high court addressed "a Florida statute providing that interest accruing on an interpleader fund deposited in the registry of the court `"shall be deemed income of the office of the clerk of the circuit court."' [Citations.] The appellant in that case filed an interpleader action in Florida state court and tendered the sum at issue, nearly $2 million, into court. In addition to deducting $9,228.74 from the interpleader fund as a fee `for services rendered,' the clerk of [the] court also retained the more than $100,000 in interest income generated by the deposited funds. [Webb's] held that the statute authorizing the clerk to confiscate the earned interest violated the Takings Clause. As [the court] explained, `a State, by ipse dixit, may not transform private property into public property without compensation' simply by legislatively abrogating the traditional rule that `earnings of a fund are incidents of ownership of the fund *682 itself and are property just as the fund itself is property.' [Citation.]" (Phillips, supra, 524 U.S. at pp. 166-167, 118 S.Ct. 1925.)
In Phillips, the United States, as amicus curiae, further argued that "`private property' is not implicated by the IOLTA program because the interest income generated by funds held in IOLTA accounts is `government created value.'" (Phillips, supra, 524 U.S. at p. 170, 118 S.Ct. 1925.) Phillips disagreed, stating, "the State does nothing to create value; the value is created by respondents' funds." (Id. at p. 171, 118 S.Ct. 1925.)
Phillips noted, however, "[t]his would be a different case if the interest income generated by IOLTA accounts was transferred to the State as payment `for services rendered' by the State. [Citation.] Our holding does not prohibit a State from imposing reasonable fees it incurs in generating and allocating interest income. [Citations.] But here the State does not, indeed cannot, argue that its confiscation of respondents' interest income amounts to a fee for services performed. Unlike in Webb's, where the State safeguarded and invested the deposited funds, funds held in IOLTA accounts are managed entirely by banks and private attorneys." (Phillips, supra, 524 U.S. at p. 171, 118 S.Ct. 1925.)
Phillips concluded, "the interest income generated by funds held in IOLTA accounts is the `private property' of the owner of the principal." (Phillips, supra, 524 U.S. at p. 172, 118 S.Ct. 1925.) Phillips did not express any view as to whether those funds had been "`taken'" by the State, or any opinion as to the amount of "`just compensation,'" if any, due the respondents, leaving those issues to be addressed on remand. (Ibid.)
c. Brown held no just compensation was owed on IOLTA interest because the client-depositors did not suffer any pecuniary loss.
As indicated, Phillips did not address whether the interest income on the IOLTA accounts had been "`taken'" by the State, or the amount of "`just compensation,'" if any, due the respondents. (Phillips, supra, 524 U.S. at p. 172, 118 S.Ct. 1925.) The Supreme Court confronted those questions five years later in Brown, supra, 538 U.S. at p. 220, 123 S.Ct. 1406.
In Brown, the court found the interest generated on client funds deposited in IOLTA accounts was taken for a public use when it was turned over to the Legal Foundation of Washington, which used the proceeds for law-related charitable and educational purposes. (Brown, supra, 538 U.S. at pp. 224, 235, 123 S.Ct. 1406.)
However, despite the taking, no compensation was owed. Brown explained that just compensation is measured by the property owner's pecuniary loss, rather than the government's gain. (Brown, supra, 538 U.S. at pp. 235-236, 123 S.Ct. 1406.) The rules adopted by the Washington Supreme Court required lawyers and limited practice officers (LPOs)[5] to deposit client funds into IOLTA accounts only if the funds could not earn net interest for the client. (Id., at pp. 224, 227, 123 S.Ct. 1406.) Monies were to be deposited into IOLTA accounts when the funds "`are so nominal in amount or to be held for so short a period that the amount of interest that could be earned would not justify the cost of creating separate accounts....'" (Id., at pp. 223-224, 123 S.Ct. 1406.) Conversely, the rules required lawyers and *683 LPOs to deposit client funds in non-IOLTA accounts whenever those funds could generate net earnings for the client. (Id., at p. 239, 123 S.Ct. 1406.)
Because the client-depositors in Brown would not have earned any net interest on their funds (Brown, supra, 538 U.S. at p. 230, 123 S.Ct. 1406), the compensation due them for any taking of their property was nil. (Id., at p. 240, 123 S.Ct. 1406.)
3. Fifth Amendment taking principles implicated in IOLTA cases have no application here; the cash bail deposit was in the nature of a contract between the depositor and the government, and the terms of the contract did not include a provision for interest on the deposit.
Petitioners' reliance upon Phillips and Brown is misplaced. Those cases involved the involuntary taking by the government of private property, i.e., interest earned on client funds deposited in IOLTA accounts, for public use, namely, to fund legal services for low income individuals. Those circumstances implicate the Fifth Amendment, which requires the payment of just compensation when private property is taken for public use. However, those constitutional concerns are absent here.
The court defendants' refusal to pay petitioners interest on their cash bail deposits does not constitute a "taking" because there was no confiscation of private property by the court defendants for a public purpose, or at all. Rather, when petitioners voluntarily deposited cash bail to free the criminal defendants from custody, petitioners entered into contracts with the government by which petitioners guaranteed the appearance of the criminal defendants released on bail at all required court proceedings.
A bail transaction is a contract. It is established that "[a] bail bond is in the nature of a contract between the government and the surety; the surety acts as a guarantor of the defendant's appearance under risk of forfeiture of the bond. [Citation.] The surety guarantees that the defendant will appear at the specific time and place and if the defendant fails to appear at the specified time and place, the surety is absolutely indebted to the state for the amount of the bond. [Citation.] The scope of a surety's contractual obligation under the appeal bond is defined by applicable statutory law and language of the bond itself. [Citation.]" (People v. Allen (1994) 28 Cal.App.4th 575, 581, 33 Cal.Rptr.2d 669; accord, People v. Amwest Surety Ins. Co. (1991) 229 Cal.App.3d 351, 356, 280 Cal.Rptr. 58 ["bail bond is in the nature of a contract between the government and the surety"]; People v. Doe (1959) 342 P.2d 533, 172 Cal.App.2d Supp. 812, 813["[t]he obligation of the bail bond is contractual"]; United States v. Lujan (9th Cir.1978) 589 F.2d 436, 438 ["bail bond is a contract between the government and the defendant and his surety"].)
Although the case law typically involves bail bonds, rather than cash bail deposits,[6] that is a distinction without a difference for purposes of the discussion herein. The statutory scheme provides various alternatives for posting bail. A defendant may be released from custody upon (1) execution of a bail bond or undertaking of bail by an admitted surety insurer (Pen.Code, § 1276);[7] (2) deposit by the defendant or any other person of cash in the amount of the bail (§§ 1295, 1296); (3) deposit by the *684 defendant or any other person of bonds of the United States or State of California "of the face value of the cash deposit required" (§ 1298); or (4) provision by the defendant or any other person of equity in real property equal to twice the amount of the cash deposit required (§ 1298). Irrespective of the particular type of security given for the defendant's release, the obligation of the parties is contractual.
Accordingly, the obligation herein is contractual in nature and is defined by statute as well as by the language of the contract. (People v. Allen, supra, 28 Cal.App.4th at p. 581, 33 Cal.Rptr.2d 669.)
The statutory scheme governing bail, section 1268 et seq., does not require the payment of interest on cash bail deposits. The Legislature has made no provision therefor.
Likewise, the written contracts herein, evidenced by standard form bail receipts, do not include a provision that interest will be paid on cash bail deposits. With respect to the obligations of the parties, the bail receipts simply provide: "NOTICE: The above deposited bail will be forfeited if the defendant fails, at any time, to render himself or herself available to the orders and process of the court; and, if convicted, failure to appear for Pronouncement of Judgment or Grant of Probation."
Thus, the quid pro quo for the cash bail deposits which were posted herein was the release of the criminal defendants from custody. The contracts did not include a provision that petitioners would earn interest on the cash bail deposits. Now, after the bail was exonerated, petitioners would have the contracts rewritten to award them additional consideration in the form of interest on the bail between the date of deposit and the date of exoneration. Such a modification has no basis in contract law and must be rejected.
Therefore, petitioners are incapable of stating a cause of action for denial of pre-exoneration interest on their cash bail deposits. The trial court properly sustained the demurrer to the first cause of action without leave to amend.
4. The Fresno decision overlooked applicable contract law principles.
Finally, after resolving this matter pursuant to ordinary principles of contract law, we revisit the Fresno decision. There, the court held a county's retention of interest accrued on cash bail deposits in criminal proceedings is not an unconstitutional taking of private property. (Fresno, supra, 177 Cal.App.3d at p. 413, 222 Cal.Rptr. 886.) The Fresno court reasoned that bail money is deposited for a public purpose, namely, securing a defendant's appearance, and the interest earned thereon is reasonably needed to support the court system. (Id., at p. 412, 222 Cal.Rptr. 886.)
With respect to pre-exoneration interest, Fresno's rejection of a claimed right to interest on cash bail in criminal proceedings is correct in result.[8] However, we take issue with Fresno's rationale. The reason there is no right to pre-exoneration interest on cash bail is not that the money was deposited for a public purpose. Rather, no interest is owed because the bail deposit is made in accordance with the terms of a particular contract and the terms of that contract do not include a provision for pre-exoneration interest.[9]
*685 DISPOSITION
The order to show cause is discharged. The petition for writ of mandate is denied. No costs are awarded in this proceeding. (Cal. Rules of Court, rule 56.)
We concur: CROSKEY and ALDRICH, JJ.
NOTES
[1] Money deposited into the TK7 Trust Fund earns interest which is deposited into the Los Angeles County general fund for general fiscal purposes.
[2] In addition to the court defendants, the named defendants include the County of Los Angeles, the Los Angeles County Board of Supervisors, and the Los Angeles County Auditor-Controller (collectively, the county defendants).
[3] Petitioners and the county defendants subsequently stipulated the trial court's March 17, 2004 order on the demurrers interposed by the court defendants "will be deemed applicable" to the county defendants.
[4] The record in Fresno did not reflect whether the Fresno County Board of Supervisors had directed that interest earned on bail money be allocated to the support of the county courts, but Fresno took "judicial notice of the need of all of the counties in California for moneys to operate their courts." (Fresno, supra, 177 Cal.App.3d at p. 410, 222 Cal.Rptr. 886.)
[5] LPOs are nonlawyers who are licensed to act as escrowees in the closing of real estate transactions and, like lawyers, often temporarily control the funds of their clients. (Brown, supra, 538 U.S. at p. 227, 123 S.Ct. 1406.)
[6] However, we note that in United States v. Lujan, supra, 589 F.2d at p. 437, one of the appellants posted a cash bond.
[7] All subsequent statutory references are to the Penal Code, unless otherwise specified.
[8] The issue of post-exoneration interest is not before us.
[9] As discussed above, the Fresno court held that although depositors of cash bail in criminal proceedings have no right to the accrued interest, the owners of cash deposits in civil proceedings are entitled to the interest earned on their moneys. (Fresno, supra, 177 Cal. App.3d at p. 409, 222 Cal.Rptr. 886.) Interest on cash deposits in civil proceedings is beyond the scope of this opinion. However, we observe that unlike cash deposits in criminal matters, cash deposits in civil cases are not contractual in nature and therefore are not governed by contract law principles. For example, Code of Civil Procedure section 529, subdivision (a), provides that upon granting an injunction, "the court ... must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages ... the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction." Similarly, Code of Civil Procedure section 1030 provides that "[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may . . . apply . . . for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorneys fees which may be awarded in the action or special proceeding." Such undertakings, or deposits in lieu of undertakings, are required by statute and are given to protect the opposing party in the litigation; they are not in the nature of a contract between the depositor and the court or the opposing party.
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84 S.E.2d 822 (1954)
241 N.C. 120
Luther E. GALYON and Ollie Mae Brown Galyon
v.
Roy B. STUTTS and Vernelle A. Stutts.
No. 379.
Supreme Court of North Carolina.
November 24, 1954.
*824 Ottway Burton, Asheboro, for appellant.
Brooks, McLendon, Brim & Holderness, Greensboro, and Moser & Moser, Asheboro, for appellees.
JOHNSON, Justice.
Contempts of court are classified in two main divisions, namely: direct and indirect, the test being whether the contempt is perpetrated within or beyond the presence of the court. A direct contempt consists of words spoken or acts committed in the actual or constructive presence *825 of the court while it is in session, State v. Woodfin, 27 N.C. 199; State v. Nowell, 156 N.C. 648, 72 S.E. 590, or during recess, Ex parte McCown, 139 N.C. 95, 51 S.E. 957, 2 L.R.A.,N.S., 603; State v. Little, 175 N.C. 743, 94 S.E. 680, which tends to subvert or prevent justice. An indirect contempt is one committed outside the presence of the court, usually at a distance from it, which tends to degrade the court or interrupt, prevent, or impede the administration of justice. In re Parker, 177 N.C. 463, 99 S.E. 342; Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621, 23 A.L.R. 183. See also 12 Am.Jur., Contempt, section 4; 17 C.J.S., Contempt, §§ 3 and 4.
Proceedings for contempt are of two classes, criminal and civil. Criminal proceedings are those brought to preserve the power and to vindicate the dignity of the court and to punish for disobedience of its processes or orders. Civil proceedings are those instituted to preserve and enforce the rights of the parties to actions and to compel obedience to orders and decrees made for the benefit of the suitors. Criminal proceedings, involving as they do offenses against the courts and organized society, are punitive in their nature, and the government, the courts, and the people are interested in their prosecution. Whereas civil proceedings, having as their underlying purpose the preservation of private rights, are primarily remedial and coercive in their nature, and are usually prosecuted at the instance of an aggrieved suitor. 12 Am.Jur., Contempt, section 6.
With us contempts are defined and classified generally by two statutes: G.S. § 5-1 and G.S. § 5-8. These statutes recognize and preserve the fundamental distinction between civil and criminal contempt in substance but not in name. Acts or omissions which ordinarily constitute criminal contempt as defined in the textbooks are designated by our statute, G.S. § 5-1, as punishable "for contempt," without further designation; the acts or omissions which ordinarily constitute civil contempt as defined in the books are designated by our statute, G.S. § 5-8, as punishable "as for contempt". Thus, under our statutes the proceedings for criminal and civil contempt are "for contempt" and "as for contempt", respectively.
A person guilty of any of the acts or omissions enumerated in the eight subsections of G.S. § 5-1 may be punished for contempt, because such acts or omissions have a direct tendency to interrupt the proceedings of the court or to impair the respect due to its authority. Whereas a person guilty of any of the acts or omissions described in the seven subsections of G.S. § 5-8 is punishable as for contempt, because such acts or omissions tend to defeat, impair, impede, or prejudice the rights or remedies of a party to an action pending in court. Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345.
G.S. § 5-1(6) provides that "The contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, the like refusal to answer any legal and proper interrogatory" may be punished for contempt.
G.S. § 5-8(4) provides for punishment as for contempt of any person summoned as a witness "in refusing or neglecting to * * * attend, be sworn, or answer, as such witness."
It is thus noted, from the tenor of the latter two statutes, that the refusal of a witness to testify at all or to answer any legal or proper question is made punishable both "as contempt" and "as for contempt". And since the power of the court over a witness in requiring proper responses is inherent and necessary for the furtherance of justice, it must be conceded that testimony which is obviously false or evasive is equivalent to a refusal to testify within the intent and meaning of the foregoing statutes, and therefore punishable "as contempt" or "as for contempt", depending upon the facts of the particular case. 12 Am.Jur., Contempt, sections 15 and 17.
G.S. § 5-5 deals with direct contempt. It provides that "contempt committed in the immediate view and presence of the court may be punished summarily, but the *826 court shall cause the particulars of the offense to be specified on the record, and a copy of the same to be attached to every committal, attachment or process in the nature of an execution founded on such judgment or order."
G.S. § 5-7 deals with indirect contempt. It provides that "When the contempt is not committed in the immediate presence of the court, or so near as to interrupt its business, proceedings thereupon shall be by an order directing the offender to appear, within reasonable time, and show cause why he should not be attached for contempt. * * *"
G.S. § 5-9 provides: "Proceedings as for contempt shall be by an order directing the offender to appear within a reasonable time and show cause why he should not be attached for contempt." (Italics added.)
A contempt against a subordinate officer appointed by a court, such as a commissioner, ordinarily is regarded as contempt of the authority of the appointing court, and the appointing court has power to punish such contempt. This is true even where such subordinate officer, as with us under G.S. § 5-6, is vested with the power to punish. See Bradley Fertilizer Co. v. Taylor, 112 N.C. 141, 17 S.E. 69; 17 C.J.S., Contempt, § 52. However, when the conduct complained of was before a commissioner or other subordinate officer of the court and the court has no direct knowledge of the facts constituting the alleged contempt, in order for the court to take original cognizance thereof and determine the question of contempt, the proceedings must follow the procedural requirements as prescribed for indirect contempt, G.S. § 5-7, or "as for contempt", G.S. § 5-8, and be based on rule to show cause or other process constituting an initiatory accusation meeting the requirements of due process as prescribed by our statutes. See 17 C.J.S., Contempt, § 62, p. 74.
In the case at hand the defendant stands adjudged in contempt of court on two grounds: (1) for wilful failure and refusal to produce records and documents for inspection in compliance with a former order of the court, and (2) for wilful, contumacious, and unlawful failure and refusal to answer questions propounded on adverse examination. Both grounds are challenged by the defendant. We discuss them seriatum.
1. The Failure to Produce Records. By order signed by Judge Martin the defendant was directed to produce "all of the documents, ledgers, journals, inventories, records and books" of his grocery business for the years 1951, 1952, and 1953. The court below found and concluded that the defendant wilfully failed and refused to comply with this order and that such failure and refusal amounted to contempt of court within the purview of G.S. § 5-1(4). The record does not support the finding and adjudication.
While the defendant produced no documents or records in response to the order, he did appear on the appointed date before the commissioner for the adverse examination. He was examined at length by counsel for the plaintiffs. The examination, as reported in question and answer form, is brought forward on the appeal and covers more than 40 pages of the record. In response to questions propounded by plaintiffs' counsel, the defendant explained that he had no records or documents with which to comply with the order of Judge Martin. By way of explanation he said in substance that he retained no copies of his income tax returns and that he kept no ledgers, journals, or other like records in connection with the operation of the grocery business. His testimony discloses that the only business records kept by him were the "cash register receipts." As to these, he said they were stored in boxes in "the car house," and that "the rats ate them up, gnawed them up," to the extent they "were not fit to be salvaged," and when he found them in that condition, after sale of the business in 1953, he threw "them all out."
The record thus affirmatively discloseswith nothing appearing contra that the defendant had no books or records *827 with which to comply with the order of Judge Martin. Therefore, the court below erred in finding and concluding that the defendant was in contempt within the purview of G.S. § 5-1(4) for noncompliance with the order.
2. The Failure or Refusal to Answer Questions on Adverse Examination.After the defendant testified he kept no books and records in connection with the grocery business and retained no copies of his income tax returns for the years he operated the business, he was examined at length in respect to the receipts and yearly profits of the business and the amount of income reported by him for tax purposes. To this line of questions his stock answer was "I don't remember" or "I don't know," and when asked if he knew the amount of his reported yearly income within $2,000, $5,000, and $10,000, he replied as to each figure that he did not know. After stating he had no recollection of the approximate amount he drew out of the business, he was asked this question: "Will your tax returns, Federal and State, for the years 1951 and 1952 * * * accurately show your income for these years?" Whereupon objection was interposed "on the ground of incrimination of the witness." The commissioner responded: "If that is the ground for the objection, the only recourse is to take it to the Clerk." Counsel for the plaintiffs, after arguing at some length the relevancy of the question and the admissibility of the information sought, stated: "And the plaintiffs hereby except and appeal from the ruling of the Commissioner and for the reason that * * * the witness has refused to comply with the order of examination and has repeatedly refused in good faith (to) answer the questions." At this juncture the commissioner noted a "recess for a ruling of the Clerk." The record discloses no ruling of the clerk. Instead, the defendant on March 1, 1954, was served with notice signed by the clerk, notifying him that the plaintiffs, pursuant to G.S. § 1-568.19, would move before Judge Rousseau at the March, 1954, Civil Term of the Superior Court of Randolph County (1) that the defendant Roy B. Stutts be held for contempt of court for failure and refusal to answer the questions asked at the adverse examination previously held on February 19, 1954, (2) that the defendant be taxed with all costs of the action, and (3) that judgment by default be rendered against him because of such refusal.
It is significant that G.S. § 1-568.19, the statute under which the defendant was notified the plaintiffs would move for relief, merely provides procedure for the enforcement of the immediately preceding section, G.S. § 1-568.18, which prescribes the procedure to be followed in compelling answers on adverse examination.
While the notice served on the defendant stated the plaintiffs would move for relief under the foregoing statutes, the record nowhere discloses that any such relief was sought and no attempt was made to require the defendant to answer the question he had refused to answer immediately before the adverse examination was recessed. And it nowhere appears that the clerk or Judge at any time ordered the defendant to answer any question or series of questions pursuant to the procedure prescribed in G.S. § 1-568.18 and on which G.S. § 1-568.19 is based.
On the contrary, the record discloses that when the cause came on for hearing the presiding Judge, upon consideration of the transcript of the adverse examination, found therefrom that in respect to numerous material questions propounded to the defendant he made no bona fide attempt to answer, but rather declared that he did not know the answers, when as a matter of ordinary experience he was charged with knowledge and recollection of the matters and things concerning which he was being interrogated. And upon such findings the court concluded and adjudged that the defendant's conduct by way of evasion amounted to failure and refusal to answer the questions and constituted direct contempt of court.
It thus appears that the defendant was cited to appear and respond to a motion or motions designed to compel him to answer *828 a line of questions in respect to which he had refused to give answers on the ground of self-incrimination. Whereas no such inquiry was had. Instead, by summary procedure, without previous order to show cause, final judgment was entered adjudging the defendant to be in direct contempt of court within the purview of G.S. § 5-1(6) and G.S. § 1-568.19.
Conceding, without deciding, that the defendant's testimony in pertinent aspects was so obviously evasive as to amount to a refusal to testify within the meaning of G.S. § 5-1(6), and that the commissioner may have summarily attached him for direct contempt under authority of G.S. § 5-6, even so, it here appears that the commissioner did not take action. Rather, it appears that he recessed the examination and referred the matter to the presiding Judge, who heard it as a proceeding for direct contempt under G.S. § 5-1(6), notwithstanding he had no direct knowledge of the facts constituting the alleged contempt and notwithstanding the notice to the defendant indicated the purpose of the hearing was to inquire into the question of his refusal to answer on the ground of selfincrimination.
The action of the court below in so adjudging the defendant to be in direct contempt must be held for error both for failure to comply with the minimum accusatory requirements of due process, Buchanan v. Vance, 237 N.C. 381, 75 S.E.2d 240, and for application of the wrong procedural remedy. Since the presiding Judge had no direct knowledge of the facts constituting the alleged contempt, the appropriate procedure was that prescribed for "indirect contempt" under G.S. § 5-7, or "as for contempt" under G.S. § 5-8(4) and G.S. § 5-9, wherein the statutory procedure requires in each instance the issuance of a show-cause order before hearing.
For the errors indicated the judgment appealed from will be set aside and the cause will be remanded to the court below for such further orders and proceedings as may be appropriate under proper practice and procedure and in accord with this opinion. This without prejudice to the plaintiffs' rights to move for an order allowing further adverse examination of the defendant and making accessible to the plaintiffs the facts in respect to the defendant's income tax returns for the years 1951, 1952, and 1953.
Error and remanded.
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90 Ga. App. 789 (1954)
84 S.E.2d 600
TANNER
v.
THE STATE.
35318.
Court of Appeals of Georgia.
Decided September 16, 1954.
Rehearing Denied October 1, 1954.
J. D. Godfrey, Casey Thigpen, for plaintiff in error.
W. H. Lanier, Solicitor-General, contra.
CARLISLE, J.
The defendant was tried and convicted in the Superior Court of Washington County under the following indictment: "The grand jurors selected, chosen and sworn for the County of Washington. . . In the name and behalf of the citizens of Georgia, charge and accuse . . . [the defendant], of the county and State aforesaid with the offense of felony for that the said . . . [defendant] on 18th of January, in the year of our Lord nineteen hundred and fifty-four, in the county aforesaid, did then and there unlawfully and with force and arms, did distill, manufacture and make alcoholic, spirituous, vinous, *790 malted and mixed liquors and beverages, a part of which is alcoholic, the same being a product of distillation commonly called moonshine whisky, without having first obtained a manufacturer's license as required by law, contrary to the laws of said State, the good order, peace and dignity thereof." His motion for a new trial, based solely on the general grounds, was denied and he has brought the present writ of error here to have that judgment reviewed.
1. By the terms of Code § 58-206, the manufacture of alcoholic liquors is prohibited in the "dry" counties of this State, and a violation of that statute is a felony. By the terms of Code (Ann. Supp.) §§ 58-1024 and 58-1067, it is made a felony to manufacture alcoholic liquors in the "wet" counties of this State without first obtaining a license to do so. These sections of the Code state two different and distinct offenses; one, which is applicable in the dry counties of this State, is the mere manufacture of the prohibited alcoholic liquors; and the other, which is applicable in the wet counties of this State, is the manufacture of the prohibited alcoholic liquors without first obtaining a license. In Shuman v. State, 82 Ga. App. 130 (60 S.E.2d 521), this court held: "A person cannot be legally licensed by the State to manufacture alcoholic liquors in a `dry' county, and hence one found operating an illicit liquor still in a `dry' county cannot be convicted of operating a distillery for manufacturing liquor without a license in violation of Code (Ann. Supp.) § 58-1024 [and § 58-1067]." The defendant in the present case is charged in the indictment with the commission of a felony in the manufacture of alcoholic liquors in Washington County, "without having first obtained a manufacturer's license as required by law." This court will take judicial notice that Washington County is dry. Ivey v. State, 84 Ga. App. 72, 75 (65 S.E.2d 282). The general law contained in Code § 58-206, which prohibits the manufacture of alcoholic liquors altogether, is applicable in Washington County and the prohibited liquors may not be manufactured in that county, with or without a license. The indictment in the present case does not specify under which of the Code sections referred to above it purports to be drawn. The indictment is sufficiently broad to charge either of the two offenses referred to and, if supported by competent evidence, would authorize the conviction of the defendant of either offense. There was no demurrer to the indictment, and one who waives his right to be tried upon an indictment perfect in form as well as substance, and takes his chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless such defects are so great that the indictment is absolutely void. Foy v. State, 40 Ga. App. 617 (150 S.E. 917); Pence v. State, 36 Ga. App. 268 (136 S.E. 821); Lanier v. State, 5 Ga. App. 472 (63 S.E. 536). The indictment sufficiently charges the manufacture of liquor in a dry county, and the allegation that this was done "without having first obtained a manufacturer's license as required by law" will be treated as mere surplusage.
This case differs from the Shuman case, supra, in that in the Shuman case the indictment charged specifically that the accused had manufactured liquor in a dry county in violation of Code (Ann. Supp.) § 58-1024. which section is not applicable in dry counties. The indictment in the case charged only one offense, that of manufacturing liquor without a *791 license, and it was impossible for an accused to be guilty of such offense in a dry county.
2. The jury was authorized to find that the defendant had been at the still, on the day on which he was arrested, from 8 a. m. to 3 p. m., that the still was in operation and had produced a quantity of "moonshine" liquor during that time, and that the defendant was carrying wood to fire the still. One who is present at a distillery when liquor is being manufactured and personally assists in any way in the manufacture is guilty of manufacturing liquor, and it is immaterial whether or not he owns the distillery, and whether or not he is hired to work there. Thomas v. State, 24 Ga. App. 350 (100 S.E. 760); Mapp v. State, 26 Ga. App. 479 (106 S.E. 801); Lindsay v. State, 32 Ga. App. 74 (122 S.E. 649). The evidence authorized the verdict and the trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
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91 Ga. App. 25 (1954)
84 S.E.2d 688
GALANTY
v.
KIRK.
35103.
Court of Appeals of Georgia.
Decided October 27, 1954.
*29 Jack B. Smith, Ginsberg & Rose, for plaintiff in error.
Noah J. Stone, Joseph J. Fine, contra.
QUILLIAN, J.
1. (After stating the foregoing facts.) The bill of exceptions having properly assigned error upon the judgment of the court striking the defendant's answer, the defendant in his bill of exceptions sufficiently assigned error on the final judgment in the case in the language set forth in the statement of facts. Lyndon v. Georgia Ry. &c. Co., 129 Ga. 353 (3) (58 S.E. 1047); Walker v. Calhoun, 40 Ga. App. 385 (1) (149 S.E. 791).
2. The suit was upon a note in the principal amount of $1,850. The answer alleged that he executed a note for $1,875.42 to one Rachelson, who was heavily indebted to the plaintiff; that the $1,875.42 note was endorsed by Rachelson as collateral to the plaintiff; that thereafter the said Rachelson, in order to settle his entire indebtedness to the plaintiff, delivered to him approximately $40,000 worth of merchandise and accounts receivable; that the note of the defendant for $1,875.42 was thereby satisfied; that the plaintiff knew that the note had been executed by the defendant to Rachelson without consideration; and that the plaintiff represented falsely to the defendant that the $1,875.42 note was due and unsatisfied. The answer further set up that the plaintiff admitted to him that he knew that the $1,875.42 was without consideration, and in addition to the representation that the note had not been paid and satisfied, that if defendant would sign the note sued upon, Rachelson would pay to him in merchandise the equivalent of $50 weekly. The answer further relates that this representation was false, and that the plaintiff well knew that he had taken over all of the merchandise and accounts receivable of Rachelson; that Rachelson was a bankrupt, and that he could not furnish merchandise to the defendant. The defendant set up in his answer that he did not know the $1,875.42 had been satisfied, and did not know that he had turned over all of his merchandise and accounts receivable to the plaintiff. The defendant alleges that, in the circumstances above related, he gave to the plaintiff a note for $1,850, which is the note sued upon and $25.42 in renewal of *30 the $1,875.42 note that he had originally made to Rachelson. The plaintiff filed a general demurrer to the answer, the court sustained it, struck the answer, and the defendant excepted.
The answer was sufficient, though rather loosely drawn, to set up the defense that the note was without consideration. Jones v. Lawman, 56 Ga. App. 764 (194 S.E. 416).
The plaintiff contends that the accounts receivable that Rachelson delivered to him in payment of his indebtedness due the plaintiff, including the defendant's note, did not constitute payment until they themselves were paid. This is true where accounts receivable are turned over by a debtor to his creditor as collateral security; but, where the accounts are, as the answer alleged is true in this case, sold outright to the creditor in payment of a debt due him by their owner, the creditor can, of course, accept them as full payment for the debt due him; and, in this event, their transfer to the creditor extinguishes the debt due him, whether the accounts are ever collected, and if no fraud or deceit is practiced by the debtor in inducing his creditor to accept accounts owing to the debtor, in satisfaction of the debt he owes to his creditor. The transfer of the accounts would be effective for that purpose, even if they were not collectible. It might be that a creditor would desire to own an account due to his debtor by some relative or friend from whom he would not even desire to collect, and perhaps would well know that from such person he could not collect the account.
The facts alleged in the answer also were sufficient to set up the defense that the defendant was induced by false representations made by the plaintiff to deliver the note sued upon to him. It can not be said that the defendant is barred, under the facts alleged in the answer, from urging the defense that he was fraudulently induced by such false representations to sign the note, by any lack of diligence in the discovery of the fraud. There is nothing in the answer to indicate that there was any reason that the defendant should not have accepted the representations made by the plaintiff as true, or that there was anything to put him on guard as to the plaintiff's sincerity in making them. Ordinarily, in business transactions one has a right to believe another, unless what the latter says is inherently improbable, and a person making a misrepresentation by which *31 another is defrauded is not in position to maintain that, before accepting the representations as true, the person dealing with him should make investigation as to his veracity.
Lastly, the plaintiff contends that the holding in Chandler v. Merchants & Mechanics National Bank, 30 Ga. App. 694 (2c) (118 S.E. 785), is applicable to the defense in this case. It reads as follows: "It is the general rule that, `in the case of accommodation paper pledged, the pledgee can recover only the amount of the debt due him from the pledgor,' rather than the face amount thereof with interest, so as to retain as trustee for the pledgor any surplus remaining after payment of the debt; `but the fact that the holder has other collateral securities for the same debt, more than sufficient to cover it without the accommodation note, also pledged, but which have not been realized so as to extinguish the debt, is no defense for the accommodation maker against the pledgee of the note, though if the debt has been so extinguished the pledgee could not recover.' 21 Rawle C. L. 670; 3 Rawle C. L. 1061; 31 Cyc. 887 ( § 3))."
In the case at bar, the defense set up in the answer was not that the plaintiff had received from Rachelson added security for the debt Rachelson owed him, and that the defendant was entitled to be relieved of his obligation to pay the note sued upon simply because of the delivery by Rachelson to the plaintiff of the additional security. What the answer does set up is that the plaintiff had accepted from Rachelson certain merchandise and accounts receivable, not as collateral, but as payment; not to secure, but to extinguish, obligations of Rachelson to the plaintiff, including the note sued upon. The law pronounced in the decision cited is sound, but inapplicable to the issue made by the pleadings in this case.
The answer set up a good legal defense to the action on the note, and the general demurrer was erroneously sustained.
Judgment reversed. Felton, C. J., and Nichols, J., concur.
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211 Ga. 103 (1954)
84 S.E.2d 70
FERGUSON et al.
v.
RANDOLPH COUNTY et al.; and vice versa.
18695, 18696.
Supreme Court of Georgia.
Argued September 13, 1954.
Decided October 13, 1954.
Jesse G. Bowles, Farkas, Landau & Davis, for plaintiffs in error.
Joe M. Ray, Walter E. Taylor, Jr., S. B. Lippitt, contra.
ALMAND, Justice.
Albert Ferguson and others, alleging themselves to be residents and taxpayers of Randolph County, filed a petition against said county, certain named persons in their individual capacity and in their official capacity as Commissioners of the Board of Roads and Revenues of Randolph County, and M. D. Lovett doing business as Lovett Construction Company. The petition charged that the defendant county had received from the State Highway Department numerous contracts for the construction of roads in said county, and that said commissioners had illegally contracted with one of its members, M. D. Lovett, who is doing business under the names of Lovett Construction Company and M. D. Lovett Construction Company, for the performance of the State Highway contracts, and during a period of 3 years had made payments to the said Lovett out of the moneys received from the Highway Department. It was alleged that these contracts with M. D. Lovett had been *104 entered into illegally, and that what moneys were alleged to have been paid to the Lovett companies had been illegally paid out. The prayers of the original petition were for legal and equitable relief.
By a first amendment, the petitioners alleged that the wrongs complained of in the petition were the acts and doings of the defendant commissioners, and that it would be a needless and fruitless effort to request said commissioners to bring suit in the name of the county against themselves, and it was necessary to name Randolph County as a party defendant, as the petitioners cannot name Randolph County as a party plaintiff; and that said commissioners did on a given date pass a resolution authorizing the payment from county funds of $1,000 to two named persons as attorneys to represent the county in the defense of the present suit, and such action was illegal.
The defendants filed general and special demurrers to the original petition, and their demurrers and renewed demurrers to the amendments and to the petition as finally amended. The judge, upon a hearing of the demurrers to the petition as finally amended, passed an order, in which he recited: "It is hereby considered, ordered and adjudged, that the demurrers be, and they are hereby sustained, except the court is allowing and does hereby allow, the case to proceed to a hearing on the merits as to whether or not the plaintiffs are entitled to injunctive relief against the defendants, to prohibit the defendants from paying out funds in the future on certain uncompleted rural post roads contracts and/or State-aid road contracts, and for a determination by a jury as to whether or not the plaintiffs are entitled to a permanent injunction against the defendants to restrain the defendants from paying out funds to M. D. Lovett and/or Lovett Construction Company, for labor, services, materials, equipment used in performing the work under the contracts which are the subject matter either directly or indirectly, of the suit, and for a jury to determine the value of the services and use of the equipment, materials, supplies, etc., furnished by M. D. Lovett and/or Lovett Construction Company, that have been furnished heretofore in accordance with contracts with Randolph County, one of the defendants in the case; and for a determination as to whether the plaintiffs are entitled to injunctive relief to prohibit *105 Randolph County, acting by and through its board of commissioners, purchasing machinery and equipment in the name of Randolph County, thereby not paying any sales tax, and in turn selling such machinery and equipment to M. D. Lovett and/or Lovett Construction Company and not charging M. D. Lovett or Lovett Construction Company sales tax thereof."
The plaintiffs filed their bill of exceptions, wherein they assigned error "to this ruling wherein the general and special demurrers were sustained as shown in above order in part and petition dismissed as shown in above order," on the ground that said order was contrary to law. The bill of exceptions sets out a colloquy that took place between counsel for the parties and the court on the hearing of the demurrers before the court entered its written order thereon. The judge in certifying the bill of exceptions recites what took place on the hearing, and explained that, when he made reference to sustaining the demurrers, he stated that it was his purpose to sustain the general demurrers, except to allow the plaintiffs to proceed to a hearing on the merits of the case as to whether they were entitled to injunctive relief against the county and county authorities to keep them from paying out any funds on any uncompleted contracts in existence or that might be sublet, and that his reference to the special demurrers which he was sustaining was to the special demurrer to require the plaintiffs to attach copies of the highway-board contracts to the petition, which contracts were set out in the last amendment.
The defendants by a cross-bill of exceptions assign error on the court's refusal to sustain all the demurrers both general and special.
1. The first question before us for decision is whether or not the assignments of error in the main bill of exceptions are such as can be reviewed by a direct bill of exceptions. It is apparent from the ruling excepted to that the trial court did not sustain all general demurrers of the defendants and dismiss the petition, but sustained only those demurrers to that part of the petition which sought to recover a money judgment from named defendants, and overruled the demurrers in so far as they challenged the right of the plaintiffs to injunctive relief; and that it was the purpose of the order to permit the jury, on the trial, to determine *106 the value of the services, supplies, equipment, etc., that had been furnished theretofore in accordance with contracts with Randolph County, and for determination by the jury as to whether the plaintiffs were entitled to injunctive relief to prohibit the county, acting through its board of commissioners, from purchasing machinery and equipment in the name of the county and not paying the sales tax, and subsequently selling the same to the defendant Lovett.
Code § 6-701 provides that no cause shall be carried to the Supreme Court by any bill of exceptions while the cause is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto. In Mauldin v. Kendrick, 192 Ga. 741 (16 S.E.2d 555), to a petition praying for injunction and damages, a demurrer was interposed, upon which the judge entered an order as follows: "After hearing arguments of counsel upon the within demurrer, the said demurrer is sustained in so far as it attacks the equitable relief sought, and overruled in so far as the suit for damages is concerned." The plaintiff excepted to this order by direct bill of exceptions, and the only error assigned was on this ruling. It was held that the writ of error must be dismissed as being prematurely sued out, because the only ruling complained of was not a final disposition of the case. In Robinson v. Georgia Power Co., 193 Ga. 51 (17 S.E.2d 55), the plaintiff in a suit for injunction and damages to realty excepted directly to an order of the court which read, "It is ordered that the within and foregoing demurrer is hereby sustained, and all equitable relief sought is hereby stricken from the petition," and it was held that the bill of exception was premature, as it appeared that the order excepted to did not finally dispose of the case in the court below. In Henderson v. Anderson, 188 Ga. 118 (3 S.E.2d 97), it was held that the mere striking on general and special demurrers of a part of the petition, where a complete cause of action remained for determination in the trial court, is a mere interlocutory judgment to which exceptions must be taken pendente lite, and is not reviewable until there is a final judgment or decree. For similar rulings, see Stephens v. Haugwitz, 167 Ga. 352 (145 S.E. 660); Fickett v. Fuller, 171 Ga. 190 (154 S.E. 784).
*107 It is plainly apparent that the order entered by the trial court on the demurrers simply sustains the general demurrers as against that part of the petition which sought to recover a money judgment in favor of the defendant county against the defendant commissioners and M. D. Lovett doing business under his two trade names; and overruled those general demurrers which challenged the right of the plaintiffs to injunctive relief against the defendant commissioners and Lovett doing business in his trade names, and retained the case for trial on the question of injunction and the ascertainment of the value of the services and use of the equipment, material, supplies, etc., furnished by Lovett and his construction companies, and also whether or not the plaintiffs were entitled to injunctive relief to prohibit Randolph County, acting through the defendant commissioners, from purchasing machinery and equipment in the name of the county and in turn selling the same to Lovett and his construction companies and not charging a sales tax. In our opinion, the order excepted to was not a final order such as can be reviewed by a direct bill of exceptions.
The two cases relied on by the plaintiffs in error (Bradley v. Lithonia & Arabia Mountain R. Co., 114 Ga. 741, 82 S.E. 138; Mendenhall v. Stovall, 191 Ga. 452, 12 S.E.2d 589), are not contrary to what has been here ruled, and do not support their position. In the Bradley case, the petition sought an injunction to prevent the doing of several different acts. The demurrer of the defendant was sustained in part, and the petition dismissed except so much of it as sought relief on a few of the specified grounds. After hearing the evidence, the court denied an interlocutory injunction. The plaintiff filed exceptions pendente lite to the judgment sustaining the demurrer, and sued out a bill of exceptions, assigning error on the judgment refusing an interlocutory injunction, and upon the exceptions pendente lite. The court did not have before it the question of whether or not the exceptions to the ruling on demurrer were premature, or whether or not the ruling on demurrer was reviewable by direct bill of exceptions, and merely ruled that the ruling on demurrer was reviewable by writ of error and not by fast writ of error, and the case did not involve the question of whether or not the ruling on demurrer was reviewable by a direct bill of exceptions. The *108 ruling complained of in that case was a ruling on the denial of an interlocutory injunction, and on the exceptions pendente lite which were filed to the ruling on demurrer. In the Mendenhall case, it was sought to review an order of the court in a receivership proceeding allowing attorneys' fees to counsel for the plaintiff. Direct exceptions were taken to this order. This court overruled the motion to dismiss the writ of error on the ground that the case was premature, and held that the judgment on one of the substantial issues in an equity case, which if not superseded will work injury to the losing party, and which would not be completely cured by reversal, was reviewable by this court on a direct bill of exceptions while the other issues in the case were still pending in the trial court. In the instant case, the plaintiffs sought a money judgment and injunctive relief, which did not require separate trials, and the ruling, dismissing the case as to the legal relief sought and retaining it for trial on the issue made as to equitable relief, did not work any injury as against any property rights of the plaintiffs. The ruling in the Mendenhall case is not applicable to the present situation.
It follows from what has been said that the main bill of exceptions must be dismissed as being prematurely brought to this court.
2. The defendants by cross-bill of exceptions assign error on the ruling on their demurrers, asserting that the court "should have sustained each and all of the demurrers . . . to the plaintiffs' petition as amended for each and every reason stated in said demurrers, both general and special,"
The order as entered by the court did not specifically recite that it had sustained any of the special demurrers, and from the judge's certificate to the cross-bill of exceptions it is apparent that the only special demurrer considered by him was the one that sought to require the plaintiffs to attach to their petition copies of the alleged contracts between Randolph County and the State Highway Department, and pursuant to that ruling the plaintiffs amended their petition by attaching copies of said contracts. It is clear that the court did not pass upon the special demurrers on the grounds of (a) multifariousness, (b) misjoinder of cause of action, (c) misjoinder of parties, (d) the right to make Randolph County a party defendant, or (e) to *109 seek equitable relief for the benefit of the county. So, we have before us only the question of whether or not the court erred in overruling the general demurrers, which asserted that the plaintiffs were not entitled to any equitable relief.
A general demurrer to an equitable petition will not be sustained if the facts alleged entitle the plaintiff to any of the substantial relief prayed for, and should be overruled if any part of the pleading is good in substance. Arteaga v. Arteaga, 169 Ga. 595 (151 S.E. 5); Sutton v. Adams, 180 Ga. 48 (178 S.E. 365). A taxpayer may bring a suit against county officials to enjoin them from doing unauthorized or illegal acts. Mitchell v. Lasseter, 114 Ga. 275 (4) (40 S.E. 287); Dancer v. Shingler, 147 Ga. 82 (2) (92 S.E. 935); McGinnis v. McKinnon, 165 Ga. 713 (1) (141 S.E. 910). The petitioners in the instant case charged that the county commissioners had illegally contracted with one of their members for the performance of contracts for the construction of roads in said county which they had received from the State Highway Department, which contracts had not been entered on the minutes of the board of county commissioners, and were for various reasons alleged void and illegal; and prayed that the commissioners be restrained and enjoined from paying out funds in their hands to such member. If such contracts are not in writing and entered on the minutes of the proper county authority, they are not enforceable. Code § 23-1701; Killian v. Cherokee County, 169 Ga. 313 (2c) (150 S.E. 158).
Under an act of the General Assembly of 1937 (Ga. L. 1937, p. 912), as amended in 1949 (Ga. L. 1949, p. 276; Code, Ann. Supp., § 95-2217), the State Highway Department is authorized to contract with counties for the construction of roads, but such contracts "shall not be sublet or transferred to any other person, firm or corporation, but shall be performed by the counties with convict labor or county forces, and not otherwise." The petition in the instant case charges that the defendant commissioners, without any written contract, or any contract entered on their minutes, let the contracts to the two defendant companies. The contracts between the State Highway Department and Randolph County, attached to the amended petition, recited that the county should perform the work under the contracts, and that *110 the contracts could not be sublet or transferred to any other person, firm or corporation. Regardless of the other questions raised by the general demurrers, the petition distinctly charges that the defendant commissioners entered into contracts with Lovett, doing business under his trade names, for the construction of roads, which contracts were not in writing or entered on the minutes of the board, and in violation of the act of 1937 as amended in 1949, and in violation of the contracts between the State Highway Department and Randolph County. The petition was sufficient as against the general demurrers to set out a cause of action for injunctive relief, and the court did not err in overruling the general demurrers on the ground that the petition did not set forth a cause of action for any equitable relief. Since the trial judge did not pass upon any of the special demurrers other than the one mentioned in his order, and no error is assigned on his failure to rule on the special demurrers (Shingler v. Shingler, 184 Ga. 671 (1), 192 S.E. 824; Tingle v. Maddox, 186 Ga. 757 (1) 198 S.E. 722), and these other grounds of demurrer are still open in the trial court, we will not rule on any of them.
Main bill of exceptions dismissed; judgment on the cross-bill affirmed. All the Justices concur.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/8312863/
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TIMOTHY J. KELLY, United States District Judge *26Plaintiff Tingzi Wang, a Chinese national, sought a visa for entry into the United States through the EB-5 Immigrant Investor Program, which grants legal resident status to qualified foreign nationals that invest capital in a new commercial enterprise. Wang applied for the visa based on his million-dollar investment in a Florida restaurant, for which he received an equity stake. Wang claimed that his investment was fully "at risk" as required by the EB-5 regulations. However, the United States Customs and Immigration Services (USCIS) denied his petition because his investment agreement included a guarantee that the other restaurant owners would purchase his stake whenever he wished to end his investment, thereby returning a portion of his capital to him. This sell option, USCIS concluded, eroded his capital contribution below the minimum amount required to be "at risk." This case is about whether USCIS reached that determination lawfully. Before the Court are the parties' cross-motions for summary judgment. For the reasons explained below, the Court will grant Defendants' Amended Cross-Motion for Summary Judgment, ECF No. 26, and deny Wang's Amended Motion for Summary Judgment, ECF No. 25.1I. BackgroundIn 1990, the Immigration and Nationality Act (INA) established the EB-5 Immigrant Investor Program, which provides visas to aspiring immigrants who make qualifying investments in U.S. commercial projects. 8 U.S.C. § 1153(b)(5). To qualify for an EB-5 visa, an individual must invest at least $ 1,000,000 of capital into a new, restructured, or expanded business or commercial project in the United States and that investment must create at least ten full-time jobs for U.S. workers.2 Id. Once the individual, or "petitioner," makes the required capital investment, she may submit a Form I-526 petition to USCIS to obtain status as a legal U.S. resident, along with her spouse and children, on a conditional basis for two years. 8 C.F.R. § 204.6(a). After two years, a petitioner seeking permanent resident status may submit a Form I-829 petition to USCIS to show that she has satisfied all capital investment and job-creation requirements of the program. See 8 C.F.R. § 216.6(c). If a petitioner fails to meet these requirements, or neglects to file an I-829 petition, *27USCIS must terminate the petitioner's conditional immigrant visa. See 8 U.S.C. § 1186b(b)(1) ; 8 C.F.R. §§ 216.6(a)(5), 216.6(d)(2).The EB-5 program imposes specific requirements, through regulations promulgated by the Department of Homeland Security (DHS), about how, and under what conditions, petitioners must invest their capital to qualify for a conditional visa. Under those regulations, a petitioner must place "the required amount of capital at risk for the purpose of generating a return." 8 C.F.R. § 204.6(j)(2). To be "at risk," the petitioner must "show actual commitment of capital." Id. "Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing." Id. And any capital contribution cannot be made "in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement." 8 C.F.R. § 204.6(e).Under DHS regulations, a petitioner for an immigration benefit "must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be through adjudication." 8 C.F.R. § 103.2(b)(1). Any additional evidence submitted in connection with a benefit request at a later date, including evidence responding to a request from USCIS, must also establish a petitioner's "eligibility at the time the benefit request was filed." 8 C.F.R. § 103.2(b)(12). Under this rule, USCIS will deny a petition if the petitioner becomes eligible only after the petition was filed. Id.USCIS may designate certain decisions issued by the Board of Immigration Appeals (BIA) as "precedent decisions" that are binding in future proceedings. 8 C.F.R. § 103.3(c). The BIA has designated four such decisions relating to USCIS adjudications of petitions under the EB-5 program. Relevant here is the BIA's decision in Matter of Izummi , 22 I. & N. Dec. 169 (BIA 1998). In that decision, the BIA held that an investment made to support an I-526 petition "cannot be said to be at risk" if it was "guaranteed to be returned, regardless of the success or failure of the business." 22 I. & N. Dec. at 184. Further, in that decision, the BIA held that a petitioner "may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements." Id. at 175.B. Wang's Petition for an EB-5 VisaIn June 2014, Wang filed an I-526 petition for EB-5 visas for himself and his wife, daughter, and son-all of whom, like Wang, are Chinese nationals. JA 4. Wang asserted his eligibility under the EB-5 program based on his $ 1,000,000 investment in Boca Restaurant, Inc., d/b/a Community Table ("Boca Restaurant" or "the Corporation"), a restaurant in Boca Raton, Florida. JA 5-7. The month beforehand, Wang had completed his investment by transferring $ 1,000,000 in cash to Boca Restaurant's operating account. Id. According to Wang's petition, his capital investment in Boca Restaurant created 18 new jobs for U.S. workers. JA 3. Wang also submitted an executed shareholder's agreement (the "Agreement") as part of his petition, dated February 28, 2014, that governed the terms of his investment. JA 20-30. In exchange for his capital investment, as set forth in the Agreement, Wang received equity shares in Boca Restaurant worth 40% of the company. JA 20.Section 6.01 of the Agreement, titled "Transfer of Shares," contained the terms by which investor-shareholders could transfer their shares to Boca Restaurant. JA 23. Under that section, "the Corporation *28shall purchase and the Shareholder or his or her estate shall sell to the Corporation, at the price set forth in Section 6.11, all of the shares in the Corporation legally or beneficially owned by the Shareholder" upon the occurrence of any of these events:(b) the termination of [a] Shareholder's employment with the Corporation, orThe value of each share of stock in the Corporation shall be equal to its book value plus an amount equal to (1) 70 percent of the accounts of the Corporation as of the end of the most recently completed fiscal quarter that precedes the event causing the sale of the shares, divided by (2) the number of outstanding shares of the Corporation as of the Purchase Date."JA 26. Section 6.13 of the Agreement further defined the term "book value" as "the value of the capital stock of the Corporation as of the valuation date." JA 27. And under the Agreement, this value is calculated as follows:"[B]ook value" shall be defined to be the value of the stock of the Corporation after deducting the sum of all the liabilities of the Corporation from the sum of all the assets and property of the Corporation as shown on the books of the Corporation, except that the capital stock of the Corporation shall not be deducted as a liability, nor shall any surplus or undivided profits or any reserve fund representing the surplus or undivided profits be deducted.Id.3 Upon the event of a sale under Section 6.01, the "book value" of the shares sold is calculated "30 days after the date of the event precipitating the sale." Id.In October 2015, USCIS responded to Wang's I-526 petition by sending him a Request for Evidence (RFE), which noted that he had "not established that [he was] eligible" for a temporary EB-5 visa and asked him to submit additional evidence to remedy "deficiencies in the existing record." JA 79-84. Specifically, USCIS alleged, Wang had not established that his investment capital was "at risk for the purpose of generating a return in accordance with applicable law."4 JA 82. Because Sections 6.01 and 6.11 of the Agreement provided Wang "the option to withdraw and/or sell back his shares at any time he desires and receive all or a portion of his investment capital in return," the RFE stated, "there appear[ed] to be a guaranteed return agreement and a lack of risk." Id. To remedy this deficiency, the RFE permitted Wang to submit additional evidence to show that the Agreement "does not have a guaranteed return of capital that erodes [Wang's] capital contribution below the minimum amount." JA 83.A few months later, Wang responded to the RFE in part by submitting an amended shareholder agreement (the "Amended *29Agreement"), with the following provision added:Notwithstanding any provision of the Agreement to the contrary, this Amendment shall hereby amend all provisions contained in Section 6 of the Agreement with respect to the right of Wang to transfer his shares in the Company. In compliance with the legal and policy requirements of the United States Citizenship and Immigration Services' EB-5 Immigrant Investment Program, Wang cannot sell, transfer or assign, in any manner, all or any part of his shares in the Company, prior to receiving final adjudication of his Form I-829 Immigrant Petition for Entrepreneur ... including but not limited to his premature death or disability. Further, neither the Company nor any Shareholder can acquire the shares of Wang until such time as Wang has received final I-829 Petition adjudication.JA 94. Wang stated in his response that his capital investment was "100% at risk" under the original terms of the agreement because it "never intended to guarantee a return to investors." JA 86. All the same, Wang informed USCIS that the shareholders amended the Agreement "in order to conform to the [EB-5] program requirements that [Wang] shall not [ ] sell shares or withdraw from the company prior to receiving final adjudication of Form I-829." JA 85-86. The Amended Agreement, according to Wang, was "not inconsistent" with the original terms of the Agreement and "d[id] not materially change" the Agreement. Id. Although Wang asserted that it was "the understanding among shareholders/partners" that he would not "withdraw from the company prior to receiving final adjudication of [his] Form I-829 [petition]," he admitted in his response that this point was not "adequately addressed" by the original Agreement. Id. And he also asserted that Section 6 of the Agreement did not guarantee "all or part of" his "return on investment" because "the company ha[d] an obligation to purchase the shares at a fair market value" and "[m]arket value is dependent on the performance of the business at the time of transfer." Id.On January 14, 2016, USCIS denied Wang's I-526 petition. JA 322-26. USCIS determined that Wang's capital investment was not "at risk" as required by 8 C.F.R. § 204.6(j)(2) because Section 6.01 of the Agreement guaranteed "a return of capital." Id. In so finding, USCIS declined to consider the additional provision added to the Amended Agreement because, according to USCIS, it constituted a "material change" to his petition. JA 325. "Even if USCIS accepted the amendment as a non-material change," USCIS stated in the denial, "the purchase of shares by the company, per Section 6.11, is at 'book value,' and not 'fair market value.' " Id. As a result, USCIS concluded that Wang "made the investment with the knowledge that his shares will be worth the same amount for the life of the investment regardless of when he intends to sell them." Id. For these reasons, USCIS determined that Wang "failed to establish by a preponderance of the evidence that the Form I-526 complies with applicable legal requirements." Id. In accordance with 8 C.F.R. § 103.5, USCIS offered Wang the opportunity to appeal that decision and provide "additional evidence that shows [its] decision is incorrect." Id.On February 15, 2016, Wang appealed USCIS's denial. JA 327-28. Wang argued that USCIS was "incorrect" when it stated that he had "made an investment with knowledge that his shares will be worth the same amount for the life of the investment." JA 345. Unlike "the facts under Matter of Izzumi ," on which USCIS relied, Wang argued that Section 6.01 was a "permissible *30redemption agreement" that only allowed him to redeem his shares based on their "book value," which "depends completely on the performance of the company." JA 341-43. He also argued that the Amended Agreement did not constitute a material change to his petition because the new provision reflected a "mutual understanding" between the shareholders and "clarif[ied] the concerns [USCIS] raised." JA 346.On July 15, 2016, USCIS dismissed Wang's appeal and affirmed its denial of his I-526 petition. JA 387-92. USCIS acknowledged Wang's argument that it erroneously concluded that he "made the investment with the knowledge that his shares will be worth the same amount for the life of the investment," but affirmed that he "still [had] not demonstrated that the required minimum amount of capital was placed at risk for the purpose of generating a return in accordance with applicable law." JA 390-91.C. This ActionWang filed this lawsuit challenging USCIS's denial of his I-526 petition on October 3, 2016. Compl. He then amended his complaint on March 3, 2017. Am. Compl. He brings three claims under the Administrative Procedure Act (APA) and one claim under the Due Process Clause of the Fifth Amendment. First, under 5 U.S.C. § 706(2)(A) of the Administrative Procedure Act (APA), Wang alleges that USCIS acted arbitrarily and capriciously by denying his petition purportedly because his investment was not "at risk" under EB-5 regulations and declining to consider his Amended Agreement when reaching that determination. Id. ¶¶ 34-78. Second, under § 706(2)(C), he alleges that USCIS exceeded its statutory authority and engaged in ultra vires action when it denied his petition. Id. ¶¶ 79-84. Third, he contends that USCIS violated his procedural due process rights under the Fifth Amendment by failing to consider evidence that purportedly undermined the basis for its denial. Id. ¶¶ 85-89. Fourth, he asserts that USCIS invoked a "rule of general applicability" by relying on a new legal standard but failed to undergo the required notice-and-comment rulemaking for such rules. Id. ¶¶ 90-93.II. Legal StandardUnder Rule 56(a) of the Federal Rules of Civil Procedure, a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." However, when reviewing an agency action, "the standard set forth in Rule 56 [ ] does not apply because of the limited role of a court in reviewing the administrative record." Hisgen v. Fanning , 208 F.Supp.3d 186, 192 (D.D.C. 2016) (citing Sierra Club v. Mainella , 459 F.Supp.2d 76, 89 (D.D.C. 2006) ). In APA cases, courts look to "whether an agency action is supported by the administrative record and consistent with the APA standard of review." Blue Ocean Inst. v. Gutierrez , 585 F.Supp.2d 36, 41 (D.D.C. 2008). Under this standard, courts must set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). A court's review of an agency action under the arbitrary and capricious standard is "[h]ighly deferential" and "permits reversal 'only if the agency's decision is not supported by substantial evidence, or the agency has made a clear error in judgment.' " Hagelin v. FEC , 411 F.3d 237, 242 (D.C. Cir. 2005) (quoting AT & T Corp. v. FCC , 220 F.3d 607, 616 (D.C. Cir. 2000) ). Courts "generally defer to the wisdom of the agency as long as the action is supported by 'reasoned decisionmaking.' "III. AnalysisThe Court finds that Defendants are entitled to summary judgment on all counts. In Count I, Wang asserts that USCIS's denial of his petition and refusal to consider the Amended Agreement was arbitrary and capricious. But as explained below, he fails to show how USCIS's application of the relevant regulations and Matter of Izummi to his petition were unlawful on that basis. For similar reasons, summary judgment is appropriate for Defendants on Wang's allegations in Count II that USCIS engaged in ultra vires agency action, and in Count IV that USCIS applied a new rule to his petition without undertaking notice-and-comment rulemaking. Finally, Defendants are also entitled to summary judgment on Wang's Fifth Amendment due process claim in Count III, because he has no protected liberty or property interest in his visa application or the procedures through which it is processed.Under the arbitrary and capricious standard, a court "will not disturb the decision of an agency that has 'examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.' " MD Pharm. v. Drug Enforcement Admin. , 133 F.3d 8, 16 (D.C. Cir. 1998) (quoting Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). "To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Under this standard, an agency cannot " 'offer[ ] an explanation for its decision that runs counter to the evidence' before it." Dist. Hosp. Partners, L.P. v. Burwell , 786 F.3d 46, 57 (D.C. Cir. 2015) (quoting State Farm , 463 U.S. at 43, 103 S.Ct. 2856 ). However, "a decision of less than ideal clarity" must still be upheld "so long as 'the agency's path may reasonably be discerned.' " U.S. Sugar Corp. v. EPA , 830 F.3d 579, 652 (D.C. Cir. 2016) (quoting State Farm , 463 U.S. at 43, 103 S.Ct. 2856 ). And further, "[i]t is well understood in administrative law that a reviewing court will uphold an agency action resting on several independent grounds if any of those grounds validly supports the result." Pierce v. SEC , 786 F.3d 1027, 1034 (D.C. Cir. 2015) (citing Carnegie Natural Gas Co. v. FERC , 968 F.2d 1291, 1294 (D.C. Cir. 1992) ).In alleging that USCIS acted arbitrarily and capriciously when it denied his I-526 petition, Wang takes issue with two aspects of its decision. First, he argues that USCIS wrongfully determined that his investment was not "at risk" under EB-5 regulations. See Pl.'s MSJ Br. at 12-22. In doing so, he asserts that USCIS misinterpreted Matter of Izummi and misunderstood the term "book value" under the Agreement. Second, Wang argues that USCIS improperly concluded that his Amended Agreement was a "material change" to his original petition. See id. at 24-31. The Court considers each in turn.1. The "At Risk" DeterminationUSCIS denied Wang's I-526 petition because it determined that his investment was not sufficiently "at risk" under EB-5 regulations. JA 324. In doing so, *32USCIS relied on Matter of Izummi , which, according to its explanation in the denial letter, established that if a petitioner "is guaranteed the return of a portion of his or her investment, ... then the amount of such guaranteed return is not at risk." Id. (citing 22 I. & N. Dec. at 180-84 ). Under that precedent, as USCIS explained to Wang in the RFE, it determined that Wang's investment was not "at risk" because Section 6.01 of the Agreement provided him "the option to withdraw and/or sell back his shares at any time he desires and receive all or a portion of his investment capital in return," JA 82-in other words, it granted him a sell option that he could exercise at his discretion. USCIS repeated that reasoning in the denial letter, citing as "prohibitive" the specific language in Section 6.01 requiring the Corporation to purchase "all of the shares in the Corporation legally or beneficially owned by the Shareholder" in the event of "the voluntary retirement of a Shareholder." JA 324. And subsequently, in its denial of Wang's appeal, USCIS "affirm[ed] the previous denial," noting that Wang "[had] still not demonstrated that the required minimum amount of capital was placed at risk for the purpose of generating a return in accordance with applicable law." JA 391.In Matter of Izummi , the BIA concluded that an I-526 petitioner failed to meet the "at risk" requirement of the EB-5 regulations because his investment agreement contained a sell option permitting him to unilaterally sell his shares back to the business at a price that guaranteed him almost $ 300,000 in return. 22 I. & N. Dec. at 183-84. Because a portion of the petitioner's investment was "guaranteed to be returned, regardless of the success or failure of the business," the BIA concluded that that amount "would never be at risk," and, accordingly, that the petitioner failed to satisfy the EB-5 program's minimum capital requirements. Id. at 184. The BIA further stated that for a "[petitioner's] money truly to be at risk, [he] cannot enter into a partnership knowing that he already has a willing buyer in a certain number of years, nor can he be assured that he will receive a certain price." Id. at 186. Therefore, a petitioner "may not enter into any agreement granting him the right to sell his interest back to the partnership." Id.Wang argues that USCIS misinterpreted Matter of Izummi when it denied his petition. Pl.'s Opp. at 9-10. "The principle [sic] holding in that case," he contends, is that "a petitioner's investment is sufficiently 'at risk' when he is only able to receive any value in exchange for his investment based on the financial performance of the company." Id. at 9. And because Section 6.01 only permits him to sell his shares at their "book value"-which would fluctuate based on the success or failure of the investment-Wang argues that Matter of Izummi "provides unequivocal support that [his] investment was completely 'at risk.' " Id. at 10.The Court concludes that USCIS did not misinterpret Matter of Izummi in denying Wang's petition.5 As explained *33below, the reasoning underlying the BIA's determination in Matter of Izummi that the sell option in that case did not place the petitioner's capital fully "at risk" applies equally to Wang's sell option. And that reasoning is not limited, as Wang suggests, to cases in which a petitioner is guaranteed a return of a specific amount of capital regardless of the financial performance of the company. Wang points to a passage in Matter of Izummi stating that the petitioner failed to meet the "at risk" standard because a specific portion of his investment was guaranteed to be returned to him "regardless of the success or failure of the business." 22 I. & N. Dec. at 184. But Matter of Izummi's reasoning focused on the sell option itself, as opposed to the amount of capital the petitioner would be entitled to receive back if he chose to exercise it. As the BIA held:To enter into a redemption agreement at the time of making an "investment" evidences a preconceived intent to unburden oneself of the investment as soon as possible after unconditional permanent resident status is attained. This is conceptually no different from a situation in which an alien marries a U.S. citizen and states, in writing, that he will divorce her in two years. The focus here is on the green card and not on the business.... For the [petitioner's] money truly to be at risk, [he] cannot enter into a partnership knowing that he already has a willing buyer in a certain number of years, nor can he be assured that he will receive a certain price.... The [BIA] does not find that [a petitioner] may never sell back his partnership interest. Rather, the [BIA] finds that ... [a petitioner] may not enter into any agreement granting him the right to sell his interest back to the partnership. In no event may he enter into such an agreement prior to the end of the two-year period of conditional residence.... The [petitioner] must go into the investment not knowing for sure if he will be able to sell his interest at all after he obtains his unconditional permanent resident status; and if he is successful in selling his interest, the sale price may be disappointingly low (or surprising high and more than what he paid).22 I. & N. Dec. at 186-87.To be sure, Matter of Izummi held that any specific amount of capital guaranteed to be returned to the petitioner through a sell option is not "at risk" for purposes of the EB-5 regulations. But more broadly, it held that a petitioner's investment is not entirely at risk if he has any sell option-"a willing buyer in a certain number of years"-and especially one that may be exercised before the final adjudication of his I-829 petition. Id. at 186 (a petitioner "may not enter into any agreement granting him the right to sell his interest back to the partnership, [and in] no event may he enter into such an agreement prior to the end of the two-year period of conditional residence"). Without question, Wang entered such an agreement here. Therefore, as USCIS concluded, his sell option *34eroded his capital contribution below the $ 1,000,000 minimum required because it was not fully "at risk." JA 83.Wang also argues that his sell option gave him no guarantee of any capital return at all, because under Section 6.01, the price of his shares could be "positive, zero, or negative depending on whether the company's assets ... exceed[ed] its liabilities at the time of his exit from the company." Pl.'s MSJ Br. at 17. But in Matter of Izummi the BIA had the occasion to consider an arrangement in which a petitioner had a sell option that would require the repurchase of his shares at fair market value. 22 I. & N. Dec. at 185-86. Therefore, in some sense that petitioner also risked "losing all or part of his own capital in the event the fair market value of the investment ha[d] fallen at the time of repurchase." Id. at 186. Nonetheless, the BIA determined that the entire investment was not "at risk" because the presence of "a willing buyer in a certain number of years" caused the arrangement to resemble "nothing more than a loan"-albeit, in the event the company became worthless-"an unsecured one." Id.Wang also cites two recent opinions in this district in which courts concluded that USCIS acted arbitrarily and capriciously in denying I-526 petitions. See Pl.'s MSJ Br. at 16-17 (citing Doe v. U.S. CIS , 239 F.Supp.3d 297 (D.D.C. 2017) ); Pl.'s Notice (citing Chang v. U.S. CIS , 289 F.Supp.3d 177 (D.D.C. 2018) ). But neither of them helps his cause here. In Doe and Chang , those courts addressed how Matter of Izummi applied to "call options," which guarantee the right of the other shareholders in the business to buy back the petitioner's interest. See Doe , 239 F.Supp.3d at 301-02 ; Chang , 289 F.Supp.3d at 180-81. And in both cases, those courts found that, contrary to USCIS's determinations, Matter of Izummi did not disqualify the petitioners' investments because the call options could be exercised by the other shareholders, not the petitioners. See Doe , 239 F.Supp.3d at 307 ; Chang , 289 F.Supp.3d at 187. In contrast, like in Matter of Izummi, the Agreement provided Wang a sell option that guaranteed him the right to exit the investment at any time. See JA 23-27. For this reason, those cases are inapposite.6Wang presses another reason why USCIS's "at risk" determination was arbitrary and capricious: its purported misunderstanding of the term "book value." Pl.'s MSJ Br. at 12. He points to a portion of USCIS's denial letter in which it stated that, because the sell option guaranteed that Wang may sell his shares at their "book value," as opposed to "fair market value," he "made the investment with the knowledge that his shares will be worth the same amount for the life of the investment, regardless of when he intends to sell them." JA 325. And as Wang points out, *35under Section 6.13, the Agreement defines book value as "the value of the stock of the Corporation after deducting the sum of all the liabilities of the Corporation from the sum of all the assets and property of the Corporation." JA 27. Therefore, he asserts, book value does not reflect "a static price," but "is tied to the current financial status of the company" and is "subject to the same fluctuations in value as the company itself." Pl.'s MSJ Br. at 14. Accordingly, Wang argues, even if he were to sell his shares back to the Corporation, "the price he would receive in return would not necessarily be the amount he originally invested in exchange for the shares, but would depend on the company's property, assets, and liabilities at the time of his withdrawal." Id. at 15.The Court agrees that that portion of USCIS's denial letter appears to reflect a misunderstanding of the term "book value." As noted above, under Section 6.13, the Agreement defines "book value" as the sum of the Corporation's assets and property, subtracted by its liabilities. JA 27. And if Wang exercised the sell option, the share price guaranteed to him would be based on the book value of the Corporation at the time of his exit, in accordance with Section 6.11 of the Agreement. Therefore, given the fluctuating nature of corporate liabilities, assets and property, USCIS's characterization of Wang's shares as "worth the same amount for the life of the investment" appears accurate only in the sense that the price would always be set by the formula in the Agreement. But the value of those shares, of course, would change over time.The problem for Wang, though, is that USCIS's reasoning did not hinge on its understanding of the term "book value" or on any specific price Wang would receive for his shares if he exercised his sell option. As explained above, under Matter of Izummi , it turned on the presence of the sell option itself.USCIS referred to "book value" in its denial of Wang's petition only after it thoroughly described the basis for that denial: that his sell option guaranteed him a return of a portion of his investment. JA 324-25. In that reasoning, USCIS did not mention the term "book value." Moreover, USCIS referred to "book value" only in the context of addressing Wang's argument, discussed below, that the Amended Agreement was a non-material change to his petition, and, more specifically, only in response to Wang's characterization of the Agreement as requiring the Corporation to pay him fair market value for his shares. JA 325. Finally, USCIS did not mention "book value," or characterize Wang's shares as being worth the same over the span of the investment, when it denied his appeal. JA 389-92. In fact, USCIS acknowledged *36Wang's argument that it had "erroneously" concluded that he "made the investment with the knowledge that his shares will be worth the same amount for the life of the investment," but reaffirmed that, "[i]n spite of the new evidence and arguments presented," he still had not "demonstrated that the required minimum amount of capital was placed at risk for the purpose of generating a return in accordance with applicable law." JA 390-91. On this record, and in light of Matter of Izummi 's reasoning discussed above, the Court cannot conclude that USCIS relied upon a misunderstanding of the term "book value" to deny Wang's petition.82. The "Material Change" StandardWang also alleges that USCIS's refusal to consider his Amended Agreement because it constituted a "material change" to his petition was arbitrary and capricious. Pl.'s MSJ Br. at 24. In the Amended Agreement, Wang added a provision stating that he could not "sell, transfer or assign, in any manner, all or any part of his shares in the Company, prior to receiving final adjudication of his Form I-829 Immigrant Petition." JA 94. At the time he submitted it, Wang informed USCIS that the new provision "does not materially change the Shareholder Agreement" and that "the further restrictions as amended are not inconsistent nor do they conflict with the existing terms of the Shareholder Agreement." JA 86. However, USCIS declined to consider the Amended Agreement on the basis that it "constitute[d] [a] material change because it add[ed] a restriction that was not formally (at the time of filing) written in the agreement, and d[id] so for the sole purpose of conforming to EB-5 requirements." JA 325.Wang now asserts that USCIS (1) "failed to provide pertinent reasoning as to why the submission constituted a 'material change,' " (2) incorrectly determined that "a change to a company's offering documents" could be a " 'material change' in any sense," and (3) prematurely made such a determination in violation of its regulations. Pl.'s MSJ Br. at 24. None of these arguments prove that USCIS acted arbitrarily or capriciously.First, Wang alleges that USCIS's explanation was arbitrary and capricious because it "provide[d] no rationale as to why the clarification was a material change rather than an immaterial one."9 Pl.'s MSJ*37Br. at 27. While the APA requires an agency to "articulate a satisfactory explanation for its action," State Farm , 463 U.S. at 43, 103 S.Ct. 2856, the denial of a visa petition need only "be accompanied by a brief statement of the grounds for denial," 5 U.S.C. § 555(e) ; see Int'l Internship Programs v. Napolitano , 853 F.Supp.2d 86, 96 (D.D.C. 2012). In this context, the burden on the agency is "minimal," Butte County v. Hogen , 613 F.3d 190, 194 (D.C. Cir. 2010), and courts will "uphold a decision of less than ideal clarity if the agency's path may be reasonably discerned," State Farm , 463 U.S. at 43, 103 S.Ct. 2856 (quoting Bowman Transp. Inc. v. Arkansas-Best Freight System , 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) ).In the denial letter, USCIS informed Wang that under Matter of Izummi a petitioner may not "make material changes to a petition ... in an effort to make an apparently deficient petition conform to [USCIS] requirements." JA 323 (quoting 22 I. & N. Dec. at 175 ). This bar flows from regulations requiring a petitioner to "establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication." Id. (citing 8 C.F.R. § 103.2(b)(1) ). USCIS then stated that the Amended Agreement contained a material change because it "add[ed] a restriction that was not formally (at the time of filing) written in the agreement, and d[id] so for the sole purpose of conforming to EB-5 requirements." JA 325. That restriction, as USCIS previously noted, prohibited Wang from exercising his sell option under Section 6.01 until the adjudication of his I-829 petition. JA 324. And USCIS had, before submission of the Amended Agreement, objected to Section 6.01 as inconsistent with Matter of Izummi because it contained a sell option that eroded the amount of his investment that was "at risk" below the required threshold. JA 82-83. On this record, USCIS's rationale can be reasonably discerned, and it easily satisfied its minimal burden under the APA.10Second, Wang argues that the provision added to the Amended Agreement "was not a 'material' change in any sense because it had no effect on the actual 'risk' to which [he] was subject." Pl.'s MSJ Br. at 28. This argument merely rehashes points raised in his challenge to USCIS's determination that his investment was not "at risk." As explained above, under Matter of Izummi , an investment is not fully "at risk" if it is subject to a sell option that the petitioner may exercise to exit the investment and receive a portion of his capital back, especially one that can be exercised before final adjudication of his I-829 petition. See 22 I. & N. Dec. at 186 ("In no event may [a petitioner] enter into a redemption agreement prior to the end of the two-year period of conditional release."). Thus, because the new provision barred Wang from exercising the sell option until after final adjudication of that petition, the agency reasonably determined that the Amended Agreement "constitute[d] a material change according [to] EB-5 requirements."11 JA 391.*38Third, Wang argues that USCIS prematurely rejected his Amended Application from consideration because the agency was required to wait until its consideration of his I-829 petition before making "an ex-post determination as to whether [he] actually did keep his capital invested for the required 2-year period." Pl.'s MSJ Br. at 30-31. Certainly, Wang is correct that when USCIS considers an I-829 petition, it must assess whether the petitioner maintained his investment in accordance with the regulations. But that does not mean USCIS may forgo its duty to determine whether a petitioner's initial I-526 petition meets certain requirements, including showing that at the time the petition is filed, the petitioner "has placed the required amount of capital at risk" under 8 C.F.R. § 204.6(j)(2).For all the above reasons, Wang has not shown that USCIS acted arbitrarily and capriciously under § 706(2)(A) of the APA when it denied his I-526 petition. Accordingly, the Court will enter summary judgment for Defendants on Count I.B. Whether USCIS's Denial of Wang Petition Was Ultra Vires (Count II)In Count II, Wang alleges that USCIS exceeded its statutory authority and engaged in ultra vires agency action under 5 U.S.C. § 706(2)(C) when it denied his I-526 petition on the basis that his investment was not "at risk" and when it declined to consider his Amended Agreement on the ground that it constituted a "material change" to his petition. Am. Compl. ¶¶ 79-84. Because an agency's "power to act and how [it is] to act is authoritatively prescribed by Congress ... when [it] act[s] improperly, no less than when [it] act[s] beyond [its] jurisdiction, what [it] do[es] is ultra vires." City of Arlington, Tex. v. FCC , 569 U.S. 290, 297, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). "[T]he question in every case is, simply, whether the statutory text forecloses the agency's assertion of authority, or not." Id. at 1871.1. The "At Risk" Determination*39Accordingly, Wang's ultra vires claim against USCIS's "at risk" determination must fail.2. The "Material Change" StandardSecond, Wang argues that USCIS engaged in ultra vires action when it declined to consider the Amended Agreement because it applied a new standard for what constitutes a "material change."In declining to consider Wang's Amended Agreement, USCIS applied its regulation requiring a visa petitioner to "establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication." JA 323 (citing 8 C.F.R. § 103.2(b)(1) ). And in Matter of Izummi , the BIA interpreted that regulation to mean that "a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to [USCIS] requirements." 22 I. & N. Dec. at 175. In so doing, the BIA cited a previous (non-precedential) administrative decision, Matter of Katigbak , in which it had determined that a visa petition "was properly denied because the beneficiary was not at that time qualified," even through "at a future date ... the beneficiary may become qualified under a new set of facts." 14 I. & N. Dec. 45, 49 (BIA 1971). USCIS cited these authorities in its letter to Wang identifying the "restriction" that "prohibit[ed] [him] from exercising Section 6.01 until the adjudication of [his] Form I-829" as a material change. JA 323-25. For the reasons explained in Section III(A)(2), USCIS reasonably deemed that restriction to be a "material change" because it modified a provision of the Agreement that it had previously advised him was objectionable under Matter of Izummi in a way that appeared to try to address those concerns.Wang argues that USCIS exceeded its statutory authority when it determined that a change to a petition is "material" if "its 'sole purpose' was to 'conform[ ] to EB-5 requirements.' " Pl.'s MSJ Br. at 33. Id. (quoting JA 325). This new standard, he argues, is "much broader" than the established standard that a material change must be one that "render[s] an unapprovable petition approvable." Pl.'s MSJ Br. at 33 (citing Matter of Katigbak , 14 I. & N. Dec. at 49 ).Wang is wrong on all counts. For starters, the dual premises of his argument are incorrect. The record does not reflect that USCIS only considered Wang's apparent purpose in submitting the Amended Agreement when it declined to consider it. And the regulations and decisions cited above do not suggest that the established standard for materiality is that any such change must succeed in making an unapprovable petition approvable. In fact, such a standard makes no sense. The whole point is that USCIS does not consider material changes to a petition at all-thus precluding it from determining whether the change would make the petition approvable-because such changes cannot, by definition, establish that the petitioner was "eligible for the requested benefit at the time of filing the benefit request." 8 C.F.R. § 103.2(b)(1). In any event, and more importantly, Wang does not plausibly argue that any portion of the INA foreclosed USCIS's authority to decline to consider the Amended Agreement on this basis, such that it acted ultra vires.For the above reasons, the Court cannot conclude that Defendants engaged in ultra vires action when it determined that Wang failed to show that his investment satisfied EB-5 requirements and when it declined to consider Wang's Amended Agreement in *40its review of his petition. Therefore, the Court will enter summary judgment in favor of Defendants on Count II.C. Whether USCIS's Application of the "Material Change" Standard to Wang's Petition Required Notice-and-Comment Rulemaking (Count IV)For the same reasons that USCIS's application of the "material change" standard was not ultra vires , Wang's claims in Count IV that the application represented a "stark departure" from EB-5 regulations such that it required notice-and-comment rulemaking must fail. Compl. ¶¶ 90-93. Legislative rules are those that "have the 'force and effect of law' and may be promulgated only after public notice and comment." Nat'l Min. Ass'n v. McCarthy , 758 F.3d 243, 250 (D.C. Cir. 2014) (quoting INS v. Chadha , 462 U.S. 919, 986 n.19, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) ). In determining whether an agency adopted a new legislative rule, courts look to whether the rule "effects 'a substantive regulatory change' to the statutory or regulatory regime." Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. , 653 F.3d 1, 6-7 (D.C. Cir. 2011) (quoting U.S. Telecom Ass'n v. FCC , 400 F.3d 29, 34 (D.C. Cir. 2005) ). In support of his claim that the agency adopted a new legislative rule by adopting "a de facto amendment to its regulation through adjudication," Wang merely recites and incorporates by reference his arguments that USCIS acted outside its statutory authority by applying a new "material change" standard. Pl.'s MSJ Br. at 34-35 (citing Marseilles Land and Water Co. v. Fed. Energy Regulatory Com'n , 345 F.3d 916, 920 (D.C. Cir. 2003) ). But, as explained above, in refusing to consider the Amended Agreement because it was a material change to Wang's petition, USCIS reasonably applied its regulations and a binding precedential decision. Wang wholly fails to demonstrate that USCIS enacted a substantive regulatory change that would require notice-and-comment rulemaking under 5 U.S.C. § 553. Therefore, the Court will enter summary judgment in favor of Defendants on Count IV.D. Whether USCIS's Denial of Wang's Petition Violated His Fifth Amendment Due Process Rights (Count III)In Count III, Wang alleges that USCIS violated his Fifth Amendment due process rights "for the same reasons [its decision] is arbitrary and capricious." Pl.'s MSJ Br. at 39. To bring a claim under the Due Process Clause, a plaintiff must show (1) "deprivation of a protected liberty or property interest," (2) "by the government," (3) "without the process that is 'due' under the Fifth Amendment." NB ex rel. Peacock v. District of Columbia , 794 F.3d 31, 41 (D.C. Cir. 2015). "To succeed on a due process claim, a plaintiff must show that there was a cognizable liberty or property interest at stake." Smirnov v. Clinton , 806 F.Supp.2d 1, 12 (D.D.C. 2011) (citing Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). Thus, the "initial inquiry" in a Due Process claim looks to whether a protected liberty or property interest has been implicated. Raoof v. Sullivan , 315 F.Supp.3d 34, 44 (D.D.C. 2018) (citing Meachum v. Fano , 427 U.S. 215, 223, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) ).Wang has not shown that in denying his I-526 petition, USCIS deprived him of a protected liberty or property interest. In support of this constitutional claim, he asserts that he "possesses a valid due process interest in the proper adjudication of his visa." Pl.'s Opp. at 24. But "an applicant for initial entry has no *41constitutionally cognizable liberty interest in being permitted to enter the United States." Rafeedie v. INS , 880 F.2d 506, 520 (D.C. Cir. 1989). And "there is no property right in an immigrant visa." Smirnov , 806 F.Supp.2d at 12 (citing United State ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950) ). Nor is there "a constitutionally-protected interest in the procedures by which such visas are obtained." Id. (citing Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs , 104 F.3d 1349, 1353 (D.C. Cir. 1997) ). Accordingly, the Court will enter summary judgment for Defendants on Count III.IV. ConclusionFor all the above reasons, the Court will, in a separate Order, grant Defendants' Amended Cross-Motion for Summary Judgment, ECF No. 26, and deny Wang's Amended Motion for Summary Judgment, ECF No. 25.SO ORDERED.In reaching its conclusion, the Court considered all relevant filings including, but not limited to, the following: Plaintiff's Complaint, ECF No. 1 ("Compl.") ; Plaintiff's Amended Complaint, ECF No. 16 ("Am. Compl.") ; Joint Appendix, ECF No. 23-2 (with citations designated as "JA _____"); Plaintiff's Amended Motion for Summary Judgment, ECF No. 25 at 1-2 ; Plaintiff's Amended Memorandum in Support of his Motion for Summary Judgment, ECF No. 25 at 3-50 ("Pl.'s MSJ Br.") ; Defendants' Amended Cross-Motion for Summary Judgment, ECF No. 26 ; Defendants' Amended Memorandum in Support of their Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion, ECF No. 24 ("Dfs.' MSJ Br.") ; Plaintiff's Opposition to Defendants' Cross-Motion for Summary Judgment and Reply in Support of his Motion, ECF No. 27 ("Pl.'s Opp.") ; Defendants' Reply in Support of their Motion for Summary Judgment, ECF No. 29 ; Plaintiff's Notice of Supplemental Authority, ECF No. 30 ("Pl.'s Notice") ; and Defendants' Notice of Supplemental Authority, ECF No 31.Alternatively, an immigrant may qualify by investing $ 500,000 in a project in "a targeted employment area," defined as "a rural area which has experienced high unemployment." 8 U.S.C. § 1153(b)(5)(B).Although the Agreement also notes that the definition of "book value" excludes accounts receivable when totaling the Corporation's assets, a prorated share of the Corporation's accounts is incorporated into the purchase price of any transaction under Section 6.01. JA 26.The RFE cited another deficiency related to whether Wang had established that his investment capital was "obtained through lawful means," JA 83, but USCIS later confirmed that Wang satisfied this requirement by submitting supplemental documentation, see JA 322-23.Wang does not assert that Matter of Izummi was incorrectly decided, or that it does not reflect a reasonable interpretation of the regulations at issue. See Pl.'s Opp. at 9-10. And as a "precedent decision" designated by DHS to be "binding" on the agency, 8 C.F.R. § 103.3(c), the Court grants Matter of Izummi "substantial deference" under Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), as an interpretation of an agency regulation, see Mirror Lake Village v. Nielson , 345 F.Supp.3d 56, 63 (D.D.C. 2018) (quoting Mellow Partners v. Comm'r of Internal Revenue Serv. , 890 F.3d 1070, 1079 (D.C. Cir. 2018) ). But the Court declines Defendants' invitation to defer to USCIS's interpretation of Matter of Izummi as reasonable under Auer . Dfs.' MSJ Br. at 17. USCIS's interpretation of a BIA decision that "interprets [USCIS's] own regulation, which in turn interprets the statute" does not command such deference. Chiayu Chang v. U.S. CIS , 289 F.Supp.3d 177, 186 n.10 (D.D.C. 2018) ("An interpretation of an interpretation of an interpretation must rest on its own bottom."); see also Wang v. U.S. CIS , 16-cv-1963 (TNM), 366 F.Supp.3d 118, 121 n.4, 2019 WL 399735, at *3 n.4 (D.D.C. Jan. 31, 2019). To the extent that USCIS's decision to deny Wang's petition involved interpreting Matter of Izummi , the Court defers only to the extent that its interpretation has the "power to persuade," which it does here, for the reasons explained. Christensen v. Harris County , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ).On this basis, Wang contends that Defendants' "arguments are limited to this sole explanation for denial advanced by USCIS." Pl.'s Opp. at 13 (citing SEC v. Chenery Corp. , 332 U.S. 194, 204, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) ). Wang then describes several purportedly-new arguments put forward by Defendants in support of USCIS's decision that, according to him, are barred from consideration by the Court. See id. at 13-16. But the Court need not address this point, as it need not consider any of these arguments in granting Defendants' motion.For this reason, Wang's argument that USCIS failed to "consider dispositive evidence" on "the meaning of the term book value" also fails. Pl.'s MSJ Br. at 19-20. In its denial of his appeal, USCIS acknowledged that it had considered Wang's additional arguments and his submission of an affidavit by "an expert in accounting and business evaluation" on the proper valuation of "book value." JA 390. Wang's insistence that it failed to consider this evidence rests on his contention that, if it had, USCIS would have reversed its determination that his investment was not "at risk." See Pl.'s MSJ Br. at 20-21. But the record does not show that such evidence was "dispositive" because it did not undermine the primary rationale for USCIS's denial-that the Agreement provided Wang an option to sell his shares back to the Corporation.Wang also argues that USCIS's application of the "material change" standard was arbitrary and capricious because USCIS "did not base its finding of 'material change' on any statute or regulation." Id. at 25-26. He concedes, however, the USCIS relied on Matter of Izummi 's holding that "[a] petitioner must establish eligibility at the time of filing," and therefore "may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to [USCIS] requirements." Id. at 26; see 22 I. & N. Dec. at 175. Wang provides no reason why it was arbitrary and capricious for USCIS to rely on its precedential decision.Wang also argues that USCIS failed "to provide a basis for differentiating among similar cases." Pl.'s MSJ Br. at 27. And under the authority he cites, an agency must "treat like cases alike" and if it "makes an exception in one case, then it must either make an exception in a similar case or point to a relevant distinction between the two cases," Westar Energy, Inc. v. FERC , 473 F.3d 1239, 1241 (D.C. Cir. 2007) ; see also AFSCME Capital Area Council 26 v. FLRA , 395 F.3d 443, 449 (D.C. Cir. 2005). But Wang does not identify any similar cases that USCIS should have distinguished.Wang also advances an argument based on the nature of the documents at issue. He argues that because "[a] change to the terms of an offering document ... can be made at any time ," his amendment to the agreement could not be considered material. Id. at 24 (emphasis added). However, he cites to no legal authority in support, and Matter of Izummi appears to foreclose this argument. See 22 I. & N. at 175 (holding that "material changes" made to a partnership agreement could not be considered).
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01-03-2023
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10-17-2022
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https://www.courtlistener.com/api/rest/v3/opinions/2259180/
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129 Cal. Rptr. 2d 197 (2002)
104 Cal. App. 4th 1351
Tom BENEDEK, Plaintiff and Appellant,
v.
PLC SANTA MONICA, LLC, Defendant and Respondent.
No. B157016.
Court of Appeal, Second District, Division Five.
December 31, 2002.
*200 Law Offices of Gregory F. Stannard and Gregory F. Stannard, Santa Monica, for Plaintiff and Appellant.
Law Offices of Koester & Beavers, Glenn Rosen and Suzanne Klump, Santa Ana, for Defendant and Respondent.
GRIGNON, Acting P.J.
An individual signed a waiver of liability as part of a membership agreement at a health club. The waiver of liability released the health club from liability for all personal injuries sustained by a member on the premises "whether using exercise equipment or not." The health club member suffered personal injuries due to the negligence of the health club, while on the club's premises, but not using the exercise equipment. We conclude the express language of the unambiguous release of the health club from all premises liability defines its scope. In this case, the broad language of the release applies to liability of the health club for the fitness-unrelated personal injuries suffered by the health club member. We affirm the summary judgment in favor of the health club.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff and appellant Tom Benedek was a member of a health club located in the Loews Santa Monica Hotel. Defendant and respondent PLC Santa Monica, LLC ("Pritikin") had purchased the health club in 1997 and renamed it the Pritikin Longevity Center and Spa. Pritikin required each existing member of the health club to sign a new membership agreement with Pritikin in order to continue health club membership. In September 1998, Benedek signed the two-page membership agreement. The entire agreement is reproduced as an appendix to this opinion.
The membership agreement is comprised of 11 itemized paragraphs. In the introductory paragraph, Pritikin offered Benedek "the use of its services and facilities in conformance with the terms and conditions set forth below." Paragraph 5 explained that Benedek's membership gave him "access to facilities and services during the designated hours of operation." Paragraph 7 is entitled "Waiver of Liability." In an initial paragraph, Benedek "acknowledges and understands that [he] is using the facilities and services of the HOTEL and SPA at [his] own risk." Paragraph 7 continued as follows: "The SPA and HOTEL and their owners, officers, employees, agents, contractors and affiliates shall not be liableand the MEBER hereby expressly waives any claim of liabilityfor personal/bodily injury or damageswhich occur to any MEMBER, or any guest of any MEMBER, or for any loss of or injury to person or property. This waiver includes, but is not limited to any loss, damage or destruction of the personal property of the MEMBER or the MEMBERS' guest(s) and is intended to be a complete release of any responsibility for personal injuries and/or property loss/damage sustained by any MEMBER or any guest of any MEMBER while on the HOTEL and/or SPA premises, whether using exercise equipment or not." (Original underscoring.)
On March 28, 2000, Benedek was injured at the health club prior to beginning his regular workout. Benedek intended to use an elliptical training machine that ordinarily faced a television set suspended on a rack above head level. When Benedek approached the elliptical training machine, he noticed the television set was facing away from the elliptical training machine. In an attempt to return the television set to its normal position, Benedek touched the rack on which the television lay. In response to this movement, *201 the television began to slide off the rack over Benedek's head. Benedek attempted to hold the television in place; however, he was unable to bear the weight of the television and injured his knee.
Benedek brought this action against Pritikin, alleging a single cause of action for "negligence [and] premises liability." Pritikin answered the complaint, raising the affirmative defenses of assumption of risk and waiver or release. Pritikin then moved for summary judgment, on the basis that the written release in Benedek's membership agreement expressly negated any duty Pritikin owed Benedek. Benedek submitted no evidence in opposition to the motion, with the exception of excerpts from his deposition setting forth the circumstances of his injury. After a hearing, the trial court granted the summary judgment motion, concluding the written release clearly and unambiguously defeated Benedek's lawsuit. Judgment was entered, and Benedek filed a timely notice of appeal.
DISCUSSION
Standard of Review
"`A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail' (Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107, [252 Cal. Rptr. 122, 762 P.2d 46], citations omitted.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal. App. 3d 1050, 1055, [229 Cal. Rptr. 374].) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061, 1064-1065, [225 Cal. Rptr. 203].)" (Ferrari v. Grand Canyon Dories (1995) 32 Cal. App. 4th 248, 252, 38 Cal. Rptr. 2d 65.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, 107 Cal. Rptr. 2d 841, 24 P.3d 493.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App. 4th 69, 72, 41 Cal. Rptr. 2d 404; Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 579, 37 Cal. Rptr. 2d 653.) We exercise "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal. App. 4th 218, 222, 38 Cal. Rptr. 2d 35.)
Negligence
An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal. App. 4th 1007, 1011, 54 Cal. Rptr. 2d 330.) A release may negate the duty element of a negligence action. Contract principles apply when interpreting a release, and "normally the meaning of contract language, including a release, is a legal question." (Solis v. Kirkwood Resort Co. (2001) 94 Cal. App. 4th 354, 360, 114 Cal. Rptr. 2d 265.) "Where, as here, no conflicting parol evidence *202 is introduced concerning the interpretation of the document, `construction of the instrument is a question of law, and the appellate court will independently construe the writing.'" (Paralift, Inc. v. Superior Court (1993) 23 Cal. App. 4th 748, 754, 29 Cal. Rptr. 2d 177.) "It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[`s] cause[ ] of action." (Allabach v. Santa Clara County Fair Assn., supra, 46 Cal. App.4th at p. 1011, 54 Cal. Rptr. 2d 330.)
Releases
A written release may exculpate a tortfeasor from future negligence or misconduct. (Bennett v. United States Cycling Federation (1987) 193 Cal. App. 3d 1485, 1490, 239 Cal. Rptr. 55.) To be effective, such a release "must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties." (Ibid.) The release need not achieve perfection. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 755, 29 Cal. Rptr. 2d 177.)[1] Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. (Lund v. Bally's Aerobic Plus, Inc. (2000) 78 Cal. App. 4th 733, 739, 93 Cal. Rptr. 2d 169; Allan v. Snow Summit, Inc. (1996) 51 Cal. App. 4th 1358, 1373, 59 Cal. Rptr. 2d 813.) the determination of whether a release contains ambiguities is a matter of contractual construction. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at pp. 754-755, 29 Cal. Rptr. 2d 177.) "An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence." (Solis v. Kirkwood Resort Co., supra, 94 Cal. App.4th at p. 360, 114 Cal. Rptr. 2d 265.) The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. (See Bennett v. United States Cycling Federation, supra, 193 Cal.App.3d at pp. 1490-1491, 239 Cal. Rptr. 55.) If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter. (Civ.Code, § 1654; Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 360, 114 Cal. Rptr. 2d 265.)
In the absence of extrinsic evidence, the scope of a release is determined by the express language of the release. (Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal. App. 4th 62, 69, 79 Cal. Rptr. 2d 902.) The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. (Id. at pp. 68-69, 79 Cal. Rptr. 2d 902.) When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had *203 a specific knowledge of the particular risk that ultimately caused the injury. (Paralift, Inc. v. Superior Court, supra, 23 Cal. App.4th at p. 757, 29 Cal. Rptr. 2d 177.) If a release of all liability is given, the release applies to any negligence of the defendant. "`It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.'" (Ibid.) The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. (Madison v. Superior Court (1988) 203 Cal. App. 3d 589, 602, fn. 11, 250 Cal. Rptr. 299; Allan v. Snow Summit, Inc., supra, 51 Cal.App.4th at pp. 1372-1375, 59 Cal. Rptr. 2d 813.)
An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release. (Paralift, Inc. v. Superior Court, supra, 23 Cal.App.4th at pp. 756-757, 29 Cal. Rptr. 2d 177.) Thus, a release given in connection with parachuting activities releasing the releasee "forever," unlimited by time and place, and containing no exceptions, was applicable to injuries incurred while parachuting three years after the release was signed and in a different location than where the activities covered by the release originally began. (Ibid.) In addition, a release given in connection with scuba diving activities was applicable to the death of a scuba diving student who was inadequately supervised and who drowned. (Madison v. Superior Court, supra, 203 Cal.App.3d at p. 601, 250 Cal. Rptr. 299.) Similarly, releases given in connection with fitness activities were applicable to injuries incurred while engaging in fitness activities. (Sanchez v. Bally's Total Fitness Corp., supra, 68 Cal.App.4th at p. 68, 79 Cal. Rptr. 2d 902 [slip and fall on slide exercise mat during exercise class between exercises]; Lund v. Bally's Aerobic Plus, Inc., supra, 78 Cal.App.4th at p. 738, 93 Cal. Rptr. 2d 169 [injury to cervical spine while using weight lifting equipment under supervision of personal trainer]; compare Leon v. Family Fitness Center (# 107), Inc. (1998) 61 Cal. App. 4th 1227, 1234-1235, 71 Cal. Rptr. 2d 923 [release of liability solely for fitness-related injuries was not applicable to ordinary premises liability].)
The Pritikin Release is Applicable to Benedek's Injury
The release Benedek signed was clear, unambiguous, and explicit. It released Pritikin from liability for any personal injuries suffered while on Pritikin's premises, "whether using exercise equipment or not." The purpose for which the release was given was to allow Benedek "access" to Pritikin's "facilities and services." Benedek was injured while inside Pritikin's facilities.
Benedek contends the release should be interpreted to apply only to injuries suffered while actively using Pritikin's exercise equipment. This, however, is not a "semantically reasonable" interpretation of the release; indeed, it is contrary to the express language of the release. Given its unambiguous broad language, the release reached all personal injuries suffered by Benedek on Pritikin's premises, including the injury Benedek suffered because of the falling television.[2]
*204 Benedek further contends the release cannot bar his action because, as a matter of law, a health club release is not effective to release claims for injuries arising out of circumstances unrelated to fitness. He argues that the negligence released must be "reasonably related to the purpose of the release," i.e, fitness. In other words, Benedek asserts that health clubs and their members are prohibited from reallocating by contract the risks of premises liability. This assertion is incorrect. "The general principle remains unaltered that `there is no public policy which "`opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party. . .."' [Citations.]'" (Allan v. Snow Summit, Inc., supra, 51 Cal. App.4th at p. 1373, 59 Cal. Rptr. 2d 813.) A release of all premises liability in consideration for permission to enter recreational and social facilities for any purpose does not violate public policy. (YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal. App. 4th 22, 27, 63 Cal. Rptr. 2d 612.)
Benedek's fitness-related argument is based on a misreading of three cases concerning health club releases: Leon v. Family Fitness Center (#107), Inc., supra, 61 Cal. App. 4th 1227, 71 Cal. Rptr. 2d 923; Sanchez v. Bally's Total Fitness Corp., supra, 68 Cal. App. 4th 62, 79 Cal. Rptr. 2d 902; and Lund v. Bally's Aerobic Plus, Inc., supra, 78 Cal. App. 4th 733, 93 Cal. Rptr. 2d 169. We address each of these cases in turn.
In Leon v. Family Fitness Center (# 107), Inc., supra, 61 Cal. App. 4th 1227, 71 Cal. Rptr. 2d 923, the plaintiff was injured when a sauna bench in a health club on which he lay collapsed beneath him. Prior to the accident, he had signed an agreement containing an exculpatory clause. The exculpatory clause was inconspicuously buried in small print on the agreement. The clause stated: "[Leon] specifically agrees that [Family Fitness] shall not be liable for any claim, demand, cause of action of any kind whatsoever for, or on account of death, personal injury, property damage or loss of any kind resulting from or related to [Leon's] use of the facilities or participation in any sport, exercise or activity within or without the club premises." (Id. at p. 1231, 71 Cal. Rptr. 2d 923.) The Leon court concluded the exculpatory clause was not sufficiently conspicuous to be enforceable. (Id. at pp. 1232-1233, 71 Cal. Rptr. 2d 923.) The Leon court also concluded that the language of the exculpatory clause was fatally ambiguous. Noting that the exculpatory clause was sandwiched between two clauses concerned only with the risks inherent in an exercise or sports program without any mention that it was intended to insulate Family Fitness from liability for premises negligence, the Leon court limited the scope of the release to its unambiguous provisions. It held that the release was ineffective to release claims unrelated to sports or exercise activities. (Id. at p. 1235, 71 Cal. Rptr. 2d 923.)
In analyzing whether the collapsing sauna bench was within the scope of this release, the Leon court stated: "Here, Family Fitness's negligence was not reasonably related to the object or purpose for which the release was given, that is, as stated, injuries resulting from participating in sports or exercise rather than from merely reclining on the facility's furniture. [Citation.] [¶] The objective purpose of the release Leon signed was to allow him to engage in fitness activities within the Family Fitness facilities. However, it was not this type of activity which led to his injury." (Id. at p. 1235, 71 Cal. Rptr. 2d 923.) The Leon court determined the purpose of the release from its language. However, the language of the release was *205 ambiguous and, therefore, narrowly construed against its drafter. The Leon court never suggested that a properly drafted release could not release a health club from liability for injuries unrelated to fitness activities. Indeed, the Leon court strongly suggested otherwise: "Reading the entire document leads to the inescapable conclusion the release does not clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law, such as Leon, that the intent and effect of the document is to release claims for his own personal injuries resulting from the enterprise's own negligent acts, regardless whether related to the sports or exercise activities it marketed." (Ibid.) The clear implication of Leon is that a release clearly, explicitly, and comprehensibly setting forth such an intent and effect would be enforceable against the negligence that caused the sauna bench to collapse and injure Leon.
In Sanchez v. Bally's Total Fitness Corp., supra, 68 Cal. App. 4th 62, 79 Cal. Rptr. 2d 902, a health club patron was injured while using fitness equipment. She had previously signed a release for fitness-related injuries she suffered at the health club. Sanchez contended the release was ineffective in that it did not expressly refer to the negligence of Bally's Total Fitness. The Sanchez court held that the release was applicable by its terms and context to the negligence of Bally's Total Fitness. In the course of its discussion, the Sanchez court referred to Leon. The Sanchez court noted that the release in Leon had been fitness related and the sauna bench collapse causing injury to Leon had "occurred as a result of an incident not reasonably contemplated by the parties." (Id at p. 67, 79 Cal. Rptr. 2d 902.) In discussing whether the negligence of Bally's Total Fitness causing injury to Sanchez was within the scope of the fitness-related release that Sanchez ad signed, the Sanchez court stated: "It is obvious that patrons of health clubs sign release and assumption of risk provisions in contemplation of injuries that occur in the course of using the facilities for the primary purpose of exercising and using exercise equipment. Therefore, the injury suffered by plaintiff in the present matter is one reasonably within the contemplation of the parties." (Id. at p. 68, 79 Cal. Rptr. 2d 902.) The Sanchez court determined the scope of the release in its case by examining the language of the release. Nothing in the Sanchez opinion suggests that a broader release signed by a health club member would be ineffective to release fitness-unrelated injuries.
In Lund v. Bally's Aerobic Plus, Inc., supra, 78 Cal. App. 4th 733, 93 Cal. Rptr. 2d 169, a health club member was injured while using weight lifting equipment under the negligent supervision of a personal trainer. She had previously signed a waiver of liability and release included in the membership agreement, releasing Bally's Aerobic Plus and its employees from liability for their own negligence. The personal trainer was an employee of Bally's Aerobic Plus. The release expressly referred to the "use of any exercise equipment or facilities" and "our negligent instruction or supervision." (Id. at p. 738, 93 Cal. Rptr. 2d 169.) Lund contended that the contract to obtain the services of the personal trainer was separate from the membership agreement and personal trainer services had not been specifically mentioned in the release. Thus, she argued injuries suffered while being personally trained were outside the scope of the release. The Lund court rejected this argument. The Lund court examined the language of the release and determined that the incident in which Lund was injured was within the scope of the release and reasonably related to the object or *206 purpose for which the release was given. However, in a footnote unrelated to the issues before it, the Lund court digressed to suggest that a broad release in a health club membership agreement might not be effective to exculpate the health club from all negligence. (Id. at p. 739, fn. 1, 93 Cal. Rptr. 2d 169.) This dictum is unpersuasive and appears to be based on a conflation of the principles of assumption of the risk and release, as well as a misreading of the holding in Leon.
We conclude that the three cases upon which Benedek relies for his "fitness-related injuries only" contention do not support his contention. In each case, the appellate court reviewed the language of the release, construed it within the agreement in which it was included, and determined whether the plaintiffs injuries were within the scope of the release, that is, reasonably related to the purpose for which the release was signed. In determining the purpose for which the release was signed, an appellate court looks at the language of the release and the agreement in which it is included, and not the inherent risks of the underlying recreational or sports activity. The relevant inquiry in a health club membership release context is not whether the injury was reasonably related to the purpose of using fitness equipment, but whether it was reasonably related to the release signed.
The release signed by Benedek unambiguously, clearly, and explicitly released Pritikin from liability for any injury Benedek suffered on hotel or spa premises, whether using exercise equipment or not. The purpose of the release included access to and entry on Pritikin's facilities; the injury suffered by Benedek was, therefore, reasonably related to the purpose of the release.
DISPOSITION
The judgment is affirmed. Pritikin is to recover its costs on appeal.
We concur: ARMSTRONG and MOSK, JJ.
*207
*208
NOTES
[1] We note that the waiver of liability signed by Benedek does not expressly include the term "negligence." Benedek does not contend that the release is ineffective on this basis. We do not address this issue. However, Division Four of the Second Appellate District has concluded: "The inclusion of the term `negligence' is simply not required to validate an exculpatory clause." (Sanchez v. Bath's Total Fitness Corp. (1998) 68 Cal. App. 4th 62, 67, 79 Cal. Rptr. 2d 902.) Whether the exculpatory clause bars recovery against a negligent party is controlled by the intent of the parties as expressed in the written agreement. (Id. at pp. 66-67, 79 Cal. Rptr. 2d 902.) A waiver of liability in a health or fitness club membership agreement necessarily releases the health club from liability for its negligence, since there is no other liability to release. (Id. at p. 69, 79 Cal. Rptr. 2d 902.)
[2] A sound argument could be made that positioning the improperly fastened television in preparation for monotonous aerobic training was reasonably related to fitness activities. Because we conclude the broad language of the release reaches fitness-unrelated activities, we do not address this issue.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2259202/
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23 Cal. Rptr. 3d 714 (2005)
126 Cal. App. 4th 338
The PEOPLE, Plaintiff and Respondent,
v.
Ronny Boyce FOREMAN, Defendant and Appellant.
No. A105691.
Court of Appeal, First District, Division 3.
January 31, 2005.
*715 Leslie Prince, Suisun City, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, and Ayana A. Cuevas, Deputy Attorneys General, for Plaintiff and Respondent.
CORRIGAN, J.
Here we conclude that forging or presenting a forged prescription to obtain drugs, in violation of Health and Safety Code section 11368, does not fall under Proposition 36.
FACTUAL AND PROCEDURAL BACKGROUND
Our discussion of the facts is limited because no preliminary hearing was conducted and defendant agreed to a court trial based on the police reports. Defendant was arrested when he appeared at a pharmacy to collect a prescription for Vicodin. The prescription was written, without authorization, on a doctor's pre-printed pad. The physician's signature was forged. Similar prescriptions were discovered at other pharmacies.
Initially referred to the drug court for treatment, defendant was ultimately excluded from the program following multiple drug test failures. He has a 20-year history of heroin and Vicodin addiction. Having been charged with 15 felony counts, he was convicted of violating section 11368 on four separate dates.
In rejecting defendant's argument that he was eligible for treatment under Proposition 36, the court held that forging or uttering a prescription is not a "nonviolent drug possession offense" within the meaning of the statutory scheme.[1] Defendant was sentenced to four years in prison but placed in the California Rehabilitation Center as a drug addict.
DISCUSSION
This case of first impression turns on whether a violation of Health and Safety Code section 11368 falls under the statutes codifying Proposition 36. As noted, we hold that it does not.
With some exceptions not relevant here, Proposition 36 requires probation and drug treatment for those convicted of a "nonviolent drug possession offense." (Pen.Code, § 1210.1, subd. (a).) Such an *716 offense is defined as "the unlawful personal use, possession for personal use, or transportation for personal use" of certain controlled substances or as being under the influence of a drug in violation of Health and Safety Code section 11550. (Pen.Code, § 1210, subd. (a).) Drug sale, production and manufacture do not fall within the definition. (Ibid.)
Defendant acknowledges that section 11368 is not specifically mentioned in the codifying statutes. He urges, however, that because he uttered the prescriptions in order to obtain drugs for himself "the crux" of his crimes was personal drug possession. The well established principles of statutory interpretation defeat his argument.
"In interpreting a voter initiative such as Proposition 36, we apply the same principles that govern the construction of a statute. [Citations.]" (People v. Canty (2004) 32 Cal. 4th 1266, 1276, 14 Cal. Rptr. 3d 1, 90 P.3d 1168.) We examine the language according to its usual and ordinary meaning, in the context of the overall statutory scheme. (Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735, 248 Cal. Rptr. 115, 755 P.2d 299.) We give significance to every word, phrase, and sentence, in a manner consistent with the legislative purpose. Our role is to ascertain the Legislature's or the People's intent and to "effectuate the purpose of the law." (Canty, supra, at p. 1276, 14 Cal. Rptr. 3d 1, 90 P.3d 1168.)
Defendant's position runs afoul of the rule that "[i]f the Legislature has provided an express definition of a term, that definition ordinarily is binding on the courts." (Curle v. Superior Court (2001) 24 Cal. 4th 1057, 1063, 103 Cal. Rptr. 2d 751, 16 P.3d 166.) Here the Legislature has expressly defined "nonviolent drug possession offense." That definition does not include the conduct of which he stands convicted. When statutory language is clear and unambiguous, additional construction is unnecessary. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal. Rptr. 115, 755 P.2d 299.) The Legislature could have adopted a broader definition, or could have included section 11368 in a list of those offenses falling under Proposition 36. It did neither. We cannot and will not do what the Legislature could have but did not do. When "a statutory scheme designed to provide treatment for nonviolent drug offenders fails to include a particular nonviolent drug offense, it is for the Legislature, not the courts, to amend the statute to add the missing offense.... It is an elementary principle that the judicial function is simply to ascertain and declare what is in the terms and substance of a statute, not to insert what has been omitted or omit what has been inserted. [Citations.]" (People v. Sharp (2003) 112 Cal. App. 4th 1336, 1342, 5 Cal. Rptr. 3d 771.)
Defendant would have us go beyond the plain meaning of the statute and conclude that the particular circumstances of his case bring him within Proposition 36. The language and structure of the statute do not authorize this particularized application. Section 1210, subdivision (a) gives a very clear definition of "nonviolent drug possession offense," both in terms of what the phrase includes and what it does not. Canty, supra, 32 Cal. 4th 1266, 14 Cal. Rptr. 3d 1, 90 P.3d 1168, while distinguishable, is instructive. It is the very distinction between Canty and this case that informs the outcome here. Canty was convicted of felonious drug transportation and the misdemeanor of driving under the influence of a controlled substance. His eligibility for Proposition 36 treatment depended on whether the driving conviction was a "misdemeanor not related to the use of drugs." Penal Code section 1210, subdivision *717 (d) defines such a misdemeanor as one that does not involve "simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or ... any activity similar to those listed" in another section. (Italics added.) Because of the generalized language set out in italics the Supreme Court concluded that the statute required interpretation. Considering whether Canty's conduct fell within this broader definition, the court concluded that it did not. In setting out its analysis, the Canty court cited the general rule that express legislative definitions are ordinarily binding on the courts. It was the Legislature's inclusion of the additional generalized language that made judicial explication necessary. (Canty, supra, at pp. 1276-1277, 14 Cal. Rptr. 3d 1, 90 P.3d 1168.)
Neither the People by initiative, nor the Legislature in its enabling legislation chose to broaden the term "nonviolent drug possession offense" as defendant would have us do here. The Legislature has criminalized the possession and use of certain drugs. As the Supreme Court has explained, Proposition 36 mandates treatment for "those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance. Its provisions outline `an alternative sentencing scheme' for persons convicted of certain drug offenses. [Citation.] `In effect, it acts as an exception to the punishment' provided for certain offenses involving controlled substances. [Citation.]" (Canty, supra, 32 Cal.4th at p. 1275, 14 Cal. Rptr. 3d 1, 90 P.3d 1168, italics added.) The scope of this exception has been carefully delineated. It is our responsibility to faithfully implement that delineation.
Defendant points out that section 11368 is not specifically excluded as a qualifying offense. Neither is burglary. By extension of defendant's logic, if he burglarized a pharmacy to steal Vicodin for his personal use he would fall under Proposition 36. Such a result is clearly neither contemplated nor authorized. We agree with the conclusion reached in In re Ogea (2004) 121 Cal. App. 4th 974, 17 Cal. Rptr. 3d 698. In passing the initiative as drafted "the voters intended to define the offenses qualifying for Proposition 36 treatment only as the offenses of unlawful personal use, possession for personal use, or transportation for personal use of the identified controlled substancesand nothing else." (Id. at p. 982, 17 Cal. Rptr. 3d 698.)
DISPOSITION
The judgment is affirmed.
We concur: McGUINESS, P.J., and POLLAK, J.
NOTES
[1] Proposition 36 is codified in Penal Code sections 1210, 1210.1, and 3063.1 and Health and Safety Code section 11999.4 et. seq. (People v. Superior Court (Jefferson) (2002) 97 Cal. App. 4th 530, 535, 118 Cal. Rptr. 2d 529.)
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211 Ga. 50 (1954)
84 S.E.2d 68
RODALE et al.
v.
GRIMES et al.
18677.
Supreme Court of Georgia.
Argued September 16, 1954.
Decided October 11, 1954.
H. Fred Gober, for plaintiffs in error.
E.C.Harvey, Jr., E.T. Hendon, Jr., contra.
CANDLER, Justice.
Mr. and Mrs. Chris Rodale of Marshalltown, Iowa, brought habeas corpus against Mr. and Mrs. Claude C. Grimes in DeKalb County to recover possession of Roger Dean Rodale, who was *51 born in Marshall County, Iowa, on September 14, 1947. In substance and so far as it need be stated, their petition alleges that they are the parents of the child involved; that they have not lost or surrendered their right to his custody in any way; and that he is being illegally detained by the defendants. In their response to the writ, the defendants averred that the plaintiffs gave the child to them on September 22, 1947, while they were all residents of Iowa, on the defendants' promise and agreement to rear him as their own child; that they have, since the day they took the child, cared for, nurtured, and loved him as parents; and that they have legal custody of him in virtue of the oral contract they made with his parents. They also averred that the plaintiffs are morally unfit to have custody and care of the child, and that he will be reared under immoral influences if returned to them. By an amendment to the petition, it was further alleged: "Plaintiffs show that under the laws of Iowa no person may assume permanent care and custody of a child under the age of fourteen years, nor may rights and duties with respect thereto be transferred except in accordance with the adoption statute of the State of Iowa. Defendants have not adopted Roger Dean Rodale." The defendants demurred and moved to strike the amendment, "for the reason that the same is irrelevant and immaterial, having no bearing on the issues in question for the reason that the same are controlled by the law of the State of Georgia." The demurrer was sustained and the amendment was stricken. On the hearing and after the parties had introduced evidence, the trial judge held that the plaintiffs had, under the laws of Georgia, released their parental right to the child by voluntary contract with the defendants, and that the welfare of the child would be best served by leaving custody of him in the defendants. The plaintiffs excepted. Held:
1. As and for their right to have and retain custody and care of the child involved, the defendants relied on an oral contract which, according to their evidence, was made with the plaintiffs while all of them resided in the State of Iowa. In these circumstances, it is well settled in this State that the validity and effect of the contract must be determined by the laws of Iowa; and this is especially true in the instant case, since it does not appear that the parties contemplated performance of the contract elsewhere. Code § 102-108; Davis v. DcVaughn. 7 Ga. App. 324 (66 S. E. 956); Champion v. Wilson & Co., 64 Ga. 184 (1); Jackson v. Johnson, 67 Ga. 167 (2), 182; Southern Express Co. v. Hanaw, 134 Ga. 445 (5) (67 S. E. 944, 137 Am. St.R. 227); Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807 (7 S. E. 2d 737). In the case last mentioned, it was held: "Where a pleaded contract not only is executed in a foreign State, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign State, and governed by its laws."
2. The statutory laws of a sister State are regarded as matters of fact; this being true, they must be pleaded and proven in this jurisdiction when they are relied on in legal proceedings. Cummings v. Montague, 116 Ga. 457 (42 S. E. 732); Savannah, Florida &c. Ry. Co. v. Evans, 121 Ga. 391 (49 S. E. 308); Campbell v. Powell, 206 Ga. 768 (58 S. E. 2d 829). "While properly a foreign statute should be pleaded with *52 sufficient distinctness to enable a court to judge what is the effect of the law, the same definiteness of pleading required in case of disputable facts is not always required in respect of the contents of a foreign statute which is capable of exact ascertainment. Indeed, general allegations in an answer have been held to be sufficient in the absence of a motion to make more specific and definite. And while allegations as to the laws of a sister state are averments of fact, which may be admitted or denied like any other fact and are admitted by demurrer, a court is not always concluded as to the construction of a statute of a sister state by allegations contained in the complaint." 41 Am. Jur. 299, § 14. "In pleading the statute of a foreign state, it is not necessary that it should be set forth in have verba, but the substance of those portions that are relied on should be stated with sufficient distinctness to enable the court to judge of the meaning and effect of the law." 36 Cyc. 1241, § 3b. In this connection, see also Cummings v. Montague, supra. On the ground of demurrer interposed thereto, it is clear to us that the trial judge erred in striking the amendment to the plaintiffs' petition.
3. Since it was reversible error to strike the amendment to the petition, all proceedings thereafter taken in the case were nugatory; and questions made by assignments of error upon rulings of the court during the trial will not be considered. Central Supply &c. Co. v. Lawton, 131 Ga. 375 (62 S. E. 293). In this connection, see also Bond v. Norwood, 195 Ga. 383 (24 S. E. 2d 289).
Judgment reversed. All the Justices concur.
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579 S.E.2d 404 (2003)
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Plaintiff,
v.
ASSOCIATED SCAFFOLDERS AND EQUIPMENT COMPANY, INC., Van Thomas Contractor, Inc., Associated Scaffolders and Equipment Company, Inc., Comfort Engineers, Inc., and Larry E. Jackson, Administrator of the Estate of Jeremy Scott Jackson, Defendants.
No. COA02-397.
Court of Appeals of North Carolina.
May 6, 2003.
*405 Pinto Coates Kyre & Brown, P.L.L.C., by Richard L. Pinto and Nancy R. Myers, Greensboro, for the plaintiff appellee.
Howard Stallings From & Hutson, P.A., by John N. Hutson, Jr., Raleigh, for the defendant appellant.
ELMORE, Judge.
The factual background of this case is summarized in the companion case Jackson v. Associated Scaffolders et al, 152 N.C.App. 687, 568 S.E.2d 666 (2002) (the Jackson case).
In the rental contract between Associated Scaffolders and Equipment Company, Inc. (Associated) and defendant (Comfort), Associated included a provision intended to secure indemnification from Comfort in case of any negligence or equipment failure, excepting only willful misconduct. The relevant provision states:
INDEMNIFICATION: LESSEE SHALL INDEMNIFY AND DEFEND LESSOR AGAINST AND HOLD LESSOR HARMLESS FROM ANY AND ALL CLAIMS, ACTIONS, SUITS, PROCEEDINGS, COSTS, EXPENSES, DAMAGES AND LIABILITIES INCLUDING ATTORNEY'S FEES WHICH
1) RELATE TO INJURY OR TO DESTRUCTION OF PROPERTY, OR BODILY INJURY, ILLNESS, SICKNESS, DISEASE OR DEATH OF ANY PERSON (INCLUDING EMPLOYEES OF LESSEE) AND;
2) ARE CAUSED OR CLAIMED TO BE CAUSED IN WHOLE OR IN PART BY THE EQUIPMENT LEASED HEREIN OR BY THE LIABILITY OR CONDUCT (INCLUDING ACTIVE, PASSIVE, PRIMARY OR SECONDARY) OF LESSOR, ITS AGENTS OR EMPLOYEES OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE LIABLE. THE PARTIES AGREE THAT LESSOR SHALL ONLY BE LIABLE OR RESPONSIBLE FOR ACTIONS OF WILLFUL MISCONDUCT.... *406 PURPOSE OF THIS CLAUSE: IT IS THE PURPOSE OF THIS CLAUSE TO SHIFT THE RISK OF ALL CLAIMS RELATING TO THE LEASED PROPERTY TO THE LESSEE DURING THE ENTIRE TERM OF THIS LEASE.
This contract in its entirety was adjudicated void by this Court in the above referenced Jackson case as against section 22B-1 of the General Statutes, which pertains to construction indemnity agreements.
Comfort had liability insurance through Pennsylvania National Mutual Casualty Insurance Company (Penn National), and sought reimbursement from Penn National for costs incurred in the defense of the third-party complaint filed by Associated. Penn National sought a declaratory judgment stating it had no duty to defend against a claim based on the invalid contract between Comfort and Associated.
The relevant portion of the insurance contract between Penn National and Comfort provides as follows. The insurance contract does not apply to:
"Bodily injury" or "property damage" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: ... assumed in a contract or agreement that is an "insured contract"... (Sec.I.2.b.2)
"Insured contract" means:
f. that part of any other contract ... under which you assume the tort liability of another party to pay for "bodily injury"... to a third person or organization. (Sec.V.8.f)
So, the insurance does apply to liability assumed in an insured contract. Comfort contends that the complaint by Associated falls within the coverage for an insured contract. Penn National contends that not only is the complaint not within the insured contract exception, but since the rental contract is invalid under the statute it cannot effectuate an obligation of coverage.
Penn National moved for summary judgment and Comfort Engineers moved for partial summary judgment. The trial court granted Penn National's motion, and denied Comfort Engineers's motion. We agree with the ruling of the trial court.
I.
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) (2001). On appeal, the standard of review is (1) whether there is a genuine issue of material fact, and (2) whether the movant is entitled to judgment as a matter of law. See Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). The evidence presented is viewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975).
Both parties stipulate that there is no genuine issue of material fact, so this Court's review will be limited to determining whether Penn National was entitled to judgment as a matter of law. The issue on appeal is whether Penn National, as the liability insurer, had a duty to provide a defense to its insured, Comfort Engineers, against a claim based on an invalid contract.
II.
We first recognize that in construing an insurance policy, any doubts and ambiguities must be resolved in favor of the insured. Stockton v. N.C. Farm Bureau Mut. Ins. Co., 139 N.C.App. 196, 199, 532 S.E.2d 566, 567-68, disc. review denied, 352 N.C. 683, 545 S.E.2d 727 (2000). The underlying contract has already been adjudicated void as violative of section 22B-1 of the General Statutes. Having determined that the indemnity agreement is void on the facts of this case, we must next determine whether Penn National nonetheless has a duty to defend Comfort in the action. We recognize that an insurer's duty to defend is broader than its duty to indemnify. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 735, 504 S.E.2d 574, 578 (1998); Couch on Insurance 3D § 202:17 (1999).
*407 An insurer has a duty to defend when the pleadings state facts demonstrating that the alleged injury is covered by the policy. The mere possibility the insured is liable and that the potential liability is covered may suffice to impose a duty to defend. Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 691, 340 S.E.2d 374, 377, reh'g denied, 316 N.C. 386, 346 S.E.2d 134 (1986); Bruce-Terminix, 130 N.C.App. at 735, 504 S.E.2d at 578. Any doubt as to coverage is to be resolved in favor of the insured. Waste Management, at 693, 340 S.E.2d at 378. Bruce-Terminix, at 735, 504 S.E.2d at 578.
In this case, the relevant pleading is the third party complaint filed against Comfort by Associated. If the complaint on its face alleges facts which may give rise to a claim which falls within the coverage of the Penn National policy, then Penn National has a duty to defend. The complaint includes two counts: the first for contractual indemnity, and the second for breach of contract.
The first count of the complaint was based on the indemnification clause of the rental contract. It alleged that:
In the contract of October 27, 1997, Comfort agreed to hold harmless, defend, and indemnify Associated from all suits and actions, including attorney's fees, costs of litigation and judgments, arising out of or incidental to the performance of the contract or work performed under the contract. Comfort further agreed to indemnify Associated against all claims, actions, and liabilities related to the death of any employee of Comfort if such death was caused or claimed to be caused by the equipment leased to Comfort or by the conduct of Associated. Comfort also agreed to indemnify Associated for any liability resulting from noncompliance with any safety regulations.
Section 8 (emphasis added).
The bare language of this count runs afoul of section 22B-1 of the Statutes, as it seeks to enforce a contract for indemnity for Associated's own actions and possible negligence in a building construction context. "[A] construction indemnity agreement may purport to indemnify a promisee from damages arising from negligence of the promisor, but any provision seeking to indemnify the promisee from its own negligence is void." Bridgestone/Firestone, Inc. v. Ogden Plant Maint. Co. of N.C., 144 N.C.App. 503, 506, 548 S.E.2d 807, 810 (2001), aff'd per curium 355 N.C. 274, 559 S.E.2d 786 (2002). Although at the time of the complaint the contract had not yet been adjudicated void, an insurer will not be obligated to defend its insured when the insured has stepped outside the protective bounds of the General Statutes. An insurer may assume that its insured will contract within the law and not obligate the insurer to defend an illegal contract.
The second count alleges that Associated suffered damages because Comfort did not maintain the scaffolding in accordance with regulatory standards as agreed in the rental contract.
The Penn National policy, as excerpted above, does not cover claims for bodily injury (which includes death under the policy definitions) by reason of assumption of liability in a contract except for in an insured contract. An insured contract is defined by the policy as:
That part of any other contract ... under which you assume the tort liability of another party to pay for "bodily injury" ... to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
Under this provision of the policy, which is essential to Comfort's argument on appeal, no claim for breach of contract is covered. The policy clearly states that the exception which grants coverage applies to tort claims only which "would be imposed by law in the absence of any contract or agreement." This claim lies outside the policy coverage. Therefore, Penn National had no duty to defend on either count of the complaint.
We note that any insurer who denies a defense takes a significant risk that he is breaching his duty to defend. Indeed, if the claim is within the policy, a refusal to defend *408 is unjustified even if based on an honest but mistaken belief that the claim is not covered. Duke University v. St. Paul Fire and Marine Ins. Co., 96 N.C.App. 635, 637, 386 S.E.2d 762, 764, disc. review denied, 326 N.C. 595, 393 S.E.2d 876 (1990). However, in this case, that risk was well-taken since the contract is clearly improper and the pleadings do not trigger coverage.
We hold that Penn National was entitled to judgment as a matter of law, and thus affirm the summary judgment order.
Affirmed.
Judge WYNN and Judge McCULLOUGH concur.
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128 Cal.Rptr.2d 309 (2002)
104 Cal.App.4th 559
The PEOPLE, Plaintiff and Respondent,
v.
Brian M. McGEE, Defendant and Appellant.
No. B152420.
Court of Appeal, Second District, Division Seven.
December 18, 2002.
As Modified on Denial of Rehearing January 7, 2003.
Review Denied March 26, 2003.[**]
*311 Peter Gold, San Francisco, by appointment of the Court of Appeal, for Defendant and Appellant.
*312 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Myung J. Park, Deputy Attorneys General, for Plaintiff and Respondent.
Certified For Partial Publication.[*]
*310 PERLUSS, J.
Brian M. McGee appeals from his conviction after a jury trial for one count of murder and one count of attempted murder, arguing the trial court erred in considering his several motions under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson), which alleged the prosecutor was improperly discriminating in the exercise of peremptory challenges. McGee also contests several of the trial court's evidentiary rulings.
We reject McGee's evidentiary claims. However, we conclude the trial court failed to follow required procedures for determining whether the prosecutor had improperly excused African-American prospective jurors on the basis of group bias and remand for a new Wheeler hearing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The December 3, 1998 Shootings
McGee (sometimes known as Geeter) lived in an apartment in the Nickerson Gardens housing project in Los Angeles with Linda Williams and Jonathan Bowen. Williams was dating Lee Anthony Lewis, who lived nearby with his mother.
On the evening of December 3, 1998, Lewis went to the apartment to see Williams. McGee answered the door, told Lewis to go away and closed the door. Lewis did not leave and instead tried to get Williams's attention by shouting at her window. McGee and two friends, Charlie Mack and Larry Hamilton, then came out of the apartment and attacked Lewis for "disrespecting" them. During the assault, Mack hit Lewis in the mouth with a handgun. McGee threatened Lewis not go to the police "or he would kill him."
Williams heard the commotion and went outside to see Lewis. McGee and Mack forced her back into, the apartment. Mack pointed the gun at her and said "`If you or your boyfriend go and tell the police, or call the police, we're going to kill you.'" McGee repeated the threat to Williams, who ran out of the apartment in search of Lewis.
Williams found Lewis down the street talking to the police. After Lewis reported the incident, the police escorted Lewis and Williams back to the apartment, where Lewis identified Mack and Hamilton as two of the attackers. Mack and Hamilton were placed under arrest.
The police then accompanied Williams and Lewis to Lewis's house. Williams noticed McGee's uncle, George Adams, watching from a nearby corner. After the police departed, Adams knocked on the door. When Lewis answered, Adams said, "`Lee Anthony, man, you should have just left it alone'" and "`should have taken it like a man.'"
Seconds after Adams left, McGee burst into the Lewis residence and began shooting. After the shooting stopped, Williams told Lewis's mother, "`Geeter shot us, Geeter shot us.'" When the police arrived, both Williams and Lewis told the officers they had been shot by McGee.
Lewis died of multiple gunshot wounds to the chest and buttocks. Although she had been shot seven times, Williams survived and testified at trial.
2. The Charges Against McGee
McGee was charged with one count of murder (Pen.Code, § 187), one count of *313 attempted premeditated murder (Pen. Code, §§ 664, 187) and one count of making terrorist threats (Pen.Code, § 422). The information specially alleged Lewis had been intentionally killed because he was a witness to a crime (Pen.Code, § 190.2, subd. (a)(10)). It also alleged that McGee personally used and discharged a handgun (Pen.Code, §§ 12022.5, subd. (a)(1), 12022.53, subds. (b) & (c)), which caused great bodily injury and death (Pen. Code, § 12022.53, subd. (d)). The information further alleged McGee had personally inflicted great bodily injury on Williams in the commission of the attempted murder alleged in count 2 (Pen.Code, § 12022.7, subd. (a)). Finally, the information alleged all crimes were committed for the benefit of a criminal street gang (Pen.Code § 186.22, subd. (b)(1)).
3. Voir Dire and McGee's Wheeler Motions
The case was tried to a jury. During jury selection McGee's counsel made a series of four motions under Wheeler and Batson, each of which was denied.
The trial court denied McGee's initial motion, finding he had failed to establish a prima facie case of improper discrimination:
"MR. HAIG: Your Honor, there would be a defense motion for a declaration of mistrial and to bring up a new panel based on People v. Wheeler and Batson v. Kent[ucky].
"The defense allegation [is] that the People have used their peremptory challenges in a self-incriminatory fashion and they have exercised six peremptory challenges and of those six peremptory challenges five of them have been more African Americans, and the record should reflect that my client is African-American, and I believe that the prima facie showing has been made to show there is a discriminatory use of the peremptory challenges in this case...."
The trial court denied the motion, stating, "I don't believe you've made a prima facie case."
Jury selection continued, and the prosecutor excused juror number three. McGee's counsel again challenged the prosecutor's use of peremptory challenges:
"MR. HAIG: Your Honor, I would again renew the motion under Wheeler, People v. Wheeler and Batson v. Kentucky. The last juror that was excused by the People was African-American so he's exercised seven peremptory challenges. Just so the record is clear, six have been against African-Americans, one has been of a female Hispanic. So I would ask especially since my client is African-American that the Peoplethat a prima facie showing has been made the People are using their peremptory challenges in a discriminatory fashion. I ask the court to ask the People to state a reason for each one of the peremptory challenges.
"THE COURT: Okay. I'm not sure there's a prima facie case as to all the peremptories but as to the last one I believe there is a prima facie case.
"MR. HAIG: If the court does find a prima facie showing that means there has been a pattern, whether it is insidious or not, is for the court for determine; and I don't think it is but I think here's enough for a prima facie showing, and I think that the courtany reviewing court's going to want to know the reasons for each one of the strikes [not] just the last one.
"And the reason I say that is that this court or reviewing court if it determines that any or all of the strikes for any of the African-American jurors is invalid, say that the recommendation is a mistrial and bringing of a new panel, so I would ask *314 and I am just asking this for the court's and for the record that the People be asked to furnish a reason for each of the strikes of the African-American jurors and that is just my request. If the court doesn't want to employ it that way, that's fine.
"THE COURT: No. I didn't find a prima facie case the first time you made it. I do now and that's as a result of the last challenge. So at this time the ball's in Mr. Nunez's court."
The prosecutor then explained that during his six years as a prosecutor, he has "had problems with teachers and mail carriers" resulting in hung juries, and juror number three was a postal worker. He also stated that "I believe that there was some sort of reluctance or holding back on her part in terms of opening up and asking [sic] the questions that I think that are important in a case of this magnitude to be answered."
The trial court responded: "You know, it's hard to put your finger on it but, you know, I got the same impression. You know, I don't know. It was just a feeling on my part that she was reluctant to open up, as we say; and I understand your theory as far as postal workers are concerned. It's a theory shared by many prosecutors. I think Mr. Haig may be just as aware of that as you are and that the court is. All right. I'll accept it."
McGee's third motion was made after the prosecutor exercised two more peremptory challenges against African-American jurors. At that point, the prosecutor had exercised eight out of nine peremptory challenges against African-Americans. McGee's counsel argued, "I believe that not only established a pattern but shows that the People are using their peremptory challenges in a discriminatory way." The trial court denied the motion, finding McGee had failed to make a prima facie showing the prosecutor had used the peremptory challenges because of race or other group bias.
During the selection of alternate jurors, the prosecutor struck two additional African-American jurors without asking them any individual voir dire questions. McGee's counsel renewed his Wheeler motion, arguing, "All but two of the strikes by the People have been for African-Americans and in thethe last juror I think establishes, again, a pattern that the peremptories are being utilized in a discriminatory fashion." The court once again found no prima facie showing, but nonetheless invited comment from the prosecutor. The prosecutor explained the last juror had been excused because she had several close relatives in prison. The court said "okay" and proceeded to complete jury selection.
4. Sentence, Judgment and Appeal
The jury ultimately selected and sworn convicted McGee of murder and attempted murder, acquitted him of making terrorist threats and found true all the special allegations. He was sentenced to life in prison without the possibility of parole plus a consecutive sentence of 25 years to life on the murder count. He received a concurrent sentence of life imprisonment plus 25 years to life for the attempted murder conviction. McGee was ordered to pay a $10,000 restitution fine and a $10,000 parole revocation fine, which was stayed.
McGee filed a timely notice of appeal.
CONTENTIONS
McGee contends the trial court erred in ruling on his four Wheeler motions by (a) failing to find a prima facie case of racebased exclusion with respect to his first motion; (b) having found a prima face case with respect to his second Wheeler motion, *315 failing to inquire into the reasons for all peremptory challenges to African-American jurors up to that point; and (c) failing to find a prima facie case with respect to his third and fourth Wheeler motions.
McGee also contends the trial court erred by admitting the out-of-court statements of George Adams, denying his motion to introduce evidence to impeach a prosecution witness, giving CALJIC No. 17.41.1 and imposing the parole revocation fine.
DISCUSSION
1. The Case Must Be Remanded for a Full Hearing on McGee's Wheeler Motions
a. Standard of Review
Peremptory challenges may not be used to exclude prospective jurors solely on the basis of a presumed group bias based on membership in a racial group. (Wheeler, supra, 22 Cal.3d at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748; Batson, supra, 476 U.S. at p. 89, 106 S.Ct. 1712.) Under Wheeler and Batson, "`[i]f a party believes his [or her] opponent is using his [or her] peremptory challenges to strike jurors on the ground of group bias alone, he [or she] must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First ... he [or she] should make as complete a record of the circumstances as is feasible. Second, he [or she] must establish that the persons excluded are members of a cognizable group within the meaning of the representative crosssection rule. Third, from all the circumstances of the case he [or she] must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.' [Citations.]" (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154, 5 Cal.Rptr.2d 268, 824 P.2d 1315, italics omitted.) In this context, "in California, a `strong likelihood' means a `reasonable inference.'" (People v. Box (2000) 23 Cal.4th 1153, 1188, fn. 7, 99 Cal.Rptr.2d 69, 5 P.3d 130.)
Upon a timely challenge under Wheeler the trial court is obligated to make an express finding whether the moving party has demonstrated a prima facie case. (People v. Turner (1986) 42 Cal.3d 711, 719, fn. 3, 230 Cal.Rptr. 656, 726 P.2d 102; People v. Snow (1987) 44 Cal.3d 216, 227, 242 Cal.Rptr. 477, 746 P.2d 452.) If the court concludes no prima facie case has been established, we consider the entire record of voir dire in reviewing its denial of the motion. (People v. Howard supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) "As with other findings of fact, we examine the record for evidence to support the trial court's ruling. Because Wheeler motions call upon trial judges' personal observations, we view their rulings with `considerable deference' on appeal. [Citations.]" (Ibid.)
If a prima facie case is found, the party exercising the peremptory challenges must provide a group-neutral reason for each challenge. (People v. McDermott (2002) 28 Cal.4th 946, 970, 123 Cal. Rptr.2d 654, 51 P.3d 874.) "`If a raceneutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.'" (People v. Silva (2001) 25 Cal.4th 345, 384, 106 Cal. Rptr.2d 93, 21 P.3d 769.) "This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily...." *316 (People v. Hall (1983) 35 Cal.3d 161, 167-168, 197 Cal.Rptr. 71, 672 P.2d 854.) "[A] truly `reasoned attempt' to evaluate the prosecutor's explanations [citation] requires the court to address the challenged jurors individually to determine whether any one of them has been improperly excluded. In that process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor's exercise of the particular peremptory challenge." (People v. Fuentes (1991) 54 Cal.3d 707, 720, 286 Cal.Rptr. 792, 818 P.2d 75.) "Preferably, in ruling on a Wheeler motion, the trial court should state expressly its determination as to the adequacy of the justification proffered with respect to each peremptory challenge." (People v. Sims (1993) 5 Cal.4th 405, 431, 20 Cal.Rptr.2d 537, 853 P.2d 992.)
The trial court's ruling on this issue is reviewed for substantial evidence. (People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) However, "we apply this deferential standard of review only when `the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror.' [Citations.]" (People v. McDermott, supra, 28 Cal.4th at p. 970, 123 Cal.Rptr.2d 654, 51 P.3d 874.)
b. The Trial Court Erred in Failing to Inquire into the Prosecutor's Reasons for the Prosecutor's First Five Peremptory Challenges of African-American Prospective Jurors
After the trial court denied McGee's initial Wheeler motion, which had been directed to the prosecutor's peremptory challenges to five African-Americans,[1] the prosecutor excused a sixth African-American prospective juror; and McGee renewed his Wheeler motion, arguing the prosecutor's use of six of his first seven peremptory challenges to reject African-Americans demonstrated a pattern of racebased exclusion. The trial court agreed that a prima facie showing of impermissible discrimination had been made under Wheeler and Batson, but then erroneously limited that findingand the concomitant requirement that the prosecutor provide a race-neutral explanation for the peremptory challengeto the most recent juror who had been excused, juror number three.
Wheeler and Batson protect a defendant's constitutional right to be tried by a representative jury. A Wheeler motion challenges the selection of a jury, not the rejection of an individual juror; the issue is whether a pattern of systematic exclusion exists. (People v. Gore (1993) 18 Cal.App.4th 692, 705, 22 Cal.Rptr.2d 435.) Accordingly, once the trial court has found a prima facie case of improper use of peremptory challenges to exclude jurors based on perceived group bias, the burden shifts to the prosecutor to provide raceneutral explanations for all challenges involved and for the court to evaluate the prosecutor's explanation in light of the circumstances of the case as then known. (People v. Fuentes, supra, 54 Cal.3d at p. 715, 286 Cal.Rptr. 792, 818 P.2d 75 ["every questioned peremptory challenge must be justified"]; People v. Gray (2001) 87 Cal. App.4th 781, 789-790, 104 Cal.Rptr.2d 848 [based on "facts showing no apparent reason to exclude at least one of the three potential jurors other than his status as an African-American male," prosecutor *317 should have been asked to "explain[ ] why he excluded every African-American male juror"]; Gore, at p. 705, 22 Cal.Rptr.2d 435 ["trial court should have considered the motion as to all seven challenged Hispanic prospective jurors"].)
In People v. Gore, supra, 18 Cal. App.4th 692, 22 Cal.Rptr.2d 435, the defendant first raised a Wheeler challenge asserting the prosecutor was systematically excluding Hispanics during the selection of alternate jurors, after 12 jurors had been seated and sworn. (Id. at p. 697, 22 Cal. Rptr.2d 435.) In making his prima facie showing, the defendant discussed four Hispanic prospective jurors who had been excused during the initial phase of jury selection, as well as the prosecutor's challenge of three Hispanic prospective alternate jurors. (Ibid.) The Court of Appeal reversed the trial court's ruling that the motion was timely only as to the prospective alternate jurors. (Id. at pp. 703-705, 22 Cal.Rptr.2d 435.) Although Gore's procedural posture differs significantly from ours, the court's rationale for requiring the trial court to inquire into all peremptory challenges of Hispanics preceding the motion is fully applicable here: "When the trial court rules on a Wheeler motion, it should look to the totality of the relevant facts and should consider all the relevant circumstances.... [¶] ... [T]he trial court should have considered the motion as to all seven challenged Hispanic prospective jurors and not limited its inquiry to only the alternate juror selection process. To hold otherwise would be to allow a potential prima facie pattern of systematic exclusion to go unchallenged." (Id. at p. 705, 22 Cal.Rptr.2d 435.)
Because the trial court short-circuited the proper procedure for a Wheeler motion, we cannot decide whether the prosecutor did in fact improperly exercise his peremptory challenges against African-American prospective jurors. Although the parties' appellate briefs discuss at length the characteristics of the jurors who were seated compared to those who were excused by the prosecutor, we cannot rule on the validity of the prosecutor's peremptory challenges because, with the exception of juror number three, we have no idea what actually motivated them. In ruling on a Wheeler motion "the trial court must determine not only that a valid reason existed but that the reason actually prompted the prosecutor's exercise of the particular peremptory challenge." (People v. Fuentes, supra, 54 Cal.3d at p. 720, 286 Cal.Rptr. 792, 818 P.2d 75.) Although the People's appellate brief has provided any number of reasons that might possibly have motivated the prosecutor in making his challenges, such conjecture does not substitute for the second step of the Wheeler analysisthe prosecutor's explanation of the factors he actually relied upon in exercising his peremptory challenges.
In prior cases in which the trial court's Wheeler analysis was incomplete, the appellate courts have utilized a limited remand to permit the prosecutor to explain his or her reasons for excluding the prospective jurors in question and to permit the trial court to conduct the required "sincere and reasoned" evaluation of the prosecutor's explanation in light of all the circumstances of the case. (People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1024-1025, 58 Cal.Rptr.2d 108; People v. Snow, supra, 44 Cal.3d at pp. 226-227, 242 Cal. Rptr. 477, 746 P.2d 452.) This remedy is appropriate here. On remand the trial court must determine not only that raceneutral grounds to challenge an African-American prospective juror exist in the abstract, but also that the prosecutor's statement that he relied on those grounds *318 is credible.[2] (People v. Tapia (1994) 25 Cal.App.4th 984, 1013-1014, 30 Cal.Rptr.2d 851.) If reasonable grounds exist to justify a challenge, but the trial court does not believe those grounds in fact motivated the prosecutor, the Wheeler motion must be granted and a new jury impaneled. (Ibid.)[3]
c. The Trial Court Must Reconsider Its Finding of No Prima Facie Showing with Respect to McGee's Third and Fourth Wheeler Motions
Wheeler motions may be made sequentially, as was done in the instant case. However, as to each successive motion, the objecting party retains the initial burden to establish a prima facie case that is, to raise a reasonable inference that the opposing party has challenged jurors because of their race or other group association. (People v. McDermott, supra, 28 Cal.4th at pp. 969-970, 123 Cal.Rptr.2d 654, 51 P.3d 874; People, v. Irvin (1996) 46 Cal.App.4th 1340, 1351, 54 Cal.Rptr.2d 450.) "[0]nce a prima facie showing has been refuted, it is incumbent on the moving party to make a new prima facie showing with regard to any subsequent Wheeler motion pertaining to different jurors of the identified group from the venire. Subsequent Wheeler motions, however, may be based on evidence presented in prior Wheeler motions, to the extent necessary to establish a discriminatory pattern of peremptory challenges. [Citation.]" (Irvin, at pp. 1351-1362, 54 Cal.Rptr.2d 450.)
McGee's third Wheeler motion was made after the prosecutor exercised two more peremptory challenges against African-American prospective jurors. At that point, the prosecutor had exercised eight of nine peremptory challenges against African-Americans. Because the trial court had erred in failing to obtain explanations from the prosecutor for all of the peremptory challenges at issue in McGee's second Wheeler motion, however, McGee was unable to support the new motion with evidence that should have been in the record and that may have established a discriminatory pattern of peremptory challenges. (People v. Irvin, supra, 46 Cal.App.4th at p. 1353, 54 Cal. Rptr.2d 450 [court properly considers prosecutor's explanations rebutting prima facie showing on prior motion in determining whether prima facie showing has been made with respect to new, subsequent challenges to different jurors of that group].) Similarly, by erroneously limiting its inquiry on the second motion, the trial court failed to consider "the entire record of voir dire" in finding no prima facie showing had been made on the third motion. (See People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) The trial court improperly *319 focused its analysis on the particular prospective jurors whose challenges prompted each motion, rather than evaluating whether McGee had raised a reasonable inference of a discriminatory pattern of conduct.
During the selection of alternate jurors, the prosecutor struck two additional African-Americans without asking any individual voir dire questions. McGee's fourth Wheeler motion was also denied by the trial court, once again based on the absence of a prima facie case of discrimination. As with McGee's third Wheeler motion, because it improperly limited its inquiry on the second motion, the trial court failed to consider the entire record of voir dire in finding no prima facie showing had been made as to his fourth motion.
Remand for the trial court to reconsider both the third and fourth motions, if the second motion is not granted on remand, is the appropriate remedy for these procedural errors in applying Wheeler. (People v. Rodriguez, supra, 50 Cal.App.4th at pp. 1024-1025, 58 Cal.Rptr.2d 108; People v. Snow, supra, 44 Cal.3d at pp. 226-227, 242 Cal.Rptr. 477, 746 P.2d 452.)
2.-5.[**]
DISPOSITION
The judgment is reversed, and the matter is remanded to allow the trial court to conduct a new hearing on the Wheeler issues. Initially, the court must determine whether it can adequately address the issues at this stage. If not, a retrial is required. If the court can address the issues, it must first consider the exclusion of all six African-American prospective jurors included in McGee's second Wheeler motion and determine whether the prosecutor's reasons for excusing each of those jurors are constitutionally valid. If the court determines the prosecutor's reasons for excusing the six jurors are constitutionally valid, it must then address, seriatim, the issue whether a prima facie case has been established as to the third motion and, if so, whether the prosecutor's explanations for exercising the challenges are constitutionally valid, and then address those same issues as to the fourth motion.
If the trial court grants any of McGee's Wheeler motions, retrial is required. If the court denies all Wheeler motions after the hearing, the judgment shall be reinstated and corrected to delete the parole revocation fine.
We concur: JOHNSON, Acting P.J., WOODS, 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 2 through 5 of the Discussion.
[**] Kennard, J., and Moreno, J., dissented.
[1] Whether the trial court properly concluded McGee had not made a prima facie showing of race-based exclusions on his first Wheeler motion is moot in light of our holding that the court erred in failing to require the prosecutor to explain all his peremptory challenges to African-American prospective jurors on the second motion.
[2] We do not question the trial court's finding that the prosecutor's explanation for his challenge to juror number three was credible. However, on remand the trial court must reevaluate that explanation in light of the reasons proffered for the rejection of the other African-American prospective jurors. An explanation that seems credible in isolation may appear pretextual when viewed against a pattern of race-based exclusion of jurors.
[3] If the trial court concludes the passage of time makes it impossible for the prosecutor to explain his reasons for the challenges at issue or for the court to adequately evaluate those reasons, the judgment must be reversed and a new trial granted. (See People v. Snow, supra, 44 Cal.3d at pp. 226-227, 242 Cal.Rptr. 477, 746 P.2d 452 [reversal of judgment and new trial required when prosecutor and trial court are unlikely to have sufficient recollection of voir dire proceedings to permit adequate explanation of challenges by prosecutor and evaluation of explanation by trial court]; People v. Williams (2000) 78 Cal.App.4th 1118, 1130, 93 Cal.Rptr.2d 356 [on remand, trial court must initially determine whether it can adequately address Wheeler issues].)
[**] See footnote*, ante.
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364 F.Supp. 1372 (1973)
James E. COFIELD, Jr., Plaintiff,
v.
GOLDMAN, SACHS & COMPANY, a corporation duly organized under the laws of the State of New York et al., Defendants.
No. 72 Civ. 947.
United States District Court, S. D. New York, Civil Division.
February 14, 1973.
Murphy, Thorpe & Lewis, New York City, for plaintiff; Rita L. Murphy, of counsel.
Sullivan & Cromwell, New York City, for defendants; John F. Cannon, New York City, of counsel.
OPINION
GRANTING PARTIAL SUMMARY JUDGMENT
WHITMAN KNAPP, District Judge.
Defendants move for summary judgment in this action based on 42 U.S.C. § 1981. Plaintiff opposes the motion. For the reasons that follow, the motion is granted in part and denied in part.
Plaintiff, who is black, alleges in substance that during a job interview held on February 20, 1970 at Stanford University, where plaintiff was then a Business School student, defendant John Jamison told him that Jamison could not offer him a job with the defendant company because of the racial prejudice of another partner in the company. Plaintiff seeks declaratory and injunctive relief as well as damages.
Defendants contend as the basis for their motion that plaintiff is entitled to no relief because he was subsequently offered a job by the company and turned it down.
Plaintiff originally commenced this action under Title VII of the 1964 Civil Rights Act, which is the statute designed to remedy discrimination in employment. *1373 Prior to filing his complaint he had duly exhausted the appropriate state and federal administrative remedies. However, Judge Cannella dismissed the complaint on the ground that it had not been timely filed, and permitted plaintiff to replead to assert a claim under 42 U.S.C. § 1981. Judge Cannella also rejected plaintiff's motion to bring his suit as a class action. Jurisdiction now rests on 28 U.S.C. § 1343(4).
Defendant suggests that § 1981 provides very tenuous ground on which to rest this action against a private employer for money damages. Impressive authority is to the contrary. The Third (Young v. International Telephone & Telegraph [1971] 438 F.2d 757), Fifth (Sanders v. Dobbs Houses Inc. [1970] 431 F.2d 1097, cert. den., 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231), and Seventh (Waters v. Wisconsin Steel Works of International Harvester Company [1970] 427 F.2d 476) Circuits have held that § 1981 contains no state action requirement and that Title VII neither repealed nor pre-empted it. The Second Circuit would appear to agree with the latter point, having recently noted in a "Title VII" decision that
"Not insignificantly, in debating the Equal Employment Opportunity Act, Congress refused to make Title VII the exclusive statutory basis for private suits against employment discrimination and continued to allow suits to be brought, for example, under Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. [cit. omitted]."
Williamson et al. v. Bethlehem Steel, 468 F.2d 1201, at 1204, fn. 2.
The Circuit Courts have reasoned by analogy to Jones v. Mayer (1968) 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, which upheld the constitutionality of 42 U.S.C. § 1982, a section that derives from the same Reconstruction statute as § 1981. Jones, in permitting injunctive relief, expressly reserved the question of whether compensatory damages could be awarded under § 1982.
In Sullivan et al. v. Little Hunting Park (1969), 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386, also brought under § 1982, the majority held that both 42 U. S.C. § 1988 and 28 U.S.C. § 1343(4) sanction the award of damages to plaintiffs who prevail under § 1982.
Plaintiff would thus be entitled to damages if he has suffered any. I turn now to that issue.
Defendants say, by their attorney's affidavit, that the plaintiff was offered the job for which he originally applied on October 16, 1970, during a conference called by the New York State Division of Human Rights, which was attended by the affiant, plaintiff, and defendants. The fact that the offer was made and rejected is also referred to in the Conciliation Agreement that was proposed by the Human Rights Division and accepted by defendants.
Plaintiff does not flatly deny that he was offered and turned down the job on October 16th, but instead takes the position that nothing that occurred during the administrative proceedings is admissible or relevant here. I disagree. The evidentiary rule against admitting offers of compromise made by parties in the course of settlement negotiations is one designed to protect them from damaging admissions and thus to encourage them to attempt to settle their disputes. It has no applicability to the situation here. As the offer was made during a state proceeding, I need not decide whether 42 U.S.C.A. § 2000e-5(a) would preclude proof of the offer of employment had it been made in a federal proceeding.
Accordingly I find that plaintiff was offered a job by defendants on October 16, 1970, and therefore that plaintiff cannot have suffered any damage beyond that date as a result of the alleged discrimination. Were any damages due plaintiff at all, they would be only for the period between plaintiff's graduation from the Stanford Business School in June 1970, and the date of defendants' job offer October 16, 1970. *1374 Whether in fact any damage was suffered, during those months is of course a matter of proof.
The defendants' motion for summary judgment is granted insofar as assuming that liability is proved at trial I restrict the measure of damages to the period from June to October 1970, plus any punitive damages to which he may be able to show that he is entitled. Cf. Stolberg v. Board of Trustees for the State Colleges of the State of Conn., 2d Cir., 474 F.2d 485, decided Jan. 29, 1973.
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579 S.E.2d 825 (2003)
260 Ga. App. 398
MARGERUM
v.
The STATE.
No. A03A0129.
Court of Appeals of Georgia.
March 19, 2003.
*826 Jeffrey M. Gore, Atlanta, for appellant.
David McDade, Dist. Atty., Christopher R. Johnson, Asst. Dist. Atty., for appellee.
ANDREWS, Presiding Judge.
We granted Jeffrey Douglas Margerum's application for interlocutory appeal of the trial court's order denying his motion to suppress evidence. Margerum claimed that his arrest was based on an illegal traffic stop because the arrest was made outside the arresting officer's jurisdiction. In denying the motion, the trial court held that the officer was in "hot pursuit" of Margerum's car and the stop was legal. We agree and affirm.
"In reviewing a trial court's denial of a motion to suppress, we are required to accept such court's ruling on disputed facts unless it is clearly erroneous[, and] we must defer to the trial court's judgment on the credibility of witnesses. Furthermore, the evidence is to be construed most favorably to the upholding of the findings and judgment made." (Citations and punctuation omitted.) Cates v. State, 232 Ga.App. 262, 263, 501 S.E.2d 262 (1998).
So viewed, the evidence was that on the evening of November 27, 2001, Officer Terry Wallace of the Douglasville Police Department received a dispatch to look for a suspected shoplifter in a blue Cadillac bearing a specific tag number. Five to seven minutes later, Wallace spotted the car with two men in it, traveling eastbound on I-20 just before Thornton Road. The Douglas County line is several hundred yards east of Thornton Road.
Wallace followed the Cadillac into Fulton County, delaying a stop until he got backup from either the Fulton County or Atlanta Police Department. Neither the Fulton County Police nor the Atlanta Police responded to his call. Wallace stopped Margerum's car as soon as another unit from his own department arrived. At that time, he was just past Fulton Industrial, two exits past Thornton Road. The total elapsed time from the 911 call to the time of arrest was 22 minutes.
Ordinarily, as a matter of legal policy, a peace officer has power of arrest only in the territory of the governmental unit by which he was appointed. (Citations and punctuation omitted.) Hastings v. State, 211 Ga.App. 873, 874(1), 441 S.E.2d 83 (1994). See OCGA § 40-13-30 (officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality unless such jurisdiction is given by local or other law). However, an exception to this rule is recognized in instances in which "hot pursuit" of an offender takes a municipal officer beyond his geographical limits in order to effectuate an arrest. (Citations omitted.) Poss v. State, 167 Ga.App. 86, 87(1), 305 S.E.2d 884 (1983).
(Punctuation omitted.) Page v. State, 250 Ga.App. 795, 797, 553 S.E.2d 176 (2001).
It is not necessary for the officer to engage in a high-speed chase of the suspect, nor must the officer turn on his lights and sirens before leaving his jurisdiction in order for the stop to be authorized under the "hot pursuit" doctrine. Page, supra. "The critical elements characterizing `hot pursuit' are the continuity and immediacy of the pursuit, rather than merely the rate of speed at which pursuit is made." (Punctuation omitted.) Id. Moreover, the officer is not required to arrest the suspect at the first opportunity, but may, and should, wait to stop and arrest the suspect at the first opportunity which is safe for all concerned, the officer, the suspect, and other motorists. State v. Hoover, 253 Ga.App. 98, 99-100, 558 S.E.2d 71 (2001); Page, supra.
Here, the officer's pursuit of Margerum was both continuous and immediate and thus fell under the "hot pursuit" doctrine. The officer stopped Margerum at the first safe opportunity for doing so; that is, after the backup officer arrived.
Judgment affirmed.
BARNES and ADAMS, JJ., concur.
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226 S.C. 145 (1954)
84 S.E.2d 343
MRS. T.J. BELL
v.
CITY OF ANDERSON.
16921
Supreme Court of South Carolina.
October 28, 1954.
*146 John K. Hood, Jr., Esq., of Anderson, for Appellant.
Robert L. Ballentine, Esq., of Anderson, for Respondent.
October 28, 1954.
STUKES, Justice.
The respondent in this appeal recovered verdict and judgment in tort against appellant perforce section 47-71 of the Code of 1952, the concluding provisions of which follow:
*147 "Before any action shall be brought hereunder a claim duly certified shall be filed with such municipal corporation within three months after the date of such injury or damage or action commenced within such time on a verified complaint. If such verified claim be filed within the time herein fixed an action shall be commenced within one year from the date of filing thereof or such cause of action shall thereafter be barred."
The injury and damage occurred on March 21, 1952. Claim was not filed but summons and verified complaint were delivered by respondent to the sheriff of Anderson county for service upon the defendant, which is a municipal corporation of that county, on the last day of the three months' period after the date of injury. This was a Saturday and the sheriff was unsuccessful in his efforts to serve the summons and complaint upon the appellant because its executive offices were closed that afternoon, and they were not served until three days later.
Upon motions by appellant for directed verdict and judgment non obstante veredicto the trial court ruled that there was timely compliance with section 47-71, which is quoted above, under the terms of section 10-101 which provides that an attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of that title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendant, if a corporation, is established by law, etc. It is interesting that the federal rule is substantially the same. Rule 3, Federal Rules of Civil Procedure, 28 U.S.C. A. Macri v. Flaherty, D.C., 115 F. Supp. 739.
Appellant invokes the rule that the enabling statute under which respondent sued and recovered is in derogation of appellant's ordinary immunity from suit and the statute must, therefore, be strictly construed. United States Casualty Co. v. State Highway Department, 155 S.C. 77, 151 S.E. 887. The cited rule was recently referred to in Jeff Hunt Machinery Co. v. South Carolina State Highway Department, *148 217 S.C. 423, 60 S.E. (2d) 859, in which it was held that it should not be applied to the extent that the result would be to defeat the legislative intent; and like other rules of statutory construction, it serves merely to ascertain the intention of the legislature as expressed in the statute.
When the General Assembly enacted section 47-71 it had before it the long-prior existing section 10-101 which defined such an attempt to commence an action as the equivalent of the actual commencement. Tested by the terms of section 10-101, respondent complied with the requirement of section 47-71 when she placed in the hands of the sheriff within three months after her injury the summons and verified complaint with the intention that they be served upon appellant. It would be more than strict construction against her to hold that she lost her right of recovery because of the failure of the sheriff to serve the process upon the appellant immediately. The effect in this case of section 10-101 was to relate the actual service of the verified complaint back within the three months' period. "Under these authorities, we think that the service related back to the original commencement of the action," First National Bank of Holly Hill v. Hair, 200 S.C. 36, 20 S.E. (2d) 219, 226.
Appellant urges the persuasive authority of Pearson v. Newton County, 119 Ga. 863, 47 S.E. 180, where the statute required the filing of claim within one year. A day or so before the expiration of this limit claimant filed suit in the office of the Clerk of Court which was not served until several days afterward. The action was dismissed but a vital distinction between that case and this is that it does not appear that Georgia then had a statute similar in terms to our code section 10-101, which requires opposite result here.
The established distinction between the statute of limitations upon remedies and a limitation affixed to a statutory cause of action as an integral part of it, Sellers v. Lewis & Holmes M.F. Corp., 215 S.C. 256, 54 S.E. (2d) 806, is of no present importance because of the statutes which *149 have been cited; they must be construed together and both given effect, with the result which has been indicated.
The exceptions are overruled and the judgment affirmed.
TAYLOR, OXNER and LEGGE, JJ., and G. BADGER BAKER, Acting Associate Justice, concur.
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84 S.E.2d 814 (1954)
241 N.C. 197
H. Haywood ROBBINS, Administrator c.t.a. of the Estate of W. L. Nichols, Deceased; Irma Davis Nichols; and Sarah Lee Nichols Poole
v.
The CITY OF CHARLOTTE; The City Council of the City of Charlotte; and Philip L. Van Every, Mayor, Claude L. Albea, Herbert H. Baxter, Basil M. Boyd, Herman A. Brown, Steve W. Dellinger, James S. Smith and W. Everett Wilkinson, Members of the City Council of the City of Charlotte.
No. 523.
Supreme Court of North Carolina.
December 1, 1954.
*815 H. Haywood Robbins, Harry C. Hewson and Edwin B. Robbins, Charlotte, for plaintiffs, appellants.
*816 John D. Shaw, Charlotte, for defendants, appellees.
JOHNSON, Justice.
Simply stated, the proviso of G.S. § 160-173 provides that when at any intersection of streets within a city or town the land at two or more "corners" is restricted to a designated use by municipal zoning regulation, it shall be the duty of the local governing body upon written application from the owner or owners of the property at the other corners of the intersection to rezone the "remaining * * * corners" in the same manner as the "other * * * corners for a distance not to exceed one hundred and fifty feet from the property line of said intersecting additional corners." See Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880.
The single question presented by this appeal, then, is: Does the land fronting on Selwyn Avenue opposite its intersection with Brandywine Road, that is, the land along the top of the "T", constitute a corner or corners within the purview of the proviso of G.S. § 160-173?
The court below answered in the negative, and this seems to be in accord with the clear meaning of the language of the proviso.
Webster's New International Dictionary (1951) defines "corner" as "The point or place where two converging lines, sides, or edges meet; an angle, either external or internal; specif.: * * * The place of intersection of two streets."
Century Dictionary, at page 1269, defines a "corner" as follows: "* * * 2. The space between two converging lines or surfaces; specifically, the space near their intersection; * * *" See also 9 Words and Phrases, p. 649; 18 C.J.S., Corner, p. 284.
"Intersection" is defined in 48 C.J.S., p. 115, as follows: "A place of crossing; the dividing line between two things; the place where two things intersect or cross; the point or line in which one line or surface cuts into another; the point where two lines or the lines in the two surfaces cross each other."
The east side of Selwyn Avenue along the top of the "T" at the dead end of Brandywine Road is a straight, unbroken line all the way from Colony Road to Selwyn Lane, with no converging side street lines to form a "corner" within the plain meaning of the proviso.
The appellants insist that in order to carry out the legislative intent "corners" as used in the proviso should be interpreted to mean the areas of land around the perimeter of a street intersection in the sense that there are three distinct areas around a "T" intersection and four around an ordinary 4-corner intersection. Hence, the appellants reason that the requirements of the proviso are met by uniform zoning of two-thirds of the areas around a "T" intersection.
However, no such interpretation of the proviso is permissible under application of the fundamental rules of statutory construction. It is elemental that the construction of statutory language in accordance with its common, ordinary meaning prevails when, as here, the words have not acquired a technical meaning and where a different meaning is not apparent or definitely indicated by the context. Victory Cab Co. v. Charlotte, 234 N.C. 572, 68 S.E. 2d 433; Wiscassett Mills Co. v. Shaw, 235 N.C. 14, 68 S.E.2d 816.
Moreover, to give to the proviso the construction urged by the appellants would lead to unreasonable or absurd results. For example: noting that the proviso provides for zoning "for a distance not to exceed one hundred fifty feet from the property line of said intersecting additional corners," let us assume a situation in which the two corners of the intersection of Brandywine Road south of Selwyn Avenue (the plaintiffs' corner and the corner directly across Brandywine from it) were zoned "Business-1" and the owner of the property at the top of the "T" should petition for like zoning, it is at once apparent that the proviso provides no formula by which any *817 150-foot segment could be located along the top of the "T" for the purpose of rezoning. Hence, it is manifest that the area along the top of the "T" at the dead-end intersection may not be treated as a corner within the meaning of the proviso in G.S. § 160-173.
It is to be noted further that while ordinarily the function of a proviso is to limit, restrict, or qualify the statute to which it is engrafted so as to exclude from the scope of the statute something which otherwise would be within its terms, nevertheless, in the case at hand the nature of the proviso is to enlarge the scope of the statute, G.S. § 160-173, by giving it a mandatory operation of extended application upon the happening of the event designated in the proviso. This being so, it is all the more manifest that the proviso should be held to include no case not clearly within its plain terms. See Traders National Bank v. Lawrence Mfg. Co., 96 N.C. 298, 307 et seq., 3 S.E. 363.
The judgment below will be upheld.
Affirmed.
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90 Ga. App. 799 (1954)
84 S.E.2d 471
WILLINGHAM et al.
v.
ANDERSON et al.
35168.
Court of Appeals of Georgia.
Decided October 13, 1954.
Edward H. Robertson, B. J. Dantone, for plaintiffs in error.
Clarke & Anderson, contra.
QUILLIAN, J.
Forest A. Willingham, Jr., and Rose Agnes C. Willingham instituted an action against M. W. Anderson and *800 Mrs. Alma McGee Anderson in Fulton Superior Court. The petition related substantially the following facts:
The plaintiff entered into a contract with the defendant M. W. Anderson, whereby Anderson agreed to sell and the plaintiff to buy certain real estate situated on a street or road known as Mocking Bird Lane. This contract contained an agreement that all improvements on Mocking Bird Lane except sewage were to be paid for by the seller. Later Anderson and his wife made to the plaintiff a warranty deed in which there was no allusion to the improvements or any obligation to pay for them.
Mrs. Alma McGhee Anderson was not a party to the agreement. A sheet showing the terms on which the property was sold, which also contained the stipulation above referred to in reference to the seller paying for the improvements on Mocking Bird Lane except sewage, was signed by one J. W. Peacock, whose authority to bind any of the parties to the transaction does not appear from the record. Certain pavement assessments were levied against the property along Mocking Bird Lane, including the property conveyed by the deed of the defendants to the plaintiff. The petition having related the sales contract between the plaintiffs and Mr. Anderson, and the sales sheet signed by one Mr. Peacock, which contained the provision in reference to payment for improvements on Mocking Bird Lane, continued with allegations contained in its paragraph 4, as follows:
"Plaintiffs aver that they, acting in reliance upon the said promise made by the defendants as stipulated in the contract hereinabove set out as Exhibit `A', resold the same said property, promising their vendees that the same said obligation as to payment for all improvements on Mocking Bird Lane, except sewage, would be discharged and obligating themselves therefor to their vendees; that afterwards, on July 24, 1953, and on August 19, 1953, assessment was made by Riley F. Elder, Municipal Revenue Collector, City of Atlanta, Georgia, in the respective amounts of $317.21 and $1,428.47, for 300 feet of curbing and 300 foot front asphalt, being a total of $1,745.68; that plaintiffs then made their demand upon defendants for the fulfillment of their said contract and being refused so to do and by virtue of such misplaced confidence and in keeping with their agreement with their vendees, they did on August 26, 1953, themselves *801 satisfy said obligation by payment of the said amount of $1,745.68."
The defendants filed a general demurrer on the ground that the petition set forth no cause of action. The court sustained the demurrers, and the plaintiffs excepted.
For the sake of convenience the plaintiffs in error and the defendants in error will be referred to in terms of the respective relationship they had to the case in the trial court.
The petition showed that the plaintiffs were not entitled to recover for the improvements for the reason that when the deed was made by the defendants to them, all agreements in reference to the sale of the property thereby conveyed were merged into that deed. It is a part of the petition and contains no agreement concerning the payment for improvements by the defendants.
There is a reason equally as good as that assigned in the preceding paragraph of this opinion for holding that the petition set forth no cause of action, though no allusion to it is found in the briefs of counsel. The sales contract, agreeing that "all improvements on Mocking Bird Lane to be paid by the seller except sewage," can not be construed to refer to any improvements except those existing at the time the contract was executed. If this stipulation should be interpreted as including the assumption of responsibility by the seller for improvements to be made on Mocking Bird Lane in the future, then it would be utterly void for uncertainty because not limiting or specifying for what length of time the seller should be bound to pay for the improvements that would thereafter be made on the street.
The petition does not allege that the improvements which it alleges were made on the street and paid for by the plaintiffs existed before or at the time the contract was entered into. In the absence of such averment, no liability of even the defendant who signed the contract to pay for the improvements enumerated in the petition was set forth.
The trial judge having correctly ruled that the petition did not set forth a cause of action, the judgment sustaining the general demurrer must be affirmed. This case is controlled by the ruling in Johnson v. Young, 79 Ga. App. 276 (2) (53 S. E. 2d 559), quoted in the headnote.
*802 The plaintiffs contend that this case is distinguishable from the Johnson case for the reason that it was evident from all of the documents that it was the intention of the maker that the sales agreement, containing the provision as to payment by the defendants for the improvements, be not extinguished by the deed, but that the two instruments, the sales contract and the deed, be and continue collateral contracts, one to the other.
But if the rule was that ordinarily or generally preliminary sales contracts should be considered as collateral contracts with the deed made to the property covered by the agreement, it would not help the plaintiffs in this case. This is true for the reasons: first, the petition does not allege that the contract of sale was not extinguished by the deed or that it was the intention of the parties that it survive and be considered as a collateral undertaking. Secondly, this would have been impossible under the averments of the petition, for the reason that the deed was a joint deed of Mr. and Mrs. Anderson to the plaintiffs, while Mrs. Anderson was not a party to the sales agreements.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
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579 S.E.2d 87 (2003)
260 Ga. App. 77
BROWN
v.
The STATE.
No. A02A1809.
Court of Appeals of Georgia.
March 6, 2003.
Certiorari Denied June 9, 2003.
*89 Lawrence Lewis, for appellant.
Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Peggy R. Katz, Assistant District Attorneys, for appellee.
*88 RUFFIN, Presiding Judge.
A jury found Larry Brown guilty of rape, aggravated sodomy, aggravated sexual battery, two counts of aggravated assault, kidnapping, false imprisonment, and possession of a knife during the commission of a felony.[1] The trial court denied Brown's motion for new trial, and he appeals to this Court, asserting numerous errors. Finding that Brown's assertions lack merit, we affirm.
The evidence shows that the victim arrived in the Boatrock Road area in a taxi, and she was approached by several men, whom the taxi driver believed to be drug dealers. The taxi driver pulled farther down the street and ordered the victim out of the car.
As the victim walked toward a pay phone, Kahbarius Jackson, one of the men who had approached the taxi, grabbed her by the arm. Jackson accused the victim of taking his "dope," and he pulled her to a secluded area. Jackson and the victim were joined by Brown and others, and Jackson told Brown that the victim was "trying to play games." Brown then told the victim, "[w]e kill too many people over bigger things. We don't want to kill you over something this small." According to the victim, Jackson took a knife from Brown and pointed it at the victim. The victim testified that, while Jackson dumped *90 her purse on the ground, Brown "put his hands in [her] bra and he felt on [her] breasts and pulled [her] jumpsuit down and checked [her] vagina and anus" looking for drugs. Although neither Jackson nor Brown found any drugs, Jackson found an empty bag used for packaging cocaine. Jackson informed the victim, "it has to be something for something. It can't go down like this...," indicating that the victim would have to perform fellatio.
Jackson, Brown, and the others took the victim to a bricked-in area where they forced the victim to orally sodomize them. During the next several hours, Jackson, Brown, and others raped and sodomized the victim. A crowd gathered around the scene, and the victim overheard someone say that she "tried to steal [Jackson's] dope. She [is] paying for it." After the victim threw up, Brown began hitting her with a belt, ordering her to "get up." Brown also threatened to burn the victim if she did not get up, and he held a lighter between her legs.
Eventually, the victim was rescued by Pam Burke, who took the victim to Burke's apartment. The victim was then taken to a hospital, where Dr. Steven Bashuk performed a rape examination. Based upon this and other evidence, the jury found Larry Brown guilty, and this appeal ensued.
1. In three enumerations of error, Brown contends that the trial court erred in failing to sever his trial from that of his co-defendants. In ruling on a motion for severance, a trial court is required to consider the following factors:
(1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other's rights.[2]
We review a trial court's ruling on a motion for severance under an abuse of discretion standard.[3]
(a) Brown argues that the trial court should have severed his trial because the defendants were asserting antagonistic defenses. According to Brown, whereas he and Jackson claimed that the sexual encounter was consensual, a third co-defendant maintained that he was not present and produced alibi witnesses. We do not find these defenses antagonistic. All three defendants denied criminal culpability, and none of the defenses implicated another defendant.[4] Assuming, for the sake of argument, that the defenses were antagonistic, "`that antagonism does not, in and of itself, require severance.'"[5] In any event, we find no abuse of discretion in the trial court's denial of the motion for severance on this basis.
(b) Brown also contends that his motion for severance should have been granted because the admission of his redacted statement to police violated the principle enunciated in Bruton v. United States.[6] However, the provisions of Bruton apply to the statement of a co-defendant that inculpates the defendant, not the defendant's own statement.[7]
Brown also argues that, even if proper, the redaction required by Bruton was nonetheless prejudicial because it misled the jury. In his original statement, Brown told police that Jackson had a knife, which Brown then described. In accordance with Bruton, the statement was redacted to remove Jackson's name. Brown suggests that this redaction left the jury with the impression that the knife was his, thus prejudicing him. However, "[t]his argument completely ignores well-established *91 law that as a party to that crime, [Brown] was equally culpable" regardless of who actually held the knife.[8] It follows that the trial court did not abuse its discretion by denying Brown's motion on this ground.
(c) Finally, Brown argues that he was entitled to severance in order to call Jackson as a witness. Because of Jackson's Fifth Amendment rights, Brown was unable to call him during the joint trial. In order to have a motion for severance granted on this basis, Brown must show that any such testimony would have been exculpatory.[9] Brown contends that Jackson "would have provided testimony that the sexual encounter between [Brown] and [the victim] ... was consensual." It is abundantly clear that Brown's defense at trial was that the encounter was consensual and other testimony was admitted, tending to support this theory. Thus, Jackson's testimonyassuming he would have testifiedwould have been cumulative. Under these circumstances, we find no abuse of discretion in the denial of Brown's motion for severance.[10]
2. Brown maintains that the trial court erred in allowing the State to improperly bolster the victim's credibility. Before the victim was called to testify, the State called her fiancé and, over objection, asked him to "describe [the victim] as far as her truthfulness, her honesty." The fiancé responded, "[i]n relation to me she has been forthcoming." According to Brown, this testimony improperly invaded the jury's province with regard to assessing witness credibility.
"It is well settled that in no circumstances may a witness' credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth."[11] Here, we can discern no appropriate reason for admitting the fiancé's testimony regarding the victim's general veracity. Nonetheless, we find no grounds for reversal because it is highly improbable that the fiancé's testimony contributed to the verdict.[12] During her direct examination, the victim admitted that she had lied in the past to her fiancé concerning her drug use and had hidden her drug use from him. Under these circumstances, we doubt the jury was overly swayed by the fiancé's testimony that the victim was always forthcoming with him.
3. According to Brown, the trial court erred in excluding evidence of the victim's past conduct in which she consented to sex in exchange for drugs. Brown contends that, notwithstanding the Rape Shield Law,[13] he was entitled to question the victim about such prior acts to establish his consent defense. After a hearing on the matter, however, the trial court concluded that the Rape Shield Statute precluded Brown from questioning the victim in this regard.
"We review the trial court's exclusion of evidence under the Rape Shield Statute for abuse of discretion."[14] To warrant admission of evidence involving the victim's prior sexual behavior, a trial court must find that
the past sexual behavior directly involved the participation of the accused and find[ ] that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the [victim] consented to the conduct complained of in the prosecution.[15]
During the hearing on the State's motion in limine, Brown's statement was tendered, but Brown did not proffer any evidence to demonstrate the basis for his belief or assumption *92 that the victim consented to Brown's subsequent conduct. Accordingly, the trial court excluded the evidence. We find no abuse of discretion in this ruling.[16]
4. Brown asserts that the trial court erred in excluding a portion of the victim's statement to police. The victim apparently told the police that Jackson had offered to accept sex in exchange for drugs, but she replied that she did not do that anymore. The trial court excluded the victim's reply, reasoning that it violated the Rape Shield Statute. On appeal, Brown asserts that the trial court's ruling unfairly abridged his right to a thorough cross-examination of the victim. We disagree. "The admission of evidence at trial is within the discretion of the trial court."[17] Having already excluded evidence of the victim's prior sexual conduct, the trial court did not abuse its discretion in limiting Brown's cross-examination on the subject.[18]
Brown also argues that the trial court's ruling in this regard hampered his ability to impeach the victim. As a general rule, "the rape shield law will not be applied to permit perjured testimony."[19] Here, however, there is no evidence that the victim perjured herself, which eviscerates this claim of error.[20]
5. In multiple enumerations of error, Brown contends that the trial court erred in refusing to declare a mistrial. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard, and "[w]e will reverse the trial court's ruling only if a mistrial is essential to the preservation of the right to a fair trial."[21]
(a) According to Brown, the trial court was required to declare a mistrial after the prosecutor impermissibly bolstered the victim's credibility.[22] In addition to complaining of the fiancé's bolstering testimony, Brown asserts that "the prosecutor violated OCGA § 24-2-2 when she questioned the [victim] about her community activity." Over objection, the trial court permitted the victim to testify that, while in high school, she had been involved with a civic organization that helped mentally ill children. Again, we discern no appropriate reason for admitting such evidence, which is not relevant to the issue of whether the victim had been raped.[23] Nonetheless, we do not agree that the admission of such irrelevant material warranted a mistrial. The victim admitted that she had been addicted to crack cocaine for several years, had lied about her drug use, and had stolen to support her habit. Under these circumstances, the trial court did not abuse its discretion in denying Brown's motion for mistrial simply because limited favorable testimony was also heard by jurors. Moreover, with respect to the testimony regarding the victim's civic activities, Brown never requested a mistrial, thus waiving the issue on appeal.[24]
(b) Brown also asserts that a mistrial was warranted after the State elicited hearsay evidence. The victim testified that, during the attack, she heard someone say "y'all shouldn't have done that to that girl." Brown objected to this statement, which the *93 State contends was admissible as res gestae. Pretermitting whether the statement was admissible, we find its admission harmless. Given the overwhelming evidence that Brown and others took turns sexually violating the victim in front of a sizeable crowd, we fail to see how one comment from a bystander expressing disapproval could have unduly prejudiced Brown's defense.[25]
(c) In a related enumeration of error, Brown asserts that the trial court was required to declare a mistrial after Burke testified that she had spoken to the victim's mother and said that she "thought that [the victim] had been raped by what the kids had said." Although the trial court denied Brown's motion for mistrial, it instructed the jury to disregard the hearsay testimony. Given the trial court's prompt curative instruction, we find that the court did not abuse its discretion in denying the motion for mistrial.[26]
(d) According to Brown, the trial court should have granted a mistrial after Dr. Bashuk, who examined the victim, testified that the victim had been raped. The doctor was asked for his diagnosis, and he responded, "[t]he only diagnosis I recall making is it was a rape sexual assault exam." Contrary to Brown's contention, this statement is not tantamount to saying the victim had been raped. Rather, Dr. Bashuk merely characterized the type of examination he performed. And his testimony in this regard was cumulative, as he had already testified without objectionthat the victim was being examined for an alleged rape and that he used a rape kit. Because Dr. Bashuk did not comment on the ultimate issue, Brown's mistrial argument lacks merit.[27]
(e) Brown alleges that a mistrial was required based upon allegedly improper closing argument in which the prosecutor violated the "golden rule" by asking jurors to place themselves in the victim's shoes. Specifically, the prosecutor argued to jurors that the victim "was in the wrong place at the wrong time. And couldn't it happen to anybody? Couldn't it happen to your mother, to your sister?"[28] The trial court sustained Brown's objection and gave curative instructions, but denied the motion for mistrial. In view of the curative instructions, we find no abuse of discretion in the trial court's ruling.[29]
6. Brown contends that the trial court erred by instructing the jury, with respect to the rape and aggravated sodomy charges, that the element of force may be inferred if the victim lacked the capacity to consent to sex. According to Brown, the victim's capacity was never at issue. We disagree. The victim testified that she had used crack cocaine before she was accosted by Brown and the others, which at least raises an issue as to whether she was under the influence at the time.[30] "In addition, because the State presented evidence of actual force, any error resulting from this charge was harmless."[31]
7. In his final enumeration of error, Brown maintains that he received ineffective assistance. The standard for establishing an ineffective assistance claim is well settled. Brown must demonstrate
both that his trial counsel's performance was deficient and that counsel's deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. To succeed in his claim, *94 [Brown] must overcome the strong presumption that his counsel's performance fell within the broad range of reasonable professional conduct and that his counsel's decisions were made in the exercise of reasonable professional judgment. We will not reverse on the basis of ineffective assistance of counsel unless trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result. Absent clear error and harm, we will affirm the trial court's finding that [Brown] did not receive ineffective assistance of counsel.[32]
Brown alleges that his attorney was ineffective for failing to object to the fiancé's "lecture" about the victim's drug use. The fiancé testified about drug dependency in general as well as methods employed to help the victim overcome her addiction. At the motion for new trial, Brown's trial attorney testified that he did not object to the fiancé's testimony because he thought it might be helpful. Indeed, the entire defense strategy was to portray the victim as an addict who willingly exchanged sexual favors for drugs. Where, as here, a defense attorney's failure to object reflects sound trial strategy, such will not serve as the basis for an ineffectiveness claim.[33]
Brown also argues that his trial attorney was ineffective for failing to object to the admission of his redacted statement, which he contends violated Bruton.[34] For the reasons discussed in Division 1, this argument lacks merit.
Judgment affirmed.
BARNES and ADAMS, JJ., concur.
NOTES
[1] The jury acquitted Brown of one count of aggravated sodomy, and the trial court dismissed one count of aggravated sexual battery.
[2] Harris v. State, 257 Ga.App. 42, 44(2), 570 S.E.2d 353 (2002).
[3] See id.
[4] See Redding v. State, 239 Ga.App. 718, 721-722(4), 521 S.E.2d 840 (1999).
[5] Harris, supra.
[6] 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
[7] See Thomas v. State, 268 Ga. 135, 137, 485 S.E.2d 783 (1997) ("For the admission of a co-defendant's statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.") (punctuation omitted).
[8] Ricarte v. State, 249 Ga.App. 50, 54(3), 547 S.E.2d 703 (2001).
[9] See Cain v. State, 235 Ga. 128, 130, 218 S.E.2d 856 (1975).
[10] See Ledbetter v. State, 202 Ga.App. 524, 525(2), 414 S.E.2d 737 (1992).
[11] (Punctuation omitted.) Buice v. State, 239 Ga.App. 52, 55(2), 520 S.E.2d 258 (1999), aff'd, 272 Ga. 323, 528 S.E.2d 788 (2000).
[12] See Bright v. State, 238 Ga.App. 876, 880(4), 520 S.E.2d 48 (1999).
[13] See OCGA § 24-2-3.
[14] Jackson v. State, 254 Ga.App. 562, 565(2), 562 S.E.2d 847 (2002), overruled on other grounds, 275 Ga. 576, 571 S.E.2d 376 (2002).
[15] OCGA § 24-2-3(b).
[16] See Jackson, supra.
[17] Richardson v. State, 256 Ga.App. 322, 325(1), 568 S.E.2d 548 (2002), cert. granted, Case No. S02G1698, (September 16, 2002).
[18] See id.
[19] Wagner v. State, 253 Ga.App. 874, 878(3), 560 S.E.2d 754 (2002).
[20] See id.
[21] (Punctuation omitted.) Richards v. State, 250 Ga.App. 712, 714(3), 552 S.E.2d 114 (2001).
[22] We note that the State has failed to address this argument on appeal. Court of Appeals Rule 27(b)(2) provides that Part Two of an appellee's brief "shall contain appellee's argument and the citation of authorities as to each enumeration of error." In failing to adhere to this provision, the State has done a disservice both to this Court and to the people of this State, whom the prosecutor represents.
[23] See OCGA § 24-2-2 ("The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct").
[24] See Beaton v. State, 255 Ga.App. 901, 905(5), 567 S.E.2d 113 (2002).
[25] See Pullin v. State, 258 Ga.App. 37, 42(2), 572 S.E.2d 722 (2002).
[26] See Farley v. State, 260 Ga. 816, 818-819(4), 400 S.E.2d 626 (1991), overruled on other grounds, Woodard v. State, 269 Ga. 317, 319(2), n. 14, 496 S.E.2d 896 (1998).
[27] See Alvarado v. State, 257 Ga.App. 746, 749(4), 572 S.E.2d 18 (2002).
[28] Brown also complains about the prosecutor's argument, questioning whether the jurors could be as honest as the victim regarding drug use. Because Brown failed to object to this alleged improper argument, error, if any, has been waived. See Hamilton v. State, 274 Ga. 582, 587(12), 555 S.E.2d 701 (2001).
[29] See Wolke v. State, 181 Ga.App. 635, 636-637(3), 353 S.E.2d 827 (1987).
[30] See McIntosh v. State, 247 Ga.App. 640, 644-645(5), 545 S.E.2d 61 (2001).
[31] Id. at 645, 545 S.E.2d 61.
[32] (Footnotes omitted.) Glass v. State, 255 Ga. App. 390, 400-401(10), 565 S.E.2d 500 (2002).
[33] See Mitchell v. State, 250 Ga.App. 292, 296(2)(b), 551 S.E.2d 404 (2001).
[34] Supra.
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84 S.E.2d 218 (1954)
Lloyd ROGERS, Jr.,
v.
STATE COMPENSATION COMMISSIONER et al.
Wade MARTIN
v.
STATE COMPENSATION COMMISSIONER et al.
Nos. CC815, CC816.
Supreme Court of Appeals of West Virginia.
Submitted September 1, 1954.
Decided November 9, 1954.
*219 J. Strother Crockett, Crockett & Tutwiler, Welch, for appellant.
M. E. Boiarsky, R. L. Theibert, Franklin W. Kern, Winston C. Brown, Charleston, for appellees.
HAYMOND, Judge.
These cases involve the separate claims of Lloyd Rogers, Jr., and Wade Martin, former employees of Olga Coal Company, a corporation, for silicosis benefits. On joint motion of the attorneys representing the respective parties the cases have been consolidated and they will be dealt with in one opinion.
The legal question involved is whether an award of $1,000.00 in favor of each claimant for silicosis in the first stage is payable from the Workmen's Compensation Fund and chargeable to the account of the employer, Olga Coal Company, or is payable from the surplus fund provided for by the Workmen's Compensation Law.
The material facts in each case are not disputed.
The claimant Lloyd Rogers, Jr., was employed by the Olga Coal Company in 1934, and he continued to work for that company until his employment was terminated on May 12, 1950. He filed his application for silicosis benefits with the State Compensation Commissioner on April 29, 1952, which was within two years from the termination of his employment.
The claimant Wade Martin was employed by the Olga Coal Company in 1936, and he continued to work for that company until his employment was terminated on May 12, 1950. He filed his application for silicosis benefits with the State Compensation *220 Commissioner on May 5, 1952, which was likewise within two years from the termination of his employment.
By order entered in each case in June, 1950, the commissioner denied the claimant compensation on the ground that he had not been exposed to the hazard of silicon dioxide dust for a continuous period of sixty days within two years preceding the date he filed his application. After objection by each claimant, the commissioner, by order entered October 9, 1952, in the Rogers case, and by order entered November 13, 1952, in the Martin case, affirmed his former order in each case.
It appears that Rogers worked only eight days for the Olga Coal Company, his employer, during the two year period immediately preceding the date of the filing of his application on April 29, 1952, and that Martin worked only six days for the Olga Coal Company, his employer, during the two year period immediately preceding the date of the filing of his application on May 5, 1952. Each claimant, however, was continuously employed by that company for more than ten years immediately preceding the date of his last exposure to the hazard of silicon dioxide dust.
Each claimant appealed to the Workmen's Compensation Appeal Board which, by order entered April 11, 1953, remanded each case to the commissioner for further consideration.
In compliance with the order of the appeal board the commissioner, by order entered May 20, 1953, set aside his former orders in each case and, by order entered May 26, 1953, found that each claimant had been exposed to the hazard of silicon dioxide dust in West Virginia during a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure and referred each claim to the Silicosis Medical Board. Upon objection and at the request of the employer for a nonmedical hearing the commissioner held such hearing in each case and by order entered October 9, 1953, affirmed his order of May 26, 1953. On October 27, 1953, the Silicosis Medical Board reported to the commissioner that the claimant in each case had silicosis in the first stage. The employer objected to the findings of the Silicosis Medical Board and, by order entered January 14, 1954, the commissioner approved the finding of the Silicosis Medical Board and awarded the claimant in each case compensation for silicosis in the first stage and charged each award to the account of the employer.
On February 9, 1954, the employer appealed each case to the Workmen's Compensation Appeal Board. By order entered April 15, 1954, the appeal board affirmed the order of the commissioner insofar as it awarded compensation to each claimant for silicosis in the first stage but reversed the order of the commissioner to the extent that it held the award to each claimant chargeable to the account of his employer, Olga Coal Company, and certified to this Court the ruling of the appeal board as to the chargeability of the award in each case against the account of the employer.
The certificate of the appeal board, which was docketed in this Court on May 3, 1954, under Section 4, Article 5, Chapter 131, Acts of the Legislature, 1945, Regular Session, (Section 4, Article 5, Chapter 23, Michie's Annotated Code, 1949), presents this question: "Does the language used in Section 1, Article 4, Chapter 23, Code of West Virginia mean that a claimant must have been employed for at least as much as sixty days during the period of two years immediately preceding the filing of an application for silicosis benefits before such employer's account is chargeable with an award based upon such application, even though there is only one employer of claimant during said entire two year period?" The cases were submitted for decision on September 1, 1954, upon the written briefs and the oral arguments in behalf of the respective parties.
The validity of the award in favor of each claimant is not challenged in this Court, and the sole question for decision is that embraced in the certificate of the appeal board.
*221 The workmen's compensation system in this State is the creature of legislation and in enacting the statute creating the system the Legislature exercised the police power of the State. Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408. The underlying purpose of the Workmen's Compensation Law is to provide a system by which injuries due to industry may be liquidated and compensation provided for such injuries. See Weatherford v. Arter, 135 W.Va. 391, 63 S. E.2d 572; Mains v. J. E. Harris Company, 119 W.Va. 730, 197 S.E. 10, 117 A.L.R. 511. As that system is created solely by statute it is necessary, in resolving the question presented by the certificate, to consider and apply the pertinent statutory provisions.
Section 1, Article 3, Chapter 23, Code, 1931, as amended, relates to the creation of a workmen's compensation fund and a surplus fund and, in part, provides: "The commissioner shall establish a workmen's compensation fund from the premiums and other funds paid thereto by employers, as herein provided, for the benefit of employees of employers who have paid the premiums applicable to such employers and have otherwise complied fully with the provisions of section five, article two of this chapter, and for the benefit, to the extent elsewhere in this chapter set out, of employees of employers who have elected, under section nine, article two of this chapter, to make payments into the surplus fund hereinafter provided for, and for the benefit of the dependents of all such employees, and for the payment of the administration expenses of this chapter and shall adopt rules and regulations with respect to the collection, maintenance and disbursement of such fund not in conflict with the provisions of this chapter." The same section also provides for the creation of a surplus fund which "shall be sufficiently large to cover the catastrophe hazard, the second injury hazard, and all losses not otherwise specifically provided for in this chapter."
Section la, Article 3, Chapter 131, Acts of the Legislature, 1945, Regular Session, (Section la, Article 3, Chapter 23, Michie's Annotated Code, 1949), provides that ten per cent of the fund collected and held as the workmen's compensation silicosis fund under the provisions of former Article 6, Chapter 79, Acts of the Legislature, 1935, Regular Session, which was incorporated as Article 6, Chapter 23, in the Code of 1931, and which was repealed by Chapter 131, Acts of the Legislature, 1945, Regular Session, shall be transferred to and made a part of the workmen's compensation fund provided for in Section 1, Article 3, Chapter 23, Code, 1931, as amended, and that the balance of the fund be refunded to the subscribers to such fund in proportion to their contributions to it under the provisions of former Article 6.
Section 1, Article 4, Chapter 23, Code, 1931, as amended, contains, among others, these provisions:
"Subject to the provisions and limitations elsewhere in this chapter set forth, the commissioner shall disburse the workmen's compensation fund to the employees of such employers as are not delinquent in the payment of premiums for the quarter in which the injury occurs, * * * or to the dependents, if any, of such employees in case death has ensued, according to the provisions hereinafter made; and also for the expenses of the administration of this chapter, as provided in section two, article one of this chapter.
"For the purposes of this chapter the terms `injury' and `personal injury' shall be extended to include silicosis and any other occupational disease as hereinafter defined, and the commissioner shall likewise disburse the workmen's compensation fund to the employees of such employers as are not delinquent in the payment of premiums for the last quarter in which such employees have been exposed to the hazard of silicon dioxide dust or to any other occupational hazard, and have contracted silicosis or other occupational disease, * * *: Provided, however, that compensation shall not be payable for the disease of silicosis, or death resulting therefrom, unless in the State of West Virginia the employee has been exposed to the hazard of silicon dioxide dust over a continuous period of not *222 less than two years during the ten years immediately preceding the date of his last exposure to such hazards. An application for benefits on account of silicosis shall set forth the name of the employer or employers and the time worked for each, and the commissioner may allocate to and divide any charges on account of such claim among the employers by whom the claimant was employed for as much as sixty days during the period of two years immediately preceding the filing of the application. The allocation shall be based upon the time and degree of exposure with each employer."
Section 15, Article 4, Chapter 23, Code, 1931, as amended, provides in part: "To entitle any employee to compensation for silicosis under the provisions hereof, the application therefor must be made on the form or forms prescribed by the commissioner and filed in the office of the commissioner within two years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazard of silicon dioxide dust. * * *"
Section 15b, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, as amended by Section 15b, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, (Section 15b, Article 4, Chapter 23, Michie's Annotated Code, 1949), also provides in part: "If a claim for silicosis benefits be filed by an employee, the commissioner shall determine whether the claimant was exposed to the hazard of silicon dioxide dust for a continuous period of not less than sixty days while in the employ of the employer within two years prior to the filing of his claim, and whether in the State of West Virginia the claimant was exposed to such hazard over a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure thereto."
In Richardson v. State Compensation Commissioner, W.Va., 74 S.E.2d 258, this Court had under consideration the provisions of Sections 1 and 15, Article 4, Chapter 23, Code, 1931, as amended, and Section 15b, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, as amended by Section 15b, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, (Section 15b, Article 4, Chapter 23, Michie's Annotated Code, 1949), and in that case held that the last paragraph of Section 15 is the controlling statute with reference to the time of filing an application for silicosis benefits and that Sections 1 and 15b relate to the allocation of charges against the accounts of multiple employers. In Bumpus v. State Compensation Commissioner, W.Va., 74 S.E.2d 262, the Richardson case was adhered to and followed by this Court. In the Richardson case and the Bumpus case, however, the precise question set forth in the present certificate concerning the chargeability of an award of silicosis benefits against the account of a single employer was not presented, considered or determined.
The effect of the quoted portion of Section la, Article 3, Chapter 131, Acts of the Legislature, 1945, Regular Session, (Section la, Article 3, Chapter 23, Michie's Annotated Code, 1949), was to abolish the formerly existing workmen's compensation silicosis fund, to refund all of that fund except ten per cent to its contributors, and to transfer the remaining ten per cent of that fund to the workmen's compensation fund.
Under the provisions of Section 1, Article 4, Chapter 23, Code, 1931, as amended, the terms "injury" and "personal injury" were extended to include silicosis and any other occupational disease as defined in the statute, and the compensation commissioner was required to disburse the workmen's compensation fund to the employees of such employers as are not delinquent in the payment of premiums for the last quarter in which such employees have been exposed to the hazard of silicon dioxide dust or to any other occupational hazard, and have contracted silicosis or other occupational disease, if the claimant complies with the statutory requirements which apply to and govern his claim.
Section 1, Article 3, Chapter 23, Code, 1931, as amended, makes provision for *223 the creation of a surplus fund in the manner set forth in the statute, and provides that such surplus fund shall be sufficiently large to cover the catastrophe hazard, the second injury hazard, and all losses not otherwise specifically provided for in Chapter 23. It is obvious that a claim for compensation for silicosis in the first stage does not relate to a catastrophe hazard within the statutory definition of a catastrophe. See State ex rel. Mountain Fuel Company v. Trent, W.Va., 77 S.E.2d 608. It is also manifest that a claim for compensation for silicosis in the first stage does not involve a second injury hazard or a loss not otherwise specifically provided for in the statute. In consequence the surplus fund is not subject to a claim for compensation for silicosis in the first stage and such claim may not be charged against or paid from that fund.
Under the provisions of Section 1, Article 4, Chapter 23, Code, 1931, as amended, which extend the terms "injury" and "personal injury" to include silicosis and require the compensation commissioner to disburse the workmen's compensation fund to the employees of such employers as are not delinquent in the payment of premiums for the last quarter in which such employees have been exposed to the hazard of silicon dioxide dust and have contracted silicosis, a valid award of compensation for silicosis in the first stage is payable from the workmen's compensation fund and is chargeable against the account of his employer when the employee, in this State, has been exposed to the hazard of silicon dioxide dust for a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure to that hazard and, during that time, has not been in the employment of any other employer. The provision of the section that the compensation commissioner may allocate to and divide any charges on account of a claim for silicosis benefits among the employers by whom the claimant was employed for as much as sixty days during the two years immediately preceding the filing of his application applies only to multiple employers and has no application to a single employer.
The certified question is answered in the negative and the ruling of the appeal board answering the question in the affirmative, being erroneous, is reversed.
Ruling reversed.
LOVINS, Judge (concurring in part and dissenting in part). I have grave doubts whether a certified question propounded by the Workmen's Compensation Appeal Board is cognizable in this Court. It is true that the following statutory authority is found for the Workmen's Compensation Appeal Board to certify to this Court questions of law. "* * * The board may certify to the court [Supreme Court of Appeals] and request its decision of any question of law arising upon the record, and withhold its further proceeding in the case, pending the decision of court on the certified question, or until notice that the court has declined to docket the same. * * *" Chapter 131, Article 5, Section 4, Acts of the Legislature, 1945, Regular Session.
A cursory examination of the above quoted statute discloses that the language authorizing certification of a question pending by the Workmen's Compensation Appeal Board is so broad that given full effect would obviate any necessity for the statutory appeal provided for in the same statute and heretofore generally utilized.
The question relative to the chargeability of compensation benefits to the account of an employer is, in my opinion, an administrative question and does not contemplate the decision of a question of law.
I foresee a possibility and perhaps a probability that this opinion establishes a precedent in taking cognizance of this certified question, and thus paves the way for advisory opinions by this Court to be furnished administrative agencies and departments of the State Government.
I do not think that this Court should interfere with the functions of other constitutional departments except when a judicial question requires determination. Article *224 V of our constitution reads as follows: "The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature."
The statutory appeal to this Court from an order of the Workmen's Compensation Appeal Board authorized by Chapter 131, Article 5, Section 4, Acts of the Legislature, 1945, Regular Session, and prior statutes has been entertained by this Court under the original jurisdiction conferred by Article VIII, Section 3, Constitution of West Virginia. In discussing that question, this Court has stated: "* * * This proceeding is authorized by a statute different from the one under which United Fuel Gas Company v. Public Service Commission [73 W.Va. 571], 80 S.E. 931, was instituted, but the constitutional provisions referred to in the opinion in that case render it impossible to treat this one as an ordinary appeal or bring it within the appellate jurisdiction of this court. What the statute (section 43 of chapter 10 of the Acts of 1913) denominates an appeal must, if possible, be regarded as a right given to a claimant to participation in the fund in question, to apply to this court for the exercise of its original jurisdiction. Any other construction would render the provision unconstitutional. The commission itself is not a court. It is only an administrative board, possessing quasi judicial and legislative powers. United Fuel Gas Company v. Public Service Commission, cited. Its powers, in the administration of the workmen's compensation fund, are not substantially different from its powers over other matters within its control; and the principles upon which the jurisdiction of this court over its acts, by original process, was sustained in the case just cited determine the jurisdictional question now presented." DeConstantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88, L.R.A.1916A, 329. It is to be noted that the Public Service Commission, in the DeConstantin case was performing the duty of administering the Workmen's Compensation Fund.
In the case of Lively v. Commissioner, 113 W.Va. 242, 167 S.E. 583, the first point of the syllabus reads as follows: "The jurisdiction conferred upon the Supreme Court of Appeals by Code 1931, 23-5-1, to review acts of the commissioner, respecting the administration of the compensation fund, is original, not appellate; and, hence, is not controlled by the provision of section 3, art. 8, Const.W.Va., which confers appellate jurisdiction on this court in civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than $100." In Caldwell v. State Compensation Commissioner, 107 W.Va. 272, 274, 148 S.E. 75, 76, this Court uses the following language: "It is true that the remedy by appeal is in the nature of an exercise of original jurisdiction as by mandamus or prohibition (United Fuel [Gas] Co. v. Public Service Comm., 73 W.Va. 571, 580, 80 S.E. 931), and is governed largely by the same legal principles and procedure, * * *." Further, this Court states in the case of Saunders v. State Comp. Com'r, 112 W.Va. 212, 214, 164 S.E. 39, 40: "The `appeal' to this court provided for in the compensation statute is always regarded as an application to this court to exercise its original jurisdiction as by mandamus or prohibition and is governed largely by the same legal principles and procedure."
The statutory appeal from an order of the Workmen's Compensation Appeal Board rests solely upon the original jurisdiction of this Court, conferred by the first part of Section 3, Article VIII of the Constitution, and does not rest upon this Court's appellate jurisdiction, conferred by the latter part of Section 3, Article VIII of the Constitution.
This note raises the question of jurisdiction. Though such question is neither raised nor argued in brief and oral argument, nevertheless, a question of jurisdiction *225 may be raised at any time prior to the final decision, and by the Court of its own motion. Morehead v. De Ford, 6 W.Va. 316; Cresap v. Kemble, 26 W.Va. 603; Buskirk v. Ragland, 65 W.Va. 749, 65 S.E. 101; Charlotton v. Gordon, 120 W.Va. 615, 618, 200 S.E. 740; McKinley v. Queen, 125 W.Va. 619, 625, 25 S.E.2d 763; Staats v. McCarty, 130 W.Va. 240, 243, 43 S.E.2d 826. In Blosser v. State Comp. Comm., 132 W.Va. 112, 116, 51 S.E.2d 71, 73, Judge Haymond, speaking for the Court, says: "The question was raised in conference by some members of the Court. As the question is jurisdictional in character, it will be considered and resolved by this Court on its own motion on this appeal. Whited v. State Compensation Commissioner [131 W.Va. 646], 49 S.E.2d 838; Gapp v. Gapp, 126 W.Va. 847, 30 S.E.2d 530; Morris v. Gates, 124 W.Va. 275, 20 S.E.2d 118; Dawson v. Dawson, 123 W. Va. 380, 15 S.E.2d 156; Charleston Apartments Corporation v. Appalachian Electric Power Company, 118 W.Va. 694, 192 S.E. 294; Arnold v. Mylius, 87 W.Va. 727, 105 S.E. 920; Buskirk v. Ragland, 65 W. Va. 749, 65 S.E. 101; Thompson v. Adams, 60 W.Va. 463, 55 S.E. 668; Cresap v. Kemble, 26 W.Va. 603; Kemble v. Cresap, 26 W.Va. 603." To the same effect is the opinion of this Court in Grottendick v. Webber, 134 W.Va. 798, 803, 61 S.E.2d 854.
Again adverting to the question of advisory opinions, I know of no constitutional or statutory provision authorizing such opinions by this Court.
I am fortified in this view by the fact that under our Code and the long established and continued practice, the Attorney General of this State is the legal advisor of the Executive Department of this State. See Chapter 2, Section 1, Acts of the Legislature, 1932, Extraordinary Session.
For the foregoing reasons, I do not think the statute, with reference to certified questions from the Workmen's Compensation Appeal Board, is constitutional and would therefore refuse to take cognizance of such question.
If the certified question is cognizable by this Court, I agree with the result reached, but I dissent from the action of the Court in assuming jurisdiction of the question here certified.
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84 S.E.2d 190 (1954)
240 N.C. 785
Charles McLEAN, Sr.
v.
W. B. MATHENY, t/a Matheny Motor Company.
No. 307.
Supreme Court of North Carolina.
October 20, 1954.
*191 W. H. Strickland, Lenoir, for appellant.
C. H. Gover, Charlotte, for appellee.
DENNY, Justice.
It would seem to be unfortunate that this action has not been disposed of heretofore on its merits. However, we are bound by the record now before us and may consider only the question of law presented for determination.
This appeal turns on whether the cause of action against the corporate defendant dates from the time summons was issued and served upon it, or whether such service relates back to the commencement of the action.
Ordinarily, under the comprehensive power to amend process and pleadings where the proper party is before the court, although under a wrong name, an amendment will be allowed to cure a misnomer. Lane v. Seaboard & R. R. Co., 50 N.C. 25; Fountain v. Pitt County, 171 N.C. 113, 87 S.E. 990; Chancey v. Norfolk & W. R. Co., 171 N.C. 756, 88 S.E. 346; Cabarrus County Drainage District No. 2 v. Board of Com'rs of Cabarrus County, 174 N.C. 738, 94 S.E. 530; Gordon v. Pintsch Gas Co., 178 N.C. 435, 100 S.E. 878; Chowan County v. Com'r. of Banks, 202 N.C. 672, 163 S.E. 808; Clevenger v. Grover, 212 N.C. 13, 193 S.E. 12, 124 A.L.R. 82; Lee v. Hoff, 221 N.C. 233, 19 S.E.2d 858; Propst v. Hughes Trucking Co., 223 N.C. 490, 27 S.E.2d 152; Blue Ridge Electric Membership Corp. v. Grannis Bros., 231 N.C. 716, 58 S.E.2d 748; Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; 39 Am.Jur., Parties, section 125, page 1004.
In the instant case, however, the motion of the plaintiff was not to cure a misnomer by substituting the correct name of a proper party who was before the court in lieu of the purported partnership. On the contrary, the motion was to make the *192 defendant corporation an additional party and to file an amendment to the complaint. Therefore, under our decisions, the cause of action, in so far as it relates to the corporate defendant, dates from 20th November, 1953. Camlin v. Barnes, 50 N.C. 296; Plemmons v. Southern Improvement Co., 108 N.C. 614, 13 S.E. 188; Bray v. Creekmore, 109 N.C. 49, 13 S.E. 723; Jones v. Vanstory, 200 N.C. 582, 157 S.E. 867; Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Blue Ridge Electric Membership Corp. v. Grannis Bros., supra; Bailey v. McPherson, supra. Cf. Home Real Estate, Loan & Insurance Co. v. Locker, 214 N.C. 1, 197 S.E. 555. And as held in Plemmons v. Southern Improvement Co., supra, if the plaintiff had moved in the court below to substitute the Matheny Motor Company, Inc., in lieu of the purported partnership, the court could not have brought the corporation in as a party defendant without its consent, either expressed or by entering a general appearance, except by causing summons to be served upon it. Hence, if such motion had been made and granted, the status of the plaintiff, with respect to the plea of the statute of limitations, would not have been changed.
It follows, therefore, that since more than three years elapsed after the plaintiff's cause of action arose before the corporate defendant was made a party to the action and served with summons, such action was barred by the three-year statute of limitations, G.S. § 1-52, duly pleaded by said corporate defendant. Hence, the ruling of the court below must be upheld.
Affirmed.
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720 A.2d 509 (1998)
CATHOLIC HEALTH INITIATIVES, Petitioner,
v.
HEATH FAMILY CHIROPRACTIC, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs September 25, 1998.
Decided November 13, 1998.
*510 Rebecca L. Dillon, Lancaster, for petitioner.
No appearance entered for respondent.
Before DOYLE and KELLEY, JJ., and RODGERS, Senior Judge.
RODGERS, Senior Judge.
Catholic Health Initiatives (Employer) petitions for review of a March 19, 1998 decision and order of a Medical Fee Review Section Hearing Officer. The Hearing Officer concluded that Employer was estopped from denying liability for payment of medical services provided to Brian Stipes (employee) and that Employer violated Section 306(f.1)(5) of the Workers' Compensation Act (Act)[1] by failing to promptly pay or deny liability for medical bills submitted by Heath Family Chiropractic (Provider). We reverse.
On January 10, 1997, Provider filed an Application for Fee Review (LIBC-507) requesting review of the timeliness of payment of bills for services rendered to the employee from April 12, 1996 through August 15, 1996. On April 21, 1997, the Medical Fee Review Section of the Bureau of Workers' Compensation (Bureau) issued an administration decision determining that Employer had been untimely in its payment of medical bills and granting interest on those bills from the date payment of each was due. Employer contested the decision and the application was assigned to a Bureau Hearing Officer.
At the December 3, 1997 hearing, Provider testified that the employee first came to his office on January 9, 1996, at which time the employee advised Provider that he had suffered a work-related injury and was currently treating in-house at St. Joseph's Hospital (part of Employer's health care system). Provider testified that the employee returned to him for treatment in April of 1996, after waiting ninety days as required by the Act.[2] Employer objected that statements made by the employee to Provider were hearsay, but the Hearing Officer overruled the objection, finding that the employee's statements were made for the purpose of obtaining medical treatment and thus constitute an exception to the hearsay rule.
Provider testified that he submitted bills and office reports to Employer on a number of occasions to different addresses. Provider testified that he had several conversations with Employer's representatives who requested copies of his bills. Provider testified that he was finally informed, in December of 1996, that Employer was denying liability for the claim.
Employer presented affidavits from two individuals for the purpose of demonstrating that it did not receive bills from Provider until December of 1996 and that it had informed Provider it was denying liability for the claim within the thirty-day limit set forth at Section 305(f.1)(5) of the Act and the regulations at 34 Pa.Code § 127.208-209. Employer also argued that the medical cost containment regulations are not applicable to this case, because Employer denied that the employee suffered a work-related injury.
The Hearing Officer accepted Provider's testimony as credible and found that Provider first submitted his bills and medical reports to Employer on August 21, 1996 and did not receive a notice of compensation denial from Employer until December of 1996. The Hearing Officer acknowledged that, under the Act: 1) a claimant's medical expenses *511 must be causally related to a work injury in order to be compensable; 2) an employer may deny liability for medical expenses, asserting a lack of causal relationship to a work injury, without first filing a petition before a workers' compensation judge; and 3) the medical fee review process presumes that the underlying medical treatment is for work-related injuries. However, the Hearing Officer found that Employer's conduct was in bad faith and served to reinforce Provider's legitimate presumption that treatment was rendered pursuant to the Act, so that Employer was estopped from retroactively denying liability for the employee's medical expenses. The Hearing Officer concluded that Employer failed to comply with the requirements of Section 306(f.1)(5) of the Act and the provisions of 34 Pa Code § 127.209 and ordered Employer to reimburse Provider for the medical bills, with interest.
Employer filed a petition for review with this Court and requested supersedeas, which was granted by this Court's order dated May 7, 1998. On appeal,[3] Employer argues that the Hearing Officer erred in ordering Employer to pay the employee's medical bills where Employer denied liability for a work-related injury and there has been no determination of liability by a workers' compensation judge.[4]
Under the Workers' Compensation Act, in order for an employer to be liable for an employee's medical treatment, the treatment must be causally connected to the employee's work-related injury. Kurtiak v. Workmen's Compensation Appeal Board (Western Sizzlin' Steak House), 160 Pa.Cmwlth. 637, 635 A.2d 732 (Pa.Cmwlth.1993). It is the employee's burden to establish the necessary causal connection. Id.
Section 306(f.1)(5) of the Act requires that "[a]ll payments to providers for treatment provided pursuant to this act shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes the reasonableness or necessity of the treatment provided pursuant to paragraph 6." 77 P.S. § 531(5) (emphasis added). The plain language of Section 306(f.1)(5) reflects that the thirty-day limit applies only to medical expenses incurred for the treatment of a work-related injury.
The medical cost containment regulations (34 Pa.Code Chapter 127) were enacted to implement those sections of the Act that relate to payments made by insurers "for medical treatment . . . provided to employees with work-related injuries and illnesses." 34 Pa.Code § 127.1 (emphasis added). The regulations provide that the Bureau will return applications for fee review as prematurely filed by a provider where the insurer denies liability for the alleged work injury. 34 Pa.Code § 127.255.
Clearly, the fee review process presupposes that liability has been established, either by voluntary acceptance by the employer or a determination by a workers' compensation judge. If the employer does not voluntarily accept liability, then the proper course is for the employee to file a claim petition, even if the claim is limited to reimbursement for medical bills. See e.g., Jackson Township Volunteer Fire Co. v. Workmen's Compensation Appeal Board (Wallet), 140 Pa.Cmwlth. 620, 594 A.2d 826 (Pa.Cmwlth.1991). The medical cost containment regulations were not intended to allow providers to litigate the issue of an employer's liability in cases where the employee has not elected to do so.
The Hearing Officer erred as a matter of law in concluding that Employer was estopped from denying liability for the employee's medical treatment. Neither the Act nor the medical cost containment regulations provide any authority for a Hearing Officer to decide the issue of liability in a fee review proceeding. In addition, neither the *512 Act nor the regulations provide for the automatic imposition of liability based on an employer's failure to promptly pay or promptly deny payment for medical expenses.
Finally, we observe that Section 306(f.1)(2) of the Act, 77 P.S. § 531(2), requires a provider who treats an injured employee to file periodic medical reports to the employer, using form LIBC-9, within ten days of commencing treatment and at least once a month thereafter. This section further provides that the employer is not liable to pay for such medical treatment until this form has been filed. In the present case, the record includes only one medical report form (LIBC-9), which was not completed by Provider until January 6, 1997. Thus, even if liability for a work-related injury had been established, the record would not support a determination that Employer's obligation to pay for the employee's medical treatment arose in August of 1996.
Accordingly, the order of the Hearing Officer is reversed.
ORDER
NOW, Nov. 13, 1998, the order of the Hearing Officer in the above matter is reversed.
NOTES
[1] Act of June 2, 1915, P.L. 736 as amended, 77 P.S. § 531(5).
[2] Section 306(f.1)(I) requires an employee to visit an employer-designated health care provider for a period of ninety days. 77 P.S. 531(1)(i).
[3] Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.
[4] Pursuant to this Court's order dated September 17, 1998, Provider was precluded from filing a brief on appeal.
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364 F. Supp. 1385 (1973)
UNITED STATES of America
v.
John DOE.
In re Subpoena of Daniel CAHALANE.
Misc. No. 73-93.
United States District Court, E. D. Pennsylvania.
October 9, 1973.
Brendan Alvey, U. S. Dept. of Justice, Washington, D. C., for plaintiff.
Louis M. Natali, Jr., Philadephia, Pa., Charles A. Glackin, Harrisburg, Pa., for defendant.
*1386 OPINION AND ORDER
BECHTLE, District Judge.
Following a series of steps, beginning May 3, 1973, having to do with the interest of the Government in securing the testimony of Daniel Cahalane, contemnor herein, and the subsequent grant of immunity by the United States District Court for the Eastern District of Pennsylvania under 18 U.S.C. § 6002, on July 13, 1973, 361 F. Supp. 226, the contemnor was eventually taken before the United States District Court on July 26, 1973, following his refusal to testify before the Grand Jury, from which appearance the District Court entered its Order finding the contemnor in civil contempt and directing that he be imprisoned for the life of the Grand Jury or until he should comply by testifying. That contempt Order was appealed to the United States Court of Appeals for the Third Circuit and, after argument, that Court issued its Judgment Order on September 5, 1973, which affirmed the Order of contempt of the lower court, admitted contemnor to bail in the amount of $15,000 and directed that the proceedings be remanded to the District Court so that contemnor's affidavit and the Government's counter-affidavit could be filed in that order within a ten-day period which affidavits were expected to contain the extent to which electronic surveillance of contemnor's counsel may have taken place so that the District Court could thereafter determine what further course of action was appropriate in keeping with the guidelines established by the standards enunciated in the cases of In re Horn, 458 F.2d 468, 470-471 (3rd Cir. 1972) and In re Grumbles, 453 F.2d 119, 122 (3rd Cir. 1971). On September 10, 1973, contemnor filed his affidavit taken by Charles A. Glackin, Esq., and thereafter, on Monday, September 17, 1973, the United States filed its counter-affidavit. In anticipation of the Circuit Court's requirement that this Court make its determination on or before September 20, 1973, this Court furnished notice to all parties concerned on September 14, 1973, that the Court was to convene a conference in open court at which the contemnor was expected to be present, wherein the contents of the affidavits would be examined by the Court and counsel could be heard at that time in respect to their relative positions, which the Court expected to use as a guide in fulfilling its role by September 20, 1973.
Despite the fact that Charles A. Glackin, Esq. ("Glackin") was contemnor's attorney and contemnor's sole affidavit witness and had received a copy of the Judgment Order of the Circuit Court setting forth a strict fifteen-day requirement for this Court to dispose of this important matter, he apparently decided to take his vacation in Vermont and, thereby, put himself beyond the reach of the Court's notice; which was given in the customary way, as well as by telegram (n.t. 1-7).[1] Because of some very general and miscellaneous references by the contemnor's witness, Charles Glackin, in his affidavit to the underlying factual allegations of electronic surveillance of counsel, the Court felt that it was necessary, despite the inconvenience placed upon it because of Mr. Glackin's absence on vacation, to confer at length with contemnor and his counsel, Louis M. Natali, Jr., Esq. ("Natali") in order establish with as much precision as was possible the particulars in respect to the claimed improper electronic surveillance. The record of that conference in open court on September 18, 1973, has been transcribed and is part of the record in this case. The Court then ordered the contemnor to furnish a supplemental affidavit with the following information: (n.t. 49)
". . . the contemnor should file with the Court a supplemental affidavit that will support with precision the dates, times, places and numbers that were called, that the contemnor contends contain attorney-client communications between Mr. Cahalane and either *1387 Mr. Glackin or Mr. Natali, but presumably no other attorney because on this record, he was not represented by any other attorney.
"THE COURT: And the Court is expecting the contemnor to supplement its affidavit in regard to those numbers in respect to any claimed conversations in which Mr. Cahalane was not a party, but which he contends are nevertheless involved in his right under the circumstances I mentioned, to counsel.
"The Court wants a separate supplement indicating the dates, the numbers called to, and the numbers called from in which any such conversation took place together with, in regard to those calls, a summary or a statement as to why that touches upon the attorney-client relationship."
On September 25, 1973, which was then the time permitted by the Court for the contemnor to file this supplemental affidavit, it filed its "reply affidavit."
Parenthetically, the reason why the Court specified in its Order at the last paragraph that it sought sufficient detail, including a summary of the subject matter of any calls touching upon the attorney-client relationship, was to aid it, hopefully without having to convene an additional hearing, in evaluating the affidavits and, if necessary, a transcript of the electronic surveillance between June 5 and June 20, 1972, of the Annie Mitchell telephone. Contrary to the Court's Order, the reply affidavit, in respect to the Mary Kennedy calls, was very vague and miscellaneous in nature and not responsive to the Court's Order. The particular paragraph offered in the contemnor's affidavit in this respect is on page 2 and reads as follows:
"Mr. Glackin has no available records of his telephone calls to Mary Kennedy or the Irish Northern Aid Committee. However he believes that most of these calls, beginning in June of 1972, were local calls made while he was in New York. These calls were generally initiated from Mr. O'Dwyer's office telephone, 212-BO-9-3939." (Emphasis added.)
The notes of testimony of the proceeding on September 18, 1973, at pages 15 to 18, cover the subject of calls to this phone where Government electronic surveillance was admitted to have been made. Because of the completely opposite position taken by contemnor from the underlined portion of the reply affidavit set forth above and the following excerpt appearing on page 18 of the notes of testimony of the hearing of September 18, 1973, the Court found it necessary to conduct still an additional hearing in order to question Mr. Glackin under oath.
"THE COURT: Do you know where he called from when he called?
"MR. NATALI: Mr. Glackin did not initiate any of the calls which is the difficulty, Your Honor.
"THE COURT: Oh!
"MR. NATALI: Because had he initiated any of the calls, we could very clearly say these calls were made to a different phone.
"THE COURT: Any calls that went from this line to Mr. Glackin were calls initiated by someone else to Mr. Glackin?
"MR. NATALI: These calls were initiated by Mary Kennedy and we do not know, Your Honor, from what line they were initiated." (N.T. p. 18)
* * * * * *
Accordingly, the Court, on October 1, 1973, issued its Order requiring the parties and the counsel to be in Court on Thursday, October 4, 1973, at which time a hearing was held and at which time the Court attempted to secure more detailed information as to the contemnor's position on any calls that were made during the surveilled period of June 5-20, 1972. At that same hearing, the Government, in response to the Court's *1388 Order that it either withdraw, modify, or affirm its previous affidavit in light of the reply affidavit and the information disclosed at the hearing of September 18, 1973, affirmed its former affidavit to the effect that upon inquiry to the agencies of the United States authorized to conduct lawful electronic surveillance pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, that there had been no electronic surveillances occurring on premises known to have been owned, leased, or licensed by Charles A. Glackin, Esq., or Louis M. Natali, Esq., and that there have been no electronic surveillance directed against Charles A. Glackin, Esq., or Louis M. Natali, Esq., and that there have been no overhearings by electronic surveillance of conversations at any location to which either Charles A. Glackin, Esq., or Louis M. Natali, Esq., was a party; all such electronic surveillance referred to being legal or illegal.
At this juncture, therefore, there stood on the record before the Court the Government's affidavit that, in essence, indicated that it had conducted no legal or illegal electronic surveillance in respect to either of contemnor's attorneys. The contemnor's original affidavit and reply affidavit, together with the information furnished by contemnor and his counsel at the hearing of September 18, 1973, and the hearing of October 4, 1973, do not sufficiently challenge that affidavit under the standards enunciated in In re Horn or In re Grumbles, supra, and, accordingly, the representation is accepted by the Court for the truth of its averments on the issue covered by the affidavit.
The Court is, nevertheless, faced with the admission by the Government that it did conduct electronic surveillance under a Title III wiretap order authorized by the United States District Court in the Southern District of New York on the telephone of Annie Mitchell for the period of time between June 5 and June 20, 1972 (n.t. 12). In the contemnor's memorandum in support of its reply affidavit filed September 25, 1973, the contemnor requested the Court to examine the transcript of that surveillance in camera. Although the Government's affidavit, as affirmed, states that it has not overheard either attorney Glackin or Natali in any surveillance, the Court believes that inasmuch as there does exist an actual surveillance over which contemnor claims these persons spoke that the best evidence of whether or not the Government's affidavit should be dispositive of the matter would be to grant the contemnor's request and examine the transcript, which it stated it would do at the hearing on October 4, 1973.
The Government represented on the record that the transcript delivered over to the Court was the transcript resulting from the electronic surveillance in question and that it was prepared in accordance with the procedures authorized to be used by the agency having been given the authority to conduct the wiretap.
Between the date of that hearing and the date of this Opinion, the Court has read the transcript in its entirety which consisted of 357 pages. As a result of that reading, the Court has concluded that neither Mr. Glackin nor Mr. Natali made any calls to or received any calls from that telephone during the period June 5 to 20, 1972; neither contemnor, Mr. Glackin, nor Mr. Natali were referred to or mentioned by any person calling to or from the telephones overheard during that surveillance on the basis of the identities furnished by contemnor's original affidavit 5(p); no matter respecting the representation of Mr. Cahalane was discussed by any party who spoke to or from the line over which the surveillance was conducted and no other conversation took place on said line that suggested to the Court that the right of the contemnor to the privacy of conversations or communications with his counsel was breached or in any manner intruded upon.
Accordingly, by reason of the acceptance of this Court of the Government's affidavit on all matters raised by contemnor *1389 except the electronic surveillance of June 5 to June 20, 1972, on the telephone of Annie Mitchell and by reason of this Court's finding that a review of the transcript of that surveillance does not disclose any unlawful intrusion upon Mr. Cahalane's rights to be represented by counsel within the full meaning of the constitutional guarantee of the Sixth Amendment, it is the Court's holding that such contention cannot be deemed to be a defense to the present order of contempt that was heretofore entered by this Court on July 26, 1973, and affirmed by the Circuit Court of Appeals for the Third Circuit on September 5, 1973.
FINDINGS OF FACT and CONCLUSIONS OF LAW
Findings of Fact
1. Charles A. Glackin and Louis M. Natali have been legal counsel to Daniel Cahalane since April 15, 1972 and May 1, 1973, respectively, to date.
2. The Government has not engaged in any legal or illegal electronic surveillance of Charles A. Glackin or Louis M. Natali, or on premises owned, leased or licensed by Charles A. Glackin or Louis M. Natali.
3. There have been no overhearings of any conversations at any location to which either Charles A. Glackin or Louis M. Natali was a party.
4. The Government has engaged in legal electronic surveillance pursuant to Title 3 of the Omnibus Crime Control and Safe Streets Act of 1968 on the telephone of Annie J. Mitchell, 2544 Valentine Avenue, Bronx, New York between June 5, 1972 and June 20, 1972, inclusive.
5. There have been no overhearings during the legal electronic surveillance of the phone of Annie J. Mitchell, 2544 Valentine Avenue, Bronx, New York during the period June 5, 1972 to June 20, 1972, inclusive, of any conversations to which Charles A. Glackin, Louis M. Natali or Daniel Cahalane, or either of them was a party; or in respect to which any matter touching upon Daniel Cahalane's right to legal counsel was the subject.
6. If the Court should find that Daniel Cahalane was without just cause to refuse to answer questions before the Federal Grand Jury and the Court on July 26, 1973, he would, if requested again, continue in such refusal.
Conclusions of Law
1. Daniel Cahalane was without just cause to refuse to answer questions before the Federal Grand Jury and the Court on July 26, 1973.
2. An Appeal from the Order entered herewith would be frivolous and taken for delay.
ORDER
And now, to wit, this 9th day of October, 1973, on the basis of the Court's Findings of Fact and Conclusions of Law filed simultaneously herewith, the Court reaffirms its Order of contempt entered July 26, 1973 on the ground that the contemnor, Daniel Cahalane, was without just cause to refuse to answer questions before the Federal Grand Jury and the Court on July 26, 1973 and he continues to remain in such contempt.
NOTES
[1] All references to notes of testimony are in respect to the hearing on September 18, 1973.
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364 F. Supp. 562 (1973)
M. Dale NEWTON, Plaintiff,
v.
Robert VORIS, Defendant.
Civ. No. 72-231.
United States District Court, D. Oregon.
July 2, 1973.
Ben Lombard, Jr., Hampton & Lombard, Ashland, Or., for plaintiff.
Gerald J. Scannell, Jr., Ashland, Or., for defendant.
OPINION
BURNS, District Judge:
Plaintiff brought this action for infringement of his copyright on a series of maps of the City of Ashland, Oregon. This Court has original and exclusive jurisdiction, pursuant to 28 U.S.C. § 1338(a) (1970). Maps are a specified class of material recognized as subject to copyright, 17 U.S.C. § 5(f) (1970); see Maps or Charts as Protected by Copyright Under Federal Copyright Act, 4 A.L.R. Fed. 466 (1970); cf. Copyright Fair Use Doctrine, 23 A.L.R. 3d 139, 274-281 (1969). Where there has been registration pursuant to 17 U.S.C. §§ 132 (1970), then a holder of the copyright may maintain proceedings for infringement, pursuant to 17 U.S.C. §§ 101-116 (1970).
The parties tried the case on March 7th and 8th, 1973, before the Court in Medford session. After closing argument, the Court rendered an oral opinion on some of the issues before it. The Court made three findings of fact: (1) the two maps of Ashland, which the Defendant had printed and then circulated (Plaintiff's Exhibit Nos. 6 and 7), are "substantially similar" to maps drafted by the Plaintiff; (2) the "source map" for the Defendant's maps was either, (a) the map of Ashland prepared by the Plaintiff in 1968 (Plaintiff's Exhibit No. 2), and recorded on the Register of Copyright under Registration No. F 49401 on August 15, 1969 (Plaintiff's Exhibit No. 1), or, (b) the modified, reissue of the 1968 map prepared by the Plaintiff on the order of Red Arrow Realty (Plaintiff's Exhibit No. 3); and (3) the Defendant had published and circulated 5,000 copies of his maps. The Court concluded that the Plaintiff's registration of the 1968 map complied with the statutory requirements, 17 U.S.C. §§ 1-32 (1970).
In his testimony the Plaintiff conceded an error in the date, 1969, placed within his logotype indicating the Plaintiff's claim for copyright on the *563 Red Arrow Realty map. The map was ordered and printed in the autumn of 1969, but the map was only a modified reprint of the 1968 map. The Plaintiff did not attempt to extend the term of his copyright, but used the later date to reflect the date of printing. The Plaintiff incorporated his continuing revision of the 1968 map into a Highway and Street Guide for Jackson County (Plaintiff's Exhibit No. 5), recorded on the Register of Copyright under Register No. F 50837 in 1970 (Plaintiff's Exhibit No. 4).
In its oral opinion, the Court concluded that the Plaintiff had complied with the statutory requirements for a copyright to the 1968 map. The Court reserved the question of whether the error in date printed within the Plaintiff's notice of copyright, his logotype, on the Red Arrow Realty map was sufficient to preclude the Plaintiff from claiming the protection of the copyright obtained by the registration under No. F 49401 in 1968 (Plaintiff's Exhibit No. 1).
Based upon the uncontradicted testimony of the Plaintiff, the Court finds that the Plaintiff's error in dating the logotype was innocent. Such an erroneous but innocent statement, as to the original publication date, would not invalidate the notice of copyright under 17 U.S.C. § 105 (1970), Key West Hand Print Fabrics, Inc. v. Serbin, Inc., 269 F. Supp. 605, 609-611 (S.D.Fla.1965), aff'd, 381 F.2d 735 (5th Cir. 1965) (per curiam). The Court concludes that Plaintiff's Red Arrow Realty map is entitled to protection against infringement of copyright under the 1968 registration, pursuant to 17 U.S.C. §§ 101, 104 (1970).
The Plaintiff printed a second map for Red Arrow Realty (Defendant's Exhibit No. 40). The second map is printed on both sides. On one side there is a reprint of the prior maps of Ashland. On the reverse side there is a map of the Phoenix and Talent area of Southern Oregon. The Plaintiff placed his logotype with the date 1969 on the reverse side. He filed his application for Registration of a Claim to Copyright under Registration No. F 54855 (Defendant's Exhibit No. 30) on November 1, 1972. The application states that the map of Ashland is a reprint of prior material but that the Plaintiff sought to copyright the reverse side, the new material being a revised map of the Phoenix and Talent area.
Defendant argues that the Plaintiff's delay, in recording this claim for copyright until after the initiation of this action, precluded the Plaintiff from maintaining this action for infringement of copyright pursuant to 17 U.S.C. § 13 (1970). In the oral opinion at the close of the trial the Court made a finding of fact that the "source map" was either the 1968 map of Ashland (Plaintiff's Exhibit No. 2), or the 1969 map of Ashland (Plaintiff's Exhibit No. 3). This finding precludes consideration of the second Red Arrow Realty map (Defendant's Exhibit No. 40) as a source map.
Even if there had been a delay in the registration of Plaintiff's 1968 map, such a delay would not bar Plaintiff from bringing such an action for infringement of copyright, Frederick Chusid & Co. v. Marshall, 326 F. Supp. 1043, 1063-1064 (S.D.N.Y.1971), citing Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 59 S. Ct. 397, 83 L. Ed. 470 (1939).
The ultimate question in this case is whether the map printed by the Plaintiff in 1968 (Plaintiff's Exhibit No. 2), and recorded in the Registration of Copyright under No. F 49401 (Plaintiff's Exhibit No. 1), is "copyrightable." In its oral opinion, the Court reserved expressly this issue. The Court characterized it as either a mixed question of both fact and law or as comprising two questions.
Under either analysis, the Ninth Circuit has established the standard to be applied by this Court.
"Maps are subject to copyright protection under 17 U.S.C. § 5(f) . . . . The fact that the source *564 of the material for the map is in the public domain does not void the copyright, but is subject to the requirement of originality and creativity. In such case copyright protection is limited to the new and original contribution of the map maker. See Axelbank v. Rony, 277 F.2d 314 (9th Cir. 1960). `To be copyrightable a map must be the result of some original work.' Amsterdam v. Triangle Publications, 189 F.2d 104 (3d Cir. 1951). See also Alfred Bell & Company v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951).
"There is a strnog (sic.) inference in the above quoted testimony that some of the material in the map was obtained by Blackburn's observations on the terrain, which resulted in his correction in the map of errors appearing in some of the maps which were in the public domain.
"In our view the District Court did not err in finding Blackburn's map copyrightable. Since the District Court's conclusions that the map contained sufficient original and creative work to be copyrightable, and that Blackburn's copyright was valid, find sufficient support in the record, we need not concern ourselves with appellant's contention that the District Court erred when he stated that the map was copyrightable because the information on the map was copied from three or more sources in the public domain." County of Ventura v. Blackburn, 362 F.2d 515, 520 (9th Cir. 1966).
This Court must determine whether the Plaintiff met the "requirement of originality and creativity" such that his map "contained sufficient original and creative work to be copyrightable, . . ." Id.
In his testimony, the Plaintiff described the process of map making. He explained that his maps become obsolete within approximately two years because of the rate of development in Southern Oregon. From the initial attempt to prepare a map of Ashland, the Plaintiff has combined personal research in the records of public authorities with personal investigations as to the actual location of new buildings, streets and suburban developments. The Plaintiff has experimented with selective numbering of streets, varying typefaces and the means of representing the streets, in order to improve the legibility and clarity of his maps. The process of map making has required a constant effort to revise the information in order that the Plaintiff might produce current maps. This process requires, and has received, the individual efforts of the Plaintiff to produce original work and the exercise of his creative faculties.
I find and hold that the 1968 map was "copyrightable" and registered under a valid claim of copyright. The map reflects both the original investigations of the Plaintiff and the expression of his creative faculties in drafting an original representation of the streets in the area of the City of Ashland. I therefore find and hold that Defendant infringed Plaintiff's valid copyright.
In April, after the close of the trial and the oral opinion, the Defendant moved to reopen the case and to permit the submission of new evidence bearing on the issue of originality. After oral argument on April 30, 1973, the Court took the matter under advisement. In reaching the conclusion stated in this opinion, the Court has also considered the additional evidence tendered by the Defendant with his motion. To that extent the Defendant's motion has been granted.
The Court will reserve the two outstanding questions until the next calendar in Medford. At that time the Court will consider any written submissions or oral argument, and, if necessary, any additional testimony as to (1) what damages are to be awarded to Plaintiff, pursuant to 17 U.S.C. § 101(b) (1970), and (2) whether Plaintiff is entitled to the award of attorney's fees as part of his costs, pursuant to 17 U.S.C. § 116 (1970), and, if so, in what amount.
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127 Cal. Rptr. 2d 888 (2002)
104 Cal. App. 4th 256
The PEOPLE, Plaintiff and Respondent,
v.
Joseph Salvatore MICELI, Defendant and Appellant.
No. C036703.
Court of Appeal, Third District.
December 11, 2002.
As Modified on Denial of Rehearing January 7, 2003.
Review Denied March 5, 2003.
*889 Dale Dombkowski, by appointment of the Court of Appeal, San Francisco, for Defendant and Appellant.
*890 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, John A. O'Sullivan, Supervising Deputy Attorney General, Janine R. Busch, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
SIMS, Acting P.J.
A jury convicted defendant Joseph Salvatore Miceli of assault with a semiautomatic firearm upon Matthew Linton on July 4, 1999 (count 2; Pen.Code, § 245, subd. (b) [all further undesignated section references are to the Penal Code]), assault with a firearm upon Linton on July 4, 1999 (count 3; § 245, subd. (a)(2)), drawing or exhibiting a firearm in the presence of Linton, Janice Kohrdt, and Victor Padgett on July 4, 1999 (counts 8-10; § 417, subd. (a)(2)), and failure to process a firearms transaction through a licensed firearms dealer or law enforcement agency (count 11; § 12072, subd. (d)). As to counts 2 and 3, the jury found defendant personally used the firearm. (§ 12022.5, subd. (a).) However, the jury acquitted defendant of assault by means of force likely to produce great bodily injury upon Brenda Miceli on July 2, 1999 (count 1; § 245, subd. (a)(1)), assault with a deadly weapon (a van) and by means of force likely to produce great bodily injury upon Linton on July 4, 1999 (count 4; § 245, subd. (a)(1)), and making terrorist threats against Linton, Kohrdt, and Padgett on July 4, 1999 (counts 5-7; § 422).
Granted five years' probation (including one year in county jail), defendant contends: (1) His conviction on count 3 must be stricken because assault with a firearm is a lesser included offense of assault with a semiautomatic firearm (count 2).(2) The trial court erred prejudicially by refusing to instruct on the defense of necessity. (3) Defendant's conviction on count 2 must be reversed because there was insufficient evidence that his firearm was operable as a semiautomatic weapon. (4) The trial court erroneously failed to instruct the jury sua sponte on the lesser included offense of assault with a deadly weapon with respect to counts 2 and 3.(5) Defendant's convictions on counts 2 and 3 must be reversed because the jury instructions were reasonably likely to have misled the jury into believing that an assault with a firearm may be based on pointing an unloaded gun. (6) The jury instructions were also reasonably likely to have misled the jury on the defense burden of proving selfdefense. (7) The trial court erred prejudicially by failing to instruct sua sponte, with respect to all theories of assault, that defendant's burden was merely to raise a reasonable doubt whether he acted in self-defense. (8) The trial court erred prejudicially by excluding the testimony of Rocklin Police Captain William Hertoghe. (9) The cumulative effect of the trial court's errors compels reversal of defendant's assault and brandishing convictions.
In the published portion of our opinion, we reject contentions (2), (3), and (4). Thus, we conclude the trial court properly refused to instruct on the defense of necessity; substantial evidence supports defendant's conviction for assault with a semiautomatic firearm; and the trial court properly declined to instruct on the lesser included offense of assault with a deadly weapon.
In an unpublished portion of the opinion, we consider defendant's other contentions of prejudicial error. We shall strike defendant's conviction on count 3, because it is a lesser included offense of the crime of which defendant was convicted in count 2. In all other respects, we find no prejudicial error and therefore we shall affirm the judgment.
FACTS
Given the divergent testimony on almost every detail, the main witnesses' credibility *891 problems, and the split verdicts, we cannot be sure exactly what version of events the jury credited. Thus, we shall not try to reconcile all discrepancies in the evidence. It is clear, however, that regardless of defendant's claimed motives or others' alleged misconduct, the jury found defendant acted without legal justification when he pistol-whipped Matthew Linton on Linton's property in front of his guests, Janice Kohrdt and Victor Padgett.
Background
In July 1999, defendant and Brenda Miceli lived on Westwood Drive in Rocklin with their two children.[1] Defendant owned a computer business; a Rocklin police sergeant was a partner at one time and many officers were customers. Defendant had no criminal record.
Though defendant and Brenda never married, she had taken his name and they had been together for over 10 years. However, they had also separated several times.
In 1996 Brenda began to use methamphetamine and came to the attention of law enforcement. She was subsequently found to suffer from bipolar disorder. Prescribed medications brought it under control.
After this episode, according to defendant, police officers he knew suggested he get training in police work. He took peace officer standards training (POST) courses and did ride-alongs. He had previously acquired a .45-caliber Clock semiautomatic handgun in a transaction that did not go through a licensed firearms dealer or law enforcement agency.
Matthew Linton lived on defendant's block. He and defendant were acquainted before July 4, 1999. According to Linton, their acquaintance was casual but untroubled. According to defendant, however, he rebuffed Linton after learning of Linton's bad character.[2] Defendant claimed he had often seen "low-life drug addict people" going to and from Linton's house, and once saw drug paraphernalia on the premises. He had talked to Rocklin Police Captain Hertoghe about the activities at Linton's house.
According to defendant, Brenda's condition worsened beginning in May 1999. He suspected she had reverted to methamphetamine and Linton was her supplier. (Brenda testified that defendant was right.[3] According to her, Linton would put envelopes containing drugs under the tires of defendant's truck in his driveway. Neighbors apparently saw Linton do so.)
Dr. Lowell Sparks, Jr., and his wife Suzanne, a nurse (friends of and witnesses *892 for defendant), advised him the interaction of methamphetamine with Brenda's prescribed medications could endanger her. According to defendant, Dr. Sparks warned she could have a stroke or heart attack; however, Dr. Sparks recalled saying only that methamphetamine could aggravate her bipolar disorder.
Defendant testified that he called Captain Hertoghe about his fears for Brenda. Hertoghe suggested defendant contact Sergeant Eaton, the head of the Rocklin Police Department's drug enforcement program. Defendant left a message for Eaton, but never got a response.
The events of July 2-3, 1999
Brenda told the police that during a quarrel with defendant at home on July 2, he choked her or grabbed her arm hard enough to bruise it. (However, the first officer to interview her did not believe this charge and left it out of his report.) She also said defendant had physically abused her before.[4]
After the quarrel, Brenda ran out of the house. Linton was driving by in his truck. He picked her up and took her to a friend's house, then to a motel, and finally to his home. Brenda testified she ingested methamphetamine supplied by Linton up until the evening of July 4. Linton testified he did not know she was using illegal drugs at this time.
According to defendant, on July 3 his daughters told him that Brenda had asked them to keep her relationship with Linton, including his furnishing of drugs to her, secret from defendant. In disgust, he packed a suitcase with her clothes and put it out on the porch.
Shortly afterward, according to defendant and Brenda, she called his cell phone from the motel on a pay phone, asking him to bring her home; according to Brenda, Linton cut off the call before she could say where she was. Linton testified she was asleep when he went back to the motel on July 3 and he spent no time with her that day.
Defendant testified that he was visiting his friends Marcie and Nick when he got this call, but then returned home. He knocked on Linton's door, but no one answered. He did not report Brenda's situation to the police because he believed Nick had done so. He and his daughters went back to Marcie and Nick's house to spend the night.
The events of July 4, 1999
On the morning of July 4, Linton returned to his house. According to him, he was alone; according to Brenda, she was with him.
Defendant returned home twice that day to pick up supplies for an office holiday party. According to defendant and Marcie, who accompanied him, the second time he found the house broken into and property stolen. After loading his truck with valuables and nailing the garage door shut, he left again. He had already put his gun into the truck.
In the late afternoon or early evening, Linton's friends Victor Padgett and Janice Kohrdt dropped in on him. According to their testimony, they were briefly visiting the Sacramento area, where they had once *893 lived, before heading home to Reno. They did not come to obtain or use drugs, and neither was under the influence of any drug during the visit. (However, Padgett admitted occasionally using methamphetamine.) They saw Brenda, whom they did not know, doing laundry in Linton's house; they were told she was not getting along with her husband. She soon left the room. (According to Linton, she had come over just a few minutes before and did not go inside.)
Brenda testified that after Padgett and Kohrdt arrived, they obtained methamphetamine from Linton. She saw them inject it before she went outside to smoke.
Sometime before 7:00 p.m., Linton, Padgett, and Kohrdt came out of the house and went to Linton's truck parked in the driveway so that he could give the others his business cards and they could write down their new address for him. Brenda was in the backyard, smoking.
According to defendant, after his second trip home he went to the office picnic with the children at Marcie and Nick's house. Around 7:00 p.m. he went back to his house to get jackets for the girls. They called and asked if their mother had come home. Worried about Brenda and fearing she was in trouble, he told the girls he would look for her.
Defendant testified that when he looked across the street to Linton's house and saw Linton, Padgett, and Kohrdt outside, he thought "it looked like the Charles Manson family ... over there." Padgett was "dressed like ayou know, spikes and black and looked like Charles Manson to me," while Kohrdt was a "rowdy biker looking [sic] ... just the low class real, you know, [`]just as soon stick you with the knife than pay the ten bucks she owes you[`] kind of a person."
Remembering his POST lessons about having a weapon ready when going to a drug house, defendant stuck his semiautomatic under his shirt before crossing the street. He testified he did not load the gun, but carried a clip in his pocket: he did not want to risk harming anyone, knowing "there was kids in the park and everythingf,]" but he "needed to go over there and ask [Linton], hey, where's Brenda, is she alive, is she okay[?]" without getting shot or knifed. (However, after his arrest he had told the police he put a loaded magazine in the gun, though he did not chamber a round.)
Linton, Kohrdt, and Padgett testified that as they stood beside Linton's truck, defendant came onto Linton's lawn displaying a gun. Marching up to Linton, defendant asked him where defendant's wife was.[5] Linton said he did not know. Defendant hit him in the face and in his bare chest with the gun. Defendant threatened to shoot him; when Kohrdt and Padgett tried to intervene, defendant threatened to shoot them, too. Linton lost his footing and fell; defendant kicked him several times. Defendant continued to talk as the incident went on. According to Padgett and Kohrdt, defendant said his wife was on medication and should not be drinking; defendant also complained that he should not have to be dealing with this at his age. Linton remembered defendant yelling out his age. The victims did not remember him mentioning drugs.
At some point, the victims began to wonder whether defendant's gun was loaded, as he had not fired it and they could not see a clip in it. Kohrdt tried to wrestle it *894 away from defendant, and Padgett tried to grab defendant.
Several persons in a park across the street saw and heard the altercation. Julie Watts, pushing her toddlers in swings less than 20 yards from the scene, heard voices that sounded scared; turning to look, she saw a woman screaming "don't kill him" as one man pummeled another with a gun. She heard the first man scream that he would kill the other because "you're giving my wife crank."
Adam Nutt and Cameron Billings, teenaged boys playing basketball in the park farther from the scene than Watts, saw a man holding a gun and menacing several other people; a woman was yelling at him to stop. Billings saw the man holding the gun make contact with the victim's face; the others were trying to run from the first man, and no one but him had a weapon. After watching for a short time, the boys ran to a nearby house to call 911.
Thomas Head and Cassandra Elliot, who lived near the park, saw the incident from a further distance. They heard a man yelling and saw him chase the others. Head saw a gun in the first man's hand and heard him say "I'll kill you, you son of a bitch." Nutt and Billings arrived at Head's door as he went inside and called 911.
Hearing that someone had called 911, defendant ran. Soon after, he drove by in a van, veered toward Linton's truck, where the victims were still standing, and pointed something (probably a gun) out the window at them. He then drove off.
Rocklin Police Officer Knox, responding to the 911 calls around 7:45 p.m., found Linton, who looked scraped and battered; he did not seem under the influence of methamphetamine.[6] Officer Knox then found Brenda hiding in the neighbor's back yard, also apparently not under the influence of any substance. She said she had been visiting Linton to get away from defendant, with whom she had quarreled; hearing a disturbance and defendant's demand to know where she was, she hid.
After defendant's arrest a few hours later, he first said he had not been home all day, then demanded an attorney before making any statement, then changed his mind and gave a statement without an attorney. He told Officer Knox he had been drinking during the day, but was not drunk. In the evening, his younger daughter told him she had walked in on Brenda and Linton "fooling around." Defendant was so enraged he grabbed his semiautomatic, with a full clip of ammunition in it, "for protection" against Linton, who was a "drug dealer," and walked over to Linton's house. (He did not mention concern for Brenda's welfare or information that Linton was giving her "packages" as a reason for going over to Linton's house.) He demanded to know where Brenda was and why Linton had broken into defendant's house. He said he had "kept [his] shit together and ... didn't shoot him"; he also denied hitting him. After Officer Knox told him of Linton's injuries and the presence of eyewitnesses, defendant said: "[0]kay, maybe I stomped on him a little bit but that's it, I never hit him with the gun." He denied trying to hit anyone with his van.
According to Charles Boyd, a dissatisfied customer of defendant's business, defendant said on July 17, 1999, that he had not been able to order parts for Boyd's computer because he was in jail. He claimed he had confronted a "drug dealer" *895 who was giving his wife drugs and sleeping with her; after using a gun to intimidate him, defendant knocked him to the ground.
At trial, defendant denied striking Linton or threatening any of the alleged victims. He claimed that after he stepped onto Linton's property, intending only to talk to him, someone said, "Here he comes." Kohrdt and Padgett charged him; Kohrdt had her hand in her purse as if reaching for something, and Padgett had his hand on his buck knife.[7] Defendant drew his (unloaded) gun and ordered them to "freeze." He then approached Linton, who lunged for the truck door, lost his footing, fell to the ground, and grabbed defendant's legs; defendant tried to kick him off. Once defendant had the situation under control, he asked Linton where Brenda was; Linton said she was at the Best Western in Roseville. Defendant then told Linton it was fine if he and Brenda wanted to be together, but he should not give her drugs because it could kill her. Having delivered his message, he got in his van and drove away.
DISCUSSION
I[**]
II
Defendant contends the trial court erred prejudicially by refusing his request to instruct the jury with CALJIC No. 4.43 (defense of necessity).[8] Counsel argued below that defendant had to act as he did to stop Linton from imminently endangering Brenda's life by giving her methamphetamine. Defendant renews that argument on appeal. We conclude the trial court did not err because substantial evidence did not support defendant's claim of necessity.
A defendant is entitled to instruction on request on any defense for which substantial evidence exists. (People v. Flannel (1979) 25 Cal. 3d 668, 684-685, 160 Cal. Rptr. 84, 603 P.2d 1 [limited on unrelated grounds by statute as described in In re Christian S. (1994) 7 Cal. 4th 768, 777-778, 30 Cal. Rptr. 2d 33, 872 P.2d 574].) However, the trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense. (In re Christian S., supra, 7 Cal.4th at p. 783, 30 Cal. Rptr. 2d 33, 872 P.2d 574.) A defendant raising the defense of necessity has the burden of proving that he violated the law "(1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which *896 he did not substantially contribute to the emergency." (People v. Pepper (1996) 41 Cal. App. 4th 1029, 1035, 48 Cal. Rptr. 2d 877.) Defendant failed to show substantial evidence in support of the second and fifth elements; thus, he was not entitled to instruction on necessity.
First, defendant did not show he had no adequate alternative to breaking the law. The normal and appropriate response to a perceived criminal emergency is to call the police. Defendant failed to show that that response would not have sufficed here. (See People v. Kearns (1997) 55 Cal. App. 4th 1128, 1135, 64 Cal. Rptr. 2d 654.)
The failure to report an emergency to the proper authorities does not bar a necessity defense if the evidence shows "a history of futile complaints which makes any result from such complaints illusory." (People v. Lovercamp (1974) 43 Cal. App. 3d 823, 831, 118 Cal. Rptr. 110.) But defendant did not make that showing. He claimed he had repeatedly reported to the police his concerns about Linton's drug-dealing and Brenda's reversion to methamphetamine, without result. But he did not claim he had ever reported to the police that Brenda was missing, in Linton's company, and at risk of her life from methamphetamine supplied by himthe circumstances constituting the alleged emergency on July 4, 1999. The evidence did not show that that complaint, if made, would have been futile, or that defendant had reasonable grounds to think it would have been.
Second, even assuming defendant had a good faith belief in the necessity for his acts, he failed to show this belief was objectively reasonable. As a matter of public policy, self-help by lawbreaking and violence cannot be countenanced where the alleged danger is merely speculative and the lawbreaker has made no attempt to enlist law enforcement on his side. "[T]he defense of necessity is inappropriate where it would encourage rather than deter violence. Violence justified in the name of preempting some future, necessarily speculative threat to life is the greater, not the lesser evil." (People v. McKinney (1986) 187 Cal. App. 3d 583, 587, 231 Cal. Rptr. 729.)[9]
Because substantial evidence did not support the defense of necessity, the trial court correctly refused the requested instruction. (See In re Christian S., supra, 7 Cal.4th at p. 783, 30 Cal. Rptr. 2d 33, 872 P.2d 574; People v. Rodriguez (1997) 53 Cal. App. 4th 1250, 1270, 62 Cal. Rptr. 2d 345.)
III
Defendant contends insufficient evidence supports his conviction for assault with a semiautomatic firearm (count 3) because his firearm, not having been loaded with a clip, was not operable as a semiautomatic weapon. Defendant is mistaken for two reasons. First, substantial evidence showed defendant's firearm was loaded. Second, the offense of assault with a semiautomatic firearm does not require proof that the weapon was operable as a semiautomatic firearm (i.e., loaded); the crime may also be committed by using the weapon as a bludgeon, as defendant did.
"Any person who commits an assault upon the person of another with a semiautomatic *897 firearm shall be punished by imprisonment in the state prison for three, six, or nine years." (§ 245, subd. (b).) "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury. (People, v. Williams (2001) 26 Cal. 4th 779, 782, 111 Cal. Rptr. 2d 114, 29 P.3d 197 (Williams).)
Defendant asserts it is not an assault merely to point an unloaded gun in a threatening manner at someone. (See People v. Rodriguez (1999) 20 Cal. 4th 1, 11, fn. 3, 82 Cal. Rptr. 2d 413, 971 P.2d 618, (Rodriguez) [dicta]; People v. Fain (1983) 34 Cal. 3d 350, 357, fn. 6, 193 Cal. Rptr. 890, 667 P.2d 694, (Fain).) We need not decide the validity of this traditional rule, which Rodriguez declined to address. (Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3, 82 Cal. Rptr. 2d 413, 971 P.2d 618. But see People v. Lochtefeld (2000) 77 Cal. App. 4th 533, 542, fn. 10, 91 Cal. Rptr. 2d 778, (Lochtefeld) [calling the rule an "anachronism" and urging Supreme Court to reexamine and discard it].) Even if this rule is still good law it does not help defendant, because he did more than merely point an unloaded weapon.
First, despite defendant's view, sufficient evidence existed that his gun was loaded. Officer Knox testified that after his arrest defendant told the police he put a loaded magazine in the gun, though he did not chamber a round. The fact that he denied making that statement and told a contrary story at trial did not render Officer Knox's evidence incredible or insubstantial; nor did Officer Knox's failure to record defendant's statement. Nor did others' equivocal testimony that they were unsure whether the gun was loaded or that they could not see a clip in the gun (which, even if correct, did not rule out the possibility that the gun had a loaded magazine in it). Officer Knox's testimony showed a prior inconsistent statement by defendant which the jury could consider for its truth. (Evid.Code, § 1235; People v. Hawthorne (1992) 4 Cal. 4th 43, 55, fn. 4, 14 Cal. Rptr. 2d 133, 841 P.2d 118, cert. den. 510 U.S. 1013, 114 S. Ct. 605, 126 L. Ed. 2d 570, rehg. den. 510 U.S. 1159, 114 S. Ct. 1141, 127 L. Ed. 2d 451; see People v. Chavez (1980) 26 Cal. 3d 334, 353-360, 161 Cal. Rptr. 762, 605 P.2d 401; People v. Brown (1995) 35 Cal. App. 4th 1585, 1596-1597, 42 Cal. Rptr. 2d 155.) If the jury found it true, it was sufficient to prove defendant's gun was loaded. To point a loaded gun in a threatening manner at another (especially if accompanied by threats to shoot, as here) constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury. (§ 240; Williams, supra, 26 Cal.4th at p. 782, 111 Cal. Rptr. 2d 114, 29 P.3d 197; Lochtefeld, supra, 77 Cal.App.4th at pp. 541-542, 91 Cal. Rptr. 2d 778; People v. Mosqueda (1970) 5 Cal. App. 3d 540, 544-545, 85 Cal. Rptr. 346 (Mosqueda).)
Second, nothing in section 245, subdivision (b), or in any apposite case law, indicates that assault with a semiautomatic weapon requires proof the gun was operable as a semiautomatic at the time of the assault. A person may commit an assault under the statute by using the gun as a club or bludgeon, regardless of whether he could also have fired it in a semiautomatic manner at that moment. (See Rodriguez, supra, 20 Cal.4th at p. 11, 82 Cal. Rptr. 2d 413, 971 P.2d 618; Fain, supra, 34 Cal.3d at p. 357, fn. 6, 193 Cal. Rptr. 890, 667 P.2d 694; Lochtefeld, supra, 11 Cal.App.4th at p. 539, 91 Cal. Rptr. 2d 778; Mosqueda, supra, 5 Cal.App.3d at p. 544, 85 Cal. Rptr. 346.)
*898 "A firearm does not cease to be a firearm when it is unloaded or inoperable." (People v. Steele (1991) 235 Cal. App. 3d 788, 794, 286 Cal. Rptr. 887.) This applies to semiautomatic firearms as well as any other kind. When a clip is removed from a semiautomatic firearm, the firearm does not suddenly become a billy club, a stick, or a duck.
Furthermore, section 245, subdivision (b), does not say, "assault with a loaded semiautomatic firearm"it says simply, "assault ... with a semiautomatic firearm." By contrast, numerous provisions in the Penal Code plainly require that a firearm be loaded as an element of an offense or a prerequisite to a specific sentence. For example, section 12023, subdivision (a), provides: "Every person who carries a loaded firearm with the intent to commit a felony is guilty of armed criminal action." (Emphasis added.) . Section 12031 defines "carrying a loaded firearm" as a felony or misdemeanor under specified conditions. (§ 12031, subds.(a)(l), (a)(2); emphasis added.) And section 12035 defines "criminal storage of a firearm" as "keep[ing] any loaded firearm within any premises that are under [a person's] custody or control ... [if] he or she knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian and the child obtains access to the firearm and thereby causes" injury. (§ 12035, subds.(b)(l) [first degree, involving death or great bodily injury], (b)(2) [second degree, involving injury other than great bodily injury]; emphasis added.)
Thus the Legislature knows how to specify that.a firearm must be loaded in order for a criminal statute to apply. It did not so specify in section 245, subdivision (b). Consequently, when defendant used his unloaded automatic firearm as a bludgeon, he committed the offense of assault with a semiautomatic firearm.
Citing only a comment on federal sentencing guidelines, defendant surmises the Legislature prescribed a harsher punishment for assault with a semiautomatic firearm (§ 245, subd. (b) [three, six, or nine years]) than for assault with a firearm per se `(§ 245, subd. (a)(1) [two, three, or four years]) because firing a semiautomatic weapon poses a greater risk than firing a weapon which is not semiautomatic. Defendant concludes the Legislature therefore could not have intended section 245, subdivision (b), to apply where a semiautomatic firearm is used in some manner other than firing. We reject this speculation because: section 245, subdivision (b), does not reveal this purported legislative intent on its face and defendant cites nothing to show the California Legislature had that intent. Where a statute is plain on its face, we need not and may not indulge in judicial construction. (Beverly v. Anderson (1999) 76 Cal. App. 4th 480, 485, 90 Cal. Rptr. 2d 545.)
There was overwhelming evidence that defendant used his semiautomatic firearm as a club or bludgeon. Almost every percipient witness testified that he did so, and the jury clearly disbelieved his denial. Therefore he could properly have been convicted under section 245, subdivision (b), on that basis, as well as on the basis that his firearm was loaded.
Defendant contends he could not have been convicted of assault with a semiautomatic firearm for simply having pointed an unloaded firearm at others. Assuming this is true, it does not aid defendant's argument, which is that his conviction is not supported by substantial evidence. As we have recounted, abundant, reliable substantial evidence shows he pointed a loaded semiautomatic firearm at others and *899 that he used a semiautomatic firearm to pistol-whip others. Both of these events supply substantial evidence that he had committed the offense of assault with a semiautomatic firearm.
IV
Defendant contends his convictions on counts 2 and 3 must be reversed because the trial court failed to instruct the jury sua sponte as to those counts on the lesser included offense of "assault with a deadly weapon."[10] (§ 245, subd. (a)(1).) As to assault with a firearm (count 3), the contention is moot because we shall ultimately strike that conviction. As to assault with a semiautomatic firearm (count 2), we disagree with defendant.
A defendant is entitled to instruction on lesser included offenses, without a request or even over objection, if the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. (People v. Breverman (1998) 19 Cal. 4th 142, 154, 77 Cal. Rptr. 2d 870, 960 P.2d 1094.) A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater offense cannot be committed without committing the lesser. (Id. at p. 154, fn. 5, 77 Cal. Rptr. 2d 870, 960 P.2d 1094.)
Defendant asserts that assault with a deadly weapon is a lesser included offense of assault with a semiautomatic firearm because the latter offense cannot be committed without committing the former. (See People v. Aguilar (1997) 16 Cal. 4th 1023, 1028-1029, 68 Cal. Rptr. 2d 655, 945 P.2d 1204 (Aguilar) ["deadly weapon" under § 245, subd. (a)(1), is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce death or great bodily injury"; People v. Graham (1969) 71 Cal. 2d 303, 327, 78 Cal. Rptr. 217, 455 P.2d 153, disapproved on other grounds in People v. Ray (1975) 14 Cal. 3d 20, 32, 120 Cal. Rptr. 377, 533 P.2d 1017 [gun is inherently "deadly weapon" under § 245, subd. (a)(1) ].) Furthermore, the punishment for assault with a deadly weapon (a wobbler with a maximum felony sentence of four years) is less than that for assault with a semiautomatic firearm (a felony with a range of three, six, or nine years). Although defendant does not cite authority directly on point, we shall therefore assume for purposes of discussion that he is correct, and assault with a deadly weapon is a lesser included offense of assault with a semiautomatic firearm.
The trial court instructed on assault (§ 240) as a lesser included offense of assault with a semiautomatic firearm and assault with a firearm. However, the court did not instruct on assault with a deadly weapon as a lesser included offense of those crimes. We conclude the court did not err by failing to give this instruction because the jury could not have found defendant committed assault with a deadly weapon rather than assault with a semiautomatic firearm.
As we explained in part III above, a person may commit assault with a semiautomatic firearm by using it as a club or bludgeon, regardless of whether it is presently loaded or operable as a semiautomatic. (Therefore we reject defendant's contention that assault with a semiautomatic firearm must be supported by evidence that the firearm contained at least one bullet.) It was not disputed that defendant's *900 Glock firearm was a semiautomatic. If the jury found that defendant committed assault as to count 2, it necessarily found he did so with a semiautomatic firearm, whether by pointing a loaded firearm at the victim or by bludgeoning him with it.[11] Thus, assuming assault with a deadly weapon is a lesser included offense of assault with a semiautomatic weapon, the jury could not have found that defendant committed only the lesser offense.
Defendant relies on People v. Fain, supra, 34 Cal. 3d 350, 193 Cal. Rptr. 890, 667 P.2d 694, which held that the jury could have properly convicted the defendant of assault with a deadly weapon even if it believed his testimony that his gun was unloaded, based on the evidence that he used the gun as a club or bludgeon.[12] (Id. at pp. 353, 356-357 and fn. 6, 193 Cal. Rptr. 890, 667 P.2d 694.) But Fain did not consider the questions presented here: whether assault with a deadly weapon is a lesser included offense of assault with a semiautomatic firearm, and whether, if so, a jury could find that a defendant who used an unloaded semiautomatic firearm to bludgeon his victim had committed only the lesser offense. Needless to say, in Fain the defendant did not contend he should have been convicted of the greater offense of assault with a firearm. Thus Fain is inapposite. (Ginns v. Savage (1964) 61 Cal. 2d 520, 524, 39 Cal. Rptr. 377, 393 P.2d 689, fn. 2 ["Language used in any opinion is ... to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citations.]"].)
Because there was no evidence that defendant's offense on count 2 was less than that charged, the trial court did not err by failing to instruct on assault with a deadly weapon as to that count. (Breverman, supra, 19 Cal.4th at p. 154, 77 Cal. Rptr. 2d 870, 960 P.2d 1094.)
V-VII[***]
VIII
Finally, defendant contends the cumulative effect of the trial court's errors compels reversal of his assault and brandishing convictions. As we have found only two instances of error, and that error was harmless, we reject defendant's contention.
DISPOSITION
Defendant's conviction and sentence on count 3 are stricken. The trial court shall prepare an amended abstract of judgment showing the same and shall forward a certified copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: NICHOLSON and ROBIE, JJ.
NOTES
[*] Pursuant to rules 976(b) and 976.1 of the California Rules of Court, this opinion shall be published with the exception of parts I, V, VI, and VII of the DISCUSSION.
[1] To avoid any possible confusion and intending no disrespect, we shall refer to Brenda Miceli by her first name.
[2] At the time of trial, Linton faced criminal prosecution on three counts. He was charged with lewd and lascivious conduct with a minor and providing alcohol and illegal substances to two minors before July 4, 1999; he was also charged with raping Brenda after that date. At an Evidence Code section 402 hearing in limine, Linton invoked the Fifth Amendment to the United States Constitution when questioned about sexual relations with Brenda, use of illegal drugs, and lewd acts with children. Before Linton testified at trial, the trial court informed the jury that Linton had invoked the Fifth Amendment on these subjects on advice of counsel and instructed the jury not to consider this fact for any purpose. However, defense counsel was permitted to ask Linton whether he had been accused of the acts for which he faced prosecution (though not to tell the jury about the prosecution itself).
[3] Though Brenda was the alleged victim in count 1 and appeared as a prosecution witness, her testimony supported defendant's story and frequently contradicted her prior statements to the police. She made clear she wanted the jury to acquit defendant on all counts.
[4] At trial, Brenda testified that defendant grabbed her arm on July 2 only to fend off her assault on him. She could not recall telling the police that he had abused her before that date. However, she said that she had been acting irrationally due to methamphetamine, twice trying to jump out of a moving car, not sleeping, and exploding in rage at defendant. According to both Brenda and defendant, the July 2 quarrel erupted when she overheard him talking on the telephone to a woman she suspected of having an affair with him.
[5] Brenda testified that as she stood in the back yard, she heard defendant in the front yard and climbed over the fence into the neighbor's back yard, where she hid in terror. After the incident the police found her there, crying hysterically "he's going to kill me."
[6] Kohrdt and Padgett had already left because Padgett had an outstanding warrant and did not want to talk to the police at that time. However, they returned to Linton's house around midnight. Soon after, they spoke to the police by telephone.
[7] Linton testified he did not see Kohrdt carrying a purse or Padgett wearing a buck knife on his belt. Kohrdt did not remember having a purse. Padgett testified he had not worn a buck knife for years.
[**] See footnote *, ante.
[8] CALJIC No. 4.43 states: "A person is not guilty of a crime when [he] [she] engages in an act, otherwise criminal, through necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely:
"1. The act charged as criminal was done to prevent a significant and imminent evil, namely, [a threat of bodily injury to oneself or another person] [or] [____];
"2. There was no reasonable legal alternative to the commission of the act;
"3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided;
"4. The defendant entertained a good-faith belief that [his][her] act was necessary to prevent the greater harm;
"5. That belief was objectively reasonable under all the circumstances; and
"6. The defendant did not substantially contribute to the creation of the emergency."
[9] In defendant's reply brief he asserts that because his gun was unloaded, his acts had no potential to cause violence; therefore this public policy argument fails. As we explain in part III below, however, substantial evidence showed his gun was loaded. Furthermore, going onto another person's property and pistol-whipping him, even with an unloaded gun, is a violent act.
[10] The trial court instructed on that offense as to counts 1 and 4, on which it was the charged offense, but not as to counts 2 and 3.
Strictly speaking, the offense defined by section 245, subdivision (a)(1) is not assault "with a deadly weapon" but assault "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." However, defendant's argument does not address the remainder of the statutory language.
[11] Defendant does not contend the jury could have convicted him of assault with a deadly weapon based on the evidence that he kicked Linton, and such a contention could not succeed. (People v. Aguilar, supra, 16 Cal.4th at pp. 1029-1034, 68 Cal. Rptr. 2d 655, 945 P.2d 1204 [hands and feet not "deadly weapons" within § 245, subd. (a)(1)].)
[12] In Fain, where the defendant was charged with robbery plus firearm use enhancements, the trial court instructed the jury at both parties' request that assault with a deadly weapon was a lesser included offense within the accusatory pleading. (Fain, supra, 34 Cal.3d at p. 353, 193 Cal. Rptr. 890, 667 P.2d 694.) The court noted that after the trial in this case it decided assault with a deadly weapon is not a lesser included offense to robbery with a firearm use enhancement. (Id. at p. 353, fn. 1, 193 Cal. Rptr. 890, 667 P.2d 694.)
[***] See footnote *, ante.
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720 A.2d 803 (1998)
BOROUGH OF MARCUS HOOK, Petitioner,
v.
PENNSYLVANIA MUNICIPAL RETIREMENT BOARD, Respondent.
Commonwealth Court of Pennsylvania.
Argued October 6, 1998.
Decided November 16, 1998.
*804 Joseph C. Rudolph, Philadelphia, for petitioner.
Lenann T. Engler, Harrisburg, for respondent.
Before FLAHERTY and LEADBETTER, JJ., and RODGERS, Senior Judge.
LEADBETTER, Judge.
The Borough of Marcus Hook (Borough) petitions for review of the order of the Pennsylvania Municipal Retirement Board (Board) denying disability benefits to Borough Officer David G. Closs. At issue is the interpretation of the disability provision in the 1984 contract (Contract) between the Borough and the Pennsylvania Municipal Retirement System (PMRS). However, the question which the parties seek to litigate is not necessary to the disposition of this appeal, because it relates to hypothetical facts different from those presented by this case. Accordingly, because this appeal seeks an impermissible advisory opinion, the petition for review is dismissed.
Officer Closs and the Borough filed an application for disability benefits in November of 1996. Closs had become unable to continue work as a Borough police officer because he suffered from angina that could not be medically or surgically relieved. PMRS denied the application for benefits. PMRS based its denial on the recommendation of the agency's medical examiner. Closs requested an administrative hearing. The Board permitted the Borough to intervene and a hearing before a Hearing Examiner followed. The Hearing Examiner concluded that under the Contract, Closs would be entitled to benefits only upon proof of either a service-connected disability that precluded continued police work or a nonservice-connected disability that precluded all gainful employment. Closs had proven he suffered from a nonservice-connected disability but had not established that he was prevented thereby from all gainful employment. Accordingly, the Hearing Examiner denied benefits.
PMRS filed exceptions to the Hearing Examiner's opinion. PMRS did not contest the denial of benefits but asserted that the decision to deny benefits should have been premised on a different interpretation of the Contract. Neither Closs nor the Borough filed exceptions. The Borough responded to the exceptions filed by PMRS and in its response requested "that the Board accept the Recommendation of the Hearing Examiner in its entirety and dismiss the Exceptions taken by PMRS." R.R. at 362a. Following its review of the Hearing Examiner's decision, the Board also denied benefits but did so on the interpretation of the Contract that had been propounded by PMRS. The Board construed the Contract to require proof of disability from all gainful employment regardless of whether claimant suffered from service-connected or nonservice-connected disability. Following the Board's decision, the Borough filed the instant petition for review. The Borough argues that the Board erred in interpreting the Contract provision concerning service-connected disability. The Borough does not, however, contest the finding that Closs's disability is nonservice-connected, nor the result reached by the Board (as distinguished from the Board's reasoning).
It is well established that a judicial determination that is unnecessary to decide an actual dispute constitutes an advisory opinion and has no legal effect. Okkerse v. Howe, 521 Pa. 509, 520, 556 A.2d 827, 833 (1989). In general, the courts of this Commonwealth may not exercise jurisdiction to decide issues that do not determine the resolution of an actual case or controversy. See In re Condemnation by Commw. Dep't of Transp., 100 Pa.Cmwlth. 546, 515 A.2d 102, 106 (Pa.Cmwlth.1986); Sedat, Inc. v. Fisher, 420 Pa.Super. 469, 617 A.2d 1, 4 (Pa.Super.1992). To avoid dismissal, an actual case or controversy must usually exist at every stage of the judicial process. Erie Ins. Exch. v. Claypoole, 449 Pa.Super. 142, 673 A.2d *805 348, 353 (Pa.Super.1996). The Borough's petition to this court and the response thereto by PMRS does not present an actual controversy for our review.[1]
On appeal, the Borough asserts a contractual interpretation different from that reached (and here supported) by the Board. However, in light of the uncontested factual findings, under either reading of the Contract, Officer Closs fails to qualify for disability benefits. The parties seek only an advisory interpretation of the Contract. Accordingly, the petition for review is dismissed as non-justiciable.
ORDER
AND NOW, this 16th day of November, 1998, the Borough of Marcus Hook's petition for review of the order of the Pennsylvania Municipal Retirement Board is hereby dismissed.
NOTES
[1] Our conclusion is reinforced by the observation that PMRS filed exceptions to the decision of the Hearing Examiner denying benefits, a decision from which it was not aggrieved. Neither the Borough nor Officer Closs filed exceptions and Officer Closs, the only person aggrieved by the denial of benefits, never sought review of the Hearing Examiner's decision.
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720 A.2d 147 (1998)
FEDORKO PROPERTIES, INC., Appellee,
v.
C.F. ZURN & ASSOCIATES, Appellant.
Superior Court of Pennsylvania.
Argued October 8, 1998.
Filed November 17, 1998.
Darrel Vandeveld, Erie, for appellant.
Kevin Colosimo, Erie, for appellee.
Before EAKIN, SCHILLER and OLSZEWSKI, JJ.
OLSZEWSKI, Judge:
Defendant, C.F. Zurn & Associates ("Zurn") appeals the February 3, 1998 order granting Fedorko Properties, Inc. ("Fedorko") a preliminary injunction for exclusive use of the right of way easement set forth in Erie County Contract Book 0494, pages 1494-1500. We reverse the decision of the lower court and deny Fedorko's petition for a preliminary injunction enforcing Fedorko's right to the exclusive use of said easement.
According to the stipulations of the party before Judge George Levin of the Court of Common Pleas, Erie County, both parties to this action own property located near the corner of West 12th Street and Peninsula Drive, Erie, Pennsylvania.[1] Zurn owns Parcel *148 A, while Fedorko owns the adjoining Parcels B, C, and D. This case concerns alleged easements located on Zurn's Parcel A which serve as a right of way onto Fedorko's Parcel B.
Central to this case is the easement agreement between the parties, drafted by Fedorko and signed by both Fedorko and Zurn on October 11, 1996.[2] The key terms of the "Agreement Creating New Easement and Extinguishing Existing Easement" are as follows:
1. Grantor, for itself, its successors and assigns, hereby grants, bargains, sells, releases and conveys unto Grantee, its successors and assigns, a perpetual, exclusive easement over and across Parcel A for the purpose of ingress and egress to and from Parcel B or any land of Grantee that adjoins Parcel A or Parcel B, and for the placement of any utility services and/or signage incident to Grantee's development of its adjoining lands, said easement to be twenty-five feet in width ...
* * * * * *
3. Grantee ... shall be solely responsible for the cost of improving and maintaining the area of the New Easement for the purposes stated herein, however, until such time as Grantee improves the area of the New Easement and uses the same for the purposes stated herein, Grantor shall maintain the area of the New Easement at Grantor's sole cost and expense in the condition as it exists as of the date of this Agreement.
4. Grantor shall not in any way alter the condition of the surface area of the New Easement as it exists as of the date of this Agreement, such as would increase Grantee's cost to improve and use the New Easement for the purposes stated herein.
R. at 27a-28a.
While the procedural history of this case is complex, primarily because of Fedorko's numerous (and occasionally contradictory) alleged grounds for the preliminary injunction, we need only address Judge Levin's order of February 3, 1998, in this appeal. Judge Levin's order grants Fedorko "exclusive use of the right of way easement as set forth in Erie County Contract Book 0494, pages 1494-1500. This easement can only be used by the Plaintiff and its successors or assigns."
Appellant presents numerous questions for our consideration, all of which address alleged errors in the lower court's decision concerning the creation of an exclusive easement and proof of irreparable harm in petitions for preliminary injunctions involving property rights. Appellant's brief at 3. More specifically, Judge Levin posited that the use of the term "exclusive," as a matter of law, creates an easement granting Fedorko sole right to utilize the easement property, even to the exclusion of the servient estate. Trial Court Opinion, 2/3/98, at 2. Further, the lower court opined that when seeking a prohibitive preliminary injunction to enforce property rights, the petitioner need not plead and prove that the injury redressed by the proposed injunction is irreparable. Trial Court Opinion, 2/3/98, at 2.
When reviewing the propriety of a preliminary injunction, we must remember that the granting of a preliminary injunction is an extraordinary remedy. Schaeffer v. Frey, 403 Pa.Super. 560, 589 A.2d 752 (Pa.Super.1991); Soja v. Factoryville Sportmen's Club, 361 Pa.Super. 473, 522 A.2d 1129 (1987). However, "on appeal from the grant... of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below." Coatsville Development Co. v. United Food & Commercial Workers, AFL-CIO, 374 Pa.Super. 330, 542 A.2d 1380, 1384 (1988) (quoting *149 Willman v. Children's Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452, 454-55 (1984)). Only where the preliminary injunction completely lacks support in the record or where the rule of law was clearly misapplied will we interfere with the lower court's decision. See id.
In order to sustain a preliminary injunction, the plaintiff must first show that:
1) plaintiff's right to relief is clear;
2) the need for relief is immediate; and
3) the injury which would result absent the injunction is irreparable.
See Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (Pa.1978); Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A.2d 748 (1972); League of Women Voters of Pennsylvania v. Commonwealth, 683 A.2d 685 (Pa.Cmwlth.1996). We now review the decision of the lower court to see if reasonable grounds exist in the record to support granting the preliminary injunction in light of the elements listed above.
First, we must review the court's decision concerning the requirement that plaintiff's right to relief be clear. Judge Levin decided as a matter of law that the use of the term "exclusive easement" in and of itself granted Fedorko an easement exclusive of all other parties, including the owner of the servient estate. The record provided for our review consists solely of factual stipulations made on the record and legal arguments. Judge Levin provided Fedorko an opportunity to call witnesses and offer evidence, but they declined. Consequently, Zurn, citing Fedorko's burden of proof, decided not to call witnesses either. After reviewing the law, Judge Levin decided that under Pennsylvania law the term "exclusive easement" is sufficient to create an easement that excludes the owner of the servient estate from use of his property. After reviewing the same case law, we cannot agree.
When reviewing an express easement, the language of the agreement, unless ambiguous, controls. Columbia Gas Transmission Corp. v. Savage, 863 F. Supp. 198 (M.D.Pa.1994) (reviewing the terms of an easement under Pennsylvania law); Merrill v. Manufacturers Light & Heat Co., 409 Pa. 68, 185 A.2d 573 (1962). Under Pennsylvania law "[t]he fee in land may be in one person and the exclusive right to use it as a right of way may be in another, but to accomplish that result the deed creating the right of way must specifically so covenant." Ulrich v. Grimes, 94 Pa.Super. 313 (1928); see also Taylor v. Gross, 195 Pa.Super. 225, 171 A.2d 613 (1961). The central issue in this case is whether the use of the term "exclusive easement" in this New Easement Agreement clearly and unambiguously grants Fedorko the right to exclude Zurn from the use of its own property.
Both the trial court and appellee rely on Ulrich v. Grimes, as well as the cases citing to it, for the proposition that the use of the term "exclusive easement" alone is sufficient to create an easement that bars the owner of the servient estate from all use of the land. We agree that under Pennsylvania law it is possible to create an express exclusive easement that serves to bar even the servient estate from use of the land. Ulrich, 94 Pa.Super. 313. Further, such easement is created only when the parties "specifically so covenant." Id. at 316. Neither Ulrich nor any of the cases citing Ulrich[3] expand on the requirement to "specifically so covenant," and we cannot support a reading of the Ulrich language alone to support the proposition that use of the term "exclusive," regardless of the clarity or ambiguity of the term within the easement agreement, is enough to "specifically so covenant."
As Pennsylvania law does not establish that the use of the term "exclusive easement" is sufficient as a matter of law to grant an easement which excludes the servient estate, *150 we turn to review the plain meaning of the term independent of the Ulrich decision. The trial court's opinion and appellee's brief rely on an interpretation of the plain meaning of the term "exclusive easement" based on dictionary definitions of the word "exclusive." See Trial Court Opinion, 2/3/98, at 2; appellee's brief at 12. Reliance on the dictionary definition of a single word in the New Easement Agreement is not wise as it ignores the context of the word within the larger agreement. The law in Pennsylvania holds that the language of the express easement controls when the language of the easement is clear, not when one word or sentence, taken out of context, seems clear. See Merrill, 409 Pa. 68, 185 A.2d 573. The dictionary meaning of the word "exclusive" is irrelevant if it differs from the meaning given to the word in the context of the agreement as a whole. Thus, we review the use and meaning of the term "exclusive easement" within the context of the New Easement Agreement.
While Webster's Dictionary may clearly define the word "exclusive" to mean "having the tendency, or power to exclude all others...," the meaning of the term "exclusive easement" in the context of the entire agreement is not as clear. Fedorko argues that the New Easement Agreement grants it sole use of the easement property, even to the exclusion of the grantor/landowner. At the same time, the very next page of the agreement specifically requires that "until such time as Grantee improves the area of the New Easement and uses the same for the purposes stated herein, Grantor shall maintain the area of the New Easement at Grantor's sole cost and expense in the condition as it exists as of the date of this Agreement." R. at 28a. Thus, Fedorko argues that paragraph 1 of the agreement bars Zurn, the grantor of the easement, from using the easement land in any fashion, but paragraph 3 requires that Zurn go onto the easement property and maintain it at his sole cost and expense. At the very least, the paragraphs demonstrate that the term "exclusive easement" is not clear and unambiguous on its face.
Since we cannot hold that the term "exclusive easement" is sufficient as a matter of law to grant an easement exclusive of the servient estate, we must review the record to establish that reasonable grounds exist to support the trial court's decision to grant the preliminary injunction. The record, however, contains nothing outside of the factual stipulations and legal arguments. Thus, there is no evidence as to the intent of the parties or the meaning of the term "exclusive easement" in the context of the entire agreement and in light of the contradictory language. Therefore, we hold that the lower court erred when determining that, as a matter of law, "[the easement] was meant to exclude the servient tenement Zurn, from use, as evidenced by its language." Trial Court Opinion, 2/3/98, at 2.
Based on the lack of substantive evidence presented by plaintiff on the record and the lower court's erroneous application of the case law, we find that the plaintiff failed to establish that plaintiff's right to relief is clear. In light of appellee's failure to establish that his right to relief is clear, there is no need for this court to consider the issue of irreparable harm. As one of the basic requirements for a preliminary injunction has not been established, we reverse the decision of the lower court and dissolve the preliminary injunction.
Order reversed. Preliminary injunction dissolved. Jurisdiction relinquished.
NOTES
[1] For the sake of clarity, this Court adopts and incorporates the survey map contained in the record and relied on by the lower court in its opinion, as well as both parties on appeal. In this survey map, the land owned by Zurn and Fedorko is divided into four parcels designated Parcel "A," Parcel "B," Parcel "C," and Parcel "D," respectively.
[2] While both parties to the action and the stipulations on the record address the complete deed history of Parcels A and B, we do not feel the need to discuss the history prior to the time of the New Easement Agreement as it is not directly relevant to the preliminary injunction granted or the issues on appeal.
[3] We should note that the trial court stated for the record that it was persuaded to grant the preliminary injunction based, in part, on the continued following of the 1927 Ulrich decision in more recent years. A reading of the citations provided by the appellee to the trial court and listed on the record did not support this contention. While several cases decided from the trial court up through the Pennsylvania Supreme Court cite Ulrich, many of these cases do little more than cite the case in a string citation addressing unrelated issues. Thus, upon reading these cases, we are not convinced of the stalwart status of the Ulrich decision at this time. Absent additional case law on the issue, we simply choose to decide this case in consideration of Ulrich, but not in reliance on Ulrich.
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01-03-2023
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10-30-2013
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720 A.2d 487 (1998)
P.E.S., Appellee,
v.
K.L., Appellant.
Superior Court of Pennsylvania.
Submitted November 14, 1997.
Filed October 15, 1998.
*488 K.L., appellant, pro se.
P.E.S., appellee, pro se.
Before CIRILLO, President Judge Emeritus, and SCHILLER and HOFFMAN[*], JJ.
CIRILLO, President Judge Emeritus:
K.L. appeals from an order entered in the Court of Common Pleas of Montgomery County denying his motion to expunge his docket record after the court granted his motion to dismiss a Protection from Abuse petition. We affirm in part and reverse in part.
On November 22, 1996, P.E.S. filed a "Petition for Protection from Abuse" against K.L.[1] A request for a Temporary Protection from Abuse Order was denied on the same day of filing. A hearing on the petition was scheduled for November 27, 1996, however the parties failed to appear and no action was taken on the Petition. Nonetheless, a court record was created on the petition and the case was designated as "active" in the court computer system.
On March 7, 1997, K.L. filed a "Motion to Dismiss and Expunge the Record." At a hearing, before the Honorable S. Gerald Corso, K.L. claimed the "active" case was damaging to his reputation as a custody evaluator and a guardian ad litem. K.L. currently holds the position of Director for the Child Custody Evaluation Services of Philadelphia, Inc. His specialty is in interstate child custody matters and he is a member of several professional and national organizations relating to this subject. K.L. has been appointed as guardian ad litem in several states; he has testified before several legislative bodies on child custody issues and he has given expert testimony before a number of state courts. Furthermore, he has been approved as a custody mediator by several state courts. K.L. stated his reason for expungement was to avoid continued embarrassment that the case designation might cause him as a child custody specialist.
Following the hearing, an Order was entered on March 18, 1997, granting K.L.'s Motion to Dismiss and denying the Motion to Expunge. K.L.'s "Motion for Reconsideration of Order Dated March 18, 1997" was denied by Order dated April 4, 1997. This appeal followed.
On appeal, K.L. raises the following issues for our review:[2]
(1) Did the trial court err in its opinion that there is no statutory authority for expungement of a Protection from Abuse record?
(2) Did the trial court err by not accepting other civil expungement cases as authority to expunge a Protection from Abuse record?
(3) Did the trial court abuse its discretion by denying the Appellant's inherent right to protect his reputation?
(4) Did the trial court err by not expunging the Protection from Abuse record because *489 the record was created by denial of due process?
(5) Did the trial court err by not adducing sufficient facts upon which to determine expungement as an appropriate remedy?
From the outset, we must note that the learned Judge Corso correctly dismissed P.E.S.'s petition brought under the Protection From Abuse Act (PFAA), 23 Pa.C.S.A. § 6101 et seq. Pursuant to the PFAA, once a petition is filed a hearing shall be held within 10 days. Heard v. Heard, 418 Pa.Super. 250, 614 A.2d 255 (1992). If a hearing is not held, a trial court lacks jurisdiction to grant relief to the filing party. Id. at 258, 614 A.2d at 260. Here, no hearing was held within the 10-day period of limitations. Judge Corso, therefore, correctly granted K.L.'s motion to dismiss; the trial court had no jurisdiction to grant relief. Heard, supra.
On appeal, K.L. first alleges the trial court erred in finding no statutory authority for expungement of a Protection From Abuse record. Specifically, K.L. contends expungement is included in section 6117 of the PFAA as an "Other Remedy." We disagree.
In Pennsylvania, it is well-settled that a court must construe the words of a statute according to their plain meaning. 1 Pa.C.S.A. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982); Fireman's Fund Ins. Co. v. Nationwide Mutual Ins. Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). When the words of a statute are unambiguous, they are not to be disregarded under the pretext of pursuing the spirit of the statute. 1 Pa.C.S.A. § 1921(a); Heard, supra. Therefore, we must examine whether this issue may be resolved by reference to the express language of the PFAA.
The current version of the PFAA bears no mention of expungement procedures. K.L. contends expungement is included in section 6117 of the PFAA entitled "Procedure and other remedies." 23 Pa.C.S.A. § 6117. Section 6117 states: "Unless otherwise indicated in this chapter, a proceeding under this chapter shall be in accordance with applicable general rules and shall be in addition to any other available civil or criminal remedies." 23 Pa.C.S.A § 6117. We fail to see how section 6117's "other remedies" apply to the present situation. In Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979), our court summarized the purpose of the PFAA as follows:
The Protection From Abuse Act is a vanguard measure dealing with the problems of wife and child abuse. It is designed to protect against abuse not only between family or household members who reside together, but also between unmarried persons living together. To institute an action, the plaintiff must file a petition with the court alleging abuse by the defendant. If emergency relief is needed, the court may enter a temporary, ex parte order to protect the plaintiff or minor children from abuse. In any event, a hearing must be held within ten days at which time plaintiff must prove the charges. The court is empowered to grant broad relief to bring about a cessation of abuse: an order directing defendant to refrain from abusing plaintiff or the children; evicting defendant from the residence and granting possession to plaintiff; awarding temporary custody of and/or establishing temporary visitation rights with regard to children; and directing defendant to pay support. Any such order entered shall have no effect beyond one year. District Justices are authorized to grant relief during weekend hours. Defendant may be held in indirect criminal contempt for violating the order and may be imprisoned up to six months or be fined $ 1,000.00 or both. An arrest for violation of the order may be made without a warrant even if the violation is not committed in the presence of the officer.
Cipolla, 264 Pa.Super. at 55 n. 1, 398 A.2d at 1054 n. 1 (1979) (citations omitted). Given the nature and construction of the PFAA, we read section 6117 as it pertains to a petitioner and the remedies available to that person seeking protection. We do not read section 6117 so broad as to include the remedy of expungement for a respondent.
K.L. next alleges the trial court erred by not accepting other civil expungement cases as authority to expunge a PFAA record. *490 K.L. also contends, in his third issue, that the trial court abused its discretion by denying K.L. an adequate opportunity to defend and protect his reputation. We find that the trial court did not err as a matter of law by not accepting other civil cases as authority for expungement.[3] We also find the trial court did not abuse its discretion in the expungement proceedings; K.L. was given an adequate opportunity to defend and protect his reputation.[4] We are, however, persuaded by K.L.'s plea to extend the concept of expungement to the PFAA in limited circumstances where a respondent seeks to protect his or her reputation.
As authority for his argument, K.L. cites to Wolfe v. Beal, 477 Pa. 477, 384 A.2d 1187 (1978), and Commonwealth v. J.T., 279 Pa.Super. 127, 420 A.2d 1064 (1980). In Wolfe, our supreme court concluded that a person who was unlawfully committed to a state psychiatric hospital has a right to the destruction of hospital records that were created as a result of the illegal commitment. The court stated:
The Pennsylvania Constitution specifically provides that "all men ... have certain inherent and indefeasible rights, among which ... [is] acquiring, possessing, and protecting ... reputation ..." Const. art. 1, s 1. We cannot ignore the fact that many people in our society view mental illness with disdain and apprehension. We, in Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1975[1969]), approved of the concept of protecting the reputation of a person who was unlawfully thrust into the criminal process by sanctioning the expungement of his criminal record. We should not do less for appellant. The continued existence of the hospital records pose a threat to appellant's reputation.
Wolfe, 477 Pa. 477, 480, 384 A.2d 1187, 1189 (1978) (emphasis added). The court found that the appellant in Wolfe was entitled to a clean and unsullied record and ordered the expungement of all records pertaining to the commitment. Id.
Similarly, in J.T., our court ordered that court records of psychiatric commitment should be expunged after the trial court concluded that its prior commitment order was null and void as having not been entered in compliance with the Due Process Clause of the United States Constitution and the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4406 (since repealed). J.T., 279 Pa.Super. 127, 420 A.2d 1064 (1980). In *491 J.T., the court specifically addressed the issue of court records:
To be sure, the question of expungement of court records arising from an illegal commitment was not at issue in Wolfe simply because the lower court's decision to order such relief was not challenged. However we think it clear that the Court's reasoning regarding destruction of the hospital records is equally applicable to the issue sub judice. Be they hospital records or court records, the dispositive fact is that they originated as a result of an illegal proceeding subsequently declared null and void; and, in either case, their "continued existence ... pose a threat to appellant's reputation." Id. Under such circumstances, and in the absence of any compelling reason to the contrary offered by the Commonwealth, justice demands that appellant be returned to a position as near as possible as that which she enjoyed prior to the illegal commitment; namely, an unsullied record. See Bilick v. Dudley, 356 F. Supp. 945 (S.D.N.Y.1973); United States v. McLeod, 385 F.2d 734 (5th Cir.1967).
J.T., 279 Pa.Super. 127, 129-30, 420 A.2d 1064, 1065-66 (1980) (emphasis added).
We draw an analogy between the circumstances of Wolfe and J.T. and the present case. For whatever reason, after P.E.S.'s petition was filed, no action was taken. Unfortunately in this case, a court record was created with K.L.'s name appearing therein. K.L. vehemently claims this record is damaging to his reputation as a specialist in interstate child custody. We agree. The court record is available to anyone who inquires at the Montgomery County Court House or other such locations with like computer facilities. As a specialist in child custody matters, this entry could have serious repercussions upon K.L.'s reputation and livelihood. Should he ever be called upon as an expert witness, this entry could seriously affect his credibility.
Much like psychiatric commitments, abuse actions are not taken lightly in our Commonwealth, even when such petitions are dismissed. Commonwealth v. Majeed, 548 Pa. 48, 56, n. 6, 694 A.2d 336, 340 n. 6 (1997) ("A violation of a PFA [order] is a violation of the law, a public wrong, punishable by a fine, imprisonment, or both."). See also 23 Pa.C.S.A. § 6114; Commonwealth v. Aikins, 422 Pa.Super. 15, 618 A.2d 992 (1993) (Beck, J., dissenting). From this record, a guilty inference is too easily reached. We find no compelling reasons to allow this dismissed petition record to stand. As in J.T., justice demands that K.L. be returned to a position as near as possible as that which he enjoyed prior to the filing of the petition, namely, an unsullied record. See J.T., supra. K.L. must be afforded the right to protect his reputation as guaranteed by our State Constitution. See Wolfe, supra. The continued existence of the court records pose a significant threat to K.L.'s reputation. Id. As such, we find that K.L. is entitled to the remedy of expungement in this instance. Id.
Additionally, were we to allow K.L.'s record to stand, such a result would be fraught with peril. The PFAA would instantly be converted into a legitimate opportunity for blackmail. A petitioner could threaten any partner or former intimate partner by filing a petition and then fail to follow up on the petition, knowing that in doing so, a court record would be kept as a sort of behavioral "check." To allow such a result would completely thwart the underlying goals of the PFAA namely, to protect spouses, intimate partners, and children from imminent physical abuse. Cipolla, supra.
We are further persuaded by a similar situation cited by K.L. under the Child Protective Services Law (CPSL), 23 Pa.C.S.A. § 6301 et seq. Under the CPSL, the Legislature has mandated that should a report of child abuse yield no determination within 60 days, the report shall be considered an unfounded report, and all information identifying the subjects of the report shall be expunged within 12 months. 23 Pa.C.S.A. § 6337(b). A parallel may be drawn in the present case. As we have noted, after P.E.S.'s petition was filed, no action was taken, yet the record remained in the court computers. Under the PFAA, once the 10-day period of limitations passes within which to hold an abuse hearing, the trial court lacks jurisdiction to grant relief to a filing party. Heard, supra. This situation is similar to a child abuse report that yields no determination *492 within 60 days. We find this example persuasive in reaching the conclusion that the underlying facts of this case warrant the expungement of K.L.'s PFAA and all court related records where no facts were brought forth to substantiate a finding of abuse.
This court is also persuaded by a parallel situation derived from the statutory criminal process of expungement in 18 Pa.C.S.A. § 9122. Section 9122(a) states:
(a) Specific proceedings.-Criminal history record information shall be expunged in a specific criminal proceeding when:
(1) no disposition has been received or, upon request for criminal history information, no disposition has been recorded in the repository within 18 months after the date of arrest and the court of proper jurisdiction certifies to the director of the repository that no disposition is available and no action is pending.
18 Pa.C.S.A. § 9122(a)(1).
Under this statute, if an individual is arrested, and, for whatever reason, no further action is taken within 18 months, the criminal history record information shall be expunged. 18 Pa.C.S.A. § 9122(a)(1) (emphasis added). Similarly, once P.E.S.'s petition was filed, no action was taken within the 10-day period required by the PFAA. At this point in time, it was clear no disposition was available for the case, save for the granting of a dismissal. Heard, supra. Because of this fact, the rationale of section 9122 applies; once it was clear that no disposition of P.E.S.'s PFAA petition was possible, K.L. was entitled to expungement of his record.
This court also finds instructive the factors a court must consider regarding the expungement process of a criminal arrest record. When faced with a request for expungement of an arrest record, a court must balance the individual's right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records. Commonwealth v. Butler, 448 Pa.Super. 582, 672 A.2d 806 (1996). Although K.L.'s record here is not an arrest record, it, nonetheless, carries with it the potential stigmas associated with such a record. The negative social connotations that attach to the PFAA are too great to allow K.L.'s record to remain intact. In comparison, P.E.S. puts forth no reasons in her brief as to why such a record should be maintained. At the dismissal hearing, P.E.S. stated that she opposed expungement of the record and wanted to keep the entry as a "check" on K.L. This is exactly the type of situation this court seeks to avoid in the present holding. The PFAA is not to be used as a manipulative tool. Accordingly, we find K.L.'s situation warrants the expungement of his record due to the potential harm it may cause to his reputation and livelihood as a child custody specialist as well as P.E.S.'s complete failure to pursue her abuse petition.
For the foregoing reasons, we hereby order that all documents and computer files identifying this matter involving K.L. be expunged. Because of the present holding, we need not address K.L.'s final claims on appeal.
Order affirmed in part and reversed in part. Jurisdiction relinquished.
NOTES
[*] HOFFMAN, J. did not participate in the consideration of this decision.
[1] In this petition, P.E.S. alleged the following:
Defendant has been stalking me; appearing at and calling my place of work as recent as 11/21/96 just watches, then leaves leaves phone messages if I cannot answer the phone has started calling my friends as well as my estranged husband.
Defendant has "couched" these conversations under the pretext of trying to collect money owed to him there is currently a voluntary wage attachment in place.
Please note Defendant has been advised that if this `stalking' continued I would request a protection Order. This has been occurring for quite some time now and Defendant was advised of this several times. I did meet w/ Defendant to try and resolve matters recently, but it did not work out.
[2] Although K.L. only raised three issues in his Concise Statement of Matter Complained of on Appeal pursuant to Pa.R.A.P. 1925(b), we allow K.L. to present all five since they essentially overlap in subject matter. We note that this defect could be considered a waiver of his claims. Pa.R.A.P. 1925(b), 42 Pa.C.S.A. As our ability to meaningfully review the claims is not hampered by the omission, however, we will review all five claims. See Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). We also rearrange the claims for clarity of our analysis.
[3] K.L. cites to Wolfe v. Beal, 477 Pa. 477, 384 A.2d 1187 (1978), and Commonwealth v. J.T., 279 Pa.Super. 127, 420 A.2d 1064 (1980) to support the argument that the trial court should have accepted these cases as authority to expunge his PFAA record. We conclude the trial court did not err as a matter of law in not accepting these cases as authority to expunge his PFAA record. Judge Corso was in no way bound to accept these cases as authority as they do not specifically relate to the PFAA. We do, however, find these cases to be persuasive authority to support the result we reach today.
[4] An abuse of discretion requires a showing of manifest unreasonableness, partiality, ill-will, or such lack of support as to be clearly erroneous. Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995). Absent this finding, the trial court's ruling will not be overturned. On appeal, K.L. claims he was not given a full opportunity to defend his reputation. We disagree. As the trial court aptly noted, K.L. was provided an adequate opportunity to present the bases of his motion for expungement. Succinctly, K.L. stated his reason for seeking expungement was to avoid continued embarrassment, since the case was listed as "active" in the court computer, and to protect his reputation as a custody evaluator and a guardian ad litem for various court systems. When asked by the trial court for authority to grant the expungement, K.L. replied that he had researched the topic, that there were no reviewed cases on point, that expungement is usually reserved for criminal cases, and that it is a discretionary remedy.
On appeal K.L. contends the trial court limited the testimony to the bounds of the hearing on the motion to dismiss and expunge. This is correct; the trial court would not have had jurisdiction to hear the merits of the petition after the 10-day period of limitations had passed. Heard, supra; 23 Pa.C.S.A. § 6101. K.L. claims that by limiting the hearing he was never given a chance to dispute the merits of the petition. While we agree with this contention, we fail to see the effect this determination would have upon the present case. Because neither party appeared at the original scheduled hearing, no action was taken on the petition. K.L. alleged at the dismissal proceeding that the case was listed as "active" and this was embarrassing to his reputation. The trial court noted it did not believe it had the authority to expunge the PFAA record. This is the issue we seek to address on appeal.
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24 Cal. Rptr. 3d 447 (2005)
126 Cal. App. 4th 950
Steven KOTLER, Plaintiff and Appellant,
v.
PACIFICARE OF CALIFORNIA et al., Defendants and Respondents.
No. B171654.
Court of Appeal, Second District, Division Eight.
February 10, 2005.
Review Denied April 27, 2005.
*448 Shernoff Bidart Darras, Michael J. Bidart and Jeffrey Isaac Ehrlich, Claremont, for Plaintiff and Appellant.
K & R Law Group, Gary S. Pancer, Joshua Mandell; Greines, Martin, Stein & Richland, Timothy T. Coates and Peter O. Israel, Los Angeles, for Defendants and Respondents.
COOPER, P.J.
Plaintiff, Steven Kotler, appeals from summary judgment granted to his health care service plan, PacifiCare of California (PacifiCare), and its parent corporation PacifiCare Health Systems, Inc. (PacifiCare Systems; collectively defendants), on claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The action arose out of delays plaintiff encountered in obtaining treatment for a debilitating illness, Lyme disease. We conclude that the judgment must be reversed.
FACTS
The evidence adduced by both sides on the motion for summary judgment disclosed the following scenario. Plaintiff is a freelance writer, who since 1997 was a member of PacifiCare, a health maintenance organization, which provides its members health care services through contracting doctors and hospitals. Under PacifiCare's Subscriber Agreement (agreement), a member must choose a primary care physician, who directs and coordinates the member's medical care, including referrals to specialists who are also participants in PacifiCare's plan. In September 2000, plaintiff moved from Northern to Southern California, and was required to select a new primary care physician. He chose Dr. Howard Wynne, of the Cedars-Sinai Medical Group (Cedars-Sinai).
From his arrival in Los Angeles, plaintiff experienced periodic flu-like symptoms. At an urgent care facility, he was diagnosed with a sinus infection and given a prescription for antibiotics. A few weeks later, his symptoms returned. They became more severe, and in December 2000 plaintiff phoned Dr. Wynne's office for an *449 appointment, which was arranged only for January 11, 2001.
After plaintiff described his symptoms, Dr. Wynne had him take an HIV test. Plaintiff asked about being tested for Lyme disease, but Dr. Wynne told him he had none of its symptoms.[1] After the HIV test proved negative, plaintiff sought further testing. He was told it would require a second appointment, which could not be scheduled until January 29, 2001.
In the interim, plaintiff, who had been in Africa in 2000, discussed his condition with a tropical disease specialist, whom he had met while writing an article. That physician gave plaintiff a list of diseases that might be causing his condition, not including Lyme disease. Plaintiff presented this information to Dr. Wynne on January 29, and Dr. Wynne ordered tests for several of the diseases. All proved negative.
With plaintiff complaining particularly of pains in his joints, Dr. Wynne referred him to an orthopedic surgeon. The surgeon suggested performing surgery, but when plaintiff inquired whether it was strange that four different joints were simultaneously affected, the surgeon replied that the question was one for plaintiff's general practitioner, or for an infectious disease specialist.
At or shortly after his third appointment with Dr. Wynne, on January 31, 2001, appellant asked for a referral to an infectious disease specialist. On February 26, Dr. Wynne gave plaintiff such a referral, to Dr. Irving Polaski. His office told plaintiff he could not have an appointment until six weeks later, in part because Dr. Polaski saw patients for PacifiCare only one day a week. Plaintiff phoned Dr. Wynne's office and asked for help obtaining an earlier appointment, but when he called again a few days later (having heard nothing), he was told that they were unable to advance his appointment.
Frustrated and ill, plaintiff obtained the name of another infectious disease specialist, Dr. Ronald Fishbach, who was not associated with PacifiCare. Plaintiff called Dr. Fishbach's office and obtained an appointment for March 14, shortly after his call. From plaintiff's symptoms, Dr. Fishbach ordered tests to rule out several conditions, including Lyme disease. On March 19, he received the results, which indicated that plaintiff had that illness. On the same day, Dr. Fishbach informed plaintiff and prescribed doxycycline.
Plaintiff pursued this treatment for several months, and underwent improvement in his condition and strength, except when he discontinued the medication a few times. After seeing plaintiff about once a month, Dr. Fishbach in August 2001 decided to take plaintiff off the medication. He did so in September 2001, and then saw plaintiff again in July 2002.
Plaintiff sought reimbursement of Dr. Fishbach's charges. Cedars-Sinai denied reimbursement, as the doctor was not part of PacifiCare's network. Plaintiff then unsuccessfully pursued two appeals within PacifiCare. PacifiCare rejected plaintiff's contention that Dr. Fishbach's treatment should be regarded as emergency care, which is subject to reimbursement under the agreement, even if provided by out-of-network providers.[2]
*450 In October 2001, plaintiff commenced this action, against PacifiCare, PacifiCare Systems, and also Dr. Wynne and Cedars-Sinai, who are not parties to this appeal. The operative, first amended complaint (FAC) was filed in March 2002. After reciting at length the events summarized above, the FAC alleged two causes of action against PacifiCare, for breach of contract and breach of the covenant of good faith and fair dealing. PacifiCare Systems was named based on alter ago allegations that PacifiCare was its mere instrumentality.
The breach of contract cause of action alleged that PacifiCare had breached the agreement by unreasonably delaying authorization for necessary referral of plaintiff to a specialist, and by ultimately referring him to an infectious disease specialist who saw HMO patients only once a week, thus ignoring plaintiff's welfare and interests. Other alleged breaches concerned Pacificare's payment and appeals methods, and other matters. The bad faith cause of action alleged breaches of the duty of good faith involving nonpayment of benefits; failure to investigate, process, and settle plaintiff's claims for benefits; and failure to provide appropriate care and treatment.
Defendants moved for summary judgment or, alternatively, summary adjudication of issues, on grounds that undisputed evidence showed there had been neither a breach of the agreement nor any unreasonable conduct in pursuing it. In addition, defendants contended there was no factual basis for either imposition of alter ego liability on PacifiCare Systems or assessment of punitive damages. Defendants supported their motion by declarations of officers and employees of PacifiCare and PacifiCare Systems, as well as Dr. Wynne and a Lyme disease expert, and portions of plaintiff's and Dr. Fishbach's depositions. The principal basis of defendants' position was that plaintiff's treatment by Dr. Fishbach had not constituted reimbursable emergency care under the agreement. In opposition, plaintiff submitted further excerpts from the depositions, and documentation regarding the corporate business of PacifiCare Systems.
The trial court granted the motion for summary judgment. With respect to the breach of contract cause, the court found no triable issue of fact that plaintiff had treated with Dr. Fishbach on account of a reimbursable emergency medical condition, as defined in the agreement. There having been no breach of the agreement with respect to benefits due, the bad faith cause also lacked merit.
DISCUSSION
The trial court was correct in perceiving no triable issue that plaintiff's treatment with Dr. Fishbach was reimbursable under the agreement, as treatment of an "emergency medical condition." The agreement defines such a condition as "A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected by the Member to result in any of the following: [¶] Placing the Member's health in serious jeopardy; [¶] Serious impairment to bodily functions; [¶] Serious dysfunction of any bodily organ or part; or [¶] Active labor...."[3]
*451 It cannot be contended that plaintiff's visits with Dr. Fishbach, after he had diagnosed the illness and prescribed the ameliorative doxycycline, involved an emergency condition. Nor was there a triable issue that when plaintiff first consulted the specialist his medical condition fit that definition. Plaintiff agreed that his already ongoing symptoms did not arise by sudden onset of particular severity. (See ante, fn. 3.) Dr. Fischbach testified that when he first saw plaintiff, he did not require immediate care to avoid harm. Plaintiff's own testimony, offered to show a triable issue, was that as he pressed Dr. Wynne for a referral, and then to speed up the appointment with Dr. Polaski, he felt "really, really sick," and his symptoms were worsening. But those symptoms were never such as to cause him to call 911, or go to the nearest medical facility, as the agreement instructs for emergency conditions.[4] Given the entire situation, and his own response to it, plaintiff could not reasonably have expected to suffer, without "immediate" medical attention, the consequences outlined in the definition of emergency medical condition.
This does not, however, end the analysis with respect to plaintiff's breach of contract claim. Plaintiff's pleading embraced not just a challenge to PacifiCare's nonpayment of benefits according to the agreement, but also a claim of breach of the agreement by unreasonably delaying referring plaintiff to a specialist, and then only to one with limited hours available for plan subscribers. Fairly construed, these allegations charged that PacifiCare had breached a contractual obligation to provide for medical services and treatment on a timely basis.
The obligations of a contract here, to provide plaintiff with medically necessary services of specialists, as authorized by the primary care physician must be performed either at a time the contract specifies or within a reasonable time. (Civ.Code, § 1657.) What constitutes such a reasonable time ordinarily presents a question of fact, dependent upon the circumstances of the case. (Consolidated World Investments, Inc. v. Lido Preferred, Ltd. (1992) 9 Cal. App. 4th 373, 381, 11 Cal. Rptr. 2d 524.) Under the facts presented to the trial court, a triable issue existed as to whether or not PacifiCare had fulfilled its implied-in-law obligation to provide plaintiff timely treatment by an infectious disease specialist. Given the history of plaintiff's illness, his condition, and the palliative failure of the care already provided under PacifiCare's aegis, a six-week wait for an appointment following Dr. Wynne's referral could well be found unreasonable.[5]
Defendants oppose this conclusion on the ground that plaintiff did not offer any *452 evidence, presumably expert, that the delay he experienced violated any "standard," whether "community," "medical," or other. This argument fails for two independently sufficient reasons. First, the standard of reasonableness applicable in this case is a conventional one, derived from "the situation of the parties, the nature of the transaction, and the facts of the particular case" (Sawday v. Vista Irrigation Dist. (1966) 64 Cal. 2d 833, 836, 52 Cal. Rptr. 1, 415 P.2d 816), and its establishment does not require further proof. And as for breach of the standard, as just stated, a reasonable trier of fact would be entitled to determine, from all of the evidence, that PacifiCare did not provide plaintiff specialist care within a reasonable time.
Second, and even more fundamentally, on motion for summary judgment it was defendants' burden, not plaintiff's, to negative the claim of unreasonableness. (Code Civ. Proc., § 437c, subds. (a), (o)(1), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850-851, 107 Cal. Rptr. 2d 841, 24 P.3d 493.) Defendants' showing, that plaintiff received the very referral appointment he challenges as untimely, did not do so. For the same reason, defendants' argument (again with regard to bad faith) that plaintiff failed to adduce evidence of damages an issue addressed neither by the summary judgment motion nor in the court's ruling (see Code Civ. Proc., § 437c, subd. (m)(2))is not in point.
Defendants also note that before consulting Dr. Fishbach, plaintiff apparently did not contact PacifiCare directly for assistance in obtaining a more timely appointment, or invoke the agreement's provisions for "Quality Management Review." Defendants do not directly argue that these facts justify the summary judgment, and we do not perceive that they do. Plaintiff did seek assistance from his primary care physician, whom the agreement provides was to make and coordinate specialist referrals.
For the foregoing reasons, summary adjudication of plaintiff's cause of action for breach of contract should not have been granted. This conclusion also undermines the summary adjudication of the companion bad faith cause. The trial court rejected that cause of action on the ground there was no triable issue of a breach of the agreement, such a breach being "the underpinning of a bad faith claim under California law." Without regard to its intrinsic validity, this stated basis for the trial court's ruling on the present claim no longer exists.
To the extent not already discussed, defendants' argument in support of the summary adjudication of the bad faith claim essentially restates the trial court's holding that there was no breach of the agreement. Defendants also argue that, as a matter of law, PacifiCare did not act unreasonably. But especially because PacifiCare's performance within a reasonable time presents a triable issue, it cannot be said that PacifiCare necessarily acted reasonably in providing plaintiff the benefits of the agreement. Accordingly, the judgment must be reversed entirely.[6]
DISPOSITION
The judgment is reversed. Plaintiff shall recover costs.
We concur: RUBIN and BOLAND, JJ.
NOTES
[1] According to plaintiff's deposition, he subsequently requested again that Dr. Wynne test him for Lyme disease, but received the same answer.
[2] Plaintiff also contended that Dr. Fishbach's care was eligible for reimbursement under the agreement as "Urgently Needed Service." That allowance for out-of-network services applies in terms only to care obtained outside the plan's geographical service area. Plaintiff no longer contends his treatment was so covered, and we do not address the issue further.
[3] When repeated in the less formal "Medical and Hospital Benefits" section of the plan booklet, the definition of emergency medical condition substitutes "the sudden onset of symptoms" for "acute symptoms." This rephrasing would appear to refute plaintiff's contention that, in the agreement, "acute" should be understood to mean "characterized by ... severity," rather than "having a sudden onset...." (Merriam-Webster's Collegiate Dict. (10th ed.1998) p. 12.) Moreover, both versions of the emergency condition definition address the severity of symptoms separately.
[4] The "Medical and Hospital Benefits" description recites that "Examples of medical conditions requiring Emergency Services include, but are not limited to, heart attacks, strokes, poisonings, active labor, or sudden inability to breathe."
[5] As plaintiff notes, statutes and regulations governing health care service providers such as PacifiCare specifically contemplate timely provision of services to enrollees. (E.g., Health & Saf.Code, § 1367, subd. (e)(1) ["All services shall be readily available at reasonable times to each enrollee consistent with good professional practice"]; id., § 1367.03, subd. (a)(1) [mandating promulgation of regulations "to ensure that enrollees have access to needed health care services in a timely manner," in consideration of, inter alia, "[w]aiting times for appointments with physicians, including primary care and specialty physicians"]; Cal.Code Regs., tit. 28, §§ 1300.67.1, subd. (d), 1300.67.2, subds. (d), (f).)
[6] In their motion, defendants argued that there was no basis for liability on the part of defendant PacifiCare Systems based on an alter ego theory. The trial court did not rely upon this ground in its ruling, and defendants have not reasserted it defensively here. We therefore do not expand the issues by addressing it.
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23 Cal. Rptr. 3d 685 (2005)
126 Cal. App. 4th 155
TRACI & MARX CO., Plaintiff and Appellant,
v.
LEGAL OPTIONS, INC. et al., Defendants and Respondents.
No. B168877.
Court of Appeal, Second District, Division 5.
January 28, 2005.
*686 Law Offices of Marc A. Legget and Marc A. Legget, Los Angeles, for Plaintiff and Appellant.
Snipper, Wainer & Markoff and Maurice Wainer, Los Angeles, for Defendants and Respondents.
ARMSTRONG, J.
Plaintiff Traci & Marx Co. appeals the grant of the motion of defendants Legal Options, Inc., and Stuart Grant to vacate the sister state default judgment obtained by plaintiff in Ohio. We conclude that the trial court erred in granting the motion, and so reverse the judgment.
FACTS[1]
Plaintiffs sued defendants in the Court of Common Pleas for Cuyahoga County, Ohio for fraudulent inducement to enter contract, bad faith, negligence, and fraud, and for violations of the Ohio Consumer Sales Practices Act, the Ohio Deceptive Trade Practices Act, and the Ohio Corrupt Activity Act. Their prayer for relief requested, among other things, "compensatory damages in excess of $25,000" and "punitive damages in excess of $25,000."[2] Defendants did not answer. The Ohio court conducted a "default hearing" on September 20, 2001, after which it granted plaintiff judgment against defendants in the amount of $25,890 as compensatory damages and $130,000 as punitive damages ("the Ohio Judgment"). On December 22, 2002, pursuant to the Sister State Money-Judgments Act (Code Civ. Proc., § 1710.10 et seq.), the Superior Court for Los Angeles County ordered entry of the Ohio Judgment in the amount of $171,793.50, representing the principal amount of the Ohio Judgment, along with accrued interest.
On January 17, 2003, defendants filed a motion to vacate sister state default judgment, seeking to collaterally attack *687 the Ohio Judgment on three separate bases: Lack of personal jurisdiction due to failure to serve defendants in the underlying action; lack of subject matter jurisdiction due to a forum selection clause in the underlying contract; and unenforceability of the Ohio Judgment because the damages awarded exceeded those sought in the complaint.
The trial court held an evidentiary hearing on defendants' motion to vacate. The court found that defendants were properly served in the Ohio action; that the forum selection clause of the underlying contract did not divest the Ohio court of subject matter jurisdiction; and that "the sums set forth in the [Ohio] default judgment exceeded those which could have been awarded. Since this Court has no authority to modify the Ohio judgment, the motion to vacate the entry of the sister state judgment must be, and hereby is, granted." Thus, the vacation of the judgment was based on the trial court's conclusion that the Ohio Judgment was in excess of the jurisdiction of the Ohio court in which it was rendered, because the damages awarded exceeded the prayer for relief in plaintiff's complaint. Plaintiff appeals this latter ruling.
DISCUSSION
We begin our analysis with the observation that "California must, regardless of policy objections, recognize the judgment of another state as res judicata, and this is so even though the action or proceeding which resulted in the judgment could not have been brought under the law or policy of California." (Silbrico Corp. v. Raanan (1985) 170 Cal. App. 3d 202, 207, 216 Cal. Rptr. 201, quoting World Wide Imports, Inc. v. Bartel (1983) 145 Cal. App. 3d 1006, 1011, 193 Cal. Rptr. 830.)
[A] sister state money judgment entered pursuant to the provisions of the Uniform Act may be vacated in California only when the statutory ground or grounds therefore have been established. Section 1710.40 provides in relevant part that `A judgment entered pursuant to this chapter may be vacated on any ground which would be a defense to an action in this state on a sister state judgment.' In elaborating on the defense available Code Civ. Proc. under section 1710.40, the Law Revision Commission makes the following comment: `Common defenses to enforcement of the sister state judgment include the following: the judgment is not final and unconditional (where finality means that no further action by the court rendering the judgment is necessary to resolve the matter litigated); the judgment was obtained by extrinsic fraud; the judgment was rendered in excess of jurisdiction; the judgment is not enforceable in the state of rendition; the plaintiff is guilty of misconduct; the judgment has already been paid; suit on the judgment is barred by the statute of limitations in the state where enforcement is sought.' (19A West's Ann.Codes (1982) p. 694; accord: 5 Witkin, Cal. Procedure (2d ed.1971) Enforcement of Judgment, 194-195, pp. 3549-3550; Rest.2d Conf. of Laws, 103-121.) (World Wide Imports, Inc. v. Bartel, supra, 145 Cal.App.3d at pp. 1009-1010, 193 Cal. Rptr. 830.)
Ohio law, like California law, limits a default judgment to the amount requested in the complaint or demand for judgment. (Ohio Civ.R.54(C); Code Civ. Proc., 580, subd. (a).) "A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." (See also Raimonde v. Van Vlerah (1975) 42 Ohio St. 2d 21, 27, 325 N.E.2d 544 ["In Ohio, a party is not limited to the relief claimed in the complaint, except when judgment by default is entered or when a judgment for money is *688 sought and awarded"], emphasis added.) As plaintiff notes, Ohio Civil Rule 54(C) was amended in 1994 to remove the second instance when relief is limited to the amount claimed in the complaint, that is, when a judgment for money is sought. Current Ohio law continues to limit the relief to that claimed in the complaint when the judgment is by default. The trial court below simply ruled that a default judgment for $25,890 in compensatory damages exceeded the requested relief of "in excess of $25,000" in compensatory damages, and the award of $130,000 in punitive damages exceeded the prayer of "in excess of $25,000" in punitive damages, rendering the judgment beyond the jurisdiction of the court. Contrary to plaintiff's argument, the trial court came to this conclusion not as a result of its reading or misreading of Ohio Civil Rule 54(C) or due to "the fact that the Appellant did not `prove up' its prayer to the amount of damages ultimately awarded by the Ohio Court," but because the court concluded that, in the absence of Ohio law, the California Supreme Court case of Becker v. S.P.V. Construction Co. (1980) 27 Cal. 3d 489, 165 Cal. Rptr. 825, 612 P.2d 915 was dispositive.
In Becker v. S.P.V. Construction Co., supra, plaintiff's complaint alleged breach of contract and fraud, and sought damages "in excess of $20,000 ... or according to proof," punitive damages of $100,000, and costs. A default judgment was entered for $26,457.50 in compensatory damages and $2,500 in attorney fees and costs. The appellants sought to collaterally attack the judgment as void on its face, because it granted relief which the court had no power to grant. The appellants maintained that the judgment violated Code of Civil Procedure section 580, which, like Ohio Civil Rule 54(C), requires that "[t]he relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint...." They contended that a compensatory damage award "in excess of $20,000 the largest amount specifically requested in the complaint" violated the statute. The appellants made the common sense argument which plaintiffs here propose, that "the prayer for compensatory damages `in excess of $20,000' was sufficient under [the statute] to provide adequate notice of defendants' potential liability for $26,457.50." (Id. at p. 493, 165 Cal. Rptr. 825, 612 P.2d 915.)
Our Supreme Court held that fundamental fairness requires that a default judgment be limited to "the specific amount of damages alleged in the complaint." Thus, in a default proceeding, a prayer for relief of an amount "in excess of" a specified dollar amount will result in an award of "no more than" that dollar amount. (See, e.g., Greenup v. Rodman (1986) 42 Cal. 3d 822, 826, 231 Cal. Rptr. 220, 726 P.2d 1295 ["the Courts of Appeal have consistently read the code to mean that a default judgment greater than the amount specifically demanded is void as beyond the court's jurisdiction"]; Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 432-433, 280 Cal. Rptr. 83, 808 P.2d 226; Engebretson & Co. v. Harrison (1981) 125 Cal. App. 3d 436, 444-445, 178 Cal. Rptr. 77 [a plaintiff's "prayer for damages `in excess of $5,000'" entitled that plaintiff to a default judgment of $5,000, but no more].) Thus, in a default proceeding in California, a prayer for relief "in excess of" a specified dollar amount will result in an award of "no more than" that dollar amount.
However, the issue before the trial court was not whether, under California law, a prayer for relief of an amount "in excess of" a specified dollar amount will result in an award of "no more than" than *689 that dollar amount, but whether the same result would obtain in Ohio. For as noted above, "California must, regardless of policy objections, recognize the judgment of another state as res judicata, and this is so even though the action or proceeding which resulted in the judgment could not have been brought under the law or policy of California." (Silbrico Corp. v. Raanan, supra, 170 Cal. App. 3d 202, 207, 216 Cal. Rptr. 201, quoting World Wide Imports, Inc. v. Bartel, supra, 145 Cal.App.3d at p. 1011, 193 Cal. Rptr. 830.) And defendants, whose burden it was to establish that the judgment was not enforceable in Ohio, failed to provide any Ohio authority to support their assertion that Ohio law provides that the "in excess of" language in the prayer for relief constitutes a ceiling rather than a floor for recoverable damages. (Tom Thumb Glove Co. v. Han (1978) 78 Cal. App. 3d 1, 5, 144 Cal. Rptr. 30 ["[T]he burden is on the party seeking relief to show by a preponderance of the evidence why he is entitled to it"].) Consequently, the trial court erred in vacating the judgment, since there was no basis to conclude that the Ohio court acted in excess of its jurisdiction, or that the judgment was not enforceable in Ohio.
In their supplemental letter brief, defendants request that, if we do not affirm the trial court's vacation of the Ohio judgment, that we remand the matter to the trial court for a hearing on damages. We decline the request. This is not an appeal of the Ohio judgment. Defendants had the opportunity to contest the damages in the Ohio action, and to appeal the Ohio judgment if they believed that the evidence did not support the damage award. That judgment is now final.
DISPOSITION
The order vacating the sister state default judgment is reversed and the matter is remanded to the trial court with instructions to enter judgment in favor of plaintiff in the amount of $171,793.50. Defendants shall bear costs of appeal.
I concur: TURNER, P.J.
MOSK, J., Concurring.
I concur.
Appellant Traci & Marx Co. (Traci & Marx), an Ohio company, obtained a default judgment in Ohio against respondent Legal Options, Inc. (Legal Options), a California company on a complaint based, inter alia, on fraud. The Ohio court awarded compensatory and punitive damages in the total amount of $155,890 plus interest. The majority concludes correctly that under Code of Civil Procedure section 1710.10, et seq., we must enforce a sister-state judgment that is contrary to California's public policy. (Medical Legal Consulting Services, Inc. v. Covarrubias (1991) 234 Cal. App. 3d 80, 90, 285 Cal. Rptr. 559; Tyus v. Tyus (1984) 160 Cal. App. 3d 789, 206 Cal. Rptr. 817.)
The Law Revision Commission stated with respect to Code of Civil Procedure section 1710.40 that a judgment debtor may move to vacate the entry of a sister state judgment "on any ground which would be a defense to an action in this state on the sister state judgment." (Recommendation: Enforcement of Sister State Money Judgments (Nov.1973) 11 Cal. Law Revision Com. Rep. § 1710.40, pp. 466-467, reprinted in 19A West's Ann. Cal.Codes (1982 ed.) foll. § 1710.40, pp. 693-694.) The grounds include, "the judgment is not enforceable in the state of rendition" and "the judgment was rendered in excess of jurisdiction." (Id.)
The majority suggests that because respondent has not provided us with explicit law demonstrating that the Ohio judgment was contrary to Ohio law, that judgment *690 must, in effect, be presumed to be lawful and that therefore the trial court may not, under Code of Civil Procedure section 1710.40, vacate the California judgment or enter a judgment different than the Ohio default judgment. Respondent did argue that the Ohio judgment was contrary to Ohio law and referred to some authorities, but not conclusive authorities.
I believe we should determine whether under Ohio law, the Ohio judgment was in excess of jurisdiction or was not enforceable in Ohio to see if the Ohio judgment should be vacated or modified under Code of Civil Procedure section 1710.40.
Ohio Civil Rule 8 provides that if a party seeks more than $25,000 in damages for a claim not based upon a written statement, the party shall state that fact in the demand for judgment, but shall not state the actual amount the party seeks. Under Ohio Civil Rule 54(C), "A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment."
It is widely recognized that entering a default judgment is unfair unless the defaulting defendant has notice of the judgment that may be taken against it. "The defendant is entitled to `"one `last clear chance' to respond to the allegations of the complaint and to avoid the precise consequences ... [of] a judgment for a substantial sum ... [without] any actual notice of ... potential liability...." ...' ... Indeed ... `knowledge of the alleged amount of damages may be crucial to a defendant's decision whether to permit a clerk's default' . . ." (Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 433, 280 Cal. Rptr. 83, 808 P.2d 226, superseded by statute on another ground; see also Becker v. S.P.V. Construction Co. (1980) 27 Cal. 3d 489, 493-494, 165 Cal. Rptr. 825, 612 P.2d 915, 10 Wright, Miller & Kane, Federal Practice and Procedure: (1998) Civil 3d § 2663, pp. 166-173; 46 Am.Jur.2d. (1994) Judgments § 312, pp. 628-630.)
Yet, if courts applied Ohio law in the manner suggested by Traci & Marx, a defendant in Ohio could limit damages to $25,000 by defaulting. One authority on Ohio procedure has noted as follows: "[A]ssuming the opposing party defaults, a question arises as to the damage amount the claimant may be awarded consistent with the limitation in the first sentence of Rule 54(C). Perhaps the provisions can be reconciled to provide that where the party's pleading states a request for damages in excess of $25,000 the court is free to award a larger amount since a larger, but indeterminate, amount is what was prayed for in the demand for judgment. Alternatively, if the opposing party defaults, perhaps the plaintiff then should be allowed to amend the pleadings to set forth the actual amount sought. With that accomplished, if the opposing party remains in default after being served with the amended claim for relief, a default judgment could be entered in line with the amount set forth in the amended pleading." (Fink, Greenbaum, Wilson, The Ohio Rules of Civil Procedure (2003) § 54.10, pp. XX-XX-XX-XX.) Such an amended claim specifying an amount of damages in excess of $25,000 for the type of allegations here does not appear to be consistent with Ohio Civil Rule 8.
As in this case, when there is a prayer for damages "in excess of $25,000," the defaulting party knows there is a risk of damages in an amount exceeding $25,000. Under Ohio Civil Rule 8(A), a defendant against whom a default is taken may request a statement of the precise amount of damages sought before the default hearing. Moreover, under Ohio Civil Rule 55(B), a party may move to vacate or set aside a default judgment. These provisions provide a defaulting party in Ohio *691 with some protection against the spectre of unknown and unlimited liability.
In view of these considerations, it appears that the Ohio trial court's decision awarding damages in excess of $25,000 in this case is in conformity with Ohio law. Legal Options has not submitted any persuasive authority to the contrary.
For these reasons, I concur in the judgment.
NOTES
[1] Pursuant to Evidence Code section 452, subdivision (a), we take judicial notice of the Ohio Rules of Civil Procedure.
[2] The prayer for relief conformed with Ohio Civil Rule 8(A), which reads in pertinent part: "A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. If the party seeks more than twenty-five thousand dollars, the party shall so state in the pleading but shall not specify in the demand for judgment the amount of recovery sought, unless the claim is based upon an instrument required to be attached pursuant to Civ. R. 10. At any time after the pleading is filed and served, any party from whom monetary recovery is sought may request in writing that the party seeking recovery provide the requesting party a written statement of the amount of recovery sought."
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18 Cal.Rptr.3d 390 (2005)
121 Cal.App.4th 1601
CALIFORNIA DEPARTMENT OF CORRECTIONS, Plaintiff and Appellant,
v.
STATE PERSONNEL BOARD, Defendant and Respondent;
Dianna Henning, Real Party in Interest and Appellant.
No. C044329.
Court of Appeal, Third District.
September 3, 2004.
*391 Linda D. Buzzini, Warren C. Stracener, Sacramento, and Christopher E. Thomas, for Plaintiff and Appellant.
Elise S. Rose, Sacramento, and Karen J. Brandt, for Defendant and Respondent.
Law Offices of Richard K. Werner and Richard K. Werner, Sacramento, for Real Party in Interest and Appellant.
Certified for Partial Publication.[*]
SIMS, J.
Real party in interest Dianna Henning, a public employee under the State Civil Service Act or SCSA (Gov.Code, § 18500 et seq.),[1] sought from her employer, California *392 Department of Corrections (CDC), reasonable accommodation of a disability (asthma).[2] CDC denied her request for reasonable accommodation and instead medically demoted Henning. (§ 19253.5) The State Personnel Board (SPB) issued a precedential decision in favor of Henning. (In re Henning (2001) SPB Dec. No. 01-01.) CDC filed a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5).
CDC appeals from the trial court judgment insofar as it denied CDC's petition. CDC contends (1) SPB erroneously construed the medical demotion statute as imposing a requirement on the employer to engage the employee in an "interactive process," and (2) SPB improperly concluded CDC had failed to engage adequately in an interactive process.
Henning cross-appeals from the trial court's ruling that SPB erred in applying the current statutory definition of disability rather than the statutory definition in effect at the time of CDC's actions with respect to Henning's request for reasonable accommodation.
We shall affirm the judgment.[3]
FACTUAL AND PROCEDURAL BACKGROUND
In October 1993, Henning who has had asthma all her life began working as Institution Artist/Facilitator (IAF) for the Arts-In-Corrections (AIC) program at the California Correctional Center (CCC) in Susanville. Her duties included teaching some art classes, administering the program, hiring and supervising contract artists who taught classes, overseeing inmate workers assigned to assist with the classes, and purchasing, inventorying and securing the tools used in the program. She worked in the art studio located within a building that also contained the prison's dry-cleaning facility. A solid wall with a door divides the two facilities, which have separate air filtration systems. The art studio is a large room, within which there are a small separate computer room and the IAF's office, the walls of which are made of transparent plexiglass.
In May 1997, Henning said a foul odor in the studio was making her dizzy. CCC concluded the odor came from a clogged sink trap and instructed Henning to keep it clear by regularly pouring water down the sink, which she did.
In November 1997, Henning and two contract artists expressed to prison officials concern about the air quality in the studio. There was no evidence of response by CDC.
In December 1997, perchloroethylene (an organic solvent) was spilled in the adjacent dry-cleaning facility. The spill was cleaned up immediately, but Henning complained the fumes triggered a serious asthma *393 attack for which she required prednisone.
In January 1998, Henning filed a workers' compensation claim.
Henning's asthma worsened, and her doctor, Dr. John Dozier, excused her from work for several weeks beginning February 13, 1998. On March 2, 1998, Dr. Dozier released her to return to work, on the condition she not work near the dry cleaning facility.
Since Henning could not work in the art studio, CCC temporarily reassigned her to the mailroom, but she did not like the assignment.
Henning asked CCC to order a high efficiency particulate air filter (HEPA filter) for her office, let her bring in her own filter in the interim, and switch her office with the computer room within the art studio. CCC granted her requests. CCC purchased a HEPA filter in April 1998, but it did not arrive until after Henning left her job in May 1998. As found by SPB, there was no evidence Henning ever switched her office with the computer room.
In connection with Henning's workers' compensation claim, a certified industrial hygienist inspected the air quality in the art studio on March 30 and 31, 1998. He made suggestions to improve the air quality, which were implemented by CCC. He issued a final report on April 29, 1998, attesting the air was considered safe by the California Occupational Safety and Health Act's (Lab.Code, § 6300 et seq. (Cal-OSHA)) standards, and there was no reason why anyone should have problems with the air quality in the studio.
Henning returned to work on May 4, 1998, but left on May 6, claiming she felt sick once again. She worked from home for a while. After being told she could no longer work from home, she never returned to work and ultimately retired in 2000.
In June 1998, CDC was forced to stop the AIC program due to Henning's absence. Shortly thereafter, Cal-OSHA officials performed a surprise inspection, which found the art studio was in compliance with Cal-OSHA's air quality standards.
On July 15, 1998, CDC's return-to-work coordinator, Cheryl Gaither, sent Henning an "options" letter, advising there were some options Henning could elect, some options she could request, and some steps the employer was mandated to take regarding her employment. She could elect resignation, service retirement, disability retirement, or demotion. She could request leave or reasonable accommodation. The letter also stated that if Henning was unable to work in her present classification, CDC would pursue a medical demotion to another position, and, "You are encouraged to participate in this process. You will be provided with a list of currently vacant suitable job opportunities review [sic]. You may indicate which positions you are interested in, and, you will be given an opportunity to demonstrate your qualifications for those positions. CDC will make an effort to place you in the highest paying vacant position for which you are qualified, which is not promotional and which meets your medical restrictions. If you do not choose to participate in this medical demotion process, you will be assigned to a currently vacant position for which our records indicate you are minimally qualified which is closest to your current salary." The letter ended with, "Please notify [CDC's] Return To Work Coordinator ... of your decisions and preferences within ten days of receipt of this letter."
Henning did not contact the coordinator concerning the options letter but did file a *394 request for reasonable accommodation a week or two later (as found by SPB), in which she identified her limitation and the requested accommodation as follows: "May not work in an area where there is heavy dust & dry-cleaning chemicals. A satellite office would be a viable option or moving AIC to the Lassen Unit."
CDC's coordinator sent Henning's request to the main office and kept in touch with Dr. Dozier, but did not contact Henning or send her the vacancy list promised in the options letter. As stated in the SPB decision, the coordinator felt Henning had made her choice by submitting the request for reasonable accommodation and did not want to participate in the medical demotion process.[4]
On April 13, 1999, CDC denied Henning's request for reasonable accommodation. The letter to Henning stated CCC had received medical verification from her doctor that she "cannot work in the current location of the [AIC] Program. Therefore, [CCC] has provided you with an opportunity to continue your employment with [CDC] in the position of a Business Services Officer I [BSO I]." The letter said CDC could not accommodate the modifications she requested because: (1) providing a satellite office would significantly limit the essential functions of her job as IAF; (2) CCC was not equipped with a space large enough to move the IAF's office or use as a satellite office; (3) Cal-OSHA and an industrial hygienist had concluded Henning's work area was a safe and healthy work environment; and (4) a medical report stated her asthma was not of an industrial nature and her medical condition would exist regardless of where her work area was located.
Before sending the April 1999 denial of the request for reasonable accommodation, CDC began processing the medical demotion referenced in its July 1998 options letter. In February 1999, CDC's return to work coordinator obtained a list of vacancies at CCC to determine an alternative position for Henning. The coordinator obtained only a CCC vacancy list, because she assumed Henning would not wish to move from the area. The coordinator reviewed the list without sending it to Henning and ultimately chose to demote Henning to the position of BSO I, because it was the closest in salary. The IAF salary was about $3,838 per month, including $400 for supervising inmates. The BSO I salary was $3,619 per month.
On February 5, 1999, CDC served Henning with a notice of medical demotion, demoting her to BSO I, because "your June 1997 non-industrial injury precludes your continued employment as an Institution Artist Facilitator."
On March 2, 1999, Henning's doctor informed CDC that Henning was physically able to return to work on March 19 in the administration building. Henning did not return to work but instead submitted another letter from her doctor on April 13, explaining she was not physically able to work at all until July 3, 1999, and was excused as "fully disabled" until then. Since then, there is no evidence that Henning's doctor has released her to work, or that she has attempted to return to work. *395 Since leaving CCC, Henning has worked intermittently as a teacher in various schools.
Henning pursued an administrative appeal from the medical demotion and denial of reasonable accommodation.
In May 2000, following an administrative hearing, an administrative law judge (ALJ) issued a proposed decision to uphold CDC's actions.
SPB rejected the ALJ's proposed decision and heard the matter itself.
In April 2001, SPB issued its decision, designated a "Precedential" decision as authorized by section 19582.5. (In re Henning, supra, SPB Dec. No. 01-01.) SPB concluded Henning was a qualified individual with a disability (because her asthma "limit[ed]" her ability to participate in major life activities) and was therefore entitled to reasonable accommodation. While she was not entitled to the two particular accommodations she requested, CDC was obligated to engage her in an interactive process. CDC initially engaged in an interactive process but ceased to communicate after Henning filed her formal request for accommodation. SPB said, "Had [CDC] contacted [Henning] and explained in a timely manner why it would not be granting the reasonable accommodations she requested and fully explored remaining alternatives with her, it is possible that the parties would have been able to find a solution to meet both their needs." In a footnote, SPB suggested alternatives such as filtering the air in the entire studio as opposed to her office only, transferring her to another position, or transferring her to a different institution. SPB accordingly granted the appeal "only to the extent that the parties are required to engage in an interactive process to determine whether [Henning] can otherwise be reasonably accommodated."
As to Henning's appeal from the medical demotion, SPB concluded section 19253.5[5] "similarly requires that state agencies engage in an interactive process with an employee, regardless of the employee's disability status, before invoking a medical demotion, transfer or termination. [CDC] failed to participate in such a process with [Henning] before medically demoting her and, thus, we [SPB] revoke the medical demotion." SPB said, "[CDC] promised [Henning] it would send her a list of vacancies to solicit her input and failed to do so. Therefore, [CDC] is estopped to deny that [Henning] was not [sic] entitled to participate in the process of selecting an alternative position. If [the return to work coordinator] had sent [Henning] a list of vacancies for her input and [Henning] had failed to respond, the interactive process requirement would likely have been fulfilled." If the parties could not agree after engaging in an interactive process, CDC could still demote Henning, and she could appeal.
In August 2002, CDC filed in the trial court a petition for writ of administrative mandamus.
*396 On June 16, 2003, the trial court issued a judgment granting the petition in part and denying it in part. The court concluded, in CDC's favor, that SPB used the wrong legal standard for determining whether Henning qualified as disabled for reasonable accommodation purposes. SPB erred in applying the current statute (defining disability as "limit[ing]" a major life activity) rather than the statute in effect at the time of CDC's actions (which defined disability as "substantially limit[ing]" a major life activity). The court also concluded SPB erroneously failed to consider appropriate mitigation measures, e.g., medication devices, in determining whether Henning qualified as disabled. The court directed SPB upon remand to reassess the case under the appropriate standards.
The trial court nevertheless concluded SPB did not abuse its discretion in finding CDC failed to engage adequately in the interactive process relative to the reasonable accommodation case.
Finally, the judgment stated SPB did not abuse its discretion in determining that the "other pertinent information" language in the medical demotion statute, section 19253.5, requires the employer to engage the employee in an interactive process.
The judgment accordingly (1) ordered issuance of a writ of mandamus remanding the case to SPB to rewrite its decision applying the proper legal standard for disability; and (2) stated the writ petition was otherwise denied.
The writ was issued on June 17, 2003.
CDC filed a notice of appeal, stating it was appealing from the entire judgment, except that portion of the judgment granting its writ petition.
Henning filed a notice of cross-appeal from the judgment.
DISCUSSION
I. Standard of Review
"In reviewing a decision of [SPB] on a petition for administrative mandamus, we stand in the same shoes as the trial court, applying the substantial evidence rule." (Kuhn v. Dept. of General Services (1994) 22 Cal.App.4th 1627, 1632, 29 Cal.Rptr.2d 191.) "We do not reweigh the evidence; we indulge all presumptions and resolve all conflicts in favor of the board's decision." (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 701, 62 Cal.Rptr.2d 775.)
Insofar as the appeal from the administrative mandamus proceeding presents questions of law, our review is de novo. (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404, 107 Cal.Rptr.2d 39.)
We respect but do not necessarily defer to SPB's interpretations of the governing statutes. (Kuhn v. Department of General Services, supra, 22 Cal.App.4th 1627, 1639, 29 Cal.Rptr.2d 191 [we apply a "`respectful but nondeferential standard of review'" to SPB interpretations of governing statutes].) The judiciary takes ultimate responsibility for the construction of statutes, although according great weight and respect to the administrative construction such as is appropriate under the circumstances. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7, 11-13, 78 Cal.Rptr.2d 1, 960 P.2d 1031 (Yamaha).)
II. CDC's Appeal
A. Statutory Construction"Other Pertinent Information"
CDC contends SPB erred by writing into the medical demotion statute (§ 19253.5) a requirement that the employer must engage in an interactive process with the employee. We shall conclude CDC's appeal on this point lacks merit.[6]
*397 California Constitution, article VII, section 3, subdivision (a), provides: "The board [SPB] shall enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions." SPB must necessarily interpret, enforce, and administer the SCSA, section 18500 et sequitur. (Camarena v. State Personnel Bd., supra, 54 Cal.App.4th 698, 702, 62 Cal.Rptr.2d 775.)
It is appropriate in this case to give great weight to SPB's interpretation of section 19253.5, because (1) SPB is constitutionally empowered to "enforce the civil service statutes" (Cal. Const., art. VII, § 3, subd. (a)); (2) SPB has expertise and familiarity with satellite legal issues; and (3) this record reflects careful consideration of the issue by SPB. (Yamaha, supra, 19 Cal.4th 1, 11-13, 78 Cal.Rptr.2d 1, 960 P.2d 1031.)
As indicated, section 19253.5 provides in part: "(c) When the appointing power, after considering the conclusions of the medical examination and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, but is able to perform the work of another position including one of less than full time, the appointing power may demote or transfer the employee to such a position." (Italics added.)
CDC argues SPB impermissibly rewrote section 19253.5 to add an "interactive process" requirement. We disagree.
SPB simply construed "other pertinent information" to include the employee's thoughts about whether she should be reassigned and to what position she should be reassigned. SPB construed the statute as affirmatively requiring the employer to seek out the employee's views, as opposed to mere passive consideration of unsolicited input from the employee. The interactive process is simply the vehicle for obtaining this information. As stated by SPB: "Without seeking input from the affected employee as to his or her needs or desires, a department taking a medical action under section 19253.5 will not have the information necessary to consider the impact on the employee of the action contemplated. Unlike an adverse action, a medical action under section [19253.5] is not disciplinary in nature. Rather, it is a vehicle that allows departments to reassign employees to other positions when they are physically or mentally unable to perform the duties of their current position, until such time as they are once again able to perform the duties. As we stated in our decision in Gerardo Manriquez [(In re Manriquez (1997) SPB Dec. No. 97-05 (Manriquez))], section 19253.5 must be construed as imposing an affirmative obligation on departments to attempt to minimize the impact of a medical disability on an employee's job status. While the financial impact of a demotion may be paramount to most employees, for other employees financial impact may not be the only consideration. Thus, we construe section 19253.5 to require departments to engage employees in the same interactive process already required for disabled *398 employees in order to seek out `other pertinent information' that may be relevant to their decision-making process before invoking a medical action." (Fns.omitted.)
SPB's interpretation is reasonable. An obligation actively to solicit the employee's views is within the scope of the statutory language that the employer may demote an employee only "after considering the conclusions of the medical examination and other pertinent information." (§ 19253.5, subd. (c).)
CDC argues SPB erred in construing "other pertinent information" to include the employee's thoughts. CDC invokes the maxim of ejusdem generis, that when general words follow the enumeration of particular things, the general words will be construed as applicable only to things of the same general nature as those enumerated. CDC cites Nakamura v. Superior Court (2000) 83 Cal.App.4th 825, 834, 100 Cal.Rptr.2d 97, that the reasoning behind this rule is the Legislature would not have mentioned the particular thing if it intended the general words to be used in an unrestricted sense, because that would render the particular item surplusage. According to CDC, the general words "other pertinent information" should only include items in the same general class as "conclusions of the medical examination." However, the maxim of ejusdem generis, as indicated, applies where a general term follows an enumeration of particulars. For example, Nakamura construed a statute prohibiting recovery of "non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages." (Id. at p. 833, 100 Cal.Rptr.2d 97, italics omitted.) Here, there is no enumeration, no list of particulars. There are just "conclusions of the medical examination." Moreover, even if the maxim applied here, CDC acknowledges "other pertinent information" would include statements by the employee relating to his or her ability to perform the job. Thus, the employer would still be required to engage the employee in an interaction.
CDC gets caught up on the term "interactive process." CDC argues the statute makes no express reference to "interactive process." CDC further argues that, because the "interactive process" language is used in the Fair Employment and Housing Act (FEHA) (§ 12940, subd. (n) [unlawful for employer to fail to engage in interactive process to determine reasonable accommodation]), the omission of the words "interactive process" from the medical demotion statute (§ 19253.5) means medical demotions do not require an interactive process. CDC criticizes SPB's statement that it makes little sense to engage employees in an interactive process for reasonable accommodation purposes but not for medical demotion purposes. CDC argues the Legislature could not have intended "other pertinent information" to mandate an "interactive process," because the words "other pertinent information" existed in the statute long before the term "interactive process" became a part of disability law.
We recognize the term "interactive process" may be a term of art in contexts such as the FEHA. However, insofar as the term generically expresses the principle of eliciting an employee's views, it is not a patented concept. We need not decide whether the term "interactive process" must have identical meaning in all employment contexts. Whatever the parameters of "interactive process," the principle of engaging the employee was clearly violated here where CDC failed to fulfill its promise to give Henning a list of vacant positions, to get her input before demoting her.
*399 We disagree with CDC's assertion that this case tracks our opinion in Kuhn v. Department of General Services, supra, 22 Cal.App.4th 1627, 29 Cal.Rptr.2d 191, where we rejected SPB's interpretation of a different part of the medical demotion statutesection 19253.5, subdivision (h)which accords reinstatement rights to demoted employees, subject to satisfactory completion of a "new probationary period." We rejected SPB's interpretation that the phrase "new probationary period" in section 19253.5, subdivision (h), meant a "medical probationary period" (entitling the employee to further reinstatement rights) as opposed to a regular civil service probationary period. We said "medical probation" was not a term reflected in the statute. (Id. at p. 1638, 29 Cal.Rptr.2d 191.) Applying a "`respectful but nondeferential standard of review'" to SPB's interpretation of the statute, we said SPB had no authority to fashion a hybrid civil service classification or to enlarge statutes in the guise of interpretation. (Id. at pp. 1638-1639, 29 Cal.Rptr.2d 191.) Kuhn does not help CDC because, in this case, SPB has not overstepped its bounds.
CDC complains Manriquez, supra, SPB Dec. No. 97-05, at page 19 (the SPB precedent cited by SPB), merely declared, in discussing the medical demotion statute, that "[i]n engaging in such a process, the department would, ideally, meet with the affected individual to determine all available positions within his or her medical limitations." (Italics added.) CDC argues that, because Manriquez said, "ideally," the interactive process cannot be mandatory. CDC says it could reasonably have relied upon Manriquez. However, CDC does not say it did rely upon Manriquez, nor does CDC cite any evidence in the record demonstrating such reliance. Moreover, the Manriquez quote cited by CDC did not say the interactive process was an ideal, but rather that the employer would ideally meet with the employee.
CDC next argues SPB's interpretation of section 19253.5, subdivision (c), is undermined by the absence of the words "other pertinent information" from section 19253.5, subdivision (e), which provides: "The appointing power may demote, transfer, or terminate an employee under this section without requiring the employee to submit to a medical examination when the appointing power relies upon a written statement submitted to the appointing power by the employee as to the employee's condition or upon medical reports submitted to the appointing power by the employee." According to CDC, subdivision (e) creates a separate procedure for medical demotions based on medical reports produced by the employee (as was the case here) as opposed to medical examinations by employer-designated doctors. We disagree. Subdivision (e) merely allows an employer to use medical reports provided by the employee in lieu of requiring the employee to submit to a medical examination by a doctor designated by the employer (as authorized by subdivision (a) of section 19253.5).
We conclude CDC fails to show any reversible error with respect to SPB's statutory interpretation.
B. Adequacy of CDC's Efforts[**]
III. Henning's Cross-Appeal
Henning cross-appeals from the trial court's determination that SPB applied the wrong standard of disability with respect to her request for reasonable accommodation. Whereas SPB inquired (under the current version of section 19231) whether Henning had a medical condition that "limit[ed]" *400 a major life activity, the trial court determined the proper test was (under the former version of section 19231 in effect at the time of CDC's actions) whether her condition "substantially limit[ed]" a major life activity. Henning argues SPB correctly applied the current statute. She alternatively argues her condition does substantially limit a major life activity.
We shall conclude the trial court was correct. The proper standard is the statute in effect at the time of CDC's actions. For reasons we explain post, we will not address Henning's alternative argument.
In our view, this issue does not require that we defer to SPB's decision. (Yamaha, supra, 19 Cal.4th 1, 11-13, 78 Cal.Rptr.2d 1, 960 P.2d 1031.) We are not reviewing SPB's construction of a statute but rather its decision as to which version of the statute to apply. This implicates general legal principles of prospective-versus-retrospective application of statues.
At the time of CDC's actions, the SCSA defined disability as a "substantial limitation" on a major life activity. Thus, former section 19231 provided, "(a) As used in this article [hiring of disabled persons], the following definitions apply: [¶] (1) `Individual with a disability' means any individual who (A) has a physical or mental impairment which substantially limits one or more of that individual's major life activities . . . . [¶] An individual with a disability is `substantially limited' if he or she is likely to experience difficulty in securing, retaining, or advancing in employment because of a disability." (Stats.1992, ch. 913, § 28, p. 4328, italics added.)
By the time SPB decided the case in 2001, section 19231 had been amended in 2000 to its present version, which defines the disabled as "any individual who has a physical or mental disability as defined in [FEHA] Section 12926." (Stats.2000, ch. 1048, § 1.) In turn, section 12926 (as amended by Stats.2000, ch. 1049, § 5) defines disability as a disorder or condition that "[l]imits a major life activity." (§ 12926, subd. (k)(1)(B).)
The 2000 legislation (the Poppink Act) that amended both the SCSA and the FEHA, went into effect on January 1, 2001. (Cal. Const., art. IV, § 8; Stats. 2000, ch. 1049, § 1, et seq.; Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022, 1026, 130 Cal.Rptr.2d 662, 63 P.3d 220 (Colmenares).)
"`[I]t is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.'" (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207, 246 Cal.Rptr. 629, 753 P.2d 585.)
No such intent is demonstrated in this case.
Henning relies on Colmenares, supra, 29 Cal.4th 1019, 130 Cal.Rptr.2d 662, 63 P.3d 220, which held that the 2000 amendment of the FEHA applied to an employee who lost his job in 1997, because in the 2000 legislation "the Legislature intended not to make a retroactive change, but only to clarify the degree of limitation required for physical disability under the FEHA." (Id. at p. 1028, 130 Cal.Rptr.2d 662, 63 P.3d 220.)
However, unlike the statute at issue in this case (which had the word "substantially" excised by the Poppink Act), both "before and after passage of the Poppink Act the FEHA's test was `limits,' not substantial limits."[8] (Colmenares, supra, 29 *401 Cal.4th 1019, 1030, 130 Cal.Rptr.2d 662, 63 P.3d 220.) The Supreme Court reviewed the history of the FEHA, noting that (1) the FEHA did not originally define impairment but a 1980 administrative regulation of the Fair Employment and Housing Commission (FEHC) defined handicap as a "substantial limitation"; (2) federal law (the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA)) used the "substantial limitation" test; (3) a 1992 amendment of the FEHA generally modeled the definition of disability on the ADA, except for the "substantial limitation" test; and (4) the "substantial" qualifier was removed from the FEHC regulation in 1995. (Id. at pp. 1024-1027, 130 Cal.Rptr.2d 662, 63 P.3d 220.) Colmenares described as dictum a comment in a prior FEHA case, Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1060, 22 Cal.Rptr.2d 287, 856 P.2d 1143, requiring an employee to show his back injury "substantially limited" his ability to work. (Colmenares, supra, 29 Cal.4th at p. 1029, 130 Cal.Rptr.2d 662, 63 P.3d 220.)
Colmenares noted that "[w]hen the 1992 Legislature made the just-described amendments to the FEHA, it also amended various non-FEHA statutes by defining `disability' in those statutory schemes using the more stringent federal test of `substantial limits.' Thus, it inserted the federal definition of disability, including the requirement that a disability must substantially limit a major life activity, into provisions prohibiting disability discrimination . . . with respect to state civil service employment ([] § 19231). (Stats. 1992, ch. 913 . . . .) These changes were consistent with the 1992 Legislature's stated intent `to strengthen California law where it is weaker' than the ADA, that is, in the non-FEHA statutes, `and to retain California law when it provides more protection for individuals with disabilities than' the ADA, that is, in the FEHA. (Stats.1992, ch. 913, § 1, p. 4282.)" (Colmenares, supra, 29 Cal.4th 1019, 1025-1026, 130 Cal.Rptr.2d 662, 63 P.3d 220.)
The Supreme Court continued: "Not only did the Poppink Act of 2000 leave unchanged the `limits' test in the FEHA, it also amended other, non-FEHA, statutes to delete the term `substantial' from the limitation test these statutes had used since 1992. Legislative committee analyses explained that the Poppink Act `standardizes' the definition of physical disability `in California civil rights laws, clarifying that California's disability protections are broader than federal protections.' . . . Thus, the Poppink act deleted from . . . the state civil service scheme ([] § 19231) the requirement that a disability must substantially limit a major life activity, thereby conforming those statutes to the `limits' test of the FEHA." (Colmenares, supra, 29 Cal.4th 1019, 1027-1028, 130 Cal.Rptr.2d 662, 63 P.3d 220.)
Colmenares concluded, "This pattern of Legislative action compels our conclusion that in 2000 the Legislature intended not to make a retroactive change, but only to clarify the degree of limitation required for physical disability under the FEHA." (Colmenares, supra, 29 Cal.4th 1019, 1028, 130 Cal.Rptr.2d 662, 63 P.3d 220, italics added.)
Thus, the Poppink Act changed the law in the non-FEHA statutes, including the statute at issue in this appeal, section 19231. The change applies prospectively.
*402 Insofar as Henning views this as a double standard for FEHA and SCSA cases, CDC points out it was Henning who chose not to pursue a claim under the FEHA. (State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 435, 444, 217 Cal.Rptr. 16, 703 P.2d 354 [FEHA applies to civil service employees, who may pursue remedies under both FEHA and CSCA].)
SPB has filed a brief in this court defending its decision to apply the new statute. SPB notes it is a constitutional agency charged with overseeing the civil service laws. (Cal. Const., art. VII, § 3.) SPB cites the policy of protecting disabled workers, as reflected in the civil service laws. (§§ 19230, 19233.) SPB explains it based its decision on its own precedents in which it stated it would apply definitions of the ADA, FEHA, or SCSA, "whichever were more protective" of the state employee.
Of course, the SPB precedents are not binding on this court. (Yamaha, supra, 19 Cal.4th 1, 11, 78 Cal.Rptr.2d 1, 960 P.2d 1031.)
In the precedential decisions, SPB said the anti-discrimination provision of section 19702[9] (which prohibits discrimination and says the ADA definition of disability will prevail over section 19702's definition if the ADA provides broader protection) reflected an intent to provide state employees with the broadest possible civil rights. However, this policy does not authorize SPB to rewrite section 19231 to ignore its express language. Nor does anyone show how section 19702 applies to this case. Even assuming section 19702 applies to reasonable accommodation cases, section 19702 says the ADA definition of disability will prevail over section 19702's definition if the ADA definition is broader. The ADA definition is not broader with respect to the matter at issue in this appeal, because it defines disability as "substantially" limiting a major life activity. (42 U.S.C. § 12102.)
SPB also cites section 18675, subdivision (b), which provides: "During the investigation or hearing of a complaint of discrimination, harassment, or retaliation of a state employee, the board hearing officer, the departmental hearing officer, the board investigator, or the departmental investigator shall give due consideration to current laws and decisions applicable to the state civil service in arriving at a recommended decision. The recommended decisions of the hearing officer and the board shall include references to those laws and decisions applied." (Italics added.)
Nothing on the face of section 18675 authorizes SPB to apply a current statute that directly conflicts with the version of the statute in effect at the time of the employer's actions.
*403 We conclude the trial court correctly held SPB erred in applying the current statute.
Henning alternatively argues that, even if the proper test is "substantial limitation" on a major life activity, her condition met that test. However, we will not address this argument, because the answer will depend upon the impact of mitigation measures, which the trial court ordered SPB to consider, in a court ruling unchallenged by Henning.
Thus, the trial court ruled an additional ground for remand was that "the law, as it existed prior to 2001, required [SPB] to consider appropriate mitigation factors (e.g., medication devices) in determining whether Ms. Henning qualified as disabled. [SPB] failed to consider mitigating measures."
Henning's brief on appeal says nothing about mitigation factors. SPB's brief says in a footnote, with no citation to authority, that when Henning filed her appeal in 1998 there was no requirement in section 19231 for the employer to consider mitigating measures or apply the federal court interpretations of the ADA with respect to mitigating measures.
CDC, as respondent on the cross-appeal, argues Henning and SPB, by failing adequately to address the matter, have waived any challenge to the trial court's ruling regarding mitigation measures. We agree. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979, 21 Cal.Rptr.2d 834 [reviewing court need not consider points not argued or not adequately argued with citation to authority].)
We conclude Henning has forfeited any challenge to the trial court's ruling requiring SPB to consider the effect of mitigation measures.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a)(4).)
We concur: SCOTLAND, P.J., and BLEASE, J.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Part II. B. of the DISCUSSION.
[1] Undesignated statutory references are to the Government Code.
[2] Henning's request appears to have been based on section 19230, subdivision (c), which provides in part: "It is the policy of this state that a department, agency, or commission shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee who is an individual with a disability, unless the hiring authority can demonstrate that the accommodation would impose an undue hardship on the operation of its program."
[3] We grant SPB's March 4, 2004, request for judicial notice of precedential SPB decisions. We also grant SPB's "Second Request" for judicial notice, also filed March 4, 2004, which sought judicial notice of the SPB precedential decision that is the subject of this appeal. (In re Henning, supra, SPB Dec. No. 01-01.)
SPB has filed a brief in this appeal, defending its application of the definition of disability and its determination that CDC was required to engage in an interactive process with Henning before demoting her.
[4] The coordinator testified regarding the letter's promise to provide a list of vacancies as follows: "That is if she participates voluntarily in the process. Because she elected reasonable accommodation, she did not elect to this process. Therefore, when a reasonable accommodation is denied, for whatever basis, this is one of the options the [CCC] has to take without having to go, without it having to be a voluntary process." The coordinator testified she never gave the vacancy list to Henning because Henning "never asked me for it" and "did not voluntarily opt this option."
[5] Section 19253.5 subdivision (c) provides in part: "(c) When the appointing power, after considering the conclusions of the medical examination and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, but is able to perform the work of another position including one of less than full time, the appointing power may demote or transfer the employee to such a position." (Italics added.)
In lieu of a medical examination by a doctor designated by the employer (as authorized in subdivision (a) of section 19253.5), the employer may rely upon medical reports submitted by the employee. (§ 19253.5, subd. (e).)
[6] On appeal, Henning claims, "SPB did not add the additional requirement of interactive process to the medical demotion action by the CDC. They [sic] simply concluded that had the interactive process been followed, the medical demotion would not have been necessary and therefore was improper." Henning misstates the record. SPB's decision expressly stated, "we construe section 19253.5 [the medical demotion statute] to require departments to engage employees in the same interactive process already required for disabled employees [fn. omitted] in order to seek out `other pertinent information' that may be relevant to their decision-making process before invoking a medical action."
[**] See footnote *, ante.
[8] Henning on cross-appeal claims, "FEHA, as it read prior to the 200[0] amendment, defined physical disability as a condition that `substantially limits a major life activity.' ([] section 12926(k)(1)(B).) (Emphasis added.)" Henning is wrong. Before the 2000 amendment, the statute did not contain the word "substantially" with respect to limits on major life activity. (Stats.1999, ch. 592, § 3.7; Stats.1998, ch. 99, § 1; Stats.1993, ch. 1214, § 5, p. 6964.)
[9] Section 19702 currently provides: "(a) A person shall not be discriminated against under this part because of sex, race, religious creed, color, national origin, ancestry, marital status, physical disability or mental disability . . . . [¶] (b) As used in this section, the term `physical disability' has the definition set forth in Section 12926 [of the FEHA] . . . . [¶] . . . [¶] (d) . . . [I]f the definition of disability used in the federal [ADA] would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (b) or (c), then that broader protection shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (b) and (c). The definitions of subdivisions (b) and (c) shall not be deemed to refer to or include conditions excluded from the federal definition of `disability' pursuant to Section 511 of the federal [ADA] (42 U.S.C. Sec. 12211 [e.g., homosexuality, sexual behavior disorders, gambling, kleptomania, pyromania, or substance use disorders from current illegal drug use].)"
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211 Ga. 125 (1954)
84 S.E.2d 195
BOATRIGHT et al.
v.
YATES, Superintendent, et al.
18733.
Supreme Court of Georgia.
Argued September 15, 1954.
Decided October 13, 1954.
Aubrey W. Gilbert, William H. Stanford, Jr., for plaintiffs in error.
Robert D. Tisinger, R. J. Brown, contra.
CANDLER, Justice.
The petition in this case contains two counts. In substance, count one alleges that the Carroll County Board of Education on February 2, 1954, during a regular meeting of the board, by resolution provided for the establishment of a high school, to be known as Central High School for the communities of Mt. Zion, Roopville, Temple, and Whitesburg; that the board then decided to have all high school pupils residing in those communities attend the new high school; and that plans for the construction of a separate building for those high-school pupils were at that time formulated by the board. In making such decision, the board acted arbitrarily and wilfully abused its discretion since it, for stated reasons, acted contrary to the best interest of the school children of those communities. It is also alleged in this count of the petition that the board, by direction from the State Board of Education, conducted a public hearing on April 21, 1954, for the purpose of giving those interested in the board's aforesaid school program an opportunity to be heard, but the hearing "was utterly futile, a hollow formality and a mockery of justice." From the board's decision, no appeal was taken to the State Board of Education, as provided for by Code § 32-910; but it is alleged that it would have been impossible for the petitioners, as interested parties, to have perfected an appeal in view of their inability to get up a brief of the evidence which the board heard while sitting as a school-court. This count of the petition contains a prayer that the board be temporarily and permanently enjoined from going forward with its program to establish a high school *126 and erect a new high-school building in and for that area of the county mentioned in the petition. Among many grounds, this count of the petition was demurred to generally on the following grounds: 1. It shows that the petitioners have an adequate and complete remedy at law which they have not pursued. 2. It shows that the petitioners failed to appeal the board's decision with which they are dissatisfied and about which they complain in count one of the petition to the State Board of Education, and no sufficient reason for their failure to do so is alleged. 3. It shows no reason why a court of equity should invade the jurisdiction of school-courts which have power to hear and finally determine the controversy about which count one of the petition complains. These three grounds of the demurrer were sustained.
Count two of the petition alleges that section 1 of an act which the legislature passed in 1953 (Ga. L. 1953, Nov.-Dec. Sess., p. 282) is violative of several enumerated provisions of the Georgia Constitution of 1945. The section so assailed provides: "The board of education of any county or independent school system is hereby authorized and empowered, if, in their opinion, the welfare of the schools of the county or independent system and the best interests of the pupils require, to reorganize the schools within their jurisdiction and to determine and fix the number of grades to be taught at each school in their respective systems." This count of the petition was demurred to generally on the ground that section 1 of the act of 1953 is not shown to be unconstitutional for any reason alleged. This ground of the demurrer was also sustained. The exception is to a judgment dismissing the petition as a whole on the grounds of general demurrer stated above. Held:
1. "Equity will not take cognizance of a plain legal right, where an adequate and complete remedy is provided by law." Burress v. Montgomery, 148 Ga. 548 (2) (97 S. E. 538); Code § 37-120.
2. One or more high schools or junior high schools may be established in any county of this State by the county's board of education. Code § 32-933; Smith v. Tolbert, 160 Ga. 268 (127 S. E. 868). See, in this connection, Sheffield v. State School Building Authority, 208 Ga. 575 (68 S. E. 2d 590), and Irwin v. Crawford, 210 Ga. 222 (78 S. E. 2d 609).
3. Code (Ann.) § 32-910 provides: "The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county board and testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools." And Code § 32-414 also declares that "The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive." Under article VI, section I, paragraph I, of the Constitution of 1877, the legislature was authorized to create these school-courts or school-tribunals *127 and confer jurisdiction on them to hear and determine school controversies such as the one here involved. Board of Education of Long County v. Board of Education of Liberty County, 173 Ga. 203 (159 S. E. 712). This being true, the plaintiffs had an adequate and complete remedy at law; and the allegations of the petition show no reason why a court of equity should assume jurisdiction for the purpose of hearing and determining the controversy involved in the instant case. In this connection see Keever v. Board of Education of Gwinnett County, 188 Ga. 299 (3 S. E. 2d 886); Pass v. Pickens, 204 Ga. 629 (51 S. E. 2d 405); Burton v. Kearse, 204 Ga. 765 (51 S. E. 2d 796).
(a) And a different ruling is not required in the case at bar by the amendment to article VIII, section V, paragraph I of the Constitution of 1945 (Code, Ann., § 2-6801), which provides for the election of the members of the Board of Education of Carroll County from defined areas by the qualified voters thereof. Ga. L. 1952, p. 564.
4. In this State the constitutionality of a statute will not be passed on in any case unless a determination of its validity is necessary in order to decide the merits of the suit in which the constitutionality of the statute has been drawn in question. Lee v. State, 184 Ga. 327 (1) (191 S. E. 256), and citations. For the reasons previously stated, this case can be disposed of without the necessity of considering and passing on the constitutionality of the school act of 1953, and we will therefore make no ruling on the validity of that act.
5. The judgment complained of is not erroneous for any reason assigned.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., who dissents.
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Order Michigan Supreme Court
Lansing, Michigan
February 7, 2011 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
141147(35) Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
CARLTON LAMONT BROWN, Brian K. Zahra,
Plaintiff-Appellant, Justices
v SC: 141147
COA: 296305
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s October 26,
2010 order is considered, and it is DENIED, because it does not appear that the order was
entered erroneously.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 7, 2011 _________________________________________
d0131 Clerk
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364 F. Supp. 120 (1973)
UNITED STATES of America
v.
W. Kenneth RILAND, Defendant.
No. 73 Crim. 311.
United States District Court, S. D. New York.
September 28, 1973.
Paul J. Curran, U. S. Atty., S. D. N. Y., James Schreiber, Richard Wile, Asst. U. S. Attys., for plaintiff.
Kostelanetz & Ritholtz, Boris Kostelanetz, John J. Tigue, Jr., Edward J. Daus, New York City, for defendant.
MEMORANDUM
STEWART, District Judge:
Defendant, Dr. W. Kenneth Riland, by his attorney, moves to quash two subpoenas served by the government upon the attorney; to compel disclosure of exculpatory material; and for a further Bill of Particulars.
I. Motion to Quash Subpoenas
The government has served two subpoenas duces tecum on Mr. Boris Kostelanetz, *121 attorney for the defendant. The first subpoena, served upon Mr. Kostelanetz on September 4, 1973, commands production of "The original work papers of BERNARD WEINER and/or the firm of FREDERICK S. TODMAN & CO. for the preparation of or documentation of the tax returns for W. KENNETH and GLADYS G. RILAND for the years 1962 through and including 1970" (hereinafter "Weiner work papers"). The second subpoena, served on September 10, 1973, commands production of "the original cash receipts and disbursement book belonging to NORMAN GOFFNER, reflecting receipts and disbursements of Kenneth Riland for the years 1962 through and including 1970" (hereinafter "Goffner book").[1] At the time of service of the subpoenas upon him, Mr. Kostelanetz was in the midst of preparing to represent the defendant at trial, and thus in possession of both sets of documents sought in the subpoenas. Invoking the defendant's Fifth Amendment privilege against self-incrimination, Mr. Kostelanetz has moved to quash both subpoenas.
For the reasons stated, this Court grants the motion to quash the subpoena requiring production of the Goffner book, but denies the motion to quash the subpoena seeking production of the Weiner work papers.
The Supreme Court has recently held that only someone in rightful possession of documents may invoke the privilege against self-incrimination when compelled by subpoena to produce these documents. Couch v. United States, 409 U.S. 322, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973). The Court rejected petitioner's argument that ownership of, or title to business records allowed him to invoke his privilege, when those records were rightfully in the possession of his accountant. The Court stated:
Such a holding [that the Fifth Amendment privilege was linked to ownership] would thus place unnecessary emphasis on the form of communication to an accountant and the accountant's own working methods . . . 409 U.S. at 331, 93 S.Ct. at 617.
At a hearing on this motion, there was much discussion about who owned the documents, including questions of who owned the actual paper or book, and who owned the information contained thereon. Ownership or title may be relevant to the issue of who may terminate another's rightful possession by requesting return of documents (see B. infra); but ownership or title are not dispositive as to who may invoke the privilege.
We find that, regardless of who owned the documents or the information on them, Mr. Kostelanetz' possession of them, if rightful, at the time of service of the subpoenas would allow him to invoke his client's privilege against self-incrimination.
A. Goffner book
The government does not seriously contest Mr. Kostelanetz' rightful possession of the Goffner book on September 10, 1973. However, the government argues that defendant's attorney's possession is not equivalent to defendant's possession; and that the attorney cannot raise his client's Fifth Amendment privilege in this situation.
We do not find this argument persuasive. In this case, as a matter of convenience for trial preparation, Mr. Goffner turned the receipts and disbursement book over to the defendant's attorney. There is nothing in the record to indicate that he would not have turned it directly over to the defendant had he been requested to do so, and much to indicate the contrary. The mere fact that a defendant's attorney, while preparing his defense, acquires possession of papers which otherwise *122 would be held by the defendant, should not, and does not, vitiate the defendant's constitutional privilege. An attorney may raise his client's Fifth Amendment claim as a basis for refusing to produce records held by the attorney, if the client had grounds to raise such a claim. Colton v. United States, 306 F.2d 633, 639 (2d Cir. 1962); United States v. Judson, 322 F.2d 460, 467-468 (9th Cir. 1963); 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2307.[2]
B. Weiner papers
The original work papers of Bernard Weiner were also in Mr. Kostelanetz' possession on the date the subpoena compelling their production was served on him. However, prior to service, Mr. Weiner's attorney requested that Mr. Kostelanetz return the work papers to Mr. Weiner. In light of this pre-subpoena request for return of the documents, and as the defendant does not seriously contest that Mr. Weiner (or his firm) owns the original work papers, and thus could reasonably request their return, we find that Mr. Kostelanetz did not have rightful possession on the date of service of the subpoena for the purpose of invoking his client's privilege against self-incrimination. Deck v. United States, 119 U.S.App.D.C. 240, 339 F.2d 739 (1964) cert. denied, 379 U.S. 967, 85 S. Ct. 660, 13 L. Ed. 2d 560 (1965).
II. Motion for "Brady Material"
Alleging that there may have been certain weaknesses in the government's investigation of this case, defendant moves for production of work records of the investigators and other documents evidencing such weaknesses, as exculpatory matter required to be produced under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
This Court is satisfied that Assistant U. S. Attorney Schreiber understands full well the government's obligation under Brady. Defendant's papers fail to persuade this Court that the government is withholding from the defendant any material which would in any way tend to be exculpatory to the defendant on the questions of guilt or punishment. See e. g., Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972). Therefore, defendant's motion for "Brady material" is denied.
III. Motion for a Further Bill of Particulars
Defendant's motion for a further Bill of Particulars is denied. The government has already turned over detailed and comprehensive discovery material, which is periodically updated as the Assistant U. S. Attorney receives new data. Defendant's current motion goes beyond material appropriate for a Bill of Particulars and seeks to discover the government's theory of the case and evidence, and is therefore denied. United States v. Louis Correau, Inc., 42 F.R. D. 408 (S.D.N.Y.1967) (J. Mansfield); United States v. Giglio, 16 F.R.D. 268 (S.D.N.Y.1954).
It is so ordered.
NOTES
[1] Subpoenas requesting production of these same documents were also served on Messrs. Weiner and Goffner respectively.
[2] While there is not pending a motion to quash the subpoena served on Mr. Goffner on September 6, 1973, we feel obliged to point out that the government should not be permitted to do indirectly what the Constitution forbids it to do directly; that is, infringe on the defendant's privilege against self-incrimination. In light of the fact that Mr. Goffner, under oath, has denied ownership of the book, and did not have possession on the date the subpoena was served upon him, we would deem unreasonable, pursuant to Rule 17(c), F.R.Cr.P., any legal compulsion brought to bear upon Mr. Goffner with respect to that document.
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364 F. Supp. 166 (1973)
Alicia MORALES et al.
v.
James TURMAN, Individually and in his official capacity as Executive Director of the Texas Youth Council, et al.
Civ. A. No. 1948.
United States District Court, E. D. Texas, Sherman Division.
August 31, 1973.
*167 *168 *169 Peter Sandmann, Youth Law Center, San Francisco, Cal., Steven L. Bercu, Richardson, Tex., William P. Hoffman, Jr., Washington, D. C., for plaintiffs.
John L. Hill, Atty. Gen. of Tex., Austin, Tex., Robert Salter, Staff Atty., Gatesville, Tex., Larry York, Joe B. Dibrell, Jr., Max P. Flusche, Jr., and Thomas W. Choate, Asst. Attys. Gen., Austin, Tex., for defendants.
Louis M. Thrasher, Michael Lottman, William Malcolm Logan, Jr., Daniel E. Maeso, and Michelle White, Attys., Civil Rights Div., Dept. of Justice, Washington, D. C., for the United States, amicus curiae.
Larry A. Schwartz, Patricia Wald, Attys., Mental Health Law Project, Washington, D. C., for American Orthopsychiatric Assn., American Psychological Assn., and American Assn. on Mental Deficiency, amici curiae.
JUSTICE, District Judge.
FINDINGS OF FACT
1. Plaintiffs are minor children who represent a class consisting of all juveniles (hereinafter juveniles or TYC inmates) who are presently, have been in the past, or may be in the future adjudicated delinquent pursuant to Vernon's Tex.Rev.Civ.Stat.Ann. art. 2338-1, involuntarily committed to the custody of the Texas Youth Council (hereinafter the TYC), pursuant to Tex.Rev.Civ.Stat. Ann. art. 5143d, and assigned to one of the six schools under the jurisdiction of the TYC: Mountain View, Gatesville, Giddings, Gainesville, Crockett, and Brownwood. (The names of these schools correspond to the names of the Texas cities in which they are located, except for Mountain View, which is located near Gatesville, Texas.)
2. Defendants are Dr. James A. Turman, Executive Director of the TYC, members of the TYC appointed by the Governor with the consent of the Senate, and various employees of the TYC responsible for the supervision of the above-described schools (hereinafter TYC personnel).
3. The Mountain View State School for Boys is a maximum security facility operated by the TYC. It is surrounded by two fences, both of which are topped with barbed wire. A juvenile may be initially assigned to Mountain View as a *170 result of a staff determination that his pre-commitment conduct evinces dangerous propensities or he may be transferred there from one of the other TYC institutions for boys, usually Gatesville, as a result of a decision that his conduct is unsatisfactory. Thus, there are at least some boys incarcerated at Mountain View whose delinquent behavior consists of such "status" offenses as truancy, incorrigibility, or running away from home. There are also some boys at Mountain View who were transferred there from other schools for such essentially nonviolent, uncooperative behavior as swearing at correctional officers, refusing to work, or running away.
4. The decision whether to initially assign a boy to Mountain View or to transfer him to Mountain View from one of the other institutions for boys is made by a classification committee. Many of the persons on the committee have no knowledge of Mountain View, and no firm criteria exists to guide their decision. Time limitations make adequate psychiatric examination difficult, if not impossible; deliberations are carried on in the boys' absence; and boys are not informed of the committee's decision prior to the actual assignment or transfer.
5. Correctional officers at Mountain View presently administer, or have in the past administered, various forms of physical abuse, including slapping, punching, and kicking. One form of this physical abuse, referred to as "racking," consists of requiring the inmate to stand against the wall with his hands in his pockets while he is struck a number of times by blows from the fists of correctional officers. Other abuse consists of correctional officers administering blows to the face with both open and closed hands.
No testimony was adduced to justify this punishment on the grounds of protecting persons or property. Certain employees of the TYC have consistently engaged in this abuse of the juveniles in their care. As a result of these practices, the climate at Mountain View is one of repression and fear. The administrative staff of Mountain View and the central office of the TYC have been less than diligent in their efforts to eradicate these practices at Mountain View, with the result that inmates of Mountain View do not feel secure in reporting brutal conduct on the part of correctional officers to higher authorities.
6. Tear gas and similar chemical substances have been used by agents or employees of the defendants on Mountain View inmates in situations in which no riot or other disturbance was imminent. One inmate, for example, was tear-gassed while locked in his cell for failure to work; another was gassed for fleeing from a beating he was receiving; and another was gassed by a correctional officer supervisor while he was being held by two 200-pound correctional officers.
7. Mountain View's history, well-known to the inmates of both Mountain View and Gatesville, has been one of brutality and repression. Its reputation has in no small part been a function of ineffective leadership and a staff unqualified by education, experience, or personality to effect the rehabilitation of delinquents. Mountain View cannot be operated as a minimally adequate facility without a competent and sensitive Superintendent.
8. Correctional officers at institutions other than Mountain View, primarily Gatesville, presently administer, or have in the past administered, various forms of physical abuse to TYC inmates, including slapping, punching, and kicking.
9. Complaints regarding physical abuse of TYC inmates at Mountain View and other institutions are supposed to be the subject of "incident reports," filed by all TYC inmates and personnel involved. Specific procedures vary from one institution to another, however, and falsification of reports by correctional officers particularly at Mountain View, and by inmates, under duress of the correctional officers, is widespread. Many *171 correctional officers force an inmate to file a report that reflects that an injury was caused by a football game, for example, rather than by the use of force by the correctional officer. Moreover, many inmates testified to fear of reprisals by correctional officers for the truthful reporting of instances of physical abuse.
10. Some Mountain View inmates are segregated from the general population on the basis of purported homosexuality and race. Two dormitories, referred to by TYC inmates and personnel as "punk dorms," are set aside for the smaller boys and for those determined by the custodial staff, on the basis of nonclinical standards, to be homosexuals. One dormitory is for black inmates, and the other is for Anglo and Mexican-American inmates. Experts testifying for both the plaintiffs and the defendants and the various amici groups were unanimous in concluding that the permanent segregation of inmates on the basis of purported homosexuality was psychologically damaging. Some juveniles, however, have already been stigmatized and identified as purported homosexuals by being placed in one of the so-called "punk dorms." It is apparent that immediate and indiscriminate return of these juveniles to the general population would pose a danger to their safety.
11. The average length of stay for TYC inmates at Mountain View is approximately a year and a half, at least fifty percent longer than the average length of stay for inmates at either of the other boys' institutions.
12. Experts testifying for the plaintiffs, the various amici groups, and the defendants, except for certain TYC personnel, were unanimous in concluding that only a very small percentage of juveniles adjudged delinquent should be placed in a maximum security facility.
13. In order that the provisions of this order be understood and observed by all persons employed at Mountain View, which institution has the worst history of brutality and repression of any TYC facility, it is necessary that a person trusted by Mountain View inmates be appointed to serve as an Ombudsman to whom inmates and staff may go with grievances and to whom all meetings and records touching upon the operation of Mountain View or the assignment of juveniles to Mountain View are open. It is necessary that this Ombudsman be empowered to report directly to the court any violations of its order and to make recommendations to TYC concerning compliance with the order.
14. Mr. Charles Derrick, presently Chief of Casework Services at Mountain View, enjoys the confidence of both administration and inmates, as evidenced by the agreement of all the parties in this civil action that he serve during the course of litigation as an Ombudsman to protect the rights of juveniles who were witnesses in the case.
15. Juveniles at many or all of the TYC institutions are subject to placement in security facilities, variously called "Security Treatment Center," "Special Treatment Cottage," "STC," or similar designations. In at least some of the institutions, the infirmary is used occasionally as a security facility.
16. Juveniles are, or have been in the past, confined to security facilities for conduct that is not seriously disruptive of the institution's program and for conduct that poses no threat to the safety of any person or to the preservation of valuable property.
17. Most or all of these security facilities contain single rooms or cells in which juveniles are, or have been in the past, locked for periods of time as long as a month or more, with no opportunity to leave the cell except for daily bathing, hygiene, and eating. Many juveniles so confined have little or no contact with casework, medical, or psychological staff during the period of their confinement.
18. In some institutions, inmates are locked into cells to which no person in the immediate vicinity has a key; in the event of an emergency, the key to the cell must be secured from a person who is *172 not in the building and who may not arrive with the key for a period of several minutes.
19. In some institutions, inmates confined to a security facility or placed in solitary confinement receive very little or no educational instruction during the period of their confinement. They are ordinarily not allowed to attend regular school classes, but may receive instruction from special tutors who visit the facility or may work independently on assigned material. Sometimes they are not even permitted access to school materials.
20. Inmates in some security facilities have been forced to perform repetitive, make-work tasks, such as pulling up grass without bending their knees or buffing a floor for hours with a rag. During the pendency of this lawsuit, inmates were permitted to adopt a kneeling posture, rather than a bending posture with unbent knees, for the performance of the grass-pulling.
21. Inmates in some security facilities are forbidden to sleep except during certain hours, and are penalized by longer confinement or physical punishment if they fall asleep during hours when sleeping is not permitted. This rule is enforced even against inmates who are taking regular doses of medication that induces drowsiness.
22. Some inmates are, or have been in the past, confined to cells that are almost bare of furnishing and do not contain the minimum bedding necessary for comfortable and healthful sleep.
23. Inmates in some security facilities are, or have been in the past, instructed that they may not speak for the duration of their confinement except to answer when spoken to.
24. Experts were unanimous in their opinion that solitary confinement of a child in a small cell is an extreme measure that should be used only in emergency situations to calm uncontrollably violent behavior, and should not last longer than necessary to calm the child. Experts also agreed that the child should not be left entirely alone for long periods, but that some person should check on the child at frequent intervals and be responsible for making the solitary confinement a constructive rather than a punitive effort. Experts also testified that often confinement of a child to his own dormitory room for a short period succeeds in calming him and restoring order to the environment.
25. Experts testified that prolonged confinement of a child to a single building can be harmful unless the child is receiving a great deal of attention during the time of confinement. Experiments in sensory deprivation have shown that the absence of many and varied stimuli may have a serious detrimental effect upon the mental health of a child.
26. In some institutions, doors to the dormitory rooms are either locked or chained as a matter of course during certain hours of the day and throughout the night. Sometimes inmates are not permitted access to regular bathroom facilities but must use a chamber pot in their rooms if they cannot wait until the designated hour for use of the bathroom.
27. Experts testified that denying a child access to a regular bathroom whenever he needs it is demeaning and unnecessary. Experts also testified that the practice of confining inmates to their dormitory rooms as a matter of course is damaging to a child's self-respect and physical development.
28. The incoming and outgoing mail of inmates, except that to or from attorneys, is subject to being read or censored, in one form or another, in at least some of the TYC institutions. Similarly, many of the institutions retain policies in one form or another regarding the number and length of letters that inmates may write and limitations on the persons to whom they may write.
29. The speaking of Spanish by inmates is, or has been in the past, discouraged and has been in the past the subject of disciplinary action by TYC *173 personnel. Approximately 23.9% of the inmates in the six TYC facilities involved in this civil action are Mexican-American. Some can speak little or no English.
30. Visitation policies regarding the number of visits, the length of visits, and the number of visitors permitted vary from one institution to another. At most of the institutions, however, families of inmates are encouraged to visit on only one Sunday a month and are permitted to visit at other times only after prior arrangements are made. At the Mountain View School STC, visitation is limited to ten or fifteen minutes a month by the parents.
31. None of the six schools under the jurisdiction of TYC (excepting only Giddings, as to which no evidence was offered) has available a registered nurse available on the premises on a 24-hour basis.
32. TYC institutions have no system to screen psychologically prospective employees to determine their suitability for working with children. Former Mountain View correctional officers testified that they were hired after only a ten-minute interview with the assistant superintendent and no further screening. A psychologist at the Gatesville Reception Center and a psychological consultant to the Gatesville State School for Boys testified that testing techniques exist to screen out potentially abusive prospective employees and that psychologists at Gatesville are equipped to administer such testing.
CONCLUSIONS OF LAW
1. This court has jurisdiction of this civil action under the first, eighth, and fourteenth amendments to the United States Constitution, 42 U.S. C.A. § 1983, and 28 U.S.C.A. §§ 1331, 1343, and 2201-2202. Pendent jurisdiction also exists to decide questions arising from alleged violations of rights secured by state statutes in the context of this lawsuit. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). See generally Tex. Rev.Civ.Stat.Ann. art. 5119 et seq. (1971).
2. The eighth amendment's prohibition against cruel and unusual punishment applies to state as well as federal government. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). The protection applies not only to convicted persons but also to non-convicted persons held in custody. Hamilton v. Love, 328 F. Supp. 1182 (E.D.Ark.1971). Juveniles held in state institutions are protected by the eighth amendment. Lollis v. New York State Department of Social Services, 322 F. Supp. 473 (S.D.N.Y.1970).
3. The widespread practice of beating, slapping, kicking, and otherwise physically abusing juvenile inmates, in the absence of any exigent circumstances, in many of the Texas Youth Council facilities, particularly the Mountain View and Gatesville schools, violates state law, Tex.Rev.Civ.Stat.Ann. art. 5130 (1971), the avowed policies of the Texas Youth Council, Tex.Rev.Civ.Stat. art. 5143d § 1 (1971), and the eighth amendment to the United States Constitution. This kind of punishment, which is administered not merely in the absence of legislative authorization, whether express or implied, but rather in express derogation of state law, violates the eighth amendment because it is so severe as to degrade human dignity; is inflicted in a wholly arbitrary fashion; is so severe as to be unacceptable to contemporary society; and finally, is not justified as serving any necessary purpose. See Furman v. Georgia, 408 U.S. 238, 257-306, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Brennan, J.); see also Jackson v. Bishop, 404 F.2d 511 (8th Cir. 1968).
4. The use of tear gas and other chemical crowd-control devices in situations not posing an imminent threat to human life or an imminent and substantial threat to property but merely as a form of punishment constitutes cruel and unusual punishment in violation *174 of the eighth amendment. Landman v. Royster, 333 F. Supp. 621, 649 (E.D.Va.1971).
5. Placing inmates in solitary confinement or secured facilities, in the absence of any legislative or administrative limitation on the duration and intensity of the confinement and subject only to the unfettered discretion of correctional officers, constitutes cruel and unusual punishment in violation of the eighth amendment. See Furman v. Georgia, supra at 257-306 of 408 U.S., 92 S. Ct. 2726; see also Inmates v. Affleck, 346 F. Supp. 1354 (D.R.I.1972).
6. Requiring inmates to maintain silence during periods of the day merely for purposes of punishment, and to perform repetitive, nonfunctional, degrading, and unnecessary tasks for many hours the so-called make-work, such as pulling grass without bending the knees on a large tract of ground not intended for cultivation or any other purpose, or moving dirt with a shovel from one place on the ground to another and then back again many times, or buffing a small area of the floor for a period of time exceeding that in which any reasonable person would conclude that the floor was long since sufficiently buffed constitutes cruel and unusual punishment in violation of the eighth amendment. See Furman v. Georgia, supra at 257-306 of 408 U.S., 92 S. Ct. 2726.
7. Racial segregation of any state-operated facility is unconstitutional. Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954); Washington v. Lee, 263 F. Supp. 327 (M.D.Ala.1966).
8. The initial placement or subsequent transfer of inmates to Mountain View, the maximum security unit, absent any attempt through a hearing that comports with minimal due process requirements to determine which of the juvenile offenders pose a danger to society, constitutes a violation of the fourteenth amendment. See, e. g., Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Clutchette v. Procunier, 328 F. Supp. 767 (N.D.Cal.1971).
9. Although the limitation on permissible censorship of the mail of adult prisoners remains uncertain, it is clear that any restrictions upon the important first amendment freedom of communication must bear, at the very least, a rational relationship to the advancement of a legitimate state interest. See, e. g., Nelson v. Heyne, 355 F. Supp. 451, 457-58 (N.D.Ind.1972); Palmigiano v. Travisono, 317 F. Supp. 776 (D.R.I.1970). The defendants have advanced no legitimate state interest, much less a compelling interest, that is served by the reading or censoring of incoming or outgoing mail or by limitation of the persons with whom inmates may correspond. A legitimate state interest in preventing the flow of contraband into Texas Youth Council institutions justifies only the least restrictive practices adequate to achieve that interest in this case, the opening of incoming mail in the presence of the inmate to whom it is addressed for the sole purpose of examining it for contraband. Nelson v. Heyne, supra.
10. The practice of prohibiting or discouraging juveniles in TYC institutions from conversing in languages other than English, under circumstances that would not give rise to similar prohibitions on the speaking of English, is a violation of the first amendment to the Constitution.
11. The law of the state of Texas requires that the TYC adhere to its statutory duty to provide "a program of constructive training aimed at rehabilitation and reestablishment in society of children adjudged delinquent." Tex. Rev.Civ.Stat.Ann. art. 5143d § 1 (1971). This law confers upon each juvenile committed to the custody of the Texas Youth Council a right to humane and rehabilitative treatment directed toward the ultimate purpose of reintegrating the child into society. See Smith v. State, 444 S.W.2d 941, 948 (Tex.Civ. App. San Antonio 1969, writ ref. n. r. e.); In re Gonzalez, 328 S.W.2d 475 *175 (Tex.Civ.App. El Paso 1959, writ ref. n. r. e.).
In addition to this state statutory right, the commitment of juveniles to institutions under conditions and procedures much less rigorous than those required for the conviction and imprisonment of an adult offender gives rise to certain limitations upon the conditions under which the state may confine the juveniles. This doctrine has been labelled the "right to treatment," and finds its basis in the due process clause of the fourteenth amendment. See, e. g., Nelson v. Heyne, supra at 459 of 355 F.Supp.; Inmates v. Affleck, supra; see also Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala.1971) (mental institutions), discussed in 86 Harv.L.Rev. 1287 (1973). Thus juveniles committed to the custody of the Texas Youth Council enjoy both a state statutory and a federal constitutional "right to treatment."
12. The segregation by untrained correctional officers of some inmates from the general population on the basis of suspected homosexuality constitutes a violation of their state and federal right to treatment.
13. Failure to allow and encourage full participation of family and interested friends in the program of a youthful offender constitutes a violation of the juvenile's state and federal right to treatment.
14. The practice of withholding or neglecting to provide casework, nursing, and psychological or psychiatric services to juveniles confined in solitary confinement or security facilities constitutes a violation of their state and federal right to treatment.
15. Failure to provide inmates of a maximum security institution such as Mountain View, which has a history of brutality, neglect, and intimidation, with access to a person who can hear their complaints and seek administrative redress for their grievances without fear of reprisals, constitutes a violation of their state and federal right to treatment.
16. Confinement of juveniles in an institution in which a nurse is not available on the premises twenty-four hours a day constitutes a violation of their state and federal right to treatment.
17. The employment by the TYC of persons whose personalities, backgrounds, or lack of qualifications render them likely to harm the juveniles in their care either physically or psychologically, absent any attempt to administer the appropriate psychological testing or psychiatric interviews, constitutes a violation of the juveniles' state and federal right to treatment. In particular, failure to employ an individual who is qualified by education, experience, and personal attributes to superintend the rehabilitation of juveniles who have engaged in seriously delinquent behavior constitutes a violation of those juveniles' state and federal right to treatment.
18. The plaintiffs are without an adequate remedy at law that would protect them against the wrongs described in the foregoing findings of fact.
19. It is appropriate at this time for the court to enter a preliminary injunction to enjoin certain of the practices complained of by the plaintiffs, because their continuation would work irreparable injury, both physical and psychological, upon members of the plaintiff class.[1]See, e. g. Nelson v. Heyne, supra; Inmates v. Affleck, supra.
EMERGENCY INTERIM RELIEF
In accordance with the findings of fact and conclusions of law set out *176 above, which are preliminary only and made solely for the purpose of responding to the plaintiffs' motion for emergency interim relief (joined in by the United States and the other amici group) it is
Ordered that the defendants, their officers, agents, servants, and employees, and those persons in active concert or participation with them who receive actual notice of this order by personal service or as otherwise hereinafter provided, are hereby enjoined, pending final order of this court, from operating the facilities of the TYC in any way inconsistent with the following provisions of this order:
USE OF PHYSICAL FORCE
1. Except to the extent that the use of corporal punishment is governed by Tex.Rev.Stat.Ann. art. 5130,[2] the use of physical force of any kind by any TYC personnel on any TYC inmates shall not be permitted except to the extent reasonably necessary (i) in self-defense, (ii) in defense of third persons, whether TYC inmates or TYC personnel or others, (iii) in effecting restraint on TYC inmates in the act of escaping, or (iv) to prevent substantial destruction of property.
(a) In defending persons or property, the threat to persons must be imminent, and the threat to property must be both imminent and substantial.
(b) The use of physical force must never exceed that reasonably necessary to effect the purposes permitted in (1) above. In effecting restraint on TYC inmates in the act of escaping, the force reasonably necessary does not include striking or beating.
2. The use of Mace is prohibited.
3. The use of tear gas or any other crowd-control chemical substance is prohibited except to the extent reasonably necessary to bring under control a riot that threatens imminent harm to human life or imminent and substantial destruction of property.
4. Any TYC inmate who considers that he has been the victim of any use of force by a TYC employee that is prohibited by this order may file with his caseworker (or in the absence of his caseworker, some other caseworker) a report setting out the allegations. This report shall be forwarded forthwith to the superintendent of the institution concerned. Within ten days of the date of the alleged incident, the superintendent shall investigate the alleged incident and file a written report detailing his findings and conclusions with all counsel in this civil action and with this court.
SEGREGATION
1. Effective immediately, no TYC inmates shall be segregated or assigned to dormitories or other facilities on the basis of race, color, or national origin.
2. No TYC inmates not now residing in a dormitory designed to segregate inmates suspected of homosexuality from the rest of the TYC inmate population shall be assigned to such a dormitory; provided, however, that the removal of *177 inmates who now reside in such a dormitory back to the general population shall not be required, nor shall it be prohibited.
SOLITARY CONFINEMENT, SECURITY, AND DORMITORY CONFINEMENT
A. DEFINITIONS
"Solitary confinement" is defined as the placing of a TYC inmate alone in a other than a room in the inmate's own locked or otherwise secured room or cell dormitory.
"Security" is defined as the placing of a TYC inmate in a locked or otherwise secured building, which may contain one or more solitary confinement rooms or cells. The definition includes, but is not limited to, a Security Treatment Cottage or infirmary.
"Dormitory confinement" is defined as the placing of a TYC inmate alone in a locked or otherwise secured room in his own dormitory.
B. DECISION TO PLACE IN SOLITARY CONFINEMENT OR SECURITY
1. No TYC inmate shall be placed in solitary confinement, security, or dormitory confinement, or otherwise confined in a room or building, except in conformance with this order; provided, however, that nothing herein shall be construed to prohibit locking the outer doors of dormitory buildings during normal sleeping hours. This provision does prohibit, however, the confinement of juveniles in individual dormitory rooms or cells by chaining or night-latching their doors, except in conformance to section E herein.
2. No TYC inmate shall be placed in solitary confinement or security by any TYC personnel for longer than one hour in the absence of a written statement, signed by the inmate's caseworker (or, in his absence, by some other caseworker), declaring that the caseworker has talked to or visited with the inmate and has concluded that such confinement meets the standards set out hereafter in (C)(1) or (D)(1), whichever is applicable.
C. SOLITARY CONFINEMENT
1. No TYC inmate shall be placed in solitary confinement unless such confinement is clearly necessary to prevent imminent physical harm to the inmate or to other persons or clearly necessary to prevent imminent and substantial destruction of property.
2. While confined in solitary confinement, the inmate shall be visited by his caseworker (or, in his absence, by some other caseworker) for a period of ten minutes each hour until his release from solitary confinement, excepting only the hours between 10:00 p. m. and 7:00 a. m. The inmate shall be visted by a registered nurse at least once a day; if he is confined for longer than one day, a psychiatrist or a psychologist shall consult with the inmate and afford him such treatment as is indicated on a daily basis beginning no later than the second day of such confinement.
In no event shall an inmate be placed in solitary confinement for longer than three consecutive days in the absence of a written report prepared and signed by the inmate's caseworker, detailing the justification for such confinement. Copies of this report shall be forwarded forthwith to the Executive Director of TYC, all counsel in this civil action, and to this court. If such confinement exceeds five consecutive days, the burden of preparing and filing these written reports shall shift to the Executive Director of TYC.
3. No TYC inmate shall be placed in solitary confinement unless a person within calling distance of the inmate is at all times in possession of a key to the isolation room or cell.
D. SECURITY
1. No TYC inmate shall be confined in security unless such confinement is clearly necessary to prevent escape or clearly necessary to restrain behavior *178 that creates substantial disruption of the routine of the institution.
2. While confined to security, the inmate shall be visited at least once a day by his caseworker (or, in his absence, some other caseworker) and by a registered nurse. If he is confined for longer than one day, a psychiatrist or a psychologist shall consult with the inmate and afford him such treatment as is indicated no later than the second day of such confinement.
In no event shall an inmate be confined to security for longer than three consecutive days in the absence of a written report prepared and signed by the inmate's caseworker, detailing the reasons for such confinement. Copies of these reports shall be forwarded forthwith to the Executive Director of the TYC, all counsel in this civil action, and to this court. If such confinement exceeds ten consecutive days, the burden of preparing and filing these reports shall shift to the Executive Director of TYC.
E. DORMITORY CONFINEMENT
1. As an alternative to placement in solitary confinement or security, a TYC inmate may be placed in dormitory confinement.
2. No TYC inmate shall be placed in dormitory confinement unless such confinement meets the standards prescribed for solitary confinement in C(1) or for security in D(1). In no event shall dormitory confinement exceed fifty minutes.
F. CONDITIONS OF SOLITARY CONFINEMENT, SECURITY, AND DORMITORY CONFINEMENT.
The following provisions shall apply to all TYC inmates (whether placed in solitary confinement, security, dormitory confinement, or otherwise):
1. A bed, mattress, appropriate bedding, and access to a toilet (not a chamber pot) shall be provided for all TYC inmates in the place where they sleep.
2. The so-called "silence rule," requiring that confined inmates sometimes maintain silence during periods of the day other than those that reasonably require some order (such as academic or vocational classes) shall not be enforced.
3. All TYC inmates shall enjoy the opportunity for at least one hour of large-muscle exercise or recreation on a daily basis, unless dispensed with by a physician (in the case of bodily infirmities) or a psychiatrist (in the case of mental conditions) in writing.
4. School books and daily lesson plans that reflect an amount of daily instruction consistent with the educational practices of the school program in the institution as a whole shall be provided all TYC inmates, unless a psychiatrist otherwise directs in writing.
5. Repetitive, nonfunctional, degrading, and unnecessary tasks (so-called "make work", such as buffing a waxed floor that has already been sufficiently buffed or pulling grass in an open field not intended for cultivation or any other purpose) are prohibited.
6. No TYC inmate shall be disciplined for sleeping during periods of the day other than those that reasonably require some attention by the inmate (such as academic or vocational classes or work other than the so-called "make work," referred to in (5) above.) In no event, however, shall any discipline be administered that is inconsistent with other parts of this order.
MAXIMUM SECURITY CONFINEMENT: MOUNTAIN VIEW
1. No juvenile committed to the custody of the Texas Youth Council and not now assigned to Mountain View State School for Boys (hereinafter referred to as Mountain View) shall be assigned or transferred to Mountain View after the date of this order except upon a written finding by the classification committee that the juvenile has in the past, either prior to or subsequent to commitment, committed acts that, if committed by an adult, would constitute the offense of murder, voluntary manslaughter, kidnapping, aggravated kidnapping, rape, aggravated *179 rape, sexual abuse, aggravated sexual abuse, sexual abuse of a child, aggravated assault, deadly assault on a peace officer, arson, robbery, or aggravated robbery, as defined in the Texas Penal Code (approved June 14, 1973; effective January 1, 1974), Tex.Laws 1973, ch. 399. Definitions of all terms relevant to these crimes shall be governed by the new Texas Penal Code.
2. Any juvenile that the classification committee considers a candidate for assignment or transfer to Mountain View shall be present at the committee meeting during all deliberations about his assignment. He shall be given an opportunity to make any statements and ask any questions that he desires. If the committee decides to assign or transfer the juvenile to Mountain View, it must prepare written reasons justifying the assignment or transfer and furnish forthwith a copy thereof to all counsel in this civil action and to this court.
3. Mountain View shall be administered in accordance with all other applicable provisions of the court's order, including but not limited to those provisions concerning use of physical force and tear gas and the employment of solitary confinement, security, and dormitory confinement.
OMBUDSMAN
1. Mr. Charles L. Derrick shall serve during the pendency of this interim order as Ombudsman for the juvenile inmates of the Mountain View State School for Boys. He shall have the duty of reporting to this court any matters concerning the operation of the Mountain View facility that should be brought to the court's attention, especially any violations of this court's order. He may, if he wishes, forward a copy of his reports to any other interested party, but he shall not be required to do so.
2. All inmates and staff members of Mountain View shall have free access to Mr. Derrick, and no person shall interfere with Mr. Derrick's performance of his duties as Ombudsman or with any person who wishes to consult with him in that capacity.
3. Mr. Derrick shall receive notice of and be permitted to attend any meeting of TYC staff, formal or informal, at which policies or procedures affecting Mountain View are discussed. Notice to Mr. Derrick of such a meeting shall be in writing and shall be delivered to him at least twenty-four hours before the meeting, except in the case of an emergency meeting, of which notice shall be given him at the earliest possible time.
4. Mr. Derrick's present salary shall continue to be paid by TYC, and may not be reduced during his occupation of the position of Ombudsman. TYC may, if it so desires, continue to employ Mr. Derrick in his present position as Chief of Casework Services at Mountain View, provided that the performance of his duties as Chief of Casework Services shall not interefere with his duties as Ombudsman.
5. Mr. Derrick shall be provided with office space, secretarial assistance, office supplies, and all other facilities necessary to the performance of his duties as Ombudsman.
6. Mr. Derrick shall have free access to all records kept in the course of the regular business of Mountain View, and all records of TYC kept in the regular course of its business that relate to matters affecting Mountain View.
7. Mr. Derrick shall make to TYC such recommendations as are appropriate concerning the operation of Mountain View or any matters affecting the operation of Mountain View, especially recommendations concerning compliance with this court's order. A copy of all such recommendations shall be provided to the Executive Director of TYC, the Superintendent of Mountain View, the court, and all counsel in this civil action.
COMMUNICATION: MAIL; NON-ENGLISH LANGUAGES
A. MAIL
1. Outgoing or incoming mail shall not be opened, read, censored, or tampered with in any other manner; provided, *180 however, that TYC personnel, in order to search for and seize contraband, may open but not read incoming mail in the presence of the TYC inmate to whom the particular piece of mail is addressed. Contraband shall consist of any object or substance the knowing possession of which constitutes a crime under the laws of the State of Texas or the United States or any other object or substance that would clearly pose a danger to human life or property within the TYC facilities.
2. The number of persons with whom TYC inmates may correspond by mail shall not be limited. Writing paper, envelopes, pencils or pens, and at least three 8-cent stamps per week shall be provided at reasonable times and places each day.
B. NONENGLISH LANGUAGES
The speaking or writing of non-English languages shall not be prohibited or discouraged under circumstances that would not give rise to similar prohibitions regarding the English language.
VISITATION RIGHTS
Visitation by family and friends of TYC inmates shall be permitted (1) for at least two hours a day on at least two separate days between Monday and Friday, inclusive, except holidays; (2) on Saturdays, Sundays, and holidays between 9:00 a. m. and 5:00 p. m.
NURSING CARE
At least one registered nurse shall be available on the premises of each of the six TYC institutions on a 24-hour basis.
SCREENING OF PROSPECTIVE TYC PERSONNEL
1. All TYC personnel hired, rehired, or promoted after the date of this order to any position shall meet the qualifications for that position set forth in the Texas Position Classification Plan, as established for the TYC by the Texas State Auditor (United States Exhibit No. 20).
2. All TYC personnel who apply after the date of this order for a position bringing them into contact with juveniles on a regular basis shall be required to submit to psychological testing and psychiatric interviews. TYC shall not hire any employee the results of whose testing casts doubt upon his psychological fitness to work with children.
3. Upon the rehiring of any former TYC personnel during the period of this interim relief, defendants in this civil action shall give notice forthwith of such rehiring to all counsel and to this court.
It is further Ordered that copies of this order shall be sent by certified mail, return receipt requested, to the three appointed members of the TYC, to the Executive Director of the TYC, and the Superintendents of the Mountain View, Gatesville, Giddings, Gainesville, Crockett and Brownwood institutions under the jurisdiction of the TYC. It is further
Ordered that the Executive Director of the TYC instruct each of the Superintendents of the above-named schools to hold meetings of all employees, full time, part time, or consulting, of their respective schools, in order that the Superintendent may read and discuss this order with them. At the conclusion of these meetings, every employee shall sign a form indicating that he or she understands every provision in the order. Forms containing these signatures shall be forwarded forthwith to the Executive Director of TYC. These meetings may be conducted in shifts; provided, however, that these meetings with all employees shall be completed and forms containing employee signatures shall be completed and placed in the mail to the Director of TYC no later than seven days from the date of his receipt of this court's order. It is further
Ordered that three (3) copies of this order be posted within four days of the receipt of this court's order by the Executive Director of TYC in every facility *181 located within the six above-named institutions in which TYC inmates sleep, including dormitories, the infirmary, or any of the facilities described in this order as constituting security. The order shall be posted in a conspicuous place, preferably a bulletin board near the entrance of the building.
NOTES
[1] In other matters arising from this civil action, this court has issued a preliminary injunction regarding the rights of inmates to confer privately with their attorneys and to correspond with them without interference, see 326 F. Supp. 670; and has issued a discovery order permitting four experts trained in sociology and psychology to live in the institution for four weeks under conditions experienced by the inmates and to report to the court at the conclusion of the study, see 59 F.R.D. 157.
[2] Although the portion of this statute permitting the use of a leather strap to administer up to ten lashes under certain conditions was not the subject of any testimony or request for relief, Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968), casts considerable doubt upon its constitutionality. Writing for a unanimous Eighth Circuit panel prior to his elevation to the United States Supreme Court, Judge Blackmun concluded
that the use of the strap in the penitentiaries of Arkansas is punishment which, in this last third of the 20th century, runs afoul of the Eighth Amendment; that the strap's use, irrespective of any precautionary conditions which may be imposed, offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess; and that it also violates those standards of good conscience and fundamental fairness enunciated by this court in the Carey [Carey v. Settle, 351 F.2d 483 (8th Cir. 1965)] and Lee [Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965)] cases.
Id. at 579 [emphasis added.]
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01-03-2023
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10-30-2013
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650 So. 2d 254 (1995)
STATE of Louisiana
v.
ONE 1990 GMC SIERRA CLASSIC TRUCK VIN NO. 1GTCS142XL25052929, Forty (40) Pieces of Jewelry and Coins and Currency Valued at $2,187.24.
No. 94-C-3171.
Supreme Court of Louisiana.
February 17, 1995.
Denied.
CALOGERO, C.J., not on panel.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2259132/
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720 A.2d 573 (1998)
1998 ME 245
STATE of Maine
v.
Erich PFEIL.
Supreme Judicial Court of Maine.
Argued November 4, 1998.
Decided November 20, 1998.
*575 Geoffrey A. Rushlau, District Attorney, F. Todd Lowell, Asst. Dist. Atty. (orally), Bath, for the State.
Gail Peabody (orally), Orr's Island, for defendant.
Matthew Pollack, Pollack & Quirion, P.A., Topsham, Christopher L. Mann, Bath, for defendant at earlier stages of the proceedings.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
CALKINS, Justice.
[¶ 1] Erich Pfeil appeals from a judgment of conviction entered in the Superior Court (Sagadahoc County, Bradford, J.) on his guilty pleas to gross sexual assault, unlawful sexual contact, and assault. Pfeil contends that he should have been permitted to withdraw his guilty pleas. Because his motion to withdraw the guilty pleas was made after sentence was imposed, we dismiss the appeal. Pfeil was also granted leave to appeal his sentence which he argues is excessive. We affirm the sentence.
I. Appeal of denial of motion to withdraw pleas
[¶ 2] Erich Pfeil, age 46, acknowledges that he is a pedophile. He was indicted on 25 counts of gross sexual assault, unlawful sexual contact, and assault. Pfeil reached a plea agreement with the State. In exchange for pleas of guilty to three counts of gross sexual assault, four counts of unlawful sexual contact, and two counts of assault, the State recommended a sentence of fifteen years imprisonment, all but ten years suspended, and six years of probation. Pursuant to the agreement the State would dismiss the remaining counts of the indictment and Pfeil was free to argue for a lesser sentence. Following the Rule 11 proceeding, a presentence report was ordered, and the sentencing was continued.
[¶ 3] A sentencing hearing was held on February 27, 1998. The court heard from the State and one of the victims, as well as Pfeil and Pfeil's attorney. Both the State and Pfeil's counsel noted that the presentence report recommended a sentence of four years, suspending all but 273 days, which was the number of days that Pfeil had been incarcerated pending his sentencing. The presentence report also recommended a sentencing scheme involving consecutive suspended sentences for some of the counts so that a probationary period of eighteen years could be imposed. Pfeil's counsel told the court that Pfeil would agree to a longer period of probation than the State had recommended in the plea agreement. The court imposed a sentence totalling thirty-six years imprisonment with all but seven years suspended, and eighteen years of probation. At a sidebar conference counsel and the judge discussed giving the defendant an opportunity to withdraw his plea because the sentence exceeded the agreement. Defense counsel offered to speak to Pfeil and thereafter told the court that the sentence was acceptable. The court then asked Pfeil directly if he agreed to the terms of the sentence even though it exceeded the agreement, and Pfeil answered, "Yes, I do, your honor."
[¶ 4] On its own motion pursuant to M.R.Crim. P. 35(a), the court held a resentencing hearing approximately two weeks later. The judge stated that because the sentences as imposed were contrary to the plea agreement he intended to restructure the sentences so that Pfeil would not face more than a total of fifteen years imprisonment. The State then recommended sentences that would total fifteen years, suspending all but seven years with fourteen years of probation. Defense counsel stated that any sentence greater than the original recommendation of *576 the State would violate the plea agreement. The court imposed sentences on the nine counts which totalled fifteen years imprisonment, all but seven years suspended, and ten years probation.[1] Pfeil then moved to withdraw his pleas on the ground that the sentences exceeded the plea agreement, and the court denied the motion.
[¶ 5] M.R.Crim. P. 32(d) provides that "A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed." We have held that under the plain language of the rule, a motion to withdraw made after sentencing should be dismissed by the trial court without reaching the merits.[2]See State v. Cardosi, 498 A.2d 599, 600-01 (Me.1985). If the court had granted the untimely motion, its action would have been "ineffective," State v. Loftus, 631 A.2d 903, 904 (Me.1993), and "a nullity," Cardosi, 498 A.2d at 601. A defendant's "sole remedy" after sentencing is postconviction review. Id. at 600; see also Shorette v. State, 402 A.2d 450, 460 (Me.1979).
[¶ 6] Pfeil contends that his motion to withdraw his pleas was not pursuant to Rule 32 but rather to Rule 11A. Regardless of the grounds for the motion to withdraw a plea, however, Rule 32(d) governs the timing of the motion.
[¶ 7] The reason that post-conviction review is appropriate and that an adequate review cannot be held on direct appeal is amply illustrated in this case. Pfeil's basis for his motion to withdraw his plea is that his rights under Rule 11A were violated. He argues that the judge did not comply with Rule 11A during the second sentencing hearing because the judge did not inform Pfeil that he intended to impose a less favorable sentence and did not give Pfeil an opportunity to withdraw his pleas before the resentence was imposed.[3]See Shorette v. State, 402 A.2d at 460. The significant issue, however, is not whether the court complied with the rule, but whether Pfeil's pleas were made knowingly and voluntarily.[4] If Pfeil's claim is that his waiver of trial and his pleas were not made knowingly and voluntarily because the plea agreement led him to expect a lesser sentence than what was imposed, an evidentiary hearing is necessary to develop a record from which a court can determine whether the pleas were made knowingly and voluntarily.
[¶ 8] From the transcript of the first sentencing, it appears that Pfeil had an off-the-record discussion with his attorney before agreeing to accept the sentence. Whether such a discussion actually occurred, how long it lasted, and what was said cannot be ascertained from this record. Pfeil suggests that any waiver he made to the imposition of a harsher sentence was not knowing and voluntary because of his cognitive difficulties and *577 the presence of television cameras at the first hearing. The present record does not permit a finding that Pfeil's waiver of his right to withdraw his plea was not voluntary. Postconviction review is the appropriate procedural vehicle to address the issue.
II. Sentence appeal
[¶ 9] Pfeil appeals his sentence pursuant to 15 M.R.S.A. § 2151 (Supp.1997). He challenges the suspended and unsuspended imprisonment portions of his sentences on the three counts of gross sexual assault and four counts of unlawful sexual contact. He does not challenge the assault sentences.
[¶ 10] The facts before the sentencing judge were that Pfeil undertook various activities that would bring him close to children. He befriended the three victims in this case, "recruiting" them and "grooming" them to be victimized, and exposed them to pornography and explicit sexual discussions. He promised to make "Indian suits" for two of the victims, inducing them to remove their clothes so he could measure them.
[¶ 11] Pfeil molested the victim of the three gross sexual assaults and one unlawful sexual contact by fondling the boy's anus and genitals and touching his penis with a piece of leather.[5] The victim was twelve and thirteen years old at the time of the abuse, which took place on multiple occasions between February and May, 1997. A second boy, age ten, was the victim of two unlawful sexual contacts and one assault. Pfeil had him undress to be measured on multiple occasions between January and March 1997, and touched his penis with a measuring tape and a piece of felt. Pfeil committed assault against the third boy, an eleven-year-old, in April 1997, by tickling him after being told to stop and grabbing him near his genitals.
[¶ 12] Pfeil had no criminal record. The sentencing judge had two written evaluations, one from a psychologist and the other from a psychiatrist, who had examined Pfeil. The various diagnoses included pedophilia, obsessive-compulsive disorder, and Klinefelter's Syndrome. Both evaluations concluded that Pfeil was a good candidate for sex offender treatment.
[¶ 13] In imposing the sentence at the first sentencing hearing, the court utilized the three-step procedure established in State v. Hewey, 622 A.2d 1151, 1154-55 (Me.1993), and codified at 17-A M.R.S.A. § 1252-C (Supp.1997). The court did not change its Hewey analysis at the second sentencing hearing, but reduced the underlying sentence by making concurrent some of the sentences which it had originally made consecutive.
[¶ 14] In the first step of the Hewey analysis, the court determines the "basic term of imprisonment by considering the particular nature and seriousness of the offense as committed by the offender," id. § 1252-C(1), judging it on a scale of seriousness against all possible ways of committing the crime. See State v. Lilley, 624 A.2d 935, 936 (Me.1993). The Law Court reviews the determination of the basic period for misapplication of principle. Hewey, 622 A.2d at 1155.
[¶ 15] For the three gross sexual assaults, the court found the basic period to be within a range of ten to fifteen years. Pfeil argues that the court impermissibly considered the fact that there were multiple offenses. The multiplicity of the offenses is not an impermissible factor. That Pfeil carefully selected his child victim, "groomed" him to be abused, developed a friendship with him over a period of months, and then betrayed that friendship by a series of sexual assaults, is a consideration of the particular nature and seriousness of the offenses and not of Pfeil's criminal history.
[¶ 16] Pfeil also argues that the court should not have considered the effect on the victim in arriving at the basic sentence. Although the "subjective" effect on the victim is not properly considered in the first step, "objective" facts regarding the victim are appropriate. See § 1252-C(2); State v. Shulikov, 1998 ME 111, ¶ 23, 712 A.2d 504, 511. The court could have correctly considered *578 the objective fact that the victim was a young boy who had his whole life in front of him to be affected by Pfeil's crimes.
[¶ 17] Pfeil committed three gross sexual assaults on a child. Because there was no violence and no penetration, Pfeil's conduct cannot be considered among the most serious ways of committing gross sexual assault, but neither can it be minimized consistent with the court's statutory duty to impose sentences that "do not diminish the gravity of offenses, with reference to ... [t]he age of the victim." 17-A M.R.S.A. § 1151(8) (Supp.1997). Furthermore, the sentencing court had before it substantial information regarding sentences that had been imposed in other cases involving sexual offenses against children.[6] The court did not misapply principle in selecting a ten to fifteen year range as the basic period of incarceration for the gross sexual assaults.[7]
[¶ 18] In the next step, the court considered the aggravating and mitigating factors and determined a maximum period of incarceration of twelve years for the gross sexual assaults and three years for the unlawful sexual contacts. This Court reviews that determination for abuse of discretion. See State v. Corrieri, 654 A.2d 419, 423 (Me. 1995). The sentencing court considered a number of aggravating factors, including Pfeil's "grooming" behavior by which he recruited his victims, his pedophilia, the terrible impact of his crimes on the victims, and the need to protect the public. It also considered mitigating factors, including Pfeil's remorse, his lack of criminal history, his physical and mental problems, and the opinion of the two evaluators that his pedophilia is treatable, although the court noted some skepticism regarding the latter. Keeping in mind the sentencing court's "superior position for evaluating evidence of the circumstances of the offender," Hewey, 622 A.2d at 1155, its determination that the aggravating and mitigating factors were roughly equal in weight, justifying maximum sentences of twelve years for the gross sexual assaults and three years for the unlawful sexual contacts, was not an abuse of discretion.[8]
[¶ 19] In the final step of the Hewey procedure, the court suspended all of the unlawful sexual contact sentences and all but seven years of the gross sexual assault sentences. That step also involves weighing the aggravating and mitigating factors and is reviewed for abuse of discretion. See Corrieri, 654 A.2d at 423. Pfeil argues that the court gave insufficient weight to his prospects for rehabilitation. "[T]he need to protect the public," however, is also a factor to be considered in determining how much of the sentence to suspend. See State v. Coreau, 651 A.2d 319, 320 (Me.1994). The court was entitled to weigh the unknown effects of future treatment and rehabilitation against the known fact that Pfeil is a pedophile who acted upon his sexual attraction to children. The court did not abuse its discretion by suspending five years of the twelve-year maximum sentence.
The entry is:
Appeal from denial of motion to withdraw plea dismissed. Sentences affirmed.
NOTES
[1] The court imposed concurrent sentences of twelve years imprisonment, all but seven years suspended, and six years probation on the gross sexual assaults; sentences of three years all suspended plus four years probation for the unlawful sexual contacts, concurrent to each other but consecutive to the gross sexual assault sentences; and sentences of eleven months all suspended and one year probation on the assaults, concurrent to each other and to the other sentences.
[2] This interpretation is supported by the history of Rule 32(d), which until 1971 allowed a defendant to make a motion to withdraw a plea after sentencing "to correct manifest injustice;" that option was removed because it was confusing and unnecessarily duplicative of the remedy available in post-conviction review. See M.R.Crim. P. 32(d) advisory committee's note to 1971 amend., 1 Cluchey & Seitzinger, Maine Criminal Practice, VI-6 to VI-7 (1995). "The effect of the [1971 amendment] is to leave the defendant who wishes to challenge a plea of guilty ... after imposition of sentence with the remedy of post-conviction review." 1 Cluchey & Seitzinger § 32.8 at VI-23.
[3] The only aspect of the new sentence that was less favorable to Pfeil than the recommended sentence was that the probation imposed was for a period of ten years, instead of the six years that the State recommended. The unsuspended portion of the incarceration portion of the sentence was more favorable to the defendant than that recommended by the State that is, seven years as opposed to the recommended ten years. Furthermore, the judge knew that, at the first sentencing proceeding, Pfeil's counsel had expressed agreement with a longer period of probation and Pfeil had stated that he did not wish to withdraw his plea even in light of a much harsher sentence than was ultimately imposed.
[4] We have never required strict compliance with M.R.Crim. P. 11 in order to uphold a guilty plea. See State v. Andrews, 624 A.2d 1235, 1236 (Me. 1993).
[5] The piece of leather qualifies as "an instrument or device," making the act a "sexual act" as defined in 17-A M.R.S.A. § 251(C)(3) (Supp. 1997) and the offense gross sexual assault. See 17-A M.R.S.A. § 253(1) (Supp. 1997).
[6] We recently upheld a sentence of fourteen years for multiple gross sexual assaults on a child in which the basic sentence of nine years was increased to arrive at the maximum sentence because of the defendant's criminal record. See State v. Lewis, 1998 ME 83, ¶¶ 8, 9, 711 A.2d 119, 123-24.
[7] For the offenses of unlawful sexual contact, the court set a basic period of two and a half to four years. Pfeil's only challenge to that determination is a protest that it is excessive without identifying any misapplication of principle. The unlawful sexual contacts consisted of repeated fondling of young boys. Two and a half to four years is not excessive. Cf. Lewis, 1998 ME 83, ¶ 8 n. 6, 711 A.2d at 123 n. 6 (four year basic sentence for unlawful sexual contact).
[8] Pfeil also argues that the court erred in failing to consider the impact of the new good time deduction statute, as required by 17-A M.R.S.A. § 1252-B (Supp. 1997). There is nothing in the record to indicate that the court either took the good time law into consideration or failed to do so. Pfeil's argument is based on speculation.
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https://www.courtlistener.com/api/rest/v3/opinions/2259309/
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720 A.2d 311 (1998)
351 Md. 709
STATE of Maryland
v.
Wilbur BELL.
No. 3, Sept. Term, 1998.
Court of Appeals of Maryland.
November 17, 1998.
*312 Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Petitioner.
Daniel H. Weiss, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
CATHELL, Judge.
Wilbur Bell, respondent, was convicted in a court trial before the Circuit Court for Prince George's County of second degree rape, assault and battery, attempted rape, and assault with intent to rape. He was sentenced to twenty years imprisonment on the rape conviction, with ten years suspended. The trial court merged the remaining counts for sentencing purposes. Respondent appealed his convictions to the Court of Special Appeals.
As relevant to this opinion, that court vacated his convictions and remanded the case to the circuit court, holding that respondent had been insufficiently advised of his right to a jury trial because the trial court failed to advise him specifically of the unanimity requirement that all twelve jurors must agree in order to render a verdict of guilt.[1]
*313 The State petitioned this Court, presenting one issue for our consideration:
Did the Court of Special Appeals incorrectly hold that Maryland Rule 4-246(b) requires an examination of a defendant on the record and in open court regarding jury unanimity as a prerequisite for a knowing and voluntary waiver of a jury trial?
We granted a writ of certiorari to answer this important question. We shall reverse the Court of Special Appeals and direct it to affirm the trial court's judgment.
RELEVANT PROCEDURAL FACTS
On September 2, 1994, respondent was arrested pursuant to a warrant for the above-charged offenses. The record indicates that on November 14, 1994, he filed a demand for a jury trial. When the case ultimately was called for trial, the following exchange occurred:
The Court: Should we bring a jury in?
Mr. Hale [Defense Counsel]: No, Your Honor. We are going to waive a jury trial and go with a Court trial.
The Court: Okay. Have you advised Mr. Bell of the ramifications of that?
Mr. Hale: We have talked it over, Your Honor. We talked it over the last time we were here, and I haven't talked it over yet this morning with him.
The Court: Why don't you do that on the record[?]
Mr. Hale: Mr. Bell, stand up for a second, if you would. Mr. Bell, how old are you?
The Defendant: I'm thirty-four.
Mr. Hale: You can read and write the English language, right?
The Defendant: Yes.
Mr. Hale: You know what you are charged with, second degree rape, a very serious charge that can get you thirty years in jail?
The Defendant: Yes, sir.
Mr. Hale: You and I talked about whether you should have a jury trial or judge trial, haven't we?
The Defendant: Yes, sir.
Mr. Hale: And we came to the conclusion that we would like Judge Hotten to decide the case rather than a jury?
The Defendant: Yes, sir.
Mr. Hale: Have I forced you to do that?
The Defendant: No, sir.
Mr. Hale: Are you giving up your right to a jury trial freely and voluntarily?
The Defendant: Yes, sir.
Mr. Hale: Has anyone promised you anything?
The Defendant: No, sir.
Mr. Hale: Or offered you any inducement?
The Defendant: No, sir.
Mr. Hale: Are you in good health mentally and physically?
The Defendant: No.
The Court: Have you taken any alcohol, medication or drugs?
The Defendant: No, ma'am.
The Court: Do you understand if you were to have a jury trial, which would consist of twelve people, or whether you choose to have this member of the bench hear the case, the State would still have the burden to prove the charges against you beyond a reasonable doubt?
The Defendant: Yes, sir [sic].
The Court: Have you been satisfied with the services of your attorney up to the present time?
The Defendant: Yes, ma'am.
The Court: Is there anything that's been said or anything that's been going on so far that you don't understand or have a question about?
The Defendant: No, ma'am.
The Court: At this time, knowing that you give up the right to a jury trial and that you are under the influence of no alcohol, medication or drugs, and that you are making this decision freely and voluntarily, is it your intention to give up or waive your right to a jury trial?
The Defendant: Yes.
The Court: Okay.
*314 DISCUSSION
We said in Countess v. State, 286 Md. 444, 455, 408 A.2d 1302, 1307-08 (1979):
The requirement of § d [of then Rule 735] that the defendant must "knowingly and voluntarily" waive the right to a jury trial goes no further than the mandates for a waiver of that right under the constitutions. If the waiver is determined by the court to have been an intentional relinquishment or abandonment of a known right, it meets the test of Rule 735d. For the court to ascertain whether it was a "known right" which was waived, § d prescribes that the defendant have "full knowledge of his right to a jury trial." The defendant-petitioners urge that "[t]he term `full knowledge' certainly implies understanding of the most salient features of trial by jury, including, at a minimum, the composition of the jury, the jury selection process, and the unanimity requirement." This goes far beyond what is necessary for a waiver of a jury trial to be constitutionally effective; the Supreme Court has certainly not enunciated such a test. We do not believe that Rule 735 calls for knowledge of all the matters which the defendant-petitioners suggest are essential to a valid election of a court trial. Such detailed information regarding a jury is not indicated. What the Rule contemplates is that the defendant have a basic understanding of the nature of a jury trial. We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find. These are the matters which the defendant acknowledges he is aware of in the written form of election set out in § b of the Rule in designating his election of court trial or jury trial, and normally they should suffice. We saw no need to go further when we adopted the Rule, and we see no need to add other matters now. Ordinarily if the court duly determines that the defendant understands those aspects of a jury trial, he has, under the Rule, "full knowledge of his right to a jury trial." [Emphasis added.]
The rule in effect at the time of our decision in Countess, Maryland Rule 735(d), provided:
If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule. [Emphasis added.]
Additionally, subsection (b) of that rule provided a form criminal defendants were required to sign to elect a court or jury trial. That form specified, inter alia, that the defendant knew he had "a right to be tried by a jury of 12 persons or by the court without a jury," and that in a jury trial, "all 12 jurors must find that [the defendant is] guilty beyond a reasonable doubt." Relative to this waiver procedure, we noted in Countess, 286 Md. at 453, 408 A.2d at 1307, that "[t]here are three aspects to this procedure: (1) the election; (2) the inquiry; and (3) the knowledge necessary for an effective waiver of a trial by jury."
After our decision in Countess, this Court revised Rule 735 on November 13, 1981 (effective January 1, 1982), deleting the "full knowledge" requirement. Additionally, revised Rule 735 no longer required a written waiver or fixed litany of advice. 8 Md. Reg. 1928, 1929-30 (1981); see also State v. Hall, 321 Md. 178, 182, 582 A.2d 507, 509 (1990); Martinez v. State, 309 Md. 124, 132 n. 7, 134, 522 A.2d 950, 954 n. 7, 955 (1987) ("In determining whether the defendant has knowingly and voluntarily waived his right to a jury trial, the questioner need not recite any fixed incantation."). The rule, as modified to its present form as Maryland Rule 4-246, provides in subsection (b):
(b) Procedure for acceptance of waiver. A defendant may waive the right to a trial *315 by jury at any time before the commencement of trial. The court may not accept the waiver until it determines, after an examination of the defendant on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant, or any combination thereof, that the waiver is made knowingly and voluntarily. [Emphasis added.]
As is evident from the emphasized portions of the respective rules, the requirement of "full knowledge" contained in the former Rule 735, as it existed at the time of Countess, has been deleted and a trial court now may accept a waiver if it is satisfied that the waiver is made "knowingly and voluntarily."[2] The current rule no longer requires the trial court to establish that a defendant has "full knowledge" of the right to a jury trial. We therefore must address what different standard, if any, was created when the rule was modified to delete the "full knowledge" requirement in effect at the time of Countess.
We have not addressed, since the rule was modified in 1981, whether a defendant can "knowingly" waive his or her right to a jury trial without a specific reference to the unanimity requirement during the in-court advice given to a defendant about whether to elect a court or jury trial.[3] We begin our analysis with the canons of statutory construction that are also generally applicable in respect to rule construction. See State v. Harrell, 348 Md. 69, 79, 702 A.2d 723, 728 (1997) ("In construing a rule, we apply principles of interpretation similar to those used to construe a statute."); In re Victor B., 336 Md. 85, 94, 646 A.2d 1012, 1016 (1994) ("We have repeatedly stated that the canons and principles we follow in construing statutes apply equally to an interpretation of our rules.").
We have said that "[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature." Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). Legislative intent must be sought first in the actual language of the statute. Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997); Stanford v. Maryland Police Training & Correctional Comm'n, 346 Md. 374, 380, 697 A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256, 674 A.2d 951, 957 (1996); Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35, 660 A.2d at 429; Mauzy v. Hornbeck, 285 Md. 84, 92, 400 A.2d 1091, 1096 (1979); Board of Supervisors v. Weiss, 217 Md. 133, 136, 141 A.2d 734, 736 (1958). Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts normally do not look beyond the words of the statute to determine legislative intent. Marriott Employees, 346 Md. at 445, 697 A.2d at 458; Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987); Hunt v. Montgomery County, 248 Md. 403, 414, 237 A.2d 35, 41 (1968).
In Tracey v. Tracey, 328 Md. 380, 387, 614 A.2d 590, 594 (1992), however, this Court opined in reference to construing an alimony statute:
While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears. [Citations omitted.]
This Court recently stated that "statutory language is not read in isolation, but `in light of the full context in which [it] appear[s], and in light of external manifestations of intent or general purpose available through other evidence.' " Stanford v. Maryland Police Training & Correctional Comm'n, 346 Md. 374, 380, 697 A.2d 424, 427 *316 (1997) (alterations in original) (quoting Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126, 127 (1989)). To this end,
[w]hen we pursue the context of statutory language, we are not limited to the words of the statute as they are printed.... We may and often must consider other "external manifestations" or "persuasive evidence," including a bill's title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.
... [I]n State v. One 1983 Chevrolet Van, 309 Md. 327, 524 A.2d 51 (1987), ... [a]lthough we did not describe any of the statutes involved in that case as ambiguous or uncertain, we did search for legislative purpose or meaningwhat Judge Orth, writing for the Court, described as "the legislative scheme." [Id. at] 344-45, 524 A.2d at 59. We identified that scheme or purpose after an extensive review of the context of Ch. 549, Acts of 1984, which had effected major changes in Art. 27, § 297. That context included, among other things, a bill request form, prior legislation, a legislative committee report, a bill title, related statutes and amendments to the bill. See also Ogrinz v. James, 309 Md. 381, 524 A.2d 77 (1987), in which we considered legislative history (a committee report) to assist in construing legislation that we did not identify as ambiguous or of uncertain meaning.
Kaczorowski, 309 Md. at 514-15, 525 A.2d at 632-33 (some citations omitted).
In analyzing the plain meaning of the language used in the rule, we note first that THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 573 (unabr. ed.1983), defines "full" as "2. complete; entire; maximum ... 3. of the maximum ... extent, volume." As relevant to the case at bar, it defines "knowledge" as "1. acquaintance with facts, truths, or principles ... 3. acquaintance or familiarity gained by sight, experience, or report ... 5. awareness, as of a fact or circumstance ." Id. at 793. As relevant to our inquiry, that dictionary defines "knowingly"[4] as "1. shrewd, sharp, or astute ... 3. that knows; having knowledge or information; intelligent; wise. 4. conscious; intentional; deliberate." Id. BLACK'S LAW DICTIONARY 672 (6th ed.1990) defines "full" as "[a]bundantly provided, sufficient in quantity or degree, complete, entire, and detailed.... Ample, perfect... not wanting in any essential quality." It defines "knowledge" as "[a]cquaintance with fact or truth." Id. at 872. Finally, "knowingly" is defined as "[w]ith knowledge; consciously; intelligently; willfully; intentionally." Id.
Under the former rule construed by Countess, the trial court was required to determine whether a criminal defendant waived his right to a jury trial "with full knowledge" of that right. Given the dictionary and ordinary meanings of "full" and "knowledge," a defendant was required to be apprized completely of the jury's function at trial and his right to be tried by a jury. We said in Countess that this meant that a defendant should have a "basic understanding of the nature of a jury trial." Countess, 286 Md. at 455, 408 A.2d at 1308. It generally was believed that the record had to reflect that all aspects of the right to a jury trial were explained to a defendant. See Countess, 286 Md. at 455, 408 A.2d at 1308 (listing aspects of jury trial the trial court and written waiver must explain for defendant to have "full knowledge" of his jury trial right). That "full knowledge" requirement, however, is no longer expressly imposed by the current rule. See Md. Rule 4-246.
It can be argued, therefore, as the State does now, that because full knowledge no longer is necessary, so long as a defendant knows he is giving up his right to be tried by a jury, possesses a general knowledge of the nature of a jury trial and waives that right voluntarily, the dictates of the current rule are met. The plain meaning of the present *317 rule supports this contention. Rule 4-246(b) now provides that a waiver of the jury trial right must be made "knowingly." This word, as relevant here, means "having knowledge or information." It would seem, accordingly, that the alterations in the language of the rule from Countess to present day would indicate this Court's intent to replace the more stringent "full knowledge" requirement with a more flexible "knowingly" made waiver requirement. The history behind the present rule bears this out. We shall turn shortly to the legislative history of Rule 4-246 after we briefly discuss the relevance of amendments in the legislative and rule-making process in terms of that history.
One form of legislative history useful in determining legislative intent is amendments proposed but later rejected by the Legislature or, as in this case, rules of procedure proposed by the Standing Committee on Rules of Practice and Procedure (Rules Committee) later rejected by the Court of Appeals.
Although we have never held that the amendment-rejection theory is a completely determinative method of ascertaining legislative intent, we have indicated that such action strengthens the conclusion that the Legislature did not intend to achieve the results that the amendment would have achieved, if adopted. In Bosley v. Dorsey, 191 Md. 229, 240, 60 A.2d 691 (1948), for example, we indicated that the rejection by the Senate of a bill that would have authorized the People's Counsel to appeal decisions of the Public Service Commission "... strengthens the conclusion that the Legislature has not intended that the [P]eople's Counsel shall appeal from orders of the Commission."
Demory Bros. v. Board of Pub. Works, 273 Md. 320, 326, 329 A.2d 674, 677 (1974). See also NCR Corp. v. Comptroller, 313 Md. 118, 125, 544 A.2d 764, 767 (1988) ("While a committee's rejection of an amendment is clearly not an infallible indication of legislative intent, it may help our understanding of overall legislative history."); Prince George's County v. Commission on Human Relations, 40 Md.App. 473, 489, 392 A.2d 105, 115 (1978) ("We may, as we have herein done, consider rejection by the General Assembly of S.B. 1241, H.B.1982, and H.B. 1012 as an indication of the legislative will."), vacated on other grounds, 285 Md. 205, 401 A.2d 661 (1979). But see Automobile Trade Ass'n v. Insurance Comm'r, 292 Md. 15, 24, 437 A.2d 199, 203 (1981) (noting that rejection of a bill is a "rather weak reed upon which to lean in ascertaining legislative intent.").
This aid in evaluating legislative intent has been used frequently to interpret criminal statutes. For instance, in Armstead v. State, 342 Md. 38, 77-83, 673 A.2d 221, 240-43 (1996), we held that population genetics statistics were admissible when submitted with DNA evidence because the Legislature had intended that result even though the statute was silent on the matter. We reasoned that, by deleting the words "unique" and "uniquely" from the proposed Bill to enact the DNA admissibility statute, the Legislature was aware of "some possibility of random matching," which could be explained by population genetics statistics. Id. at 78, 673 A.2d at 240.
In Harris v. State, 331 Md. 137, 150-54, 626 A.2d 946, 952-54 (1993), we interpreted the legislative intent behind the weapons provision contained in the Drug Kingpin Act. The Act, as originally drafted, would have criminalized the "use or possession" of a firearm during or in relation to a drug trafficking offense. The Conference Committee for the proposed senate bill, however, deleted the word "possesses" and replaced it with "wears, carries, or transports." We stated that "[b]y deleting `possesses,' and replacing it with `wears, carries, or transports,' terms... more active than `possesses', the Legislature clearly expressed an intention to require, for conviction, something more than the mere possession of a handgun during and in relation to a drug trafficking crime." Id. at 152, 626 A.2d at 953. Likewise, Krauss v. State, 322 Md. 376, 386, 587 A.2d 1102, 1106 (1991), held that a defendant's refusal to take a Breathalyzer test could not be admitted in court as evidence of guilt. In analyzing the statute specifying when a refusal to take a Breathalyzer test could be admitted, we first noted that the language of the statute prior to a 1986 amendment provided that refusing to submit to the test created no presumption *318 of guilt or innocence and that a refusal to submit was "not admissible in evidence at the trial." Id. (quoting Md.Code (1974, 1989 Repl.Vol.), § 10-309(a) of the Courts & Judicial Proceedings Article). The Legislature amended the section by removing the word "not." Research of the legislative history on the amended statute revealed the Legislature originally intended to omit the "no inference or presumption" portion of the statute, leaving only the "is admissible in evidence" clause. The purpose of the proposed amendment was to provide an additional penalty for refusal to submit to a Breathalyzer test.
The Legislature's failure to adopt the amendment as originally intended, we said, was significant because it demonstrated the Legislature's recognition that refusal to submit to the test was not material or relevant to guilt or innocence, but could be material in other circumstances. Id. at 386-87, 587 A.2d at 1107. Therefore, by declining to adopt the proposed language of the amending bill, the Legislature clearly did not intend for refusals to submit to be admissible toward guilt. See also Gray v. State Rds. Comm'n, 253 Md. 421, 429-30, 252 A.2d 810, 815 (1969) ("[T]he implication is well justified, that prior to the passage of Chapter 447, the Legislature, by deleting from the Act as originally introduced, a deduction item based on a Workmen's Compensation award, specifically intended the Unsatisfied Claim and Judgment Fund to be open to invasion by subrogation...."); cf. also Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 462, 456 A.2d 894, 904 (1983) (noting that Legislature's repeated rejection of bills adopting comparative negligence evidences intent to retain contributory negligence).
Turning now to the history behind the modification of Rule 735, we note that the Rules Committee originally proposed to the Court of Appeals an entire redraft of Rule 735 as it existed at the time. Seventy-Fifth Report of the Standing Committee on Rules of Practice and Procedure, 2-3 & app. (Oct. 26, 1981). In subsection (b) of that redraft, the Rules Committee proposed the following language:
The court may not accept the waiver until it determines, after an examination of the defendant ... that the defendant voluntarily waived a jury trial, understanding that
1. The defendant has the right to be tried by a jury of 12 persons or by the judge without a jury; and
2. Before a finding of guilty in a jury trial, all 12 jurors must agree that the defendant is guilty.
Id. at app. (emphasis added). In subsection (c), the committee proposed a certification form the trial judge would have been required to sign for every waiver of a jury trial, which reiterated the information listed in subsection (b). Id. at 3 & app.
This Court rejected both proposals. Rules Order, 8 Md. Reg.1928-30 (1981); Minutes of Meeting of Court of Appeals, 3 (Nov. 6, 1981) [hereinafter Minutes]. Instead, we inserted the words "knowingly and" immediately before "voluntarily." Rules Order, 8 Md. Reg. at 1930. We then deleted the remainder of the proposal enumerating specifically what the defendant was required to know prior to a waiver,including the deletion of the provision that the trial court specifically had to find that a defendant waived his right "understanding that ... all 12 jurors must agree that the defendant is guilty." Id.[5] This Court's rejection of the Committee's proposal for the specific language in Rule 735 describing the need for twelve unanimous jurors and the certification form, which would have explained that right in detail to the defendant, implies that we wished to move away from the rigidity of the former rule 735 and Countess. See State v. Marsh, 337 Md. 528, 535, 654 A.2d 1318, 1321-22 (1995) (noting purpose of changes to Rule 735 was "to make the Rule more flexible by eliminating the prescribed litany"). In other words, this Court required that the judge be certain only that the defendant had "knowingly" as well as "voluntarily" waived his jury rights and nothing more.
*319 A review of relevant case law also supports this conclusion. In Hall, 321 Md. at 182-83, 582 A.2d at 509, we stated:
Our cases hold that whether there has been an intelligent waiver of the jury trial right depends upon the facts and circumstances of each case. Stewart, supra, 319 Md. at 90, 570 A.2d at 1234; Martinez, supra, 309 Md. at 134, 522 A.2d [at 955]; Dortch v. State, 290 Md. 229, [235,] 428 A.2d 1220[, 1223] (1981). In determining whether the defendant has knowingly and voluntarily waived his right to a jury trial under Rule 4-246(b), "the questioner need not recite any fixed incantation." Martinez, supra, 390 [309] Md. at 134, 522 A.2d [at 955]. The court must, however, satisfy itself that the waiver is not a product of duress or coercion and further that the defendant has some knowledge of the jury trial right before being allowed to waive it. Id. at 134, 522 A.2d [at 955]. [Emphasis added.]
There, we refused to overturn the defendant's conviction even though the trial court failed to advise him of certain details about his jury trial right:
While the court did not specifically ask Hall whether he understood what he had been told, or whether his election of a court trial was the result of any physical or mental duress or coercion, we think that the record before us demonstrates that the court could fairly be satisfied that Hall had the requisite knowledge of the jury trial right, that the waiver was voluntary, and that the requirements of the rule were satisfied. Moreover, the court was not required to advise Hall, as he contends, as to the details of the jury selection process.
321 Md. at 183, 582 A.2d at 510.
This Court used the same "depends upon the facts and circumstances" approach to hold the waiver deficient in Tibbs v. State, 323 Md. 28, 590 A.2d 550 (1991):
Considering the totality of the circumstances in the present case, see Dortch v. State, 290 Md. 229, 235, 428 A.2d 1220[, 1223] (1981), we hold that the record is woefully deficient to establish that Tibbs knowingly and voluntarily relinquished his right to a jury trial. The record fails to disclose that Tibbs received any information at all concerning the nature of a jury trial, as required by our cases. See Hall, supra, 321 Md. at 183, 582 A.2d [at 509]; Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987). It is not sufficient that an accused merely respond affirmatively to a naked inquiry, either from his lawyer or the court, that he understood that he has a right to a jury trial, that he knows "what a jury trial is," and waives that right "freely and voluntarily."
Id. at 31-32, 590 A.2d at 551 (emphasis added).
As relevant to the issue presented in the case sub judice, the waiver exchange that occurred in Tibbs was as follows:
MR. STILLRICH [Defense Counsel]: And do you understand what a jury trial is?
DEFENDANT: Yes, I do.
MR. STILLRICH: And you indicated to me when I spoke with you at the detention center the other evening that you desired to have the case tried before this Court alone, is that correct?
DEFENDANT: Yes, I do.
MR. STILLRICH: And you do specifically waive your right to have the matter tried before a jury?
DEFENDANT: Yes, I do.
MR. STILLRICH: Has anyone forced you or threatened you to have you give up your right to a jury trial?
DEFENDANT: No, they haven't.
MR. STILLRICH: Have you given up your right to a jury trial freely and voluntarily?
DEFENDANT: Yes, I have.
....
MR. STILLRICH: Your Honor, I would proffer to the Court that a waiver of a jury trial is freely and voluntarily tendered.
....
THE COURT: All right.
Id. at 30, 590 A.2d at 551 (alteration in original).
In contrast to the case sub judice, the defendant in Tibbs was given no explanation of the nature of a jury trial. The advice *320 given was limited to questions relating to voluntariness, i.e., that Tibbs was not coerced or placed under duress in waiving his jury trial right. The record in the present case reflects a more extensive litany, notwithstanding that no specific advisement of the unanimity requirement was given. The trial judge explained to respondent the other fundamentals of a jury trial: that a jury "would consist of twelve people" and that, under either choice, the trier of fact would have to find him guilty beyond a reasonable doubt. Respondent and his trial counsel also had discussed the right to a jury trial prior to the hearing. Cf. State v. Kenney, 327 Md. 354, 364, 609 A.2d 337, 342 (1992) (holding defense counsel's on-record waiver on client's behalf of right to twelve-person jury after off-record discussion with him was valid). We may presume that respondent's counsel fully informed him of his rights during their pre-trial discussion. Id. at 362, 609 A.2d at 341 (citing Fowler v. State, 237 Md. 508, 515, 206 A.2d 802, 806 (1965); Stevens v. State, 232 Md. 33, 39, 192 A.2d 73, 77, cert. denied, 375 U.S. 886, 84 S.Ct. 160, 11 L.Ed.2d 115 (1963)). See also Ayala v. State, 226 Md. 488, 493, 174 A.2d 160, 163 (1961) (noting presumption that "an attorney will conduct himself as the law and his duty require him to do." (citing Woodell v. State, 223 Md. 89, 95, 162 A.2d 468, 472 (1960))).
The trial court completed the waiver inquiry by asking whether respondent had any questions or did not understand anything that had transpired, to which he replied: "No, ma'am." The record, therefore, reflects that, under the "totality of the circumstances," the defendant had "some knowledge" of his jury trial rights, at least enough to satisfy the trial court that respondent knowingly waived his jury trial right. See Tibbs, 323 Md. at 31, 590 A.2d at 551; Hall, 321 Md. at 182-83, 582 A.2d at 509; Martinez, 309 Md. at 134, 522 A.2d at 955.
A review of this issue in other jurisdictions reveals a variety of approaches. Some states agree that defendants can "knowingly and voluntarily" waive their jury trial right without being informed specifically that a jury's verdict must be unanimous. See People v. Fields, 65 Cal.App.4th 698, 699, 76 Cal. Rptr.2d 700, 702 (1998) ("In accepting the waiver of the right to a jury trial, the trial court does not have a duty to sua sponte tell a defendant who is represented by competent counsel ... that a jury trial requires [an] unanimous verdict.") (citing People v. Tijerina, 1 Cal.3d 41, 45-46, 81 Cal.Rptr. 264, 459 P.2d 680, 682 (1969)); Tucker v. State, 547 So.2d 270, 271 (Fla.Dist.Ct.App.1989) (holding Florida Rules of Criminal Procedure do not require a defendant to be informed that jury verdict must be unanimous before waiver of jury trial); People v. James, 192 Mich. App. 568, 571, 481 N.W.2d 715, 717 (1992) (holding waiver valid because Michigan law does not require that a defendant be informed of unanimity requirement); People v. Dennis, 210 A.D.2d 803, 804-05, 620 N.Y.S.2d 614, 616 (1994) (upholding waiver made knowingly and voluntarily even though trial court did not inform defendant of unanimity requirement). See also United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1088 (7th Cir.1989) (holding that states are not constitutionally required to follow litany guidelines recommended by federal courts for a knowing and voluntary waiver).
A number of jurisdictions, including several federal circuits, recommend that defendants be informed of the aspects of a jury trial, including unanimity, before "knowingly and voluntarily" waiving their right to a jury, but do not so require. In State v. Redden, 199 W.Va. 660, 667, 487 S.E.2d 318, 325-26 (1997), for example, the Supreme Court of Appeals of West Virginia declined "to set forth a specific formulation of the degree or kind of knowledge about the nature of the right to a jury trial," but implored the lower courts to inform defendants about unanimity anyway. That court backed away from its request in State ex rel. Ring v. Boober, 200 W.Va. 66, 73, 488 S.E.2d 66, 68, 73 (1997), when it affirmed a standard written jury trial waiver form that did not mention unanimity. The court reiterated that Redden "specifically declined to adopt a specific list of things that a defendant must know before waiving his right to a jury trial." Id. See also United States v. Duarte-Higareda, 113 F.3d 1000, 1002-03 (9th Cir.1997) (declining to impose "a colloquy in every case" but suggesting court "should inform the defendant that *321... a jury verdict must be unanimous."); United States v. Robertson, 45 F.3d 1423, 1432 (10th Cir.1995) (joining sister circuit courts that recommend but do not mandate waiver guidelines); Marone v. United States, 10 F.3d 65, 67 (2d Cir.1993) (suggesting that defendant be informed of "fundamental attributes" of jury trial, but Constitution does not require litany); United States v. Cochran, 770 F.2d 850, 852-53 (9th Cir.1985) (holding that trial courts should, but need not, conduct colloquy which describes unanimity); United States v. Martin, 704 F.2d 267, 273 (6th Cir.1983) (noting defendant would be "sufficiently informed" if unanimity requirement were made known, but "technical knowledge" not required); United States v. Anderson, 704 F.2d 117, 119 (3d Cir.) (declining to create supervisory rule mandating pre-waiver colloquy), cert. denied, 464 U.S. 838, 104 S.Ct. 129, 78 L.Ed.2d 125 (1983); Ciummei v. Commonwealth, 378 Mass. 504, 509-10, 392 N.E.2d 1186, 1189 (1979) ("We do not intend to create a rigid pattern but note that ... the judge might state that the ... verdict of the jury must be unanimous...."); State v. Ross, 472 N.W.2d 651, 654 (Minn.1991) (recommending that defendants be informed of all aspects of jury trial but affirming conviction of defendant not informed of necessity of unanimous verdict); State v. Ellis, 953 S.W.2d 216, 222 (Tenn.Crim.App.1997) (enunciating colloquy that would sufficiently inform defendant, including unanimity, but noting that procedural rule does not mandate it).
Finally, some jurisdictions require trial courts to inform defendants fully of their jury trial rights, including that the jury must vote unanimously in order to convict. See United States v. Delgado, 635 F.2d 889, 890 (7th Cir.1981) (advising federal district courts to explain to defendants that juries must vote unanimously before conviction); Commonwealth v. Hughes, 536 Pa. 355, 374, 639 A.2d 763, 772 (1994) ("[T]he trial court must conduct a colloquy wherein it apprises the defendant... that the [jury] verdict must be unanimous...."); State v. Resio, 148 Wis.2d 687, 696-97, 436 N.W.2d 603, 607 (1989) (directing lower courts to "advise the defendant that the court cannot accept a jury verdict that is not agreed to by each member of the jury."); cf. Lopez v. United States, 615 A.2d 1140, 1147 (D.C.1992) (holding defendant's waiver invalid because, inter alia, she was not informed of unanimity requirement). In Vermont, the requirement that the trial judge explain unanimity to the defendant before a waiver can be valid emanates specifically from a criminal procedure rule. State v. West, 164 Vt. 192, 199, 667 A.2d 540, 545 (1995) (noting rule requires judge to inform defendant pre-waiver that "any verdict of guilty must be unanimous."). Therefore, it appears that a majority of jurisdictions either have no requirement that a trial court must describe jury unanimity to the defendant or only recommend that they do so before a defendant can "knowingly and voluntarily" waive his jury trial right.
Applying these principles to the case at hand, the record reflects that the discussion between respondent, defense counsel, and the trial court provided respondent with sufficient information about jury trials and his right to have such a trial. Respondent possessed substantial "knowledge" of his jury trial right and, therefore, he "knowingly" waived that right. "Knowledge," in this context means "acquaintance" with the principles of a jury and "knowingly" means acting consciously or intentionally in waiving the right to a jury. See BLACK'S LAW DICTIONARY, supra, at 872; RANDOM HOUSE DICTIONARY, supra, at 793. Because respondent's knowledge no longer need be "full," it need not be "complete" or "entire." See BLACK'S LAW DICTIONARY, supra, at 672, RANDOM HOUSE DICTIONARY, supra, at 573. The rule no longer requires a specific in-court litany of advice with respect to the "unanimity" requirement for the trial court to accept and permit the waiver, by a defendant, of his right to a jury trial.[6] Accordingly, the trial court did not err in accepting the waiver by respondent.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH *322 INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
BELL, C.J., joins in the result only.
NOTES
[1] The Court of Special Appeals, although vacating the trial court's judgment for this reason, nonetheless addressed all issues presented to that court by Mr. Bell, finding no merit in Mr. Bell's other claims of error. No cross-petition was filed.
[2] Both the former and the present rule require that a waiver be made knowingly and voluntarily.
[3] This Court has addressed the requirement of voluntariness before waiving the jury trial right. See Stewart v. State, 319 Md. 81, 570 A.2d 1229 (1990); Martinez, 309 Md. at 131-36, 522 A.2d at 953-56.
[4] No separate listing for "knowingly" exists in this source. It is included, however, in the definition of "knowing." Id.
[5] The certification requirement in proposed subsection (c) was defeated 7-0. The motion to remove the "unanimity" language from subsection (b) and replace the word "knowingly" was approved 5-2. Minutes at 3.
[6] We shall refer the issue of whether a defendant should be expressly advised of the unanimity requirement to the Rules Committee for its consideration and recommendation.
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720 A.2d 193 (1998)
J.C., Petitioner,
v.
DEPARTMENT OF PUBLIC WELFARE, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs September 11, 1998.
Decided November 4, 1998.
*194 Victor F. Cavacini, Allentown, for petitioner.
Daniel Fellin, Harrisburg, for respondent.
Before COLINS, President Judge, and SMITH, J., and MIRARCHI, Jr., Senior Judge.
MIRARCHI, Jr., Senior Judge.
J.C. appeals from an order of the Department of Public Welfare, Bureau of Hearings and Appeals (Bureau) denying his administrative appeal from refusal of the Department of Public Welfare (Department) to consider his request to expunge the indicated report.
*195 In a letter dated May 10, 1996, the Department notified J.C. that the Monroe County Children and Youth Agency had filed a report listing him as a perpetrator of child abuse, and that the report would remain on file in the State and County offices until the child attains twenty-three years of age. Pursuant to Section 6338(a) of the Child Protective Services Law (Law), as amended, 23 Pa.C.S. § 6338(a),[1] the Department advised J.C. that he may request the Secretary of Public Welfare (Secretary), within forty-five days from the date of the notice, to amend or destroy the indicated report, if he believes that the report is inaccurate or is not maintained in accordance with the law.
On December 27, 1996, more than seven months after the notice of the indicated report, J.C., through his counsel, sent a letter to the Secretary requesting expungement of the indicated report.[2] J.C. acknowledged that his request was not timely made within forty-five days after the notice. J.C. asserted, however, that the Law permits him to make the request at any time, and in the alternative that the Department should consider his request nunc pro tunc.
Section 6341(a) of the Law, as amended, 23 Pa.C.S. § 6341(a), provides in relevant part:
§ 6341. Amendment or expunction of information
(a) General rule.At any time
(1) The secretary may amend or expunge any record under this chapter upon good cause shown and notice to the appropriate subjects of the report.
(2) Any person named as a perpetrator... in an indicated report of child abuse may, within 45 days of being notified of the status of the report, request the secretary to amend or expunge an indicated report on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter. (Emphasis added.)
On January 14, 1997, the Department informed J.C. that the Department could not consider his request because it was not filed within forty-five days after the notice of the indicated report. J.C. appealed the Department's action to the Bureau and requested a hearing, stating that he would testify at a hearing that his "painful and disabling headaches" prevented him from timely challenging the indicated report.
Pursuant to J.C.'s request, a telephone hearing was held on August 12, 1997 before a hearing examiner. However, J.C. did not appear to present evidence to support his entitlement to an appeal nunc pro tunc. J.C.'s counsel stated instead: "We will not be presenting argument on the issue of timeliness. We believe that based upon subsection (1) of Section 6341(a) that there is an additional legal basis for requesting, indeed, having the report expunged." N.T., p. 9. Consequently, no testimony was taken at the hearing, and the counsel for both parties only presented legal argument on the issue of whether J.C. should be permitted to request expungement seven months after the notice under Section 6341(a)(1), despite the forty-five day time limitation set forth in Section 6341(a)(2).
After the hearing, the hearing examiner recommended that J.C.'s request for expungement be denied, concluding that the controlling section in determining the timeliness of the request for expungement is Section 6341(a)(2), not Section 6341(a)(1). The Bureau subsequently adopted the hearing examiner's recommendation in its entirety. J.C.'s appeal to this Court followed.
J.C. first contends that the Department should have treated his request for expungement as filed under Section 6341(a)(1), which allows the Secretary to expunge any record *196 "at any time" upon good cause shown. The Department contends, on the other hand, that Section 6341(a)(1) is inapplicable to this matter.[3]
This Court's scope of review of the Bureau's decision in an expungement case is limited to determining whether the Bureau's adjudication violates constitutional rights or is not in accordance with the Law, or whether the findings of fact are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; K.S. v. Department of Public Welfare, 129 Pa.Cmwlth. 31, 564 A.2d 561 (1989).
It is well established that parts of a statute are in pari materia, when they relate to same persons or things, and as such, should be construed together. Section 1932 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932. Further, words in a statute should be given full effect and should not be treated as mere surplusage. 1 Pa.C.S. § 1921(a); City of Chester v. Chester Redevelopment Authority, 686 A.2d 30 (Pa.Cmwlth.1996), appeal denied, 548 Pa. 650, 695 A.2d 787 (1997). To accept J.C.'s interpretation that he may seek expungement and request a hearing at any time would result in eviscerating the time limitations provided in Section 6341(a)(2) for challenging the indicated report.
In providing that the Secretary may expunge any record at any time upon good cause shown, Section 6341(a)(1) does not state that the subject in the record has a corresponding right to "request" such action by the Secretary at any time. Moreover, neither Section 6341(a)(1) nor any other provision of the Law grants a right to appeal from the Secretary's decision made pursuant to Section 6341(a)(1) or a right to request a hearing. By contrast, where the request for expungement is made under Section 6341(a)(2), the parties may appeal the Secretary's decision. Section 6341(b) and (c) provides in pertinent part:
(b) Review of grant of request.if the secretary grants the request under subsection (a)(2), the Statewide central register, appropriate county agency and all subjects shall be so advised of the decision. The county agency and any subject have 45 days in which to file an administrative appeal with the secretary. If an administrative appeal is received, the secretary or his designated agent shall schedule a hearing pursuant to Article IV of the act of June 13, 1967 (P.L. 31, No. 21), known as the Public Welfare Code, and attending departmental regulations.
(c) Review of refusal of request.If the secretary refuses the request under subsection (a)(2) ... the perpetrator ... shall have the right to a hearing before the secretary or a designated agent of the secretary to determine whether the summary of the indicated report in the Statewide central register should be amended or expunged on the grounds that it is inaccurate or that it is being maintained in a manner inconsistent with this chapter. The perpetrator ... shall have 45 days from the date of the letter giving notice of the decision to deny the request in which to request a hearing. (Emphasis added.)
Thus, when Sections 6338(a) and 6341(a), (b) and (c) are read together, it is clear that Section 6341(a)(1) merely grants the Secretary a discretionary authority to amend or expunge any record upon good cause shown, *197 and that to challenge the indicated report and "request" expungement, such request must be filed within the forty-five day period set forth in Section 6341(a)(2).
J.C. next contends, through his new counsel who has entered appearance on this appeal, that he established entitlement to an appeal nunc pro tunc by demonstrating that the delay in challenging the request for expungement was caused by his illness. J.C. further alleges that he notified his former counsel of his intention to timely contest the indicated report immediately after receiving the notice from the Department, and that the delay in filing the request for expungement was caused by his former counsel's neglect.
It is well established that the failure to timely appeal an administrative agency's action is a jurisdictional defect. Falcon Oil Co. v. Department of Environmental Resources, 148 Pa.Cmwlth. 90, 609 A.2d 876 (1992). The time for taking an appeal therefore cannot be extended as a matter of grace or mere indulgence. Sofronski v. Civil Service Commission, City of Philadelphia, 695 A.2d 921 (Pa.Cmwlth.1997). An appeal nunc pro tunc may be allowed, only where delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or nonnegligent circumstances related to the appellant, his counsel or a third party. Id. One seeking permission to file an appeal nunc pro tunc has the burden of establishing that (1) the appeal was filed within a short time after learning of and having an opportunity to address the untimeliness; (2) the elapsed time period is of very short duration; and (3) appellee is not prejudiced by the delay. Id.
To support his contention that he was unable to timely request expungement due to his illness, J.C. attached to the request for expungement a letter dated April 26, 1996, in which Dr. William B. Young stated that J.C. was on medication for his headaches at the time of the alleged child abuse incident in September 1993, which may have affected his potency and sexual interest. Dr. Young's statement concerning his medical condition in 1993, however, does not establish in any way the cause for the delay in challenging the indicated report in 1996. Further, J.C. decided not to present any evidence at the hearing to support his request for expungement nunc pro tunc and abandoned his earlier assertion that the delay was caused by his illness. Thus, the facts in this matter are distinguishable from Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), a case relied on by J.C., in which the appellant established that the illness of the attorney's secretary caused the four-day delay in filing the appeal.
Moreover, J.C.'s allegation that the delay was caused by his former counsel's failure to timely challenge the indicated report is outside the scope of the record and therefore may not be considered on appeal. Craft v. Pennsylvania Game Commission, 69 Pa.Cmwlth. 474, 451 A.2d 802 (1982).[4] Even assuming that J.C.'s allegation may be properly considered on appeal, any delay caused by mere negligence or neglect of an attorney in failing to appeal within the required time period does not provide a basis for granting an appeal nunc pro tunc. DiJohn v. Unemployment Compensation Board of Review, 687 A.2d 1213 (Pa.Cmwlth.1997). See also In re Interest of C.K., 369 Pa.Super. 445, 535 A.2d 634 (1987), in which the Court rejected the argument that an appeal nunc pro tunc from the order terminating parental rights should be permitted on equitable grounds, where the delay was caused by the attorney's failure to make substitute counsel available for filing an appeal during his absence due to his mother's illness. Cf. Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760 (1996) (An appeal nunc pro tunc may be granted in criminal cases on the basis of the counsel's conduct which has affected the defendant's right to appeal).
Finally, J.C. contends that the Department's refusal to grant his request for expungement nunc pro tunc deprived him of his constitutional right to due process, and that *198 the Law should be declared unconstitutional for its failure to provide for a hearing beyond the forty-five day period.
The essential elements of due process are a notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdictional of the cause. Department of Transportation, Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996). As the United States Supreme Court stated in Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982):
The State may erect reasonable procedural requirements for triggering the right to an adjudication, be they statutes of limitations... or, in an appropriate case, filing fees. And the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule. What the Fourteenth Amendment does require, however, `is an opportunity ... granted at a meaningful time and in a meaningful manner,' ... `for [a] hearing appropriate to the nature of the case,'.... (Citations omitted.)
In this matter, J.C. admittedly was given an opportunity to request a hearing to challenge the indicated report within forty-five days of the notice of the indicated report, pursuant to Sections 6338(a) and 6341(a)(2) of the Law. Having failed to comply with the reasonable procedural requirement under the Law and further failed to establish his entitlement to an appeal nunc pro tunc at the hearing scheduled for that purpose, J.C. may not now complain that his constitutional right to due process was violated or that the Law is unconstitutional.
Accordingly, the order of the Bureau is affirmed.
ORDER
AND NOW, this 4th day of November, 1998, the order of the Department of Public Welfare, Bureau of Hearings and Appeals in the above-captioned matter is affirmed.
NOTES
[1] Section 6338(a) of the Law provides that the Department "shall also inform the recipient [of the indicated report] of his right, within 45 days after being notified of the status of the report, to appeal an indicated report, and his right to a hearing if the request is denied."
[2] J.C. alleged, inter alia, that there was an unreasonable delay in filing the indicated report for the alleged child abuse incident occurred in August 1993; the alleged incident occurred immediately after he had reprimanded the child for stealing audio tapes from a store, which raises the credibility of the child; and he was physically incapable of committing the alleged child abuse, as stated by his physician's letter dated April 26, 1996.
[3] The current Law was reenacted in 1990, replacing the old version of the Law contained in 11 P.S. §§ 2201-2224. The various provisions of Law, including Sections 6338(a) and 6341(a)(2), were subsequently amended in 1994, effective July 1, 1995. Before the 1994 amendment, Section 6341(a)(2) specifically provided that a subject of a report may request the Secretary "at any time" to amend, seal or expunge information contained in the statewide central register. Section 6338(a) also provided that the Department must inform the subject of the report of his right to make such request "at any time." In the 1994 amendment, the Legislature placed in Sections 6338(a) and 6341(a)(2) the forty-five day time limit, within which a request to amend or expunge the record may be filed. Section 6341(a)(1) was not amended in 1994. Therefore, we find inapposite J.C.'s reliance on K.S. v. Department of Public Welfare, 129 Pa.Cmwlth. 31, 564 A.2d 561 (1989), and Dauphin County Social Services for Children & Youth v. Department of Public Welfare, 117 Pa.Cmwlth. 305, 543 A.2d 607 (1988), which were decided under the old version of the Law repealed in 1990, which specifically permitted the subject of the indicated report to request expungement at any time.
[4] J.C. filed an application for an evidentiary hearing, proposing to present testimony regarding his former counsel's alleged neglect. By order dated August 4, 1998, this Court denied J.C.'s application on the basis that his appeal should be decided based solely on the certified record and the briefs.
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24 Cal.Rptr.3d 384 (2005)
126 Cal.App.4th 781
BOARD OF RETIREMENT OF The KERN COUNTY EMPLOYEES' RETIREMENT ASSOCIATION et al., Plaintiffs and Appellants,
v.
Mark A. BELLINO, Defendant and Respondent.
No. F045780.
Court of Appeal, Fifth District.
February 9, 2005.
Review Denied May 18, 2005.
*385 Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, David J. Cooper and James M. Duncan, Bakersfield, for Plaintiffs and Appellants.
Chain, Younger, Cohn & Stiles and David V. Stiles, Bakersfield, for Defendant and Respondent.
OPINION
VARTABEDIAN, Acting P.J.
This is an appeal from a declaratory judgment permitting defendant and respondent *386 Mark A. Bellino "to assume his duly elected seat" as a member of the Board of Retirement of the Kern County Employees' Retirement Association. (The board and the association were plaintiffs below and are the appellants in this court.) The dispute between the parties concerns the applicability of Government Code section 53227, which prohibits employees of certain local agencies from sitting on the governing bodies of the agency. (All further section references are to the Government Code, except as otherwise stated.)
We conclude that, for purposes of section 53227, respondent is an employee of appellants. Further, appellants are a governing board and local agency to which section 53227 is applicable. Accordingly, we reverse the judgment.
Facts and Procedural History
Respondent is a non management employee of appellants. As such, he is a county civil service employee and a member of the retirement association, as are all other county employees, whether they work for the association or for county departments. (§ 31522.1.) The board of retirement is the governing board of the association. The board is composed of nine members, of whom two are required by statute to be "members of the association, other than safety members, elected by those members." (§ 31520.1.) In 2003, respondent was elected to fill one of the two "member" positions on the board.
Appellants notified respondent that he would not be permitted to assume his elected position unless a court ruled that section 53227 was inapplicable to the situation. (We set out the text of section 53227 in the Discussion section, below.)
A few weeks later, appellants filed a complaint for declaratory and injunctive relief. The matter was tried to the court sitting without a jury.
The evidence established that respondent's job involves calculating retirement benefits and that there are two levels of supervision between himself and the executive director of the association. The executive director serves at the pleasure of the board, his or her salary is set by the board, and the performance of that person is formally evaluated by the board. The executive director is responsible, among other duties, to formally evaluate the association's employees.
The court ruled that, in accordance with the analysis contained in a formal opinion of the Attorney General (see 80 Ops.Cal. Atty.Gen. 11 (1997)), respondent was permitted to serve on the board without resigning his employment or being terminated from that employment. Appellants filed a timely notice of appeal.
Discussion
A. The Statutory Text
At first blush, this case seems to involve a very straightforward application of a clear statute to uncomplicated facts. After all, in commonsense terms, respondent is an employee of appellants, who are a local public entity and its governing board. The relevant code provisions the substantive prohibition and attendant definitions are as follows:
"An employee of a local agency may not be sworn into office as an elected or appointed member of the legislative body of that local agency unless he or she resigns as an employee. If the employee does not resign, the employment shall automatically terminate upon his or her being sworn into office." (§ 53227, subd. (a).)
As used in section 53227, "`Local agency' means a city, city and county, county, district, municipal or public corporation, political subdivision, or other public agency *387 of the state." (§ 53227.2, subd. (a).) "`Legislative body' means the board of supervisors of a county or a city and county, the city council of a city, or the governing body of a district, municipal or public corporation, political subdivision, or other public agency of the state." (§ 53227.2, subd. (b).)
The substantive prohibition was adapted from a similar prohibition enacted as part of the Education Code in 1991. (See Stats. 1991, ch. 1065, § 2, p. 4944.) In its present codification, Education Code section 35107, subdivision (b)(1), states: "An employee of a school district may not be sworn into office as an elected or appointed member of that school district's governing board unless and until he or she resigns as an employee. If the employee does not resign, the employment will automatically terminate upon being sworn into office."
As stated in a legislative analysis of the bill proposing section 53227, the bill simply "expands a prudent prohibition on dual service from school and community college districts to all local agencies." (Sen. Local Gov. Com., Analysis of Assem. Bill No. 236 (1995-1996 Reg. Sess.) July 3, 1995, p. 2, italics added.)
B. The Source of the Problem
Straightforward application of section 53227 in the present case is hampered by certain historical peculiarities both in the development of section 53227 and in the creation of local retirement associations. The interaction of those historical peculiarities resulted in the trial court's determination that section 53227 did not prevent respondent from serving on the staff of appellant association while serving as a member of appellant board.
When Assembly Bill No. 236, proposing sections 53227 and 53227.2, was under consideration, a late amendment to the bill deleted the word "county" from the definition of "local agency." (See Assem. Bill No. 236 (1995-1996 Reg. Sess.) as amended July 3, 1995, § 1.) Later in that legislative session, another bill was passed to establish an exception to the definition of "local agency" codified as section 53227.2, subdivision (a): "`Local agency' does not include a county." (See Assem. Bill No. 1566 (1995-1996 Reg. Sess.) as amended Sept. 8, 1995, § 4.5.)
In 2001, legislation was introduced to add counties and their boards of supervisors back in to the prohibition of section 53227. According to a legislative committee analysis, the "Legislature granted an exemption to all counties because a particular Contra Costa County supervisor also worked for the County as an emergency room doctor. That person is no longer a county supervisor, but paid county employees continue to be exempt from the dual service ban." (Sen. Local Gov. Com., Analysis of Sen. Bill No. 544 (2001-2002 Reg. Sess.) May 2, 2001, p. 1.) The relevant changes were adopted and section 53227.2 assumed its current form, as quoted above. (See Stats.2001, ch. 43, § 1, p. 215.)
Meanwhile, in 1997 the Attorney General issued an opinion in response to a county counsel's question: "May a person holding a non-management, clerical position in the office of a board of retirement ... serve as a member of the board of retirement?" (See 80 Ops.Cal.Atty.Gen., supra, at p. 11.) In responding to this question, the Attorney General introduced into the mix a peculiarity of the County Employees Retirement Law of 1937, codified beginning at section 31450. (See 80 Ops.Cal. Atty.Gen., supra, at p. 14.)
In the 1970's the retirement law had been amended to permit boards of retirement to "appoint such administrative, technical, *388 and clerical staff personnel as are required to accomplish the necessary work of the boards." (§ 31522.1.) These "personnel shall be county employees and shall be subject to the county civil service ... rules and shall be included in the salary ordinance or resolution adopted by the board of supervisors for the compensation of county officers and employees." (Ibid.)
The Attorney General reasoned that the existence of a specific exception in section 53227.2, subdivision (a), for county employees meant that section 53227 could not apply to personnel of the retirement association, since those personnel were designated as "county employees" by section 31522.1. (80 Ops.Cal.Atty.Gen., supra, at pp. 13-14.) The Attorney General's opinion noted that it was not necessary to discuss the related question of whether the retirement association was a "local agency" for purposes of section 53227, since the personnel of the association were exempted as "county employees." (80 Ops.Cal.Atty.Gen., supra, at p. 14.) "We have examined the [relevant] legislative histories, ... and they fully support the intended exclusion of county employees from the prohibition of section 53227." (Id. at p. 13, italics added.)
There is no longer an exception in section 53227.2 for counties; the definition of "local agency" now expressly includes counties. (§ 53277.2, subd. (a).) This definitional change clarifies the existence of the section 53227 prohibition for county employees who wish to serve on the board of supervisors of the employing county. The definitional change also undermines the rationale for the Attorney General opinion, since the opinion was based on the existence of an exemption from the statute for "county employees." The definitional change does not, however, answer the two questions left unanswered in the Attorney General's opinion: first, are the staff of a retirement association also employees of the association for purposes of section 53227; second, is a retirement association a "local agency" for purposes of section 53227?
C. Retirement Association Staff Members are Association Employees
Respondent contends that the designation in section 31522.1 of retirement association staff as "county employees" should be directly applicable to the use of the word "employee" in section 53227. Further, respondent contends that, by virtue of section 31522.1, appellants' staff must be solely employees of the county.
Ordinarily, rules of statutory interpretation require that different sections of a code must be read together, that the literal language of the statutes is the primary guide to legislative intent, and that code provisions relating to the same subject must be harmonized to the extent possible. (See Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th 155, 167, 2 Cal.Rptr.2d 536, 820 P.2d 1046.)
"We will not, however, apply the literal language of a statute `when to do so would evidently carry the operation of the enactment far beyond the legislative intent and thereby make its provisions apply to transactions never contemplated by the legislative body.' [Citation.]" (People ex rel. Dept. of Transportation v. Southern Cal. Edison Co. (2000) 22 Cal.4th 791, 798, 94 Cal.Rptr.2d 609, 996 P.2d 711.) "[W]e believe this case presents the rare situation where the literal application of a statute contravenes the legislative intent behind its enactment." (Ibid.) Accordingly, as we explain below, we cannot conclude the designation of retirement association staff as "county employees" in section 31522.1 exempts such persons from the prohibition of section 53227.
*389 The County Employees Retirement Law of 1937 defines "employee" (§ 31469) and includes retirement association staff within the definition of "county employees" (§ 31522.1). Sections 53227 and 53227.2 are not part of the County Employees Retirement Law of 1937 and neither section defines the term "employee."
It is not necessary or appropriate to attempt to harmonize two statutes by simply importing a definition from one statute into another if that will "thereby negate the clear mandate of the host statute." (Henning v. Division of Occupational Saf. & Health (1990) 219 Cal.App.3d 747, 760, 268 Cal.Rptr. 476.) The intent of section 53227, as reflected both in its language and its legislative history, is to avoid the conflicts presented when a governing board with an employee-member must exercise the powers of an employer, both with respect to that employee-member and with respect to that employee-member's own workplace supervisors.
On the other hand, if we were to construe section 31522.1 as establishing the county as the sole employer of retirement association staff, it would create an exception to the broad prohibition of section 53227, an exception that finds no support in logic or in the legislative history of section 53227. We will not, in an effort to harmonize two sections of a code, adopt a construction that would frustrate the obvious purposes of the legislation as a whole or otherwise lead to absurd results. (California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340, 33 Cal.Rptr.2d 109, 878 P.2d 1321.)
As stated, if the definition from section 31522.1 is not imported into section 53227, the word "employee" is not otherwise defined by statute for purposes of section 53227. "In this circumstance a statute referring to employees without defining the term courts have generally applied the common law test of employment." (Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 500, 9 Cal. Rptr.3d 857, 84 P.3d 966.) In Metropolitan Water Dist., the court held that workers who were paid and formally employed by a private labor contractor would be employees of the water district for purposes of its retirement plan if the workers met the common law definition of "employee." (Ibid.) Those requirements, clearly present here, have been summarized as follows: The right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, gives rise to the employment relationship. (McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 704, 343 P.2d 923.)
It long has been common in the supplied-labor context for an employee to be deemed to have two employers. (See, e.g., National Auto. Ins. Co. v. Ind. Acc. Com. (1943) 23 Cal.2d 215, 143 P.2d 481; cf. Howard Jarvis Taxpayers' Assn. v. Board of Supervisors (1996) 41 Cal.App.4th 1363, 1376, 49 Cal.Rptr.2d 157.) Accordingly, there is no anomaly created if, for purposes of the section 53227 prohibition, appellants are an additional employer of respondent. Such a conclusion would in no way undermine the role of counties as employers of retirement association personnel under section 31522.1.
To hold in this case that respondent was not an employee of appellants, based solely on section 31522.1, would frustrate the obvious purposes of section 53227: Respondent was supervised on a day-to-day basis by a chain of command topped by the association's executive director. The executive director was not only required to sign off on respondent's annual performance review, but the executive director was also subject to a similar review performed by appellant board of retirement. While, *390 historically, such a situation may have been successfully dealt with by the employee-member's abstention from decisions of the board (see 80 Ops.Cal.Atty.Gen., supra, at p. 14, fn. 4), the Legislature clearly has chosen in section 53227 to prevent such situations in a different manner, by prohibiting altogether the situation that would produce the conflict.
For all of the foregoing reasons, we conclude a staff member of a retirement association is an employee of the association for purposes of section 53227 when, as here, the common law indications of an employment relationship are present. (See also Corcoran v. Contra Costa County Employees Retirement Bd. (1997) 60 Cal. App.4th 89, 94-95, 70 Cal.Rptr.2d 385.)
D. Appellant Retirement Association is a Local Agency
The County Employees Retirement Law of 1937 does not expressly designate retirement associations as any particular type of public entity. Courts have referred to retirement associations and boards of retirement as "administrative agencies" (Preciado v. County of Ventura (1982) 143 Cal.App.3d 783, 789, 192 Cal. Rptr. 253), "administrative tribunals" (Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 45, 37 Cal.Rptr.2d 860), "independent entities" (Traub v. Board of Retirement (1983) 34 Cal.3d 793, 798, 195 Cal.Rptr. 681, 670 P.2d 335), and an entity "which exists by virtue of statute" (County of Los Angeles v. Byram (1951) 36 Cal.2d 694, 695, 227 P.2d 4).
Despite the failure of the statute and case law to define the exact nature of retirement associations, all of the cases treat such associations as public, rather than private, entities. (See, e.g., Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 824, 25 Cal.Rptr.2d 148, 863 P.2d 218 [board is "local agency" for purposes of Ralph M. Brown Act]; Board of Retirement v. Santa Barbara County Grand Jury (1997) 58 Cal.App.4th 1185, 1195, 68 Cal.Rptr.2d 607 [board is "local government agency" subject to powers of grand jury].)
Respondent contends, however, that "local agency" is peculiarly defined in section 53227.2 to encompass not agencies of local government but, instead, agencies of state government. Section 53227.2, subdivision (a), states: "`Local agency' means a city, city and county, county, district, municipal or public corporation, political subdivision, or other public agency of the state." Respondent acknowledges the obvious, namely, that "district," "municipal or public corporation," and "political subdivision" all refer to local entities. But respondent says appellant board "is an agency of the county, not the state," so membership on the board cannot be governed by section 53227.
Although respondent's argument would seem to defy common sense (why would the Legislature define "local agency" to mean "state agency"?), the argument would at least be linguistically plausible if the statutory language were "district, municipal or public corporation, political subdivision, or a public agency of the state." That, however, is not what the statute says.
In terms of ordinary grammar, by referring to "other public agency of the state," the qualification "of the state" is distributed across all of the items in the list. For example, the full description of "municipal or public corporation" specified by the statute is "municipal or public corporation of the state." Phrased somewhat differently, use of the word "other" means that the previous items in the list are examples of "other public [agencies] of the state."
*391 In legal terms, the use of "other" (instead of "a") invokes the interpretive rule known by its Latin name, ejusdem generis. Pursuant to that rule of construction, the meaning of a general term that follows a listing of more specific terms must be limited to things of the same type as the specific items. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 12, 241 Cal.Rptr. 67, 743 P.2d 1323; see also Civ.Code, § 3534 ["Particular expressions qualify those which are general."].)
Viewed in these terms, "of the state" is not used in the possessive sense, as in "the state's agencies." Rather, it is used in a more geographical sense, as in "public agencies within this state." An analogous distinction might be that between "a horse of the king" and "a horse of the kingdom."
Respondent repeatedly states that the Attorney General concluded in the opinion discussed above (80 Ops.Cal.Atty.Gen., supra, at p. 11) that boards of retirement are not local agencies. That, however, is not so. As discussed above, the Attorney General opinion is based exclusively on the statutory exemption, as it then existed, for "county employees." The opinion states that its conclusion would be the same "regardless of whether the board may be considered a `local agency' for purposes of the prohibition" of section 53227. (Id. at p. 14.)
We conclude a board of retirement is an "other public agency of the state" and, therefore, a "local agency" for purposes of section 53277.
E. No Constitutional Violation
Respondent renews his contention, not decided by the trial court, that section 53227 deprives him of procedural due process and unreasonably restricts his right to hold public office. Respondent has not established either violation.
We first note an obvious conundrum that distinguishes the present case both from the Education Code prohibition on dual service (see Ed.Code, § 35107, subd. (b)(1)) and from most other applications of section 53227: respondent is eligible for a position on the board of retirement only because he has been elected as one of two member representatives; if he is no longer a member of the association, he immediately forfeits his board position. (§ 31524 ["Separation from the service of the county of a member of the board vacates his office."].) Thus, while a teacher could make an informed decision that serving on the school board was more important than continuing his teaching job, respondent is not in that position. Other county employees who are not retirement association staff can serve as retirement board members. But only if respondent changed jobs within the county civil service system would he be able to keep both positions. (Respondent's attorney represented to the trial court that such a transfer would be disadvantageous to respondent because he would be a probationary employee in his new position.)
The existence of this dilemma does not change the due process analysis, however. Respondent's property interest in his job and the state's interest in avoiding conflicts of interest on the boards of local agencies remain the same.
The due process analysis is controlled by Coleman v. Dept. of Personnel Administration (1991) 52 Cal.3d 1102, 278 Cal. Rptr. 346, 805 P.2d 300 (Coleman), a case that respondent does not cite, much less attempt to distinguish. The issue in Coleman was the nature of the pre- and post-termination process that was due a state employee who was deemed to have resigned his employment under a statute providing for "automatic resignation" after *392 five continuous days of unexcused absence from the job. (Id. at p. 1108, 278 Cal.Rptr. 346, 805 P.2d 300.) Two aspects of Coleman are particularly relevant.
First, Coleman addresses the question of remedy. Respondent contends section 53227 is "prima facie unconstitutional" because it does not provide for a pre-termination hearing. Coleman says that even if respondent were entitled to a hearing, the statute is not void for failing to provide a hearing. (Coleman, supra, 52 Cal.3d at p. 1123, 278 Cal.Rptr. 346, 805 P.2d 300.) Instead, if respondent were constitutionally entitled to a hearing before the automatic resignation provision could be operative, the remedy would simply be to order such a hearing. (Ibid.)
Second, Coleman emphasizes that the same process is not due every time a civil service employee separates from employment. When an employee is discharged for cause, the state has acted to deprive him or her of the property interest in employment. When an employee resigns, the state has done nothing and "has no duty to afford the employee any procedural protections either before or after the resignation takes effect." (Coleman, supra, 52 Cal.3d at p. 1115, 278 Cal.Rptr. 346, 805 P.2d 300.)
Coleman says that a statute that establishes conditions whereby a government employee would be deemed automatically to have resigned would be constitutionally equivalent to any other resignation. (Coleman, supra, 52 Cal.3d at pp. 1117-1118, 278 Cal.Rptr. 346, 805 P.2d 300.)
In Coleman, however, the court concluded that the terms of the statute notwithstanding the employer actually exercised discretion in invoking the five-day absence statute: the state had waited "over a month" before treating Coleman's absence as a resignation. (Coleman, supra, 52 Cal.3d at p. 1118, 278 Cal.Rptr. 346, 805 P.2d 300.) Because the employer exercised discretion in invoking the statute (ibid.) and because there might be factual issues requiring resolution (id. at p. 1121, 278 Cal.Rptr. 346, 805 P.2d 300), and because of "the direct impact that loss of employment has on an individual's livelihood and ability to meet the need of basic sustenance" (id. at p. 1118, 278 Cal.Rptr. 346, 805 P.2d 300), the court required a minimal level of due process protection before "the resignation goes in to effect." (Id. at p. 1122, 278 Cal.Rptr. 346, 805 P.2d 300.) The court held that due process required the employer to "give notice to the employee of the facts supporting resignation and an opportunity to respond." (Id. at p. 1119, 278 Cal.Rptr. 346, 805 P.2d 300.) The employee is not entitled to a "postseverance evidentiary hearing at which the state must prove the facts supporting the determination of resignation." (Ibid.)
In the present case, the employer has no discretion, either under the statute or in practice, to permit an employee to continue employment after taking the oath of office for the governing board. Most notably, unlike unauthorized absence from employment, the situation has no possibility of resolving itself over time. In the Coleman situation, by contrast, the employer could make a reasonable decision to wait a few days to see if the employee showed up with a valid excuse for his or her absence.
Further, in the present case there is no possible factual issue to be resolved. A single event that occurs in the employee's presence administration of the oath of office serves to automatically terminate employment.
In these circumstances, respondent's vested property right to employment automatically terminates "upon satisfaction of certain statutory conditions." (Coleman, *393 supra, 52 Cal.3d at p. 1115, 278 Cal.Rptr. 346, 805 P.2d 300.) Such a statutory limitation upon the original right, and upon its termination without hearing, is constitutionally permissible. (Ibid.)
Even if we were to conclude that respondent was entitled to the level of due process protection made available in Coleman, we would still conclude respondent is not entitled to relief. Coleman states the employee is entitled to an "opportunity to present his or her version of the facts" only if the employee "challenges the accuracy of the state's factual basis." (Coleman, supra, 52 Cal.3d at pp. 1122-1123, 278 Cal.Rptr. 346, 805 P.2d 300.) Here, only one fact is significant: respondent's election as a members' representative on the board of retirement. Respondent does not challenge that fact and, indeed, affirmatively asserts that fact as the basis for his position in this litigation.
Relying exclusively on Clements v. Fashing (1982) 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508, respondent also contends section 53227 constitutes an unreasonable restriction on his right to run for office. That reliance is misplaced. Clements states: "Far from recognizing candidacy as a `fundamental right,' we have held that the existence of barriers to a candidate's access to the ballot `does not of itself compel close scrutiny.'" (Clements, supra, at p. 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (plur. opn. of Rehnquist, J.).) Accordingly, legislative restrictions on candidacy "need only be drawn in such a manner as to bear some rational relationship to a legitimate state end. Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State's goals and only if no grounds can be conceived to justify them." (Ibid.)
The restriction imposed by section 53227 easily meets this test. Avoidance of conflicts of interest by local board members clearly is a legitimate state goal. Prohibiting service on such boards by employees of the board, who will have continuing and pervasive conflicts, clearly bears a rational relationship to that goal. Further, the duration of the prohibition, lasting as long as the employment, is a reasonable recognition of the duration of the conflicts of interest the statute seeks to avoid.
Disposition
The judgment is reversed. Costs on appeal are awarded to appellants.
WE CONCUR: CORNELL and GOMES, JJ.
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24 Cal.Rptr.3d 643 (2005)
126 Cal.App.4th 585
In re Isidro Fernandez DeLUNA, on Habeas Corpus.
No. H027086.
Court of Appeal, Sixth District.
February 4, 2005.
As Modified February 16, 2005.
As Modified on Denial of Rehearing March 3, 2005.
*645 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Song J. Hill, Deputy Attorney General, for Appellant.
Steve M. Defilippis, Picone & Defilippis, San Jose, for Respondent (Under appointment by the Court of Appeal). *644
*646 WALSH, J.[*]
On July 7, 1985, defendant Isidro Fernandez DeLuna shot a man to death outside a bar after a drunken argument. Later he pleaded guilty to second degree murder and received an agreed sentence of 17 years to life.
At a hearing on March 27, 2002, the Board of Prison Terms (Board) denied defendant a parole release date and determined that it was not likely defendant would be granted parole in the next three years. The Board concluded "that [defendant] is not suitable for parole and that he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison."
Here we will conclude that, though certain of the Board's findings were supported by "some evidence" (In re Rosenkrantz (2002) 29 Cal.4th 616, 658, 128 Cal. Rptr.2d 104, 59 P.3d 174, (Rosenkrantz)), a number of the Board's findings lacked evidentiary support. In light of this conclusion it is prudent to remand the matter for the Board to reconsider its decision in light of defendant's actual record.
THE COMMITMENT OFFENSE
On July 7, 1985, defendant, then age 30, and his friends argued with the victim and his friends in a restaurant bar in Morgan Hill.[1] Defendant said he was challenged to fight, so he went outside, where the victim, Fernando Renteria, then age 41, hit defendant in the face once or twice without provocation. They all went back inside the bar and continued drinking. Defendant and his friends left.
Defendant retrieved a .22-caliber rifle and drove back to the bar. As Renteria was about to enter his own car, defendant drove up and both defendant and his passenger began shooting at Renteria. Renteria was shot in the right elbow.[2] He fell down, got up, and challenged them to kill him. Renteria was shot in the face. Renteria walked through the parking lot, spitting blood and tooth fragments. Defendant followed him and fired a shot that struck a nearby gas pump. Renteria called for his brother and walked among wooden boxes in the parking lot. He was killed by a shot in the back that perforated his thoracic aorta and left lung. After this shot, Renteria ran up to the restaurant door and collapsed. Defendant drove off and was taken into custody later the same night. Defendant attributed the shooting to his intoxication. Additional facts about the offense are set out below where relevant.
THE GUILTY PLEA
On August 29, 1985, defendant pleaded guilty to second degree murder and admitted that he personally used a firearm. On October 11, 1985, pursuant to the plea agreement, defendant was committed to prison for the indeterminate term of 17 years (15 plus two for the firearm use) to life. Defendant's minimum eligible parole date was August 17, 1996.
THE PAROLE HEARING
On March 27, 2002, the Board conducted a hearing to determine defendant's suitability for parole. The Board considered as evidence defendant's prison file, the transcript of an earlier parole hearing, testimony by defendant, letters in support of defendant, and opposing argument by a deputy district attorney.
*647 At the end of the hearing the Board orally concluded "that the prisoner is not suitable for parole and that he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The Board's decision was based on the following factors: (A) considering the nature of the commitment offense, the Board found that "the prisoner committed the offense in an especially cruel and callous manner"; (B) considering defendant's criminal history, the Board found that "the prisoner has an escalating pattern of criminal conduct"; (C) the Board found that defendant has "an unstable social history"; (D) considering defendant's institutional behavior, the Board found that "you've programmed in a limited manner, you've failed to upgrade educationally or vocationally as previously recommended." "[T]he prisoner still needs therapy...." The Board's findings are quoted more fully where relevant below.
THE HABEAS PROCEEDINGS
On June 20, 2003, defendant filed a petition for writ of habeas corpus in the Santa Clara County Superior Court. On July 2, 2003, the trial court issued an order to show cause. On January 20, 2004, after considering the administrative record and other documents, the court granted defendant's petition for habeas corpus and remanded the matter to the Board to reconsider its decision. The court found, among other things: (A) "it can not be said that [defendant's] crime was `especially' cruel or callous" (fn. omitted); (B) defendant has no criminal history; (D) defendant "has been a model inmate" and there was no evidence that he needed additional therapy the Board simply ignored the experts and made a contrary finding. The trial court made no express findings about (C) defendant's social history.
In remanding the matter to the Board, the trial court's order "precluded" the Board "from relying on any of the purported reasons it previously articulated as outlined above." The order also "precluded" the Santa Clara County District Attorney "from opposing parole based on the gravity of the commitment offense." According to the trial court, the district attorney's opposition violated defendant's plea bargain.
1. STANDARD OF REVIEW
When a decision by the Board denying parole is challenged, "the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658, 128 Cal.Rptr.2d 104, 59 P.3d 174.) "Only a modicum of evidence is required." (Id. at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.) As we explain more fully below, if one or more of the factors lacks evidentiary support, we also consider whether the decision "satisfies the requirements of due process of law" because the factors for which there is some evidence "constitute a sufficient basis supporting the ... discretionary decision to deny parole." (Ibid.)
When, as here, the trial court rules on a habeas corpus petition without conducting an evidentiary hearing, we independently review the documentary evidence on appeal. (Rosenkrantz, supra, 29 Cal.4th at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174; In re Smith (2003) 114 Cal. App.4th 343, 360-361, 7 Cal.Rptr.3d 655.) However, "[r]esolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority" of the Board. (Rosenkrantz, supra, 29 Cal.4th at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.)
*648 2. REVIEW OF THE BOARD'S FINDINGS
One of the Board's functions is to set parole dates for prisoners serving indeterminate sentences. (Pen.Code, §§ 3040; 3041, subd. (a); 3000, subd. (b)(4) & (7).) Penal Code section 3041, subdivision (b) requires the Board to "set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." This statute creates a conditional liberty interest for a prospective parolee. (Cf. Rosenkrantz, supra, 29 Cal.4th at p. 661, 128 Cal.Rptr.2d 104, 59 P.3d 174; McQuillion v. Duncan (9th Cir.2002) 306 F.3d 895, 901-902.) The Board has broad discretion, sometimes called "`"great"'" and "`"almost unlimited,"'" to identify and weigh the factors relevant to predicting "by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, 29 Cal.4th at p. 655, 128 Cal.Rptr.2d 104, 59 P.3d 174.) However, "the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board." (Ibid.) A prisoner is entitled to "an individualized consideration of all relevant factors." (Ibid.)
Title 15, section 2402 of the California Code of Regulations identifies factors relevant to parole suitability and unsuitability.[3] These factors are general guidelines, the importance of which is left to the Board to determine. (§ 2402, subds. (c) & (d); cf. Rosenkrantz, supra, 29 Cal.4th at p. 679, 128 Cal.Rptr.2d 104, 59 P.3d 174.) We will examine each of the Board's express findings for evidentiary support.
A. The commitment offense
By regulation, parole is contraindicated if the commitment offense was committed "in an especially heinous, atrocious or cruel manner. The factors to be considered include: [¶] (A) Multiple victims were attacked, injured or killed in the same or separate incidents. [¶] (B) The offense was carried out in a dispassionate and *649 calculated manner, such as an execution-style murder. [¶] (C) The victim was abused, defiled or mutilated during or after the offense. [¶] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense." (§ 2402, subd. (c)(1).)
The Board found two of these five factors, stating "most importantly, ... the prisoner committed the offense in an especially cruel and callous manner. The offense was carried out in a dispassionate, calculated manner. The motive of the crime was inexplicable and very trivial in relationship to the offense. Because you were goaded, you wanted revenge." The Board emphasized that defendant armed himself with a rifle after an argument in a restaurant, returned to the scene, and shot the victim several times.
In the opinion of the trial court, this murder was "not ... especially egregious when compared to other murders." Further, according to section 2403, the Board's own matrix for setting base terms once a prisoner is found suitable for parole, the fact that the victim goaded defendant placed the crime "within the midrange" of second degree murders.
In In re Dannenberg (2005) 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783, the California Supreme Court has recently determined that the Board is not required to refer to its sentencing matrices or to compare other crimes of the same type in deciding whether a prisoner is suitable for parole and whether the prisoner's crime was "especially cruel" or "exceptionally callous." Rather, the Board may characterize a murder as "`particularly egregious'" if there is violence or viciousness beyond what is "minimally necessary" for a conviction. (Id. at p. 440, 23 Cal.Rptr.3d 417, 104 P.3d 783.)
It does not appear that the trial court made a finding whether the Board's determination regarding the nature of the commitment offense was supported by some evidence, as required by Rosenkrantz, supra, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174. In our view, there is some evidence that this murder was especially cruel and callous. Between the initial verbal and physical confrontation with the victim outside the bar, defendant returned to the bar, left, retrieved a rifle, and returned to the bar. One of the first shots pierced the victim's mouth. As the victim bled and walked around the parking lot, defendant followed him and continued firing until defendant killed him. The initial wounding and deliberate stalking of a defenseless victim can reasonably be characterized as especially cruel and callous. (Cf. In re Morrall (2002) 102 Cal.App.4th 280, 301-302, 125 Cal.Rptr.2d 391 [seven shots were exceptionally callous]; In re Smith, supra, 114 Cal.App.4th at p. 368, 7 Cal.Rptr.3d 655 ["Smith had an opportunity to stop his crime but continued"].)
The Attorney General asserts the existence of another atrocity indicator, namely that defendant's action "threatened the lives of others." The Attorney General claims that defendant, in fleeing, almost rammed an oncoming vehicle containing three people and he shot at them. The probation report mentioned that shots were fired from defendant's car at an oncoming vehicle.
Though a defendant's behavior after the commitment offense is relevant to parole suitability (§ 2402, subd. (b)), none of the Board's findings cited defendant's post-shooting conduct and, as the trial court observed, defendant was not charged with any crime as a result of this alleged behavior. We must confine our review to the *650 stated factors found by the Board, and all the evidence presented at the parole hearing which is relevant to those findings, not to findings that the Attorney General now suggests the Board might have made.[4]
B. Defendant's criminal history
Defendant's "past criminal history, including involvement in other criminal misconduct which is reliably documented," is relevant to his parole suitability. (§ 2402, subd. (b).) The lack of a prior record indicates parole suitability. (§ 2402, subd. (d)(6).)
The initial probation report indicated that defendant's lack of a criminal record favored a grant of probation. At the parole hearing, the Board acknowledged that defendant has no juvenile record and "only the instant offense as an adult record," but then found, without explanation, that "the prisoner has an escalating pattern of criminal conduct." The Attorney General does not suggest that there is any evidence supporting this finding and we do not see any.
C. Defendant's social history
Defendant's social history is relevant to determining his parole suitability. (§ 2402, subd. (b).) Stable relationships with others favor parole (§ 2402, subd. (d)(2)), while "a history of unstable or tumultuous relationships with others" weighs against parole. (§ 2402, subd. (c)(3).)
On the general topic of defendant's social history, the Board found that defendant has "an unstable social history that includes having a very limited education." "[Y]ou had a very severe alcohol problem, and you were carrying a loaded gun as a matter of routine."[5]
Regarding defendant's alcohol problem, an August 2001 mental health evaluation by Dr. Rueschenberg, on which the Board relied, quoted defendant as saying that he began consuming alcohol at the age of 17, when he came to California. Defendant initially reported drinking a beer or two a day and a six pack on the weekends, but further discussion revealed more extensive drinking. On the day of the murder, defendant had consumed a 40-ounce bottle of beer, a six pack of tall beers, and three pitchers of beer before going to the restaurant, where he continued drinking. Defendant denied to Rueschenberg having a current problem with alcohol. Defendant told the Board in March 2002 that he did not drink to get drunk, but he did get drunk on the day of the murder. Defendant said he wanted "to continue the alcoholics program in Mexico" upon his release. Though there is some evidence that defendant had an alcohol problem, there is no evidence that it contributed to "a history of unstable or tumultuous relationships." As we discuss in the following section, it appears he has attempted to address the problem in institutional programs, contrary to the Board's finding that he failed to participate in Alcoholics Anonymous (AA) or Narcotics Anonymous (NA).
There is conflicting evidence about defendant carrying a gun. At the parole hearing in March 2002, a commissioner asked defendant if he had the gun in his waistband or his car. Defendant explained that he went home to retrieve the gun. *651 The prosecutor told the Board that defendant drove "from the scene of this restaurant a little over three miles to where he was residing on this farm." However, at an earlier parole hearing in November 1998, defendant said he might have had the gun in his car for a week, but he could not remember. He also said he had the gun at home for protection. In our view, this does not amount to some evidence that defendant carried a loaded gun "as a matter of routine."
Defendant has a limited education. Dr. Rueschenberg reported that defendant completed fourth grade in Mexico. This evaluation also reported that defendant was raised in an intact family with 14 children and that he was married for six years until his incarceration for murder. The probation report stated that defendant "is a legal alien from Mexico and has been steadily employed as a field laborer." While he has a limited education, this does not appear to have resulted in unstable relationships or violent or criminal behavior apart from the commitment offense.
In short, apart from the commitment offense, we see no evidence that defendant has an "unstable social history."
D. Defendant's institutional behavior
Defendant's postcommitment institutional behavior is relevant to his suitability for parole. (§ 2402, subd. (d)(9).) "[S]erious misconduct in prison" is a negative factor. (§ 2402, subd. (c)(6).)
The Board made the following findings regarding defendant's institutional behavior. "[Y]ou've programmed in a limited manner, you've failed to upgrade educationally or vocationally as previously recommended. You've not sufficiently participated in beneficial self-help and therapy programming.... [T]he prisoner still needs therapy in order to face, discuss, understand, and cope with stress in a nondestructive manner. Until progress is made, the prisoner continues to be unpredictable and a threat to others. Until he's able to understand the causative factors as well as his culpability in this particular crime.... The therapy in a controlled setting is needed but motivation or amenability are questionable. Nevertheless, the prisoner should be commended you haven't gotten any 115s ever since your entire time here. You have a certificate for landscape and gardening. You have current positive work reports. However, all of these positive aspects of your behavior don't outweigh the factors of unsuitability."
In explaining why a grant of parole was unlikely in three years, the Board elaborated: "He needs additional time to gain such programming. He failed to participate in AA or NA to help him cope with understanding the criminal his causative factors of his criminality, as well as he's failed to upgrade educationally. You have been here wasting your time, Mr. DeLuna. As long as you've been here, you could have finished ESL and have some knowledge of a second language as well as some other important skills, some other employability type of skills. You as well need some more insight into the life offense itself. This talked about part of your anger that caused you to be here."
The trial court made the following comments about these findings. "First, [defendant] has been a model inmate, having no disciplinaries and achieving a classification score of zero. Secondly, the Board issued a `finding [] that the prisoner still needs therapy.' Doctor Rueschenberg, however, stated in the most recent Psychosocial Assessment that there was no need for mental health services. It appears that the Board would put [defendant] in an impossible situation by demanding proof of therapy which will never *652 be given since there is no diagnosed need. [Defendant] has consistently been rated in his doctor and counselor reports as posing only a moderate, average, or even low risk to the public if released. The Board's decision to ignore the experts and announce a contrary finding, without any evidentiary support, was arbitrary and capricious. Third, the Board's derogation of [defendant's] vocational or educational status is not evidence in support of its decision given [defendant's] vocational gardening and landscaping achievements and his job offer of farm work."
The Board's finding that defendant failed to participate in AA is contradicted by the record. A life prison evaluation report for November 2000 stated that he "remained enrolled in Alcoholics Anonymous Program from 7/96 through 6-12-00." A postconviction progress report dated July 18, 2001, stated defendant had "[c]ontinued participation in Alcoholics Anonymous throughout this period." The Board noted these reports during the hearing.
The Board's finding that defendant needs therapy is contradicted by the record, as it was in In re Ramirez (2001) 94 Cal.App.4th 549, 571, 114 Cal.Rptr.2d 381, and In re Scott (2004) 119 Cal.App.4th 871, 896-897, 15 Cal.Rptr.3d 32. A psychological evaluation for October 1998 stated, "He does not have a psychiatric condition which would benefit from mental health treatment." As the Board quoted during the parole hearing in March 2002, the Rueschenberg evaluation of August 2001 stated, "There do not seem to be any signs or symptoms of a mental disorder, and [defendant] does not appear to be in need of mental health services."
The Board observed that defendant had not learned English as a second language. Defendant told Doctor Rueschenberg that he has attended ESL classes on and off, but has had difficulty learning English. We agree with the trial court that this circumstance must be weighed against the likelihood of defendant's deportation to Mexico. During the hearing, the Board noted, "you have a U.S. INS hold, you're going to be deported." Defendant explained that he intended to work for his father on the family farm in Mexico upon release. Defendant said he did not intend to return to the United States due to the INS hold. If he were not deported, he would live with his wife in Sonoma. Defendant has a job offer from a former employer as a farm worker.
The Board stated that defendant had failed to upgrade his vocational training, apparently dissatisfied with defendant's training in landscape and gardening. While there is evidence that defendant has concentrated in prison on certain vocational skills, we do not perceive any connection between his gardening skills or his inability to speak English and the Board's conclusion that "he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." Nothing in the record indicates that defendant's criminality or ability to support himself was affected by any limitation of his vocational or language skills.
The Attorney General asserts that defendant's pattern of behavior supports the Board's finding of unsuitability. Section 2402, subdivision (b) states in part: "Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." Assuming there may be some connection between defendant's limited English, limited education, and his limited vocational training, the Board did not establish how this combination or pattern makes him unsuitable as a threat to public safety.
*653 3. THE BOARD'S CONCLUSIONS
This review of all of the Board's stated reasons for denying defendant a parole release date reveals that the majority of them lack any evidentiary support. Indeed, the Board made findings contrary to facts earlier acknowledged by the Board at the hearing.
In reviewing a decision denying parole, we first determine whether some evidence supports each of the factors stated by the Board to justify the denial of parole. (Cf. Rosenkrantz, supra, 29 Cal.4th 616, 677-683, 128 Cal.Rptr.2d 104, 59 P.3d 174; In re Smith, supra, 114 Cal.App.4th 343, 366-373, 7 Cal.Rptr.3d 655.) If one or more of the factors lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result "satisfies the requirements of due process of law" because the factors for which there is some evidence "constitute a sufficient basis supporting the ... discretionary decision to deny parole." (Rosenkrantz, supra, 29 Cal.4th at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.) We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion. (Cf. Id. at pp. 677, 682-683, 128 Cal.Rptr.2d 104, 59 P.3d 174; In re Dannenberg, supra, 34 Cal.4th at p. 1071, 23 Cal.Rptr.3d 417, 104 P.3d 783 [p. 46].)
On the other hand, the "decision cannot stand" when findings on important factors lack evidentiary support and it is not clear that the Board would have reached the same conclusion based on the supported factors. (Cf. In re Smith, supra, 114 Cal.App.4th at p. 373, 7 Cal. Rptr.3d 655.) When the supported factors could justify denying parole, but it is not clear that the Board would have reached this conclusion, we concluded in In re Smith, supra, 114 Cal.App.4th at pages 373-374, 7 Cal.Rptr.3d 655 that the appropriate remedy is to direct the Board to reconsider the prisoner's parole suitability in accordance with the discretion allowed by law. (Cf. In re Ramirez, supra, 94 Cal.App.4th at p. 572, 114 Cal.Rptr.2d 381; see Rosenkrantz, supra, 29 Cal.4th at p. 658, 128 Cal.Rptr.2d 104, 59 P.3d 174.)[6]
Therefore, to the extent the trial court's order here remanded this case "to the Board with directions to proceed in accordance with due process," we conclude that the order was appropriate.
4. THE TRIAL COURT'S CONCLUSIONS
A. The effect of the plea bargain
In this case the Board notified the Santa Clara County District Attorney of the parole suitability hearing. (Pen.Code § 3042, subd. (a).) The Board appropriately considered the District Attorney's appearance and opposition to parole. (Pen.Code, § 3046, subd. (c).) The trial court's order has "precluded" the Santa Clara County District Attorney "from opposing parole based on the gravity of the commitment offense." The trial court reasoned that the prosecutor is estopped by the 1985 plea bargain agreeing to second degree murder to now argue that defendant should be incarcerated longer "than the existing matrix designation" based on the nature of the commitment offense.
We assume for the sake of discussion that a prosecutor who agrees in a plea bargain to a particular parole date should be bound by that agreement, whether actually authorized to enter it or not. (Brown v. Poole (9th Cir.2003) 337 F.3d *654 1155, 1159-1161.) We also assume for the sake of discussion that the district attorney is a party to these habeas corpus proceedings. Nevertheless, we conclude that this part of the court's order is unauthorized as it lacks evidentiary support. We see nothing in the record indicating that the 1985 plea bargain included a promise by the prosecutor either that defendant would be released on parole at any specific time, that defendant would be released according to the regulatory matrix, or that the prosecutor would cease arguing on a given date that defendant's second degree murder was especially callous. Absent such evidence, defendant cannot establish that his continued incarceration is a breach of his bargain. The district attorney's office is not bound to honor a promise it did not make. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1386, 19 Cal. Rptr.3d 545.)
B. The Board's discretion on reconsideration
Though it was appropriate for the trial court to remand the case to the Board for further consideration, the trial court went further and "precluded" the Board "from relying on any of the purported reasons it previously articulated as outlined above." In attempting to thus curtail the Board's exercise of discretion, the trial court has exceeded its authority. Section 2402, subdivision (b) provides in part: "All relevant, reliable information available to the panel shall be considered in determining suitability for parole." Rosenkrantz observed, "the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious." (Rosenkrantz, supra, 29 Cal.4th at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.) The Board should proceed in this manner. If there is evidentiary support for a finding currently lacking it, the Board may make that finding again.
Disposition
The case is remanded to the trial court to modify its order granting defendant's petition for habeas corpus and remanding the matter to the Board to reconsider its decision and to conduct a new hearing to reconsider defendant's suitability for parole using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process. As so modified, the order is affirmed.
WE CONCUR: PREMO, Acting P.J., and BAMATTRE-MANOUKIAN, J.
NOTES
[*] Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Since defendant pleaded guilty, this summary is taken from the original probation report.
[2] Eyewitnesses described Renteria as being shot in the shoulder, but the autopsy only recorded an arm wound to the elbow.
[3] Unspecified section references are to title 15 of the California Code of Regulations.
Section 2402, provides in part: "(b) All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
"(c) Circumstances Tending to Show Unsuitability...:
"(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner.... [¶] ... [¶] (2) Previous Record of Violence.... [¶] (3) Unstable Social History.... [¶] (4) Sadistic Sexual Offenses.... [¶] (5) Psychological Factors.... [¶] (6) Institutional Behavior....
"(d) Circumstances Tending to Show Suitability...: [¶] (1) No Juvenile Record.... [¶] (2) Stable Social History.... [¶] (3) Signs of Remorse.... [¶] (4) Motivation for Crime.... [¶] (5) Battered Woman Syndrome.... [¶] (6) Lack of Criminal History.... [¶] (7) Age.... [¶] (8) Understanding and Plans for Future.... [¶] (9) Institutional Behavior...."
We quote the regulations more fully where relevant to our discussion.
[4] By the same token, we disregard evidence in the record about prison certificates that defendant had received after the Board's hearing, such as his January 2003 completion of a 44-week anger management course.
[5] Contrary to the Attorney General's suggestions, the Board did not find the commitment offense to be evidence of defendant's instability nor did the Board find defendant's "failure to acknowledge his abuse" of alcohol to be further evidence of instability.
[6] When there is no evidentiary basis for denying parole, "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." (Rosenkrantz, supra, 29 Cal.4th at p. 658, 128 Cal.Rptr.2d 104, 59 P.3d 174.)
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2259340/
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720 A.2d 586 (1998)
352 Md. 8
Brenda L. SMALLWOOD
v.
Hilton P. BRADFORD.
No. 76, Sept. Term, 1997.
Court of Appeals of Maryland.
November 20, 1998.
*587 Brian Peter Cosby (Brian Peter Cosby, P.A., on the brief), Ocean City, for petitioner.
Ernest I. Cornbrooks, III (Webb, Burnett, Jackson, Cornbrooks, Wilber, Vorhis & Douse, on brief), Salisbury, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
BELL, Chief Judge.
William Jerald Todd ("Todd" or "the decedent") was killed instantly in an automobile accident on Maryland Route 90, in Worcester County, Maryland, near Ocean City, and in which Hilton P. Bradford (the "appellee") was also involved. The decedent's sister,[1]*588 Brenda L. Smallwood, Personal Representative of his estate (the "appellant"), filed a survival action against the appellee in the Circuit Court for Worcester County, alleging that the appellee's negligence caused Todd's death. She sought damages for pre-impact fright, mental and/or emotional pain, anguish, suffering and/or distress and for loss of enjoyment of life.
At the jury trial, the appellant produced an eyewitness who testified as to how the accident occurred. According to that witness, Kem Waters, the appellee's automobile, which was proceeding east on Route 90, crossed the center line and struck the decedent's vehicle traveling in the west bound lane. He testified that, immediately before the collision, he saw Todd attempt to avoid the collision by accelerating and veering his vehicle toward the highway's shoulder.[2] Despite that effort at evasion, given "the angle that [the appellee's] car had on [the decedent's car]," Waters stated that the appellee's car crashed into the driver's side of Todd's car and side-swiped virtually its entire length. Todd was dead, Waters said, immediately after the accident, when he checked his pulse, apparently as a result of the impact. The entire incident, according to the eyewitness, "took about fifteen or twenty seconds."
The appellant also produced undisputed evidence, in the form of her testimony, of the decedent's personality and life style, presumably as proof of damages. She testified:
"Jerry was a friendly, outgoing person. He loved life, he loved people. He just enjoyed being around people and doing things. He was a very happy-go-lucky type person. He enjoyed life to its fullest. And everybody that knew him thought the world of him.
* * *
"He enjoyed golf, bicycle riding, and he would get together those bicycle trips from Ocean City to Chincoteague.
"There was a whole group of men his age that would get together and ride their bikes from here to either Chincoteague or Crisfield and just have a grand time going to and from.
"Well, as a kid growing up he sold newspapers on the boardwalk when he was old enough.
"He was a desk clerk, a bartender, a realtor.
"I think everybody knew him. Even the day of the funeral, all of the marquees through Ocean City had, `We are going to miss you, Jerry Todd.' So, it tells me pretty well everybody in Ocean City knew him.
"Of course, growing up in Berlin, everybody knew him. He was the senior class president and on the sports, basketball, and what-have-you."
Also to prove damages, the appellant sought to offer evidence as to the status of the decedent's estate "in terms of debt versus assets" and as to the decedent's pre-death financial condition, as reflected by his debts. That evidence was not allowed, the trial judge ruling, "testimony [on those subjects] is irrelevant." The appellant was permitted to prove the funeral expenses incurred as a result of the decedent's death, and did so by introducing a funeral bill in excess of $7,000.00 into evidence.
At the close of the appellant's case, the appellee moved for judgment, pursuant to Maryland Rule 2-519, arguing, inter alia, the lack of legally sufficient evidence of his negligence and that damages for pre-impact fright, mental anguish and loss of enjoyment of life are not recoverable in a survival action. Although the court granted, over the appellant's objection, the motion as to the recoverability of damages for pre-impact fright, mental anguish and loss of enjoyment of life, it denied it with respect to liability. Having obtained favorable rulings on damages, the appellee rested without putting on *589 a case. The jury rendered a verdict finding the appellee negligent and awarding the decedent's estate damages in the amount of $2,000.00, the maximum amount then allowed for funeral expenses.[3]
The appellant noted an appeal of the judgment to the Court of Special Appeals. When, shortly thereafter, that court issued its opinion in Montgomery Cablevision Limited v. Beynon, 116 Md.App. 363, 696 A.2d 491 (1997), in which a substantial jury verdict for "pre-impact fright"damages was reversed, the intermediate appellate court concluding that damages for pre-impact fright, mental anguish or emotional distress are not compensable, she filed in this Court a Petition for Writ of Certiorari. This Court granted the petition prior to the Court of Special Appeal's consideration of the case. Smallwood v. Bradford, 347 Md. 155, 699 A.2d 1169 (1997). We subsequently granted certiorari in Beynon, as well. Beynon v. Montgomery Cablevision, 347 Md. 683, 702 A.2d 291 (1997).
The appellant asks that we answer the following questions:
"1. Whether a person instantly killed by tortious conduct has a survival action against the tortfeasor for pre-impact fright, and mental and/or emotional pain, anguish, suffering and/or distress.
"2. Whether a person who is instantly killed has a survival action against the tortfeasor for loss of enjoyment of life.
"3. Whether the pecuniary status of the decedent or his estate is relevant evidence of pre-impact emotional pain and suffering or loss of enjoyment of life in an instantaneous death, survival action."
We shall reverse the judgment of the Circuit Court for Worcester County with respect to pre-impact fright and affirm it in all other respects.
I.
First, the appellant contends that the decedent experienced pre-impact emotional distress and mental anguish in the form of fright during the period in which he became aware that the appellee's automobile had crossed the center line and was on a course for a head-on collision and unsuccessfully attempted to avoid that collision. She argues that the trial court's refusal to instruct the jury as to "pre-impact" fright as an element of damages was error.
As we have seen, the Court of Special Appeals has rejected this argument. In its Beynon opinion, the intermediate appellate court exhaustively reviewed Maryland precedents in the area and concluded:
"[T]here can be no award of damages for pre-impact fright suffered by a tort victim who died instantly upon impact or who never regained consciousness after the impact, because no cause of action will lie for `mere fright' without physical injury (Green v. Shoemaker)[4] or injury capable of objective determination (Vance)[5] resulting therefrom. Obviously, one who died instantly upon impact or at least died without recovering consciousness following impact cannot have suffered any injury capable of objective determination as a result of `pre-impact fright,' i.e., fear, terror, or mental anguish or distress from anticipation of imminent injury or death."
Montgomery Cablevision Ltd. Partnership v. Beynon, 116 Md.App. at 388, 696 A.2d at 503. *590 We were not persuaded and, thus, in Beynon v. Montgomery Cablevision Limited., 351 Md. 460, 504-06, 718 A.2d 1161, 1183-84 (1998), we reversed, holding instead that damages for pre-impact fright and mental anguish may be recovered in survivorship actions. In that case, the automobile that the decedent was driving crashed, while traveling at 41 miles per hour, into the rear of a tractor-trailer that was completely stopped, at the rear of a mile long traffic back up, in the middle traffic lanes of westbound Interstate 495, killing the decedent instantly upon impact. At trial, the plaintiff established the defendants's negligence[6] and also that the decedent "was approximately 192 feet from the rear of Kirkland's tractor-trailer when he became aware of, and then reacted to, the impending danger of crashing into its rear. In his attempt to avoid the collision, [the decedent] slammed on his brakes, as 71½ feet of skid marks attest, and slightly veered to the right." Id. at 465, 718 A.2d at 1163. Having extensively reviewed Maryland precedents and cases on the subject from other jurisdictions, we stated our agreement with the plaintiffs and the trial court, that the decedent should be compensated for "pre-impact fright"the mental anguish the decedent suffered from the time he became aware of the impending crash until the actual collision.[7]
We explained our reasoning as follows:
"In Green [v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909) ], the underlying reason we required physical injury as a result of an emotional injury before emotional injuries are compensable was because `physical injury' established the genuineness of the emotional harm and guarded against feigned claims. `Physical injury' provided, and still provides, the objective manifestation of the alleged emotional injury and served, and still serves, as the yardstick by which a tort victim's emotional harm may be measured. `Such an objective determination provides reasonable assurance that the claim is not spurious.' Belcher [v. T. Rowe Price], 329 [Md. 709,] 735, 621 A.2d [872,] 885 [(1993)]. Here, the decedent's fright is accompanied by both physical injuries and independent objective manifestation. The physical injuries that accompanied the decedent's pre-impact fright are the fatal injuries he sustained as a result of the feared impactthe automobile accident. Moreover, the decedent's fright is capable of objective determination by the 71½ feet of skid marks that the plaintiffs argued, and the jury apparently believed, resulted from the decedent's apprehension of impending death, and the collision itself.
"The fact that the fright or mental anguish in this case preceded the crash that resulted in the decedent's fatal bodily injuries does not affect causation. As our cases make clear, whenever a wrongful act naturally and proximately results in harm, `why should not such effect be regarded by the law, even though such cause may not always, and under all conditions of things, produce like results?' Green, 111 Md. at 77, 73 A. at 691. The actor responsible for the wrongful, negligent act is liable for all proximately caused emotional distress experienced by the tort victim. The wrongful conduct need only proximately cause the emotional distress or mental anguish, independent of the physical injuries; the mental disturbance need not result from physical injury. In the instant case, the *591 automobile crash caused decedent's fatal injures, for which a separate cause of action exists, and the respondent is responsible for the emotional disturbance resulting from the crash. Damages for `pre-impact fright' are recoverable when the decedent experiences it during the `legitimate window of mental anxiety.' Faya, 329 Md. at 459, 620 A.2d at 338-39. In this case, that window opened when the decedent became conscious of the fact he was in imminent danger and it closed with his death. See generally Kathleen M. Turezyn, When Circumstances Provide A Guarantee of Genuineness: Permitting Recovery for Pre-Impact Emotional Distress, 28 B.C.L.Rev. 881, 883 (1987)( "[S]ome courts have permitted recovery for the emotional distress suffered by a victim upon his or her realization of the peril to which his or her personal security has been exposed by the defendant's negligence"), and cases therein cited. To be sure, however, `pre-impact fright' damages should compensate a decedent's fright, not the resultant death.
"A rule that does not permit a decedent's estate to recover pre-impact fright damages in a survival action would be illogical in view of the fact that a victim who survives an accident similar to the one in this case would be entitled to recover damages for the emotional distress and mental anguish he or she suffered before the accident, independent of any physical injury that may have been sustained before, or after, the emotional injury. The purpose of survival statutes is to permit a decedent's estate to bring an action that the decedent could have instituted had he or she lived. Here, there is no question that, had he lived, the decedent would have been permitted to recover damages for the `pre-impact fright' he suffered before crashing into rear of the tractor-trailer.
"Also, permitting a jury to determine pre-impact fright requires the same reasoning and common knowledge that we allow jurors to exercise in determining non-economic, pain and suffering damages in other tort actions, which, like assault, require an assessment of a victim's fear and apprehension. Direct evidence is not necessary. What is required is evidence from which a reasonable inference could be drawn that the decedent experienced fear or fright. Such evidence exists in this case, the 71½ feet long skid marks made by the decedent's vehicle immediately prior to the actual crash. A jury reasonably could have inferred from that evidence that the decedent was aware of the impending peril, that he was going to crash, and attempted an evasive maneuver to avoid it. The jury equally reasonably could have concluded that the decedent suffered emotional distress or fright during that period before the crash, after he became aware of the imminent danger and began braking."
Beynon, 351 Md. at 506-09, 718 A.2d at 1184-85.
This reasoning applies equally to the present case. Here, as in Beynon, there was sufficient evidence adduced to have permitted the jury to infer that the decedent suffered great mental anguish or emotional distress in the form of fright or fear immediately before the fatal automobile collision and that the appellee's negligence was the proximate cause of that mental anguish or emotional distress. Also, the mental anguish, "pre-impact fright," was accompanied by both fatal physical injuries and independent objective manifestation, an attempt to avoid the collision.
An eyewitness, who was driving his vehicle directly behind the decedent's, and, thus, was well-positioned to, and did, observe the entire accident, testified that he saw the appellee's vehicle "drift over" into the decedent's lane of travel, at a speed of approximately fifty-five miles per hour. "At that point," he said, "the Volkswagen in front of me beg[a]n to veer off in an attempt to see the vehicle coming towards him. It was really a position where the oncoming vehicle had such an angle on [the decedent's] car" that "it was just impossible for him to avoid the oncoming car." Nevertheless, the eyewitness stated that, in his attempt to "try to avoid the oncoming car," the decedent started to accelerate and try to speed up onto the right side of the road.
This evidence of the decedent's defensive maneuvering performs the same function as *592 the 71½ feet of skid marks in Beynon, it provides the objective manifestation of the decedent's alleged emotional injury and it is a yardstick by which that injury may be measured. In short, it "provides reasonable assurance that the claim is not spurious." Belcher, 329 Md. at 735, 621 A.2d at 885. Thus, as in Beynon, the appellant in this case could argue that the decedent's fright could be objectively determined by reference to the defensive actions the decedent took as a result of his apprehension of impending death and by the physical impact of the collision itself. If anything, the evidence in this case is stronger than that in Beynon.
Hence, the trial court erred in not submitting the issue of pre-impact fright damages to the jury for its determination. The case must be remanded to the trial court for further proceedings in this regard.
II.
The appellant's next contention is that, notwithstanding his death immediately upon impact, the decedent has a cause of action against the appellee for the loss of his enjoyment of life. His loss of enjoyment of life action has two aspects, she argues; the decedent suffered two compensable, "temporal losses of enjoyment of his life":
"[The decedent] lost the actual, subjective and conscious enjoyment of his life for a few seconds as he suffered pre-impact fear and the resultant debilitating affect [sic] upon his nervous system (including inferentially, `heart palpitations'), and he then objectively lost the enjoyment of the rest of his life post-impact, after he was instantly killed. The objective manifestation of tortious impact upon [the decedent]'s nervous system is that he increased his speed and veered. As a direct result of the tortious impact upon his nervous system (the infliction of fear), [the decedent] subjectively and consciously lost the enjoyment of the final seconds of his life."
The appellant, therefore, seeks to recover for the decedent's pre-impact loss of enjoyment of life and, despite the decedent's instant death, his post-impact loss of enjoyment of life, as well. Generally, the "loss of enjoyment of life" includes the "impairment of the capacity to enjoy life, or to enjoy a particular avocation" and, in some cases, it constitutes a proper, separate element of damages. 38 Am Jur 2d. Fright, Shock and Mental Disturbances § 56 (1986, Cum.Supp.1998) (citing Aretz v. United States, 456 F.Supp. 397 (S.D.Ga.1978); Budek v. Chicago, 279 Ill. App. 410 (1935); King's Indiana Billiard Co. v. Winters, 123 Ind.App. 110, 106 N.E.2d 713 (1952); Haynes v. Waterville & O. Street R. Co., 101 Me. 335, 64 A. 614 (1906); Baker v. Manhattan R.Co., 54 N.Y. Super Ct. (22 Jones & S) 394, aff'd 118 N.Y. 533, 23 N.E. 885 (1890); Warth v. County Court, 71 W.Va. 184, 76 S.E. 420 (1912). See also Annotation, Loss of Enjoyment of life as a Distinct Element or Factor in Awarding Damages for Bodily Injury, 34 A.L.R. 4th 193 (1996); Kirk v. Washington State University, 109 Wash.2d 448, 746 P.2d 285 (1987). The cases that hold that the impairment of the capacity to enjoy life or to enjoy a particular avocation is not a proper element of damages, do so on the basis that such damages are too conjectural and speculative and too difficult of measurement to form a substantial basis for recovery. 38 Am Jur 2d. Fright, Shock and Mental Disturbances § 56; see also cases therein cited; Loth v. Truck-A-Way Corp., 60 Cal.App.4th 757, 766, 70 Cal.Rptr.2d 571, 577 (1998).[8]
In McAlister v. Carl, 233 Md. 446, 197 A.2d 140 (1964), this Court acknowledged both that the "[a]uthorities are divided ... as to whether loss of enjoyment of life is compensable in damages," id. at 453, 197 A.2d at 143, citing 148 Kan. 720, 85 P.2d 28, 120 *593 A.L.R. 521, and some of the reasons several States have denied recovery for such damages: "usually that such damages are too speculative or uncertain and are incapable of measurement in monetary [ ] terms, and sometimes that such damages would overlap other elements of damage otherwise compensated for, and occasionally because of lack of causal connection." Id., 197 A.2d at 144. We also recognized that there is a difference, with respect to proof, between the loss of enjoyment of life, in its broader sensethose cases which "deal with capacity to enjoy things which involve matters of common experience with which a jury may be expected to have some familiarity, id. at 455, 197 A.2d at 145,and in its narrower sensethose cases involving "damages for the enforced abandonment of a desired occupation which the plaintiff had not entered upon." Id. The former, we suggested, is less susceptible to the charge that proof of damages is too speculative: "[i]n cases involving loss of capacity to enjoy more or less usual or familiar things or activities of life, the element of speculation seems no greater than in disfigurement cases." Id.
The issue in McAlister v. Carl did not involve loss of enjoyment of life in its broader sense, as in this case; rather it was the narrower loss of enjoyment of a particular occupation or avocation. Id. at 449, 197 A.2d at 141. The Court addressed that issue from two perspectives. Concerning foreseeability, it observed:
"in our estimation, the injury in controversyloss of the plaintiff's ability to engage in her chosen and intended occupationis not beyond the limits of reasonable foreseeability, and here ... there were bodily injuries to the plaintiff herself. It is plain that negligence resulting in an automobile collision may cause, and is likely to cause, physical injury to another, and that physical injury may limit or prevent physical activity in many occupations requiring it, including that of an instructor in physical education. That the injured person might suffer keen disappointment or frustration through having to abandon the occupation in which she was engaged or for which she had prepared herself would also seem within the range of foreseeability."
Id. at 452, 197 A.2d at 143. From the standpoint of proof of damages, the Court said:
"We think that whether, or to what extent, damages claimed for loss of enjoyment due to enforced change of occupation are too speculative to be submitted to the jury, depends in large measure upon the facts and circumstances of each particular case, and that the admissibility of evidence with regard thereto should (at least until sufficient experience shall have developed to warrant the formulation of a more definite rule) be committed largely to the discretion of the trial court."
Id. at 456, 197 A.2d at 146 (footnote omitted).
Addressing the merits of the case before it, the Court held that "any damages which might have been attributable to the plaintiff's inability to become an instructor in physical education were in the realm of speculation." Id. at 457-58, 197 A.2d at 146. By way of explanation, it explained:
"Our examination of the testimony admitted [9] and of the lengthy colloquies as to what the plaintiff was seeking to show leads us to think that the evidence as to whatever sense of disappointment or frustration or of loss of enjoyment the plaintiff may have experienced through her inability to become a physical education instructor was rather vague and unsubstantial. Though it is evident that she was fond of swimming and that she had elected to make physical education the major field of her collegiate education, it seems clear that she had done little to carry her ambition into practical effect. She had graduated *594 from college, we suppose, in June and had had summer jobs as a lifeguard and swimming instructor. It was not until the September following her graduation that she was advised by her doctor not to go into teaching physical education, but to go into a more sedentary occupation; yet even then, with the opening of the school year close at hand, she had not obtained employment as an instructor in physical education. She spoke merely of then being `interested' in such a job in some unspecified school in Virginia. We find no indication that such employment had been offered her, and certainly she had not engaged in it. Furthermore, there is no proffer of any direct evidence to show that her enjoyment of life in the work which she has since gone into is less than it would have been in physical education."
Id. at 457, 197 A.2d at 146.
In Beynon, 351 Md. at 506-07, 718 A.2d at 1184, we determined that evidence of the decedent's reaction to a crisis, in that case, the impending collision, was an objective and sufficient basis for a trier of fact to assess that decedent's state of mind, at least with respect to emotional or mental anguish in the form of fear, as it relates to that particular crisis, and to value the extent of the decedent's fear. Such circumstantial evidence does not require the trier of fact to engage in pure speculation either with respect to the proof of the pre-impact fear or the damages attributable to it. Common experience and legal precedents, including our own, support that conclusion.
The appellant maintains that the proof of the decedent's loss of enjoyment of life is the same evidence that we have held sufficient to establish his pre-impact fright. With respect to the claim for "pre-impact" loss of capacity to enjoy life, the appellant acknowledges that it is provable by reference to the decedent's pre-impact fear. Both "pre-impact fright" and "pre-impact loss of enjoyment of life," seek recovery for the emotional distress and mental anguish decedent experienced during the brief moments after decedent became aware of the impending danger and before the fatal impact. Thus, those damages overlap, if they are not identical to, any "pre-impact fright" damages she might prove. See supra at 506-07, 718 A.2d at 1184. Duplicative or overlapping recoveries in a tort action are not permissible. See Monias v. Endal, 330 Md. 274, 287, 623 A.2d 656, 662 (1993); Montgomery Ward & Co. v. Cliser, 267 Md. 406, 424-25, 298 A.2d 16, 26 (1972); Restatement (Second) of Judgments § 46(2)(b) (1982).
The appellant asserts that proof, the objective manifestation, of the decedent's post-impact loss of the enjoyment of the rest of his life is also provided by the evidence of how the decedent reacted to the impending crisis and subsequent collision. That he increased his speed and veered to avoid the collision constitutes, according to the appellant, the objective manifestation of the tortious impact on the decedent and provides the basis for the trier of fact to infer his post-impact damages. From the evidence that we have held sufficient to permit a trier of fact to infer compensable pre-impact fright, in short, the appellant urges that the trier of fact also be permitted to infer compensable post-impact loss of enjoyment of life.
As we have seen in connection with pre-impact fright, the circumstantial evidence of the decedent's reaction to the crisis served two functions: it established the existence of the decedent's injury and it formed the basis for its valuation. In order for the appellant to recover, that evidence must also perform the same function with respect to the proof of the decedent's post-death loss of enjoyment of life.
The instant case is brought under the Maryland survivorship statute, Maryland Code (1974, 1991 Repl.Vol.) § 7-401(x) of the Estates and Trust Article. That section provides that the personal representative of a decedent's estate may bring "a personal action which the decedent might have commenced or prosecuted ... against a tortfeasor for a wrong which resulted in the death of the decedent." Recovery, therefore, is limited to damages that the decedent could have recovered himself, had he survived and brought the action. Also, "the damages are limited to compensation for pain and suffering endured by the deceased, his lost time, *595 [his funeral expenses,] and his expenses between the time of his injury and his death." Stewart v. United Electric Light & Power Co., 104 Md. 332, 343, 65 A. 49, 53 (1906); see also Tri-State Poultry Co-op., Inc. v. Carey, 190 Md. 116, 57 A.2d 812 (1948). Because the decedent did not survive the fatal impact with the appellee's vehicle, he suffered no "post-impact" or "postdeath" loss of enjoyment of life[10] and, thus, is not entitled to any "post-impact," or "post-death" damages. Indeed, this Court has just recently held that when "the injured person is killed instantly, there are no future lost earnings damages in the survival action." Shirley Jones, Personal Rep. v. Flood, 351 Md. 120, 131, 716 A.2d 285, 290 (1998).
III.
The appellant's final argument, that the trial court erred in excluding evidence and testimony related to the pecuniary condition of the decedent's estate, is related to the previous two. In connection with the claim for loss of enjoyment of life, the appellant proffered the bills reflecting the debt of the decedent's estate as proof of "the extent to which [the decedent's] loss of enjoyment of life was increased by his knowledge that he had insufficient assets to pay his Estate's bills were he to be killed by [the appellee]'s automobile." And, because "pecuniary status is a matter of great practical concern to an ordinary person, and the desire to depart this life being thought well of by one's creditors is probative of one's loss of enjoyment of life when faced with imminent death," the appellant maintains that "the admission of evidence related to the pecuniary status of the Estate has a `tendency to make the existence' of [the decedent's] loss of enjoyment of life for a few seconds prior to his death, after the tortious impact on his nervous system, `more probable ... than it would be without the evidence' and it should have been admitted."
Maryland Evidence Rule 5-402 provides "Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible." Rule 5-401 defines relevant as "evidence having any tendency to make the 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." See Williams v. State, 342 Md. 724, 736, 679 A.2d 1106, 1112 (1996). It is well settled that the admission of evidence, including the determination of its relevance, Merzbacher v. State, 346 Md. 391, 404, 697 A.2d 432, 439 (1997), is committed to the considerable and sound discretion of the trial court. Id.; North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 89-90, 680 A.2d 480, 508 (1996); Armstead v. State, 342 Md. 38, 66, 673 A.2d 221, 235 (1996); Lubinski v. State, 180 Md. 1, 8, 22 A.2d 455, 459 (1941). Although a finding of relevancy does not guarantee admissibility, its prejudicial effect sometimes outweighing its probative value, Merzbacher, 346 Md. at 404, 697 A.2d at 439; Williams, 342 Md. at 737, 679 A.2d at 1113; Rule 5-403, where such a finding has been made, and the only challenge is to its appropriateness, the trial court's determination in that regard will not *596 be reversed unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion. White v. State, 324 Md. 626, 637, 598 A.2d 187, 192 (1991); Thomas v. State, 301 Md. 294, 317, 483 A.2d 6, 18 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985).
The trial court did not abuse its discretion in excluding evidence of the pecuniary status of the decedent's estate on the ground of relevance. See Rules 5-401 and 5-402; Merzbacher v. State, 346 Md. 391, 697 A.2d 432 (1997); State v. Broberg, 342 Md. 544, 677 A.2d 602 (1996). We are unable to discern how that evidence tended to prove the decedent's loss of enjoyment of life or even the extent of the damages attributed thereto. In fact, we agree with the appellee on this point:
"The reasons advanced by the Appellant in her Brief for admitting this evidence conjure up scenarios involving the most unacceptable kinds of speculation, i.e., that among [the decedent's] last thought processes, as he anticipated his death, [the decedent] was worried that his creditors would be unpaid as a result of his unanticipated death. It could be speculated, with equal credibility, that, if [the decedent] even thought about his debts just prior to his death, he was relieved that he would not have to worry about them any longer. Inviting speculation of this nature into the jury's deliberations serves no useful purposes, and is counterproductive, as it tends to confuse the legitimate issues which the jury is called upon to decide. Rule 5-403. The Appell[ee] also respectfully suggests that inviting such speculation undermines the integrity and credibility of the civil justice system."
JUDGMENT REVERSED IN PART AND AFFIRMED IN PART. CASE REMANDED TO THE CIRCUIT COURT FOR WORCESTER COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEE.
CHASANOW and RAKER, JJ., concur and dissent.
RAKER, Judge, concurring in part and dissenting in part:
The appeal presented three questions.[1] The Court correctly decided that the decedent did not have a cause of action against the Appellee for the loss of enjoyment of his life. The Court also correctly decided that the trial court did not err in excluding evidence of the pecuniary status of the decedent's estate on the ground of relevance. I therefore join Parts II and III of the Court's opinion.
I dissent, however, from Part I of the Court's opinion, in which the Court ruled that the trial court erred in not submitting the issue of pre-impact fright damages to the jury. In my view, pre-impact fright is not recoverable under Maryland law and the trial judge properly granted Appellant's motion to dismiss on this basis. The rationale supporting the view that pre-impact fright should not be recoverable was well stated by Judge Bloom for the Court of Special Appeals in Montgomery Cablevision v. Beynon, 116 Md. App. 363, 372-89, 696 A.2d 491, 495-503 (1997), rev'd 351 Md. 460, 718 A.2d 1161 (1998). I agreed with his well reasoned opinion in that case, see Beynon v. Montgomery Cablevision, 351 Md. 460, 463-64, 718 A.2d 1161, 1163 (1998), Chasanow and Raker, JJ., dissenting), and believe it is equally applicable in this case. Accordingly, I would affirm the judgment of the Circuit Court for Worcester County dismissing Appellant's claim for pre-impact fright.
*597 Judge Chasanow has authorized me to state that he joins in the views expressed herein.
WILNER, J., dissents.
WILNER, Judge, dissenting.
For the reasons noted in my dissent in Beynon v. Montgomery Cablevision Limited Partnership, 351 Md. 460, 718 A.2d 1161 (1998), I respectfully dissent from the conclusions reached in Part I of this Opinion and from the judgment. The Majority's allowance of pre-impact damages is based entirely on the evidence that the decedent accelerated and turned his wheel. This evidence does not speak to the decedent's final thoughts before impact. Indeed, as in Beynon, it is very likely that his only thought for those few seconds was averting the crash. Decedent's fright cannot be objectively determined or even reasonably inferred.
NOTES
[1] Although he had been married twice, the decedent, who was 43 years old at death, was survived only by his sister and his father, who lived out of State. The record does not reflect that either of them was dependent on the decedent for support, which, perhaps explains why no wrongful death action was pursued.
[2] Specifically, Mr. Waters testified:
"The yellow Volkswagen tried everything it could possibly do to avoid the collision. If he had stayed on the road, he [the appellee's car] would have probably hit him head on, but because he veered to the side, it hit him on his driver's side."
[3] Maryland Code (1974, 1991 Repl.Vol.) § 7-401(x)(2) of the Estates and Trust Article provided:
"In an action instituted by the personal representative against a tort-feasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to $2,000 in addition to other damages recoverable in the action."
By Ch. 424, Laws of 1995, this section was amended by substituting "the amount allowed under § 8-106(b) of this article" for "$2,000." Section 8-106(b) presently states: "Funeral expenses shall be allowed in the discretion of the court according to the condition and circumstances of the decedent. In no event may the allowance exceed $5,000 unless the estate of the decedent is solvent." Md.Code (1974, 1991 Repl.Vol., 1997 Supp.) § 8-106(b) of the Estates and Trusts Article.
[4] Green v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909).
[5] Vance v. Vance, 286 Md. 490, 496-97, 408 A.2d 728 (1979).
[6] The plaintiffs offered evidence, which the jury accepted, establishing that the tractor-trailer was negligently operated and also negligently maintained since the rear of the trailer was not properly illuminated and, therefore, was not sufficiently visible to motorists approaching from the rear. With respect to Montgomery Cable, the plaintiffs's evidence proved to the jury's apparent satisfaction that, in stopping traffic in order to repair its cable, Montgomery Cable violated specific conditions of the State Highway Administration blanket permit by failing to post advance warning signs to provide oncoming traffic with notice of the unusual and dangerous hazard that the unanticipated traffic back-up presented. Beynon v. Montgomery Cablevision, Limited, 351 Md. 460, 465-66, 718 A.2d 1161, 1164 (1998).
[7] The trial court instructed the jury that it could consider and make an award for "pain, suffering and mental anguish" that the decedent experienced before the crash. The jury awarded the decedent's estate $1,000,000 in such damages, which the trial court reduced to $350,000, pursuant to Maryland Code (1974, 1995 Repl.Vol.) § 11-108(b) of the Courts and Judicial Proceeding Article.
[8] "Case law from jurisdictions in which courts have considered issues related to loss of enjoyment of life generally falls into four categories: (1) cases that have totally rejected loss of enjoyment of life as a consideration in awarding damages; (2) cases that hold loss of enjoyment of life is not a separate element of damages; (3) cases that recognize loss of enjoyment of life can be considered by the jury, but do not address the issue of whether it can be considered as a separate element of damages; and (4) cases that recognize loss enjoyment of life can be considered as a separate element of damages under particular circumstances." Pamela J. Hermes, Loss of Enjoyment of LifeDuplication of Damages Versus Full Compensation, 63 N.D.L.Rev. 561, 565 (1987).
[9] The trial court permitted the plaintiff, an aspiring physical education teacher, who had sustained serious bodily injury from an automobile accident, which required her to give up her intended active occupation in swimming in favor of a more sedentary one, to introduce evidence with regard to the limitations she had in engaging in and enjoying swimming and horseback riding and long motor trips. The Court pointed out that such evidence pertained to "matters which may properly be shown under the cases allowing damages for the loss of enjoyment of usual or familiar things of life." McAlister v. Carl, 233 Md. 446, 457, 197 A.2d 140, 146 (1964).
[10] We are aware that a number of courts require a plaintiff or decedent to have "some degree of cognitive awareness for recovery of damages for loss of enjoyment of life." McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372, 538 N.Y.S.2d 937 (1989); Wheeler Tarpeh-Doe v. United States, 771 F.Supp. 427, 457 (D.D.C.1991), rev'd on other grounds, 28 F.3d 120 (D.C.Cir.1994 ); Gregory v. Carey, 246 Kan. 504, 791 P.2d 1329, 1336 (Kan.1990); Chausse v. Southland Corp., 400 So.2d 1199, 1203-04 (La.Ct.App.1981). See also Flannery v. United States, 718 F.2d 108, 111 (4th Cir.1983), cert denied, 467 U.S. 1226, 104 S.Ct. 2679, 81 L.Ed.2d 874 (1984); Molzof v. United States, 911 F.2d 18, 22 (7th Cir.1990), rev'd on other grounds, 502 U.S. 301, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). Other courts have allowed comatose plaintiffs to recover damages for their inability to enjoy life. Rufino v. United States, 829 F.2d 354, 362 (2d Cir.1987); Holston v. Sisters of the Third Order of St. Francis, 247 Ill.App.3d 985, 187 Ill.Dec. 743, 618 N.E.2d 334, 347 (1993), aff'd, 165 Ill.2d 150, 209 Ill.Dec. 12, 650 N.E.2d 985 (Ill.1995); Moore v. Kroger Co., 800 F.Supp. 429 (N.D.Miss.1992), aff'd, 18 F.3d 936 (5th Cir.1994); Eyoma v. Falco, 247, N.J.Super. 435, 247 N.J.Super. 435, 589 A.2d 653 (A.D. 1991); Wagner v. York Hosp., 415 Pa.Super. 1, 608 A.2d 496, app. dismissed without opin., 532 Pa. 646, 614 A.2d 1143 (1992). We express no opinion as to these cases.
[1] The questions presented are as follow:
"1. Whether a person instantly killed by tortious conduct has a survival action against the tortfeasor for pre-impact fright, and mental and/or emotional pain, anguish, suffering and/or distress.
2. Whether a person who is instantly killed has a survival action against the tortfeasor for loss of enjoyment of life.
3. Whether the pecuniary status of the decedent or his estate is relevant evidence of pre-impact emotional pain and suffering or loss of enjoyment of life in an instantaneous death, survival action."
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211 Ga. 57 (1954)
84 S.E.2d 26
PRITCHARD
v.
BOARD OF COMMISSIONERS OF PEACE OFFICERS ANNUITY & BENEFIT FUND OF GEORGIA et al.
18690.
Supreme Court of Georgia.
Argued September 17, 1954.
Decided October 11, 1954.
*58 Killebrew & McGahee, Paul K. Plunkett, for plaintiff in error.
Gambrell, Harlan, Barwick, Russell & Smith, contra.
MOBLEY, Justice.
The act of 1950 (Ga. L. 1950, p. 50) provided in section 12 that any officer under the act who became totally or permanently disabled after having served a required length of time, etc., should be paid a pension during disability, the section specifying the amount, terms, and conditions, all of which are immaterial to a ruling in this case. Section 18 of the act provided: "All rights and benefits provided herein shall be subject to future legislative change or revision and no beneficiary herein provided for shall be deemed to have any vested right to any annuities or benefits provided herein."
The act of 1951 (Ga. L. 1951, p. 472, section 4) repealed section 12 of the act of 1950, completely eliminating payments for disability. The act of 1952 (Ga. L. 1952, p. 83) provided for payments for permanent or total disability where the disability occurred in line of duty.
*59 Petitioner does not allege he became totally or permanently disabled in line of duty, but relies on section 12 of the act of 1950, and contends that section 4 of the act of 1951 repealing section 12 of the act of 1950 is unconstitutional for the reason that it violates article I, section X, paragraph I of the Constitution of the United States (Code § 1-134) and article I, section III, paragraph II of the Constitution of Georgia (Code, Ann., § 2-302), which provide that no ex post facto law, retroactive law, or law impairing the obligation of contracts shall be passed.
The only question at issue is whether section 4 of the act of 1951, repealing section 12 of the act of 1950, thereby eliminating payment for permanent or total disability, violates the constitutional provisions above referred to. It does not, because in passing the original act in 1950, the legislature specifically provided in section 18 that "all rights and benefits provided herein shall be subject to future legislative change or revision and no beneficiary herein provided for shall be deemed to have any vested right to any annuities or benefits provided herein."
The plaintiff in error qualified under the act of 1950 and paid his money into the fund with the act providing that it was subject to legislative change and that he should not have any vested right to annuities or benefits in the fund. There was no contract that the plan of annuities and benefits should never be changed. On the contrary, it was recognized that the legislature might find it necessary to make changes; and even if he had vested rights, which the act specifically provided against, there was no vested right to a continuation of the original plan, which experience might demonstrate would result disastrously to the fund and its members. Wright v. Minnesota Mutual Life Insurance Co., 193 U. S. 657 (24 Sup. Ct. 549, 48 L. ed. 832).
The Supreme Court of the United States in White v. United States, 270 U. S. 175 (46 Sup. Ct. 274, 70 L. ed. 530), held that the beneficiary under a certificate of war risk insurance, which provided that it should be subject not only to the War Risk Insurance Act but to any future amendments thereof, had not such a vested right in the instalments payable as would prevent letting in another beneficiary not eligible under the statute originally, but named in the soldier's will and made eligible by an amendment of the statute passed after his death; citing Helmholz *60 v. Horst, 294 Fed. 417, and Gilman v. United States, 294 Fed. 422.
Applying the above principle, the amendment, sec. 4, act of 1951, repealing the provision for permanent or total disability benefits was not unconstitutional for any reason assigned. Accordingly, the error complained of is without merit, and the trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. All the Justices concur.
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84 S.E.2d 225 (1954)
AMHERST LAND COMPANY, a Corporation,
v.
UNITED FUEL GAS CO. et al.
No. 10678.
Supreme Court of Appeals of West Virginia.
Submitted September 15, 1954.
Decided November 9, 1954.
*226 W. Goodridge Sale, Homer A. Holt, Jackson, Kelly, Holt and Moxley, Charleston, for appellant.
R. K. Talbott, C. E. Goodwin, A. D. Duduit, Steptoe & Johnson, Stanley C. Morris, E. Loyd Leckie, Charleston, for appellees.
BROWNING, Judge.
This is a suit by which plaintiff seeks to obtain discovery of facts relating to all wells within an area designated as Storage Pool X-1 in Putnam County, particularly as to the operation and production of Well No. 1388; an accounting of royalties allegedly due therefrom; a mandatory injunction requiring defendants to meter such well; and other general relief.
*227 Plaintiff sets forth in its bill of complaint that, in 1936, its predecessor in title leased the oil and gas underlying a large tract of land, "with the exclusive right of mining and operating thereon for the production of oil and gas", to the defendant Godfrey L. Cabot, Inc., hereinafter called Cabot, on a one-eighth royalty basis, pursuant to which Cabot drilled a number of wells into the Big Lime stratum, including two wells, Nos. 1060 and 1087, on a certain 795 acre portion of the leased tract. This 795 acres is now a part of defendant United Fuel Gas Company's Storage Pool X-1, and is included in an agreement entered into by Cabot in 1948 with United Fuel Gas Company, whereby Cabot granted, in so far as it had the right to do so, "the exclusive right and privilege of utilizing said Big Lime Formation * * for the purpose of forcing natural gas therein and subsequently removing same * * *."
This agreement provided, among other things, for delivery to Cabot of 340,000000 cubic feet of gas to compensate for the recoverable reserves remaining in the Big Lime formation, less a certain percentage which United Fuel Gas Company would be required to pay to the owners of the royalty; for the purchase of six wells by United Fuel Gas Company, including Wells Nos. 1060 and 1087, heretofore mentioned; for the operation by United Fuel Gas Company of all wells then on the tract, with the privilege of drilling additional wells to the Big Lime formation, if required; and the assumption by United Fuel Gas Company of full responsibility of settling with the lessors of the oil and gas in lieu of the royalties which would otherwise accrue to them from the recoverable gas reserves.
Subsequently, in 1949, plaintiff granted, in so far as it had the right to do so, the 795 acre portion "for the purpose of drilling wells to the Big Lime formation and operating wells heretofore drilled to said horizon, for the purpose of storing gas therein, [and] removing and marketing the same, * * *.", to United Fuel Gas Company. Under the agreement, United Fuel Gas Company agreed to pay to plaintiff $150 a year for Well No. 1087, $150 a year for Well No. 1060, and $300 a year for each well drilled thereafter to the Big Lime stratum so long as such well should be utilized for the injection of gas therein, and the removal of gas therefrom. "The payments herein provided shall constitute the entire emoluments accruing to lessor [plaintiff] hereunder, for all wells heretofore or hereafter drilled to said Big Lime stratum; however the emoluments herein provided shall, in no wise, affect the emoluments accruing to Lessor for any well drilled to any stratum other than the Big Lime." Article 9 then provides for payment of $864.36 to plaintiff for Well No. 1087, and $50.64 for Well No. 1060, for the estimated recoverable gas reserves in such wells. The execution of this agreement, made expressly subject to all the then existing oil and gas leases, was consented to by Cabot, who further agreed that the execution thereof would not relieve it of any obligations or duties under its lease of 1936.
The bill of complaint then alleges: That Cabot completed Well No. 1388 into the Big Lime formation in July, 1952, which well has a daily production capacity of 19,000,000 cubic feet, and sold its rights therein to United Fuel Gas Company; that defendants have refused to divulge any information concerning said well; that there was a large quantity of natural gas remaining in the Big Lime formation underlying the 795 acres, for which plaintiff had not been compensated for its loss of royalty; and that plaintiff is without information as to the amount of new or primary gas, as distinguished from storage gas, being produced by Well No. 1388. In conclusion, the bill prays for the relief heretofore stated.
Defendants demurred to the bill on the ground that it appears from the face thereof that plaintiff does not have such an interest in the subject matter of the suit as will enable the plaintiff to maintain it. The Circuit Court of Putnam County sustained *228 the demurrer and ordered the bill dismissed from which decree this Court granted an appeal on May 17, 1954.
The ruling of the trial court was based upon an alleged conflict between the allegations of plaintiff's bill and certain exhibits filed therewith and made a part thereof. The exhibits so filed that are pertinent to the issue here presented are: (1) The 1936 lease, Exhibit No. 2, between Cabot and plaintiff's predecessor in title, by which Cabot acquired the right to produce oil and gas from all strata under a 2,762.72 acre tract, of which the 795 acre tract involved in this litigation was a part; (2) an executory agreement of May 7, 1948, between Cabot and United Fuel Gas Company, hereafter referred to as United, Exhibit No. 3, by which United would subsequently acquire the right to utilize the Big Lime formation under a tract of 3,537.90 acres, of which the 795 acre tract was a part, provided that United should, within a specified time thereafter, secure the necessary additional rights from the owners of estates therein other than Cabot; (3) the agreement of April 28, 1949, between plaintiff's predecessor in title and United, Exhibit No. 4, whereby United secured certain rights in the Big Lime stratum underlying the 795 acre tract in question; (4) an assignment by Cabot to United, dated April 10, 1952, pursuant to the executory agreement of May 7, 1948, involving Cabot's rights in the large tract comprising storage Pool X-1 relative to the Big Lime stratum; and (5) the consent by Cabot to the execution of the agreement of April 28, 1949, between United and plaintiff's predecessor in title, which is a part of Plaintiff's Exhibit No. 4.
Upon the primary issue thus raised by the bill and demurrer thereto, as to whether plaintiff is entitled to royalties of oneeighth of the gas produced and marketed from Well No. 1388, assuming that all or some portion of such gas is primary or native gas, the trial court held that: "The rights asserted here in this cause were alienated by the agreement of April 28, 1949 (Exhibit No. 4 with the bill) and by the following language thereof; * * *."
It is clear from the exhibits filed with the bill that all the provisions of the 1936 lease between Cabot and plaintiff's predecessor in title are still in effect, except in so far as they may have been altered as to the Big Lime stratum by the 1949 lease between United and plaintiff's predecessor in title. It is also apparent, and not disputed, that by virtue of the 1949 lease, United has the right to use the Big Lime stratum underlying the 795 acre tract for the purpose of storing gas secured elsewhere and injected into such stratum. The plaintiff contends that the production rights contained in the 1936 lease to the Big Lime stratum have not been affected by any subsequent agreement to which it was a party, and that such rights are not affected by the subsequent grant of storage rights in that stratum to United by the 1949 lease.
The plaintiff contends that its exhibits, and particularly Exhibit No. 4, the 1949 lease between United and plaintiff's predecessor in title, were offered for a limited purpose, and that on demurrer such an exhibit can not nullify an allegation of the bill which it was not offered to support, whatever may be its effect upon the final hearing of the cause upon its merits, citing Donahue v. Rafferty, 82 W.Va. 535, 96 S.E. 935; Gleason v. Thomas, 117 W.Va. 550, 186 S.E. 304, 306. An examination of those cases indicates that they are readily distinguishable from the instant case in that in each of them it was apparent from the specific allegations, and the intentions of the pleader, that the questioned exhibit was not relied upon for general purposes, and that the pleader "did not attempt to base [his] case on the same." It is obvious that the exhibits here were an integral part of plaintiff's case, and relied upon by it to support the allegations of its bill. This Court held in Syllabus Point 5, Caswell v. Caswell, 84 W.Va. 575, 100 S.E. 482, that: "Exhibits filed in support of a pleading are considered parts thereof, and, if they contradict the matters alleged, will control."
In Hawkinberry v. Metz, 91 W.Va. 637, 114 S.E. 240, the 1st Syllabus Point is as follows: "Where a deed or other instrument *229 pleaded is exhibited with a bill, the court on demurrer will look to the instrument itself, and not to what is alleged of it, to determine its character and the terms and provisions thereof."
Again, in Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804, 808, this Court, speaking through Judge Haymond, said: "The rule is well established, however, that when exhibits are filed in support of a pleading they are considered as a part of it and if the two are in conflict the exhibit will control and be looked to by the Court."
The plaintiff further maintains that the 1948 agreement between Cabot and United was not made a part of the 1949 agreement between plaintiff's predecessor in title and United. However, in the third whereas clause of the latter agreement, Exhibit No. 4, this specific reference is made to the agreement of May 8, 1948, Exhibit No. 3, between Cabot and United: "* * * subject to lessee's securing the approval of Lessor herein, to utilize 795 acres of the above mentioned 2,762.72 acre tract of land (said portion so containing approximately 795 acres, being colored in purple on the map attached thereto and made a part hereof), together with the gas wells located thereon, for the purpose of conducting storage operations in the Big Lime stratum, including the right to drill other wells to said stratum and to plug and abandon any wells heretofore or hereafter drilled thereon; * * *." Furthermore, in the 9th Article of this lease, Exhibit No. 4, this language was used: "Lessee agrees, in compliance with the requirements of Article Seventh of that certain contract dated May 7, 1948, between Lessee herein and Godfrey L. Cabot, Inc., involving, among others, the tract of land embraced herein, * * *."
In 4 M.J., Contracts, § 49, it is stated: "* * * In fact, a written agreement constituting a single contract need not be encompassed in one instrument as between contracting parties. It may be comprised of two or more instruments and be enforceable as a whole, if the relationship between the several papers is clearly established. And the contract may refer to preliminary instruments which may be read with the contract in construing it. Thus, where a contract refers to prior contracts to which one of the parties was a party for further particulars, it must be construed with reference to such prior contract. * * *"
Material parts of the 1948 agreement were specifically referred to in the 1949 lease and were thereby incorporated in the latter. However, this Court finds no irreconcilable conflict between the exhibits and the bill, or between the 1949 lease and the production lease of 1936. The latter confined itself to the production of gas from the Big Lime stratum and the former to the storage of gas therein. Furthermore, an examination of certain pertinent provisions of the 1949 agreement would indicate that there was no surrender of any rights under the 1936 production lease agreement. The third paragraph of the Third Article, Exhibit No. 4, reads in part as follows: "The payments herein provided shall constitute the entire emoluments accruing to Lessor hereunder, for all wells heretofore or hereafter drilled to said Big Lime stratum; * * *." (Italics supplied.) The Eighth Article provides: "It is agreed between the parties hereto that the rights herein granted to Lessee are made expressly subject to any and all existing right of ways, rights of tenant farmers, truck miners, if any, and the rights of other parties rightfully in possession, as well as to all existing oil and gas leases." (Italics supplied.) There was only one oil and gas lease in existence, that being the 1936 lease between plaintiff and Cabot. In its consent to the execution of the 1949 agreement, Cabot agreed "that the execution of said lease by the Hatfield-Campbell Creek Coal Company [plaintiff's predecessor in title] does not and shall not in any manner relieve Godfrey L. Cabot, Inc., from any of its duties and obligations under the terms and provisions of said lease dated September 30, 1936."
In the "assignment and lease" agreement of April 10, 1952, between Cabot and United, Article 1 reads in part as follows: "Cabot hereby assigns, transfers and sets over unto *230 United all the following oil and gas leases, and the leasehold estates created thereby, in so far and so far only as each of said leases authorizes and grants the right to operate for and produce oil and gas from the Big Lime formation or stratum underlying the same, * * *."
In the 1948 Agreement, Cabot granted to United "the exclusive right and privilege of utilizing said Big Lime formation underlying the tract of land aforesaid * * * for the purpose of forcing natural gas therein and subsequently removing same * * *." (Italics supplied.), but in the 1949 Agreement between plaintiff's predecessor in title and United, the last whereas clause states that: "Lessor, in so far as it has the right so to do, has agreed that Lessee may utilize the Big Lime stratum in and underlying said 795 acres for the purpose of conducting storage operations in said stratum, * * *."
By the Seventh Article of the 1948 Agreement "United assumes full responsibility and liability of settling with the lessors of the oil and gas in place (other than Cabot) in lieu of the royalties which would otherwise accrue to them for the said recoverable gas reserves, relieving Cabot of all liability in connection therewith.", but by the 1949 Agreement, Article Nine, United agrees only to pay to plaintiff's predecessor in title certain sums for the "estimated recoverable gas reserves in Well No. 1087", and "for the estimated recoverable gas reserves in Well No. 1060", and plaintiff's bill alleges that there was native gas underlying the 795 acre tract not recoverable from these wells for which it has not been compensated.
That there is language in the 1949 Agreement, indicating that United was granted the "exclusive" use of the "entire" Big Lime stratum for the "sole" purpose of utilizing it for the storage of gas to the exclusion of its use for any other purpose during the term of the lease, cannot be denied, but none of these terms is contained therein. On the other hand, the bill, though conceding that Cabot was then a trespasser, alleges that Cabot completed a well, No. 1388, into the Big Lime stratum and then sold its rights therein, if any, to United. Whether a particular subterranean stratum may be used at the same time for storage of gas, and for production therefrom, this Court is not at liberty to determine from the record before it. The fact that there may be some ambiguities between the bill and exhibits accompanying it does not necessarily create a fatal repugnance on demurrer. "Facts which are sufficiently alleged in bill must be taken as true on demurrer unless they are inherently impossible, or contradicted by other facts alleged, even though court may be of opinion that they are probably not true." Pt. 4 Syllabus, Ames v. American Nat. Bank of Portsmouth, 163 Va. 1, 176 S.E. 204.
In determining the validity of plaintiff's bill, this Court cannot consider anything which does not appear on the record. "Where a bill alleges a fact, and states that a written exhibit will prove the fact, on demurrer that fact will be taken as true, though that exhibit do not prove that fact, if it do not contradict such allegation." Pt. 1 Syllabus, Elswick v. Deskins, 68 W.Va. 396, 69 S.E. 894.
It is the duty of the Court to determine from these instruments, not necessarily the real intent of the parties, but the intent expressed as apparent in the instruments themselves.
There being no irreconcilable conflict or fatal repugnance between the bill and exhibits, this Court cannot hold upon demurrer that plaintiff has failed to set forth sufficient facts which, if sustained by proof, would entitle it to the relief prayed for. The demurrer will be overruled, the bill reinstated, and the cause remanded for such further procedure as the parties are advised.
Reversed.
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84 S.E.2d 251 (1954)
241 N.C. 24
Miss Cora PERKINS
v.
F. L. CLARKE and wife, Mrs. F. L. Clarke.
No. 311.
Supreme Court of North Carolina.
November 3, 1954.
*253 W. H. Strickland, Lenoir, Proctor & Dameron, Marion, for plaintiff, appellee.
G. W. Klutz, A. R. Crisp, Hal B. Adams, Lenoir, for defendants, appellants.
HIGGINS, Justice.
The evidence, both record and parol, discloses that J. Thad Perkins made deeds to his children on September 20, 1921, conveying the southern portion of his farm to his sons, Robert H., Samuel O., and Frank E. Perkins. The first call in the description of this deed is the line in controversy: "Beginning at the forks of Rocky Branch, William Carroll's corner in the Micheaux line, running an easterly course to a mahogany tree on Wilson's Creek." This tract of land with the same calls was conveyed to the defendant, F. L. Clarke, on January 19, 1946, by Robert H., Samuel O., and Frank E. Perkins.
*254 On September 20, 1921, J. Thad Perkins conveyed the northern portion of his farm to Cora A. Perkins, an unmarried daughter who is the plaintiff in this action, and to Ernest L. Perkins, an unmarried son. This tract contained the J. Thad Perkins home. This deed does not contain specific calls, but the description is as follows:
"Adjoining the lands of Robert H. Perkins, Samuel O. Perkins, and Frank E. Perkins on the South, George T. Perkins and wife on the North. Bounded upon the East by the A. W. Perkins tract; on the North by George T. Perkins and wife; and on the West by John Perry and others; and on the South by Robert H. Perkins, Samuel O. Perkins and Frank E. Perkins. This tract of land included all the land owned by J. Thad Perkins, lying on Wilson's Creek between George T. Perkins and wife tract on the North, and the Robert H. Perkins, Samuel O. Perkins and Frank E. Perkins on the South."
On March 9, 1932, Ernest L. Perkins conveyed his interest in the above described lands to Cora Perkins.
The defendants' answer sets up a dividing line between the lands of the parties. It is apparent, therefore, that the southern line of the Cora Perkins land and the northern line of the Clarke land are one and the same, and consequently the line in dispute.
Since the location of the line settles the dispute, the court, therefore, properly refused to submit the issue of title tendered by the defendants. A similar question was before this Court in the case of Clark v. Dill, 208 N.C. 421, 181 S.E. 281, and we quote from Chief Justice Stacy's opinion: "Upon the trial, the defendant tendered issues of title, as well as of boundary, and excepted to the refusal of the court to submit the former. * * * The merit in appellant's exception is dissipated by the following statement in the case on appeal: `From the testimony of both plaintiff and defendant the title to the J. H. Dill land was never in dispute and the title to the Clark land was not brought into dispute except as to the question of where the true line should run between them.' The case was tried purely as a proceeding to establish the boundary line between the land admittedly occupied by the plaintiff and the adjoining land admittedly occupied by the defendant. It is provided by C.S. § 362 that the `occupation of land constitutes sufficient ownership for the purposes of this chapter.' Williams v. Hughes, 124 N.C. 3, 32 S.E. 325."
The deeds offered by the parties show the plaintiff is the owner, and all the evidence shows she is in possession of the lands immediately north of the defendants' northern boundary line; that the defendant F. L. Clarke is the owner and in possession of the lands immediately south of that line is likewise shown by all the evidence. The true location of the boundary line, therefore, is the question in dispute.
The map filed with the record shows the red line from Red 1, the forks of Rocky Branch, north 86 degrees east 260 poles to a mahogany on Wilson Creek, and Red 2 is a straight line. This represents plaintiff's contentions. The map shows the purple line beginning at Purple A, a large beech on Rocky Branch, running south 76 degrees east 94 poles to a dogwood, north 881/2 degrees east 7 poles; south 75 degrees east 10 poles; south 55 degrees east 10 poles; south 82 degrees east 14 poles to a stone and spring; south 212 degrees east 121/2 poles; north 821/2 degrees east 33 poles to a bridge and stake on Wilson's Creek. This line represents defendants' contentions.
Exceptions were taken to the testimony of the surveyor because he surveyed and set out on his map the disputed line as contended for by the plaintiff. On cross-examination he also testified that he surveyed and set out on the map the defendants' contentions. The court's order directed the surveyor to survey the contentions of the parties and there was no exception to that order.
*255 One hundred three exceptions were taken during the trial. Sixty-nine assignments of error are discussed in the brief. Many of the exceptions were taken to the testimony of witnesses who stated that they knew, and had known for many years the location of objects called for in the deeds, such as the forks of Rocky Branch, the Carroll's corner, the Micheaux line, the mahogany on Wilson's Creek; and some of the witnesses related these objects to the points on the surveyor's map. This evidence was clearly competent. The witnesses were testifying from their own knowledge. Each testified that he knew the location of the objects about which he testified. Evidence from personal knowledge is not to be confused with evidence of declarations made by others. In the latter case, in order to make the declarations competent it would be necessary to show the declarations were made ante litem motam by a disinterested party, since deceased. The distinction is set forth in Maynard v. Holder, 219 N.C. 470, 472, 14 S.E.2d 415.
Defendants' assignments of error Nos. 66, 75, and 85 relate to the admission of evidence for the limited purpose of impeaching the testimony of Ernest L. Perkins, a witness for the plaintiff who had testified that the red line between Red 1 and Red 2 was the correct dividing line. He was then asked on cross-examination if he had not made the statement in the presence of a number of witnesses to the effect he had pointed out to the defendant or his son a different line, at or near purple line A to B as the correct line. This Perkins denied. Witnesses were called by the defendants to testify that they had heard Perkins make the statements which he had denied making. This evidence was admitted for the purpose of impeachment only, and the jury was instructed not to consider it as substantive evidence. Undoubtedly, the ruling of the court was correct. Proof of what Perkins said in the hearing of others would violate the hearsay rule and could be admitted only under the exception which admits such hearsay evidence for the purpose of impeachment. In the case of State v. Wellmon, 222 N.C. 215, 217, 22 S.E.2d 437, 439, the Court said: "`It is well settled, that the credit of a witness may be impeached by proof that he has made representations inconsistent with his present testimony'". And in the case of Pate v. Tar Heel Steamboat Co., 148 N.C. 571, 62 S.E. 614, this Court said: "Of course the declarations of the boat hand made after the occurrence are incompetent for the purpose of proving the condition of the bateau. Southerland v. [Wilmington & W.] R. Co., 106 N.C. 100, 11 S.E. 189. But having been examined by the defendant as its witness as to the condition of the bateau, it was competent to impeach or contradict his evidence upon that point, by his declarations on that subject to Glover. * * * His Honor properly confined the scope and effect of the question to `impeaching evidence.'"
A witness for plaintiff was asked as to the condition of Miss Cora's health. The question was objected to by the defendants, overruled, and the following answer given: "Her health has been failing right considerably for ten years and she can't hardly hear at all; we almost have to squall to get her to hear what we are saying and she can't understand a radio at all, and she has had her eyes examined twice in the last year and the doctor told her she had double cataracts and there is nothing they could do for her. She is about blind. She can't read her own letters. She sleeps very little at night." Obviously, the question was asked for the purpose of explaining the plaintiff's failure to take the stand and testify. The answer of the witness perhaps went further than was proper for that purpose, and perhaps further than was contemplated by the question. The defendant made no motion to strike. At any rate, in view of the rather compelling evidence disclosed by the record, the evidence objected to could not have influenced the jury in its decision on a clear cut question as to the location of the boundary line.
We have examined the other exceptions and assignments of error, including those taken to the charge. They are without *256 substantial merit. The issue was one of fact. Much testimony was offered by both parties. Its probative force was for the jury. No reason appears why the verdict should be disturbed.
No error.
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196 Va. 537 (1954)
SUSAN MARY DANIELS
v.
C. I. WHITTEN TRANSFER COMPANY, A CORPORATION, AND THOMAS E. NASH.
Record No. 4263.
Supreme Court of Virginia.
November 22, 1954.
Allen, Allen, Allen & Allen and Leith S. Bremner, for the plaintiff in error.
Moncure & Cabell, for the defendants in error.
Present, Spratley, Buchanan, Miller, Smith and Whittle, JJ.
1. Plaintiff sued for damages received when a station wagon driven by one Dial in which she was riding collided after nightfall in the center lane of a three lane highway with a tractor-trailer truck driven by defendant Nash. Nash testified that his vehicle was in perfect operating condition and that he was awake and alert, that the collision was caused by Dial's car swerving across the road into the truck's lane, whereupon Nash cut his vehicle to the left to avoid the impact. This testimony was not incredible; if true it justified Nash's action in the emergency created by Dial; and since the evidence was in conflict the jury was entitled to believe Nash and give their verdict for the defendants.
2. On the evidence it was proper to instruct the jury at defendant's request on the doctrine of sudden emergency. The doctrine does not, however, constitute an affirmative defense on which defendant had the burden of proof. Plaintiff having shown a prima facie case of negligence by proving defendant Nash turned his vehicle into the center lane, testimony showing the emergency was introduced by way of reasonable explanation.
3. The jury was properly told that if Dial, in whose car plaintiff was riding, was guilty of negligence which was the sole proximate cause of the accident, plaintiff could not recover.
Error to a judgment of the Circuit Court of the city of Richmond. Hon. Lewis Jones, judge designate presiding. The opinion states the case.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
Susan Mary Daniels instituted this action by notice of motion for judgment against C. I. Whitten Transfer Company, a corporation, and Thomas E. Nash to recover damages received by her when an automobile in which she was riding as a passenger came into collision with a tractor-trailer truck operated and controlled by the defendants. The case was tried by a jury and a verdict was returned for the defendants. A motion by the plaintiff to set aside the verdict was overruled and judgment was entered in accordance with the verdict.
There are three assignments of error. Two of them relate to the granting of certain instructions, and the third is to the refusal of the court to set aside the verdict of the jury upon the ground that it was contrary to the law and the evidence and without evidence to support it.
The evidence is strongly in conflict as to who or what caused the collision between the two vehicles. It presents the issues whether a sudden emergency existed, and whether the driver of the tractor-trailer truck was guilty of such negligence as constituted a proximate cause of the collision. Since the verdict of the jury resolved the conflicts in favor of the defendants, the evidence must be stated in the light most favorable to them.
The accident happened about midnight May 12th-13th, 1952, on a straight stretch of Route 250, about five or six miles west of Richmond. The road is a three-lane highway, running east and west, with a paved surface thirty feet wide, each of the lanes being approximately ten feet in width. *539 At the point of the accident there is a slight rise in the road, the grade leading to it being less than two feet for one hundred feet of distance. The road was dry, the weather clear, and the night dark. The general surroundings at the scene of the accident were shown by the testimony and by numerous photographs introduced as exhibits.
The plaintiff was a passenger in a station wagon automobile operated by Edward Dial, which was being driven in a westerly direction. Thomas E. Nash, alone in a tractor-trailer truck, was driving east. Both vehicles were proceeding at a rate between forty and fifty miles per hour, and their lights were on.
After the collision, the station wagon automobile was in the westbound driving lane of the three-lane highway headed eastwardly in the direction of Richmond. The tractor-trailer truck was at a forty-five degree angle across the highway and the northern edge thereof, headed in a northeast-wardly direction. The overall length of the tractor and trailer was forty-four feet and eleven inches, and as a complete unit it blocked the westbound lane, the center lane and a part of the eastbound lane of the highway. Some debris, consisting of dry dirt and grease, described as "some slime off the highway which collects up under fenders" was found in the center lane, somewhat closer to its northerly than its southerly boundary line. The front end of the station wagon was so badly damaged that it could not be definitely ascertained which side had been first hit. The front end of the tractor appeared to have been hit at the right front wheel. The right front tires of both the station wagon and the tractor were flat. The station wagon and the tractor were both damaged beyond repair.
On the roadway was a skid mark beginning in the eastbound lane, which continued in that lane for a distance of ten feet, and then extended across the highway to the left rear wheel of the stopped trailer, a total distance variously estimated to be from sixty to seventy-four feet. The photographs show three sets of gouged marks in the paved surface, *540 one in the center lane, close to its northerly dividing line, one in the westbound lane to the right side of the stopped tractor-trailer truck, and one five feet west of and parallel to the last mentioned mark, running from near the center of the westbound lane over to and on the shoulder of the highway, beneath the stopped trailer. No one was able to definitely determine what caused these marks, and neither Dial, Nash nor the plaintiff, the only eye-witnesses who testified as to how and why the collision occurred, was able to definitely fix the actual point where the vehicles collided.
Nash testified that he left McAllister, Oklahoma, at four o'clock on the afternoon of May 7th, 1952. His truck was loaded with explosives to be delivered to Portsmouth, Virginia, prior to May 15th, 1952. He arrived in Lexington, Virginia, on May 13th, where he had a rest period of eight hours. He there examined and serviced his equipment, finding it in prime condition, and continued his trip at seven o'clock p.m. He next stopped at Waynesboro a short period for refreshments, and made no other stop until he arrived at the point of the accident. He had been engaged in driving a truck in the shipping business for seven years. He had owned the tractor-trailer for seventeen months, and it was then under lease to the C. I. Whitten Transfer Company and operated in its shipping business. The truck had a total mileage of around 200,000 miles, of which Nash had driven 150,000. Its equipment and the manner of its operation met the requirements of the Interstate Commerce Commission. At the time of the accident, its load of explosives weighed 30,000 pounds and its equipment approximately 21,300 pounds.
During the progress of this trip Nash had driven over the Ozark, Alleghany, North and Blue Ridge Mountains. His vehicle worked perfectly during the whole trip; and at no time did it pull towards the left, or did he have any trouble in steering or braking it. He said that as he approached the point of the accident, travelling at between forty-five and fifty miles per hour in his right-hand lane of traffic, he observed *541 the car driven by Dial approach in its proper lane of travel, that is, the right-hand lane, bound west; that at a distance which he could not actually determine, the Dial car, without any signal or apparent reason, started turning to its left, entered the center lane and proceeded diagonally across the road; and that as Dial's car, proceeding as above, reached the center of the middle lane, he, Nash, applied his brakes and swerved to the left.
Asked why he did not go to the right, Nash replied: "Well, I could not go to the right because on the right it is a building there, I think it is an antique shop or something, it would not have been room to go to the right, and the shoulder was too narrow to get off on. I naturally went to the left, and that is just where the accident took place it looked to me it looked like, right the center of the road."
There was other evidence that the shoulder of the road was narrow, and that there was a slight adjoining ditch with some trees and telephone poles off to the side of the highway.
Asked if he could tell in what manner Dial's car came across the road towards him, Nash replied: "It was pretty abrupt it looked to me like. He was on his side like I said, and then just right on me practically before it ever cut." Asked what he did, he replied, "Well, something like that happens so fast, just like snapping your finger almost. Your first instinct at any time something like that happens to me is to dodge. Naturally I put my brakes on first and just swerved to the left." He said that he was not tired at the time; and that "I was pretty much awake. After you have rested and cleaned up and everything and have not driven but 135 or 140 miles it is no reason for you to be tired." He was unable to estimate the speed of the station wagon, but thought it was "going pretty fast."
It appears from the evidence of plaintiff's witnesses that, on the evening of May 13th, she was present with several persons at the place of business of a Mr. Narron. Dial carried Mrs. Daniels there, where he met Carl Brown, with whom he contemplated going into business. Alcoholic *542 drinks were served, but Dial said he did not remember drinking anything. The gathering turned into a "rather wild party." Brown got drunk, became boisterous and argumentative, and Dial undertook to take him home in an automobile. Mrs. Daniels volunteered to go along with Dial for the purpose of assisting in the care of Brown. They drove the Mercury station wagon here involved which was the property of the wife of Brown. The three of them sat in the front seat of the car, Dial at the wheel, Mrs. Daniels next to him, and Brown on her right. On their way they ran out of gasoline. Someone brought them a small supply, and when they got to a service station, Brown got into an argument with the station attendant. The three of them then reentered the automobile and continued the trip westwardly. When Brown began to go to sleep, and his head was swaying and falling forward, Dial "turned" to Mrs. Daniels and said: "Sue, would you put Carl's head on your shoulder?" Mrs. Daniels did this, and shortly thereafter she said she saw the lights of the tractor-trailer truck "come from nowhere across" the road and the collision occurred. She remembered seeing the side of the "van," and that it was a "silver thing;" but didn't remember anything after that, not even the sound of the crash. She thought the station wagon was in its proper lane on the right-hand side of the road, and that the tractor-trailer truck came across the road into her lane.
Dial testified that as he approached the scene of the accident, driving in his proper lane and within the lawful speed limit, a pair of lights "suddenly swerved" across the road and the truck "loomed up" in front of him; that he "endeavored to swerve" away from it, but did not have the "slightest idea how far he got to his left;" and that the collision happened "so fast that there was not time to do anything."
Notwithstanding the evidence of Nash that his tractor-trailer truck was in good mechanical condition and that its brakes operated properly, several witnesses for the plaintiff *543 testified that they found, after the collision, defects in its wheels and braking mechanism, which would interfere with steering the vehicle, causing it to have a tendency to swerve to the left upon the application of its brakes.
A witness for the plaintiff testified that Nash stopped at his place of business a short distance west of the scene of the accident for a cup of coffee, and that he appeared to be sleepy, tired and worn out. On the other hand, Nash stated unequivocally that he did not make any stops after he left Waynesboro, many miles farther to the west, and that he was fully awake and observant of the circumstances.
Plaintiff contends that the evidence of mechanical defects of Nash's vehicle, or drowsiness on the part of Nash himself, or both, furnish the real explanation of why he turned to his left. She also contends that the marks on the road, other physical facts and the location of the vehicles after the accident, show both that Nash was the first to turn his vehicle to the left, and that the collision occurred on Dial's side of the road. It is sufficient to say that the evidence of the plaintiff in each of these particulars is contradicted by that of the defendants.
The evidence presented a factual situation for the determination of the jury. There is nothing in the physical facts which is irreconcilable or at variance with the evidence of the defendants. The jury had the opportunity to observe the attitude and demeanor of the several witnesses, the duty to weigh the effect of their testimony, and the right to evaluate the significance of the physical facts and the exhibits offered in evidence ( Clayton Taylor, 193 Va. 555, 560, 69 S.E.(2d) 424) and they have accepted the testimony of the defendant, Nash.
Nash's testimony that Dial's car, without any apparent reason, suddenly cut left in front of him, and that he (Nash) had no alternative except to turn left, if true, justified his action, and the collision was not due to his fault. His explanation, under the circumstances in which the drivers of the two vehicles found themselves, is just as reasonable if *544 not more so than the evidence of the plaintiff. We find nothing in the record which requires us to say that it is not true or that it is incredible.
"To be incredible, evidence must be either so manifestly false that reasonable men ought not to believe it, or it must be shown to be false by objects or things as to the existence and meaning of which reasonable men should not differ." Burke Scott, 192 Va. 16, 23, 63 S.E.(2d) 740.
The facts here distinguish this case from Noland Fowler, 179 Va. 19, 18 S.E.(2d) 251, and Hinton Gallagher, 190 Va. 421, 57 S.E.(2d) 131.
Upon the motion to set aside the verdict, the learned trial judge, in a short written opinion, briefly reviewed the evidence and the conflicts therein. He noted that counsel for the plaintiff argued before the jury that it was physically impossible for the accident to have happened as Nash testified, and that the negligence of Nash was the cause of the accident. He was of the opinion that Nash gave a reasonable explanation as to the sudden emergency in which he was placed, that the jury had the right to accept it, and having done so, their verdict should not be disturbed. With this we agree.
The controlling issues were submitted to the jury on elaborate instructions outlining the theories of the respective parties. Only two are in question here, instructions D and E.
Instruction D reads as follows:
"The Court instructs the Jury:"
"That where one, without fault on his part, is suddenly placed in a position of imminent peril, the law does not require of him, in attempting to escape the peril with which he is confronted, to exercise all presence of mind and care of a reasonably prudent person under ordinary circumstances. It makes allowances for the circumstances under which he is forced to act and the effect of the real or apparent or pending peril on his mind and on his nervous and muscular reaction. If he acts under such circumstances as a reasonably prudent person might have acted under the same circumstances, he is not responsible, even though had he done something *545 else, the injury would have been averted, or even if his acts in attempting to avert the peril created a more dangerous situation and actually caused the accident."
"The Court further instructs the Jury, that if they believe from all of the evidence in this case that defendant's truck driver, Nash, without fault on his part, and in an effort to avoid a collision with the car driven by Dial, drove to the left side of the center of the highway because of a sudden emergency created by Dial, and that Nash acted as a person of ordinary prudence might have acted under the same circumstances, then in so doing, Nash was not guilty of any negligence even though his choice of action was not the wisest course and actually caused the accident and injuries to the plaintiff, Daniels, and you cannot find a verdict in her favor."
Plaintiff argues that there is no evidence upon which instruction D can be based, and that, in any event, it should have contained a statement that the burden was upon the defendants to prove the emergency claimed.
The evidence we have recited refutes the first ground of her contention, and we find no merit in the second ground.
In Southern Passenger Motor Lines, Inc. Burks, 187 Va. 53, 46 S.E.(2d) 26, we held that the defense of a sudden emergency may be shown under the plea of the general issue, and that it does not constitute an affirmative defense shifting the burden of proof in the case. Here the evidence of the defendants was merely in refutation of the plaintiff's claim that the collision was proximately due to the negligence of Nash.
We have frequently had occasion to discuss the doctrine of sudden emergency, and have repeatedly held that where the driver of an automobile, without prior negligence on his part, is confronted with a sudden emergency, and acts as an ordinarily prudent person would have done under the same or similar circumstances, he is not guilty of negligence. Southern Passenger Motor Lines, Inc. Burks, supra; Virginia Transit Company Durham, 190 Va. 979, 59 S.E.(2d) *546 58; Interstate Veneer Co. Edwards, 191 Va. 107, 60 S.E.(2d) 4; Hinton Gallagher, supra.
See also 38 Am. Jur., Negligence, | 41, pp. 686, 687, and Restatement of the Law of Torts, Vol. 2, page 796.
Virginia Code, 1950, | 46-220, makes it the duty of an operator of an automobile to drive on the right side of the road, and the violation of this statute is evidence of negligence. MacGregor Bradshaw, 193 Va. 787, 798, 71 S.E.(2d) 361. Thus, when the evidence of the plaintiff showed that Nash drove his truck diagonally across the highway to his left, she made out a prima facie case of negligence against the defendants. In that situation they were under the necessity of making a reasonable explanation, such an explanation as the jury could accept, showing that what happened was due to something other than the negligence of Nash. Notwithstanding this burden of producing evidence in explanation, the ultimate burden remained on the plaintiff to prove her case, that is, to show by a preponderance of the evidence that her injuries were caused by the negligence of the defendants. Darden Murphy,
176 Va. 511, 11 S.E.(2d) 579; Southern Passenger Motor Lines, Inc. Burks, supra; Interstate Veneer Co. Edwards, supra; Virginia Transit Co. Durham, supra.
Whether or not the plaintiff sustained her burden and whether or not the defendants gave an explanation of such character that reasonable men may differ as to its effect were questions for the jury. Interstate Veneer Co. Edwards, supra, 191 Va. page 114. If their verdict is supported by competent evidence, it is final and conclusive, and cannot be disturbed either by the trial court or by this court. Gains Campbell, 159 Va. 504, 166 S.E. 704; Atlantic Greyhound Corp. Shelton, 184 Va. 684, 36 S.E.(2d) 625.
Here, it must be noted that instruction D submitted to the jury the factual issue of whether or not Nash was confronted with an emergency and then advised them what was the scope and character of his obligation and duty if *547 they believed from his testimony that he was in reality placed in an emergency not due to his own fault. As Mr. Justice Miller aptly says in Virginia Transit Co. Durham, supra, (190 Va. page 995):
"If an emergency really existed, then what a reasonable man should or should not have done is in the realm of inference. It is to be ascertained by a fair appraisal of the facts proved and a reasonable consideration of the usual and ordinary reaction of men confronted with similar situations. The composite judgment of a jury in this respect is usually the best means and truest test by which to ascertain and arrive at the reasonable and proper inference to be ultimately drawn."
The first paragraph of instruction D is theoretical and argumentative. It sets out the doctrine of sudden emergency in the language employed by the courts. We do not approve it in that form. The second paragraph correctly states the law and is sufficient standing alone.
Instruction D does not deal with the question of burden of proof; but with the elements which constitute an emergency when one drives out of his proper line of traffic. If the plaintiff had desired an instruction relative to the duty of the defendants to make a reasonable explanation for what they did, she could have requested the court to grant an instruction relating to that question.
Instruction E reads as follows:
"The Court instructs the Jury:"
"That if you believe from all of the evidence in this case that Dial, the operator of the car in which plaintiff, Daniels, was riding under all of the facts and circumstances existing at the time, was guilty of any negligence which was the sole proximate cause of the accident and the resulting injuries to plaintiff, you cannot find your verdict for the plaintiff, Daniels."
Plaintiff objected to this instruction "on the ground that there was no evidence upon which the jury could find that negligence on the part of Dial was the sole proximate cause *548 of the accident, and that negligence on his part, if any, could have only been a contributing cause of the collision." The objection to this instruction presents substantially the same question as that first discussed, that is, whether the verdict was contrary to the law and the evidence and without evidence to support it. What we have heretofore said disposes of this objection, in that we think there was ample evidence to justify granting the instruction. The trial court would have been well advised, however, if it had left out the word "any" which immediately precedes the word "negligence." Its employment, under the circumstances, is supererogatory and unnecessary, but not harmful.
In conclusion, we think the case was fairly submitted to the jury, and that they could well have concluded or inferred that Nash acted as an ordinarily prudent person. The jury had the right to accept or reject the evidence of the plaintiff, or of the defendants, and to evaluate the physical facts and circumstances, and their verdict settles each of the issues involved.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.
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226 S.C. 301 (1954)
84 S.E.2d 873
THE STATE, Respondent,
v.
EUGENE VICKERS, Appellant.
16936
Supreme Court of South Carolina.
December 6, 1954.
*302 Messrs. C. Yates Brown, and Harry L. Cline, of Spartanburg, for Appellant.
J. Allen Lambright, Esq., Solicitor, of Spartanburg, for Respondent.
December 6, 1954.
G. BADGER BAKER, Acting Associate Justice.
*303 The appellant, Eugene Vickers, was tried during the July, 1953, term of Court of General Sessions for Cherokee County under an indictment containing two counts. The first charged him with assault and battery with intent to rape; the second charged him with assault and battery of a high and aggravated nature. The jury returned a verdict finding the appellant guilty of assault and battery of a high and aggravated nature. The appellant made motions for a directed verdict and for a new trial, which motions were overruled.
There are four exceptions alleging four errors in the trial of the case: (1) Is there any error in the trial court's cross-examination or examination of one of appellant's witnesses; (2) Did the trial Judge properly refuse cross-examination of prosecutrix relating to the results of a medical examination immediately following the alleged assault; (3) Did the trial Judge err in refusing to instruct the jury as to an inference or presumption from the failure of the State to produce a witness; and (4) Was the evidence such as to have required the trial Judge to direct a verdict of not guilty.
The offenses with which the appellant was charged, as developed upon the trial of the case, were alleged to have occurred at a social gathering, denominated "a birthday party," while the prosecutrix and the appellant were taking a short walk as the result of a game played by those attending the party, and in which they, as guests, participated.
The main issue in the trial was whether appellant assaulted the prosecutrix, which is alleged by the State to have occurred beside a hog pen located a short distance to the rear of the house in which the party was held. There is direct evidence that an assault was committed by appellant, with direct evidence to the contrary, which naturally produced a highly controversial issue and brought into focus circumstances which otherwise may have been unimportant. Among the circumstances relating to the credibility of the witnesses was the emotional reaction of those testifying as *304 eye-witnesses, which included a young lady whose first name is Arbutus, who is also the sister of the prosecutrix.
Emma Cash, a witness in behalf of appellant, testified upon direct, cross and re-direct examination that she and her date were sitting on the back porch of the house when the alleged attack is said to have taken place, and thereby had the opportunity to observe the general conduct of the guests, inclusive of appellant and prosecutrix, before and after. The witness stated she heard no outcry from the prosecutrix nor anything out of the ordinary, but after the alleged occurrence she started to go to the barn to find Arbutus, and was called back by her "boy friend."
Immediately after the re-direct examination the trial Judge questioned this witness at length and in detail. In the course of this examination the following questions and answers were developed:
"The Court: Your boy friend called you back and wouldn't let you go to the barn? A. Yes, sir.
"The Court: Why did you want to go to the barn? A. They said they were crying and I wanted to know what it was about.
"The Court: Said what? A. Said Arbutus was crying and I wanted to know what it was about.
"The Court: Did your boy friend go down to the barn? A. No, sir.
"The Court: Did you see Arbutus down in the direction of the barn? A. I saw her in the yard."
Immediately after the trial Judge concluded this part of his questioning the Solicitor again cross-examined the witness on the point of Arbutus crying, with the following developments, quoted from the transcript:
"Q. I didn't catch the first of it. You said Arbutus was crying? A. Yes, sir.
"Q. And you went out to the car to find out what she was crying about? A. No, sir. In the back yard.
"The Court: Was that after you had been to her car? A. Yes, sir.
*305 "The Court: About how long after you had been to her car? A. Oh, about two minutes, maybe three. Went straight to the back porch, and then went back.
"Re-direct Examination By Mr. Cline:
"Q. Mrs. Cash, did you see Arbutus crying, or just somebody told you she was? A. Just said she was crying. I didn't go down there.
"Mr. Cline: I ask that that be stricken, Your Honor.
"The Court: All right, Strike that from the record. It would be hearsay, gentlemen of the jury. Disregard the answers based on information which someone gave her. It does not come within the rule. Disregard it from your consideration.
"There being no further questions, the witness was excused and left the stand.
"The Court: Bring that witness back here.
"Mrs. Emma Cash recalled:
"The Court: When did you first know or learn of this difficulty between Lillie Sue and Eugene? A. Well
"The Court: That night, the next day, the next month, yesterday, or when did you first learn there had been a difficulty between Lillie Sue and Gene Vickers? A. That night.
"The Court: That night? A. Yes, sir.
"The Court: Before you left, before or after you left the party? A. After.
"The Court: After? A. Yes, sir.
"The Court: Where were you when you got that information? A. Home."
It is observed that the trial Judge, in his examination, elicited hearsay evidence as to the emotional reaction of one of the key witnesses for the State, to wit, that Arbutus was crying. The Solicitor expanded this incompetent evidence. Counsel for appellant, following one question to the witness, requested the striking of the testimony, which request was granted. The prejudice or harm, however, had already been created when the trial Judge first developed the incompetent evidence without at that time, *306 upon his own volition, ruling the evidence inadmissible, with proper instructions to the jury. It would be practically impossible to erase this testimony from the minds of the jurors such that it would not be a silent factor in their deliberations. Counsel did not object to the questions of the trial Judge, and answers received, and their reluctance to do so is understandable, especially since the reception of evidence through the questions of the presiding Judge could be assumed to constitute a tacit ruling as to its admissibility.
The leading case in this State is State v. Furtick, 147 S.C. 82, 144 S.E. 839, 840, 84 A.L.R. 1164, from which we quote copiously since the cited case relates not only to the point discussed but also to the next alleged error:
"Very properly the presiding judge is vested with a wide discretion in the progress of the trial, the eliciting of the truth of the issue; he is not simply the `moderator of a town meeting,' but there are limits to that discretion. The power of the judge and his duty are thus clearly expressed in the case of State v. Keehn, 85 Kan. 765, 118 P. 851:
"`The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and, whenever in his judgment the attorneys are not accomplishing the full development of the truth, it is not only his right, but it is his duty, to examine and cross-examine the witnesses.'
"His limitations are thus expressed in the case of Hart v. State, 14 Ga. App. 364, 80 S.E. 909, as condensed in note L.R.A. 1916A, 1192, which contains an exhaustive treatment of the subject:
"`While great caution should be used in its exercise, the trial judge has the right, in his discretion, to question the witnesses during the trial, in order to elicit the truth, and this discretion will not be controlled except where it appears that the manner in which the judge exercised his right tended unduly to impress the jury with the importance of *307 the testimony elicited, or would be likely to lead the jury to suppose that the judge was of the opinion that one party rather than the other should prevail in the case.'
"We reluctantly conclude that the cross-examination was not intended to elicit any fact directly connected with the alleged offense; that it was argumentative in effect, at least very strongly suggestive of a line of argument which the solicitor might take; and that it tended to discredit the defense of alibi relied upon by the defendants.
"In view of the well-known fact of the great influence of the presiding judge upon the minds of a jury, who are quick to seize upon any intimation by word or gesture from him, it is better to leave the examination of witnesses to those charged with that duty, in the absence of a plain omission to elicit evidence for or against a defendant. See an interesting discussion of the subject in the case of Adler v. U.S., 5 Cir., 182 F. 464."
Although State v. Furtick, supra, is not cited in State v. Martin, 216 S.C. 129, 57 S.E. (2d) 55, 56, its principle is reaffirmed, which opinion contains the following statement:
"It is usually better for the trial Judge to refrain from cross-examining witnesses and, always, from making any remark which may affect the weight to be given the testimony of a witness by the jury."
The next asserted error occurred when the trial Judge ordered the witness to be brought back to the witness chair for further questioning. The several questions propounded by the lower Court were based upon the difficulty which is the factual center of the entire case. When the trial Judge employed the unqualified words "this difficulty" in his primary question, the jury could well have received the definite impression that the Judge was of the opinion there had been at least some "difficulty" or indecorous behavior on the part of appellant. An impression, if so produced, would lend great credibility to the State's witnesses and to the alleged attack upon which the prosecution was based. Again, the testimony *308 of this witness in reference to anything vexatious occurring between the prosecutrix and the appellant was pure hearsay.
It is with reluctance we sustain the exception charging error as discussed above for we recognize that the trial Judge, who is most able and conscientious, did not intend to influence the jury in any degree or invade the province of jury and counsel.
During the cross-examination of the prosecutrix, appellant's counsel sought to obtain from her the results of the medical examination following the alleged assault. The State's objection to this portion of the attempted cross-examination was sustained by the lower Court, and properly so for several reasons, among them being (1) that such evidence from the prosecutrix would be hearsay; (2) this witness was not competent to give evidence as to the result of a medical examination; and (3) the doctor who performed the examination was equally available to both State and appellant. The exception charging error for refusal to permit this cross-examination is without merit.
Appellant requested an instruction to the jury to the effect that the failure or refusal of the State to call, or have testify, the examining physician raised an inference that this testimony would have been unfavorable to its contention. Again, it may be pointed out that this doctor was equally available to the defense and the same inference could be raised against appellant for his unexplained failure to present the doctor as a witness.
The exception alleging failure of the presiding Judge to direct a verdict of not guilty is also found to be without merit. The evidence, as already pointed out, was highly controversial and under no circumstances could it be said the trial Judge should have directed a verdict in behalf of appellant.
Reversed and remanded for a new trial for the reasons contained in this opinion.
TAYLOR and LEGGE, JJ., concur.
*309 STUKES and OXNER, JJ., concur in part and dissent in part.
OXNER, Justice (concurring and dissenting).
I am in full accord with the disposition made of the last three questions discussed, but disagree with the decision of the first question. I would overrule all exceptions and affirm the judgment of conviction.
It is held in the leading opinion that the examination by the trial Judge of the witness Mrs. Emma Cash constitutes reversible error because (1) he elicited hearsay testimony, and (2) he exceeded the limitations imposed upon a trial Judge and asked questions calculated to influence the jury against appellant.
Neither in the exception relating to this question nor in appellant's brief do I find any complaint that there was prejudicial error in admitting hearsay testimony. Appellant's contention is, quoting from his exception, that "the Presiding Judge invaded the province of the Solicitor, and, by this (his) questions and his recalling of the witness to the stand after she had been dismissed, he accentuated the testimony elicited by the Court and cause (caused) undue emphasis to be laid thereupon." But even if the question of hearsay testimony were properly before us, there are two reasons why it should not be sustained:
(1) As soon as the objectionable nature of this testimony was brought to the attention of the trial Judge, he struck it out and instructed the jury to disregard it. It is suggested that it was impossible to erase this testimony from the minds of the jury. But "if appellant's counsel felt aggrieved, or that the rulings of the Court were inadequate to protect the rights of the defendant, then a motion for a mistrial should have been made." State v. Warren, 207 S.C. 126, 35 S.E. (2d) 38, 41. Also, see State v. Anderson, 181 S.C. 527, 188 S.E. 186.
(2) Several witnesses testified without objection that Arbutus, the sister of the prosecuting witness, was crying. *310 Indeed, that fact seems to be practically undisputed. On direct examination, Miss Lillian Stephens, a witness for appellant, testified as follows:
"Q. Now, after they got back into the yard what happened? A. Arbutus came around the house snubbing.
"Q. You mean snubbing, she was crying? A. Putting on.
"Q. Had she seen Lillie Sue at that time? A. No, sir.
"Q. Now then what did Arbutus do at that time? A. She met Lillie Sue and Gene.
"Q. Did you hear a conversation between Lillie Sue and Arbutus in the presence of Gene? A. Yes, sir.
"Q. What if anything did Lillie Sue say? What did A. Lillie Sue said, `Why don't you shut your damn mouth. There ain't nothing wrong, and he ain't bothered me.'
"Q. What did they do after that? Where did they go then? A. They went back around the house and left."
Turning now to the question of whether, apart from the matter of eliciting hearsay testimony, the examination was improper, the duty and limitations of a trial Judge in this respect are stated by Mr. Justice Hydrick in State v. Anderson, 85 S.C. 229, 67 S.E. 237, 238, as follows:
"A grave responsibility rests upon a trial judge. It is his duty to see to it that justice be done in every case, if it can be done according to law; and, if he thinks that the attorney for either party, either from inadvertence or any other cause, has failed to ask the witnesses the questions necessary and proper to bring out all the testimony which tends to ascertain the truth of the matter under investigation, we can see no legal objection to his propounding such questions; but, of course, he should do so in a fair and impartial manner, and should not by the form or manner of his questions express or indicate to the jury his opinion as to the facts of the case, or as to the weight or sufficiency of the evidence."
The subject is exhaustively annotated in 84 A.L.R., beginning on page 1172, where a number of South Carolina cases are reviewed.
*311 I do not think the trial Judge in the instant case transcended the limitations stated in the foregoing rule. His examination of the witness did not indicate to the jury any opinion as to the defendant's guilt or as to the weight or sufficiency of the evidence. He was merely seeking to elicit information relevant to the decision of the issue on trial, which he evidently thought had not been sufficiently brought out by counsel.
In the following cases it was held that the Court's examination did not constitute prejudicial error, although in each of them the trial Judge went much farther than did the Judge in the instant case: State v. Atkinson, 33 S.C. 100, 11 S.E. 693; State v. Jackson, 87 S.C. 407, 69 S.E. 883; State v. Hyde, 90 S.C. 296, 73 S.E. 180; State v. Mitchum, 150 S.C. 341, 148 S.E. 184.
Finally, it is said that the trial Judge by the use of the word "difficulty" in several of his questions might have conveyed an impression to the jury that he was of the opinion that there had been at least some difficulty or indecorous behavior on the part of appellant. While the word used was not an apt one, it seems to me that the majority opinion places entirely too strained a construction upon the language used.
STUKES, J., concurs.
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90 Ga. App. 821 (1954)
84 S.E.2d 602
REFRIGERATION-APPLIANCES, INC.
v.
ATLANTA PROVISION CO. et al.
35157.
Court of Appeals of Georgia.
Decided October 14, 1954.
*822 Haas, Holland & Blackshear, Joseph F. Haas, for plaintiff in error.
Troutman, Sams, Schroder & Lockerman, D. W. Rolader, Henry B. Smith, M. L. Kahn, W. Harvey Armistead, A. A. Baumstark, John W. Wilcox, Jr., Assistant Attorney-General, contra.
NICHOLS, J.
It does not appear that the title-retention contract was ever recorded. "The registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property, except that they must be filed for record within thirty days from their date." Code § 67-1403, as amended (Ga. L. 1952, p. 88). "The effect of failure to record a mortgage shall be the same as *823 is the effect of failure to record a deed of bargain and sale." § 67-109.
In construing these sections, it was held in Evans Motors of Georgia v. Hearn, 53 Ga. App. 703 (186 S.E. 751): "The act of August 27, 1931 (Ga. L. 1931, p. 153; Code of 1933, §§ 67-109, 67-1305), providing that the effect of a failure to record a mortgage or bill of sale or deed to secure debt `shall be the same as is the effect of failure to record a deed of bargain and sale,' so changes the prior law with reference to those securities as to render such instruments, even though unrecorded, superior in rank to subsequent liens created by law. However, the act does not expressly or impliedly change the prior law with regard to contracts of conditional sale. The Code of 1933, §§ 67-1401 to 67-1403, inclusive, contains, without any substantial change, the provisions of the Code of 1910, §§ 3318 and 3319, and earlier Codes, relative to such contracts. Therefore the settled rule of priority in favor of a holder of a lien created by law, which prevailed under prior statutes, will still control in a contest between such a lienholder and a vendor in an unrecorded contract of conditional sale." This ruling has been followed in Allen v. Dickey, 54 Ga. App. 451 (188 S.E. 273), in Rhodes v. Jones, 55 Ga. App. 803 (191 S.E. 503), and in Buchanan v. Georgia Acceptance Co., 61 Ga. App. 476 (6 S.E.2d 162). The legislature amended Code § 67-1403 in 1952 (Ga. L. 1952, p. 88), so as to require that conditional bills of sale be "filed for record" instead of "recorded" within thirty days from their date, but the section has not been changed otherwise, and this is at least tacit approval of this court's construction of the act of 1931 and its effect. We refuse to overrule the Evans Motors case. The unrecorded reservation of title in Refrigeration-Appliances does not have priority over the lien of the State for sales and use taxes. See State v. Atlanta Provision Co., supra, Carroll v. Richards, 50 Ga. App. 272 (178 S.E. 178).
It does not appear, nor is it contended, that Rosenberg's other creditors had obtained judgments against him, or that they were misled to extend him credit by Refrigeration-Appliances' failure to record its conditional-sale contract. Such a contract, unrecorded, will be postponed to liens obtained or bona fide purchases made after its execution, but not to creditors without a lien. *824 Rhode Island Locomotive Works v. Empire Lumber Co., 91 Ga. 639 (17 S.E. 1012); Cottrell v. Merchants & Mechanics Bank, 89 Ga. 508 (15 S.E. 944). See also Wood v. Evans, 98 Ga. 454 (25 S.E. 559).
The court erred in relegating Refrigeration-Appliances to the rank of a general creditor with respect to the funds arising from the sale of the property described in its unrecorded contract of conditional sale. This creditor was entitled to priority except over the lien of the State for sales and use taxes.
Judgment reversed. Felton, C. J., and Quillian, J., concur.
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745 P.2d 277 (1987)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Martin Lee ROSS, Defendant-Appellant.
No. 85CA0605.
Colorado Court of Appeals, Div. III.
August 20, 1987.
Rehearing Denied September 24, 1987.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt P. Kriksciun, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Barbara S. Blackman, Chief Appellate Deputy, Denver, for defendant-appellant.
VAN CISE, Judge.
Premised principally on the report of a 13-year-old girl that defendant, Martin Lee Ross, had entered her trailer at 5 a.m. on June 30, 1984, and sexually assaulted her, a jury found him guilty of second degree burglary and sexual assault on a child. He appeals the judgment of conviction, and we reverse.
I.
Defendant contends that the trial court erred in permitting, over defense objections, a police officer to testify that, in his opinion, the girl told the truth when she told him about the assault. We agree that this was error.
*278 There were no eyewitnesses to the alleged unlawful entry and sexual assault other than the defendant and the girl, and she waited for a month and a half before reporting it to her social worker. After the girl testified at the trial, the defendant called several witnesses in an attempt to show that the girl was an untruthful person.
In rebuttal, the People called the investigating police officer to the stand. During his testimony, the following exchange took place:
"District Attorney: Based on your education, training and experience as an investigator and your relationship with [the girl], do you have an opinion as to whether or not she's telling the truth about this?
Police Officer: From the beginning of the investigation until her testimony yesterday, she has been conclusive in everything she told me from the very beginning.
District Attorney: Is she being truthful? Police Officer: Yes, sir, I believe she is."
Once a witness' character for truthfulness has been attacked, as the girl's was here, opposing counsel may present rebuttal evidence of truthful character. See CRE 608(a); Honey v. People, 713 P.2d 1300 (Colo.1986). "However, neither a lay nor expert witness may give opinion testimony as to whether a witness is telling the truth on a specific occasion." People v. Koon, 713 P.2d 410 (Colo.App.1985). See also Tevlin v. People, 715 P.2d 338 (Colo. 1986).
Here, the police officer was not testifying as to the victim's general character for truthfulness, but as to the victim's truthfulness on the specific occasion of his investigation of the crime. Therefore, admission of the testimony was error.
The People, however, argue that any error by the trial court was harmless. We disagree.
Crim.P. 52(a) defines harmless error as error "which does not affect the substantial rights" of the defendant. Under this rule, error in a criminal trial will be disregarded if there is not a reasonable possibility that the error contributed to the defendant's conviction. People v. Taylor, 197 Colo. 161, 591 P.2d 1017 (1979).
Here, there was no medical or other physical evidence that a sexual assault occurred nor any third-party eyewitness testimony to the alleged unlawful entry or sexual assault. Hence, the girl's and defendant's credibility was the central issue for the jury to resolve in determining whether the entry or sexual assault occurred. The police officer's testimony was directed at this issue. Furthermore, the police officer was the last witness to testify, and so the timing of his testimony increased its impact. We conclude that the impermissible opinion testimony could have affected the outcome of the trial. Therefore, we cannot deem it harmless. See People v. Koon, 724 P.2d 1367 (Colo.App.1986). The judgment of conviction must be reversed.
II.
Because a new trial is necessary, we address defendant's remaining contentions which are likely to arise on retrial.
A.
At the time of the alleged assault, the girl was receiving group counseling for incest from a social worker at Adams County Department of Social Services. It was at the last group therapy session that the girl told her social worker about the incident.
During the discovery process before trial, defense counsel obtained access to the Social Services Department records, but the judge ultimately assigned to try the case granted the People's motion to preclude any evidence obtained from that access.
Defense counsel made an offer of proof that he intended to introduce the records to show both prior inconsistent statements by the girl to her social worker and the social worker's conclusion that the girl's story was merely an attention-getting device. The People countered that the records were confidential and the statements to the social worker were privileged under *279 § 12-63.5-115, C.R.S. (1985 Repl. Vol. 5) and § 19-10-115, C.R.S. (1978 Repl. Vol. 8). The trial court agreed with the People, refused to examine the records, and barred defense counsel from presenting the testimony of the girl's social worker or the records themselves.
Defendant contends that the trial court erred in failing to hold an in camera hearing to examine the records before deciding their admissibility and in refusing to permit the defense to use evidence derived from the reports if otherwise admissible. We agree.
Section 12-63.5-115(1) creates a privilege between a social worker and her client barring the disclosure of any communication by the client or advice given by the social worker in the course of professional employment. The privilege does not extend so far as to prohibit compelled disclosure in a sexual assault case. Rather, the statute provides in pertinent part:
"(2) No ... social worker may be compelled to disclose any information he may have acquired from a person consulting him in his professional capacity, unless:
....
"(c) The person is a child under the age of sixteen years and the information acquired indicated that the child was the victim or subject of a crime; whereupon, the ... social worker may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such crime is a subject of inquiry...."
Section 19-10-115 also creates an incomplete privilege. In § 19-10-115(1), the reports of child abuse and neglect and any identifying information contained therein are declared to be confidential and not to be public information. However, § 19-10-115(2) then provides:
"Only the following persons or agencies shall be given access to child abuse or neglect records and reports:
....
"(f) A court, upon its finding that access to such records may be necessary for determination of an issue before such court, but such access shall be limited to in camera inspection unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it."
From the offer of proof, the trial court should have made the preliminary finding that access may be necessary. It should then have inspected the records to determine whether public disclosure was necessary in the interest of a fair trial for the accused. On retrial, this procedure should be followed.
B.
We also agree with defendant that the trial court erred in allowing the People to suggest, through cross-examination of a witness, that the girl was telling the truth about the assault.
On direct examination by the defense, a friend of the girl, another 13-year-old, testified that, in her opinion, the girl was an untruthful person. Upon cross-examination, the People elicited from the witness that neither she nor other girls would fabricate a sexual assault claim, because such a claim was very serious and something to be truthful about.
Whether the witness or her friends would fabricate a sexual assault claim was irrelevant; it had no bearing on whether or not the victim was credible. CRE 401; People v. Carlson, 677 P.2d 390 (Colo.App. 1983).
The judgment is reversed and the cause is remanded for a new trial.
TURSI and CRISWELL, JJ., concur.
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450 S.E.2d 177 (1994)
COMMONWEALTH of Virginia
v.
Derrell BURGAN.
COMMONWEALTH of Virginia
v.
Harold DAVIS.
Record Nos. 0999-94-3, 1000-94-3.
Court of Appeals of Virginia.
November 8, 1994.
*178 H. Elizabeth Shaffer, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellant.
James E. Rasnic, Jonesville, (Rasnic & Rasnic, P.C., on brief), for appellees.
Present: MOON, C.J., and BARROW and COLEMAN, JJ.
BARROW, Judge.
In this appeal we must decide whether the seizure of cigarettes and a cigarette lighter from two miners during an unannounced spot search of a coal mine violated the Fourth Amendment. No statutory or other regulatory scheme authorized a search of these individuals or their personal effects. Therefore, even though mining is a closely regulated industry and the government has a strong and legitimate interest in promoting safety in the industry, we hold that the authorities illegally seized the cigarettes and the cigarette lighter.
Having heard of rumors that miners were smoking on the second shift at Big Fist Coal Company, representatives from the Virginia Department of Mines, Minerals and Energy, the Mine Safety Health Administration, and the office of the Attorney General, went to the company to conduct a "spot inspection." One of the duties of the district mine inspector who accompanied the group was to observe the periodic inspections of the mine at least once every ninety days. According to the district inspector, such inspections could include searches for smoking materials, but "as a matter of policy" did not.
Upon arriving at the company, the inspection group informed the foreman and another person of their purpose and asked them not to inform anyone of their intent. They then proceeded into the mine. As they came upon miners, they asked them to retrieve their lunch buckets and accompany the inspectors to an area, where the foreman conducted a search.
One of the defendants, Davis, was the first miner to be searched. When he pulled back his coveralls for his shirt pockets to be examined, the supervisor saw a pack of cigarettes and ordered the foreman to retrieve them. Davis made no statement.
When they searched the other defendant, Burgan, they found cigarettes and a lighter in his lunch bucket. Burgan stated that the bucket belonged to him but denied that the cigarettes and lighter were his.
The defendants were indicted under former Code § 45.1-98.1 which prohibits any "miner, workman, or other person in an underground coal mine" from "smok[ing] or carry[ing] any smoker's articles or matches, lighters, or similar materials generally used for igniting smoker's articles." In a pretrial hearing, the trial court ordered the suppression of the materials seized from the defendants. The Commonwealth appeals the suppression order.
The Commonwealth argues that because mining is a "closely regulated industry," the search of miners for smoking materials falls within a recognized exception to the Fourth Amendment prohibition against unreasonable searches and seizures. This exception has been applied to the search of commercial premises, not to searches of the person. The Commonwealth, however, argues that the exception logically extends to searches of individual coal miners. We disagree.
An exception to the warrant requirement exists where commercial premises of "closely regulated industries" are searched. See New York v. Burger, 482 U.S. 691, 699-700, 107 S. Ct. 2636, 2642-43, 96 L. Ed. 2d 601 (1987) (upholding warrantless inspection of auto junkyards); Donovan v. Dewey, 452 U.S. 594, 601-02, 101 S. Ct. 2534, 2539-40, 69 L. Ed. 2d 262 (1981) (upholding statute authorizing warrantless inspections of underground and surface mines). In order to fall within this exception, the warrantless search must meet three criteria. First, "there must *179 be a `substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made." Burger, 482 U.S. at 702, 107 S.Ct. at 2644. Second, "the warrantless inspections must be `necessary to further [the] regulatory scheme.'" Id. Third, the inspection program must "provide a constitutionally adequate substitute for a warrant" by informing the owner that inspections will occur regularly, and notifying him or her of the permissible scope and who may conduct the inspections, as well as requiring that the permitted inspection is "carefully limited in time, place, and scope." Id. at 703, 107 S.Ct. at 2644.
SUBSTANTIAL GOVERNMENT INTEREST
"[T]he mining industry is among the most hazardous in the country," and the government has a substantial interest in "improving the health and safety conditions in the Nation's underground and surface mines." Dewey, 452 U.S. at 602, 101 S.Ct. at 2540. Both the federal and state legislatures have recognized this interest, and have established regulations governing mining. See, e.g., MSHA; Virginia Mine Safety Law. The defendants concede that the government has such an interest in mining safety.
NECESSARY TO FURTHER REGULATORY SCHEME
"[I]f inspection is to be effective and serve as a credible deterrent, unannounced, even frequent inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection." Dewey, 452 U.S. at 603, 101 S.Ct. at 2540 (quoting United States v. Biswell, 406 U.S. 311, 316, 92 S. Ct. 1593, 1596, 32 L. Ed. 2d 87 (1972)). Thus, the Commonwealth claims that the regulatory goals in this case necessitate warrantless searches of individual miners. However, the defendant argues that, regardless of the need to search the miners, the regulatory scheme in place at the time of the inspection addressed the safety of the premises and equipment of the mine, not the miners.
The regulations do not expressly authorize inspection or search of the individual miner, but rather, set minimum safety standards with which the mine owner must comply. The Virginia Mine Safety Act (VMSA), as it existed at the time of the search, required that all underground mines be subject to inspection at least every ninety days and specified the conduct of the inspection. See Code § 45.1-5. This inspection procedure refers to premises and equipment, not individual miners. Elsewhere in the VMSA, the general assembly has made it a felony for any "miner, workman, or other person in an underground coal mine [to] smoke or carry or possess any smoker's articles or matches, lighters, or similar materials generally used for igniting smoker's articles," and requires the operator of the mine to display a notice to this effect. Code §§ 45.1-98.1 and 45.1-98.2. This provision does not authorize any "smoker search" program.[1]
Federal law expressly allows an inspection of "all or part of [the] mine" but not the individual miner. 30 U.S.C. § 813(i). Further, 30 U.S.C. § 877(c) requires a mine operator to implement a program to insure that no one enters the underground mines carrying smoker's articles. This section, however, does not require a "smoker search" program, nor expressly authorize searches of miners by anyone.
The regulatory scheme relied upon by the Commonwealth to support the search of these two miners authorizes unannounced and warrantless searches of the mines. It does not, however, authorize such searches of the miners themselves.
CONSTITUTIONALLY ADEQUATE SUBSTITUTE FOR WARRANT
In the context of the third requirement, the specific privacy concerns of the Fourth Amendment become most apparent.
*180 The mine owner has a diminished expectation of privacy because he or she "cannot help but be aware that he `will be subject to effective inspection.'" Dewey, 452 U.S. at 603, 101 S.Ct. at 2540. In order to provide an adequate substitute for the warrant requirement, the regulation must both limit the "time, place, and scope" of the inspection and must put the owner on notice of the possibility and permissible scope of the inspection.[2]Burger, 482 U.S. at 702, 107 S.Ct. at 2643-44.
The Commonwealth argues that anyone who entered the mines should be aware that he or she is subject to a warrantless search. See Marshall v. Donofrio, 465 F. Supp. 838, 842 (E.D.Pa.1978), cert. denied, 444 U.S. 1102, 100 S. Ct. 1067, 62 L. Ed. 2d 787 (1980). While the owners and operators of mines should be aware that their mines are subject to inspection, the statutory scheme does not notify the individual miners that they may be subject to search. Thus, the miners' expectation of privacy remains undiminished by the statutes.
The statutory scheme relied upon by the Commonwealth does not put the miners on notice of the likelihood of searches or limit those searches in time, place, and scope. Therefore, it does not provide "a constitutionally adequate substitute for a warrant."
ANALOGY TO DRUG TESTING CASES
The Commonwealth compares the search of the individual miners and their personal belongings to the drug testing of certain employees. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989) (upholding warrantless urine testing where "operational necessities of the workplace" in "certain forms of public employment may diminish privacy expectations even with respect to such personal searches"). See also Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (upholding urinalysis and breath tests of railway workers at the workplace because of governmental interest in safety). In those cases, the Supreme Court ruled that while such testing implicates the Fourth Amendment, the governmental objectives and the procedures used were sufficiently strong to eliminate the requirement of warrant, probable cause, or even particularized suspicion for testing.
However, the regulations in those cases are distinguishable from those relied upon by the Commonwealth in this case. In Von Raab and Railway Labor Executives, the regulations specifically authorized the testing and prescribed the scope and manner of testing and the permissible use of the test results, prohibiting their use "in a criminal prosecution of the employee without the employee's consent." Von Raab, 489 U.S. at 666, 109 S.Ct. at 1391. In those cases, the employees were on notice that they would be subject to drug testing and the regulations helped to assure that the intrusions into their privacy were not "the random or arbitrary acts of government agents." Railway Labor Executives, 489 U.S. at 621-22, 109 S.Ct. at 1416. Here, no regulation or statute notified the miners that they might be searched or assured that the searches would not be arbitrary. The rationale underlying Von Raab and Railway Labor Executives does not support the conclusion that the searches of these miners were not violations of the Fourth Amendment.
For these reasons, we conclude that no statutory or other regulatory scheme authorized searching these miners. Consequently, even though the government has a substantial interest in promoting safety in the mining industry, we hold that the trial court did not err in suppressing the evidence seized during the searches of the miners, and we affirm its order.
Affirmed.
NOTES
[1] However, the following year, the general assembly repealed and reenacted the VMSA, including this section, amending it to include a requirement that "[t]he operator shall institute a smoker search program, approved by the Chief, to ensure that any person entering the underground area of the mine does not carry smoking materials, matches, or lighters." Code § 45.1-161.177(B).
[2] The Commonwealth argues that the scope of the search was properly tailored as it was conducted in the underground mine during working hours and was limited to a search for smoker's materials.
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84 S.E.2d 906 (1954)
241 N.C. 288
In the Matter of J. D. POWELL.
No. 294.
Supreme Court of North Carolina.
December 15, 1954.
*907 R. Brookes Peters and L. J. Beltman, Raleigh, for the State.
John R. Jordan, Jr., Raleigh, by Court appointment, for defendant.
JOHNSON, Justice.
It is settled law that cumulative sentences may be imposed on conviction or plea of guilty of two or more offenses charged in separate counts of the same indictment. State v. Moschoures, 214 N.C. 321, 199 S.E. 92; State v. Graham, 224 N.C. 347, 30 S.E.2d 151; State v. Chavis, 232 N.C. 83, 59 S.E.2d 348. However, jurisdiction to inflict separate, cumulative punishments in such cases is dependent upon the fact that distinct violations of the law have been committed, and in order that separate offenses charged in one indictment may carry separate punishments, they must rest on distinct criminal acts. 15 Am.Jur., Criminal Law, sections 451 and 470.
The crimes of larceny and receiving stolen property knowing it to have *908 been stolen are different offenses, and not degrees of the same offense. 52 C.J.S., Larceny, § 5. This is explained in detail by Denny, J., in State v. Brady, 237 N. C. 675, 75 S.E.2d 791. It suffices here to note that the crime of receiving presupposes, as an essential element of the offense, that the property in question had been stolen by some one other than the person charged with the offense of receiving. Therefore, it is manifest that a person cannot be guilty both of stealing property and of receiving the same property knowing it to have been stolen. If the one is true, the other cannot be. See Bargesser v. State, 95 Fla. 404, 116 So. 12; Commonwealth v. Haskins, 128 Mass. 60; In re Franklin, 77 Mich. 615, 43 N.W. 997; 32 Am.Jur., Larceny, section 155; Annotation, 80 A.L.R. 171 at page 174. Accordingly, a plea of guilty, as here, of stealing property and of receiving the same property knowing it to have been stolen will not support separate, cumulative sentences.
Nor may the dual punishments here imposed be sustained on the theory that the composite of the two is within the maximum allowed by statute for either of the offenses charged. This is so for the reason it was not within the power of the court below to impose sentence active in part and suspended in part. Where a single offense is involved, the sentence must be made active in full or suspended in full. We do not sanction the split-sentence. It is in effect, as explained by Seawell, J., in State v. Lewis, 226 N.C. 249, 37 S.E.2d 691, an anticipatory pardon or parole, violative of the provisions of the Constitution of North Carolina appertaining to pardons and paroles. See also 15 Am.Jur., Criminal Law, sections 382 and 389.
Since the defendant could not be guilty of both larceny and receiving, the court below had power to impose punishment on only one count in the bill of indictment. Nevertheless, the court gave the defendant an active sentence of twelve months on the receiving count and an eight-year suspended sentence on the larceny count. He has served in full the sentence imposed on the receiving count. This we treat as the valid sentence of the court. The defendant's present confinement is under the sentence imposed on the larceny count, which must be treated as invalid. See also State v. McBride, 240 N.C. 619, 83 S.E.2d 488.
It necessarily follows that the defendant is entitled to immediate release. It is so ordered. To that end the Clerk of this Court will certify copies of this opinion to the Clerk of the Superior Court of Rowan County and to the Director of Prisons, with direction that the defendant be discharged immediately from custody.
Error and remanded.
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215 Ga. App. 331 (1994)
CINCINNATI INSURANCE COMPANY
v.
MULLINAX et al.
A94A2368.
Court of Appeals of Georgia.
Decided November 22, 1994.
*334 Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Daniel J. Huff, Berlon & Timmel, Michael R. Berlon, for appellant.
Crecelius & Crecelius, Bill W. Crecelius, Jr., C. Lawrence Jewett, Jr., Harper, Waldon & Craig, Thomas D. Harper, Sharon Ware & Associates, Donna O. Darroch, Theodore P. Bianco, for appellees.
BLACKBURN, Judge.
The Cincinnati Insurance Company (Cincinnati) appeals the trial court's grant of defendants' motion for summary judgment and the denial of its own motion for summary judgment. In the underlying declaratory judgment action, Cincinnati sought a determination of the rights and obligations conferred in the automobile insurance contract issued by Cincinnati to defendants Randy J. Mullinax and Shawn A. Mullinax.[1]
Randy and Shawn Mullinax are listed as the named insureds on the automobile insurance contract issued by Cincinnati. While using their car, without their permission, the Mullinax's 15-year-old daughter, Meagan Ann Mullinax, was involved in an automobile accident with Patricia Ferguson. Jaime Anderson, a 15-year-old friend of Meagan's, was in the car with Meagan.
The Andersons filed a complaint against the Mullinaxes to recover damages for Jaime Anderson's injuries resulting from the accident. Thereafter, the Mullinaxes refused to sign Cincinnati's non-waiver agreement, and Cincinnati sent Randy and Shawn Mullinax a reservation of rights letter which explained Cincinnati's potential defense to the Andersons' claims and Cincinnati's intention to file the present action. Three days later, Cincinnati's filed the present action.
Subsequently, Patricia Ferguson filed suit against the Mullinaxes to recover damages for injuries sustained in the accident, and Cincinnati sent a reservation of rights letter to the Mullinaxes with regard to this suit.
1. The first issue which must be determined is whether Cincinnati's reservation of rights letters were sufficient. Appellees contend that the reservation of rights letters were insufficient as to any claims asserted against Meagan Mullinax because the letters were directed to Meagan's parents and did not reference Meagan.
"Upon learning of facts reasonably putting [the insurance company] on notice that there may be grounds for noncoverage and where *332 the insured refuses to consent to a defense under a reservation of rights, the insurer must thereupon (a) give the insured proper unilateral notice of its reservation of rights, (b) take necessary steps to prevent the main case from going into default or to prevent the insured from being otherwise prejudiced, and (c) seek immediate declaratory relief including a stay of the main case pending final resolution of the declaratory judgment action." Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 219 (231 SE2d 245) (1976).
Meagan Mullinax is not defined as an insured or an additional insured by the insurance contract. Her status under the liability coverage portion of the contract is that of a family member. A family member is defined by the contract as a person related to the named insured by blood who is a resident of the named insured's household. The reservation of rights letters were sent to Meagan's parents, the named insureds, at the named insured's address. Therefore, Cincinnati complied with the Richmond requirements.
Furthermore, "[t]he rule enunciated in Richmond is based on principles of fairness, and, in determining whether an insurer has met the requirements thereof, the crucial inquiry is whether the rights of the insured have been adequately protected." Kelly v. Lloyd's of London, 255 Ga. 291, 293-294 (336 SE2d 772) (1985). In Kelly, the Supreme Court addressed whether an insurance company's failure to follow the Richmond requirements by delaying its filing of the declaratory judgment action created a waiver of the insurance company's contract defenses. 255 Ga. at 293. The Court focused on whether the insureds demonstrated any prejudice caused by the delay in filing the declaratory judgment action, and finding none; the Court determined that the delay was reasonable. 255 Ga. at 294.
In Caldwell v. State Farm Fire &c. Ins. Co., 192 Ga. App. 419, 420 (1) (385 SE2d 97) (1989), we determined that the insureds' recorded statements combined with a non-waiver of rights form signed by one insured, and the prompt filing of a declaratory judgment action put the insureds on notice of the coverage questions and adequately protected the insureds' rights. Additionally, in Southern Gen. Ins. Co. v. Buck, 202 Ga. App. 103 (2) (413 SE2d 481) (1991), we recognized that the insurance company had not met the immediacy requirement of Richmond by failing to file a declaratory judgment action for 14 months. However, due to the absence of a showing of prejudice by the insureds as movants for summary judgment, we found that the insurance company did not waive its right to obtain a judicial determination of the coverage issues. Id. at 105.
In the present case, the insureds' rights were adequately protected. Cincinnati obtained separate counsel for its insureds and their covered family member, Meagan. The insureds were promptly notified of Cincinnati's defenses, and Cincinnati promptly filed this declaratory *333 judgment action. In the absence of any prejudice shown by appellees, we find that the requirements of Richmond were met.
2. Cincinnati's payment of personal injury protection benefits to Meagan and property damage benefits to its insureds did not waive its right to rely on an exclusion of liability coverage regarding the same accident. See Washington v. Hartford Accident &c. Co., 161 Ga. App. 431 (288 SE2d 343) (1982). "`Neither waiver nor estoppel can be used to create a liability not created by the contract and never assumed by the insurer under the terms of the policy.' [Cits.]" Id. at 432.
Appellees assert that our decision in Sargent v. Allstate Ins. Co., 165 Ga. App. 863 (303 SE2d 43) (1983), supports their contention that Cincinnati's payment of PIP and property damage benefits created a waiver of Cincinnati's right to rely on an exclusion of liability coverage. We find that Sargent is distinguishable from the present case.
In Sargent, a family member of the insured was afforded property damage coverage despite the fact that she did not live with the insured. Id. at 864. Thereafter, the insurance company sought to rely on the family member's nonresidency in order to avoid liability coverage, despite its previous payment of property damage claim. Id. at 865. We stated that "an insurer may waive any provision in an insurance policy inserted for its benefit, and may waive any condition or limitation in the policy upon which it could otherwise rely." (Citations and punctuation omitted.) Id. However, we found that the insurance company's waiver of the residency condition did not result in an expansion of coverage that included a risk not assumed by it, and that once the insurer waived the policy condition, it could not be reclaimed. Id. at 866-867.
In the present case, Cincinnati's payment of PIP benefits did not waive any conditions of insurance and had no effect on the exclusions found in the liability section of the insurance contract. "The law favors the settlement of claims without litigation, and courts should not favor rules which would penalize and punish, and place a premium on the action of an insurance company in settling a claim under a policy." (Citation and punctuation omitted.) Jacore Systems v. Central Mut. Ins. Co., 194 Ga. App. 512, 515 (390 SE2d 876) (1990).
3. We have previously interpreted the liability exclusion upon which Cincinnati seeks to rely and found that it unambiguously excludes liability coverage upon substantially similar facts. See Cincinnati Ins. Co. v. Plummer, 213 Ga. App. 265 (444 SE2d 378) (1994). Therefore, the trial court erred in failing to grant Cincinnati's motion for summary judgment.
Judgment reversed. Birdsong, P. J., and Ruffin, J., concur.
NOTES
[1] The defendants in the underlying action and appellees herein are Randy J. Mullinax and Shawn A. Mullinax, individually and as parents and guardians of Meagan Ann Mullinax, Meagan Ann Mullinax, Kathleen Anderson and William Anderson, individually and as parents and guardians of Jaime Anderson, Jaime Anderson, Patricia S. Ferguson, and State Farm Mutual Automobile Insurance Company.
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84 S.E.2d 910 (1954)
241 N.C. 264
William C. MORRELL
v.
BUILDING MANAGEMENT, Inc. and Eastern Motors, Inc.
No. 593.
Supreme Court of North Carolina.
December 15, 1954.
*912 Kellum & Humphrey and McClelland & Burney, Wilmington, for plaintiff appellant.
Hogue & Hogue, Wilmington, for appellee Building Management, Inc.
BARNHILL, Chief Justice.
This cause was tried in the court below on the theory that the testator devised to his two sons an estate in remainder either vested or contingent. The plaintiff contended that whatever estate was devised was contingent, as to each son, upon whether he survived the trust, and that since plaintiff's father died prior to the expiration of the trust, he took nothing under the will; that the words "or their heirs" created another class of devisees who should take the share of a son in the event the son should die prior to the date set for the distribution of the corpus of the estate. That is to say, he contended that the roll must be called as of that date to ascertain who are the devisees; that he is the sole heir of William R. Meeks, and that as such he became the owner of one-half of the corpus at the expiration of the trust.
On the other hand, the defendants contend that William R. Meeks, immediately upon the death of the testator, was vested with title to one-half of the corpus in remainder in fee, subject only to the terms of the trust which merely postponed the enjoyment thereof.
The parties, both in their briefs and oral arguments, pursue the appeal to this Court upon the same assumption.
But the will creates no prior estate, less than a fee, with limitation over to the two sons such as would make the estate devised to them an estate in remainder, either vested or contingent. Hence the law of remainders and future interests has no application here.
"Where an active trust is created for the use and benefit of named beneficiaries, or there is a gift of all or a part of the income therefrom to the beneficiaries, pending final division, or there is other language in the will evidencing a clear intent that a beneficial interest in the estate shall vest in the parties named immediately upon the death of the testator, with directions to the trustees to divide and deliver the estate at a stated time in the future, the interest vests immediately upon the death of the testator and the date of division merely postpones the complete enjoyment thereof." Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713, 717. This rule, to *913 be followed in the construction of wills, is now settled law in this jurisdiction. Williams v. Smith, 57 N.C. 254; Fuller v. Fuller, 58 N.C. 223; Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420; Robinson v. Robinson, 227 N.C. 155, 41 S.E.2d 282; McQueen v. Branch Banking & Trust Co., 234 N.C. 737, 68 S.E.2d 831; Jackson v. Langley, 234 N.C. 243, 66 S.E.2d 899; Weill v. Weill, 212 N.C. 764, 194 S.E. 462; Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341; Pridgen v. Tyson, 234 N.C. 199, 66 S.E.2d 682; see also 57 A.J. 807; 69 C.J. 595; 2 Simes Future Interests 103.
The will under consideration creates no contingent future interest. The beneficiaries of the trust are named in the will and were persons in being at the time the will took effect and the estate was created. They were, under the terms of the will, to have and receive the income from the property monthly, and upon the termination of the trust, they were to receive their respective shares, freed of the trust provisions. Thus there is no postponement of the vesting of their title to the property. Instead, title thereto vested in them immediately upon the death of the testator. The trust merely served to postpone their right to the full enjoyment of the estate devised until its termination.
Even if we should conclude that in view of the fact the sons were to receive only the income from the estate during the life of the trust, neither son could convey a valid and marketable title to his share of the property during the life of the trustand we do not so concludethis would not affect the result. The deed executed by William R. Meeks would operate as an estoppel against him and those claiming by or through him by deed, will, or inheritance.
When a grantor conveys land to which he has no title or a defective title at the time of the conveyance, but who thereafter acquires title to the property, his after-acquired title "feeds the estoppel" and, by operation of law, vests the title thus acquired in the grantee. Croom v. Cornelius, 219 N.C. 761, 14 S.E.2d 799; Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485; Woody v. Cates, 213 N.C. 792, 197 S.E. 561; Bell v. Adams, 81 N.C. 118; Benick v. Bowman, 56 N.C. 314.
The judgment entered in the court below will be modified by striking out the words "in remainder" as used in the court's conclusion of law therein contained so that it will read "* * * that at the death of Felix J. Meeks, Sr., William R. Meeks, Sr. became seized of a vested and transmittable estate in fee simple to a one-half undivided interest in the locus in quo, the complete enjoyment of possession of which was postponed until the termination of the trust estate, there being no condition precedent which prevented the immediate vesting of the estate upon the death of Felix J. Meeks, Sr." As so modified said judgment is affirmed.
Modified and affirmed.
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513 P.2d 174 (1973)
In the matter of the Dissolution of the Marriage of Marilee SCHEER, Respondent, and
Dale N. Scheer, Appellant.
Court of Appeals of Oregon.
Argued and Submitted May 25, 1973.
Decided June 25, 1973.
Douglas G. Combs, Ontario, argued the cause for appellant. With him on the briefs was Martin P. Gallagher, Ontario.
W.F. Schroeder, Vale, argued the cause for respondent. With him on the brief were Schroeder, Denning & Hutchens, Vale.
*175 Before SCHWAB, C.J., and FORT and THORNTON, JJ.
FORT, Judge.
The wife as petitioner was granted a decree of dissolution of marriage. Respondent husband appeals from those portions of the decree relating to child support, support for the wife, division of property and award of attorney fees to the petitioner.
The parties, married about 20 years, had five children. The court awarded custody of the two older children, ages 18 and 17, to the husband and the three younger children, ages 13, 10 and 5, to the mother. This award is not challenged on appeal.
The husband is a chiropractor. The joint tax returns filed by the parties for the past ten years are in evidence. At no time during the last five years did his net income from his practice reach $700 per month, varying from $525 per month in 1967 to a high in 1970 of $677. The last full year of the marriage his average monthly income from his practice was $620. Depreciation on professional equipment raised his cash flow $138.50 per month. During the same year petitioner earned $5,026.68 as a school teacher from the Malheur County School District. The parties owned a duplex which showed consistently a substantial net loss for tax purposes. Excluding depreciation its annual cash flow income was $304.05. Income from interest was $473.36, and $125.94 from dividends. Principal payments on mortgages, however, are not included.
Finally, the wife from her private music teaching earned apart from her position with the school district a further sum she estimated at $1,000. The court awarded her the savings accounts and tax refund aggregating in excess of $10,000, and also all shares of stock having a total value of approximately $5,000. Much of the award to the wife was made to compensate her for her own inheritance from her parents. Respondent, however, was awarded his accounts receivable. We think this reasonable under the circumstances.
All the real property including the home, the duplex and his chiropractic office were located on a single piece of property, various portions of which were heavily but separately encumbered. The buildings were so located that they were in certain respects mutually dependent upon one another for some essential services. There was no error in awarding the real estate to the parties in equal shares.
At the time of the hearing it was necessary for the wife to complete certain educational requirements in order to maximize her permanent employability as a teacher. This required a full year's further study, which she began in September 1972 at Eugene. This required her moving, at least temporarily, to that city, which she did with the three children. At the time of the hearing she lived with them in student housing and incurred special expenses for kindergarten and child care during the year.
The trial court awarded $150 a month child support for each child and the further sum of $200 per month for her own support, making a total of $650 a month. No time limitation was placed upon the support order.
In her testimony the wife stated, concerning her need for support money:
"Q [By Mr. Schroeder, attorney for petitioner]: * * * Now, after you are able to work, after the end of the year, assuming you're able to find a job, do you believe you'll be able to support yourself?
"A Yes, and we'll all pray that I get a job because they're certainly hard to come by."
Indeed her counsel, in response to a question from the court, stated:
"MR. SCHROEDER: With that, the plaintiff rests.
"THE COURT: The thing you're talking about is you ask for $125. now you want $150. is that what
"MR. SCHROEDER: Plus $200. and then
*176 "THE COURT: Plus $200. for that year the first year
"MR. SCHROEDER: For the first year and $50. thereafter * * *."
We conclude that the award of $200 per month support money should be modified by terminating the same effective June 30, 1973, the normal end of the school year.
We turn to the child support matter. Bearing in mind that the court awarded the custody of the two older children to the father, the relative ages and the reasonable needs of all the children as well as the needs and the reasonable capacity of appellant as shown from the evidence, we conclude that the amount of child support should be reduced from $150 per month per child to $100 per month per child for the three younger children, effective also on June 30, 1973.
Finally, appellant challenges the award to the wife of $750 attorney fee. We affirm the award. The remaining assignment is without merit. ORS 107.036 (2).
Affirmed as modified.
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513 P.2d 1199 (1973)
STATE of Oregon, Respondent,
v.
French Lee MILLER, Appellant.
Court of Appeals of Oregon.
Argued and Submitted August 24, 1973.
Decided September 14, 1973.
*1200 Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant. A supplementary brief was filed by appellant French Lee Miller, pro se.
John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.
Before LANGTRY, P.J., and FORT and THORNTON, JJ.
THORNTON, Judge.
Defendant was convicted after jury trial of robbery in the second degree. ORS 164.405.[1] On appeal he contends that the trial court erred:
(1) In denying defendant's motions for a judgment of acquittal and a directed verdict; and
(2) In allowing a defense witness to refuse to testify on account of a claim of self-incrimination.
In support of his first assignment defendant asserts that the state failed to offer sufficient evidence to establish that he was aided by a second person actually present during the course of the robbery, a necessary element of the crime.
*1201 The victim of the robbery, an elderly woman, had parked her automobile in a lighted parking lot of a Portland restaurant, intending to enter the restaurant. She stepped from her car, closed the door, and was in the act of locking the car door with her key when she was grabbed from behind. She testified that her assailant threw her against the car door, struck her on the jaw with his fist, pulled her purse from her grasp and ran from the scene. She also testified that during the course of the attack she observed another young man standing across the parking lot approximately 25 feet from her, and that the second young man and her assailant ran from the scene together following the purse snatching. The victim testified that the defendant was the person who struck her with his fist and took her purse.
In passing upon denials of motions for a judgment of acquittal and a directed verdict of acquittal, this court reviews the evidence in the light most favorable to the state and will sustain the trial court's action if there is any substantial evidence to support the verdict. State v. Livingston, 2 Or. App. 587, 469 P.2d 632 (1970); State v. Nix, 7 Or. App. 383, 491 P.2d 635 (1971).
The question of whether the second person present was close enough to aid defendant, as required to constitute robbery in the second degree under ORS 164.405, was for the jury to determine.
The term "aided by another person actually present" as used in ORS 164.405 includes a person who is at hand, or within reach, sight or call, and who presents an added threat to the victim's safety. See, Proposed Oregon Criminal Code 154-57, Commentary, §§ 148 to 150 (1970).
We conclude that the jury could legitimately infer that 25 feet away across a parking lot would constitute easy access to aid the defendant, if necessary, and would be in sufficient proximity not only to present a jury question but to support the finding of the jury that defendant was aided by a second person actually present. State v. Smith, Or. App., 504 P.2d 1072 (1973).
A verdict reached under proper instructions cannot be disturbed if there is any competent evidence to support each material allegation contained in the indictment. Oregon Constitution, Art. VII (amended), § 3; State v. Broom et al., 135 Or. 641, 297 P. 340 (1931).
Defendant's second assignment is that the trial judge erred in allowing a defense witness, Susan Bliss, to refuse to testify on account of a claim of self-incrimination.
A brief explanation of the facts is necessary in order to understand this assignment.
The defense's theory was that because other persons had possession of the fruits of the robbery, including a credit card taken from the victim's purse, this was evidence that the defendant did not commit the robbery.
The evidence was that Susan Bliss was arrested, tried and convicted for forgery in connection with using the victim's stolen credit card at the Portland store which had previously issued it, and that defendant was present on at least one of the occasions when Miss Bliss attempted to use the credit card.
Since Miss Bliss still had exposure to an additional charge of theft by receiving stolen property in connection with the credit card transaction (she had pleaded guilty only to forgery), the trial judge did not err in allowing her to refuse to testify on account of her claim of possible self-incrimination.
Defendant has prepared and filed in his own behalf with our permission what he terms a "Supplemental Appellant's Brief," requesting that this court consider the "contentions" therein. A reading of this document, however, shows that it is not a brief but rather a listing of a series of events which purportedly occurred during both preliminary proceedings and the trial which defendant feels involved reversible errors. The document does not contain any page references to the transcript, does not set forth the rulings below, nor does it indicate whether the claimed errors were *1202 in fact preserved by appropriate objection. Defendant concludes his list of items with the statement that his appellate counsel, the Public Defender's office, has declined to include any of these items in the regular brief.
Rule 2.35 of the Rules of Procedure adopted by this court provides in part:
"* * * The assignments of error must be specific and must set out haec verba the pertinent portions of the record. Assignments of error which the court can consider only by searching the record for the proceedings complained of will not be considered."
It is the responsibility of the defendant, rather than the appellate court, to identify the portions of the transcript where the alleged errors may be found and examined. As stated above, "* * * [a]ssignments of error which the court can consider only by searching the record for the proceedings complained of will not be considered." Rule 2.35. See also, State v. Sluder, 1 Or. App. 457, 463 P.2d 594 (1970).
Affirmed.
NOTES
[1] ORS 164.405 provides:
"(1) A person commits the crime of robbery in the second degree if he violates ORS 164.395 and he:
"(a) Represents by word or conduct that he is armed with what purports to be a dangerous or deadly weapon; or
"(b) Is aided by another person actually present.
"(2) Robbery in the second degree is a Class B felony."
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JOHN J. MCCONNELL, JR., United States District Judge.
Plaintiff, Mario J. Carneiro, and Defendant, Sentinel Insurance Company, Limited ("Sentinel") have filed cross motions for summary judgment. For reasons set forth below, the Court DENIES Plaintiff's Motion (ECF No. 11 ) and GRANTS Defendant's Motion. ECF No. 12.
*172I. BACKGROUND
Mr. Carneiro seeks a determination that he is entitled to uninsured/underinsured motorist coverage under a commercial auto policy when he was struck by another vehicle while crossing a street as a pedestrian.
The Policy
Defendant Sentinel issued Special Multi-Flex Policy No. 02 UEC HE2975 for the Policy period of July 8, 2013 to July 8, 2014 ("the Policy") to Mario J. Carneiro, CPA Ltd ("the Company"). The Policy provides Commercial Automobile Coverage to the Company, including an endorsement providing uninsured and underinsured motorist coverage ("UM/UIM Coverage"). The Named Insured is set forth in the Declarations as the Company and the scheduled vehicle is an Audi convertible ("Company vehicle"), owned by the Company.
The UM/UIM Coverage states, in relevant part:
A. Coverage
1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle" because of:
a. "Bodily injury" sustained by an "insured" and caused by an "accident"
...
B. Who Is An Insured
If the Named Insured is designated in the Declarations as:
...
2. A partnership, limited liability company, corporation or any other form of organization, then the following are "insureds":
a. Anyone "occupying" a covered "auto" or a temporary substitute for a covered "auto"...
b. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured".
c. The Named Insured for "property damage" only.
...
F. Additional Definitions
As used in this endorsement:
...
2. "Occupying" means in, upon, getting in, on, out or off.
...
4. "Uninsured motor vehicle" means a land motor vehicle or "trailer":
...
b. Which is an underinsured motor vehicle. An underinsured motor vehicle is a land motor vehicle or "trailer" for which the sum of all liability bonds or policies at the time of an "accident" does not provide at least he amount an "insured" is legally entitled to recovery as damages;
...
d. That is a hit-and-run vehicle and neither the driver nor owner can he identified.
ECF No. 11-3, Ex. B at 29-31.
The Accident1
Mr. Carneiro was struck by a car while crossing Warren Avenue in East Providence, *173Rhode Island.2 Mr. Carneiro had left the parked Company vehicle after retrieving his office keys from inside the vehicle and was heading back to his company office when he was struck about five feet or so from the curbside. After the initial impact, Mr. Carneiro was again struck by a vehicle that never stopped and was never identified. As a result of being struck, Mr. Carneiro suffered lower leg and ankle pain and suffered a myocardial infarction.
II. STANDARD OF REVIEW
Summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed, R. Civ. P. 56(c). The Court should and will view evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. See Wilson v. Moulison N. Corp. , 639 F.3d 1, 6 (1st Cir. 2011).
III. DISCUSSION
A. Mr. Carneiro Was Not Occupying a Covered Vehicle.
While to the lay reader the term "occupying" would not encompass a person across the street from their car, the Rhode Island Supreme Court has decided that the term is to be interpreted broadly to encompass many situations. They do this because contracts for uninsured-motorist coverage must "afford protection to the insured against 'economic loss resulting from injuries sustained by reason of the negligent operation of uninsured-motorist vehicles and hit-and-run motor vehicles.' " McVicker v. Travelers Ins. Co. , 785 A.2d 550, 554 (R.I. 2001) (quoting Pin Pin H. Su v. Kemper Ins. Companies/Am. Motorists Ins. Co. , 431 A.2d 416, 419 (R.I. 1981) ). "[R]esponsible motorists who carry liability insurance should not be uncompensated when they are without recourse against an uninsured tortfeasor." Amica Mut. Ins. Co. v. Streicker , 583 A.2d 550, 553 (R.I. 1990) ; see also Henderson v. Nationwide Ins. Co. , 35 A.3d 902, 906 (R.I. 2012). "The primary object remains indemnification for an insured's loss rather than defeat of his or her claim." DiTata v. Aetna Cas. & Sur. Co. , 542 A.2d 245, 247 (R.I. 1988). UM/UIM policy provisions that "restrict coverage afforded by the uninsured-motorist statute are void as a matter of public policy." Nationwide Mut. Ins. Co. v. Viti , 850 A.2d 104, 107 (R.I. 2004) (quoting Rueschemeyer v. Liberty Mut. Ins. Co. , 673 A.2d 448, 450 (R.I. 1996) ).
To effectuate this articulated public policy and to determine how broadly to read the term "occupying," the Rhode Island Supreme Court has held that courts may consider the context of a plaintiff's accident when determining whether he was "occupying" a vehicle. Gen. Accident Ins. Co. v. Olivier , 574 A.2d 1240 (R.I. 1990) (finding that a passenger was "occupying" the vehicle for coverage purposes when she was shot and killed outside the vehicle while being interviewed by a police officer about an accident involving the car she had been riding in). The Olivier court held that a four-factor analysis should be applied in determining whether a person is "occupying" a vehicle:
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
*174(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.
574 A.2d at 1241.
The Rhode Island Supreme Court has expanded on the Olivier factors and held that the proper analysis is fact-driven, and the Olivier factors should be applied as guideposts. See Hudson v. GEICO Ins. Agency, Inc. , 161 A.3d 1150, 1157 (R.I. 2017) (noting that a plaintiff may fail to satisfy a portion of Olivier and still be determined as "occupying" an insured vehicle for coverage purposes and finding that the passenger of an insured vehicle who heard crash of an accident nearby and left her vehicle to help was occupying the covered car when injured at the accident site).
The Policy language at issue relates to inclusion of persons within the Policy. The Court thus analyzes this case with a liberal view of the Policy and with the Olivier factors in mind as a guidepost.
1. causal relation or connection
There is no evidence of a causal relation or connection between Mr. Carneiro's injury and the use of the insured vehicle. Mr. Carneiro does not claim that he had been using his car at or around the time that he was injured but had simply left his office keys in his vehicle and walked over to retrieve them. The covered vehicle acted as a vessel holding the office keys, and the accident had no relation with the operation and use of the vehicle.
2. reasonably close geographic proximity
Mr. Carneiro argues that courts have found plaintiffs who were further away from the covered vehicle than he was here were "occupying" the vehicle for coverage purposes. ECF No, 11-11 at 18 (arguing that the Hudson court found the plaintiff was "occupying" her vehicle at 97 feet away while Mr. Carneiro was injured at around 40 feet away). The Court finds that Mr. Carneiro has established that he was in "reasonably close proximity" to his vehicle.
3. vehicle oriented
Olivier distinguishes between those who are "vehicle oriented" and those who are "sidewalk oriented." 574 A.2d at 1241. Mr. Carneiro concedes that he had left the vehicle, crossed the street, and was headed toward his office. He had severed his connection with the vehicle and was "sidewalk oriented." See Hudson , 161 A.3d at 1157 (discussing cases where individuals were no longer "vehicle oriented" when they have severed connection with their vehicles or are on their own without reference to the vehicle).
4. transaction essential to the use of the vehicle
Lastly, Mr. Carneiro does not present evidence that he was engaged in a transaction essential to the use of the vehicle at the time. See Olivier , 574 A.2d at 1241. While Mr. Carneiro argues that the covered car essential to use of his business and the vehicle was "business orientated," he fails to show how his retrieval of office keys to access his office building was essential to the use of his motor vehicle.
At best, Mr. Carneiro establishes one of the four Olivier factors. With a liberal view of the Policy and using the Olivier factors as a guidepost, and considering all the facts as a whole, the Court finds that *175Mr. Carneiro was not "occupying" the covered vehicle at the time of the accident and is therefore not insured under the Policy.
B. Whether Mr. Carneiro is the "Alter Ego" of the Named Insured Company is Irrelevant.
Mr. Carneiro's argument that he is the "alter ego" of the Named Insured Company also fails. The "Who Is an Insured" section of the Policy is clear and unambiguous: The Policy states that the coverage is for a corporate entity, "Mario J. Carneiro, CPA, Ltd." Next, the Policy provides that "[i]f the Named Insured is designated in the Declarations as: ... A partnership, limited liability company, corporation or any other form of organization," then only certain individuals are afforded coverage, including those "occupying" a covered vehicle. Whether Mr. Carneiro is the "alter ego" of the Company has no bearing here as the Company remains the Named Insured and the Policy defining the insured apply.
IV. CONCLUSION
The Court thus DENIES Plaintiff's Motion for Summary Judgment (ECF No. 11 ) and GRANTS Defendant's Motion for Summary Judgment (ECF No. 12 ).
IT IS SO ORDERED.
The Court takes the facts from Mr. Carneiro's Complaint and Motion for Summary Judgment. ECF Nos. 1-1, 11.
Myrna Griffith drove the car. Mr. Carneiro sued Ms. Griffith in Providence Superior Court. According to Plaintiff's Amended Complaint in that case, Ms. Griffith has $ 50,000 in liability coverage.
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9 Wash. App. 297 (1973)
513 P.2d 89
THE STATE OF WASHINGTON, Appellant,
v.
RICHARD HULTS, Respondent.
No. 504-2.
The Court of Appeals of Washington, Division Two.
July 13, 1973.
Ronald L. Hendry, Prosecuting Attorney, and Joseph D. Mladinov, for appellant.
*298 Alan Rasmussen, for respondent (appointed counsel for appeal).
PETRIE, J.
Defendant, Richard Hults, was charged by information with unlawful possession of a dangerous drug, marijuana, with intent to sell. The information was dismissed at the conclusion of the state's evidence for failure to present a prima facie case and the state appeals. The posture of the case requires that we view the evidence and all reasonable inferences derived therefrom in the light most favorable to the state.
On Thursday, June 25, 1970, four officers attached to the Tacoma police narcotics detail began periodic surveillance of a 2-story residence on Northeast 65th Street. The house was situated in a secluded spot, set back some 300 yards from the road. Between Thursday and Sunday, the defendant was seen coming and going from the house on several occasions. On Sunday, June 28, 1970, the officers obtained a search warrant and returned to the vicinity of the residence. Before approaching the house, the four officers observed the defendant, accompanied by another person, drive up to the house in an older model Cadillac. Two of the officers went to the back door of the house and were admitted by one Carlton Gunther. The other two officers went to the front of the house. Defendant, another man and a woman were on a sun deck, outside the house. All parties proceeded into the house, the warrant was read to the assembled group and the officers began their search of the premises.
The search of the house resulted in the discovery of a large quantity of suspected marijuana. The substance discovered was individually packaged in separate 2.2 pound quantities, and each "kilo" was similarly wrapped in foil. An open cardboard box was found in a bedroom on the first floor. This box contained 33 kilos. Exhibit No. 1. Among some camping gear in the basement, a duffel bag was found with 7 kilos. Exhibit No. 4. A single, opened kilo was discovered in a dresser drawer in an upstairs bedroom. In the *299 headboard of the bed in the same bedroom a handbook on marijuana was also found. In addition, two live potted plants resembling marijuana were seized from the sun deck. Defendant was found to have $1,600 in cash on his person. The officers testified that sales of marijuana were cash transactions almost without exception, and that a kilo of marijuana was worth between $140 and $200.
The search further revealed defendant's Corvette automobile and defendant's motorcycle parked in the basement garage. The basement of the house had been set up for band rehearsal and a number of instruments were discovered. Moreover, defendant was known to be a musician; a guitar and case, which he admitted owning, were found somewhere in the house.
Correspondence addressed to various individuals at the 65th Street house was also discovered. Detective White found "some papers with Rick Hults' name on them in the dining room area." Three pieces were introduced in evidence by the state: (1) a bank statement, postmarked May 7, 1970, addressed to defendant; (2) a bill for repairs to a Corvette, postmarked June 1, 1970, addressed to defendant; and (3) a garbage bill for the house, covering the months of April, May and June, 1970, postmarked June 2, 1970, addressed to Doug Taylor. Detective Six found some two hundred to three hundred pieces of paper in one of the two dressers of the upstairs bedroom in which the marijuana was found. He testified that he saw Mr. Hults' name on approximately 40 of the "letters, bills, so forth." He saw no other name on the other bits of correspondence.
Subsequent to the search of the house, the individual kilos found in the duffel bag and cardboard box were checked for fingerprints. Seven latent prints were found, of which three were identifiable. The state offered to show that the identifiable prints belonged to defendant and were recovered from two, possibly three, different kilos. The fingerprint expert, however, had not kept record of precisely where the prints came from and could only testify that they were lifted either from kilos in the duffel bag (exhibit *300 4) or the cardboard box (exhibit 1) or both. The kilo found in the upstairs bedroom was excluded as a source of the prints. The trial court refused the state's offer of proof.
After the police fingerprinted the kilos, they were taken to the drug analysis unit, where random samples from the cardboard box and from the kilo found in the upstairs bedroom were analyzed and found to be marijuana. Moreover, during the trial, two randomly selected samples from the duffel bag were examined and found to contain marijuana. The trial court admitted only those kilos from which samples had been analyzed. All other kilos were rejected. None of the state's witnesses could testify that any kilo admitted into evidence was one from which a latent identifiable fingerprint had been lifted.
[1] The state first assigns error to the trial court's granting of defendant's motion to dismiss at the close of the prosecution's case. It contends that sufficient evidence of possession of marijuana was introduced to warrant submission of that issue to the jury. The state concedes that defendant did not have marijuana on his person at the time of his arrest. No serious issue of actual possession is presented by this appeal. The defendant's access and proximity to the cache of marijuana and his fingerprints on two or three of the kilos is totally insufficient to establish actual possession. State v. Callahan, 77 Wash. 2d 27, 459 P.2d 400 (1969). We turn, therefore, to consideration of whether or not the state has presented sufficient evidence from which a jury could infer the defendant was constructively in possession of marijuana.
[2, 3] In order to establish that defendant had constructive possession of the drugs it is essential to prove that he exercised dominion and control over the premises at the time of the search. State v. Callahan, supra. The state's evidence that the defendant was in constructive possession of the marijuana was entirely circumstantial. There was no direct testimony that defendant resided in the house. The scope of our review is limited, therefore, "to a determination of whether the state has produced substantial evidence *301 tending to establish circumstances from which the jury could reasonably infer the fact to be proved." State v. Dugger, 75 Wash. 2d 689, 690, 453 P.2d 655 (1969). If that quantum of evidence exists then there is some proof of this element and its weight becomes a question for the jury. State v. Randecker, 79 Wash. 2d 512, 487 P.2d 1295 (1971).
The officers testified that they observed the defendant coming and going from the residence on the 3 days prior to the search. No personal clothing or toilet articles identifiable as belonging to the defendant were found inside the house, but such items are not readily amenable to individual identity. However, the officers did find his car, motorcycle, and musical instrument on the premises. On the day of the search, he drove to the premises in a third motor vehicle. In addition, many items of personal correspondence belonging to defendant were found in a chest of drawers in an upstairs bedroom. A search of the same chest of drawers also produced a kilo[1] of marijuana.
Two items of correspondence found in the dining area, addressed to defendant, were introduced into evidence. One was a repair bill for a Corvette automobile, inferentially the same car found parked in the basement. The other was a bank statement with one check enclosed. The check was dated over 3 months before the search and had defendant's name and the 65th Street address preprinted on its face. The bank statement was postmarked May 7, 1970, more than a month before the search. Assuming bank statements are mailed monthly, it would not necessarily have been the last statement sent prior to the search. The third item of correspondence introduced as evidence indicated that someone other than the defendant was the party to whom the garbage collectors looked primarily for payment of garbage bills.
*302 The fingerprint evidence, assuming its admissibility, while it may be insufficient to support actual possession, at the very least indicated that the defendant had some knowledge of the presence in the house of several foil-wrapped kilos. The handbook on marijuana, found in the headboard of the bed in the upstairs bedroom, indicated that the person or persons who occupied the bed at least had some passing interest in the subject. The rather large amount of cash found on the defendant's person at the time of arrest, while not overly significant, was at least consistent with what might be expected of a person who traffics in drugs.
[4] Viewing this evidence in a light most favorable to the state, there is clearly substantial evidence from which the jury could reasonably conclude that at some time recently prior to the search, the defendant held out the 65th Street house as his residence and had formed a more or less permanent attachment to it. Most clearly, it can be said that he had dominion and control over the upstairs bedroom. Further, the jury could reasonably conclude that at some time in the recent past he had general access and use of the entire premises. Given the relatively brief time span from the dates on the correspondence to the date of search, the continuing presence of the correspondence, and the presence of two of the defendant's motor vehicles, it would seem quite reasonable to infer that the residency continued. The fact that we may conclude the evidence in some respects is unconvincing to establish dominion and control, or hard to reconcile with other conflicting evidence, does not detract from the fact that a jury question is nonetheless presented. State v. Lewis, 55 Wash. 2d 665, 349 P.2d 438 (1960). No item of evidence, standing alone, is sufficient to establish defendant's dominion and control over the premises in this case. Cumulatively, however, the evidence is sufficient to create an issue of fact as to whether the defendant exercised dominion and control, partially or wholly, over the residence in question at the time of the *303 search. It was, therefore, error to dismiss the information at the close of the state's evidence.
Because a new trial is necessitated by our holding, we must consider the state's two remaining assignments of error in the event the questions may again be posed upon retrial.
The state assigns error to the exclusion by the trial court of all packages contained in exhibits 1 and 4, which were not specifically tested and found to contain marijuana. However, random samples were taken from four packages in exhibit 1, and two from exhibit 4. All samples tested were found to be marijuana. The court ruled that the quantity admitted was far in excess of the minimum needed to prove possession with intent to sell, and that the defendant would be unduly prejudiced by the admission of the additional kilos. The state contends that all items in these exhibits should have been admitted because it was reasonable to infer that all packages (similar in appearance and randomly selected) contained the same substance as those already tested.
[5] Evidence material to any issue, if under no excluding disability, is admissible. Any competent evidence tending logically to prove the commission of a crime or the defendant's connection with it, is deemed material to the state's case. State v. Gersvold, 66 Wash. 2d 900, 406 P.2d 318 (1965). Relevancy the logical proof tending toward a fact is furnished when competent evidence establishes that the sample, randomly selected from among similar items, identifies the fact. Materiality is established when proof of that fact is a material issue in the case. Admissibility follows unless the evidence is under some excluding disability.
[6] The excluded foil-wrapped packages, after random samples established the identity of the contraband, are certainly material to one of the major issues to be proved in this case. Ordinarily, they should be admitted. Whether or not the other kilos in these exhibits fall under the excluding disability of cumulative evidence unnecessarily prejudicial *304 to the defendant is usually a matter which rests in the sound discretion of the trial court. The state is entitled to strike a hard blow, but not an unfair blow. The extent to which cumulative evidence unnecessarily prejudices a defendant is a matter best left to the sound discretion of the trial court. Upon retrial, the trial court will undoubtedly exercise its own discretion depending upon the manner in which the issue is presented to it.
Finally, error is assigned to the refusal by the trial court to admit fingerprint evidence lifted from at least two of the marijuana bricks. The state was unable to show from which exhibit the prints were lifted. Exhibit 1 contained 33 kilos and exhibit 4 contained 7 kilos. The state could only show that the fingerprints were lifted from more than one of the packages. Whether defendant's prints were found entirely on one exhibit or on both was unknown. It should be remembered that exhibit 1 was found in the main floor bedroom; exhibit 4 was found in the basement. No identifiable prints were lifted from the single kilo found in the upstairs bedroom.
Measured by the test of admissibility set forth above, we find no reason for refusing to admit the conclusions of a properly qualified expert as to the identity of the person whose fingers match the latent prints lifted from the two exhibits. The evidence would have established the defendant's knowledge of what was in the main floor bedroom and in the basement. The officer whose conclusions were rejected should have been allowed to relate them to the jury.
Judgment reversed and remanded for new trial.
ARMSTRONG, J., concurs.
PEARSON, C.J. (dissenting)
It is my opinion that the learned trial judge properly exercised his discretion in dismissing the charges against defendant. Accordingly, I dissent.
I do agree with the following holdings of the majority:
(1) Actual possession of the marijuana by defendant *305 was not established as a matter of law. The case of State v. Callahan, 77 Wash. 2d 27, 459 P.2d 400 (1969) compels such a conclusion.
(2) It was within the broad discretion of the trial court to exclude the many packages of alleged marijuana, the contents of which had not been tested, for the reasons stated by the majority.
However, I depart from the conclusion of my colleagues that the fingerprint evidence was proper, since the state failed to prove specifically that the contents of the packages which bore the defendant's fingerprints contained marijuana.
A broad discretion rests in the trial court with reference to the admission of this type of evidence, and particularly should this be so where there is a defect in either the identification of the evidence or a defect in the chain of evidence. I would hesitate to find an abuse of discretion in the face of an almost unbelievably careless job done by the police in failing to keep track of the tested packages, or of the location where the tested packages were found on the premises, and in failing to test the packages containing the fingerprints or to identify the locus of those packages.
The broad discretion which the trial court has in this area of criminal jurisprudence was discussed in State v. Brooks, 3 Wash. App. 769, 479 P.2d 544 (1970) and State v. Golladay, 78 Wash. 2d 121, 470 P.2d 191 (1970). Under the principles of those cases, I do not find an abuse of discretion in this case.
However, even if it were assumed that the fingerprint evidence should have been allowed, I still would agree with the trial court that the state failed to make a prima facie case that defendant had dominion and control over the premises in which the marijuana was found. In my opinion, the evidence that defendant had handled one or more of these packages is no more probative of constructive possession than it would be of actual possession. State v. Callahan, supra. The momentary handling principle discussed in Callahan should apply with equal force to a case grounded *306 in constructive possession as it does in actual possession. For this reason the error, if any, in excluding the fingerprint evidence was harmless.
Where I must substantially depart from the majority opinion is its holding that the state made a prima facie case that defendant had dominion and control of the premises where the marijuana was found.
My disagreement with the majority stems from its assumption that circumstantial evidence pointing to the fact that defendant may have previously occupied the premises, coupled with circumstantial evidence of his present occupancy, represents a sufficient prima facie showing that he had dominion and control of the home.
This assumption is faulty, in my opinion. In State v. Callahan, supra, the defendant (1) admitted actual occupancy of the houseboat at the time of his arrest and for 2 or 3 days prior to that time, (2) admitted that he knew the drugs were there, (3) admitted that his personal property was there, (4) admitted that he had handled the drugs, and (5) was within a few feet of the drugs at the time they were discovered.
If the evidence of actual occupancy shown in Callahan is insufficient in law to establish dominion and control, then the circumstantial evidence pointing to defendant's occupancy of the premises in this case is clearly insufficient to prima facie establish his dominion and control of the premises.
In the case at bar, there is not one shred of evidence that defendant had any "legal" connection with the premises, other than as a past occupant, or at the time of the search as a musician who rehearsed at the premises with his group. Furthermore, the current utility bill for the premises covering the month in which the search and arrest occurred was posted to one "Doug Taylor."
As in Callahan, there was no testimony that defendant was a tenant, nor that he participated in paying the rent or maintained the place as his residence. There was no testimony that he ever remained at the premises overnight.
*307 Furthermore, all of the cases considered by the Supreme Court and discussed in Callahan, where constructive possession was allowed, have involved proof of some "legal" connection to the premises, such as tenancy, or have involved evidence of residency tantamount to tenancy.[2] Such has also been the thrust of prior decisions of this court. State v. Tretton, 1 Wash. App. 607, 464 P.2d 438 (1969); State v. Werry, 6 Wash. App. 540, 494 P.2d 1002 (1972). Such an application of the constructive possession rule is, I think, entirely proper and necessary to insure against miscarriage of justice.
There are today many instances of young people entering into loose living arrangements, particularly around colleges and universities. Short-time occupancies occur with sufficient frequency that I am loath to permit strained inferences of dominion and control from such types of occupancies.
To impute, or allow juries to find, dominion and control so as to establish constructive possession on the paucity of evidence presented in this case would, in my opinion, unduly threaten innocent persons with drug charges properly attributable to others. I believe this to be the real thrust of Callahan, a thrust with which I agree.
I would restrict application of the constructive possession theory to those instances in which (1) a tenancy is established, (2) a permanent type of residency indicative of a tenancy is established, or (3) where dominion and control may reasonably be inferred from circumstances other than occupancy alone. Since none of these factors was established prima facie, I think the trial court was correct in dismissing the information.
I have another reason for my view. The constructive possession theory of criminality is not strictly a factual theory. Instead, it is partly a legal fiction which is utilized *308 to impose criminality on those who are shown to have a sufficiently close "legal" connection to the locus where drugs are found, which, for policy reasons, should be considered the legal equivalent of actual possession. Its application should, therefore, be cautiously and strictly considered, so that miscarriages of justice are not likely to occur. Under these circumstances, I think the trial court should have some discretion, which strict application of the circumstantial evidence rule enunciated in State v. Randecker, 79 Wash. 2d 512, 487 P.2d 1295 (1971) does not allow, to determine whether the "legal" connection of defendant to the locus is sufficiently shown so as to prevent a possible miscarriage of justice.
I am in complete agreement with the statement of the Supreme Court in State v. Golladay, supra, citing with approval at page 130 from State v. Weaver, 60 Wash. 2d 87, 88, 371 P.2d 1006 (1962): "While a conviction may be sustained solely on circumstantial evidence, the circumstances proved must be unequivocal and inconsistent with innocence." (Footnote omitted.)
For these reasons, and because there was not one shred of evidence, circumstantial or otherwise, which bore directly or indirectly on defendant's control of the premises as distinguished from his occupancy, I would affirm the judgment of dismissal.
NOTES
[1] It should be noted that possession of 40 grams or more of marijuana would have supported the charge against the defendant. RCW 69.40.090, subsequently repealed by Laws of 1971, 1st Ex. Sess., ch. 308, § 69.50.606.
[2] Possession of the key to the premises was held sufficient in State v. Mantell, 71 Wash. 2d 768, 430 P.2d 980 (1967), but there was also direct evidence that defendant was participating in preparation of drugs for sale.
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563 S.E.2d 917 (2002)
254 Ga. App. 845
KNIGHTON
v.
The STATE.
No. A02A0515.
Court of Appeals of Georgia.
April 10, 2002.
*918 Henry A. Hibbert, for appellant.
Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., for appellee.
BLACKBURN, Chief Judge.
Following a jury trial, John Knighton appeals his convictions for rape, aggravated assault, aggravated sodomy, possession of a weapon during a crime, and terroristic threats, contending that, because he was not properly informed of his Miranda rights, evidence derived from the search of his home and several self-incriminating statements he made were improperly admitted into evidence. For the reasons set forth below, we affirm.
Viewed in the light most favorable to the verdict, the record shows that, on the evening of May 26, 1998, the victim stopped by an auto parts store where Knighton worked as she was walking to a friend's house. It was hot that night, and the victim asked Knighton if she could have a glass of water. Knighton took her inside the building, where he lived in several back rooms, gave her water, and pulled a gun on her when she tried to leave. Knighton then held the victim against her will, put handcuffs on her wrists and ankles, and raped her repeatedly for two days. On the second day of her captivity, the victim, still naked and handcuffed, managed to escape through a window into a locked and fenced lot of junked cars adjacent to the auto parts store. There, she climbed on top of one of the cars to avoid being mauled by guard dogs handled by Knighton and screamed for help.
Police arrived at the scene, restrained the guard dogs, and released the victim. Shortly thereafter, Knighton arrived at the scene, and he was immediately approached by Officer William Ricker. Officer Ricker patted Knighton down for weapons, and Knighton spontaneously told Officer Ricker that they would need his keys to get inside the gate. He also told Officer Ricker that if he was not stopped someone would end up getting hurt. Officer Ricker then secured Knighton in the back of his patrol car, but he did not ask Knighton any questions about the victim or the rape.
Officer Ricker next informed Detective Paradise, a member of the sex crimes unit, that Knighton was on the scene, and Detective Paradise got into Officer Ricker's car and sat in the backseat where Knighton was still detained. Knighton immediately told Detective Paradise, without prompting, that he wanted to get caught and that he had gone too far this time. Detective Paradise *919 then informed Knighton of his Miranda rights. Although she did not read these rights verbatim off of a card, Detective Paradise informed Knighton that she was not his friend, that he was better off if he "shut up" until he could talk to an attorney, that she would use anything he said against him, that he had a right to an attorney, and that, if he could not afford one, one would be provided for him. When Detective Paradise told Knighton that he was entitled to an attorney, he responded that he needed a psychiatrist because he was sick.
Subsequently, Knighton voluntarily led the police into his home, showed them where he had hidden the victim's clothes, and led them to the rooms where he had held the victim hostage. The victim positively identified Knighton as her assailant both at the scene and in court. The evidence shows that Knighton remained lucid throughout his encounter with the police, and he was not under the influence of either drugs or alcohol.
Knighton now contends that his incriminating statements and the subsequent search were improper and inadmissible because he was not properly informed of his Miranda rights. Knighton's main contention is that his right to remain silent was not properly explained to him. We disagree.
As an initial matter, the incriminating statements made by Knighton at the scene were not subject to Miranda, as they were voluntarily made and were not in response to interrogation by police.
Miranda warnings are required to protect a suspect being interrogated in police custody. The State is not required to show that Miranda warnings were given before introducing evidence of a custodial statement which was not obtained through interrogation but was volunteered by the suspect. Accordingly, the issue is whether the custodial statement[s] made by [Knighton] without the benefit of Miranda warnings [were] admissible as ... volunteered statement[s] or should have been excluded as ... statement[s] obtained through police interrogation.
(Citations omitted.) Kennedy v. State.[1] As the statements at issue here were blurted out by Knighton before any questioning began, Miranda simply is not applicable to them, and they were properly admitted into evidence.
Moreover, the Miranda warnings which were given to Knighton following these statements were adequate. The transcript shows that, although the police did not use the exact language which Knighton propounds as necessary for his Miranda warnings, he was sufficiently informed of his rights. Specifically, Knighton argues that he was not adequately apprised of his right to remain silent. To the contrary, Detective Paradise went even further in this case, affirmatively warning Knighton not only that he did not have to talk to her, but also that he would be better off saying nothing to her. See generally Osborne v. State.[2]
While Detective Paradise's warnings were sufficient in this case, we note, however, that the better practice would have been to administer the Miranda warnings by reading them from the Miranda cards carried by most police officers. By doing so, questions such as the ones raised in this appeal may be circumvented.
Judgment affirmed.
JOHNSON, P.J., and MILLER, J., concur.
NOTES
[1] Kennedy v. State, 246 Ga.App. 236, 237(2), 540 S.E.2d 229 (2000).
[2] Osborne v. State, 263 Ga. 214, 430 S.E.2d 576 (1993).
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165 Ga. App. 280 (1983)
300 S.E.2d 319
SKINNER
v.
COLEMAN-NINCIC UROLOGY CLINIC, P. A. et al.
65090.
Court of Appeals of Georgia.
Decided February 1, 1983.
Joseph C. Rary, Robert P. Hoyt, for appellant.
Robert M. Tanner, for appellees.
BIRDSONG, Judge.
This is a continuation of Skinner v. Coleman-Nincic Urology Clinic, P. A., 156 Ga. App. 638 (275 SE2d 724). In the above styled case, this court reversed in part and affirmed in part the grant of summary judgment to the medical defendants. The judgment granting summary judgment in favor of Doctors Memorial Hospital was therein affirmed, and it is no longer a defendant in this case. It was also held that expert opinion presented by the defendant doctors established "the absence of negligence with respect to the selection and placement of [a] catheter [with reference to an operation for the removal of a kidney stone located in the plaintiff's left ureter]." Skinner, supra, p. 639. However, it was held that all acts of negligence alleged in the complaint were not eliminated and an issue of fact remained as to whether defendant doctors were negligent in the treatment of plaintiff with reference to the removal of the catheter four weeks after the operation and also "in failing to properly monitor the location of the catheter and in failing to remove it until ... a month after surgery." No medical testimony had been presented establishing whether the defendant doctors' post-operative treatment of plaintiff "was in compliance with the `standard (that) should be ... exercised by the medical community generally.' Slack v. Moorhead, 152 Ga. App. 68, 71 (262 SE2d 186)." Skinner, supra, p. 640.
On remittitur the case proceeded to trial. At the conclusion of plaintiff's evidence, the remaining defendants moved for directed verdict on all issues. The trial court reserved ruling on this motion and allowed the case to be submitted to the jury. A verdict was then returned by the jury in the amount of $6,500 ($564 hospital bill, $1,556 loss of work, and $4,380 punitive damages, charged to pain and suffering). Whereupon, the court announced its intention to direct the verdict on all issues and instructed counsel for the defendants to *281 prepare an order to this effect setting forth that the jury had returned a verdict for $6,500 against defendant Dr. Coleman only (who performed the surgery) and said verdict was set aside as the court granted the motion for directed verdict to all defendants. Judgment was entered accordingly, and the plaintiff appeals. Held:
1. Slack v. Moorhead, 152 Ga. App. 68, 71, supra, requires the courts of this state, in medical malpractice negligence cases, to presume that a physician performs his skills in the medical and surgical fields in a skillful manner, citing Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552). Hence, the burden is on the plaintiff to show a lack of due care, skill, and diligence in such cases. See Akridge v. Noble, 114 Ga. 949, 958-960 (41 SE 78); Fincher v. Davis, 27 Ga. App. 494 (2) (108 SE 905). At p. 71, the Slack case, supra, sets forth that "the proof ordinarily required to overcome such presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses," citing Howell v. Jackson, 65 Ga. App. 422 (16 SE2d 45). Thus, to establish medical negligence the evidence presented by a plaintiff patient must show a violation of the degree of care and skill required of a physician as set forth in Code Ann. § 84-924 (now OCGA § 51-1-27, effective November 1, 1982) by failing to exercise a reasonable degree of care and skill, that is, the practitioner failed to provide such standard of care as that which under similar conditions and like circumstances is ordinarily employed by the medical profession generally. See Kenney v. Piedmont Hospital, 136 Ga. App. 660, 664 (222 SE2d 162), and cases cited; Slack v. Moorhead, 152 Ga. App. 68, 71, supra. In the case sub judice, there is no evidence that the defendant Dr. Coleman in the operation for the removal of the kidney stone or the removal of the splinting catheter which had been left in plaintiff's body for four weeks after the operation had in any wise failed to use a reasonable degree of care and skill as required by the above law in performing these operations.
However, the evidence does give rise to an issue involving Dr. Coleman's post-operative treatment with reference to the time during which the catheter (a foreign body) was left in his body following the first operation. The theory of plaintiff's case is based on his injuries resulting therefrom, special damages for the extra period of hospitalization ($564) time lost from work ($1,556) and his pain and suffering ($4,380). These alleged damages all depend upon the defendant doctor's alleged negligence in failing to advise Mr. Skinner of the implanting of a catheter, to properly monitor the location of the catheter and failing to remove it until a month after surgery.
The evidence established the accepted standard of medical care prevailing in the general medical community required that the patient be told that a tube has been left in him before he has been sent *282 home following such operation. The commonly accepted standard of medical practice in the general medical community with reference to the time that a splinting catheter could be left in a patient's body was shown to be "from one week to six weeks or over," and normally a catheter of this type is best removed when "it was straight up and down in the ureter so that you just grasp the end of it and pull it out than it would be to try and grasp it curled up in the bladder" (the splinting catheter having descended in this case to the bladder requiring that it be removed therefrom after its migration from the ureter). The generally accepted medical practice with regard to the checking on the position of the tube is by X-ray. It was also shown that the hospital record post-operative orders following the first operation made no mention of the presence of the foreign body (the splinting catheter) as having been left in the patient. No X-ray was taken of the patient during the period of his convalescence until the day the splinting catheter was removed. Skinner's testimony is that Dr. Coleman had forgotten about the catheter left in his body and same had migrated to the bladder causing him damage as established. He contends that if Coleman had properly X-rayed to ascertain the position of the tube and removed it earlier he would not have been subjected to the intense pain and suffering, the further hospitalization and loss of work that he experienced. The jury apparently accepted Skinner's contention in that the verdict for $6,500 was based on these items of general damages.
This court is bound by the rule that only where there is no conflict in the evidence, and a verdict for the winning party is demanded as a matter of law is a directed verdict proper. State Farm Mut. Auto. Ins. Co. v. Snyder, 125 Ga. App. 352 (187 SE2d 878). Furthermore, evidence in cases of directed verdicts must be construed most favorably toward the party opposing the motion. Nationwide Mut. Ins. Co. v. Ware, 140 Ga. App. 660, 664 (231 SE2d 556).
Mr. Skinner's evidence (offered by one of the appellee doctors) authorized a jury to conclude the accepted standard of medical care prevailing in the general medical community, requires a patient be told that a tube has been left in his body before he has been sent home following such operation. In this case the jury could believe such information was not communicated to Mr. Skinner. Thus, Mr. Skinner was unaware that the inception of pain in his bladder and blood in his urine might be the result of the catheter left in his body migrating to his bladder (a recognized risk) rather than the diminishing residuals of urinary tract procedures. The jury was warranted in concluding that the treating physician simply forgot the placement of the catheter in the canal and made it impossible for his *283 patient to remind the doctor that the beginning discomfort might be the product either of the catheter causing festering or migrating to the bladder (since Skinner was ignorant of the fact). Because the symptoms at first were not severe, Dr. Coleman delayed an X-ray until the symptoms exacerbated, the condition deteriorated and surgical procedure was required to remedy the mistake.
Though the period of time the catheter was left in Skinner's body was not excessive, the conclusion is ineluctable that the physician failed to follow usual medical procedure by not informing his patient that a tube was in the patient's body, and it was this lack of communication together with the forgetfulness of the doctor that allowed sufficient time to elapse to suffer the complete migration of the catheter to the bladder. We conclude the jury could have and apparently did determine this was the primary causation of the subsequent operative costs, loss of wages, and pain and suffering. Inasmuch as the verdict in favor of the treating physician was not demanded and indeed the evidence supports the verdict of the jury, the trial court erred in directing the verdict in favor of Dr. Coleman. This case is returned to the trial court for action consistent with this opinion.
Judgment reversed. McMurray, P. J., and Banke, J., concur.
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278 S.C. 572 (1982)
300 S.E.2d 63
The STATE, Respondent,
v.
H. Wesley COPELAND and Sammy David Roberts, Appellants.
21808
Supreme Court of South Carolina.
November 10, 1982.
*573 *574 *575 *576 John L. Sweeny, David W. Carpenter, Tara D. Shurling, S.C. Com'n of Appellate Defense, David I. Bruck, Columbia, Peter F. Them, II, John G. Frampton, Summerville, for appellants.
Atty. Gen. Daniel R. McLeod, Sr. Asst. Atty. Gen. Brian P. Gibbes, Asst. Atty. Gen. Lindy P. Funkhouser, Columbia, Sol. Charles M. Condon, Charleston, for respondent.
Nov. 10, 1982.
GREGORY, Justice:
Appellants Wesley Copeland and Sammy Roberts were convicted of armed robbery, kidnapping, and murder. Both received sentences of twenty-five years, life, and death for the respective offenses. They appeal, asserting numerous exceptions. We consolidate their appeals with our mandatory review pursuant to S.C. Code Ann. § 16-3-25 (Cum. Supp. 1981). We vacate their life sentences for kidnapping, and otherwise affirm.
Sometime around midnight, June 18, 1980, Bill Spain and Butch Krause were closing for the night the service station where they worked. They were robbed of One Thousand Ninety-Six and 03/100 ($1,096.03) Dollars, taken from the station in North Charleston to a secluded spot in Berkeley County, and shot to death. In the early morning hours of June 19, 1980, Louis Cakley, a service station attendant in Moncks Corner was robbed of Four Hundred Twenty-Six and 11/100 *577 ($426.11) Dollars, taken to another secluded spot in Berkeley County, and shot to death.
The bodies of the three men were found several days after the murders. Investigations began immediately and continued for several months. On October 24, 1980, upon information given to the authorities by Danny Ray Coker, an accomplice in these crimes, appellants were arrested for the armed robbery, kidnapping, and murder of the three men. Coker was granted immunity from prosecution in exchange for his testimony.
First, appellants challenge the constitutionality of the South Carolina death penalty statutes. We held these statutes constitutional in State v. Linder, 276 S.C. 304, 278 S.E. (2d) 335 (1981) and State v. Goolsby, 275 S.C. 110, 268 S.E. (2d) 31 (1980), cert. denied, 449 U.S. 1037, 101 S.Ct. 616, 66 L.Ed. (2d) 500 (1981).
Next, appellants contend imposition of the death penalty for the crime of murder while in the commission of kidnapping violates the Eighth Amendment prohibition against arbitrary infliction of the death penalty because the statutory definition of kidnapping is overbroad and ambiguous. We held in State v. Plath, 277 S.C. 126, 284 S.E. (2d) 221 (1981) and State v. Smith, 275 S.C. 164, 165, 268 S.E. (2d) 276 (1980), the kidnapping statute is constitutional, not overbroad and ambiguous. This exception is without merit.
Appellant Roberts argues it is unconstitutional to sentence a person to death without finding that he caused or intended another's death. He contends this offends both the Eight Amendment mandate that any decision to impose the death penalty be based on reason rather than caprice and the Cruel and Unusual Punishment Clause of the Eighth Amendment.
Recently, the U.S. Supreme Court reversed a Florida Supreme Court judgment upholding the death penalty because there was no proof the codefendant killed, attempted to kill, intended or contemplated that life would be taken. Enmund v. Florida, __ U.S. __, 102 S.Ct. 3368, 73 L.Ed. (2d) 1140 (1982).
We think imposition of the death penalty in this case does not offend the standards set out in Enmund, supra. The evidence is clearly sufficient to justify the death penalty. It *578 shows Roberts did, in fact, cause Cakley's death, and, while not the triggerman in the two earlier murders, he was present the entire time the crimes were committed, and he held a gun on at least one of the two victims and forced him to lay on the ground whereupon both men were shot to death. Roberts cannot seriously contend that he did not intend or contemplate that life would be taken.
We do not find the jury's recommendation to be the result of passion, prejudice, or any other arbitrary factor, nor do we find imposition of the death penalty unconstitutional in Robert's case.
Next, appellants argue the trial judge erred in refusing to change venue to another county.
A change of venue is addressed to the judicial discretion of the trial judge, and his decision will not be disturbed absent a showing of an abuse of that discretion. State v. Valenti, 265 S.C. 380, 218 S.E. (2d) 726 (1975). Where the trial judge bases his ruling on adequate voir dire examination of the jurors, his conclusion that the objectivity of the jury panel has not been polluted with outside influence will not be disturbed absent extraordinary circumstances. State v. Fowler, 266 S.C. 203, 222 S.E. (2d) 497 (1976); State v. Crowe, 258 S.C. 258, 188 S.E. (2d) 379, cert. den., 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed. (2d) 666 (1972).
State v. Neeley, 271 S.C. 33, 244 S.E. (2d) 522, 524 (1977). Appellants must prove actual juror prejudice. State v. Plath, supra; State v. Goolsby, supra; State v. Tyner, 273 S.C. 646, 258 S.E. (2d) 559 (1979). The record shows maximum precaution by the trial judge to ensure elimination of veniremen who may have been prejudiced by pretrial publicity and the absence of prejudice on the part of the jurors. Appellants' motions for change of venue were properly denied.
Next, appellants argue the trial court erred in denying their motions for continuance. A motion for continuance is addressed to the sound discretion of the trial judge and his ruling thereon will not be disturbed absent a showing of abuse of discretion. State v. Brooks, 271 S.C. 355, 247 S.E. (2d) 436 (1978). We find no abuse of discretion on the part of the trial judge.
*579 Appellants further argue the trial court erred in disqualifying jurors who oppose the death penalty. This issue was resolved adversely to appellants in State v. Hyman, 276 S.C. 559, 281 S.E. (2d) 209 (1981); State v. Linder, supra; State v. Goolsby, supra; State v. Tyner, supra.
Next, appellants argue the trial court erred in disqualifying Anthony Gadsden, a member of the venire, because of his strong feelings against the death penalty where the record did not show he was irrevocably committed to vote against imposition of the death penalty. The questioning process of Mr. Gadsden, viewed in its entirety, clearly demonstrates his unwillingness to vote for the death penalty. The questioning process was consistent with the standards established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. (2d) 776 (1968). Thus, the trial court did not err in disqualifying Mr. Gadsden for cause.
Appellants next argue the trial court erred in qualifying a venireman who indicated he would impose the death penalty in every case of aggravated murder. The questioning process of this venireman clearly demonstrates he would not impose the death penalty in every case of aggravated murder, but would follow the trial court's instructions and bring in a life sentence if he thought it was proper. This exception is meritless.
Appellants argue the solicitor's closing argument at the first phase of the trial was improper. In his closing argument, the solicitor stated, "[Danny Ray Coker] is going to prison for at least I submit to you for somewhere around twenty years." Allegedly, this statement is not supported by evidence established at trial and attempts to bolster the credibility of the State's key witness by distracting the minds of the jurors from the fact that Coker received complete immunity from prosecution in exchange for his testimony.
Throughout the record is testimony that Coker will be sentenced to one-twenty (1-20) years for various crimes he committed in Sumter. We do not see how the fact that Coker will be sentenced for other crimes he committed could in any way bolster his credibility. In addition, the solicitor discusses the immunity agreement with Coker in the next paragraph of his argument. Thus, rather than distracting the minds of the jurors from the fact that Coker is receiving *580 complete immunity from prosecution for his part in these murders, the solicitor calls this fact to their minds.
The trial judge has wide discretion in dealing with the range and propriety of the solicitor's argument to the jury, and ordinarily his rulings on such matters will not be disturbed. State v. Durden, 264 S.C. 86, 212 S.E. (2d) 587 (1975). We find no error.
Next, appellant, Copeland argues the trial judge improperly commented on the facts during his instruction on the law concerning the presumption of innocence, and thereby injected his opinion thereof. The instruction complained of is as follows:
The presumption of innocence accompanies the defendant throughout the trial of this case and, when you go to the jury room to deliberate, it follows the defendant there with you and it entitles him to a verdict of not guilty at your hands until such time as you are convinced that the State of South Carolina has proven to your satisfaction that the defendant is guilty beyond a reasonable doubt. And if the state has satisfied you of the defendant's guilt beyond a reasonable doubt, then that presumption of innocence disappears; and you would write a verdict that speaks the truth of this controversy. (Emphasis added.)
No reasonable interpretation of this portion of the trial judge's charge can result in the conclusion that he commented on the facts and injected his opinion as to the guilt of appellant. This exception is frivolous and without merit.
Appellants next argue the trial judge erred in defining reasonable doubt as "a doubt that is well founded in reason" and "a substantial doubt." The trial judge's definition of reasonable doubt is well within the guidelines set by this Court. State v. Butler, S.C. 290 S.E. (2d) 1 (1982); State v. Griffin, S.C. 285 S.E. (2d) 631 (1981). There is no error.
Appellant Copeland argues the trial judge erred in refusing to instruct the jury that their sentencing recommendation would be binding upon the trial judge. We resolved this issue in State v. Linder, supra, 278 S.E. (2d) at 338-339.
Use of the word "recommend" by the trial judge or solicitor is not per se suspect. Under the statute "recommendation" *581 is the term applied to the jury's function at this phase of the trial. To instruct the jury that it will recommend what sentence the convicted murderer will be given is not improper and does not mask the true nature of the jurors' responsibility at this phase of the trial.
We find no error.
Appellants argue the trial court erred in failing to instruct the jury that a police officer's testimony concerning a witness's statement prior to trial which is inconsistent with that witness's statement made at trial, is to be considered solely for impeachment purposes. Lieutenant Nettles of the Berkeley County Sheriff's Department testified that Bilangia Thomas, who was in a jail cell next to Coker, told him the guns used in the murders of the three men were buried behind Wesley Copeland's trailer. Bilangia Thomas denied at trial telling Lt. Nettles anything concerning the guns. We held in State v. Warren, S.C. 284 S.E. (2d) 355 (1981) that "when a prior inconsistent statement is introduced to impeach a witness, the court, upon request, must instruct the jury that it can consider such evidence for the purpose of impeachment only...." (Emphasis added). Here, appellants did not request the trial judge to instruct the jury to consider Lt. Nettles' testimony only for impeachment purposes.
Heretofore, South Carolina has followed the traditional rule that testimony of inconsistent statements is admissible only to impeach the credibility of the witness. Henceforth from today, we will allow testimony of prior inconsistent statements to be used as substantive evidence when the declarant testifies at trial and is subject to cross examination. We quote with approval the reasoning by the Supreme Court of Georgia in Gibbons v. State, 248 Ga. 858, 286 S.E. (2d) 717, 721 (1982), in adopting this new prior inconsistent statement rule:
[C]ommentators ... suggest that the oath is not as strong a guaranty of truth as once it may have been, and the requirements that the jury observe the declarant and that the defendant have an opportunity to cross-examine are met where the declarant takes the stand and is subject to cross-examination. The assertion by a person that the declarant made a prior statement is not itself hear- *582 say, and the jury can determine the credibility of the witness on that point. With respect to the truth of the prior statement, the jury has the opportunity to observe the declarant as he may repudiate or vary his former statement, and as he is cross-examined. Thus, the jury can determine whether to believe the present testimony, the prior testimony or neither.... [P]rior statements...are made closer in time to the event in question, when memories are fresher, and ... the traditional rule requires the courts to give unrealistic and confusing instructions to the jury. See 3A Wigmore, Evidence (Chadbourn rev.) § 1018; McCormick, Handbook of the Law of Evidence, 2d ed., § 251, Morgan, Hearsay, Dangers and the Application of the Hearsay Concept, 62 Harv. L.R. 177, 192 et seq. (1948).
We believe the adoption of this rule will more effectively aid in the discovery of truth, and more adequately insure the freedom of the innocent and the conviction of the guilty.
Appellant Copeland argues the trial court should have allowed introduction in the sentencing phase of the results of the state's key witness's polygraph examination. Copeland contends the examination revealed deception in some aspects of Coker's story, and this would be relevant in the sentencing phase to show mitigating circumstances.
Generally, the results of polygraph examinations are inadmissible because the reliability of the polygraph is questionable. We decline to create an exception to this general rule in order to allow admission of the results in the sentencing phase of this bifurcated trial for the same reason that it is generally inadmissible its questionable reliability for scientific accuracy.
Appellant Roberts argues the trial judge chilled appellant's right to testify at the sentencing phase of the trial by allegedly advising him erroneously that his testimony would be admissible in another court if there were a new trial. In response to Roberts' request for advice as to whether his testimony at the sentencing phase could be used against him at a new trial, the trial judge stated:
"All right, sir. I cannot tell Mr. Roberts whether to take the stand or not. That is a decision that he will have to *583 make. Of course, as you know, if there is a new trial, that record would be admissible in another court."
In State v. Gilbert, 273 S.C. 690, 258 S.E. (2d) 890, 894 (1979), we stated:
Each accused, with the assistance of counsel, makes this decision [not to testify] as a part of his trial strategy. Under the first principle of ethics and justice, a defendant who secures a ruling of the court, albeit erroneous, should not be permitted to profit ... from the court's assent to an improper trial strategy.
Roberts relies on State v. Adams, 277 S.C. 115, 283 S.E. (2d) 582 (1981), to support his position that his testimony at the sentencing phase cannot be used against him in determining his guilt or innocence at a new trial. Roberts, with assistance of counsel, chose not to testify at his sentencing proceeding. Apparently, he inferred from the trial judge's remarks that his testimony at that proceeding might be used against him in the guilt or innocence phase of a new trial of the case should there be one. The trial judge did not specifically advise Roberts as to that matter, and Roberts did not ask for a clarification; therefore, we cannot say the trial judge's statement was erroneous. Moreover, the defendant, with assistance of counsel, is the one to decide whether to testify at his trial. He cannot be permitted to profit from his faulty interpretation of the trial court's statement.
Appellant Roberts argues the solicitor improperly inserted his own opinion that capital punishment deters crime into his closing argument at the sentencing phase of the trial. We disagree.
"While the solicitor should prosecute vigorously, State v. Davis, 239 S.C. 280, 122 S.E. (2d) 633, his duty is not to convict a defendant but to see justice done. State v. Allen, 266 S.C. 468, 224 S.E. (2d) 881 (1976). The solicitor's closing argument must, of course, be based upon this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice. State v. White, 246 S.C. 502, 144 S.E. (2d) 481 (1965). The trial judge is vested with a broad discretion in dealing with the *584 propriety of the argument of the solicitor to the jury. State v. Durden, supra. Once the trial judge has allowed the argument to stand, as here, the defendant must bear the burden of demonstrating that the argument in effect denied him a fair determination of his guilt or innocence. On appeal, this Court will review the alleged impropriety of argument in the context of the entire record."
State v. Woomer, S.C. 284 S.E. (2d) 357, 359 (1981) [quoting State v. Linder, 276 S.C. 304, 278 S.E. (2d) 335, 339 (1981)].
Viewing the argument in the context of the entire record, we find the solicitor's argument is properly within the guidelines set by this Court.
Appellant Copeland argues the trial judge erred in denying his request to instruct the jury of the actual effect of failure to reach a unanimous agreement as to punishment, and in instructing the jury that unanimity is required before a life sentence can be imposed. Copeland asserts the judge misstated the applicable law and inserted an arbitrary factor into the jury's sentencing decision by instructing "irrespective of what your verdict or recommendation is, it must be unanimous on each count, that is, your verdict or recommendation must be the verdict or recommendation of all twelve of you." Allegedly, this instruction might affect the jury's decision to impose life or death unless the jury is instructed that, in the event all cannot agree on a recommendation as to whether the death penalty should be imposed, the trial judge shall dismiss the jury and sentence the defendant to life imprisonment. We disagree.
The trial judge correctly stated the applicable law. We stated in State v. Adams, supra, 283 S.E. (2d) at 587:
The language of [§ 16-4-20(C)] provides that where a sentence of death is not recommended by the jury, a life sentence must be given. The situation implicitly envisioned here is that normally the jury will unanimously either recommend life or death. The undecided jury is the exception. That portion of the statute addressing the legal effect given to the existence of an unalterably divided jury is addressed to the trial judge only and need not be divulged to the jury. *585 There is no error present.
Appellants next argue the trial judge's charge and written statutory instructions concerning mitigating circumstances were insufficient to alert the jurors that they could consider mitigating circumstances other than the nine statutory mitigating circumstances.
Section 16-3-20(C) of the Code requires the trial judge to instruct the jury to consider "any mitigating circumstances otherwise authorized or allowed by law and any ... statutory... mitigating circumstances...." The trial judge fully complied with this provision. This exception is without merit.
Appellant Copeland argues the trial court erred in failing to instruct the jury that life imprisonment means one will actually spend his life in prison. Copeland asserts the jury will consider the possibility of parole in its deliberations and the failure of the trial court to instruct the jury not to consider it injects an arbitrary factor into the trial. Again, we disagree.
The jurors were instructed to base their decisions solely upon the evidence adduced at trial and the law as instructed by the trial judge. While it is true that possibility of parole should not be considered by the jury, it is not the duty of the trial court to anticipate or speculate that jurors might consider it in their deliberations and instruct them accordingly. To do so may, in fact, inject consideration of parole into their deliberations where it may not before have been.
Appellants next argue the trial judge should have instructed the jury that they must find the death penalty is appropriate beyond a reasonable doubt. The trial judge repeatedly instructed the jurors they must find the existence of a statutory aggravating circumstance beyond a reasonable doubt before they could impose the death penalty. He further instructed the jurors that they could recommend a sentence of life imprisonment even if they found the existence of a statutory aggravating circumstance beyond a reasonable doubt. The jurors must have had the phrase "beyond a reasonable doubt" firmly etched in their minds at this point in the bifurcated trial. Surely, appellants would not have us believe a person of ordinary sensibilities would recommend imposition of the death penalty if he had a reasonable doubt that it *586 was an appropriate sentence in that case. This exception is frivolous and without merit.
This appeal represents the sixth occasion for this Court to perform the statutory function known as "proportionality review," mandated by § 16-3-25(C) of the Code. (1977 Act No. 177, section 2, eff. June 8, 1977.) State v. Thompson, S.C. 292 S.E. (2d) 581, cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L. Ed. (2d) 458 (1982); State v. Butler, supra; State v. Gilbert,[*] State v. Hyman, supra; State v. Shaw, 273 S.C. 194, 255 S.E. (2d) 799, cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed. (2d) 329 and Roach v. South Carolina, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed. (2d) 660.
Appellant Copeland attacks the constitutionality of the South Carolina death penalty regime on the basis of this Court's interpretation of § 16-3-25(C) of the Code. The issue is raised in the face of the very recent holding in State v. Thompson, supra, published well before appellant's brief was filed. The issue is raised without the benefit of a petition under Supreme Court Rule 8, section 10, and amounts in our view to a "reopening of closed questions" as discussed in State v. Truesdale, S.C. 296 S.E. (2d) 528 (1982). Normally the issue would be dismissed without comment. We deem it appropriate, however, to make one final pronouncement on the proper interpretation of § 16-3-25(C) at this time.
The General Assembly of South Carolina has clearly made the policy determination that proportionality review by this Court shall be accorded capital defendants who actually receive a sentence of death. The language of § 16-3-25(C) puts three questions before this Court for review in a given case:
1. Whether sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
2. Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 16-3-20, and
3. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. *587 It is the third inquiry which constitutes proportionality review in South Carolina. Under the statute, the task of defining "similar cases" and with it the scope of any comparative analysis is plainly and properly left to this Court. As indicated below, both the statutory language and the nature of the task give rise to perplexity. There is, after all, some logic to the view that the heinous crime is sui generis, simply beyond comparison.
A complex of federal constitutional issues has enveloped all death penalty statutes since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. (2d) 346 (1972). This Court has taken careful note of U.S. Supreme Court decisions touching upon proportionality review, and we find in these decisions a profound tension between the requirement of individualized sentencing and the notion of comparative review. The avoidance of an arbitrary and capricious pronouncement of the death sentence has now been declared a constitutional mandate. It compels the trier of fact to make specific findings with respect to the particular circumstances of a capital crime and the individual defendant. Bell v. Ohio, 433 U.S. 637, 98 S.Ct. 2977, 57 L.Ed. (2d) 1010 (1978); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed. (2d) 973 (1978); (Stanislaus) Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed. (2d) 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed. (2d) 944 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed. (2d) 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed. (2d) 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2902, 49 L.Ed. (2d) 859 (1976). In like manner, these cases encourage, while not mandating, an appellate review which accords priority to the particular and distinctive features of each defendant as well as the specific circumstances of the crime for which the death sentence has been imposed. The ultimate outcome, it is suggested by these decisions, should be the infliction of capital punishment upon only those individuals who have been culled from all other defendants by a process which highlights the unique attributes of their personalities and their crimes.
From a logical standpoint, of course, that which is unique is also incommensurable. Herein lies the conflict between particularized sentencing (and review) and the notion of comparing "similar cases." Clearly, a comparative review cannot be *588 permitted to diminish the particularized quality of sentencing, since the latter is now an absolute command of the U.S. Constitution. By the same token, the final resolution of a given appeal, if sentence is to be affirmed, should rest upon the unique correctness of the result in the given instance rather than its coarse resemblance to other cases.
We find that the U.S. Supreme Court has implicitly recognized this tension in that it has carefully avoided imposing any model of appellate review upon the states. Most obvious is the fact that the Texas statute, scrutinized in Jurek v. Texas, supra, provided for no porportionality review whatever. Equally striking is the absence in either Gregg v. Georgia, supra, or Proffitt v. Florida, supra, of any language elevating comparative proportionality review to constitutional prominence. We conclude that the proper balancing of particularized and comparative review, if any, has been left to the states as an "interstitial" matter not appropriate for federal constitutional resolution. "Developments in the Law State Constitutions," 95 Harvard Law Review 1324, 1356 (1982).
Aside from the problematical nature of this balancing task, there may be other grounds for the apparent reluctance of the U.S. Supreme Court to impose a single model of appellate review upon the states. Comity and diversity of state death penalty regimes present obvious difficulties, although they have not deterred rulings of sweeping effect in the past. See (Stanislaus) Roberts v. Louisiana, supra; Woodson v. North Carolina, supra; Furman v. Georgia, supra. By way of example, we note that § 16-3-25(C) of the Code, bears a strong resemblance to Ga. Code. Ann. § 27-2537(c) (Supp. 1975), which was challenged and discussed in Gregg v. Georgia, supra. The South Carolina Code, however, does not specify the "universe" of similar cases as does § 27-2537(c) of the Georgia Code. Reading Gregg v. Georgia, supra, along with Proffitt v. Florida, supra, we must conclude that the U.S. Supreme Court has elected to allow diversity among the states to continue, at least in determining the scope of any comparative review.
Encouraging diversity among the states is, of course, a practice that comports well with the basic concept of federalism. It has been explicitly approved by the U.S. Supreme Court in the very setting of criminal law. Speaking for a *589 unanimous Court in Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 1812, 60 L.Ed. (2d) 323 (1979), Chief Justice Burger stated: "The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold." In the same spirit is the "celebrated dictum" of Justice Brandies in which the individual states were compared to laboratories of social and economic experimentation, a view taken on many occasions since it was first expressed in New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (dissenting opinion). See Brooks v. Tennessee, 406 U.S. 605, 617, 92 S.Ct. 1891, 1897, 32 L.Ed. (2d) 358 (1972) (Burger, C.J., dissenting); Duncan v. Louisiana, 391 U.S. 145, 193, 88 S.Ct. 1444, 1472, 20 L.Ed. (2d) 491 (1968) (Harlan, J., dissenting); Fay v. New York, 332 U.S. 261, 296, 67 S.Ct. 1613, 1631, 91 L.Ed. 2043 (1947) (Opinion of Jackson, J.).
Imposition upon the states of a single design for proportionality review would represent a massive intrusion upon the integrity of state governments within the federal scheme. We cannot assume that the United States Supreme Court would take such a step by mere implication or inadvertence. Rather, we believe such a dramatic curtailment of state autonomy would be openly announced and most likely heralded by decisions preparing a foundation.
Neither formal announcement nor suggestive precedent reveals itself in any of the post-Furman decisions. The due process clause of the fourteenth Amendment to the U.S. Constitution does not even require states to provide appellate review, as was indicated in Ortwein v. Schwab, 410 U.S. 656, 661, 93 S.Ct. 1172, 1175, 35 L.Ed. (2d) 572 (1973), citing a line of prior decisions including Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed. (2d) 36 (1972); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956); District of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 663, 81 L.Ed. 843 (1937); McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). We find no suggestion that, where state appellate review is granted, the U.S. Supreme Court has mandated any particular mode of conduct, to say less of ruling any mode unconstitutional. Likewise there is no hint that the doctrine of equal protection requires comparative review at the state level. Indeed the application of an equal protection *590 analysis would take the Supreme Court of the United States into the very process of defining "similar cases" which it has declined to enter heretofore. The existence of similarly situated persons is after all a logical precondition for denial of equal protection.
As indicated above, none of the Eighth Amendment decisions following Gregg v. Georgia, supra, have imposed or suggested a preferred method of state appellate review. In the final analysis, it appears that the U.S. Supreme Court itself looks only to the ultimate result, which is preventing the imposition of excessive and disproportionate punishment upon the individual petitioner. In Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed. (2d) 982 (1977) the U.S. Supreme Court vacated a "disproportionate" sentence of death for the crime of rape. In its opinion, the Court made no mention of the Georgia appellate process. While the Court conducted a modified "proportionality review" of its own, the ultimate result was reached independently for, in the words of Justice White, "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." 433 U.S. at 598, 97 S.Ct. at 2869. See also Enmund v. Florida, supra. Another arguably disproportionate sentence was vacated in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed. (2d) 398 (1980). The U.S. Supreme Court there devoted some attention to actions by the Supreme Court of Georgia. The basis of the decision, however, was not the matter of review but the overly broad reading which Georgia had given to one of its statutory aggravating circumstances. It is thus apparent that the Eighth Amendment to the U.S. Constitution does not mandate any mode of appellate review, or even appellate review as such, but only an outcome. That outcome, again, is a penalty imposed on a meaningful basis which can be sustained as neither excessive nor disproportionate in light of the crime and the defendant.
We conclude from the foregoing that the contours of proportionality review, where it exists, have been left to state determination since the U.S. Supreme Court has declined to impose any specific model of review upon the states. § 16-3-25(C) of the Code represents an act of legislative grace by the General Assembly which we are required to *591 interpret in accordance with sound rules of statutory construction.
In our view, the search for "similar cases" can only begin with an actual conviction and sentence of death rendered by a trier of fact in accordance with § 16-3-20 of the Code. We consider such findings by the trial court to be a threshold requirement for comparative study and indeed the only foundation of "similarity" consonant with our role as an appellate court.
We recognize that in some jurisdictions and commentaries it is felt that the reviewing court should compare a given death sentence with a "universe" of cases which includes sentences of life imprisonment, acquittals, reversals and even mere indictments and arrests. Under such a regime, the reviewing court could only determine the size of its sample or "universe" by some arbitrary device. Fact findings of the trial court, by contrast, provide a fundamental line of demarcation well recognized in and even exalted by our legal tradition. The decisive importance of such findings is evidenced by the language of Article V, section 5, South Carolina Constitution, which limits our review to "correction of errors at law" in all but equity cases.
To expand the notion of a "universe" would also entail intolerable speculation by this Court. Under the South Carolina statute, a jury is not required to state its reasons for failing to recommend a sentence of death. In a given case, the alleged aggravating circumstance may not have been proven to the satisfaction of the jury, while in another "similar case" (expansively defined) the statutory mitigating circumstances or some mitigating factor "otherwise authorized or allowed by law" may have deterred imposition of the death sentence.
The Court would enter a realm of pure conjecture if it attempted to compare and contrast such verdicts with an actual sentence of death. They represent acts of mercy which have not yet been held to offend the United States Constitution. Moreover, they reflect the emphasis upon individualized sentencing mandated by the Unites States Supreme Court. We will not subject these verdicts to scrutiny in pursuit of phantom "similar cases," when a meaningful sample lies ready at hand in those cases where the jury has spoken unequivocally.
*592 It is axiomatic, of course, that a death sentence infected by prejudicial trial error is a nullity which must be categorically rejected from any comparative review of properly imposed death sentences. Thus our prior decisions vacating and remanding death sentences for retrial must be disregarded in the course of proportionality review. State v. Truesdale, supra; State v. Patterson, S.C. 295 S.E. (2d) 264 (1982); State v. James Anthony Butler, S.C. 290 S.E. (2d) 420 (1982); State v. Woomer, S.C. 284 S.E. (2d) 357 (1981); State v. Plath, supra; State v. Adams, supra; State v. Linder, supra; State v. Woomer, 276 S.C. 258, 277 S.E. (2d) 696 (1981); State v. Goolsby, supra; State v. Tyner, supra.
It is of no consequence that the South Carolina "universe" has consisted of only five cases to this date. State v. Shaw, supra, presented the first occasion for proportionality review under our current statute. We noted then that no similar cases existed, but the sentence imposed was none the less appropriate and neither "excessive" nor "disproportionate" considering the crime and the defendants. Indeed, a comparable crime involving multiple murder by two or more accomplices, in the course of armed robbery, kidnapping and rape, attended by unspeakable cruelty and mutilation, has yet to come before this Court. Shaw, thus, constitutes a category unto itself.
In like manner, the succeeding three cases of State v. Hyman, supra, State v. Gilbert, supra, and State v. Thompson, supra, proved "similar" in only the most superficial manner that is, the aggravating circumstance in each instance was armed robbery. The transcripts of these cases are public records, as pointed out in Thompson, supra, and when inspected reveal significant differences between them.
William Gibbs Hyman conspired with four other persons to rob two elderly brothers. The conspirators made their way at nightfall to the victims' home where stealth and deception were initially employed. Failing in their first foray, the conspirators applied violence. One of the victims was able to fire a shot from within before the home was stormed. From the testimony, a jury could have concluded that the decedent was killed by a shot-gun blast fired by Hyman at close range while the victim stood disarmed. It appears that everyone at the scene was intoxicated, but the defendant was sufficiently sober to continue demanding money while he beat the surviving *593 brother with one of the two weapons involved. Mitigating testimony was offered by a clergyman as well as family members who related personal frustrations and tensions suffered by the defendant at some time before the killing. In addition, the defendant himself took the stand to express his remorse. The jury recommended a sentence of death and we affirmed, considering the penalty neither excessive nor disproportionate with respect to the crime and the defendant and notwithstanding the lack of any truly "similar" case to that point in time.
Larry Gilbert and J.D. Gleaton, brothers of whom Gleaton is the elder, robbed and murdered the operator of a filling station shortly after noon following a morning spent cruising in their automobile in search of (and possibly using) drugs. In the course of the robbery, the victim was savagely stabbed seven times as he struggled with Gleaton and was shot once by Gilbert. From the testimony, a jury could have inferred that the shot was fired while the victim lay on the floor of his business establishment. A witness testified that one of the assailants laughed at the victim in his agony, which testimony was sharply contested by defendants. Mitigating testimony was taken from a clergyman and the defendants' mother. Gilbert and Gleaton in turn took the stand to state that they had acted on impulse and had intended no harm to the victim. The jury recommended death sentences, and we affirmed. The cases of State v. Shaw, supra, and State v. Hyman, supra, offered no assistance by way of comparison, particularly since the latter case had involved an elaborate, multiparty scheme to rob and the use of weapons by the robbery victims. In the crime of Gilbert and Gleaton, the deceased was unarmed and could only use his hands to ward off the repeated thrusts of the knife. We held the sentence of death to be neither excessive nor disproportionate considering the crime and the defendants.
Albert "Bo" Thompson shot and killed the proprietor of a small store in the course of a robbery. In fact the defendant shot his victim twice, the second time in the face from close range. Testimony of an accomplice indicated that the defendant, on the morning of the incident, had determined to rob someone somewhere and that one other store was reconnoitered before that of the victim was chosen. No *594 mitigating testimony was offered, unlike the cases of Hyman, Gilbert and Gleaton. The jury was asked only to consider the defendant's age as well as a brief unsworn statement by him in the course of which he wept and asserted that the killing was an accident. Thompson's crime differed from those of Hyman, Gilbert and Gleaton in other respects, too. The latter defendants all offered some evidence of acting under the influence of alcohol or drugs, while Thompson inferably acted with a clear mind and cool deliberation. Thompson fired the fatal shots, it appears, after his accomplice left the store, whereas Hyman, Gilbert and Gleaton killed their struggling victims in the presence of others or one another. The jury could reasonably have concluded that Thompson acted alone in committing a senseless murder without even a pretext of justification. The jury recommended a sentence of death and, notwithstanding the lack of a truly "similar" case for guidance, this Court found the sentence neither excessive nor disproportionate with respect to the crime and the defendant. In the course of proportionality review, this Court examines the record through the eyes of the sentencing authority. In the case of Thompson, however, this Court could not avoid noting that we had previously affirmed his conviction for an armed robbery occuring subsequent to this murder, one in which the defendant had again held a gun to the head of the robbery victim. State v. Thompson, 276 S.C. 616, 281 S.E. (2d) 216 (1981). At trial the State had no opportunity to offer this conviction in evidence, yet it clearly would have rebutted mitigating arguments under § 16-3-20(C) (b) (1) of the Code. We do not consider it amiss to recognize such information regarding an appellant in the course of our final proportionality review.
The remaining case of State v. Horace Butler, supra, involved the abduction, rape and murder of an eighteen-year-old girl as she left her place of employment after dark. The defendant offered his poor record in school, his youth, and the fact that he had a small child as mitigating evidence. We affirmed the conclusion of the jury that a sentence of death was neither excessive nor disproportionate in light of the defendant's character and his wanton crime. No truly "similar" case existed for comparison, and by the same token State v. Butler, supra, offers no guidance in the review of the instant appeal.
*595 Unlike previous cases involving murder and armed robbery, this appeal arises from two separate atrocities occuring in a single night. Unlike Hyman, Gilbert, Gleaton and Thompson, appellants Copeland and Roberts were not content to terrorize and slay their victims where they found them but instead transported them to backroads execution sites. Two of the victims were brought down by gunfire as they sought to escape. Thus wounded, they were subsequently riddled with bullets as they lay on the ground. On the body of one, a series of post-mortem stab wounds was also inflicted.
Mitigating evidence for appellant Copeland was limited to the testimony of his former wife who vouched for the promptness of his alimony and child support payments. She also stated that she had never seen him do anything cruel. More extensive mitigating testimony was offered on behalf of appellant Roberts. Family members as well as a trained psychologist revealed that Roberts had suffered an unhappy childhood, problems in school, the recent traumatic slaying of a brother, drug abuse and injuries in fights and car accidents. Roberts was characterized as having an impulsive personality and being easily led by others. By way of the trial court's charge to the jury, Roberts received the full benefit of the relevant statutory mitigating circumstances. In the end it is probable that the jury relied on the psychologist's own statement that Robert's prognosis for "straightening up" was poor.
It is our conclusion that no "similar" case exists that would permit meaningful comparative review of these death sentences. In view of the facts set forth above, however, we are satisfied that the sentence of death imposed on each of these appellants was appropriate and neither excessive nor disproportionate in light of their crimes and their respective characters. The sentences are accordingly affirmed.
It should now be clear that proportionality review in South Carolina is first and foremost directed to the particular circumstances of a crime and the specific character of the defendant. Comparative review will be thereafter undertaken if possible. Without hazarding a prediction, we can imagine that the "universe" of similar cases will gradually expand in the fullness of time. At present, South *596 Carolina has found the death penalty to be neither excessive nor disproportionate in six distinct cases: (1) where one or more defendants rob, abduct, rape and murder one or more victims in circumstances which starkly reveal the malignant character of the defendant or defendants; (2) where a victim, armed and defending himself, is slain by an intruding defendant who is himself armed (and possibly intoxicated) while engaged in robbing the deceased; (3) where two or more defendants, on impluse or even while intoxicated rob and murder an unarmed struggling victim in his place of business; (4) where a single defendant, alone with an unarmed and unresisting victim, robs and without mitigation whatever murders the deceased; (5) where a single defendant kidnaps, rapes and murders a victim; (6) where one or more defendants perpetrate mulitple offenses by robbing, kidnapping and murdering one or more victims in each separate incident. As comparable cases arise, they will be reviewed against this background. As dissimilar circumstances may lead to affirmed sentences of death, new "classes" or types of capital cases will be added to the existing "pool."
In the foregoing construction of § 16-3-25(C) of the Code, this Court has paid particular attention to the reasoning adopted by three members of the U.S. Supreme Court, speaking through Justice White, in Gregg v. Georgia, supra. As he understood the proportionality function, it was to serve as a mechanism to monitor imposition of death sentences within "classes" or "types" of crimes, those "classes" and "types" being determined by the statutory aggravating circumstances in a given state scheme. 428 U.S. at 223-224, 96 S.Ct. at 2948-2949. In a concluding passage, Justice White in essence stated the philosophy underlying our definition of "similarity" as he answered complaints that the Georgia statute permitted unconstitutional acts of discretion:
Petitioner's argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created *597 and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder.
§ 16-3-910 of the Code provides that one shall suffer the punishment of life imprisonment for kidnapping unless sentenced for murder as provided in § 16-3-20. Since appellants were sentenced for murder, as provided in § 16-3-20, their sentences of life imprisonment for kidnapping are vacated. Their convictions and sentences are otherwise affirmed. A search of the entire record reveals no other error.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and HARWELL, JJ., concur.
NOTES
[*] 277 S.C. 53, 283 S.E. (2d) 179 (1981).
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300 S.E.2d 707 (1983)
Joe HENRY, Administrator of the Estate of Archie Lee Henry
v.
Floyd DEEN, Jr., M.D., Floyd Deen, Jr., M.D., P.A. Ann Hall and Abdul-Hakim Niazi-Sai, M.D.
No. 8220SC266.
Court of Appeals of North Carolina.
March 15, 1983.
*709 James, McElroy & Diehl by Gary S. Hemric, Charlotte, for plaintiff-appellant.
Charles V. Tompkins, Jr. and Fred B. Clayton, Charlotte, for defendants-appellees Floyd Deen, Jr., M.D., and Floyd Deen, Jr., M.D., P.A.
Golding, Crews, Meekins, Gordon & Gray by John G. Golding, Charlotte, for defendant-appellee Abdul-Hakim Niazi-Sai, M.D.
No counsel for defendant-appellee Ann Hall.
HEDRICK, Judge.
The plaintiff contends the trial court erred in (1) denying his motion to amend the complaint, (2) dismissing the complaint as it related to defendant Niazi, (3) dismissing the claim of civil conspiracy against defendants Deen and Hall and (4) granting defendants' motion to dismiss and strike from the complaint those paragraphs relating to punitive damages.
We first consider plaintiff's argument that his motion to amend the complaint on 30 November 1981 was improperly denied. Rule 15(a) of the North Carolina Rules of Civil Procedure sets out the conditions for amending pleadings. It states in pertinent part: "Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." In interpreting Fed.R.Civ.P. 15(a), which was the model for the North Carolina rule, the United States Supreme Court wrote in Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962):
In the absence of any apparent or declared reasonsuch as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.the leave sought should, as the rules require, be `freely given.' Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise *710 of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
A recent opinion by this court, Ledford v. Ledford, 49 N.C.App. 226, 233-234, 271 S.E.2d 393, 398-399 (1980), cited the above language from the Foman v. Davis case and held:
In the case sub judice the trial court did not set out a justifying reason for denying plaintiff's motion to amend and no such reason appears in the record on appeal. The United States Supreme Court has held that the trial judge abuses his discretion when he refuses to allow an amendment unless a justifying reason is shown. Foman v. Davis, supra. Nor does the record reveal any attempt on the part of the defendant to show that he would be prejudiced by the amendment. The burden is on the objecting party to show that he would be prejudiced thereby. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977) (dictum); Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 245 S.E.2d 782 (1978). It must be concluded that the ruling of the trial court in denying the motion to amend is based on a misapprehension of the law, that the circumstances ... were sufficient as a matter of law to warrant summary judgment for defendant rendering the amendment futile. We conclude that the denial of the motion to amend without a justifying reason and no showing of prejudice to defendant, and apparently based on a misapprehension of the law, was an abuse of discretion and reversible error.
Likewise, in the case before us, the Court below set forth no reason or explanation for denying plaintiff's motion nor can we find any reason from our review of the record. There is no evidence of undue delay, undue prejudice to the defendants, or bad faith on the plaintiff's part. Absent such a showing, amendments should be granted liberally. Therefore, we hold the trial court erred in not allowing plaintiff's amendment to the complaint.
We next consider plaintiff's argument that the trial court erred in dismissing the complaint as it related to the culpability of Dr. Niazi for medical malpractice. The original complaint stated that the action was for the wrongful death of Henry as the proximate result of negligent conduct by Deen, Hall and Niazi, but the original complaint give no further details of Niazi's alleged negligence. The amended complaint gives sufficient details relating to Niazi's involvement in the medical diagnosis and treatment of Henry to make out a claim for medical malpractice against Niazi.
North Carolina Rule of Civil Procedure 15(c) states:
A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.
Because of the relation back of amended complaints to the date of the original complaint, the plaintiff's complaint should not have been dismissed. The amended complaint contains allegations that Niazi attempted to diagnose and treat Henry by telephone and failed to examine the radiologist's report and X-rays of Henry. These allegations raise a claim of medical malpractice, and the original pleading gave sufficient notice of Niazi's involvement in the treatment of Henry to trigger the relation back provision of Rule 15. We hold the trial court erred in dismissing the complaint insofar as it relates to Niazi's potential liability for medical malpractice.
Plaintiff also complains that the trial court erred in dismissing his claim for punitive damages against defendants Deen, Hall and Niazi for negligent medical treatment of Henry. In order to sustain a claim at the pleading stage the complaint must set forth
[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or *711 occurrences, intended to be proved showing that the pleader is entitled to relief....
N.C.R.Civ.P. 8(a)(1). In Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970), our Supreme Court discussed the application of Rule 8(a)(1):
Under the `notice theory' of pleading contemplated by Rule 8(a)(1), detailed fact-pleading is no longer required. A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, andby using the rules provided for obtaining pretrial discoveryto get any additional information he may need to prepare for trial.
277 N.C. at 104, 176 S.E.2d at 167.
Any recovery for punitive damages must be based on aggravated, intentional, wanton or grossly negligent conduct, Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976), and the pleading must allege sufficient facts to place a defendant on notice of the aggravating factors which would justify the awarding of punitive damages. Shugar v. Guill, 304 N.C. 332, 283 S.E.2d 507 (1981). Here, the plaintiff alleged in his complaint that Henry's death was the proximate result of the gross negligence and willful and wanton conduct of the defendants Deen, Hall and Niazi. The complaint sufficiently notified the defendants of the occurrence of Henry's death to make them cognizant of the claim for medical malpractice; however, there are no allegations of any facts showing any aggravating circumstances which would give rise to punitive damages. All the pleader has done in this regard has been to make conclusory allegations as to willful, wanton conduct and gross negligence. We point out that ordinarily medical malpractice does not have a built-in aggravating factor such as is present in claims for damages arising out of criminal conduct such as fraud, assault or murder. We hold the trial judge did not err in dismissing plaintiff's claim for punitive damages.
Finally, we consider plaintiff's contention that the trial judge erred in dismissing his claim for civil conspiracy against all the defendants. Plaintiff argues he was damaged by the defendant's conspiring to falsify evidence and to impede his investigation. Plaintiff contends he should be allowed to assert such a claim concurrent with his action for medical malpractice. We disagree.
As a general rule, a civil action may not be maintained for damages "for false testimony, or for subornation of false testimony, or for conspiracy to give or to procure false testimony." 16 Am.Jur.2d, Conspiracy § 63 (1979). The basis for an action for civil conspiracy is not the agreement to conspire, but the damage suffered by the plaintiff. 16 Am.Jur.2d, Conspiracy § 52 (1979); 3 N.C. Index 3d, Conspiracy § 1 (1976). Therefore, some damage to the plaintiff must predicate an action to recover for civil conspiracy.
Our Supreme Court has addressed this issue in Gillikin v. Bell, 254 N.C. 244, 118 S.E.2d 609 (1961) and Gillikin v. Springle, 254 N.C. 240, 118 S.E.2d 611 (1961). In Gillikin v. Bell, the plaintiff sued a commercial photographer for aiding a defendant in a wrongful death action by removing the body of the deceased from a wreck and photographing it in positions damaging to plaintiff's case. In the companion case, Gillikin v. Springle, the driver of the wrecked car was charged with a conspiracy to suborn perjured testimony. In each case the court denied relief and stated the general rule that a civil action in tort will not lie for perjury or subornation of perjury.
Furthermore, in the case before us the plaintiff has shown no damage. He alleges he has spent $3,000 in investigating and collecting evidence of Henry's alleged wrongful death, but those are expenses naturally incurred in the bringing of any lawsuit. Plaintiff's problems in gathering proof because of the alleged conspiracy by the defendants in no way make his case unique. He can hardly allege any damage when his right to recover on the tort claim has yet to be adjudicated. We affirm the *712 portion of the trial court's order dismissing all claims of civil conspiracy as against any of the defendants.
The result is: the trial court erred in not allowing plaintiff's motion to amend the complaint; the order dismissing plaintiff's claim for punitive damages and civil conspiracy as to all defendants will be affirmed; the order dismissing plaintiff's claim against Dr. Niazi for medical malpractice is reversed; and the cause is remanded to the Superior Court for further proceedings in accordance with this opinion.
Affirmed in part; reversed and remanded in part.
JOHNSON, J., concurs.
EAGLES, J., concurs in part and dissents in part.
EAGLES, Judge, concurring in part, dissenting in part.
I respectfully dissent from that portion of the majority opinion which affirms dismissal of the civil conspiracy claim for relief. That claim was based upon alleged fraudulent falsification of medical records by two licensed physicians and a physician's assistant in preparation for trial. To decide as the majority does is to grant a license to persons facing serious civil actions to commit fraud with impunity in preparation for litigation.
The majority relies on two of the Gillikin series of cases: Gillikin v. Bell, 254 N.C. 244, 118 S.E.2d 609 (1961) and Gillikin v. Springle, 254 N.C. 240, 118 S.E.2d 611 (1961).
The Gillikin cases can be distinguished from the case sub judice as follows:
(1) The Gillikin cases involved separate lawsuits brought after termination of the initial action thereby invoking the public policy disfavoring endless litigation. Here, the original action is pending and the civil conspiracy is sought by plaintiff to be joined to the initial action, permitting the entire allegations to be resolved at one trial.
The Gillikin cases were actions against the alleged original tort-feasor (Gillikin v. Springle, supra), a photographer (Gillikin v. Bell, supra), an indemnity bond company (Gillikin v. United States Fidelity & Guaranty Company, 254 N.C. 247, 118 S.E.2d 606 (1961)) and an auto liability insurance company (Gillikin v. Ohio Farmers Indemnity Company, 254 N.C. 250, 118 S.E.2d 605 (1961)) for interference with a previously terminated civil action which plaintiff Gillikin had lost to Springle. The practical effect of the outcome in the Gillikin cases is to require that all possible claims be put to rest at one time with plaintiff limited to "one day in court." That goal would be achieved here by reversing the dismissal and permitting this claim to be tried at the same time as the related causes.
This action for civil conspiracy involves only those parties who were already party defendants in this pending action and does not involve others as parties.
(2) There is admittedly no civil action for perjury or subornation of perjury since they are punishable as crimes but here the misconduct was the wrongful falsification of medical records with the intent to cover up medical malpractice and thereby defraud the decedent's estate. Had the fraudulent misrepresentation gone undiscovered, if in fact it occurred as was alleged, and the defendants had testified at trial pursuant to their alleged design, then the crime of perjury, a violation of G.S. 14-9, might have resulted. Falsification of medical records with the intent to misrepresent to plaintiffs and to the court the treatment and diagnosis of decedent and thereby defraud a decedent's estate of damages in an action for medical malpractice and a civil conspiracy to accomplish this wrong are actionable.
To create civil liability for conspiracy, a wrongful act resulting in injury to another must be done by one or more of the conspirators pursuant to the common scheme and in furtherance of the common object. The gravamen of the action is the resultant wrong, and not the conspiracy itself. Ordinarily the conspiracy is important only because of its bearing upon rules of evidence, or the persons liable. 11 Am.Jur., Conspiracy, section 45. *713 Holt v. Holt, 232 N.C. 497, 500, 61 S.E.2d 448, 451 (1950).
"In civil conspiracy, recovery must be on the basis of sufficiently alleged wrongful overt acts." Shope v. Boyer, 268 N.C. 401, 405, 150 S.E.2d 771, 773 (1966). Here the wrongful overt act is the falsification or alteration of medical records pertaining to plaintiff's decedent with the intent to misrepresent the true facts and thereby defraud plaintiff in their efforts to recover for alleged medical malpractice.
In Reid v. Holden, 242 N.C. 408, 414-15, 88 S.E.2d 125, 130 (1955), Bobbitt, J. (later Chief Judge), succinctly stated the law of civil conspiracy:
"Accurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pursuance thereofthe damagenot the conspiracy or the combination. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable." 11 Am.Jur. 577, Conspiracy sec. 45. To create civil liability for conspiracy there must have been an overt act committed by one or more of the conspirators pursuant to the scheme and in furtherance of the objective. 15 C.J.S. 1000, Conspiracy sec. 5. These principles have been recognized and applied by this Court.
Since the alleged wrongful acts were discovered, the full potential for harm and damages was not realized. Because of plaintiff's alleged discovery that the records contained intentional misrepresentations and had been falsified, plaintiff's damages are the additional costs of investigation and ultimate detection of the attempted fraud on the decedent's estate. According to the complaint, they are alleged to amount to approximately $3,000.00.
Suffice it to say, there are allegations of a conspiracy, a wrongful overt act in furtherance of that conspiracy and damages to plaintiff which, if proven, are sufficient to justify recovery.
Conspiracy among professionals to defraud a decedent's estate and ultimately a trial court as alleged, is outrageous, offensive, and egregious conduct. In a system of jurisprudence in which the courts are relied on as an orderly means of settling disputes and differences, it is incongruous to permit misrepresentations, fraud and deception such as is alleged here to occur with impunity.
For these reasons, I respectfully dissent from the majority's decision to dismiss the claim for civil conspiracy. In all other respects, I concur with the majority.
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300 S.E.2d 893 (1983)
STATE of North Carolina
v.
John Ivey SANDLIN.
No. 828SC1044.
Court of Appeals of North Carolina.
April 5, 1983.
*894 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.
Marcus, Whitley & Coley by Robert E. Whitley, Kinston, for the defendant-appellant.
HEDRICK, Judge.
The defendant first assigns error to the trial court's denial of his motion to dismiss at the conclusion of all the evidence. The evidence presented at trial tended to show the following. The defendant and the victim, Linda Nguyen Sandlin, were married in Vietnam in the early 1970's. The couple left Vietnam in 1973 and eventually settled in Las Vegas. In April of 1981 they moved to Pink Hill, North Carolina.
On or about 28 May 1981, Linda Sandlin visited an attorney to find out if her husband, the defendant, had been properly divorced from his earlier marriage to Mildred Sandlin. Mildred Sandlin and the defendant were married in 1947. They separated in 1967, but they had never obtained a divorce. As a result of Linda Sandlin's visit, her attorney wrote Mildred Sandlin asking if the defendant had ever obtained a divorce from her, but Mildred Sandlin never responded to the letter. On 10 July 1981 the defendant called Mildred Sandlin concerning a possible visit to see her. During that conversation Mildred Sandlin brought *895 up the subject of the attorney's letter. Defendant replied, "That's something Linda's started." Later in the day, Mildred Sandlin called the defendant's sister and told her that because of her military dependent status she had been receiving "medication" and she did not want to lose that. The defendant testified he and Linda had discussed often the idea of getting a divorce from Mildred Sandlin and "what might happen in the case I passed away." Also, the decedent had expressed to the defendant's niece, Joann Stroud, her fear of losing her savings "in a home that would not be hers if something happened to John [Sandlin] because she had reason to believe that he had a legal wife living."
The State's witness, Jeff L. Moody, Sr., who lived next door to the defendant and the decedent, testified that he last saw Linda Sandlin on 21 July 1981 between 9:30 a.m. and 11:00 a.m. hanging a dress on her clothes line. Another witness, Lawton Earl Howard, testified he passed the defendant's home several times on 21 July 1981 while transporting tobacco to his barn. He testified that he was driving by at approximately 9:00 a.m. or 9:30 a.m. and saw the defendant with a small woman whom he described was of a nationality other than American. On this occasion the defendant's car was parked in the carport with the front end facing in. When Mr. Howard passed by again at approximately 11:30 a.m. he noticed the defendant's car was backed into the carport. The trunk was about even with the doorsteps and the trunk lid was open. Two days later, on 23 July 1981, the defendant reported the victim as missing and stated he had last seen her at 1:45 or 2:00 p.m. on 21 July 1981.
On 14 September 1981 the victim's body was found in a grave located near a group of pine trees behind Oak Ridge Memorial Cemetery in Pink Hill, North Carolina. The owner and operator of the cemetery, James Clifton Tyndall, testified that sometime during July the defendant had asked him if there was a road that went back to the cemetery to a row of pine trees. That conversation, along with the defendant's inquiries into the purchase of burial plots at the cemetery and the county sheriff's comments to Mr. Tyndall that foul play was suspected in connection with the victim's disappearance, prompted Mr. Tyndall's search of the area which resulted in locating the body.
In the medical examiner's opinion, the victim was dead when placed in the ground and had been buried for approximately two months. The cause of death was determined to be mechanical strangulation. A cloth ligature or binding was wrapped tightly around the decedent's neck. Expert testimony revealed the cloth ligature was a dull blue or dull heavy blue velour fabric.
Defendant's neighbor, Jeff Moody, Sr., testified that during visits to defendant's home he had seen the defendant wearing a dark blue bathrobe made of "the type of material that a regular downy towel is made of." The bathrobe had a belt of the same color and material that was about three feet long and an inch and a half wide.
On 16 September 1981 an S.B.I. agent told the defendant his wife had been found and read a search warrant to him. The defendant stated to the agent that he sensed they were "building a case, a murder case against him and that anything he would say would be incriminating if he said it." A couple of weeks before Christmas, 1981, defendant visited a friend in Florida "checking on some information he had as to who was responsible ..." for his wife's death. He remained in Florida until February.
Prior to Linda Sandlin's murder, her mother had seen the defendant hold a knife to Linda's neck and threaten to cut her throat in February 1979. On other occasions the mother had seen the defendant hit her daughter and kick her in the back. The defendant himself admitted he had slapped Linda before, and she had threatened to leave him "a hundred times." A long-time friend of the defendant, Anthony W. Shaw, testified that during a conversation with *896 the defendant in Las Vegas the defendant stated: "The best way that you could do away with a person would be to get a piece of wire and put [it] around their neck and strangle them...."
The standard for determining whether the evidence is sufficient to withstand a motion to dismiss is whether the evidence raises a reasonable inference of the defendant's guilt. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Considered in the light most favorable to the State, the evidence does support a reasonable inference that the defendant murdered Linda Sandlin. The evidence demonstrates the defendant's motive, an opportunity to commit the crime and a connection between the murder weapon and the defendant. Furthermore, the defendant's trip to Florida, his delay in reporting his wife's disappearance and his comment that the best means of committing a murder was by strangulation all add to the reasonableness of a conclusion that the defendant committed the crime.
The victim was last seen in the presence of the defendant on the day she disappeared. The defendant's car was seen backed into the carport with the trunk lid open shortly after the defendant's neighbors last saw Linda Sandlin alive. A cloth ligature, similar in color and texture to the defendant's bathrobe belt, was found wrapped tightly around the decedent's neck. The defendant had also asked the local cemetery operator about a road running behind the cemetery to a row of pine trees where the body was eventually discovered.
The evidence showed past instances of violence by the defendant toward his wife. He had slapped and kicked her and once held a knife to her neck and threatened her life. By his own admission, the defendant had slapped the victim before. He also testified she had threatened to leave "a hundred times."
The victim was troubled by the defendant's earlier marriage to Mildred Sandlin, from whom he had never received a divorce. She was concerned about her financial security and her interest in the marital home if the defendant predeceased her without having divorced Mildred Sandlin. Linda Sandlin had discussed the matter with the defendant, her husband, and had also sought an attorney's advice. Despite a letter from Linda Sandlin's attorney, Mildred Sandlin indicated an unwillingness to agree to a divorce because of the medical benefits she received as a military dependent. The defendant told Mary Ann Sanderson that he and Linda had planned a trip to Maryland to see Mildred Sandlin, presumably to discuss a divorce. From this evidence, a jury could reasonably infer that the defendant, caught between the competing interests of his two wives, had a motive to kill Linda Sandlin.
Even though the evidence presented was entirely circumstantial, the combination of circumstances and coincidences allows a reasonable inference of defendant's guilt. The evidence did more than simply cast suspicion on the defendant. It supplied a motive, demonstrated past hostility toward the victim, connected the murder weapon to the defendant and connected the defendant to the place where the body was buried. Therefore, the trial court did not err in denying defendant's motion to dismiss on grounds of insufficient evidence.
The defendant next argues the trial judge erred in denying his motions for funds to hire an investigator and expert witness. He contends such a request should have been granted under N.C.Gen.Stat. § 7A-454 which provides:
The court, in its discretion, may approve a fee for the service of an expert witness who testifies for an indigent person, and shall approve reimbursement for the necessary expenses of counsel. Fees and expenses accrued under this section shall be paid by the State.
Thus, the grant or denial of motions for appointment of associate counsel or expert witnesses lies within the trial court's discretion and a trial court's ruling should be *897 overruled only upon a showing of abuse of discretion.
Our Supreme Court noted the applicable standard for appointment of expert assistance to indigent defendants in State v. Johnson, 298 N.C. 355, 362-363, 259 S.E.2d 752, 758 (1979) (citations omitted):
As in the case of providing private investigators or other expert assistance to indigent defendants, we think the appointment of additional counsel is a matter within the discretion of the trial judge and required only upon a showing by a defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial.
The basis for the statute is to provide a fair trial, but the defendant must show that "specific evidence is reasonably available and necessary for a proper defense." State v. Tatum, 291 N.C. 73, 82, 229 S.E.2d 562, 568 (1976). The defendant in this case has failed to make such a showing.
The defendant points to the State's use of twenty-six different witnesses, some of whom lived out of state, the prosecutor's not calling all the witnesses interviewed by officers in Las Vegas, the State's use of four expert witnesses and his own use of thirteen witnesses as the reasons necessitating the court's appointment of an investigator and expert witnesses. There is no showing that any evidence other than that presented at trial was reasonably available or that it would have assisted in preparation of a defense. We hold the trial court did not abuse its discretion in refusing to grant defendant's request for a court appointed investigator and expert witness.
The defendant also assigns error to the trial court's finding Dr. Frank Gaunt to be a qualified expert witness in the field of dyestuffs. He contends the witness only had experience in handling customer complaints for National Spinning Company and had never examined a piece of material to determine its original color after its piling was gone and it had been treated with a solvent as the ligature had been in this case.
Our examination of the record reveals the defendant failed to object to the court's admission of Dr. Gaunt as an expert and therefore the defendant's objection is deemed to have been waived. State v. Edwards and State v. Nance, 49 N.C.App. 547, 272 S.E.2d 384 (1980). Even had the defendant properly objected, there was sufficient foundation for Dr. Gaunt's being admitted as an expert. Dr. Gaunt was the director of technical services at National Spinning Company and studied dyestuff chemistry at the University of Leeds in England where he received his doctorate in 1942. Since that time he has worked in the field of dyestuffs and fabrics. He had experience working with all types of natural and man-made fibers and conducted "many types of investigations of returns of materials from customers where it was necessary to decide how the item looked before being subjected to unknown treatment...." Because the defendant did not object, and because the witness had sufficient expertise to aid the jury and from which to express an opinion about the color of the ligature, the defendant's argument is without merit.
We also find to be without merit the defendant's contention that the trial court erred in permitting an interpreter to translate the trial testimony of Nhu Thi Ngo, the victim's mother. The defendant argues that no showing was made that the witness could not speak English. Yet, the record does indicate that Nhu Thi Ngo was asked, "Do you speak English," to which she responded through the interpreter, "Very little."
As to the qualifications of the interpreter, Tran Thi Nguyet, testimony during the court's voir dire showed she was a graduate of North Carolina State University, a citizen of Vietnam and fluent in Vietnamese and English. Ms. Nguyet had taught Vietnamese to American military personnel at Fort Bragg and previously testified in other Superior Court trials. She was not related to any of the principal parties and was instructed that her translation be literal, *898 truthful and impersonal. The interpreter's competence is borne out by the record and the defendant has not brought forward any evidence of bias on the interpreter's part or any prejudice to the defendant.
We also find no error in the trial judge's instruction to the deliberating jury that they should do everything they could to reach a verdict. The defendant argues that the jury was brought back into the courtroom at the trial judge's request so they could recess for dinner. At that time the jury foreman informed the court the result of their vote was nine to three. The court arranged for the jury's transportation to a local restaurant for dinner. When the jury returned, the trial judge gave the following instruction:
Now, ladies and gentlemen of the jury, before you resume your deliberations, as your foreman stated, it seems you've been thus far unable to agree upon a verdict. And I want to emphasize to you the fact that it is your duty to do whatever you can to reach a verdict. You should reason this matter over together as reasonable men and women and reconcile your differences, if you can, without the surrender of conscientious convictions. But no jury should surrender his or her honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. It is your duty to do whatever you can to reach a verdict.
N.C.Gen.Stat. § 15A-1235(c) provides:
If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
There is nothing on the face of the trial judge's instructions which indicates a violation of the defendant's rights. There is also no showing of prejudice to the defendant or any demonstration that the trial judge coerced a verdict by overemphasizing the jury's duty to reach a decision. We hold the trial judge did not commit prejudicial error through his subsequent instruction to the jury before it resumed deliberation.
The defendant's final contention relates to the thirty-five year prison sentence the defendant received for his conviction of second degree murder. The defendant argues there should have been a sentencing hearing to insure a fair sentence. We disagree.
Even though the presumptive sentence for second degree murder under N.C.Gen.Stat. § 15A-1340.4(f)(1) is fifteen years, the trial judge complied with his statutory duties. Under our system of presumptive sentencing, the judge may impose a greater or lesser sentence than the presumptive sentence upon a finding of aggravating or mitigating circumstances. Pursuant to N.C.Gen.Stat. § 15A-1340.4(a)(1)(f), the trial judge found as an aggravating factor the especially heinous, atrocious or cruel nature of the crime. He found the defendant's lack of a criminal record to be a mitigating factor. In accordance with N.C. Gen.Stat. § 15A-1340.4(b), the trial court then found that the aggravating factor outweighed the mitigating factor. As N.C. Gen.Stat. § 15A-1340.4(a) allows, the court is free to emphasize one factor more than another, and the discretionary weighing of mitigating and aggravating factors does not lend itself to a simple mathematical formula. State v. Davis, 58 N.C.App. 330, 293 S.E.2d 658 (1982). We hold the trial court complied with the statute and did not abuse its discretion in finding that murder by strangulation was an especially heinous and cruel crime which outweighed defendant's lack of a criminal record.
We find the defendant had a fair trial free from prejudicial error.
No Error.
WHICHARD and BRASWELL, JJ., concur.
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20 Ariz. App. 467 (1973)
513 P.2d 1350
Herlinda Marie ACEDO, Appellant,
v.
STATE of Arizona, DEPARTMENT OF PUBLIC WELFARE, Appellee.
No. 1 CA-HC 30.
Court of Appeals of Arizona, Division 1, Department B.
September 25, 1973.
Thomas & Udall, by Stephen G. Udall, Flagstaff, for appellant.
Gary K. Nelson, Atty. Gen., by Harold J. Merkow and Joseph C. Richter, Asst. Attys. Gen., Phoenix, for appellee.
OPINION
HAIRE, Judge.
The only issue presented by this appeal is whether a natural mother, who voluntarily executes a consent authorizing the placement of her child for adoption, may regain her child after the child has been *468 placed in an adoptive home, solely upon the ground that at the time she signed the requisite consent form she had an unexpressed misconception as to the form's legal significance, which misconception was not the result of any improper actions on the part of the adoption agency. We hold that on the facts here presented, she may not.
The natural mother, hereinafter referred to as petitioner, filed a habeas corpus petition in the trial court, seeking the return of her baby. The evidence shows that the child was born on February 3, 1972 to petitioner, an unmarried woman, who at that time was 18 years of age and a high school graduate. Prior to the child's birth, petitioner had gone to the County Department of Public Welfare, hereinafter referred to as the adoption agency, at which time she decided that it would be best for the unborn baby to give it up for adoption. After the birth of the baby she changed her mind and decided to keep the child.
Petitioner and the baby resided at the home of petitioner's parents until about August 13, 1972, when, although unemployed and in possession of only $20, she moved out of her parents' home, taking the baby with her. On August 14, 1972, only one day after moving, she made another visit to the adoption agency, where the possibility of adoption was again discussed. On August 15, 1972, a welfare worker went to petitioner's temporary residence to discuss the adoption. Petitioner at that time stated that she wanted to place the baby for adoption, and thereafter petitioner accompanied the welfare worker back to her office.
At the office, petitioner was given a "Consent to Place Child for Adoption" form to read, and after reading it was asked if she understood it. She responded that she did, and thereupon signed the form.
The adoption procedure had been explained to petitioner before the consent form was signed. Included in this explanation, was the fact that in an adoption proceeding the adoption itself is not final until six months after the adoption petition is filed. At no time was there any conversation between petitioner and the representatives of the adoption agency as to petitioner having six months, or any other time period, within which she could, upon request, get her baby back.
In accordance with the written consent, petitioner voluntarily gave her baby to the adoption agency on August 15, 1972. Subsequently, on September 1, 1972, the baby was placed in an adoptive home. During the latter part of August or early September of 1972, petitioner, her $20 expended, returned to her parents' home. On September 4, 1972, petitioner sought to have the baby returned to her and was told that the child had been placed in an adoptive home and that nothing further could be done. On September 8, 1972, petitioner sent to the adoption agency a form prepared by her attorney which purported to revoke her previously given consent. This revocation was received on September 11, 1972. Thereafter petitioner commenced habeas corpus proceedings to have the child returned to her, alleging that the consent for adoption was procured by threats, coercion and fraud.
At the hearing petioner testified that when she signed the consent form she did not realize its finality, but rather thought she could get her baby back at any time within six months. While no formal findings of fact or conclusions of law were made, the trial judge informally stated at the end of the hearing that "because of the nature of this case", he "would resolve in [petitioner's] favor the fact she was confused about the six months." The court did specifically find that the adoption agency had not engaged in threats, coercion or fraud in obtaining the petitioner's consent, and therefore denied the petition based on In re Holman's Adoption, 80 Ariz. 201, 295 P.2d 372 (1956) and In re Adoption of Hammer, 15 Ariz. App. 196, 487 P.2d 417 (1971). From this denial, petitioner has appealed on the ground that her mistaken belief that she could have her *469 baby back anytime within six months rendered her consent invalid.
The requirement for parental consent to an adoption is found in A.R.S. § 8-106, which states in pertinent part:
"A. No adoption shall be granted unless consent to adopt has been obtained and filed with the court from the following:
"1. From both natural parents, if living, except in the following cases:
* * * * * *
"(d) Consent is not necessary from a father who was not married to the mother of the child both at the time of its conception and the time of its birth, unless the father under oath has acknowledged parentage in a document filed with the court or with the agency or division at or prior to the time the petition is filed, or unless the parentage of the father has been previously established by judicial proceedings.
* * * * * *
"D. The minority of the child or parent shall not affect his competency to give consent in the instances set forth in this section."
As to the time of execution and contents of the consent, A.R.S. § 8-107 provides:
"A. All consents to adoption shall be in writing and signed by the person giving the consent and witnessed by two or more credible witnesses who are at least eighteen years of age and who subscribe their names in the presence of the person giving the consent.
"B. A consent given before seventy-two hours after the birth of the child is invalid.
"C. The consent shall be dated and shall sufficiently identify the party giving the consent and the child to whose adoption the consent is given.
"D. The consent shall designate either of the following:
"1. An agency or the division as authorized by the party giving the consent to place the child for adoption."
* * * * * *
There is no contention that petitioner could not have legally consented to the adoption or that the statutory formalities were not complied with. Nor does petitioner now contend that her consent was brought about by fraud, duress, coercion, misrepresentation or other wrongful conduct. Her sole contention on this appeal is that the consent form itself coupled with her conversations with the welfare worker relative to the adoption procedure, justified her belief that she could change her mind and get her baby back within six months.
The consent form is entitled "Consent to Place Child for Adoption" and states in relevant part:
"That I have given the matter due consideration, and I believe the best interests of the child will hereby be promoted.
"NOW, THEREFORE, I do hereby voluntarily and unconditionally consent to the placement of my said child for adoption with the Coconino County Department of Public Welfare, P.O. Box 1966, Flagstaff, Arizona 86001 a duly authorized agency for the placing of children for adoption;
"I hereby surrender custody and relinquish all rights which I may have in the child to said agency, and I do hereby authorize said agency to take all necessary steps towards the adoption of the child.
"I hereby confer absolute and unrestricted power upon the said agency to consent to the adoption of the child without further notice to me, and with the same force and effect as though I personally gave consent at the time of adoption, and I expressly agree and pledge that I will not interfere in any way with the care, management, or adoption of the child.
"I realize that as a result of this consent to place child for adoption, and by the eventual giving of consent by the said agency, the parent-child relationship between me and the child shall, upon entry of a decree for adoption, be completely *470 terminated and that all the legal rights, privileges, duties, obligations, and other legal consequences of said relationship, shall cease to exist, under A.R.S. Sec. 8-117." (Emphasis added).
It should be noted that the form gives unconditional consent to the placement of the child, and specifically states that the signer relinquishes all rights in the child. While the last paragraph of the form does speak in future terms, we are of the opinion that the form, taken as a whole, clearly indicates that the consent given is immediately effective. There is no language in the form which states or implies that the consentor may change her mind, revoke her consent and thereby regain custody of the child. Moreover, in none of the conversations between petitioner and representatives of the adoption agency was the possibility of petitioner regaining custody discussed.
Based on these conversations and the signing by petitioner of the consent form without any expressed reservations on her part, it was both reasonable and proper for the adoption agency to immediately take steps to secure placement of the child in an adoptive home. Since such placement was secured prior to petitioner's attempted revocation of consent the rule set forth in In re Holman's Adoption, supra, is applicable. There the court stated:
"... we hold that a consent once given by the parent or other persons having the authority to give such consent, may not be revoked after the child has been placed in the possession of the adoptive parents except for legal cause shown, as where such consent was procured through fraud, undue influence, coercion or other improper methods." 80 Ariz. 201 at 207, 295 P.2d 372 at 376.
(Emphasis in original).
See also, In re Hammer's Adoption, supra.
Recognizing the rule expressed in Holman supra, the petitioner contends that her unexpressed misinterpretation as to the legal significance of the consent form is sufficient "legal cause" so as to allow her to invalidate what appears to be a voluntary and knowingly executed consent form. We disagree. In Hamer v. Hope Cottage Children's Bureau, Inc., 389 S.W.2d 123 (Tex.Civ.App. 1965), the natural mother sought to revoke her consent on the ground she had not read the consent form and thus was ignorant of its contents. The court summarily dealt with this argument stating:
"She admits that on the occasion of several visits and negotiations with Hope Cottage representatives she discussed the adoption of her children, but she does not claim that false representations were made to her. She says simply that she did not read the three documents of consent before signing them. She herself says that nothing was done to prevent her reading them. Having had full opportunity to read the documents before signing them she will not be permitted to avoid the agreements on the ground that she was mistaken as to or ignorant of their contents." 389 S.W.2d 123 at 126.
Similarly, in Myers v. Myers, 197 A.D. 1, 188 N.Y.S. 527 (1921), the argument that since the consentor did not realize the effect of the documents he signed, his consent was invalid, was held to be without merit. There, the natural father acknowledged signing certain documents pertaining to adoption, but he maintained that the purport of the documents was not made clear to him, and that he was told and believed that his child would be returned to him any time he desired it. The court held that the father was not to be relieved of the consequences of his acts which were in compliance with the applicable adoption statutes. See also, Hurley v. St. Martin, 283 Mass. 415, 186 N.E. 596 (1933).
We think the policy considerations stated by the Nevada Supreme Court in Welfare Division of the Department of Health and Welfare v. Maynard, 84 Nev. 525, 445 P.2d 153 (1968), in an analogous fact *471 situation, are particularly pertinent. There the court stated:
"`It is apparent that if in particular cases the unstable whims and fancies of natural mothers were permitted, first, to put in motion all the flow of parental love and expenditure of time, energy and money which is involved in adoption, and then, as casually, put the whole process in reverse, the major purpose of the statute would be largely defeated.'
* * * * * *
"`Public policy demands that the adoption act should not be nullified by a decision that causes the public to fear the consequences of adopting a child with the full knowledge that their efforts are at the whim and caprice of a natural parent.'" 445 P.2d 153 at 155.
In Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962), the Colorado Supreme Court stated with regard to the trial court's finding that the natural mother did not realize the seriousness and finality of the papers she had signed:
"Even though the evidence were such as to warrant the finding made, the facts recited therein are not sufficient ground for setting aside the decrees of adoption.
"It is not the law that one may avoid the consequences of his voluntary acts, acts not induced by fraud, duress, coercion, etc., by proof that he or she:
`did not realize the seriousness and finality of the papers she [or he] was signing.'
"Such a rule of law would render every contract voidable at the whim of the maker." 369 P.2d 434 at 437. (Emphasis added).
See In re List's Adoption, 418 Pa. 503, 211 A.2d 870 (1965); In re Adoption of Pitcher, 103 Cal. App. 2d 859, 230 P.2d 449 (1951).
In the fact situation under consideration, we do not deem it necessary to find that petitioner in fact had actual knowledge of the legal significance of the consent form which she executed. In this connection we have considered the trial judge's comment that he would resolve in petitioner's favor "the fact she was confused about the six months" as being equivalent to a finding that petitioner did in fact believe that she could change her mind and revoke her consent at any time within six months.[1] Assuming this to be the case, we find the policy considerations enunciated in the above-cited cases persuasive. Here, by signing the consent form, petitioner, a high school graduate presumably of at least normal intelligence, manifested her intent to relinquish her parental rights in clear and unambiguous terms. When asked if she understood it, she replied in the affirmative. The adoption agency had no way of knowing that she interpreted the agreement to mean other than it stated. Her signature was not obtained by fraud, duress, misrepresentations, coercion or any other wrongful behavior. The adoption agency was obligated to secure an adoptive home for the child at the earliest opportunity. The adoptive parents, whom we note were not made parties or represented here, were likewise justified in accepting the child into their home. To allow the efforts and expectations produced by, and flowing from, petitioner's conduct to be destroyed by her unexpressed misconception, which was neither the result of actions by the adoption agency nor the adoptive parents, would be contrary to the public policy manifested by our adoption statutes. The continued integrity of the adoption procedure demands that a consentor be held to the natural consequences of his or her actions, absent the presence of highly important countervailing policy considerations as discussed in Holman, supra.
*472 The fact that the child was in the home of the adoptive parents for only three days before petitioner expressed her desire to have him back, does not alter our conclusion. There must be some readily ascertainable event, upon which adoptive parents can be secure in the knowledge that the child in their home cannot be taken from them solely at the whim of the natural parents. As stated in Holman, supra, that event is when the child is first placed in the adoptive home.
The judgment of the superior court is affirmed.
JACOBSON, C.J., Division 1 and EUBANK, P.J., concur.
NOTES
[1] We are not certain that such an assumption is required by the record. The trial judge also stated, regarding the consent form:
"THE COURT: Part of it may be confusing, I can see, like the six months and the adoption. Part of the form is not confusing such as the first paragraph which says, `I hereby surrender custody of the child and relinquish all rights which I may have in the child to said agency.' There's not too much that's ambiguous about that terminology."
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132 Ga. App. 336 (1974)
208 S.E.2d 136
DOYAL
v.
BEN O'CALLAGHAN COMPANY.
48934.
Court of Appeals of Georgia.
Argued January 11, 1974.
Decided June 21, 1974.
Rehearing Denied July 11, 1974.
Hurt, Hill & Richardson, Robert L. Todd, J. Robert Persons, for appellant.
Lipshutz, Macey, Zusmann & Sikes, Charles C. Pritchard, Charles E. Lamkin, for appellee.
BELL, Chief Judge.
1. The defendant by way of counterclaim sought recovery on a $12,000 note executed by plaintiffs payable to defendant, plus interest and attorney fees. The trial court partially granted defendant's motion for summary judgment for $12,000, the principal, plus specified interest and attorney fees. The plaintiffs admitted execution of the note and it was attached to the complaint. It is also undisputed that the note has not been paid and that defendant made demand upon plaintiff for payment in accordance with Code Ann. § 20-506 to establish the right to obtain the 15% attorney fees specified in the note. The only defense asserted *337 against recovery on the note was failure of consideration. The note was a part of an agreement dated March 3, 1969, given in settlement of all matters previously in dispute which arose out of their original contract for the installation by defendant of a heating and air conditioning system in plaintiffs' premises. By its terms, it was agreed that the "balance due" defendant upon the original contract would be settled and compromised and all claims of "plaintiffs" against defendant and all claims of defendant against plaintiffs would be released and discharged by payment by plaintiffs of $19,572.10 as follows: (1) $7,572.10 in cash on or before March 6, 1969; and (2) the balance of $12,000 to be paid by the note which is in issue. The contended failure of consideration is the defendant's refusal to honor the warranty provision of the settlement contract. This contention has no merit. The parties acknowledged in the new agreement that a "balance was due" defendant. It is obvious from this language that the plaintiffs gave the note in payment of and security for an antecedent obligation, i.e. the amount due defendant on the original contract. No consideration is necessary for an instrument given in payment of or as security for an antecedent obligation of any kind. Code Ann. § 109A-3-408. Notwithstanding the above, consideration was given as the settlement of the disputed claim is sufficient to render the entire contract binding. Riley & Co. v. London Guaranty &c. Co., 27 Ga. App. 686 (109 S.E. 676). There is no genuine issue of fact with reference to the note. Defendant has shown its right to judgment on the note as a matter of law. The grant of the partial summary judgment was correct.
2. The trial court also correctly ruled that there were triable issues as to the main claim of plaintiffs for damages for breach of warranty as provided for in the settlement contract. This contract operated as an accord and satisfaction of the earlier one and plaintiffs' right to recover on a breach of warranty is controlled by the latter contract.
3. Issues as to the computation of interest on the note and attorney fees have not been enumerated as error and are not argued. We have no jurisdiction to pass on these issues. Code Ann. § 6-810; Calhoun v. Patrick, 116 *338 Ga. App. 303 (157 SE2d 31).
Judgment affirmed. Eberhardt, P. J., Clark, Stolz and Webb, JJ., concur. Pannell, P. J., and Deen, J., concur specially. Quillian and Evans, JJ., dissent.
PANNELL, Presiding Judge., concurring specially.
R. L. Doyal, Jr., and others as owners of an apartment complex, entered into a written contract with Ben O'Callaghan Company for installation of heating and air conditioning equipment in the various apartments of the complex. A dispute arose as to delayed performance and the amount of the final payment. A conference was held and a purported accord and satisfaction of the differences between the parties was proposed. The defendant then, under date of March 3, 1969, wrote a letter of what he considered was the agreement reached as a result of the conference. This letter was signed by all parties. We quote from that agreement the material parts thereof putting the words "plaintiff" and "defendant" in the place of the names of the parties:
"It was agreed that the balance due by plaintiff to defendant under the above described contract would be settled and compromised and all claims of plaintiff against defendant and all claims of defendant against plaintiff, whether now existing or hereafter arising out of the above described contract would be released and discharged except for duties and obligations of defendant under warranties provided for in said agreement, as amended, by payment of plaintiff to defendant of $19,572.10 in addition to the other sums paid by plaintiff to defendant to date as follows: (1) $7,572.10 on or before March 6, 1969. (2) The remaining balance of $12,000 to *339 be paid 12 months from date. This indebtedness shall be evidenced by a promissory note executed personally by all participants in plaintiff, bearing interest from date at the rate of 8% per annum. It was my understanding, and I proposed that the date for termination of the warranties be October 1, 1969. The parties agreed that the warranties would extend through the changeover cycle from air conditioning to heating required in the fall of 1969, and this should be completed by October 1. I am enclosing a memorandum relative to those items which will be warranty items and those which would be service items. I am enclosing a promissory note for execution pursuant to our agreement." The agreement was carried out by the plaintiff paying the $7,572.10 cash on March 6, 1969, and executing the proposed note for the $12,000 bearing interest at 8% from date; the note being dated March 3, 1969, which note was delivered to and accepted by the defendant.
Doyal and the other joint owners, thereafter, filed suit against Ben O'Callaghan Company for breach of installation contract and certain warranties, for negligence in design and in the installation, and for failure to comply with the terms of the accord and satisfaction agreement.
The defendant answered and denied being indebted to plaintiff and pleaded accord and satisfaction of all of plaintiff's claims by reason of the accord and satisfaction agreement contending none of the claims for breach of warranty occurred prior to this agreement. The defendant counterclaimed and sought recovery on the note including principal, interest and attorney fees; and also, sought recovery for a small sum for work done since the execution of the alleged accord and satisfaction, which was not work occasioned by the alleged breach of warranty.
The defendant moved for summary judgment, on the basis of its construction of the accord and satisfaction agreement and, in the event the trial judge did not see fit to grant a summary judgment as to the entire case, prayed for in the order under Paragraph (d), Section 56 of the Civil Practice Act (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; Code Ann. § 81A-156). After a hearing, the *340 trial court granted a "partial summary judgment" entering the following order: "The defendant contends that the evidence has shown that plaintiffs owe defendant the principal sum of $12,000 as evidenced by the executed promissory note attached to the Affidavit of Ben O'Callaghan, as Exhibit Seven. This note matured March 3, 1970. Defendant further moves that if Summary Judgment cannot be granted upon the whole case, that the Court should award the amount of the note, plus interest and attorney's fees as a `partial summary judgment' and direct the matter to be tried as to plaintiff's case only. Defendant argues that the original contract dated October 11, 1967, and attached to the Affidavit of Ben L. O'Callaghan as Exhibit One was later supplemented by Exhibits Two and Three. Defendant states that a subsequent agreement, attached to the O'Callaghan Affidavit as Exhibit Four amounted to an accord and satisfaction of the former contract between the parties. Exhibit Four of the Affidavit of Ben O'Callaghan is in letter form and provides that the date of termination of the warranties under the contract should be October 1, 1969. The contract sets forth the warranties between the parties and Exhibit Four of O'Callaghan Affidavit further identifies those items which are not warranty items. Code Ann. § 81A-156 (d) provides: `If on motion under this section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.' Although there has been some confusion over the meaning of this provision, particularly as it relates to subdivisions (a) and (b) of Code Ann. § *341 81A-156, the better view is that the term `partial summary judgment' as used here by defendant is a misnomer and that Code Ann. § 81A-156 (d) `is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to Code Ann. § 81A-116, and likewise serves the purpose of speeding up litigation by elimination before trial matters wherein there is no genuine issue of fact.' Advisory Committee on Rules for Civil Procedure. Report of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States, 5 F.R.D. 433, 475 (1946). Coffman v. Federal Laboratories, 161 F2d 94 (3d Cir. 1948), cert. denied, 336 U.S. 913 (1949); Biggins v. Oltmer Iron Works, 154 F2d 214 (7th Cir. 1946); Audi Vision, Inc. v. RCA Mfg. Co., 136 F2d 621 (2d Cir. 1943); Metal Coating Corp. v. Baker Mfg. Co., 227 FSupp. 529 (W. D. Wis. 1964). See Finney v. Pan-American Fire & Casualty Co., 123 Ga. App. 250, 253 for further elaboration on this matter.
"Consequently, construing defendant's Motion as one for `partial summary judgment,' the duty of this Court is to specify which facts appear and are deemed established during any further proceedings. It is therefore ordered that the defendant has established the indebtedness of the plaintiffs on the promissory note dated August 3, 1969, in the principal amount of $12,000, plus interest in the amount of $3,439.20, plus attorney's fees on the whole amount in the amount of $2,315.88. Accordingly, the trial will proceed on the main action of the plaintiffs but only as to damages arising from breach of warranty occurring on or before October 1, 1969, as provided in the agreement of the parties dated March 3, 1969. This 19 day of September, 1973."
1. It is apparent from paragraph 2 of the motion for summary judgment and the trial judge's order that he had no intentions to, and actually did not render a final judgment against the plaintiff on the defendant's counterclaim on the note for principal, interest and attorney fees, but was merely establishing the amounts of these items against which any recovery by plaintiff for the breach of warranty, or failure of consideration, because of such breach, could and would be set off, and *342 was apparently intended to be in the nature of a pre-trial order. However, the plaintiff properly appealed on the action taken as a "partial grant of a summary judgment" without a certificate for review. If the trial judge had merely ruled that the validity of the note had been established, that no payment or tender of payment had been made and that a proper notice of attorney fees had been given, he would have been on safer ground and there would have been no error.
2. Plaintiff-appellant contends that the note is void because it was given as part of a contract of accord and satisfaction, which has not been performed. See Brunswick & Western R. Co. v. Clem, 80 Ga. 534 (5), 539 (7 S.E. 84); Long v. Scanlan, 105 Ga. 424 (2), 427 (31 S.E. 436); Petty v. Brunswick & Western R. Co., 109 Ga. 666, 680 (35 S.E. 82); Redman v. Woods, 42 Ga. App. 713 (157 S.E. 252). The argument of the plaintiff in this regard is that defendant has not performed his work properly and, therefore, the accord was reached but there has been no satisfaction, and therefore, the accord and satisfaction not having been consummated, the note given pursuant to it is void. This contention is without merit, as the contract of accord and satisfaction contains no obligation on the part of the defendant to do any further work to complete the subcontract, but was itself an agreement as to the amount of the final payment under the subcontract. Nor was the accord and satisfaction incomplete on the ground that the plaintiff had not paid the note counterclaimed upon by the defendant. The act of the defendant in discounting the note, or borrowing money upon it, and counterclaiming upon the note, demonstrates a conclusive acceptance of the note as a final payment under the subcontract. See Alexander-Seewald Co. v. Questa, 121 Ga. App. 611 (2) (175 SE2d 92).
Further, the settlement of disputed unliquidated claims is a sufficient consideration for an accord and satisfaction agreement (Riley & Co. v. London Guaranty &c. Co., 27 Ga. App. 686 (1) (109 S.E. 676); King v. Liberty Nat. Life Ins. Co., 59 Ga. App. 496 (1 SE2d 223)), and the defendant having elected to sue upon the note for the balance due, for which he had a right to do (Farmers State *343 Bank v. Singletary, 22 Ga. App. 653 (1) (97 S.E. 90)), it does not lie within the rights of the plaintiff to say the agreement of accord and satisfaction is void and the note is void because of plaintiff's failure to pay the note. There was, therefore, no error in holding the note valid for the full amount of the principal thereon.
3. There was no payment on the note or tender of payment so as to stop the accrual of interest. Code § 20-1105. Nor can the bringing of the complaint prior to maturity of the note and calling the complaint an attack on the note because of failure of consideration be considered a tender for the purpose of stopping the accrual of future interest for the reason that the prayers of the complaint sought the avoidance of the note on the grounds discussed in Division 2, above, together with a complete recovery of the total amounts sued for without applying such amounts to the payment of or a set-off against the note. The trial judge, therefore, was correct in including interest up to the date of his order as being established (subject to off-set by plaintiff's recovery, if any) but made a mistake in computing the interest from the due date of the note, rather than the date of the note as provided therein.
4. The trial court erred in setting any amount of attorney fees. The defendant's recovery of attorney fees, being on a percentage basis, depends upon the amount of his actual recovery of principal and interest. If the plaintiff should recover on the breach of warranty enough to reduce the principal and interest, the attorney fees recoverable by the defendant would be a percentage of the amount he should recover on the note over and above the recovery of the plaintiff. If there is no overage, the defendant recovers no attorney fees. See in this connection Livingston Brothers v. Salter, 6 Ga. App. 377 (1, 2) (65 S.E. 60); Rylee v. Bank of Statham, 7 Ga. App. 489, 498 (5) (67 S.E. 383).
5. It is clear from reading the letter proposing the accord and satisfaction which was accepted by the plaintiff that all claims `whether now existing or hereafter arising out of the" subcontract "would be released and discharged," and the only exception to this being the warranties under the subcontract, this *344 exception would include any claim for breach of warranty then existing or thereafter arising prior to October 1, 1969. The trial court, therefore, was correct in holding the plaintiffs were entitled to go to a jury as to breach of warranty occurring any time prior to October 1, 1969.
I would affirm the judgment with direction that the interest be figured from the date of the note and the amount of attorney fees, if any, be determined and fixed at the proper time, after verdict of the jury upon the trial.
I am authorized to state that Judge Deen agrees with this special concurrence.
EVANS, Judge, dissenting.
R. L. Doyal, Jr., and others, as owners of an apartment complex, entered into a written contract with Ben O'Callaghan Company for the installation of heating air conditioning equipment in the various apartments of the complex. A dispute arose as to delayed performance and final payment. A conference was held and a purported accord and satisfaction of the differences between the parties was proposed. The accord and satisfaction agreement provided that the owners would execute a note for $12,000 payable to O'Callaghan; an additional amount of money would be paid to O'Callaghan in cash; and O'Callaghan would waive its right to a lien on the property, which waiver would enable the owners to obtain a loan on said property. The accord and satisfaction proposal also provided that all warranties as to the work, material and equipment would be effective until October 1, 1969. The proposal as to accord and satisfaction was written by O'Callaghan and accepted by the owners.
Doyal and the other joint owners thereafter filed suit against Ben O'Callaghan Company for breach of the installation contract and certain warranties; and for negligence in design and in the installation; and for a failure to comply with the terms of the accord and satisfaction agreement.
Defendant answered and denied being indebted to plaintiff, and pleaded accord and satisfaction of all of plaintiff's claims by reason of the accord and satisfaction agreement. Defendant counterclaimed, and therein *345 contended that plaintiff had not paid the note for $12,000 executed as a part of the accord and satisfaction agreement, and prayed judgment for same.
Defendant moved for summary judgment, the basis of which was the accord and satisfaction agreement. After hearing, the trial court granted a partial summary judgment, and established defendant's claim on the note for $12,000, plus interest of $3,439.20, and attorney fees of $2,315.88. The judgment on summary judgment also provided that the trial would proceed on the remaining damages claimed by plaintiff for the alleged breach of warranty which occurred on or before October 1, 1969.
The note for $12,000 given as a part of the consideration of the accord and satisfaction, had not been paid at the time suit was filed, nor when the motion for summary judgment was made. Further, plaintiff's complaint alleged that the warranties, which were a part of the consideration of the accord and satisfaction, had not been complied with. Before an agreement can become an "accord and satisfaction" it must be fully executed. If anything remains to be done, the contract of accord and satisfaction is thereby made "executory" and does not fit within the definition of "accord and satisfaction." Brunswick & Western R. Co. v. Clem, 80 Ga. 534 (5), 539 (7 S.E. 84); Long v. Scanlan, 105 Ga. 424 (2), 427 (31 S.E. 436); Petty v. Brunswick & Western R. Co., 109 Ga. 666, 680 (35 S.E. 82); Redman v. Woods, 42 Ga. App. 713 (157 S.E. 252). As stated in Russell v. Smith, 77 Ga. App. 70 (47 SE2d 772), at page 73, in regard to contracts in the nature of accord and satisfaction, one "can enforce either the original duty or the subsequent contract."
In the case sub judice there was a conflict between the parties as to performance of the warranties under the purported accord and satisfaction, and this was sufficient to require denial of summary judgment. The trial court should have denied summary judgment in toto, despite the establishment of the note and that plaintiff may have owed same, as a jury may decide that nothing was owing by plaintiff on the note at the time of the trial. Preston & Fogarty v. Morgan, 120 Ga. App. 878 (172 SE2d 319); Hall v. Westmoreland, 123 Ga. App. 809, 811 (182 SE2d 539).
*346 I therefore dissent, as I would reverse the judgment of the lower court.
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51 Wis.2d 220 (1971)
186 N.W.2d 228
HOFFMAN COMPANY, INC., Petitioner,
v.
DEPARTMENT OF REVENUE, Respondent.
No. 79.
Supreme Court of Wisconsin.
Argued April 1, 1971.
Decided May 4, 1971.
*221 For the petitioner there were briefs and oral argument by Walter H. Brummund of Appleton.
For the respondent the cause was argued by E. Weston Wood, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
CONNOR T. HANSEN, J.
The issue on this appeal is whether the commission properly determined that interest *222 payments by the petitioner to George Hoffman were not ordinary and necessary expenses paid by petitioner in the operation of its business from which its income is derived within the meaning of sec. 71.04 (2), Stats.
The petitioner is a Wisconsin corporation engaged in the general contracting business. In 1963, the petitioner entered into an agreement with George Hoffman, one of its shareholders, to redeem his stock. Pursuant to this agreement, the stock was surrendered immediately but payment of $60,000 was deferred over a period of years, with interest at the rate of seven percent per annum, payable on the unpaid balance.
In the fiscal years ending January 31, 1964 through 1966, the petitioner paid interest to George Hoffman, totaling $8,524.92, which it deducted for income tax purposes.
Following the hearing held before the Wisconsin Tax Appeals Commission, the commission made the following findings of fact:
"2. Prior to its incorporation on April 5, 1947, petitioner was a partnership composed of Paul Hoffman and Fred W. Hoffman, with both partners having equal shares in the partnership.
"Fred W. Hoffman died in 1947 and his share in the partnership descended one-third to his widow, Elizabeth Hoffman, one-third to his daughter, Grace Hintz, and one-third to his son, George Hoffman.
"3. At the time of petitioner's incorporation, the original stockholders with their respective shares of stock were as follows:
Shares
Paul Hoffman 300
Elizabeth Hoffman 100
Grace Hintz 100
George Hoffman 100
"4. In 1948 petitioner purchased the 100 shares owned by Elizabeth Hoffman for cash.
*223 "In 1950 petitioner purchased the 100 shares owned by Grace Hintz for cash.
"In 1954 petitioner purchased 26 shares of George Hoffman's stock for cash.
"The remaining 74 shares of George Hoffman's stock were redeemed by petitioner in 1963 for a consideration of $60,000 evidenced by a note based upon the following resolution adopted by petitioner on June 25, 1963,
"'Be it further resolved: That the corporation redeem all of the shares now owned by George Hoffman, being 74 shares, for the price of $60,000, payment to be made in debentures of the corporation bearing 7 percent interest. On or about April 1, 1964, sufficient of these debentures are to be redeemed to enable George Hoffman to receive a sum equal to his income tax resulting from this sale plus $10,000.'
"5. Petitioner paid to George Hoffman in connection with the acquisition of his stock described in Finding of Fact No. 4 the following interest payments:
"Fiscal year ending January 31 Amount
1964 $2216.62
1965 $3252.05
1966 $3056.25
"Petitioner listed said interest payments as deductions from its gross income during the respective fiscal years referred to herein.
"6. Petitioner contended that the interest paid to George Hoffman described in Finding of Fact No. 5 was a deductible expense under Sec. 71.04 (2) Wis. Stats., whereas respondent maintained that said payment of interest was not a deductible expense.
"7. Interest paid as described in Finding of Fact No. 5 was not ordinary and necessary expenses actually paid within the year out of the income in the maintenance and operation of its constructing business and property."
The evidence adduced at the hearing also showed that pursuant to the taxpayer's by-laws, the stock carried a restriction on transfer whereby in the event any shareholder desired to sell his stock the corporation had the right of first refusal for a period of forty-five days. *224 The evidence also showed that prior to the redemption of George Hoffman's stock in 1963, the shareholders of the corporation were Paul Hoffman, 198 shares; George Hoffman, 74 shares; Gerald Hoffman, 34 shares; Betty Vosper and Carlton Hoffman, each 33 shares; and Ernie Miron, 22 shares. Gerald Hoffman, Carlton Hoffman and Betty Vosper are the children of Paul Hoffman.
As to the repurchase of George Hoffman's stock in 1963, Gerald Hoffman, the president and general manager of the corporation, testified that George Hoffman wanted to sell his stock because the corporation did not pay dividends and he needed to supplement his income. He testified that George Hoffman could have sold his stock on the open market after forty-five days and that the corporation purchased the stock because "we wanted to retain close ownership of this stock because of existing harmonious operation." He further testified that due to the nature of the business, the corporation required a large amount of working capital; thus the seven percent debenture was issued rather than a cash payment.
Sec. 71.04 (2), Stats., authorizes the deduction of ordinary and necessary expenses paid by the corporation in the maintenance and operation of the business, including interest paid in the operation of the business:
"71.04 Deductions from gross income of corporations. Every corporation . . . shall be allowed to make from its gross income the following deductions:
". . . .
"(2) Other ordinary and necessary expenses actually paid within the year out of the income in the maintenance and operation of its business and property . . . and including also interest and rent paid during the year in the operation of the business from which its income is derived; . . ."
In Wisconsin Ornamental Iron & Bronze Co. v. Wisconsin Tax Comm. (1930), 202 Wis. 355, 229 N. W. 646, *225 233 N. W. 72, the corporation repurchased the shares of one of its stockholders and payment was deferred. The tax commission disallowed a deduction claimed for interest paid on the deferred portion. This court affirmed the commission's finding that the interest was not deductible under sec. 71.03 (2), Stats. (now sec. 71.04 (2)). The court stated:
". . . Sec. 71.03 (2) authorizes deduction for 'interest paid during the year in the operation of the business from which its income is derived.' The Tax Commission and the trial court correctly held that this was not interest paid `in the operation of the business from which its income is derived.' Nor is it a transaction from which any income will ever accrue to the state. . . . It matters not to the state who owns the stock. The purchase of this stock on the part of the corporation was but a mere readjustment of its internal affairs, bearing no relation whatever to its activities giving rise to income. The interest paid by it on the deferred portion of the purchase price of the stock was in no sense of the word paid `in the operation of the business from which its income is derived,' and its deduction was not authorized by the statute." Wisconsin Ornamental Iron & Bronze Co. v. Wisconsin Tax Comm., supra, page 363.
Subsequent to the Wisconsin Ornamental Case, the Wisconsin Department of Taxation adopted the following administrative rule:
"Tax 3.20 Interest paid by corporations. (Section 71.04 (2), Wis. Stats.) Interest paid on money borrowed by a corporation to purchase its own capital stock is not deductible." 7 Wis. Adm. Code, sec. Tax 3.20.
Under the particular facts in Rib Lake Lumber Co. v. Tax Comm. (1933), 212 Wis. 412, 249 N. W. 322, this court held that interest paid on money borrowed to purchase stock as a part of a corporate reorganization was deductible under sec. 71.03 (2), Stats. (now sec. 71.04 (2)). In that case a Wisconsin holding company, *226 which held the shares of several Wisconsin subsidiary corporations, caused a Delaware corporation to be organized and transferred its shares in the Wisconsin subsidiaries to the Delaware corporation. The Delaware corporation took title to the subsidiaries' assets and dissolved those corporations. The Delaware corporation gave the Wisconsin holding company shares of its own capital stock and debentures in payment for the transfer of the shares of the subsidiary corporations. This court held that the interest paid by the Delaware corporation on the debentures was deductible, as interest paid in the operation of the business.
In Pelton Steel Casting Co. v. Department of Taxation (1954), 268 Wis. 271, 67 N. W. 2d 294, this court held that interest paid by a corporation on a bank loan obtained for the purpose of repurchasing its own stock was not deductible under sec. 71.04 (2), Stats. In that case, all of the common stock held by two shareholders, representing 80 percent of the common stock, was redeemed by the corporation, with the result that the shareholder formerly holding 20 percent of the common stock, after the redemption had 100 percent control. The court distinguished the Wisconsin Ornamental Case from the Rib Lake Lumber Case, and held in the instant case that the transaction did not affect the earnings of the corporation, and thus the interest paid on money borrowed to repurchase the stock was not interest paid in the operation of the business. The court stated:
"The rule [Tax 3.20] is an interpretation of the case of Wisconsin Ornamental I. & B. Co. v. Wisconsin Tax Comm. 202 Wis. 355, 229 N. W. 646, 233 N. W. 72, and that case is directly in point here. The rule is based on the obvious difference between a corporation borrowing money to buy material or to finance operating expenses and borrowing money to centralize control of the corporation for the direct benefit of an individual or certain individuals, and it is that difference which distinguishes *227 the case of Wisconsin Ornamental I. & B. Co., supra, from Rib Lake Lumber Co. v. Tax Comm. 212 Wis. 412, 249 N. W. 322. . . .
"The transactions of appellant here did not affect the earnings of the corporation so that the interest paid on the money borrowed could be deducted from the gross income. It is only `interest . . . paid during the year in the operation of the business from which its income is derived' that is deductible. Sec. 71.04 (2), Stats. The loan was made for the sole purpose of securing funds, which, together with $300,000 of other cash, should be used to purchase for retirement the Ehne and Fawick stock, and the loan agreement expressly so provides. The transaction is not one from which any income will ever accrue to the state. . . . `The interest paid . . . was in no sense of the word paid "in the operation of the business from which its income is derived," and its deduction was not authorized by the statute.' Wisconsin Ornamental I. & B. Co. v. Wisconsin Tax Comm., supra (p. 363)." Pelton Steel Casting Co. v. Department of Taxation, supra, pp. 276, 277.
In Basic Products Corp. v. Department of Taxation (1963), 19 Wis. 2d 183, 120 N. W. 2d 161, the taxpayer, a publicly held corporation, borrowed certain sums for the purpose of retiring its preferred stock as part of a plan established at the time the stock was issued. This court held that the interest paid on the money borrowed to redeem the preferred stock was deductible under sec. 71.04 (2), Stats. The court held that the administrative rule was not valid as applied to the facts of that case, and distinguished the Wisconsin Ornamental and the Pelton Steel Cases on the ground that in those cases the repurchase of stock was for a private purpose, i.e., a mere readjustment of internal affairs or to centralize control for the direct benefit of an individual or individuals.
"The department rule was upheld in Pelton Steel Casting Co. v. Department of Taxation (1954), 268 Wis. 271, 276, 67 N. W. (2d) 294, which case was very similar *228 to the Wisconsin Ornamental Case. In both cases interest was paid on money used to purchase the corporation's own shares, but the purpose in each case was to realign the interests of certain individual stockholders.
"In the Wisconsin Ornamental Case interest was paid by the corporation on the deferred portion of the purchase price under a contract made by the corporation with a single stockholder. This prompted the supreme court to observe, at page 363:
"`The purchase of this stock on the part of the corporation was but a mere readjustment of its internal affairs, bearing no relation whatever to its activities giving rise to income.'
"Similarly, in the Pelton Steel Case the corporation borrowed money to purchase the common stock held by two shareholders with the result that a third shareholder would remain the owner of all the common stock of the corporation. The court found that the Wisconsin Ornamental Case was directly in point, adding, at page 276:
"'The rule is based on the obvious difference between a corporation borrowing money to buy material or to finance operating expenses and borrowing money to centralize control of the corporation for the direct benefit of an individual or certain individuals, . . .'
"If interpreted in the light of the Wisconsin Ornamental Case and the Pelton Steel Case and limited to comparable factual situations, the department rule is valid. In other words, if interpreted to preclude the deduction of interest paid on money borrowed by a corporation to purchase its own capital stock for the purpose of readjusting the ownership interest of specific individuals, it is a rule consistent with the statute." Basic Products Corp. v. Department of Taxation, supra, pages 186, 187.
This court went on to state that the corporation in the instant case was publicly held; that the entire outstanding issue of preferred stock was redeemed by the corporation; and that there was no indication that any individual shareholder or group of shareholders was favored by the transaction.
*229 It was further held that interest paid on a transaction for the purpose of realigning the corporation's financial structure was paid in the operation of the business from which the income is derived.
". . . In a very real sense the realignment of a corporation's financial structure can play a role `in the operation of the business from which its income is derived.'
"In the instant case, the readjustments were not made for private purposes as they so obviously were in the Wisconsin Ornamental Case and the Pelton Steel Case. The taxpayer in this case revised its stock structure for the purpose of strengthening the corporation and thereby better enabling it to produce income. . . .
". . . In realigning the corporate stock interests for the benefit of all the common stockholders, the corporation was pursuing a valid and regular business purpose; in the absence of a showing that this was done for the benefit of a few as opposed to the benefit of the corporation, we consider that interest paid in the course thereof is deductible within the statute. This is particularly true as to a publicly owned corporation. In a closely held corporation it is more difficult to demonstrate that the readjustment of stock holdings is in the interest of the corporation. Any suggestion of manipulation is non-existent in the instant case, and the deduction must be allowed." Basic Products Corp. v. Department of Taxation, supra, pages 188, 189.
This case is somewhere in between the Wisconsin Ornamental and Pelton Steel Cases on the one hand, and the Rib Lake Lumber and Basic Products Cases on the other. The redemption of George Hoffman's stock did not significantly shift control as did the redemptions that occurred in Wisconsin Ornamental and Pelton Steel Cases. George Hoffman's 74 shares represented 18 percent control. Both before and after redemption, Paul Hoffman, the majority shareholder, had over 50 percent and less than 66 2/3 percent of the control. However, there was no showing that the redemption was for the purpose *230 of realigning the corporation's financial structure or was at all related to the income production of the corporation as in Rib Lake Lumber and Basic Products.
Petitioner is a closely held corporation, primarily by members of the Hoffman family. It is undisputed that George Hoffman was a dissatisfied stockholder and proposed to sell his stock. Petitioner argues it had many good business reasons for the purchase of the stock, including prevention of the sale of the stock to outsiders and the preservation of working capital. However, the commission made a determination to the contrary.
The only evidence as to the corporation's purpose in redeeming the stock was the testimony of Gerald Hoffman that the stock was purchased to prevent the sale to outsiders and keep the corporation closely held. No showing was made that the sale of the shares to an outsider would have any effect on the income producing activity of the corporation, or that maintenance of control by the existing shareholders was necessary to preserve or strengthen the corporation's financial status.
As stated in Wisconsin Ornamental and Pelton Steel, the state cares not who owns the stock. "The purchase of this stock on the part of the corporation was but a mere readjustment of its internal affairs, bearing no relation whatever to its activities giving rise to income. The interest paid . . . was in no sense of the word paid `in the operation of the business from which its income is derived,' and its deduction was not authorized by the statute." Wisconsin Ornamental Iron & Bronze Co. v. Wisconsin Tax Comm., supra, page 363.
The commission determined that the interest paid was not ordinary and necessary expenses actually paid within the year out of the income in the maintenance and operation of its construction business and property.
The findings of the commission are supported by substantial evidence when reviewing the entire record. *231 Robertson Transportation Co. v. Public Service Comm. (1968), 39 Wis. 2d 653, 159 N. W. 2d 636. The judgment of the circuit court is affirmed.
By the Court.Judgment affirmed.
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361 F.3d 759
Marvin DENIS, Petitioner-Appellant,v.UPSTATE CORRECTIONAL FACILITY, Clinton Correctional Facility, Respondent-Appellee.
No. 03-2358.
United States Court of Appeals, Second Circuit.
Argued: March 1, 2004.
Decided March 19, 2004.
Amy Adelson, Dershowitz, Eiger & Adelson, P.C. (Nathan Z. Dershowitz, on the brief), New York, NY., for Petitioner-Appellant.
Eric A. Johnson, Assistant Solicitor General, for Eliot Spitzer, Attorney General of the State of New York (Nancy A. Spiegel, Senior Assistant Solicitor General, on the brief), for Respondent-Appellee.
Before: VAN GRAAFEILAND, LEVAL, CALABRESI, Circuit Judges.
CALABRESI, Circuit Judge.
1
In 1999, Petitioner Marvin Denis ("Petitioner") was convicted in New York state court, after a jury trial, of murder in the second degree. He was sentenced to a term of imprisonment of twenty-five years to life. The New York Appellate Division affirmed his conviction, and review by the New York Court of Appeals was denied. On November 15, 2001, Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of New York. The petition raised three claims: insufficiency of the evidence, pre-indictment delay in violation of due process, and defective jury instructions. The district court (Kahn, J.), adopting a magistrate judge's report and recommendation, denied the petition. The district court then issued a certificate of appealability as to Petitioner's three claims, and Petitioner appealed. We affirm the judgment of the district court.
2
The facts of this case are much disputed. Ultimately, the strength of the prosecution's case turned on the credibility of various witnesses. In reaching its verdict, the jury resolved these questions of credibility in a manner that was adverse to Petitioner. Although the evidence was not overwhelming, we find that it was legally sufficient.
3
Petitioner's second argument is that the prosecutor's 77-month delay in obtaining an indictment violated his right to Due Process. The Supreme Court has stated that, in order to prevail on a claim of unconstitutional pre-indictment delay, a petitioner must show that he suffered actual prejudice as the result of the delay and that the delay was an intentional device to gain a tactical advantage. See United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Petitioner has not satisfied either requirement.
4
Finally, Petitioner argues that two aspects of the jury instructions may have misled the jury as to the prosecution's burden of proof and the reasonable-doubt standard. We agree with Petitioner that, if read out of context, the portion of the charge in which the judge told the jury that it had the responsibility "to determine what actually occurred on that day" did not accurately state the law. However, when the charge is considered in its entirety, it explained the law accurately and there is no reasonable likelihood that the jury applied the instructions in an unconstitutional manner. See Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994); Gaines v. Kelly, 202 F.3d 598, 605-06 (2d Cir.2000).
5
We have considered all of Petitioner's claims and find them to be without merit. We therefore AFFIRM the judgment of the district court.
6
VAN GRAAFEILAND, Circuit Judge, dissenting.
7
Because my vote, either to affirm or reverse in this troublesome case, will not affect the decision of my colleagues, I simply note that I dissent.
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720 A.2d 1157 (1998)
1998 ME 248
Janine HEDRICH
v.
David S. HEDRICH.
Supreme Judicial Court of Maine.
Submitted on Briefs October 28, 1998.
Decided November 23, 1998.
*1158 Philip D. Buckley, Virginia Kozak Putnam, Rudman & Winchell, LLC, Bangor, attorney for plaintiff.
Richard L. Currier, Currier & Trask, Presque Isle, attorney for defendant.
Before WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
ALEXANDER, Justice.
[¶ 1] David Hedrich and Janine Hedrich both appeal from the judgment entered in the Superior Court (Penobscot County, Kravchuk, C.J.) vacating in part a divorce judgment of the District Court (Bangor, MacMichael, J.). David Hedrich contends that the Superior Court erred in vacating a provision of the District Court judgment which terminated the award of alimony after three years. Janine Hedrich contends that the District Court erred in not awarding a larger sum of alimony, not properly calculating child support and in failing to deviate from the Child Support Guidelines.
[¶ 2] Where, as here, the Superior Court acts as an intermediate appellate court, we review directly the decision of the District Court. Fowler v. Fowler, 1997 ME 231, ¶ 6, 704 A.2d 373, 374. Reviewing for an abuse of discretion, this Court will overturn the trial court's determination of child support or alimony only if it violates "a positive rule of law" or "results in a plain and unmistakable injustice, so apparent that it is instantly visible without argument." See id.; Ryan v. Ryan, 1997 ME 136, ¶ 6, 697 A.2d 60, 61.
[¶ 3] On the issues of the amount of alimony awarded[1] and the exercise of the court's discretion to deviate from the Child Support Guidelines,[2] we conclude that the District Court determinations and reasoning were within the considerable range of discretion allowed by the statutes governing alimony awards and deviation from the Child Support Guidelines. We do determine, however, that the District Court erred in terminating alimony after three years and in calculating child support payments without considering child care costs.
[¶ 4] An award of spousal support or alimony for a specific, time limited period is a choice available to the divorce court. 19-A M.R.S.A. § 951(6) (Pamph.1996).[3] However, as with other determinations, a time limited award must be supported by adequate findings. We have stated that a trial court cannot base its determination of alimony time limits on speculative predictions of future economic conditions. Ketchum v. Ketchum, 1998 ME 62, ¶ 1, 707 A.2d 803, 804; Ryan, 1997 ME 136, ¶¶ 6-8, 697 A.2d at 61-62.
[¶ 5] This case presented unique and difficult circumstances regarding prediction of future needs for alimony. The parties' child, born in 1990, has multiple, rare and severe, physical and mental problems. He requires continual, special care. His primary physical residence is with Janine Hedrich in California. As a result, Janine Hedrich's employment and economic prospects and opportunities for advancement may be limited by varying degrees of special care and attention that may have to be given to the child. Unlike other cases of transitional alimony where a divorcing spouse's progress towards employment or educational goals and economic *1159 self-sufficiency may reasonably be predicted, in this case prediction is impossible for reasons beyond the divorcing spouse's control. The child's health makes Janine Hedrich's future economic circumstances an issue of considerable speculation and uncertainty. The District Court, in setting a three year cut-off for alimony, engaged in speculation regarding Janine Hedrich's future and very uncertain economic circumstances. Because the imposition of a three year cut-off on the alimony award is not supported by the available evidence on the record in this case, it must be vacated.
[¶ 6] Calculation of child support amounts, for purposes of this case, was governed by 19 M.R.S.A. § 316 (Pamph.1996), repealed by P.L.1995, ch. 694 § B-1 (effective Oct. 1, 1997).[4] Subsection (2)(A) of section 316 requires that the child support calculation include adding "the sums actually being expended for child care costs" to the basic support entitlement.
[¶ 7] On the child support worksheet utilized by the District Court to calculate the child support amount, there is no entry in the area covering child care costs. This omission is significant because the record appears to contain support for a finding that child care costs in this case may amount to $500 a month or approximately $125 per week. Because the District Court did not include child care costs in its child support worksheet calculations, as required by section 316(2)(A), the matter must be remanded to the District Court for redetermination of the child support obligation with appropriate consideration of child care costs.
The entry is:
Judgment of the Superior Court vacated. Remanded to the Superior Court for remand to the District Court with instructions to (1) strike the provision of the District Court judgment terminating alimony after three years, and (2) recalculate the parties' child support obligations considering sums paid by Janine Hedrich for child care costs.
NOTES
[1] Award of alimony was governed by 19 M.R.S.A. § 721 (Pamph.1996), repealed by P.L. 1995, ch. 694, § B-1 (effective Oct. 1, 1997), now recodified as 19-A M.R.S.A. § 951.
[2] Deviation from child support guidelines was governed by 19 M.R.S.A. § 317 (Pamph.1996), repealed by P.L.1995, ch. 694, § B-1 (effective Oct. 1, 1997), now recodified as 19-A M.R.S.A. § 2007.
[3] 19-A M.R.S.A. § 951(6) states:
6. Limitations. This section does not limit the court, by full or partial agreement of the parties or otherwise, from a warding spousal support for a limited period, from awarding spousal support that may not be increased regardless of subsequent events or conditions or from otherwise limiting or conditioning the spousal support award in any manner or term that the court considers just.
[4] Section 316 has been recodified as 19-A M.R.S.A. § 2006.
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364 F.Supp. 1212 (1973)
Pamela MAGILL, a minor, by her parents and natural guardians, William L. Magill and Patricia Magill, Plaintiffs,
v.
AVONWORTH BASEBALL CONFERENCE et al., Defendants.
Civ. A. No. 73-513.
United States District Court, W. D. Pennsylvania.
August 16, 1973.
*1213 Stanley M. Stein, Pittsburgh, Pa., for plaintiffs.
William S. Webber, Fred C. Houston, Jr., Michael J. Boyle, Thomas F. Nelson, Edwin R. McMillin, II, Pittsburgh, Pa., for defendants.
MEMORANDUM and ORDER
McCUNE, District Judge.
This is a suit seeking injunctive relief brought for Pamela Magill, by her parents and natural guardians, alleging that the defendant Avonworth Baseball Conference (ABC) has unconstitutionally discriminated against her on the basis of her sex by refusing to permit her to play little league baseball.[1]
The suit alleges violations of 42 U.S. C. §§ 1983 and 1985. Jurisdiction is predicated on 28 U.S.C. §§ 1343, 2201, and 2202.
On July 5, 1973, we held a consolidated hearing to consider motions for both preliminary and permanent injunctions. At the close of the testimony and arguments we refused to issue the injunctions and ordered the complaint dismissed. This written opinion will serve to amplify our oral opinion given from the bench. We stated from the bench that there were two problems involved, first, whether the action taken by the baseball conference was taken under color of state action and second, whether or not there had been unconstitutional discrimination. We will deal with the problems in that order.
On April 6, 1973, Mr. and Mrs. William Magill took their 10 year old daughter Pamela, allegedly a good baseball player, to a meeting in a Ben Avon Heights school to enroll her in the 1973 summer baseball programs of the ABC. The Magills completed an application and paid the $7.00 registration fee.
The following day an official of the baseball conference contacted William Magill and told him that Pamela would not be eligible to participate because the program was limited to boys. At Magill's request the matter was discussed at a meeting of the ABC Board of Directors and the directors unanimously voted to continue to limit the program to participation by boys only. The registration *1214 fee was subsequently returned to the Magills and this suit was instituted.
The ABC is a non-profit corporation chartered and organized under the non-profit corporation law of the Commonwealth of Pennsylvania. It administers an organized baseball program in an area which encompasses the geographic boundaries of the Avonworth School District which is north of Pittsburgh in Allegheny County. The ABC runs two leagues: The Minor League for youngsters aged 8 to 10; and the Little League for youngsters aged 11 to 13.[2] The ABC also sponsors Pony and Colt league teams for youngsters aged 14 through 17 which participate in the leagues of the North Boroughs Baseball Association. Approximately 220 boys participate in the various ABC programs. The Baseball Conference (ABC) is run by volunteers who coach and manage the boys teams. It has no money except what it raises in the community and the program is carried on each summer under the assumption that it is good for the community and the children. The volunteers do all of the work, solicit contributions and carry on a bake sale.
We note at the outset that it is agreed that Pamela has been denied the privilege of playing baseball in the conference because she is a girl and for no other reason. Sections 1983 and 1985 and the equal protection clause of the 14th Amendment, however, do not provide protection against all discrimination; only against discrimination which occurs under color of state law. The unlawful discrimination must result from the "(m)isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Henig v. Odorioso, 385 F.2d 491, 494 (3rd Cir. 1967) quoting from United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). "Civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). The 14th Amendment is directed only to state action and the invasion of the constitutional rights of one private individual by the actions of another private individual or private association is not within its purview. Williams v. Yellow Cab Co. of Pittsburgh, Pa., 200 F.2d 302 (3rd Cir. 1952); Civil Rights Cases, supra.
No clear rule exists to determine when there has been sufficient state involvement in private discrimination to meet the requirements of § 1983 and § 1985 of the Civil Rights Act. "Only by shifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).
The discrimination involved here, was practiced by a private organization. We think that a shifting and weighing of the facts here compels the conclusion that the discrimination in no way arose under color of state law.
There are only four instances here which could be considered to constitute state action:
1. The state granted a charter to the Avonworth Baseball Conference.[3]
*1215 2. ACORD, which operates and maintains the Avonworth Community Park, this year waived a $25.00 fee which the ABC had previously been required to pay for permission to use a baseball field in the park.
3. The Borough of Ben Avon Heights permits the ABC to use a community baseball field free of charge.
4. The Avonworth School Board permits the ABC to use two baseball fields, and permitted the ABC to use the school facilities to announce and hold its annual organizational meeting.[4]
None of the baseball fields are used exclusively by the ABC.
Where, as here, the source of the alleged discrimination is a private organization the state must be "significantly involved" with invidious discrimination in order for the discriminatory action to fall within the ambit of the constitutional prohibition. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). In discussing significant involvement the Court in Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966),[5] mentioned state "supervision, control, or management" of a private facility, and in Irvis the Court mentioned what it described as the "symbiotic relationship" between the private and public activities in Burton.[6] We do not think the activities involved here rise to the level of maintaining "supervision, control or management" over the ABC, and the State-ABC relationship certainly in no way amounts to symbiosis.
It is true that the ABC has been chartered by the state. Merely acting under a state license, however, is not state action within the context of the Civil Rights Act. Moose Lodge No. 107 v. Irvis, supra; Henig v. Odorioso, supra; Weyandt v. Mason's Stores, Inc., 279 F.Supp. 283 (W.D.Pa.1968). We think this is especially true where the charter is neutral and non-discriminatory on its face.
The remaining state involvement is both so minimal and so wholly unrelated to the activities which gave rise to the alleged discrimination that we think it would be unrealistic to classify it as state action for purposes of the Civil Rights Act. There is no evidence that ACORD, the Avonworth School Board, the Avonworth Municipal Authority or Ben Avon Heights Borough in any way promoted, participated in, or encouraged the discrimination. They merely permitted the ABC to use on occasion the public facilities under their control. There is no evidence that any of the defendant organizations and bodies (except, of course, ABC) maintain a policy of sex discrimination and limit or restrict the use of their facilities on that basis. This is a situation wholly different *1216 from the facts of Burton and Evans. There the state agencies were actively engaged in establishing or maintaining facilities operated in a discriminatory manner.
Accordingly, we find that there is no state action involved, that an essential element of an action brought under §§ 1983 and 1985 is therefore absent and the complaint must be dismissed.
Assuming that state action exists, however, we still decline to issue the injunctions. We do not believe the action of the conference unreasonable or discriminatory in light of the circumstances. In other words, the classification was rational.
The directors of the baseball conference assign two reasons for their action. First, that they believe that young girls would be endangered physically if allowed to compete with the boys in organized baseball and second, that to permit the girls to compete would destroy the program already underway because the boys would drop out.
The directors, male and female, were unanimous in their opinions that baseball is a contact sport at times and at times the contact is violent. We can take judicial notice of that fact and find that baseball is a contact sport. There is no question that a runner who tries to beat a throw to the plate is frequently blocked by a catcher. The contact is severe if not violent. The directors spoke of their concern with wild pitchers and, of course, we know the consequences of trying to steal second or third. The directors have had a great deal of experience with boy's baseball and have formed the opinion after mature consideration that girls would not fare well in physical contact with the boys. They admit that there are excellent girl athletes but contend that they should not be placed in physical contact with boys. This is a class action intended to force integration of the sexes generally in the baseball program and the directors believe this unwise.
In Bucha, et al. v. Illinois High School Association, et al., 351 F.Supp. 69. (N.D. Ill.1972) the court held the rule to be rational which prohibited girls competing with boys in interscholastic swimming. The court there took judicial notice of the records of men and women athletes at the Olympic games as evidence that men's record times are consistently better than women's and thus that men are generally faster and stronger in athletic competition than women. Citing Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L. Ed.2d 225 (1971) the Court held that the relevant inquiry, respecting equal protection of the law, was whether the challenged classification was rational. For purposes of the sport of swimming a classification based upon sex was found to be rational.
In Brenden, et al. v. Independent School District, 342 F.Supp. 1224 (D. Minn., 4th Div. 1972) aff'd, 477 F.2d 1292 (8th Cir. 1973), a contrary result was reached with respect to tennis, cross country running and cross country skiing although the court was careful to limit its holding to two young women athletes who had proven to be excellent athletes in a school district where no sports for girls existed.[7] No class action was involved. The Circuit reserved decision on contact sports quite carefully. Girls were admitted to a boy's golf team in Reed, et al. v. The Nebraska School Activities Association, 341 F.Supp. 258 (D.Neb.1972) but there was no other opportunity *1217 for girls to play golf. In Haas v. South Bend Community School Corp., et al., 289 N.E.2d 495 (Supreme Court of Indiana, 1972) a girl was permitted to play golf on a boy's golf team but again a distinction was recognized for contact sports. There the plaintiffs conceded that a male-female classification is reasonable if it applies to sports involving physical contact between the contestants and the court specifically recognized the distinction.
Finally, the Sixth Circuit has recognized a distinction for contact sports. In Morris v. Michigan State Board of Education, 472 F.2d 1207 (1973) the trial court had issued an injunction invalidating Rule 5 of the Michigan High School Athletic Association which prohibited girls engaging in interscholastic athletic contests when the teams were composed of boys. The Circuit directed that the injunction be amended to specifically eliminate from its language teams engaged in contact sports.
Thus, it seems to us, the distinction for contact sports has been widely recognized.
We are aware of the holding of the Supreme Court in Frontiero et vir. v. Richardson, Sec. of Defense, 411 U.S. 677, 93 S.Ct. 1765, 36 L.Ed.2d 583, decided May 14, 1973, that sex is a suspect classification but that case involved the economic benefits to which a female army officer was entitled compared with those of a male army officer and we do not believe it controlling here.
Accordingly, we hold that sex is a rational distinction where a contact sport is involved. The complaint is therefore dismissed for this reason as well.
We do not believe it necessary to discuss the second reason assigned by the directors of ABC for refusing to allow girls to play on the boys' teams.
This opinion shall be deemed to comply with Rule 52. It is accordingly ordered that the complaint be dismissed.
NOTES
[1] At the hearing two defendants were dropped by stipulation of counsel: the Avonworth Board of Education and its individual directors and Ohio Township and its supervisors. All of plaintiffs' claims for money damages were also dropped.
"ACORD Authority" and "Avonworth Acthority" were improperly identified in the pleadings. ACORD (Avonworth Community Organization for Recreation Development) is not an Authority under Pennsylvania law. It is a non-profit, unincorporated volunteer organization which maintains the Avonworth Community Park. The park contains a baseball field, swimming pool, dance hall and picnic areas and is operated on a fee basis. Avonworth Municipal Authority floated a bond issue to purchase the park which it now owns and ACORD manages the field and charges fees to organizations which use the park.
[2] Pamela Magill's age would make her eligible to play in the Minor League. Unlike the teams in the leagues for older children, the Minor League teams hold no tryouts. Youngsters do not have to "make the team" and all who sign up are assured of playing a specified minimum number of innings during the course of the season.
The ABC does not sponsor any girls baseball or softball leagues, but has volunteered to do so if there is sufficient interest. There are, however, girls' softball teams in the area. Pamela participates two or three times a week in the North Hills Baseball Clinic where she plays with and against boys. It is apparent that Pamela is not deprived of the opportunity to play baseball. She has an opportunity to play both informal "sandlot" and more organized games.
[3] The purpose of the ABC, as stated in its charter, is to ". . . foster, promote, sponsor, and encourage the playing and enjoyment of baseball among school age youngsters in the Avonworth School Area. . . ."
[4] The ABC considered one of the fields to be in an unsafe condition and expended considerable time and expense in preparing it for use in the 1973 season.
[5] In Evans, the city of Macon, Georgia, as trustee of land devised to the city for use as a park, "swept, manicured, watered, patrolled, and maintained" the park as a public facility for whites only, as well as granted a tax exemption.
[6] In Burton, the Eagle Coffee Shoppe, Inc., which had rented space within a public parking building erected, owned and maintained by the Wilmington (Delaware) Parking Authority, racially discriminated against one Burton and refused to serve him. The Court found that "the commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State's plan to operate its project as a self-sustaining unit." After reciting the areas of mutual dependence between Eagle and the State, the Court found that "profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency." The Court concluded that State action was present because the State had "so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity . . .."
[7] In the reported cases the presence or absence of girls athletic programs is a factor which has been accorded great weight (see Brenden v. Independent School Dist., supra). The Avonworth Baseball Conference has no program for girls but its expression in open court that it would be willing to discuss providing such a program in the ensuing year fell on deaf ears. The plaintiff was candid in saying that there was no possibility of a settlement on the basis that a program would be provided for girls, that nothing short of the admission of girls to the program would suffice.
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364 F.Supp. 469 (1973)
James Burnett McKay LAING
v.
UNITED STATES of America et al.
Civ. A. No. 6661.
United States District Court, D. Vermont.
September 12, 1973.
*470 Martin G. Weinberg, Crane, Inker & Oteri, Boston, Mass., and Duncan Frey Kilmartin, Rexford & Kilmartin, Newport, Vt., for plaintiff.
John P. Hines, Dept. of Justice, Washington, D. C., and George W. F. Cook, U. S. Atty., Rutland, Vt., for defendants.
OPINION AND ORDER
COFFRIN, District Judge.
On July 15, 1972 plaintiff filed an action seeking an injunction against the continued possession by the Internal Revenue Service (IRS) of money allegedly belonging to him and a declaratory judgment that the provisions of the Internal Revenue Code under which the assessment and levy on his property were made were unconstitutional. A flurry of motions to accelerate the course of this proceeding were filed shortly after the complaint and plaintiff attempted to depose various federal officials which the Government vigorously opposed. On September 18, 1972 the IRS filed a motion to dismiss or in the alternative for summary judgment. Hearings were held on the various motions on October 24, 1972 and July 31, 1973. Taking the facts in the light most favorable to the plaintiff and from the affidavits filed by the Government which plaintiff concedes are accurate as far as they go, we find the following factual situation before us. On May 31, 1972 plaintiff, a citizen of New Zealand, entered the United States from Canada on a B-2 visa.[1] On June 24, 1972 plaintiff and two companions departed from the United States to Canada by way of Vermont but were refused entry into Canada by Canadian officials. As a result, plaintiff returned to the United States where he was stopped by U. S. Customs officials at Derby, Vermont. A suitcase containing approximately $310,000[2] was found in the engine compartment of the automobile and plaintiff, his companions and the money were detained at the border. On the same day, Fulton Fields, the District Director for IRS in Burlington, Vermont, was advised by customs officials of the above facts and, relying on them, found that plaintiff and those with him were in the process of putting their assets beyond the reach of the Government by removing them from the country thereby tending to prejudice or render ineffectual the collection of the tax. Upon making this finding, Fields terminated the 1972 taxable years of the three individuals and sent two IRS agents, Joseph O'Kane, Chief of the Intelligence Division, IRS, Burlington, Vermont, and James Perry, Assistant Chief of the Collection and Taxpayer Service Division, Internal Revenue Service, Boston, Massachusetts, to the border to take the steps necessary to collect the tax liabilities of these persons. Upon arriving at the border, the IRS agents interviewed plaintiff and his associates and demanded payment of tax from each in the amount of $310,000. Upon their refusal, the agents contacted the IRS Service Center in Andover, Massachusetts, and requested and orally received a tax assessment upon each person in the amount of $310,000. These assessments were communicated orally to the plaintiff by the IRS agents and after a second refusal, the sum of $306,896.50 was seized from the suitcase and applied to the tax liabilities of each person in the car.
*471 On June 29, 1972, Edward Gallagher, Acting Director of IRS in Burlington, Vermont, sent plaintiff a written declaration made pursuant to 26 U.S.C. § 6851[3] that plaintiff was placing his assets beyond the reach of the Government and thus his taxable year 1972 was terminated and a tax of $195,985.55 for the period from January 1, 1972 to June 24, 1972 was assessed amd made payable. This letter was sent to the address plaintiff gave U. S. Customs officials but it was returned to IRS "addressee unknown no such street and number."
The plethora of theories relied upon by plaintiff can be reduced to three major contentions:
1). That the procedures employed by the IRS summarily deprived plaintiff of his property without a hearing in contravention of the Fifth Amendment to the United States Constitution;
2). The IRS's assessment of tax and levy of plaintiff's money was not in conformity with the applicable sections of the Internal Revenue Code and thus injunctive relief is warranted.
3). Assuming the IRS properly followed the Code, it acted arbitrarily and capriciously in seizing plaintiff's money.
Plaintiff's effort to obtain declaratory relief in this action must fail because the plain wording of the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, specifically excludes controversies concerning federal taxes. Thus, questions involving federal taxes may not be considered under the declaratory judgment section and the federal courts are without jurisdiction to enter declaratory judgments in such cases. United States v. Teitelbaum, 342 F.2d 672 (7th Cir. 1965), cert. denied, 382 U.S. 831, 86 S. Ct. 71, 15 L.Ed.2d 75 (1965); Standard Oil Co. (N.J.) v. McMahon, 139 F.Supp. 690 (S.D.N.Y.1956), aff'd, 244 F.2d 11 (2d Cir. 1956).
It is also settled beyond controversy that summary attachment for the collection of internal revenue is constitutionally permissible and does not run afoul of the procedural requirements of due process. Thus, no hearing was required before plaintiff's property was seized. Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931); Parrish v. Daly, 350 F.Supp. 735 (S.D.Ind.1972). The holding in Phillips v. Commissioner, supra, was recently reaffirmed in Fuentes v. Shevin, 407 U.S. 67, 91-92, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972).
Plaintiff's constitutional and declaratory judgment contentions being fruitless, his case must rise or fall solely on the provisions of the Internal Revenue Code. In seeking to restrain the assessment or collection of a tax, plaintiff must come within one of the narrow exceptions to the anti-injunction provisions of 26 U.S.C. § 7421(a). Plaintiff contends that the exception to the broad anti-injunction provisions of Section 7421(a) contained in 26 U.S.C. § *472 6213(a) places restrictions on deficiency assessments and plaintiff argues that section 6213(a) prohibits immediate levies with no waiting period for the collection of tax except as provided in 26 U. S.C. § 6861.[4] Accordingly, plaintiff contends IRS was forced to proceed under section 6861 and, since the IRS never sent plaintiff a deficiency notice as provided in section 6861, the IRS did not follow the legislatively mandated procedures and thus injunctive relief can be had under section 7421(a).
The Government argues that since it proceeded under 26 U.S.C. § 6851 the procedures required in section 6861 are irrelevant, the section 6213(a) exception to the anti-injunction statute is inapposite and therefore plaintiff's action must be dismissed.
The threshold inquiry therefore becomes whether section 6851 or section 6861 is applicable to this controversy. Section 6851 provides for the termination of a taxable year and demand for an immediate payment of tax where jeopardy, i. e. prejudice against collection, is deemed present by IRS. In contrast, section 6861 provides for the jeopardy assessment of a deficiency in tax as defined by 26 U.S.C. § 6211(a). Generally, a deficiency is defined by section 6211(a) as the amount by which the tax imposed by statute exceeds the amount of tax shown on a taxpayer's return. By definition then, such a deficiency could not be determined until a return for a taxpayer's full taxable period has been filed or until the due date for filing such a return has expired. In this case, there was no return filed by the taxpayer and so there could be no deficiency. Since there was no deficiency there could be no deficiency assessment and consequently section 6861 cannot apply in this case.
Irving v. Gray, 479 F.2d 20 (2nd Cir. 1973) holds that section 6861 and section 6213(a) do not apply in the case of a jeopardy assessment made in respect to a departing or concealing taxpayer assessed under section 6851.[5]See also Williamson v. United States, No. 17992 (7th Cir. filed April 8, 1971); Parrish v. Daly, supra.
Plaintiff contends that Irving is not binding precedent because in that case there was no attack on the procedure used by IRS nor was there any question of the arbitrariness of the IRS's determination that a jeopardy assessment should be made.
With regard to plaintiff's first profferred distinction, we note the similarity of the chronology of the IRS's action in this case and in Irving, both of which in our opinion satisfy the provision of 26 U.S.C. § 6331(a), the general levy and distraint provisions of the Code.[6] Since *473 we have previously determined that the summary assessment and levy procedure is not constitutionally impermissible, we reject plaintiff's argument that the procedures employed by the Government in this case were improper.[7]
We also reject plaintiff's challenge to the arbitrariness of the IRS's determination that there was jeopardy against the collection of these taxes which justified the termination of the taxable year. Plaintiff, relying upon Lucia v. United States, 474 F.2d 565 (5th Cir. 1973) and Pizzarello v. United States, 408 F.2d 579 (2d Cir. 1969), contends that the Government must have some basis in fact for the seizure and absent proof of this, no assessment can be made. Lucia and Pizzarello are patently distinguishable from this case because they do not involve jeopardy assessments under section 6851 but rather assessments under 26 U.S.C. § 6862(a) for unpaid wagering taxes.
The distinction is crucial because, unlike section 6862(a), section 6851(a) provides that the finding of the secretary or his delegate that jeopardy is present is presumptive evidence of jeopardy. Thus, where the IRS, in the interest of collecting revenue, proceeds by proper steps under section 6851, its determination of the facts and their sufficiency to warrant resort to peremptory collection are not to be reviewed in injunction proceedings. United States v. Bonaguro, 294 F.Supp. 750, 753 (E.D. N.Y.1968), aff'd sub nom. United States v. Dono, 428 F.2d 204 (2d Cir. 1970), cert. denied, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59 (1970). See also Transport Mfg. and Equipment Co. of Del. v. Trainor, 382 F.2d 793 (8th Cir. 1967); Clark v. Campbell, 341 F.Supp. 171 (N.D.Tex. 1972). In this connection plaintiff does not attack the veracity of the affidavits filed by the Government describing the procedures employed in the assessment and levy but contends that they do not go far enough because they do not elucidate the factual basis for the Government's jeopardy determination under section 6851 which necessarily concludes that plaintiff was a person liable to pay tax. We disagree. This proceeding is not a proper vehicle for this challenge and we conclude that the affidavits are sufficiently explicit to enable the court to determine without doubt that the Government's procedures were proper and adequate. We determine that further exploration of the IRS's motivation for the assessment would not affect our decision concerning jurisdiction and is thus not relevant to any of the issues before the court in this particular proceeding. We therefore grant defendant's motion for a protective order barring the taking of depositions of the IRS officials noticed by plaintiff.
From what we have said, it is apparent that the judicially created doctrine announced in Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L. Ed.2d 292 (1962) is inapplicable because it is far from clear that "under no circumstances could the Government ultimately prevail" in this case.
In light of the foregoing we grant the Government's motion to dismiss but we do point out that this decision does not foreclose plaintiff's opportunity for redress in subsequent proceedings presented to the court in a proper jurisdictional and procedural posture.
NOTES
[1] 8 C.F.R. § 214.2(b) (1973).
[2] According to IRS affidavits, the actual amount seized was $306,896.50, but plaintiff claims he was in possession of $310,000.
[3] 26 U.S.C. § 6851(a)(1) provides that:
(a) Income tax in jeopardy.
(1) In general. If the Secretary or his delegate finds that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the income tax for the current or the preceding taxable year unless such proceedings be brought without delay, the Secretary or his delegate shall declare the taxable period for such taxpayer immediately terminated, and shall cause notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid, whether or not the time otherwise allowed by law for filing return and paying the tax has expired; and such taxes shall thereupon become immediately due and payable. In any proceeding in court brought to enforce payment of taxes made due and payable by virtue of the provisions of this section, the finding of the Secretary or his delegate, made as herein provided, whether made after notice to the taxpayer or not, shall be for all purposes presumptive evidence of jeopardy.
[4] 26 U.S.C. § 6861(a) provides that:
(a) Authority for Making. If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof.
[5] Section 6851 does not contain its own assessment authority but, contrary to plaintiff's contention, this section derives its assessment authority from 26 U.S.C. § 6201. Irving v. Gray, supra.
[6] Although Irving involved a written termination of the taxable year, notice of levy and assessment of tax, we do not believe the oral effectuation of these procedures is improper. Section 6851 does not, by its terms, require a writing and neither 26 U.S.C. § 6303 (notice and demand for tax) nor 26 U. S.C. § 6155 (payment on notice and demand) require a writing. Also, the levy and distraint provisions of section 6331 permit a levy to be made by giving notice in person. See United States v. Oliver, 421 F.2d 1034 (10th Cir. 1970) and United States v. Bernstein, 287 F.Supp. 84 (S.D.Fla.1968) which hold that property levied upon and seized under section 6331 need not be accomplished by written notice, actual notice and demand are sufficient. Finally, we perceive that the nature of the jeopardy proceeding under section 6851 is not suited to the cumbersome requirements of written notice, cf. Irving v. Gray, supra ("Section 6851 was enacted to allow IRS to prevent taxpayers from fleeing the country with taxable funds. . . . Under such circumstances, Congress has given IRS a little leeway to protect the revenues.")
[7] We also note that even though the chronology in Williamson v. United States, supra, does not follow section 6331 the court refused to restrain the collection and assessment of the tax.
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364 F.Supp. 1075 (1973)
Edward M. KENNEDY, Plaintiff,
v.
Arthur F. SAMPSON et al., Defendants.
Civ. A. No. 1583-72.
United States District Court, District of Columbia.
August 15, 1973.
*1076 Edward M. Kennedy, pro se.
Harold H. Titus, Jr., U. S. Atty., Arnold T. Aikens, Asst. U. S. Atty., and Stuart E. Schiffer, Atty., Dept. of Justice, Washington, D. C., for defendants.
MEMORANDUM OPINION
WADDY, District Judge.
This case is before the Court on defendants' motion to dismiss or in the alternative for summary judgment, and plaintiff's cross-motion for summary judgment. The case presents a question concerning the veto powers of the President of the United States under Article 1, Section 7 of the Constitution of the United States, specifically that portion involving what is known as the Pocket Veto.
In this action plaintiff seeks a declaratory judgment declaring that the Family Practice of Medicine Act, S. 3418, 91st Cong., 2d Sess., (hereinafter S. 3418), became a validly enacted law of the United States on December 25, 1970, without the signature of the President, in accord with Article I, Section 7, Clause 2 of the Constitution. He also seeks the issuance of an order in the nature of mandamus or a permanent injunction requiring the defendants, the Acting Administrator of the General Services Administration, and Chief of White House Records, respectively, to publish S. 3418 as a validly enacted law of the United States, "in accord with their ministerial, non-discretionary duties under 1 U.S.C. 106a, 1 U.S.C. 112 and 1 U.S.C. 113."
The following material facts are not disputed:
1. Plaintiff is a taxpaying citizen of the United States, the Senior Senator from the Commonwealth of Massachusetts and the Chairman of the Subcommittee on Health of the Committee on Labor and Public Welfare of the United States Senate.
2. On December 14, 1970, S. 3418 was presented to the President of the United States for his consideration. The legislation had been approved by the Senate, in which it had originated, by a vote of 64-1 and by the House of Representatives by a vote of 346-2. The Bill authorized the Congress to appropriate 225 million dollars for the fiscal years, 1971, 1972 and 1973 for grants to public and private non-profit hospital and medical schools to assist them in establishing special departments and programs in the field of family practice of medicine, and otherwise to encourage and promote the training of medical and paramedical personnel in the field of family medicine.
3. Plaintiff was among the Senators voting in favor of the Bill.
4. On December 22, 1970 the Senate and the House of Representatives adjourned for the Christmas Holidays. The Senate was in adjournment until December 28, 1970, and the House until December 29, 1970. The adjournments were consented to by the Senate and the House of Representatives.[1] During the recess of the Senate, the Secretary of the Senate was authorized by unanimous vote of the Senate to receive messages from the President of the United States and the House of Representatives and the President pro tempore or Acting President pro tempore was authorized to sign duly enrolled bills.[2]
5. On Thursday, December 24, 1970, while both Houses of Congress were in the aforementioned adjournment the President of the United States issued a Memorandum of Disapproval, announcing that he was withholding his approval from S. 3418.
6. Under the provisions of 1 U.S.C. § 106a, 1 U.S.C. § 112 and 1 U.S.C. § 113, it is the duty of the Administrator of the General Services Administration of the United States to receive bills that have become laws of the United States and to publish them in slip form and in the United States Statutes at Large.
7. The Chief of White House Records is an employee of the United *1077 States whose duty is to receive enrolled bills from the Congress and to deliver bills that have become laws of the United States to the Administrator of General Services Administration of the United States for publication.
8. S. 3418 was not transmitted by the President or the Chief of White House Records to the Administrator of General Services Administration and it has not been published in slip form or in the Statutes at Large as a law of the United States.
9. On December 15, 1971, by Pub.L. No. 92-184, Congress appropriated $100,000 to carry out the program set forth in S. 3418 for the fiscal year 1972.[3]
10. Plaintiff is not within the class intended to be benefited by the Bill.
With regards to the merits of the case, the question before this Court is whether the President's exercise of the Pocket Veto in this case was constitutionally valid, or, in other words, did S. 3418 become law without the signature of the President. Before reaching the merits, however, the Court must consider several preliminary issues raised by the defendants in their motion to dismiss and/or for summary judgment. They contend that the plaintiff lacks standing to maintain this action; that the President is an indispensable party who cannot be sued; that the issue before the Court does not present a substantial case or controversy because it is (1) a non-justiciable political question, and (2) the complaint seeks an advisory opinion.
The Court holds that each of defendants' contentions is without merit.
STANDING
In Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L.Ed.2d 947 (1968) the Supreme Court of the United States stated:
"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. 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. Baker v. Carr, 369 U.S. 186, 204 [82 S.Ct. 691, 703, 7 L.Ed.2d 663] (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular *1078 issue and not whether the issue itself is justiciable." 392 U.S. at 99, 88 S.Ct. at 1952.
In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Supreme Court formulated a dual test for determining standing to sue. This test requires, first, that plaintiff allege that the challenged acts have caused him "injury in fact, economic or otherwise," 397 U.S. at 152, 90 S.Ct. at 829 and second, that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 153, 90 S.Ct. at 830. Or, as the Supreme Court stated in Flast, supra, a "logical nexus between the status asserted and the claim sought to be adjudicated." 392 U.S. at 102, 88 S.Ct. at 1953. This test for the determination of standing was re-affirmed by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
When the above-mentioned test is applied to this action it becomes clear that this plaintiff has the requisite standing to sue. The precise injury of which he claims is that the President's exercise of the Pocket Veto to disapprove S. 3418 was an unconstitutional act that rendered plaintiff's vote in the Senate for the bill ineffective and deprived him of his constitutional right to vote to override the Presidential Veto in an effort to have the bill passed without the President's signature. This claim of nullification of his vote for the bill and deprivation of his right to vote to override the veto and thus inhibiting him in the performance of his Senatorial duties, is a clear allegation of injury in fact.
The maintenance of the effectiveness of his vote in the Senate which plaintiff seeks to protect is certainly arguably within the zone of interests to be protected by Article I, Section 7 of the Constitution and supplies the logical nexus between his status as a Senator and the claim sought to be adjudicated.
A finding of standing under the circumstances here presented is consistent with the above-mentioned cases and with the finding of the Supreme Court in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) and of the United States Court of Appeals for the District of Columbia Circuit in Mitchell v. Laird, No. 71-150 (March 20, 1973).
In Coleman a proposed Child Labor Amendment to the Constitution of the United States was submitted to the Kansas State Legislature. In 1925, that Legislature adopted a resolution rejecting the amendment. Subsequently, in 1937, a resolution favoring ratification was introduced in the Senate of Kansas. When the resolution was considered by the State Senate 20 State Senators voted for ratification and 20 voted against. The Lieutenant Governor, the presiding officer, cast the deciding vote in favor of ratification. Thereafter, the resolution was approved by a majority of the Kansas House of Representatives. Twenty-one State Senators, including the twenty Senators who had opposed the resolution for ratification, and three members of the State House of Representatives, then brought a suit in the State Supreme Court contesting the validity of the resolution and alleging that the Lieutenant Governor had no power to cast his vote. Relief was denied and the Supreme Court of the United States granted certiorari.
One of the principal contentions of the respondents before the United States Supreme Court was that the petitioners lacked interest to invoke the jurisdiction of the Court to review. Chief Justice Hughes, writing for the Court, squarely rejected that contention and stated:
"We find the cases cited in support of the contention, that petitioners lack an adequate interest to invoke our jurisdiction to review, to be inapplicable. Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient *1079 to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. Petitioners come directly within the provisions of the statute governing our appellate jurisdiction. They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect and the state court has denied that right and privilege." 307 U.S. at 438, 59 S.Ct. at 975 (Footnote omitted) (Emphasis added).
In Mitchell v. Laird, supra, thirteen members of Congress filed an action in this Court seeking to enjoin the prosecution of the war in Indo-China and a declaratory judgment that the carrying on of the war by the defendants was in violation of Article I, Section 8, Clause 11 of the United States Constitution. On appeal the United States Court of Appeals for the District of Columbia, citing Flast v. Cohen, supra, Data Processing v. Camp, supra, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L. Ed.2d 192 (1970), found that the Congressmen had standing to sue on a ground that had not been alleged by them. The Court stated at page 4 of the slip opinion:
"If we, for the moment, assume that defendants' actions in continuing the hostilities in Indo-China were or are beyond the authority conferred upon them by the Constitution, a declaration to that effect would bear upon the duties of plaintiffs to consider whether to impeach defendants, and upon plaintiffs' quite distinct and different duties to make appropriations to support the hostilities, or to take other legislative actions related to such hostilities, such as raising an army or enacting other civil or criminal legislation. In our view, these considerations are sufficient to give plaintiffs a standing to make their complaint."
This Court is satisfied that these authorities support the determination that plaintiff has standing to sue in this case and so finds.
INDISPENSABLE PARTY
Defendants contend that the President of the United States is an indispensable party to this suit and that under the constitutional scheme of separation of powers this Court lacks jurisdiction over the President. They quote the following provision of 1 U.S.C. § 106a:
"Whenever a bill, order, resolution, or vote of the Senate and House of Representatives, having been approved by the President, or not having been returned by him with his objections, becomes a law or takes effect, it shall forthwith be received by the Administrator of General Services from the President, . . . ." (Emphasis theirs)
and argue therefrom that when a bill becomes law, it can be promulgated and published only through joint action of the President and the Administrator of General Services. This Court disagrees.
The language of 1 U.S.C. § 106a relied upon by defendants is no more than a direction to the Administrator of General Services to get the bill from its custodian. This is made clear by the following language within the same paragraph of 1 U.S.C. § 106a which appears immediately after that quoted by defendants:
"and whenever a bill, order, resolution or vote is returned by the President with his objections, and, on being reconsidered, is agreed to be passed, and is approved by two-thirds of both Houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Administrator of General Services from the President of the Senate, or Speaker of the House of Representatives in whichsoever House it shall last have been so approved, and he shall carefully preserve the originals."
The complaint in this case and the relief requested by plaintiff do not require any jurisdiction by the court *1080 over the President of the United States. The order requested by plaintiff requires no action by the President.
Article I, Section 7, Clause 2 of the Constitution specifies the actions the President may take with respect to legislation presented to him by Congress. Thus, the President may approve the legislation by signing it into law or by allowing it to become law without his signature at the end of the ten-day period set aside by the Constitution for his action. Or, he may veto the legislation and return it to Congress with his objections. Or, he may "pocket veto" the legislation by withholding his signature when the ten-day period expires while Congress is in an adjournment that "prevents" him from returning the bill.
Whichever course he follows, the action of the President is complete upon the expiration of the ten-day Constitutional period. The time for deliberation has then passed. He has decided. His judgment has been made, and the status of the legislation has been determined. All that remains is for other Federal officers in this action the defendants to carry out their ministerial, non-discretionary duty of publishing Acts that have become laws of the United States in slip form and in the Statutes at Large.
This principle has been settled law since the ruling of Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803). He stated at page 170:
"It is not the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission or a patent for land, which has received all the legal solemnities, or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment . . . ."
Marbury v. Madison is one of the leading precedents for the principle that mandamus is an appropriate remedy to require subordinate federal officers to carry out their ministerial duties. That case involved the refusal by President Thomas Jefferson to acquiesce in the "midnight" judges appointed by President John Adams shortly before President Adams left office. While holding that the Act of Congress authorizing actions for mandamus to be brought in the original jurisdiction of the Supreme Court was unconstitutional, Chief Justice Marshall also held (1) that the action of President Adams was complete when the President signed Marbury's commission as a justice of the peace in the District of Columbia, (2) that all that remained was the ministerial, non-discretionary duty of President Jefferson's new Secretary of State, James Madison, to affix the seal of the United States to the commission and to deliver the commission to Marbury; and (3) that mandamus was an appropriate remedy to direct the Secretary to carry out his duty.
Similarly, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L.Ed. 1153 (1952), the steel mill seizure case arising out of a threatened nation-wide strike of steel workers during the Korean War, the Supreme Court found no difficulty in granting *1081 relief against the Secretary of Commerce, who had seized the nation's steel mills pursuant to an Executive Order of President Truman, claiming the inherent power to take such action as President and Commander in Chief in a time of national emergency. The Court held that the President had no power under the Constitution to take such action, and affirmed a lower court decision granting injunctive relief against the Secretary.
Finally, it is noted that two prior cases involving the exercise of the veto clauses by a President of the United States have been decided by the Supreme Court. Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929); Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 82 L.Ed. 439 (1938). The President was not a party to either of those cases and the Supreme Court exercised its jurisdiction and decided the cases on the merits without considering the absence of the President as a party.
SUBSTANTIAL CASE OR CONTROVERSY
The justiciability of plaintiff's claim inheres in the standing to sue that the Court has already found. Plaintiff seeks to protect the integrity and effectiveness of his vote. He claims that the refusal of the defendants to publish S. 3418 in reliance upon the Pocket Veto of the bill by the President has effectively nullified his vote. In order to decide plaintiff's claim it is necessary to determine the validity of the pocket veto of S. 3418 just as it was necessary in order to adjudicate the claims of the Indian tribes to determine the validity of the pocket veto in the Pocket Veto Case, supra, and in order to adjudicate the claim of David A. Wright to determine the validity of the return of the bill in the Wright case, supra.
In commenting upon the restriction of the jurisdiction of federal courts under Article III of the Constitution the Supreme Court stated in Flast v. Cohen, supra:
"Embodied in the words `cases' and `controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine." 392 U.S. at 94-95, 88 S.Ct. at 1949-1950.
The Court finds that this case meets those requirements.
Since as early as 1793, the restriction to "cases" and "controversies" has been accepted as imposing a rule against advisory opinions on federal courts. Flast, supra, note 14, at 96, 88 S.Ct. 1942. Plaintiff does not contest this settled Constitutional principle. In part, the rule against advisory opinions maintains the doctrine of separation of powers under the Constitution by avoiding unnecessary confrontations between the Judicial Branch and the Legislative or Executive Branch of the Government. Another reason for the rule against advisory opinions is to insure that suits before the federal courts are pressed ". . . with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests. . . ." Cf. United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476 (1961).
By these standards, the complaint in this action clearly demonstrates that the requisite elements of a "case" or "controversy" are present within the meaning of Article III of the Constitution. Contrary to the suggestion in the defendants' Statement, plaintiff seeks no advisory opinion from this Court. *1082 Plaintiff sponsored, supported, and voted for S. 3418 in the Senate. The action of the President in disapproving S. 3418 and the injury to plaintiff caused by the refusal of the defendants to perform their ministerial, nondiscretionary duties in reliance upon that action provide exactly the sort of clear concreteness, precise framing of questions, adversary argument, conflicting and demanding interests, and necessity for decision that have always been regarded as meeting the Article III requirement for the exercise of Federal judicial power.
THE MERITS
Article I, Section 7, Clause 2 of the Constitution establishes a basic part of the procedure by which our laws are made. Its provisions allocate a dual responsibility to Congress and the President that is an important aspect of our system of checks and balances:
"Every Bill which shall have passed the House of Representatives and the Senate shall, before it become a Law, be presented to the President of the United States. If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases, the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." (Emphasis added).
In effect, Article I, Section 7, Clause 2 contemplates four possible actions by the President when a bill passed by Congress is presented to him:
The President may approve the bill by signing it within the ten-day constitutional period.
The President may disapprove, or "veto" the bill by returning it to Congress with his objections within the ten-day period, in which case Congress has the opportunity to override the veto by a two-thirds vote in each House.
The President may allow the bill to become a law without his signature at the end of the ten-day period.
The President may disapprove the bill, by declining to sign it in circumstances where the adjournment of Congress "prevents" the President from returning the bill to Congress with his objections. In this last situation, the President is said to "pocket veto" the bill.
The issue on the merits of the present case is whether the Pocket Veto Clause of the Constitution is applicable in the circumstance of the Senate's 1970 Christmas recess. The specific question posed may be stated as follows:
Where a bill duly passed by both houses of Congress is submitted to the President of the United States pursuant to Article I, Section 7 of the Constitution of the United States and thereafter, during the same session of Congress, by mutual consent, the House of Representatives adjourned for a 6 day period and the Senate, in which the bill originated, adjourned for a 5 day period extending for 2 days beyond the 10th day the President had within which to sign or return the bill,[4] was the President prevented *1083 from returning the bill within the 10 day period where, prior to adjourning, the Senate designated its Secretary to receive messages from the President of the United States and its President pro tempore to sign duly enrolled bills during the adjournment.
This Court has concluded that the answer to that question is in the negative.
The question of when an adjournment of a House of Congress prevents the return of a bill under Article I, Section 7, Clause 2, has been before the Supreme Court on two occasions: Okanogan Indian Tribe et al. v. United States, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929) (the Pocket Veto Case), and Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 82 L.Ed. 439 (1937).
In the Pocket Veto Case, supra, Congress had approved an Act authorizing the Okanogan tribe and other Indian tribes in the State of Washington to pursue certain claims against the United States in the Court of Claims. On July 3, 1926, before the ten-day constitutional period for the President to consider the bill had expired, "the first session of the 69th Congress was adjourned." 279 U. S. at 672, 49 S.Ct. at 464. The President did not sign the bill nor return it to Congress, and the Indian tribes filed a petition in the Court of Claims alleging that the Act had become a law without the signature of the President. The issue before the Court was whether the Pocket Veto Clause applied only to final adjournments at the end of a Congress, or whether it also applied to adjournments at the end of a session of Congress. The Court, in an opinion by Mr. Justice Sanford, held that the clause applied to adjournments at the end of a session; that the adjournment prevented the return of the bill, and that therefore the bill had not become a law.
Nine years after the Pocket Veto Case, the Supreme Court again dealt with the scope of the President's veto power. In Wright v. United States, supra, the bill in question granted jurisdiction to the Court of Claims to hear the petitioner's claims against the United States. The bill had originated in the Senate, which was the House to which the President's objections would be returned if the bill were vetoed. After the bill, as passed by both Houses, had been presented to the President, the Senate adjourned for three days, while the House remained in daily session during the period. During the recess of the Senate, the President vetoed the bill, and the bill was returned with his objections to the Secretary of the Senate. When the Senate reconvened, the message of the President was read and the bill was referred to the Senate Committee on Claims, in effect sustaining the President's veto.
Subsequently, the petitioner, as the beneficiary of the private bill, brought an action in the Court of Claims alleging that the bill had become law, on the grounds (1) that there had been no adjournment of Congress within the meaning of the Pocket Veto Clause, since only the Senate had adjourned, and (2) that the President's return of the bill with his objections was not valid, since the Senate had not been in session on the day of the return, and, under the Pocket Veto Case, supra, a return could not be made to the Secretary of the Senate as an agent of the Senate.
Interpreting the Pocket Veto Clause and the other provisions of Article I, Section 7, Clause 2, the Supreme Court held, in an opinion by Chief Justice Charles Evans Hughes, that the bill had not become a law.
The Court held: (1) that since the House of Representatives was still in session, even though the Senate had adjourned for a brief period there was no adjournment of "Congress" within the meaning of the Pocket Veto Clause of the Constitution as the reference to "The Congress" in the Constitution means the entire legislative body consisting of both Houses; (2) that in returning the bill to the Secretary of the Senate there was no violation of any express requirement of the *1084 Constitution since that instrument does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return; (3) that the three-day recess of the Senate did not "prevent" the President from returning the bill with his objections to the Senate, since the organization of the Senate continued and was intact and the Secretary of the Senate was available to receive the President's message; (4) that the fundamental purposes of the constitutional provisions are (a) to give the President suitable opportunity to consider the bills presented to him, and (b) to give the Congress suitable opportunity to consider his objections to bills and on such consideration to pass them over the veto if there are the requisite votes.
In reaching its conclusion in the Pocket Veto Case, supra, the Court emphasized that "the determinative question in reference to an `adjournment' is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that `prevents' the President from returning the bill to the House in which it originated within the time allowed." 279 U.S., at 680, 49 S.Ct., at 467. In concluding that the adjournment at the end of a session of Congress prevented the return of the bill in question, the Court adopted the view that the provision in the Constitution, for the return of a bill to a House, is intended to refer to a House in session, and that a return could not be made to an officer or agent of a House while the House was not in session. 279 U.S. at 680-687, 49 S.Ct. 463. In this connection the Court also noted that Congress had never enacted a statute authorizing such a procedure nor were there any rules of Congress granting an authorization, and opined that the delivery of the bill to such officer or agent, "even if authorized by Congress itself, would not comply with the constitutional mandate." 279 U.S. at 684, 49 S.Ct. at 468.
The rationale for the Court's opinion was stated, in part, in the following language:
"Manifestly it was not intended that, instead of returning the bill to the House itself, as required by the constitutional provision, the President should be authorized to deliver it, during an adjournment of the House, to some individual officer or agent not authorized to make any legislative record of its delivery, who should hold it in his own hands for days, weeks or perhaps months, not only leaving open possible questions as to the date on which it had been delivered to him, or whether it had in fact been delivered to him at all, but keeping the bill in the meantime in a state of suspended animation until the House resumes its sittings, with no certain knowledge on the part of the public as to whether it had or had not been seasonably delivered, and necessarily causing delay in its reconsideration which the Constitution evidently intended to avoid." 279 U.S. at 684, 49 S.Ct. at 468.
While this language of the Supreme Court appears at first blush to militate against this Court's conclusion, upon closer scrutiny it is clear that it does not. It must be kept in mind that the Supreme Court's language in the Pocket Veto Case applied to an adjournment at the end of a session and not to a short recess during a session where, as here, the Senate had specifically authorized its Secretary to receive messages from the President during the recess. Further, the subsequent opinion of the Court in the Wright case found the reasoning of the Court in the Pocket Veto Case to be inapposite to the circumstances of a case which involved a short temporary recess of the House in which the bill originated as distinguished from an adjournment of Congress at the end of a session. The following excerpts from the Court's opinion in Wright support the view of this Court.
*1085 In commenting upon the "House in session" view of the Court in the Pocket Veto Case, supra, the Supreme Court in Wright, stated:
"But that expression should not be construed so narrowly as to demand that the President must select a precise moment when the House is within the walls of its chambers and that a return is absolutely impossible during a recess however temporary. Such a conclusion . . . would frustrate the fundamental purposes of the constitutional provision as to action upon bills." 302 U.S. at 594, 58 S.Ct. at 400.
Referring to the rationale for the opinion in the Pocket Veto Case, mentioned herein previously, the Wright Court stated:
"These statements show clearly the sort of dangers which the Court envisaged. However real these dangers may be when Congress has adjourned and the members of its Houses have dispersed at the end of a session, the situation with which the Court was dealing, they appear to be illusory when there is a mere temporary recess." (Emphasis supplied). 302 U. S. at 595, 58 S.Ct. at 400.
Continuing, the Wright Court said:
"Each House for its convenience, and during its session and the session of Congress, may take, and frequently does take, a brief recess limited, as we have seen, in the absence of the consent of the other House, to a period of three days. In such case there is no withholding of the bill from appropriate legislative record for weeks or perhaps months, no keeping of the bill in a state of suspended animation with no certain knowledge on the part of the public whether it was seasonably delivered, no causing of any undue delay in its reconsideration. When there is nothing but such a temporary recess the organization of the House and its appropriate officers continue to function without interruption, the bill is properly safeguarded for a very limited time and is promptly reported and may be reconsidered immediately after the short recess is over. The prospect that in such a case the public may not be promptly and properly informed of the return of the bill with the President's objections, or that the bill will not be safeguarded or duly recorded upon the journal of the House, or that it will not be subject to reasonably prompt action by the House, is we think wholly chimerical." 302 U.S. 595, 58 S.Ct. 400. (Emphasis supplied).
Although the Supreme Court found support for its holding in Wright in Article I, Section 5, Clause 4, its reasoning in support of its determination that a short temporary recess of a House existing on the final day for the return of a bill while the Congress is in session does not "prevent" the President from returning the bill is clearly applicable to the facts and circumstances of this case. Here we have a short temporary recess of the Senate, in which the bill originated, during the session of Congress. The recess was consented to by the House of Representatives. Prior to the adjournment the Senate by unanimous vote designated its Secretary to receive any messages from the President. The Senate returned on the third day after the final day for the President to act. The interim two days would have caused no long delay in delivery of the bill; no keeping it in "suspended animation". In three days the public would have been promptly and properly informed of the President's objections, and the purposes of the constitutional provisions would have been satisfied. Under these circumstances
"(T)here is no greater difficulty in returning a bill to one of the two Houses when it is in recess during the session of Congress than in presenting a bill to the President by sending it to *1086 the White House in his temporary absence. Such a presentation is familiar practice. The bill is sent by a messenger and is received by the President. It is returned by a messenger, and why may it not be received by the accredited agent of the legislative body? To say that the President cannot return a bill when the House in which it originated is in recess during the session of Congress, and thus afford an opportunity for the passing of the bill over the President's objections, is to ignore the plainest practical considerations and by implying a requirement of an artificial formality to erect a barrier to the exercise of a constitutional right." 302 U.S. 590, 58 S.Ct. 398. (Emphasis supplied).
In the instant case the Senate was in a short temporary recess extending at most for two days beyond the 10th day the President had within which to act. Its organization and appropriate officers continued to function without interruption. Indeed, the Senate specifically designated its Secretary to receive any messages from the President. Just as none of the dangers envisaged by the Court in the Pocket Veto Case were present in Wright, none are present here. Under the facts of this case the Senate could have adjourned at the close of business on December 24, 1970, until December 28, 1970, without the consent of the House of Representatives and such adjournment would not have prevented the President from returning the bill. This fact places this case squarely within the rationale of Wright. The circumstance that the recess began on December 23 with the consent of the House of Representatives in no way detracts from that conclusion. What is to be considered is not the time when the recess began but whether the House was in a recess on the tenth day that prevented the President from returning the bill.
As previously noted the two fundamental purposes of Article I, Section 7 of the Constitution are (a) to give the President suitable opportunity to consider the bills presented to him, and (b) to give the Congress suitable opportunity to consider his objections to bills and on such consideration to pass them over the veto if there are the requisite votes.
As to the first of these purposes there can be no question in this case that the President had such opportunity and availed himself of it. In a Memorandum of Disapproval, dated December 24, 1970, one day before the expiration of the time allowed for his consideration, and released December 26, 1970, the President stated that he was withholding his signature from the bill and gave his reasons therefor.
As to the second fundamental purpose, the Senate returned from the recess on December 28, 1970. It did not adjourn sine die until January 2, 1971. There was ample opportunity to consider the President's objections to the bill and on such consideration to pass it over the veto provided there were the requisite votes. To find that the President's action in this case was a valid pocket veto would require the adoption of a construction that would frustrate the second of these purposes, contrary to the holding of the Supreme Court in Wright, 302 U.S. 583, 596, 58 S.Ct. 395, 82 L.Ed. 439.
The plaintiff has urged the Court to hold that the Pocket Veto Clause is applicable only to sine die adjournments and not to any adjournments within a session. Such a holding is not necessary for the determination of this case and this Court declines to swim in waters that the Supreme Court pointedly avoided in Wright. Cf. 302 U.S. at 598, 58 S.Ct. 395. All that is determined here is that the short recess of the Senate in this case, extending only two days beyond the ten day period the President had to sign or disapprove the bill, did not prevent the return of the bill to the Senate in which it originated. It follows therefore that the pocket veto was *1087 invalid and S. 3418 became a law without the signature of the President, in accord with Article I, Section 7, Clause 2 of the Constitution.
Based upon the foregoing the Court concludes that there is no genuine issue of a material fact and that plaintiff is entitled to a judgment as a matter of law.
ORDER
This matter having come before the Court on plaintiff's motion for summary judgment and defendants' motion to dismiss or, in the alternative, for summary judgment, and the Court having considered the pleadings, motions, and statements filed by the parties and having heard oral argument and having filed a memorandum opinion herein and having found that there is no genuine issue as to any material fact, and concluded that plaintiff is entitled to a judgment as a matter of law, it is this 15th day of August, 1973, hereby
Ordered, Adjudged and Decreed:
1. That plaintiff's motion for summary judgment be and it is hereby granted, and that defendants' motion to dismiss or, in the alternative, for summary judgment is denied.
2. That the Family Practice of Medicine Act, S. 3418 (91st Congress, 2d Session) became a law of the United States on December 25, 1970, in accord with Article I, Section 7, Clause 2 of the Constitution, and defendants are under a ministerial, nondiscretionary duty to publish said law in accordance with the provisions of 1 U.S.C. § 106a, 1 U.S.C. § 112 and 1 U.S.C. § 113.
3. This Court retains jurisdiction and the matter of the issuance of an injunction restraining the defendants from failing and refusing to publish S. 3418 as a law of the United States in accord with the provisions of 1 U.S.C. § 106a, 1 U.S.C. § 112 and 1 U.S.C. § 113 will be held in abeyance until September 19, 1973, on which date the defendants shall report to this Court at 10:00 a. m. the action taken by them to comply with the declaratory judgment entered herein.
NOTES
[1] S.Con.Res. 87, 91st Cong., 2d Sess. (1970).
[2] 116 Cong.Rec. 43221, (Dec. 22, 1970).
[3] On July 1, 1973, President Nixon signed into law the "Second Supplemental Appropriations Act, 1973," H.R. 9055, 93rd Cong., 1st Sess., Chapter VII of that bill provides in part:
"Health Manpower"
"For an additional amount of `Health Manpower' to remain available until expended to carry out the Family Practice of Medicine Act of 1970 (S. 3418, Ninety-first Congress), $100,000."
In reporting on the proposed legislation the Senate Committee on Appropriations stated:
"The Committee recommends $100,000 to fund the provisions of the Family Practice of Medicine Act.
"There is no dispute that the most serious shortages within the private practice of medicine is that of general or family practitioners. Without exception, public witnesses who have appeared before the Commiteee over the years have emphasized these needs and many requested early implementation of the Family Practice of Medicine Act, overwhelmingly passed by the Congress during the 91st session. Last year the Congress included the modest sum of $100,000 in the 1972 Supplemental Appropriations Act to be allocated under the provisions of the Family Practice of Medicine Act. Unfortunately these funds were not allocated. The Committee is again recommending a modest sum to implement the provisions of this Act. The Committee views this amount as a first installment and would be receptive to a budget request for greatly increased funding for the item. Because of the impending expiration of the authorization legislation, the Committee has included language which allows the funds to remain available until expended." S.Rep. No. 160, 93rd Cong., 1st Sess., pp. 48-49.
[4] If the intervening Sunday, December 27, 1970, is not counted, the period the House was in adjournment is 5 days and the period the Senate was in adjournment is 4 days and would extend for only one day beyond the 10th day the President had within which to sign or return the bill.
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364 F.Supp. 1374 (1973)
Tyrone Benjamin LARKINS, Plaintiff,
v.
Russell G. OSWALD, Commissioner of Correction of New York State, et al., Defendants.
Civ. No. 1972-341.
United States District Court, W. D. New York.
October 5, 1973.
Robert B. Conklin, Buffalo, N. Y., for plaintiff.
Louis J. Lefkowitz, Atty. Gen. of the State of New York (Bedros Odian, Buffalo, N. Y., of counsel), for defendants.
CURTIN, District Judge.
Pending before the court for decision are motions for summary judgment filed by both parties. Plaintiff alleges that on June 7, 1972 he was placed in segregation by an Attica Adjustment Committee for having "inflammatory writing" in his cell and he is therefore being punished for his political beliefs. See Sostre v. McGinnis, 442 F.2d 178, 202-203 (2d Cir. 1971). By prior order of this court, plaintiff was permitted to proceed in forma pauperis and Robert B. Conklin, Esq. was assigned to represent him.
The essential facts are not in dispute. On June 6, 1972, correction officers Michael Amico and Gene Tiede, assigned to "A" Block in the Attica Correctional Facility, observed plaintiff Tyrone Larkins speaking to a group of five other inmates in the yard. Correction officer *1375 John King, who was close by, identified the plaintiff, Tyrone Larkins, as the speaker and inmate Larry Tinsley as one of the members of the group.
In his affidavit filed in support of this motion, Officer Amico explained that he knew that Larkins had a reputation as an instigator and dissenter and, for this reason, he and Tiede searched the cells of Larkins and Tinsley. In Larkins' cell, the officers found the political tract which became the subject of the proceeding against him and, in Tinsley's cell, the officers found notes describing plans to construct a bomb. Tinsley did not file an action in this court. When he appeared before the Adjustment Committee, he was counseled and released to general population.
After finding the papers, Amico immediately filed an Inmate Misbehavior Report against Larkins stating:
Upon observing this man [Larkins] in the yard with a group of inmates Officer Tiede and myself frisked this man's cell and found Black Pantor [sic] Party papers and revolutionary papers in his cell.
On June 7, 1972, Larkins appeared before the Adjustment Committee. The report of the Committee states:
Inmate appears belligerent and uncooperative toward institutional policies he believes in revolution inmate admits affiliation to Black Panther Party.
The Committee's action was to confine Larkins in HBZ for seven days with loss of yard and recreation.
In the action filed in this court, the plaintiff seeks money damages for what he claims was the improper action of the Committee. In support of their motion for summary judgment, the defendants have filed affidavits by Lieutenant LeMar A. Clor, who presided at the Adjustment Committee hearing, and by Officers Amico and Tiede. No affidavit was filed by correction officer John King. In his affidavit, Lt. Clor states that, at the Adjustment Committee meeting, Larkins was charged with advocating to the group in the yard the overthrow of the institution and the possession of inflammatory written materials. Lt. Clor describes Larkins' reaction as follows:
Larkins admitted that he was affiliated with the Black Panther Party and that he believed in Revolution and that forceful overthrow of existing authority was the only way to achieve certain ends.
Larkins never denied that he had lectured to the group of the other five (5) inmates on the advocacy of the overthrow of the institution.
Considering the facts in a light most favorable to the defendants, relief must be given to the plaintiff. There is a discrepancy between the Adjustment Committee report and Lt. Clor's affidavit in which he described the proceedings before the Adjustment Committee. In his affidavit, Lt. Clor stated that the plaintiff was charged with advocating to the five inmates the overthrow of the institution. Officer Amico's Misbehavior Report, which formed the basis of the charge before the Committee, relates only that Larkins was in the yard with a group of inmates and that the Black Panther Party papers were found in his cell. From the Adjustment Committee report, it appears that there was some general discussion about plaintiff's attitude toward the institution, but nothing is said about what remarks Larkins directed to the inmates in the yard. In discussing specifically what Larkins said in the yard, Lt. Clor is only able to state:
Larkins never denied that he had lectured to the group of the other five (5) inmates on the advocacy of the overthrow of the institution.
None of the officers heard what Larkins said to the group. From the record of the proceedings and the affidavits filed by the officers, it is clear that there was no charge or evidence before the Committee that Larkins had advocated the overthrow of the institution.
*1376 That leaves for consideration whether Larkins may be punished for possessing the papers found in his cell.[1] This writing is entitled "The Black Panther Party Ten Point Program Platform." There is no evidence at all that Larkins had circulated this writing in the institution. Furthermore, although his position may be extreme in some points, yet many of the aspirations set forth in the paper are hard to fault. The demands relate to freedom, full employment, an end to the exploitation of the black community, decent housing, education, the desire for black men to be exempt from military service, an end to police brutality in the black community, freedom for black men held in prisons and a demand that black defendants go to trial before a black jury. These principles are espoused by many individuals in the American community. Under the guidance of Sostre v. McGinnis, supra, the court finds that there was nothing wrong with Larkins having this document in his cell and it was improper for the Adjustment Committee to punish him for having it there. The additional reasons for punishment set forth in the affidavit of Lt. Clor are not supported by the record. Partial summary judgment is granted to the plaintiff. The question of damage remains. The attorneys shall meet with the court on October 12, 1973 at 11:00 A.M. to determine what proceedings shall follow.
So ordered.
APPENDIX
Exhibit 1
The following is a copy of the material found in Larkins' cell.
Bro. Bob
Dickie and Valentine will be the one's that will inform the Party & masses of my whereabout and activity.
Get in touch with Dickie in the yard the brothers & comrades know about. But you must come around the Brothers are waying for you. Take care yourself and keep on pushin!
Prisoner Power/over
Tyrany Power
"All Power to the People"
Palante Hasta La Victoria!
Venceremos.
Ho Chi Minh - P.R.N.L.F.
(Younglords Party)
G.I.
Jose Enrique Paris
Central Revolutionary Format
The central committee must be highly enformed, equiped, mobilized and coordinated to ensure its operating efficiency and survival consisting of well disciplined, dedicated, and orientated gurrilla's. This revolutionary orginization functions lies in its ability to maintain and commite to effective utilization, an agency responsible for collecting analysis, publishment, and distribution to unit segments. The elements of this agency should consist of (A) chief tactician, (B) tacticalmission planners, (C) reconnoisance team, (D) mobile communication team, (E) mobile strike force, (F) heavy weapons crew, (G) special forces unites, and (H) rescue & recovery unit. (A) The chief tactician job is the supervision of the entire agency. He is its sole commander and is responsible for the arranging and movement of its troops, for the orderly planning of maneuvers and to use such to its best advantage.
(xs) Tactical mission planners are teams chiefs from each unit segment and headed by the chief tacticion. The reason for the unit is obvious. The success of the agency depends upon all units, when in action, to preform as one co-ordination demands that each unit must know his individual as well as collective function during any kind of maneuvers, whether in practice or in an actual situation.
This committee's primary objective at this point is revolutionary political education.
*1377 1. Each brother-comrade will adhere to the revolutionary-catechism.
2. Each cell commander will exchange political, social, economic and military information on a daily basis.
3. Each cell commander will have a cell not exceeding four men, and each comrade will not know who the others are. Each recruit after he has been revolutionary orientated will have a cell of comrades, etc., forming a pyramid structure.
4. Revolutionary educational curriculum.
(A) Political indoctrination the irradicating of all western european concepts. The doctrine of a black afro-centric viewpoint within a black frame work, correct ideology in terms of international perspective.
(B) Social & cultural indoctrination: How people function in a given society with false culture assimilation, as well with proper culture awareness. Laws governing such actions, and environmental effects.
Economic indoctrination: pretaining to the production, distribution and consumption of wealth and the means of control, monetary systems and their effects on people in a society.
Military industrial complex, army, navy, air force, national guard militia, and reserves. Guerilla warfare, etc.
This concludes our brief discription and introduction of a tactical intelligence and combat unit.
This revolutionary organizations authoritative command is the more sophisticated strategic intelligence and planning division.
The Black Panther Party
Ten Point Program Platform
1. We want freedom, we want power to determine the destiny of our black community . . . . We believe that the black people will not be free until they are able to determine their own destiny.
2. We want full employment for our people . . .
We believe that the federal government, or a garanteed income. We believe that if the white amercian businessman will not give full employment, the means of production should be taken from the businessman and placed in the community, so that the people of the community can organize and employ all of its people and give a higher standard of living.
3. We want an end to the robbery by the whiteman of our black community . . . We believe that this racist government has robbed us and now we are demanding the overdue debt of (40) forty acres and two (2) mules. Forty acres and two mules was promised one hundred (100) years ago as restitution for slave labor, and mass murder of black people. So we will accept the payment in property or currency, which will be distributed to our many communities. The Germans are aiding the jews in Israel for the genocide of the jewish people. The germans murdered six (6) million jews. The American racits has taken part in the slaughter of over fifty (50) million black people, therefore, we feel that this is a modest demand.
4. We want decent housing, fit for the shelter of human being . . . We believe that if the white landlords will not give decent housing to our black community, then the housing & land should be made into co-operatives so that our community with government aid can build decent housing for its people.
5. We want education for our people, that exposes the true nature of this decadent American society . . .
We want education that teach us our true history and our role in the present-day-society. We believe in an educational system that will give to our people a knowledge of self. If man does not have knowledge of himself and his position in society and the world, then he has little chance of relating to anything else.
6. We want all black men to be exempt from military service. . . . We *1378 believe the black people shouldn't be forced to fight in the military service to defend a racist government, that does not protect us. We will not kill other people of color in the world who like black are being victimized by the white racist government of American. We will protect ourselves from the force and violence of the racist police and the racist military, by whatever means possible.
7. We want an immediate end to police brutality and murder of black people. . . . We believe that we can end police brutality in our black communities by organizing black self-defense groups, that are dedicated to defend our communityis from ractis police oppression and brutality. The second Amendment to the constitution of the United States gives us a right to bear arms. We therefore believe that all black people should arm themself's for self-defense.
8. We want freedom for all blackmen held in federal, state, county and city prisons and jails. . . .
We believe that all black people should be released from the many jails and prisons, because they have not received a fair and impartial trial.
9. We want all black people when brought to trial, to be tried in a court by a jury of their own peers groups or people from their own communities as defined by the Constitution of the United States . . . We believe that the courts should follow the United States constitution, so that blacks can receive fair trials. The fourteenth (14) Amendment of the United States Constitution gives a man the economical, racial background, social, religious, geographica, environmental, historical, and from this the Court will be forced to select a jury, from the black community from whichever one the defendant come. We have been and are being tried by all-white juries that have no understanding of the average reasoning man in the black community.
10. We want land, bread, housing, education, clothing, justice and peace. And as our major political objective, a United Nations supervised plebiscite to be held throughout the black colony in which only black colonial subjects will be allowed to participate, for the purpose of determining the will of black people as to their national destiny. . . .
For when in the courage of human events it becomes necessary for one people to dissolve the political bonds which have connected them with others and to assume among the powers of the earth, the separated and equal stations to which the laws of nature and god entitles them to a decent respect to the opinion of mankind inquiries that they should declare the causes which impel them to the separation. For we hold this truth to be self-evident, that all men are created equal, that they are endorsed by their creators with certain inalienable rights the among these life, liberty and the pursuit of happiness. That to secure these rights, governments or instituted, that whatever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute a new government laying its foundation on such principals, organizing its powers in such form, as to them shall seem most likely to effect their saftey and happiness. Prudence indeed will dictate that governments long established should not charged for light and trainsient can see, and accordingly all experience both show that mankind is more dispposed to suffer while evils are sufferable then to right themselves by abolishing the forms to which they are accustomed, but when a long train of abuse and unsurpation, pursuing inwardly the same object engineering a design to reduce, then under absolute despotism, it is then right, it is their duty to throw off such government and to provide new guards for their future security.
"All Power to the People"
Power to the Vanguard!
NOTES
[1] See Appendix.
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513 P.2d 244 (1973)
ROACH AIRCRAFT, INC., a Colorado corporation, Plaintiff,
v.
Donald L. SABLE, Defendant and Third-Party Plaintiff-Appellee,
v.
The COLORADO NATIONAL BANK OF DENVER, a national banking association, Third-Party Defendant-Appellant.
No. 72-157.
Colorado Court of Appeals, Div. I.
June 5, 1973.
Rehearing Denied June 26, 1973.
*245 J. V. Condon, Aurora, for defendant and third-party plaintiff-appellee.
Hodges, Kerwin, Otten & Weeks, Randall Weeks, Joseph G. Hodges, Jr., Denver, for third-party defendant-appellant.
Not Selected for Official Publication.
SMITH, Judge.
The Colorado National Bank of Denver appeals from a judgment against it and in favor of Donald L. Sable. The action from which this judgment resulted was initiated *246 when Roach Aircraft, Inc., filed a complaint against Sable. Mr. Sable then filed a third-party complaint against the bank. After a trial to the court the judgment at issue in this appeal, and a judgment against Sable in favor of Roach Aircraft on the original complaint were entered. Sable did not appeal from the judgment against him.
The record discloses that Sable purchased an airplane from Roach Aircraft and in payment therefor executed a promissory note payable to Roach Aircraft in the amount of $6,811.20. Roach Aircraft indorsed the note to Colorado National Bank and entered into a full recourse agreement with the bank. Thereafter, the airplane was extensively damaged. Certain meetings and various negotiations then occurred between a loan officer of the bank, Sable, and a representative of an organization known as Arapahoe Flyers, Inc. As a result of these negotiations, the bank agreed to release Sable from his obligation on his note and accept a promissory note from Arapahoe Flyers in its place for an amount of $3,768.84 if Sable would deliver to the bank the anticipated settlement check of $1,930 from his insurance company. The sum of these two figures represented the then total unpaid balance of the original note. At the last of such meetings the bank prepared the new note which was executed by Arapahoe Flyers and accepted by the bank. There was no obstacle to the negotiability of the note.
A period of approximately 90 days elapsed before Sable settled with his insurance company and tendered the check to the bank. During this period of time, Arapahoe Flyers obtained verbal assurance from the bank's loan officer that it could take possession of the airplane salvage. Later, before Sable tendered the insurance check, the bank obtained information which led it to believe that Arapahoe Flyers was involvent. Thus, when Sable indorsed and tendered the insurance check to the bank, the bank, although it accepted the check, refused to cancel Sable's note and thereby repudiated the earlier agreement. Sable, thereafter, refused to make further payments on the note. The bank, after consultation with Roach Aircraft, applied the amount of the insurance check to the amount due on the note and made demand for the balance from Roach Aircraft on the basis of the full recourse agreement. Roach Aircraft then took possession of the wreckage from Arapahoe Flyers and disposed of it, crediting the net proceeds of $905 against the balance paid to the bank of $3,109.65. Roach Aircraft then initiated the present action against Sable on the original promissory note for $2,204.65.
Both judgments, one in favor of Roach Aircraft and against Sable on the initial complaint and the other in favor of Sable and against the bank on the third-party complaint, were in the amount of $2,204.65 damages; $330.68 for attorney fees, as provided for in the note; and $198.40 interest plus costs.
The bank complains that the court erred by making inconsistent findings to support the two judgments and that the court erred in determining that a novation had occurred. The bank argues that if a novation occurred, Sable could not be held liable to Roach Aircraft. The bank correctly cites Richardson Drug Co. v. Dunagan, 8 Colo.App. 308, 46 P. 227, for the proposition that a novation occurs only where a previous valid obligation is extinguished by a new valid obligation which substitutes for the original debtor a new debtor and which is executed with the consent of the new debtor, the old debtor and the creditor. The evidence demonstrates, as the bank correctly asserts, that Sable was never in fact formally released from his obligation under the original note. Although the trial court may have incorrectly used the term "novation", the evidence clearly supports the court's conclusion that a contract was entered into between the bank, Sable, and Arapahoe Flyers which contract, although not a "novation," required the bank to release Sable from his obligation under the note upon tender of the insurance check. Since the contract *247 had no conditions pertaining to the note taken from Arapahoe Flyers, the court found that the bank breached that contract by refusing to perform after Sable tendered the check. Hence, Sable remained liable on the original note, but the bank became liable to him for breach of its contract to release him from the note. The evidence supports the findings of the trial court, and we find no error of law in the result reached.
The bank also contends that the court erred in awarding attorney fees as a part of its judgment against the bank. A trial court has no authority to award attorney fees to a successful party unless there is express authorization by statute or contract. Publix Cab Co. v. Colorado National Bank, 139 Colo. 205, 338 P.2d 702. This rule, however, has not been violated in the present case. The bank was liable to Sable for damages he incurred as a result of the bank's breach of the contract to release him from liability under the note. There can be no question that Roach Aircraft was entitled to an award of attorney fees as the note expressly authorized such an award. The total judgment against Sable became the measure of his damages and determined the liability of the bank under the contract, and Sable was allowed to amend his prayer for relief in his third-party complaint to so reflect.
The bank argues that it was error for the court to deny its motion to dismiss the third-party complaint and to allow the third-party complaint's prayer for relief to be amended. The bank correctly observes, however, that every final judgment should grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. C.R.C.P. 54(c). The action of the trial court in allowing the prayer for relief to be amended and in making the award in favor of Sable was proper.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.
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132 Ga. App. 421 (1974)
208 S.E.2d 194
ROSE et al.
v.
CONAGRA-GEORGIA, INC.
49471.
Court of Appeals of Georgia.
Argued June 26, 1974.
Decided July 16, 1974.
Albert B. Wallace, William R. L. Latson, for appellants.
Anderson, Walker & Reichert, R. Lanier Anderson, III, for appellee.
DEEN, Judge.
In support of its motion for summary judgment, the grant of which is appealed from, the plaintiff Conagra established the following: The three Rose defendants and *422 five other persons became jointly and severally liable to it on a promissory note dated August 19, 1971, in the principal sum of $63,243.88 with interest at 8% per annum, containing a provision for payment of 15% attorney fees and option to accelerate on default, and that it actually did go into default four days later and notice of intention to accelerate was given. The same eight cosigners were also liable to the plaintiff on an open account in the amount of $1,470.42. On April 30, 1973, the plaintiff entered into an agreement with four of the remaining five cosigners to which these defendants were not parties, acknowledging receipts from those four of payments on the indebtedness in a total amount of $40,425.86 plus a promise of an additional $900, in consideration of which the plaintiff agreed to postpone attempts to collect the balance from those signatories for a period of two years, during which time it would attempt to collect proportionate amounts from the defendants Rose, and the signatories agreed at the end of that time that if the plaintiff had not collected the balance owing they would then pay it.
None of this was denied by the defendants Rose except that they generally denied liability and claimed credit for payments of $3,500. To this assertion the plaintiff made no rejoinder. Held:
1. The agreement with some of the cosigners, in consideration of their payment of a little less than two-thirds of the principal amount due, to postpone suit against them for a period of two years while attempting to obtain a proportionate amount from the remaining persons liable, did not amount to a satisfaction, release, or novation as to these appellants. The note recited specifically that the makers agreed to be jointly and severally bound; therefore the plaintiff could, at its election, sue one, some, or all of the signatories. Ghitter v. Edge, 118 Ga. App. 750 (2) (165 SE2d 598).
2. The sums of principal, interest, open account indebtedness and attorney fees specified in the note equal an amount slightly in excess of the judgment entered and are mathematically calculable. Accordingly, the entry of the summary judgment was not erroneous because of any lack of a substantiating record.
*423 Judgment affirmed. Eberhardt, P. J., and Stolz, J., concur.
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20 Ariz. App. 401 (1973)
513 P.2d 690
Russell RUSSO, Thomas G. Cox, Vernon F. Dickerson, Jerold A. Cartin, J. James Murphy, William F. McDonald, Robert G. Clark, and Thomas P. Sylvester, Appellants,
v.
The CITY OF TUCSON, a municipal corporation, Appellee.
No. 2 CA-CIV 1417.
Court of Appeals of Arizona, Div. 2.
September 4, 1973.
*402 Russo, Cox, Dickerson & Cartin, P.C., by Jerold A. Cartin, Tucson, for appellants.
Herbert E. Williams, City Atty., by Dwight E. Eller, Asst. City Atty., Tucson, for appellee.
KRUCKER, Judge.
Is the licensing ordinance of the City of Tucson as it relates to attorneys valid? That is the question presented on appeal. The lower court answered this question in the affirmative and we agree.
The appellants, members in good standing of the State Bar of Arizona and practicing attorneys in the City of Tucson, instituted this action alleging in substance that the licensing provisions of the Tucson City Code as related to attorneys were in violation of A.R.S. §§ 32-201 through 32-275 and the Rules of the Supreme Court of the State of Arizona, 17 A.R.S. in particular Rules 27 through 44. The lower court found that the occupational tax imposed by the City of Tucson is not regulatory in nature and that the provisions of the City Code attacked by appellants were not in contravention of the aforementioned statutes and rules. The lower court was of the opinion that the case of McCarthy v. City of Tucson, 26 Ariz. 311, 225 P. 329 (1924), was dispositive of appellants' claim and granted summary judgment in favor of appellee.
Chapter IV § 1(18) of the Tucson Charter authorizes the City:
"To license and regulate ... the carryings on of any and all professions ... carried on within the limits of said city, and to fix the amount of license tax thereon, to be paid by all persons engaged in carrying on ... such profession ... in said city; and to provide for the manner of enforcing the payment of such license tax...."
Section 19-2, Tucson Code, provides that it shall be unlawful for any person to carry on any profession without first having procured a license from the city to do so. Section 19-28 provides in pertinent part:
"The license tax set out in the following schedule is hereby established for businesses, occupations, trades, callings and professions listed therein and shall be paid by all persons who shall practice, transact, carry on or engage in such businesses, occupations, trades, callings and professions.... The schedule shall be as follows:
* * * * * *
"Sec. 19-28(11). Attorney-at-law, each individual, except attorneys retained, appointed, elected or employed in or to full time positions with or by the State of Arizona, Pima County, or any municipality, or subdivision of the State or county government, or the United States Government or any agency thereof, who does not engage in the practice of law in any other manner or for any other client [amount]."
We agree with appellants that the City of Tucson cannot regulate and license persons entitled to practice law within the State. The City, however, can require persons duly licensed by the State to pay a tax for the privilege of maintaining within the city a place in which, or from which, they practice their profession. People v. Williams, 207 Cal. App.2d Supp. 912, 24 Cal. Rptr. 922 (1962). In McCarthy v. City of Tucson, supra, the Supreme Court of Arizona held that the predecessor counterpart of the subject licensing ordinance was clearly a revenue measure and not a police regulation. The court stated:
"It does not undertake to supervise or regulate the practice of law in any manner, *403 and, if it did, the attempt would be unsuccessful, because that occupation is not one subject to controls by the police powers it being neither demoralizing nor dangerous to the public nor threatening to its health or safety. [Citation omitted] But this does not prevent a municipality from providing that one practicing law within its limits shall be subject to a license tax, and that the payment thereof may be enforced in a proper proceeding." 26 Ariz. at 314, 225 p. at 330.
As noted above, the City Charter expressly grants to appellee the power to impose a license tax on "professions." Under these circumstances the appellee can require a license of lawyers for the privilege of following the practice of law within the boundaries of the City of Tucson. See, 9 McQuillen, Municipal Corporations 3d Ed.Rev. § 26.130; Annot., 16 A.L.R.2d 1228 § 3. Nor does the fact that the power to control admission and regulation of attorneys is vested in the judicial department preclude the City from exacting a license tax from attorneys for revenue purposes. Sandstrom v. City of Fort Lauderdale, 133 So.2d 755 (Fla.App. 1961); Sterling v. City of Philadelphia, 378 Pa. 538, 106 A.2d 793 (1954).
We hold, therefore, that the appellants' attack on the validity of the licensing ordinance is without merit. As stated in the oft-cited case of Ex parte Galusha, 184 Cal. 697, 195 P. 406 (1921):
"The municipality, in imposing an occupational tax upon attorneys, is not interfering with state regulations, for it is not attempting to prescribe qualifications for attorneys different from or additional to those prescribed by the State. It is merely providing for an increase in its revenue by imposing a tax upon those who, by pursuing their profession within its limits, are deriving benefits from the advantages especially afforded by the city. The tax is levied upon the business of practicing law, rather than upon a person because he is an attorney at law. [Citation omitted] A license to practice does not carry with it exemption from taxation." 195 P. at 407.
Judgment affirmed.
HATHAWAY, C.J., and HOWARD, J., concur.
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232 Ga. 633 (1974)
208 S.E.2d 455
PADGETT et al.
v.
COWART et al.
28881.
Supreme Court of Georgia.
Submitted May 10, 1974.
Decided September 3, 1974.
C. Ronald Patton, for appellants.
Al D. Tull, for appellees.
GUNTER, Justice.
This appeal involves a dispute between two factions of a Baptist Church congregation. It is an interlocutory appeal; the record shows that no final judgment has been entered in the case; and there is no certificate for immediate review in the record.
The appellants here were defendants below, and the appellees brought an action against them seeking injunctive relief. The appellants made a motion to dismiss the complaint for failure to state a claim. This motion was denied by the trial judge. The trial judge then conducted a hearing, and following the hearing he entered an order on August 17, 1973, that appointed a moderator to conduct a church conference on September 15, 1973.
The appellants filed a notice of appeal on September 13, 1973, two days prior to the holding of the conference. *634 The conference was held on September 15, 1973, and the record contains a transcript of its proceedings.
The appellees have made a motion in this court to dismiss the appeal on the ground that the August 17 judgment was not, without a certificate for immediate review, an appealable judgment. We agree with the appellees, and the motion to dismiss the appeal must be granted.
Appellants have enumerated only two alleged errors below. The first is that the trial court committed error in denying the appellants' motion to dismiss the complaint for failure to state a claim. The overruling of this motion left the action pending in the trial court for further proceedings. Therefore, an order denying such a motion is not appealable. See Code Ann. § 6-701 (a) 1, 2.
The second enumerated error is that the trial court erred in ordering a church conference to be conducted on September 15, 1973. Such an order is appealable, because it requires action, the holding of a church conference, that can affect the rights of parties to the litigation. Such an order is in the nature of an interlocutory mandatory injunction which is appealable under Code Ann. § 6-701 (a) 3.
However, to prevent such an appeal from becoming moot, it is necessary for the appealing party to obtain a supersedeas. If a supersedeas is not obtained, then the ordered action takes place as ordered, and the appeal becomes moot.
The Civil Practice Act (Code Ann. § 81A-162) provides that an interlocutory injunction shall not be stayed during the pendency of an appeal unless a stay is ordered by the court. Therefore, to stop the holding of a meeting or a conference that has been ordered by the trial court, a supersedeas must be obtained from the trial court or from an appellate court in the event the trial court refuses to grant a supersedeas. Without such a supersedeas, the meeting or conference must be conducted as ordered. And once the ordered meeting or conference is held, complaint about its being erroneously ordered becomes moot.
The second enumerated error merely complains that the court erred in ordering a conference to be held; a stay *635 was not obtained to prevent the holding of the conference; and the record shows that the conference was held as scheduled. Therefore, the appeal on this point is now moot.
In this case the first enumerated error presents an attempted appeal from a non-appealable judgment, and the second enumerated error presents a question that has become moot. See Code Ann. § 6-809 (b) (2) (3).
Appeal dismissed. All the Justices concur.
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51 Wis. 2d 124 (1971)
186 N.W.2d 325
STATE, Plaintiff,
v.
CORRY, Defendant.
No. State 43.
Supreme Court of Wisconsin.
Decided May 4, 1971.
For the plaintiff there was a brief by Rudolph P. Regez of Monroe, counsel for the Board of State Bar Commissioners.
For the defendant there was a brief by James A. Hanley of Milwaukee.
PER CURIAM.
The complaint against Matthew M. Corry, a member of the State Bar of Wisconsin, charges him with unprofessional conduct based upon his conviction for failure to file his federal income tax return *125 for the year 1965. After his admission to the bar in 1946, Matthew M. Corry practiced law in Marinette county from May, 1946, to December, 1956. In January of 1957 he was appointed as an assistant United States attorney for the Eastern District of Wisconsin, a position he held until May, 1962. Thereafter he practiced law in the Milwaukee area.
Mr. Corry is now in his early fifties. He graduated from Menasha High School in 1936, from St. Norbert's College in 1941, and the University of Wisconsin Law School in 1946. Mr. Corry was married in 1944 and has eight children by that marriage, but his marriage ended in divorce in 1969.
He failed to file United States tax returns in the year 1964 and 1965 and as a result, on January 16, 1970, upon his plea of nolo contendere he was convicted of the crime of wilfully failing to make a federal income tax return for 1965. He was sentenced to seven months' imprisonment with twenty days to be served in a jail-type institution; the balance of his sentence was suspended and he was placed on probation. He has served the period of actual confinement and he is now current in all his income tax filings but owes various amounts thereon to the government of the United States and the state of Wisconsin.
The question is, what type of discipline should be imposed upon Mr. Corry for his failure to file federal income tax returns? The primary purpose of a discipline proceeding is not the imposition of a penalty or punishment but the ascertainment of the moral fitness and professional competency of the lawyer charged and of whether it is necessary for the protection of the public interest that he be suspended or disbarred from practicing his profession. Where there is fraud on the part of an attorney in respect to his income tax returns and such intent goes to his general character and fitness, the court *126 has felt it was necessary as a deterrent to other attorneys, for the rehabilitation of the lawyer and for the protection of the public, to suspend for a time the license of such an attorney to practice law. See State v. MacIntyre (1969), 41 Wis. 2d 481, 164 N.W.2d 235. In each case, it must be determined whether the acts involving moral turpitude are such as to evince a lack of character in his professional relationship with the courts, fellow lawyers, and his clients. In some cases of failure to file income tax return, because of other effects arising out of the alleged misconduct, the court has thought the attorney had been so affected that his rehabilitation was assured and he could continue to practice without harm to the public. In such cases a reprimand for the unprofessional conduct and the imposition of costs were deemed to be sufficient discipline. See: State v. Bunge (1963), 20 Wis. 2d 493, 122 N.W.2d 369; State v. Hartman (1963), 20 Wis. 2d 499, 122 N.W.2d 372; and State v. Hayes (1963), 20 Wis. 2d 501, 122 N.W.2d 373.
Here, Mr. Corry was subject to extensive adverse newspaper publicity, suffered a criminal prosecution and conviction, and served a period of confinement. This resulted in the loss to such a large part of his practice, he was forced to close his law office.
We think in this matter justice will be served and the court's duty to society will be fulfilled by reprimanding Matthew M. Corry and requiring him to pay the costs of this proceeding. It should not be necessary for this court to remind lawyers they should obey the law and set an example in their obedience of it. We cannot excuse the failure of attorneys to file income tax returns and in this case in failing to do so, Mr. Corry has brought discredit upon the bar. Mr. Corry is hereby reprimanded for his conduct and ordered to pay the costs of this proceeding.
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513 P.2d 697 (1973)
STATE of Hawaii, Plaintiff-Appellee,
v.
Sui FAAFITI, also known as Fesuiaigamalifou Faafiti and Fasuiaigamalifou Faafiti, Defendant-Appellant.
No. 5365.
Supreme Court of Hawaii.
August 29, 1973.
*699 James T. Leavitt, Jr., Honolulu (Hart, Sherwood, Leavitt, Blanchfield, & Hall, Honolulu, of counsel), for defendant-appellant.
Douglas H. Ige, Deputy Pros. Atty., City & County of Honolulu, Honolulu (Barry Chung, Pros. Atty., Honolulu, with him on the brief), for plaintiff-appellee.
Before RICHARDSON, C.J. and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
ABE, Justice.
In the early morning hours of November 3, 1971, a fight broke out in the parking lot of the Dunes night club on Nimitz Highway, Honolulu, involving the defendant, Sui Faafiti, his friends and several servicemen.
The defendant was charged with and tried for having committed the offense of aggravated battery upon Terrence Grady and Ira Haskins, two of the servicemen. The jury convicted him of aggravated battery against Terrence Grady and acquitted him of the offense against Ira Haskins. Judgment and sentence was entered accordingly and the defendant appealed.
I.
The defendant contends that his native language is Samoan; that as he has difficulty understanding and speaking the English language, he had the right to testify with the aid of an interpreter; and, that when his request for the services of an interpreter was denied, he was denied due process of law.
It is general law that where a defendant cannot understand and speak English, the judge is required to appoint an interpreter to aid a defendant. Otherwise, a trial held in his presence would be meaningless to him and would violate our concept of due process, as he would not be given his day in court. Landeros v. State, 480 P.2d 273 (Okl.Cr. 1971); Parra v. Page, 430 P.2d 834 (Okl.Cr. 1967); United States ex rel. Negron v. State of New York, 310 F. Supp. 1304 (E.D.N.Y., 1970), aff'd, 434 F.2d 386 (2nd Cir.1970).
The defendant's contention, however, is not that he cannot understand and speak the English language but that he was "not completely familiar with English" and that the court was required to appoint an interpreter to aid him at the trial. We do not agree with the defendant that whenever a defendant "is not completely familiar with English," upon his request as a matter of right he is entitled to an interpreter. In the first place, how many of us even though educated in the United States are completely familiar with the English language?[1] We believe that the fair and correct rule is that where a defendant has some knowledge of English and he is reasonably able to converse in English, it is within the discretionary power of the trial court whether to appoint or not to appoint an interpreter. Perovich v. United States, 205 U.S. 86, 91, 27 S. Ct. 456, 51 L. Ed. 722. (1907); State v. Kabinto, 106 Ariz. 575, 480 P.2d 1 (1971); Suarez v. United States, 309 F.2d 709 (5th Cir.1962).
Although the defendant did not speak grammatically correct English, upon review of the transcript of the defendant's testimony, we are satisfied that he had sufficient command of the English language to understand questions posed during the proceedings and to convey his thoughts to *700 the jury, and we hold that the trial judge did not abuse his discretion.
II.
The defendant next contends that the trial judge erred in admitting into evidence the transcribed testimony of Ira Haskins given at the preliminary hearing.
There is no question that a defendant in a criminal case has a fundamental or constitutional right to be confronted with and to cross-examine witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); Territory v. Gusman, 36 Haw. 42 (1942).
The hearsay rules of evidence and the confrontation clauses of our constitutions[2] we recognize are generally designed to avoid similar evils; however it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay rules of evidence. As stated by the United States Supreme Court in California v. Green, supra, 399 U.S. at 155-156, 90 S.Ct. at 1934:
Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.
It is also to be noted that the confrontation clause was incorporated into the United States Constitution as the Sixth Amendment to prevent the despised practice of having an accused tried primarily on "evidence" consisting solely of ex parte affidavits, and depositions, and to give the accused the right to demand that his accusers, i.e., witnesses against him, be brought to face him.[3]
Thus, "[t]he primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-243, 15 S. Ct. 337, 339, 39 L. Ed. 409 (1895).
The United States Supreme Court in Mattox v. United States, supra, held that prior testimony given at a defendant's first trial by a witness, who had died subsequently, was admissible at the second trial and did not violate the confrontation clause.
In California v. Green, 399 U.S. 149, 165, 90 S. Ct. 1930, 1938, 26 L. Ed. 2d 489 (1970), the United States Supreme Court ruled that a transcript of testimony given *701 at a preliminary hearing was admissible and did not violate the Confrontation Clause. It stated that the witness Porter's
... statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him.
Here, in spite of the defendant's contention that "preliminary hearing in Hawaii is limited to question of probable cause" the transcript of the testimony of the witness on cross-examination shows that the defendant's present attorney, who was also his attorney at the preliminary hearing, questioned the witness extensively and thoroughly.[4]
The record shows that witness Ira Haskins was shipped out from Hawaii during the latter part of December, 1971, after he had testified at the preliminary hearing on December 1, 1971. It also shows that the State on June 7, 1972, made a request to the proper military authority to have the witness brought back to Honolulu to testify, but this request was denied.
Upon the record of this case, the trial judge correctly ruled that the transcript of the testimony given at the preliminary hearing was admissible under the standards of California v. Green, supra.
III.
The defendant also argues that the trial judge erred in refusing to permit witness Ingrid Nelson to give any testimony concerning the defendant's character, particularly as to a trait of peacefulness or as to a non-violent temperament. Defendant has a clear right to introduce evidence of personal character traits associated with the basic nature of the offense with which he is charged.[5] 1 Wigmore, Evidence § 59. In defending against a charge of aggravated battery, evidence of peaceful and non-violent character is obviously of the greatest relevance.
However, evidence is often relevant and yet still inadmissible. While defendant offers two theories which arguably make the testimony admissible, we can find no error under either theory that requires a reversal of the conviction because of the trial judge's ruling.
Evidence of the defendant's reputation in the community in which he lives and works has long been recognized as admissible, but only where the witness is thoroughly familiar with the general consensus *702 of the relevant community. The competence of a witness, in this, as in other respects, is a matter to be decided by the trial judge. Here, the judge ruled that the witness Ingrid Nelson was not qualified to give testimony as to the defendant's reputation in the community because of insufficient basis for knowledge.[6] Both defendant and witness must have been members of the relevant community for a period of time sufficient to permit slow development of an accurate impression of character. Michelson v. United States, 335 U.S. 469, 477-478, 69 S. Ct. 213, 93 L. Ed. 168 (1948); Roberts v. Commonwealth, 350 S.W.2d 626 (Ky. 1961). The appropriate length of time varies with the individual, the community, and the relevant character trait. Hence, the period of time must be determined in the discretion of the trial judge. Gage v. United States, 167 F.2d 122 (9th Cir.1948); United States v. Trollinger, 415 F.2d 527 (5th Cir.1969); People v. Paisley, 214 Cal. App. 2d 225, 29 Cal. Rptr. 307 (1963). Absent an abuse of discretion, we will not reverse the trial judge's ruling on the matter. People v. Workman, 136 Cal. App. 2d 898, 289 P.2d 514 (1955).
Defendant also urges that, in accordance with the views of the commentators, e.g., 7 Wigmore, Evidence § 1986, and with recent trends in the law, e.g., Rule 405, Proposed Rules of Evidence for United States Courts and Magistrates, we adopt a rule that makes admissible personal opinion testimony as to an accused's character. We leave this issue until another day because we find that even if we did adopt the proposed rule of evidence, there is still no reversible error in the judge's ruling. Proffered testimony of the witness's personal opinion as to defendant's character traits was also excluded by the judge by his sustaining an objection by the State. In cases from other jurisdictions that have held opinion evidence admissible, such evidence has been said to be competent when given by those who have had "an opportunity to form, and who have formed, an opinion as to the character of the accused with respect to the trait or traits in issue," State v. Blake, 157 Conn. 99, 249 A.2d 232, 235 (1968) (dictum). Otherwise stated, testimony of the character witness should show that the witness was "sufficiently acquainted with the defendant" to be able to testify on character matters. State v. Ferguson, 222 Iowa 1148, 1161-1162, 270 N.W. 874, 882 (1937). Since receipt of this type of opinion evidence is subject to the same rules as is other opinion evidence and is admissible largely in the discretion of the trial court, State v. Mayhew, Iowa, 170 N.W.2d 608, 619 (1969), and since we can find no abuse of discretion in excluding the testimony of a witness who the judge apparently felt had had insufficient opportunity to form a meaningful opinion about defendant's character, there is no reversible error.
On the matter of character witnesses for defendant, it should be noted that another witness for the defendant, Alice Tamura, cashier and assistant manager of the Dunes, was permitted to testify that the defendant's reputation for "character of peaceableness and nonviolence at the Dunes" was good. This fact further bolsters our opinion that the error, if any, in exclusion of the testimony of witness Ingrid Nelson was not reversible, because, it it was error at all, it was also harmless.
IV.
The defendant next contends that the trial judge erred in refusing to charge *703 the jury with the instruction he requested as follows:
A person who is threatened with an attack that justifies the exercise of the right of self-defense, may stand his ground, and meet force with force. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.
The defendant in his argument before this court contended that the trial judge erred when he refused to give the requested instruction as the defendant had the right to stand his ground and meet force with force, when he is attacked in his home or at his place of employment, and such was the case here. However, the requested instruction quoted above is silent on the point of law now being urged by the defendant because nothing is mentioned in the instruction as to where the attack occurred. As submitted, the instruction appears incorrect. But, even treating it as an instruction on the general rule of self defense, and even assuming arguendo that it correctly states the law of this jurisdiction, the trial judge did not err in refusing to give the instruction because we are satisfied that the trial judge correctly and fully charged the jury on the issue of self defense in this case when he read the following instructions:
Under the law of self-defense, it is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. This right of self-defense is the same whether such expectation is real or merely apparent to a reasonable man. In doing so he may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.
In connection with self-defense, the Court further instructs you as follows: If you find that the defendant has produced evidence that he acted in self-defense, so that you are satisfied that the defendant has raised a reasonable doubt as to his guilt, then you must acquit him.
The kind and degree of force which a person may lawfully use in self-defense are limited by what a reasonable person in the same situation as such person, seeing what he sees and knowing what he knows, then would believe to be necessary. Any use of force beyond that is regarded by the law as excessive. Although a person may believe that he is acting, and may act, in self-defense, he is not justified in using a degree of force clearly in excess of that apparently and reasonably necessary under the existing facts and circumstances.
You are instructed that the right of self-defense lasts only as long as the necessity, real or apparent for it exists.
V.
We have also considered the other points raised on appeal and find them without merit.
Affirmed.
NOTES
[1] This fact is substantiated in decisions of this court and other supreme courts which show obvious grammatical errors.
[2] Sixth Amendment, United States Constitution, Art. I, Sec. 11 Hawaii State Constitution.
[3] 1 J. Stephens, A History of the Criminal Law of England at 236 (1883); see also 9 W. Holdsworth, A History of English Law at 225, 228 (3d ed. 1944).
The trial of Sir Walter Raleigh for treason in 1603 is a famous example. It appears that the crucial evidence against him consisted of statements of Cobham implicating Raleigh in a plot to seize the throne. Subsequently Raleigh had received a written retraction from Cobham which made him believe that Cobham would testify on his behalf. Raleigh was not permitted to call Cobham as a witness and Raleigh was convicted. 1 J. Stephens, supra at 333-336; 9 W. Holdsworth, supra at 216-217, 226-228.
[4] Further, there is no statute or rule of court to prevent a defense attorney from extensively and thoroughly cross-examining a witness at a preliminary hearing. We also advise the district judges to permit the counsel for a defendant to examine fully and thoroughly witnesses at all preliminary hearings. We also believe that contrary to statements made by some other courts, an extensive cross-examination of a witness (for the prosecution) will not in most cases divulge the hands of defendants and will not amount to a forced discovery upon defendants of their plan or strategy for defense.
[5] It is to be noted that we stated in State v. Santiago, 53 Haw. 254, 256-257, 492 P.2d 657, 659 (1971), that "[i]t is the law in virtually every state that evidence of prior convictions may not be admitted in order to show that the defendant has a criminal propensity and is likely to have committed the crime charged." If that is so, why should opinion testimony of a witness either as to the good or bad reputation of an accused be admitted in evidence to show either the lack of criminal propensity and unlikeliness of his having committed the crime charged or vice versa? Thus, should testimony as to a defendant's reputation and character have a place in our criminal judicial system?
[6] The witness worked at the Dunes three nights a week during the period that the defendant was employed as a doorman-bouncer prior to the incident giving rise to criminal charges. This period of defendant's employment was five or six weeks. Some conversations with other employees about defendant, other conversations overheard, and "general talk" are the entire basis for the witness's knowledge of that "community's" general consensus on defendant's character. The State objected to the testimony proffered because of defense counsel's inability to lay the proper foundation for its admissibility under these facts. The objection was sustained.
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364 F. Supp. 1192 (1973)
Roger FAIN, Petitioner,
v.
Ed DUFF, as Volusia County Sheriff, and O. J. Keller, as Director of Division of Youth Services of Florida, Respondents.
No. 72-604-Civ-J-M.
United States District Court, M. D. Florida, Jacksonville Division.
January 15, 1973.
Thomas A. Goldsmith, Philip H. Elliott, Jr., Daytona Beach, Fla., for plaintiff.
John W. Tanner, Daytona Beach, Fla., and Robert L. Shevin, Atty. Gen., Tallahassee, Fla., for defendants.
ORDER
McRAE, Chief Judge.
In 1970, petitioner Roger Fain, on account of certain misconduct, was adjudged a delinquent by Florida authorities competent to make such an adjudication. *1193 Shortly thereafter, an indictment for rape was returned against petitioner alleging the same acts on which the delinquency adjudication had been predicated. When the identity of the facts was pointed out to the trial judge, he dismissed the indictment. The State appealed to the First District Court of Appeals,[1] which reversed the trial court. The Supreme Court of Florida heard the question on the merits and affirmed the judgment of the First District Court of Appeals,[2] but stayed its mandate until this Court might act.
Meanwhile, petitioner has been in the custody of juvenile authorities pursuant to his being adjudicated delinquent, and is presently held at Marianna, Florida, in the Northern District. At the hearing in this cause, the testimony of Mr. Lenox E. Williams, Superintendent of the Dozier School for Boys, established that the juvenile authorities are of the opinion that petitioner has been rehabilitated and the authorities are prepared to release him but for the probability that his release from the Dozier School for Boys would simply result in his rearrest by Volusia County authorities on the strength of the judgment of the Florida Supreme Court.[3] While it is true, as a technical matter, that the rape indictment is not outstanding so long as the Supreme Court of Florida's stay is in force, this circumstance in no way alters the fact that but for the indictment, waiting only a ministerial act to become effective, petitioner would be a free man.[4]
This Court's analysis commences with the axiomatic proposition that the central office of the writ of habeas corpus is to test the legality of a prisoner's present restraint. Walker v. Wainwright, 390 U.S. 335, 88 S. Ct. 962, 19 L. Ed. 2d 1215 (1968). The present case is analogous to the case where a person, in custody under one conviction and sentence, challenges another conviction and sentence that is to commence in the future. See e. g. Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968). In those cases, the authorities who are to take custody in futuro lodge a detainer with the authorities who have actual custody, and habeas jurisdiction arises because of the more stringent quality of present custody attributable to further incarceration anticipated elsewhere. In the present case, the testimony of Mr. Williams has established the same necessary link between petitioner's present status and anticipated incarceration elsewhere that the lodging of the detainer establishes in the Peyton line of cases. Of course, in the present case it is not merely the quality but the very existence of custody that is attributable to anticipated incarceration.
The present case is also highly unusual in that it is pretrial custody rather than an imposition of sentence that faces petitioner, and accounts for his present confinement. This difference is immaterial, however, both to the custody aspect of the case and to the question of exhaustion with which every state prisoner habeas case must deal. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). This is for the obvious reason that the trial court's ruling dismissing the indictment has permitted exhaustion of what is, in other circumstances, normally an interlocutory question. The "remedies available in the courts of the State," 28 U.S.C. § 2254(b), have been exhausted and the *1194 only argument to the contrary is the very strained one that the State appellate courts might reverse themselves on appeal from final conviction, a course that has been foreclosed unless the State appellate courts should overrule very recent precedent they have unanimously laid down. Moreover, it is clear that the federal system is designed principally to give the State an initial "opportunity to pass upon and correct" alleged violations of its prisoners' constitutional rights, and not for such speculative possibilities as respondents suggest. Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Since the State of Florida has had this initial opportunity, the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied. Accord Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407. 30 L. Ed. 2d 418 (1971).
The respondents have taken the position that, conceding jurisdiction in some federal district court, the only district court that has jurisdiction is the District Court for the Northern District of Florida, where petitioner is presently physically detained. Respondents have not taken the position that, if this Court determines that it has jurisdiction, venue might more properly be laid in the Northern District. Nor could they do so, because the only person from Marianna, Florida, whose presence was necessary at the hearing before this Court, Mr. Williams, appeared voluntarily, no subpoena having been issued. Any venue argument must, moreover, ring hollow at this point in the proceedings, since a full evidentiary hearing, for which everyone has appeared, has been already held. But this is not respondents' position. Rather, they assert that under the authority of Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948), the "prisoner must be within the territorial jurisdiction of the District Court in order to obtain from it a writ of habeas corpus." Id. at 191, 68 S. Ct. at 1444. This rule, which the dissent in Ahrens characterized as cutting "sweepingly at the roots of individual freedom," is not applicable here. See 28 U.S.C. § 2241(d) as amended; and Peyton v. Rowe, supra. Accord Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969 en banc).
The Supreme Court in Ahrens construed 28 U.S.C. § 2241(a), "within their respective jurisdictions," as limiting the power of the federal district courts to grant writs of habeas corpus to only those petitioners confined within their territorial jurisdiction. (emphasis provided). However, Congress in 1966, expanded the jurisdictional grant of 28 U.S.C. § 2241 by adding subsection (d), which vests jurisdiction in the district court not only where petitioner is confined, but also where he has been convicted and sentenced. See Act of September 19, 1966, Pub.L. 89-590; 80 Stat. 811, amending 28 U.S.C.A. § 2241 (1948).[5]
Respondents, however, further assert that since petitioner is confined in the Northern District of Florida, and that since petitioner has not been sentenced and convicted by a state court within the Middle District of Florida, 28 U.S.C. § 2241(d) does not provide this Court with jurisdiction of the case. In effect, respondents submit that petitioner has only one forum to present his petition, that being the geographical district where petitioner is presently confined. This is simply on account of the fact that petitioner is challenging his present restraint which is caused not by any conviction and sentence but by pretrial proceedings.
This Court does not restrict 28 U.S.C. § 2241(d) to such a narrow and formalistic construction. Cf. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. *1195 373, 9 L. Ed. 2d 285 (1963). (liberal reading of "custody" within the meaning of 28 U.S.C. § 2241). The intent of Congress when it enacted Section 2241(d) was to fairly distribute the workload between the federal districts in a multi-district state, clearly in accord with the purpose of 28 U.S.C. § 2255. Act of September 19, 1966, Pub.L. 89-590, Legislative History at p. 2968. With this purpose in mind, and in view of the function of the Great Writ, which is to provide a prompt and efficacious remedy for whatever intolerable restraints the United States Constitution forbids, this Court does not consider it appropriate to limit jurisdiction under Section 2241(d) to post-trial inquiries. As enunciated by the Supreme Court in Fay v. Noia, supra, at 418 of 372 U.S., at 838 of 83 S.Ct., citing Cook v. Hart, 146 U.S. 183, 194, 13 S. Ct. 40, 36 L. Ed. 934 (1892).
". . . [w]hile the Federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the Federal Constitution or laws, . . . the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged."
Since the exhaustion requirement of 28 U.S.C. § 2254 has been satisfied in the present case, habeas inquiries can be appropriately extended to claims attacking restraints based on pretrial proceedings. Cf. Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1960). (right to speedy trial). This Court's approach is clearly in line with the Supreme Court's policy that state prisoners seeking federal habeas corpus relief after exhausting state court remedies should be able to do so at the earliest practicable time. Peyton v. Rowe, supra. See Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). With this in mind, the Court now proceeds to an adjudication on the merits.
Respondents primarily assert that an adjudication by a juvenile court in which a child is adjudged a delinquent is not tantamount to a criminal conviction in adult court; and since a juvenile adjudication is not a criminal proceeding, jeopardy there does not attach. Therefore, respondents argue, an indictment returned against petitioner charging him with the same acts on which the delinquency adjudication had been predicated is not either fundamentally unfair or proscribed by the double jeopardy clause of the United States Constitution.
In addition, respondents contend that the present case is distinguishable from Hultin v. Beto, 396 F.2d 216 (5th Cir. 1968), wherein the Fifth Circuit held that an indictment, trial, and conviction of a person, which is based on the same acts for which he had previously been adjudged a delinquent child and confined in a state boys' school, violated fundamental fairness and therefore constituted a deprivation of due process. In support of their position, respondents point to the differences between the Texas Juvenile System and the Florida Juvenile System. In particular, respondents rely on Fla.Stat. § 39.02, F.S.A., (1971), which vests the juvenile judge with the discretion to transfer a case in certain specified instances, and thus by transferring the case he waives jurisdiction and permits the State to prosecute the juvenile as an adult. Whereby in Texas, the juvenile judge is not given this discretion since no minor there can be tried for a criminal offense if he is less than 17 years of age. Respondents assert that since the State of Florida could have prosecuted petitioner as an adult if the juvenile court would have waived jurisdiction, it should not now be precluded from doing so.[6]
*1196 The Court finds this argument unpersuasive. These noted differences in the Florida and Texas juvenile systems do not rise to the level of distinguishing this case from Hultin, supra. This Court, furthermore, holds that since petitioner is challenging an adult prosecution after a juvenile proceeding, under the authority of Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), (double jeopardy prohibition of the fifth amendment applicable to the States through the due process clause of the fourteenth amendment), and Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970), (State trial based on same acts as an earlier municipal court conviction constitutes double jeopardy) it is in violation of the double jeopardy clause for an indictment to be returned against a person charging him with the same acts on which the delinquency adjudication had been predicated. The facts in Waller show that a person who had been convicted in municipal court for violation of a municipal ordinance was then again convicted in state court for violation of a state crime which was similar to that of the municipal ordinance. The Supreme Court held that since state courts and municipal courts are both established under state authority they could not be treated as separate sovereigns; and accordingly, a person "could not lawfully be tried both by the municipal government and by the State of Florida." Id. at 395, 90 S. Ct. at 1188. The Court finds the ratio decidendi of Waller equally applicable here.
The fifth amendment to the United States Constitution states in pertinent part that . . . "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, . . .". Therefore, it is crystal clear that when a person is put before a juvenile court, and that court is competent to act and has the authority to threaten this person with loss of liberty, jeopardy attaches to the proceeding; and consequently, any subsequent proceeding in adult court based on the same acts which were charged in the juvenile proceeding is constitutionally impermissible. See United States v. Dickerson, 168 F. Supp. 899 (D.D.C.1958), rev'd on other grounds, 100 U.S.App.D.C. 221, 271 F.2d 487 (1959).
In sum, this Court believes that respondents have failed to show any sound reason why petitioner should not be afforded the protections of the double jeopardy clause. The Court fails to discern any useful purpose that can be served by exposing petitioner to a second trial based on the same acts. If a second trial were allowed, it would not only undermine the strength of our juvenile system but also the value placed on individual liberty.
Upon consideration that Mr. Lenox E. Williams, Superintendent of the Dozier School for Boys, Marianna, Florida, is of the opinion that petitioner has been rehabilitated, and therefore is prepared to release him but for the proceedings against petitioner for rape, it is
Ordered:
1. This Court finds that it is in violation of due process, in that it is not only fundamentally unfair, but also prohibited by the double jeopardy clause of the United States Constitution, and therefore constitutionally impermissible for petitioner to be prosecuted on the rape indictment returned by the Fall Term Grand Jury of Volusia County, Florida, on December 2, 1970, which is subject only to a ministerial act before reinstatement.
2. Respondent O. J. Keller, Director of Youth Services of Florida, is directed to release petitioner forthwith from physical custody and to proceed with rehabilitative placement possibilities.
NOTES
[1] State v. R.E.F., 251 So. 2d 672 (1971).
[2] R.E.F. v. State, 265 So. 2d 701 (1972).
[3] Still another prosecutorial writ an information based on the same "transaction" is outstanding against petitioner. But the offense is bondable and petitioner has posted bond so that he need not fear arrest for Volusia County Officials on that account at least until after conviction.
[4] It is clear that petitioner will be returned to Volusia County for trial based on the indictment unless the Florida Supreme Court reverses itself. Fla.Stat. § 924.37(1) F.S.A., (1971) provides that "[w]hen the state appeals from an order dismissing an indictment (and the order is reversed), the appellate court shall direct the trial court to permit the defendant to be tried on the reinstated indictment . . .."
[5] It is appropriate to note that the Fifth Circuit in Mitchell v. Henderson, 432 F.2d 435, 436 (1970), has intimated that the purpose of 28 U.S.C. § 2241(d) ". . . is to provide a more convenient forum for witnesses. Although section 2241(d) primarily governs jurisdiction, we believe it has implications as to venue between divisions in the same district."
[6] Respondents additionally argue that pursuant to Fla.Stat. § 39.02(6)(c), F.S.A., if an indictment had been returned before the juvenile court had acted, the indictment itself would have relieved the juvenile court of jurisdiction. While recognizing this position as being correct, it is nevertheless clear to the court that when petitioner was tried in juvenile court, that court had jurisdiction and was competent to act.
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364 F. Supp. 1345 (1973)
Jerry Lee LUCAS, Plaintiff,
v.
Officer B. L. KALE et al., Defendants.
Civ. A. No. 73-C-118-R.
United States District Court, W. D. Virginia, Roanoke Division.
October 3, 1973.
*1346 F. Guthie Gordon, III, Lowe & Gordon, Charlottesville, Va., for plaintiff.
James R. Austin, Gentry, Locke, Rakes & Moore, Roanoke, Va., for Officers Kale and Thurston.
C. W. Allison, Jr., Covington, Va., for Wm. Cole.
OPINION and JUDGMENT
DALTON, Chief Judge.
The plaintiff, Jerry Lee Lucas, demands judgment against the defendants Officer Cale[1] and Officer Thurston, police officers of the City of Covington, Virginia, and defendant Deputy Jailer Cole, employed as a jailer with the Alleghany County Sheriff's Department, in the amount of $25,000 compensatory damages and $25,000 punitive damages. *1347 Plaintiff asserts that in the early morning of August 27, 1972, he was arrested and taken to the Covington, Virginia police station. While plaintiff was being booked, defendants Cale and Thurston, in their capacity as police officers and while wearing police uniforms, allegedly assaulted plaintiff about the face, head, and back with their fists and arms causing serious injury to the plaintiff which necessitated treatment at a hospital. Additionally, plaintiff contends that the aforementioned acts were committed with the knowledge, consent, and approval of defendant Cole, who allegedly failed to properly exercise his appointed duties as jailer responsible for the handling of prisoners. Consequently, plaintiff concludes defendants have acted under the color of state law to deprive him of his right to be free from physical abuse, coercion and intimidation, rights secured by the Fourteenth Amendment to the U. S. Constitution. As a direct result of the aforementioned acts, plaintiff avers that he has suffered bodily harm and mental anguish resulting in medical and hospital expenses. Plaintiff contends he has a cause of action against defendants pursuant to 42 U.S. C. §§ 1983 and 1985, and invokes the jurisdiction of this court according to 28 U.S.C. §§ 1331, 1332 and 1343. Defendants Cale and Thurston jointly have filed motions to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure, and defendant Cole, individually, has filed a similar motion.
Initially, the court grants defendants' motion to dismiss regarding plaintiff's claim pursuant to 42 U.S.C. § 1985(3). The elements which must be alleged to state a cause of action under § 1985(3) were concisely stated in Huey v. Barloga, 277 F. Supp. 864, 868 (N.D.Ill. 1967).
The elements necessary for a cause of action under the section are (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4) action by the defendants under color of state law or authority, and (5) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in furtherance of the conspiracy.
Courts have uniformly dismissed actions pursuant to § 1985(3) which contained mere conclusory claims of constitutional deprivations unsupported by factual allegations. E. g., Robinson v. McCorkle, 462 F.2d 111 (3rd Cir. 1972); Granville v. Hunt, 411 F.2d 9 (5th Cir. 1969); Burnett v. Short, 311 F. Supp. 586 (S.D.Tex.1970), aff'd, 441 F.2d 405 (5th Cir. 1971). Consistent with this precedent, the court finds plaintiff's § 1985(3) allegations wholly inadequate. He provides no evidence of (1) a conspiracy, (2) nor any indication that the defendants were attempting to deprive him of equal protection of the laws or equal privileges and immunities under the law, (3) nor any evidence of a purposeful intent to discriminate. Rather, he proffers the vague complaint that the defendants acted "in concert" to deny him of rights guaranteed by the U. S. Constitution. This allegation is insufficient to support a complaint pursuant to 42 U.S.C. § 1985(3).
There remains for disposition plaintiff's alleged cause of action under 42 U.S.C. § 1983, and the court's consequent jurisdiction according to 28 U.S.C. § 1343(3). As previously noted, defendants Cale and Thurston have filed answers and motions separate from the answer and motion filed by defendant Cole. The court, therefore, will consider their motions and answers separately. Before doing so, however, the court will dispose of a common defense asserted by defendants.
Defendants contend that plaintiff's claim is barred by the applicable statute of limitations provision contained in § 8-24 of the Virginia Code because it accrued more than one year before the initiation of this action. This defense is lacking in merit. Plaintiff *1348 alleges the incident complained of occurred on August 27, 1972. Nowhere in their answers or motions do defendants present any contrary evidence. On the face of the complaint is the stamp of the Clerk of the U. S. District Court indicating that the complaint was filed on August 23, 1973. Assuming their claim that a one year statute of limitations is applicable to § 1983 suits is correct,[2] it is obvious that plaintiff filed this action within one year of the occurrence of the incident in controversy. Therefore, this asserted defense is overruled.
Plaintiff has stated a cause of action cognizable under § 1983 against defendants Cale and Thurston. Plaintiff has a constitutional right to be free from unreasonable interference by police officers and this protection includes his physical integrity. Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970); Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972). He complains that defendants Cale and Thurston arbitrarily inflicted injury upon him, an allegation they deny. Furthermore, Cale and Thurston declared that when plaintiff was brought to the Alleghany County Jail he showed signs of having been engaged in a fight and attempted to secure a warrant against an individual who he said had committed an assault and battery upon him. Defendants also contend that plaintiff was intoxicated and actually committed an assault and battery upon them while he was lawfully in custody. Clearly, factual questions have been presented and therefore Cale's and Thurston's motion to dismiss is denied.
Plaintiff does not allege that defendant Cole participated in the alleged beating; rather he asserts that Cole was aware of Cale's and Thurston's actions, and approved of them, thereby establishing Cole's failure to properly exercise his duties as jailer. Defendant Cole denied the above allegations and asserts the same allegations as presented by Cale and Thurston concerning the occurrences on August 27, 1972. Again a factual controversy is evident. In considering defendants' motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure allegations in the plaintiff's complaint must be accepted as true and the complaint dismissed only if it appears to a certainty that plaintiff is not entitled to relief under any state of facts which could be proved to support his claim. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 87 S. Ct. 1526, 18 L. Ed. 2d 704 (1967); Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 68 S. Ct. 174, 92 L. Ed. 88 (1947); Schenley Ind. v. N. J. Wine & Spirit Whole. Ass'n, 272 F. Supp. 872 (D.N.J.1967). Consistent with this standard, defendant Cole's motion to dismiss is denied.[3] Liberally construing plaintiff's complaint it is possible he could recover on several alleged grounds. Although courts have generally refused to apply the doctrine of respondeat superior to § 1983 actions, it has been accepted in certain instances. Compare Hill v. Toll, 320 F. Supp. 185 (E.D.Pa.1970), with Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973); Adams v. Pate, 445 F.2d 105 (7th Cir. 1971); Madison v. Gerstein, 440 F.2d 338 (5th Cir. 1971); and Sanberg v. Daley, 306 F. Supp. 277 (N.D.Ill.1969). In addition, plaintiff might recover relying on those cases which have held supervisory officers subject to § 1983 actions for negligence in supervising their subordinates. Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971); Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971); Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971); Sheridan v. Williams, 333 *1349 F.2d 581 (9th Cir. 1964); Nesmith v. Alford, 318 F.2d 110 5th Cir. 1963). Furthermore, the Fourth Circuit has recently ruled that a claim is stated under § 1983 if state law holds the defendant responsible for illegal acts committed by his subordinates. Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973).
For the aforementioned reasons, defendants' motions to dismiss are denied and it is ordered that this case be set for jury trial, before a seven member jury, at Roanoke, Virginia on October 23, 1973, at 9:30 a. m. U. S. District Judge James C. Turk will preside at the trial.
NOTES
[1] In plaintiff's complaint, Officer D. L. Cale was referred to as Officer B. L. Kale.
[2] Because plaintiff's action was instituted within one year of the alleged assault the court need not resolve the conflict between the one year statute of limitations recently adopted by the Virginia legislature (§ 8-24) and the two year statute of limitations adopted by the Fourth Circuit in Almond v. Kent, 459 F.2d 200 (4th Cir. 1972).
[3] Since the court has ruled plaintiff has stated a cause of action against all defendants pursuant to 42 U.S.C. § 1983, the court has jurisdiction according to 28 U.S.C. § 1343. Having established jurisdiction, the court makes no determination regarding plaintiff's contention of jurisdiction pursuant to 28 U. S.C. §§ 1331 and 1332.
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364 F. Supp. 895 (1973)
UNITED STATES of America
v.
Theodore J. ISAACS and Otto Kerner, Jr.
No. 71 Cr. 1086.
United States District Court, N. D. Illinois, E. D.
Motion to Sequester Jury October 30, 1972.
Motion to Continue December 19, 1972.
Order on Motion for New Trial April 19, 1973.
*896 *897 James R. Thompson, U. S. Atty., Samuel K. Skinner, First Asst. U. S. Atty., Chicago, Ill., Darrell McGowen, Dept. of Justice, Washington, D. C., Steven Kadison, Asst. U. S. Atty., Chicago, Ill., for the Government.
Paul Connolly, Williams, Connolly & Califano, Washington, D. C., Warren D. Wolfson, Chicago, Ill., for defendants.
MEMORANDUM
ROBERT L. TAYLOR, District Judge.
Before the Court for consideration is the motion of defendant Kerner to continue the trial of the case if the Government does not satisfy his request for particulars. Also before the Court is a companion motion for an order compelling the Government to provide forthwith greater particularization than heretofore provided as to paragraph 11, Count 1, "under the sanction of contempt for failure to comply."
The Grand Jury charged that it was part of the conspiracy that shares of stock would be made available to Kerner and Isaacs:
". . . by a method constituting a personal advantage to them, in order *898 to influence the good will and favor of Otto Kerner, Jr., as Governor of the State of Illinois, and of persons connected with his administration, and by such influence, to cause defendant Kerner and the persons connected with his administration to act favorably in performing their official and public functions, decisions, actions, and duties with respect to matters involving CTE, its tenants, lessees, subsidiaries and affiliates."
In a motion for particulars, Kerner asked for specification of the "public functions, decisions, actions and duties" to which the paragraph referred. We granted the request by an order filed May 30, 1972.
The Government filed its compliance with that order on July 26, 1972. Therein it stated that, as Governor, Kerner had the responsibility for appointing the Director of the Illinois Department of Revenue who was responsible for the collection of revenue from the horse and harness racing industry,[1] and for appointing the members of the Illinois Racing Board[2] and the Illinois Harness Racing Commission that had responsibility for awarding racing dates and otherwise regulating the industry. It stated further that, as Governor, Kerner was required to make decisions and to take actions concerning legislation affecting the racing industry which the Illinois General Assembly submitted to him. Additionally, he was required to submit proposed legislation affecting the racing industry to the General Assembly.
At the third pre-trial conference on October 24, 1972, Kerner's counsel challenged the adequacy of that response for the first time. He argued convincingly that there were warehouses of legislative records concerning the years when Kerner was Governor, thus making it impossible to prepare his defense unless the Government identified the bills it contends were affected by the alleged bribe. In our order of October 30, 1972, we expressed our opinion that the request that any specific legislative or executive action which the Government contends resulted from the alleged bribe be identified had merit and the Government should supply the information.
The Government subsequently filed a statement contending (1) that all appointments to the Illinois Racing Board and the Illinois Harness Racing Commission, particularly the appointment of defendant Miller as Chairman of the former, were actions favorable to the specified racing interests; (2) that forty-six specific bills introduced in the Illinois General Assembly during Kerner's term as Governor were acted upon by Kerner in a manner favorable to the aforesaid racing interests; and (3) that both Kerner and Isaacs intervened with members of the racing board and the harness commission on behalf of these racing interests regarding the allocation of racing dates. The statement also contains a fourth category of actions which would seem to preserve the Government's right to introduce proof of other executive or legislative acts.
The instant motion for greater particularization calls for:
"1. An identification of each appointment to the Illinois Racing Board and the Illinois Harness Racing Board which the government contends was the result of a bribe; a statement as to whether the appointee knew that he had any obligation during his term of office to act favorably toward the entities listed in the government's Statement of Compliance and a description of favorable action taken by such appointee[s] during the term[s] of office.
"2. A statement of the specific action taken by the governor with respect to each of the forty-six bills listed in response numbered `2' of the Statement of Compliance which is alleged to be the `favorable' action relied upon to support the contentions of ¶ 11 *899 of Count I of the Indictment; a brief description of the nature of the bill and a brief statement as to the manner by which the government contends the bill was of benefit to the Everett racing interests, and a statement as to whether the particular action taken by the governor is contended to be the result of a bribe.
"3. A statement identifying the particular member[s] of the Racing Board and Harness Racing Commission with whom Governor Kerner or Theodore Isaacs is said to have `intervened'; the time or approximate times of such intervention; the identity of the entity on whose behalf the intervention took place and a brief description of the `intervention' referred to.
"4. A statement identifying the problems referred to in the Statement of Compliance and relating each particular problem to an identified state regulatory agency. The statement should include as well an identification of the person or persons who allegedly acted at the direction of Kerner and those who acted at the direction of Isaacs, and it should also describe briefly, so as to be recognizable, the decision made and how it favored the Everett racing interests."
In his brief in support of these motions, counsel for Kerner states:
"The government's response to that order is broken down into four numbered answers, each of which escalates in evasiveness and obfuscation. The conclusion is inescapable that the government does not intend to comply with the Court's orders, either because it cannot support its allegations or because it wishes to deter the defendant from preparing his defense. The result of noncompliance is contemptuous and either reason is inexcusable." (pp. 2-3)
"The first numbered response by the prosecutor is better than the rest but only by contrast. Objectively it is as much an avoidance of honesty as the rest . . .
". . . [The United States Attorney's] sweeping assertion sounds more Joseph McCarthy-esque than responsible. This Court should, prior to trial, make a relentless inquiry of Mr. Thompson to ascertain whether he has any substance to the contention he makes in this response." (p. 6)
The thrust of these motions is discovery of the Government's proof. The function of a bill of particulars is to prevent surprise or double jeopardy; it is not a discovery device. We have previously ruled on that question in this case. See 347 F. Supp. 743, 762.
As counsel agreed at the hearing on January 20, 1972, the cut-off date for pre-trial motions was March 20, 1972. Fifty motions were filed prior to that date by defense counsel. We ruled on most of these, including Kerner's request for particulars as to ¶ 11, Count 1, in our order of May 30, 1972. The Government complied with that ruling on July 26, 1972. Kerner's counsel ignored the statement of compliance until three weeks before the original trial date. Now three weeks before the second trial date they raise the issue again and tie it to a motion for a continuance. This time the motion is totally lacking in merit.
Accordingly, it is ordered that these motions be, and the same hereby are, denied.
MEMORANDUM
ON MOTION TO SEQUESTER JURY
Before the Court for consideration is the Government's motion to sequester the jury from the time of its selection to the return of the verdict. The defendants oppose sequestration principally on the ground that it would prejudice them to be tried by a jury that was sequestered for an extended period spanning the Thanksgiving-Christmas holiday season. But see, United States v. Holovachka, 314 F.2d 345, 352-353 (C.A.7, 1963). Counsel for defendant Kerner has stated to the Court that he will not move for a mistrial or a new trial on the ground that a juror was *900 exposed to prejudicial publicity during the course of the trial.
The matter has given the Court an unusual amount of difficulty. The Court recognizes that sequestration works a hardship on the jury, especially at this time of year. The Court sought to avoid this problem and exerted considerable effort to persuade counsel to try the case last summer, free from holiday pressures. Unfortunately, because of the numerous records involved and other factors requiring much time and study in preparation for trial, it was not feasible to set the case at an earlier date.
Where, as here, the defendants are public figures and there are pronounced feelings among the citizenry concerning the case, the Court believes that the possibility of one or more jurors being approached for one side or the other is great. The Court recognizes that the attorneys in this case are highly reputable and would condemn such an approach by anyone. However, their condemnation would not prevent a mistrial. Any private communication with a juror, direct or indirect, concerning a matter he is trying, is presumptively prejudicial. To avoid a new trial, the Government must clearly show that the contact was harmless to the defendant. Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1953), 350 U.S. 377, 76 S. Ct. 425, 100 L. Ed. 435 (1955). Under the circumstances, sequestration of the jury is indicated.
Counsel for Judge Kerner has indicated that he plans to petition for a writ of prohibition against sequestration. This order is made in advance of the trial date to permit prompt disposition of the question, that is, before the trial date.
ON MOTION FOR NEW TRIAL
Defendant Isaacs has filed a motion for a new trial. The Court has this day passed to the Clerk for filing a memorandum opinion overruling the motions for a directed verdict and, in the alternative,
ORDER
for a new trial filed by Otto Kerner, Jr. Some of the grounds relied upon by Isaacs are similar to or the same as relied upon by Kerner, and the memorandum filed in the Kerner case insofar as applicable is adopted by the Court in this ruling on Isaacs' motion.
The grounds relied upon by Isaacs are for the most part general and lacking in merit. For example, Isaacs claims that the Court erred in failing to grant him a separate trial. This question was carefully considered in a memorandum heretofore filed. In the opinion of the Court it is lacking in merit.
Isaacs claims that the Court erred in not granting a mistrial due to statements made by the Government's attorneys during their final rebuttal arguments. We do not agree.
Isaacs also claims that the Court erred in allowing Marjorie Everett to relate mental processes when asked why she made the CTE stock available, and to permit William Miller to relate his and Mrs. Everett's mental processes when asked why he told Kerner and Isaacs of Mrs. Everett's stock offer. In the opinion of the Court it did not commit prejudicial error in its rulings on questions of evidence.
Grounds 4 and 5 complain of the action of the Court in refusing to grant a motion for acquittal at the close of the Government's case and at the close of all the evidence, and in failing to strike certain questions asked by District Attorney Thompson. In the opinion of the Court these grounds are without merit, except as to Counts V, VII, X, XI and XII. The evidence showed that the mailings of the instruments referred to in Counts X through XII were too remote to establish guilt under the Mail Fraud Statute; that, in Count VII, the proof of mailing was insufficient; and that, in Count V, the proof of a connection between the requisite intent and the interstate travel was insufficient.
Isaacs also claims that the Court erred in refusing to tell defense counsel before *901 final argument of the instructions it intended to give to the jury, and in ordering the jury sequestered, and in refusing to give certain instructions. In the opinion of the Court these contentions are likewise without merit.
Having considered Isaacs' motion for a new trial and each ground urged in its support and believing that all are lacking in merit, it is accordingly ordered that the motion be, and the same hereby is, denied.
MEMORANDUM
ON MOTION FOR JUDGMENT OF ACQUITTAL
Defendant Kerner has moved for a judgment of acquittal or, alternatively, for a new trial. The motions state that their grounds are set forth in the accompanying memorandum. That document is 76 pages long and incorporates by reference all prior motions, memoranda, which encompass hundreds of pages, and the transcript, which is several thousand pages long. The multitude of arguments thus raised precludes an exhaustive written consideration of the merits of the post-trial motions. The Court is compelled to assume that the reader is thoroughly familiar with the entire record of this lengthy and complex case. We are further required to partially limit this opinion to matters on which the Court has not adequately explained its reasoning.
Initially, Kerner attempts to impeach the verdict with an argument that it was impossible for the jury to conscientiously weigh the evidence on each count as to each defendant during the approximately fifteen hours of deliberation. This argument has a speculative basis which cannot sustain the motion.
Kerner says that the Court reserved decision on certain of the counts. The fact is that the Court overruled the motions as to all counts without prejudice to the defendants to renew. The Court pointed out that it would read and study the briefs an additional time and after doing so if it felt that it had erred, it would reconsider some of the questions and turn in a memorandum opinion. Tr. 5666-67.
Each of Counts II through V are based on aspects of the CHR transaction. Kerner contends that there is no proof that defendants' purchase and sale of CHR stock was part of a bribery scheme. The proof showed that defendants purchased this stock at less than its real value; that the ultimate source of these shares was the same as for the CTE shares; that defendants sold their CHR shares within a year at a price possibly less than the real value but five times the purchase price; and that the profit acquired through the CHR sale was used to pay off the loan with which the CTE shares were purchased. This circumstantial evidence is sufficient to permit the inference that the CHR transaction was part of the overall bribery scheme as charged in the indictment.
The Government is not required to prove that the defendants had actual or constructive knowledge of interstate travel or of the use of interstate facilities to promote the alleged bribery scheme in order to make a case under the Travel Act. See 18 U.S.C. § 1952; United States v. Miller, 379 F.2d 483, 486 (C.A.7, 1967); United States v. Roselli, 432 F.2d 879, 891 (C.A.9, 1970). The Court is of the opinion that the deposit of a check in interstate banking channels, regardless of whether the check crosses state lines, is a use of an interstate facility within the meaning of the Travel Act. See United States v. Wechsler, 392 F.2d 344, 347 n. 3 (C.A.4, 1968), cert. den. 392 U.S. 932, 88 S. Ct. 2283, 20 L. Ed. 2d 1389.
Count V charges that between December 16, 1966, and April 1, 1967, the defendants caused Miller to travel between the Northern District of Illinois and Miami, Florida, with intent to promote, manage and carry on, etc. bribery in violation of Illinois law. The Travel Act requires that the interstate travel be accompanied by such an intent. 18 U.S.C. § 1952(a). The proof in this case showed that Miller had a winter home near Miami, Florida, where he had spent *902 every winter for seventeen years. The proof also showed that during the 1966-67 winter a meeting was held in Florida attended by two of the alleged conspirators and others, that concerned CHR stock ownership and related corporate problems. The Court does not recall any proof that the purpose of this interstate travel was to promote, manage or carry on the alleged bribery scheme even though Miller testified for the Government under an immunity agreement.
As we understand the Congressional intent behind the Travel Act, the purpose behind the interstate travel must be the promotion, etc., of an unlawful activity. Absent proof connecting the intent to engage in the unlawful activity with the specific interstate travel, or use of interstate facilities, a conviction under the Travel Act cannot be sustained. See United States v. Hawthorne, 356 F.2d 740, 741-742 (C.A.4, 1966). The evidence in this case, as recalled by the Court, permits a strong inference that the alleged interstate travel was for a purpose and with an intent unrelated to the alleged unlawful activity. We feel this inference is sufficiently strong to create a substantial doubt on the narrow question of the intent behind the travel in question.
For the foregoing reasons, judgment of acquittal must be granted as to Count IV., but denied as to Counts II through
The sufficiency of the evidence to prove a scheme to defraud within the purview of the Mail Fraud Statute is a substantial one. The Court is of the opinion that the evidence was sufficient to submit this issue to the jury under the reasonable doubt standard.
As to the jurisdictional elements of the mail fraud counts (VI through XIII), with the exception of Count VII, the only point that concerns the Court is the question of whether the particular mailings are reasonably viewed as an integral part of or in furtherance of the alleged scheme. The Court has no doubt that Counts VI, IX and XIII were proven beyond a reasonable doubt.
As to Count VII, there is a question whether a mailing of the check in question was ever proved. The bank officer testified that the check's deposit was duly listed on the bank's mail register; however, he also testified that he had recently learned that this register is sometimes used to record deposits from the night depository that were not received by mail. Tr. 2071-72, 2077. Kerner testified that he recalled receiving and endorsing this check but could not recall the manner in which it was deposited. He further testified that he was probably in Springfield on the days before and after the date of deposit. Tr. 6619-21. This proof is insufficient to show whether the alleged use of the mails ever occurred when measured by the reasonable doubt standard. See United States v. Brickey, 426 F.2d 680, 684 (C.A.8, 1970); United States v. Doran, 299 F.2d 511, 514 (C.A.7, 1962).
The mailing charged in Count VIII was made by the Antioch Savings and Loan of a bulk shipment of checks, one of which was a check deposited by Kerner in his account with Antioch, to the American National Bank for deposit in Antioch's account with the American National. There was proof that this check constituted the proceeds of bribery. Since payment by check does not become final until it is paid by the drawee bank, this mailing was part of the collection process and, as such, reasonably could be foreseen and viewed as an integral part of the alleged bribery scheme. See United States v. Chason, 451 F.2d 301, 303 (C.A.2, 1971).
The mailing charged in Count X was by the Standard Bank of a bank statement of account and cancelled checks to one of its depositors, George Schaller. One of the cancelled checks was payable to defendant Isaacs, and, according to the proof, represented the proceeds of bribery. Since this mailing was subsequent to final payment in the collection process, in the opinion of the Court it was too remote from the alleged bribery scheme reasonably to be viewed *903 as an integral part of the scheme or as in furtherance of said scheme.
Counts XI and XII involve mailings of bank statements and cancelled checks on accounts of Kerner and Isaacs, respectively, by a bank. These accounts were opened with this bank by the non-mail deposit of funds representing the proceeds of the alleged bribery. In the opinion of the Court, the mailings on which these counts are based cannot reasonably be viewed as having been an integral part of the alleged scheme or in furtherance of it. The mailings, thus, are too remote from the scheme to support the charges.
Accordingly, judgment of acquittal must be granted as to Counts VII, X, XI and XII, and denied as to Counts VI, VIII, IX and XIII.
Kerner claims that the Court's greatest error was its submission of the perjury count (XIV) to the jury. In his post-trial memorandum, Kerner has raised a new ground for holding the perjury count duplicitous, that is, the assertion that there is a distinction between the question of whether Kerner ever attempted to influence racing dates and the question of whether he ever had conversations concerning the changing of racing dates. In the opinion of the Court, in the context of grand jury testimony in question, this distinction is too subtle to support a claim of duplicity. We previously overruled a pre-trial motion to dismiss the count on the ground of purported duplicity. See United States v. Isaacs, 347 F. Supp. 743, 755 (N.D.Ill., 1972). The question of conversations is subsidiary to the basic question whether Kerner attempted to influence racing dates.
Branston v. United States, 409 U.S. 352, 93 S. Ct. 595, 34 L. Ed. 2d 568 (1973) is not in point since we did not face the problem of false negative implications.
Kerner raises for the first time in his post-trial motions the question of the constitutionality of the abolition of the two-witness rule to sustain a charge of perjury. In the opinion of the Court, this is a legislative, not a constitutional, problem. See United States v. McGinnis, 344 F. Supp. 89, 92 (S.D.Tex., 1972); United States v. Clizer, 464 F.2d 121, 123 (C.A.9, 1972). Additionally, the Government presented two witnesses whose testimony contradicted the grand jury testimony that was the subject-matter of Count XIV. A third witness, called by the defense, when cross-examined, gave further substantive support to the charge. Tr. 6004-06.
The questions of whether the proof of a violation of 18 U.S.C. § 1001 was sufficient to sustain a conviction or whether the indictment stated an offense against the United States are serious ones. As to the factual question, we believe that the evidence was sufficient for the jury to find guilt beyond a reasonable doubt. We also believe that our ruling on the motion to dismiss is supported by the cases. See United States v. Isaacs, 347 F. Supp. 743, 755-756 (N. D.Ill., 1972).
Kerner concedes that the income tax evasion charge "necessarily stands or falls with the charge of bribery," but contends that the proof of bribery was contrary to the weight of the evidence. (Defendant's Brief, p. 39). In the opinion of the Court the proof was sufficient to sustain a conviction on income tax evasion; Illinois bribery law is not particularly "subtle [or] sophisticated" (See Defendant's Brief, p. 51); and our instructions on bribery in our opinion were both correct and adequate.[1]
*904 The claim of error on the ground that the Court refused Kerner's motion for severance based on United States v. Echeles, 352 F.2d 892 (C.A.7, 1965), is without merit. In Echeles, the exculpatory statements of the co-defendant were made on the record and under oath at an earlier trial which was the basis for the subsequent subornation of perjury charge against Echeles. To grant a severance under our circumstances would destroy the use of joint trials as provided under the rules of criminal procedure. See United States v. Johnson, 426 F.2d 1112, 1116 (C.A.7, 1970); United States v. Kahn, 381 F.2d 824, 841 (C.A. 7), cert. den. 389 U.S. 1015, 88 S. Ct. 591, 19 L. Ed. 2d 661 (1967).
Kerner complains of the Court's refusal to read him its charge prior to instructing the jury. He contends that this action "was at variance with accepted practice and denied counsel a fair opportunity to object to the charge as given." His contention is founded on an erroneous statement of fact. This Court does not recall ever hearing of any federal judge following such a practice. We were informed that only one of the fifteen district judges in Chicago, Judge Campbell, advocates this procedure. This Court has never provided counsel with its charge in advance. In this case, the Court worked on and made changes in the charge through the day before it was delivered. Counsel was advised of the substance of the charge more than three days before it was delivered through the Court's action on the 405 jury instructions proposed by counsel. Our action is consistent with Rule 30, F.R.Cr.P.
Kerner contends that certain testimony by Miller apparently concerning Mrs. Everett's state of mind in making the stock offer is incompetent. The Government responds that this testimony was in answer to the question, "Why did you relay Mrs. Everett's offer of stock to Governor Kerner and Mr. Isaacs?" (Tr. 2952) It contends that the question and answer relate only to Miller's own intent and, as such, is both relevant and competent. Even if viewed as opinion testimony as to Mrs. Everett's state of mind, the testimony had a solid foundation in the totality of Mrs. Everett and Miller's combined testimony to permit the jury to weigh its credibility. In the Court's opinion its admission was not prejudicial error, if error at all.
The questions to former racing board members as to how they would have voted had they known the Governor was a shareholder in an applicant for racing dates are not impermissible hypothetical questions but go to the factors considered by the former board member in determining his vote, that is, to his state of mind. A person is competent to testify to his own state of mind. See also Bettman v. United States, 224 F. 819, 830 (C.A.6, 1915).
If any mistake was made in stating the theory of Kerner, the responsibility rests with counsel for their failure to present an adequate statement of his theory as provided for in the First Pre-trial Order and Stipulation or for their failure to advise the Court of the error.[2] The extremely general nature of proffered statement of Kerner's theory compelled the Court to extract his theory from his counsel's opening statement to the jury.
Some of the instructions given the jury that Kerner contends were error involve questions of law that are not settled; a few are deemed as frivolous. As to Kerner's proposed instructions which he contends the Court erroneously refused to charge, these too involve questions of law. The Court gave careful consideration to all proposed jury instructions, and is of the opinion that it did not commit prejudicial error in its rulings thereon. As to purported error II.D.(2)(b), the Court instructed the jury that campaign contributions were not illegal by themselves. Tr. 7454.
*905 Counsel on both sides and the Court advised the jury that statements of counsel are not evidence and if any such statements contradict the evidence the jury shall disregard the same. See, e. g., Tr. 1217.
The closing argument of government counsel that the personal integrity of the United States Attorney was in issue was proper in light of the defense claim that the indictment was ". . . the product of a very busy imagination of a very vigorous and ambitious prosecutor . . . The attempt to torture the facts into criminal charges is manufactured, unjustified, unreasonable and not in good faith." Tr. 1305. See United States v. Hoffa, 349 F.2d 20, 50-51 (C.A.6, 1965).
For the indicated reasons, it is ordered that the motion for a judgment of acquittal be, and the same hereby is, granted as to Counts V, VII, X, XI, and XII, and denied as to the other counts. It is further ordered that the motion for a new trial be, and the same hereby is, denied.
NOTES
[1] He appointed defendant Isaacs to this post.
[2] He appointed defendant Miller as Chairman of this body.
[1] The Illinois bribery statute does not require as an essential element any action in response to the bribe. Kerner argues that there would have been no basis for a charge of bribery had the CTE purchase been consummated in 1962 instead of 1966. This argument ignores proof that the only people who purchased CTE shares at the issue price of $1,000 per share were certain directors who rendered valuable services in connection with the reorganization and defendants Isaacs and Kerner. (Ex. 504A; XX-XX-XX-X) It also ignores the proof that at about the same time the November, 1962 buy-sell agreement was made, CTE stock was sold for $2,500 per share to Modie Spiegel. (Ex. 504A; 11-2-62)
[2] Counsel was permitted to submit revised instructions of any asserted errors in the statement of its theory after the Court instructed the jury.
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364 F. Supp. 302 (1973)
Edward L. JENKINS, Plaintiff,
v.
GENERAL MOTORS CORPORATION, a Delaware corporation, et al., Defendants.
Civ. A. No. 4384.
United States District Court, D. Delaware.
September 28, 1973.
*303 L. Vincent Ramunno, Wilmington, Del., for plaintiff.
Harvey B. Rubenstein, Wilmington, Del., for defendants.
OPINION
STAPLETON, District Judge:
This proceeding began as an action by an employee against his employer and his local union. The claim against the employer resulted from a discharge alleged to have been racially motivated. The claim against the local union was founded on an alleged breach of its duty of fair representation. Each defendant asserted that the claims against it were barred by limitations. The Court determined that the issues raised by these contentions should be heard and determined at the outset. After briefing and argument, the Court dismissed the claims against the employer as barred by limitations. As to the local, the Court construed the complaint as stating a cause of action for unlawful discrimination in the processing of plaintiff's grievance that was not necessarily barred by the applicable statute of limitations.[1]
*304 The union thereafter filed a motion to dismiss based upon the argument, among others, that plaintiff had failed to exhaust his internal union remedies. Both sides filed affidavits and the motion was briefed and argued.
The union's initial brief was filed on April 11, 1973; argument was held on July 5, 1973. At the oral argument plaintiff's counsel requested the opportunity to file additional affidavits on or before July 13, 1973 and indicating that the Court was prepared to treat the motion to dismiss as a motion for summary judgment. An opportunity for reply affidavits was afforded.
Plaintiff availed himself of this additional opportunity to file affidavits. Thereafter, he applied to the Court for leave to take discovery prior to any disposition of the defendant's motion. In response to the Court's request, plaintiff's counsel supplied the Court with a list of union officials to whom plaintiff wished to address interrogatories and set forth the scope of the interrogation which plaintiff desired to conduct. All of the requested discovery dealt with the handling of the grievance against the employer which plaintiff had filed as a result of his discharge and which the union allegedly failed to diligently pursue because of plaintiff's race.
While the local union's motion was under advisement, plaintiff was granted leave to amend his complaint and to bring in the International UAW as an additional defendant. The claims against this new defendant are similar to those against the local union and involve the processing of the same grievance.
Plaintiff was discharged by General Motors on July 9, 1968. A grievance was filed the same day. The grievance was unsuccessfully pursued through the first two steps of the grievance procedure specified in the collective bargaining agreement. An appeal was taken to the Appeals Committee. This "Step Three" procedure was initiated by an exchange of "Statements of Unadjusted Grievance" on or about September 12, 1968. The grievance remained unresolved at "Step Three" and, at some date not indicated in the record, the matter was pursued into Step Four and placed on the docket of an impartial "Umpire." Plaintiff's grievance was withdrawn by the union from the Umpire's Docket on April 12, 1970. According to the plaintiff, the union did not contact him to inform him of this withdrawal until December 29, 1970, when he received a letter in response to an inquiry which he had made concerning the status of his grievance. This suit was filed on May 22, 1972.
Under the collective bargaining agreement, the Regional Director of the International Union decides whether to take a grievance into Step Three and, if not there resolved, decides whether to press it through Step Four. The Appeals Committee which processes grievances in Step Three consists of the Regional Director or his designate, the Chairman of the local's Shop Committee or his designate, and "two representatives of Local or Divisional Management."
The local union relies upon the "exhaustion" rule stated by the Third Circuit Court of Appeals in Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104 (1968):
It has been the general rule, and the rule of this circuit, that before a suit against a union for breach of its duty of fair representation may be brought in the courts, the member must first exhaust the available internal union remedies, or show an adequate reason for failing to do so. There is good reason for this rule which forestalls judicial interference with the internal affairs of a labor organization until it has had at least some opportunity to resolve disputes concerning its own legitimate affairs. . . .
The defendant local union also refers the Court to Section 13 of Article 33 of *305 the Constitution of the International Union UAW which provides:
It shall be the duty of any member or subordinate body who feels aggrieved by any action, decision, or penalty imposed upon him or it, to exhaust his or its remedy and all appears therefrom under the laws of the International Union prior to appealing to a civil court of governmental agency for redress.
An affidavit of the Administrative Assistant to the President of the UAW accurately summarized the provisions of Article 33 of the Constitution:
. . . Article 33 of the 1970 Constitution guarantees members of Local Unions the right to challenge the actions of the local union at a membership meeting. This includes wrongful Local Union actions in regard to the processing or withdrawal of contract grievances. If the membership of a Local Union rejects this challenge of its members, or if the member was unable to get the matter raised at a local membership meeting, then the member would have the right to appeal to the International Executive Board. . . . At a hearing before the Appeals Committee of the International Executive Board, the member has the right to be represented by counsel, to produce witnesses and other evidence and to submit briefs or have them submitted on his behalf. A court reporter makes a verbatim transcript of such a hearing. If the member was dissatisfied with the decision of the International Executive Board, he has the further right to appeal to the Constitutional Convention Appeals Committee or to the Public Review Board.[2]
The Public Review Board referred to here was established under Section 1 of Article 32 of the Constitution which provides:
For the purpose of insuring a continuation of high moral and ethical standards in the administrative and operative practices of the International Union and its subordinate bodies, and to further strengthen the democratic processes and appeal procedures within the Union as they affect the rights and privileges of individual members or subordinate bodies, there shall be established a Public Review Board consisting of impartial persons of good public repute, not working under the jurisdiction of the UAW or employed by the International Union or any of its subordinate bodies.
The local union's affidavits further establish that the plaintiff did not pursue any of these remedies in connection with his claim of a breach of its duty of fair representation.
Section 101(a)(4) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(4), provides in part as follows:
No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative *306 proceedings against such organizations or any officer thereof . . .
As noted by the Third Circuit Court of Appeals in Harris v. International Longshoremens Association, 321 F.2d 801, 805 (3rd Cir. 1963), "the proviso of section 101(a)(4), that a `member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time)', reflects an effort to encourage mature, democratic self-government of labor organizations through the development of internal procedures for the correction of abuses by union officials and at the same time to provide reasonably expeditious judicial relief to [aggrieved] union members."
While Section 101(a)(4) has been held to constitute a congressional endorsement of the judicially created exhaustion rule, it does not mandate that courts reject every petition where internal union remedies have not been exhausted. Where the available remedies are not "reasonable," where those remedies are not "expeditious" within the time frame of the four month proviso, where pursuit of those remedies would be futile, or where the employee has otherwise adequately explained his failure to pursue available remedies, courts will entertain the request for judicial relief.[3]
A number of courts have heretofore reviewed the internal union remedies upon which the local union here relies and found them to be fair and reasonable.[4] This Court's review of the UAW Constitution leads it to the same conclusion. Indeed, plaintiff does not dispute that the relevant provisions of this Constitution are reasonable as a general proposition. He resists summary judgment, rather, on four grounds: (1) internal union remedies would be futile here because the union must sit in judgment on its own officials and hence cannot be impartial and because the union has already demonstrated its bad faith by its delay in the prosecution of plaintiff's original grievance, (2) "there is no assurance . . . that it will take only four months to complete" those proceedings, (3) plaintiff was unaware of the remedies provided in the Constitution, and (4) plaintiff should be allowed the opportunity at trial to explain his failure to pursue these remedies.
I assume for present purposes that those responsible for handling the plaintiff's grievance against his employer did not act as they should have in processing it. The proceedings which the local union here claims should have been instituted, however, would have involved determination of a different issue by different individuals. This Court is unwilling to assume without any record basis that the members of the International Executive Board and the Public Review Board would shrug off or reject arbitrarily a claim of union discrimination on racial grounds.[5]
If courts assumed bias on the part of all union officials simply from the fact that a claim alleges wrongdoing on the part of union members or from the fact that relief against the union is sought, this would, of course, effectively erase the rule requiring exhaustion of union remedies. The court in Brady *307 made it clear that, in the absence of some evidence to the contrary, a court should not assume disqualifying bias on the part of union officials of higher rank than the alleged wrongdoers. In that case, a controversy had arisen in the plaintiff's local union, Local Lodge 1776, over a dues increase. The plaintiff alleged that as a result of his failure to comply with an illegally adopted increase, an employee of the International Association of Machinists ("IAM") had wrongfully certified to plaintiff's employer that he should be discharged for violating the union security provisions of the collective bargaining agreements. The alleged wrongdoer occupied a position similar to that of the Regional Director in this case; he was the "General Chairman of District 142, which had jurisdiction over Local Lodge 1776." The court held that the plaintiff's claim against the IAM for "hostile discrimination" was barred because of his failure to exhaust internal union remedies. The court concluded:
. . . there is no allegation or evidence that he invoked any appellate union procedures to redress the asserted unfair and arbitrary action against him by the local and district officers. Nor does he advance an adequate reason for his failure to do so. Mr. Brady's argument that it would have been futile to ask IAM to review its own dealings with him is not tenable for IAM's internal procedure provided reasonably prompt review of his contentions on union levels higher than those responsible for the decisions against him.
In this case, the International Executive Board and the Public Review Board were similarly situated with respect to those whose actions plaintiff challenges. This record suggests no reason for holding that a request to those bodies for relief would have been futile.
Plaintiff's second contention is more troublesome. The most helpful Third Circuit precedent in this area is Harris v. International Longshoremens Association, 321 F.2d 801 (3rd Cir. 1963). In that case the Third Circuit Court of Appeals reviewed the legislative history of Section 101(a)(4). The appellant there argued that "a final decision . . . [might] well not have been obtained within four months of the initiation of a proceeding." The court concluded:
On the one hand, it would not promote the stated purposes of Congress to insist that a union member pursue an internal remedy which could not, by its very nature, result in a decision within the period chosen by Congress as a reasonable norm. [Citations omitted] On the other, it would all but nullify any requirement of resort to internal remedies if union members were permitted to ignore reasonable procedures established by unions for internal adjustment of grievances because of mere uncertainty whether a final decision could or would be reached within the statutory period. As long as there is likelihood that some decision will be forthcoming within the four-month period, and the aggrieved member has not shown that he will be harmed by being required to seek such a decision, [citations omitted] the purposes of the act require that judicial intervention be withheld until the member has given the internal grievance procedures the chance to operate which Congress deemed to be reasonable. . . .
* * * * * *
. . . Throughout [the legislative history] the emphasis is upon a member's seeking or actually receiving internal relief during the statutory period, not upon the establishment of procedures which shall guarantee a final decision within that period before a member may be required to utilize them.
The court in Harris held that where there is "a substantial likelihood" of a union member's securing some decision within the four month period and he shows no substantial prejudice which might have resulted from his pursuing his union remedies, Section 101(a)(4) is no bar to application of the exhaustion *308 rule. If "substantial likelihood" in this context means more probable than not, the Harris case does not on this record compel a conclusion that plaintiff's second contention must be rejected. It is entirely possible that a decision would have been received from the Executive Board within four months; on the other hand, it appears entirely possible that it would not have been forthcoming during that period. In short, the record shows the existence of reasonable internal union procedure which, if pursued with diligence by those involved, could have produced a decision within four months.[6] There is no record evidence, however, from which this Court could conclude that a decision within four months would have been more likely than not.
The question presented by the motion of the local union is, therefore, whether Section 101(a)(4) bars application of the exhaustion rule where plaintiff has shown no prejudice and there appears a realistic possibility, though not probability, that a decision could be obtained within the four month period. I conclude that the answer to this question should be in the negative.
The purpose of the exhaustion rule, endorsed by Congress in Section 101(a)(4), is to give unions an initial opportunity to deal with their own internal problems. The legislative history of the Section reviewed in Harris indicates that the intent was to require union members to pursue the remedies for the statutory period and to allow them to seek redress thereafter. Where it appears clear or probable that relief cannot be secured within the statutory period, there is good reason to excuse resort to internal union remedies. Where there is a realistic possibility that a decision will be rendered within the period, however, there is no compelling reason to excuse the failure of a union member to make a good faith effort at seeking union redress.
It is difficult, at best, to prove that a hypothetical proceeding, had it been instituted, would probably have resulted in a decision within four months. Such a showing requires precise advance speculation about a decisional process which may prove either brief or protracted, depending on the nature of the individual case and a host of other factors. Yet, on these facts, a decision for the plaintiff would place on the union the burden of making that showing.[7] Over the long term, effectuation of the "first opportunity" policy which Section 101(a)(4) sought to foster, would depend, under such a ruling, upon unions being able to successfully shoulder that difficult burden. A decision for the union in this context would not, however, require that aggrieved union members shoulder a similar burden. They can assure their right to judicial remedy by the simple expedient of affording the union the four month opportunity Congress wished it to have.
I hold that where a union member has not made a good faith, four month effort to pursue reasonable internal union remedies and provides the Court with no evidence indicating that those remedies would be unlikely to produce a decision within a four month period, Section 101(a)(4) does not preclude application of the exhaustion rule.
*309 In support of the third of his counter-attacks, plaintiff has submitted an affidavit stating as follows:
2. That he is 44 years of age and has an eighth grade education.
3. He has no knowledge and was never made aware either by the Union or by the United States Equal Employment Opportunities Commission or by personal counsel, of any internal Union remedies which were available to him if he had a grievance against the Union. Furthermore, to the best of his knowledge, he has never read nor has he ever been shown a copy of the Constitution of the International Union of the United Automobile Workers, nor is he aware of any requirement that a member must exhaust internal remedies before initiating suit in civil court.
If the objective of the exhaustion rule of the Brady case is to be effectively served, I do not believe that ignorance without more can be held to constitute an "adequate reason for failing to" exhaust administrative remedies.[8] In Donahue v. Acme Markets, Inc., 54 L.C. 11,413 (E.D.Pa.1966), Judge Kirkpatrick had a similar situation before him, though one which was somewhat more appealing from the plaintiff's point of view. I concur in his conclusion:
. . . An affidavit filed by the plaintiff states that he did not know and was never informed of any internal methods of appeal, was never given and had never seen a copy of the Constitution, and was told by the Union representative at the meeting of January 31 that he could do nothing further. I do not think that this is a showing that he has "taken all reasonable steps available to (him) within the (Union's) internal structure." See Gainey v. Brotherhood, [46 L.C. ¶ 18,030] 313 F.2d 318, 322. He was a member of the Union and bound by its Constitution and not justified in remaining in ignorance of the provisions governing his own union or, in fact, of relying on a statement by an officer that there was nothing he could do.
Finally, plaintiff's fourth argument is likewise without merit. There is nothing inherent in the question presently before the Court which should occasion any departure from the usual rules governing motions for summary judgment. Summary judgment has frequently been granted in similar situations.[9] Plaintiff has been given ample opportunity to file affidavits in opposition to defendant's motion. The reasons for his failure to pursue his internal union remedies are matters within his own knowledge and do not require discovery. Indeed, his requested discovery would not be directed to any matter upon which this decision rests.
Plaintiff has failed to exhaust available internal union remedies. Accordingly, the local union is entitled to a summary judgment of dismissal.[10]
NOTES
[1] See Jenkins v. General Motors, et al., 354 F. Supp. 1040 (D.Del.1973).
[2] The union has supplied the Court with a copy of the UAW Constitution adopted in April of 1970. Prior case law indicates that, for present purposes, the provisions of the Constitution existing immediately theretofore were not materially different. E. g., Anderson v. Ford Motor Co., 319 F. Supp. 134 (E.D.Mich.1970).
[3] E. g., Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2nd Cir. 1961); Harris v. International Longshoremens Association, 321 F.2d 801 (1963).
[4] Bsharah v. Eltra Corporation, 394 F.2d 502 (6th Cir. 1968); Anderson v. Ford Motor Co., 319 F. Supp. 123 (E.D.Mich.1970); Imbrunnone v. Chrysler Corp., 336 F. Supp. 1223 (E.D.Mich.1971); Koydra v. Sicard Industries, Inc. (N.D.N.Y.1972); Esquivel v. Air Conditioning Products Co., 82 L.R.R.M. (BNA) 2001 (E.D.Mich.1972); Harris v. Continental Aviation Corp., 79 L.R.R.M. (BNA) 2398 (N.D. Ohio 1972).
[5] I assume, without deciding, that the involvement of the Chairman of the local union's Shop Committee and the Regional Director in this matter would warrant an inference that the local union membership might feel extraneous pressures in passing upon plaintiff's complaint against the local union.
[6] Section 8 of Article 33 of the UAW Constitution provides that "The International Executive Board shall use its best efforts to render its decision within sixty (60) days of receipt of the appeal by the International President (i. e. the event which initiates an appeal from an adverse decision at the local union level)."
[7] The unions could, of course, attempt to ease this burden by inserting definite time limits for hearings and decisions. The union procedures of this kind are designed, however, to handle a wide range of problems, some simple and some quite complex. Such fixed limitations, accordingly, would not appear to be realistic alternatives. The sixty day, "best efforts" provision referred to above (footnote p. 12) would seem to be about as far as a union can reasonably be expected to go in this direction.
[8] Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104 (3rd Cir. 1968).
[9] Bsharah v. Eletra Corp., 394 F.2d 502 (6th Cir. 1968); Foy v. Norfolk & Western Ry. Co., 377 F.2d 243 (4th Cir. 1966); Anderson v. Ford Motor Co., 319 F. Supp. 134 (E.D.Mich.1970); Koydra v. Sciard Industries, Inc., (N.D.N.Y.1972); Harris v. Continental Aviation Corp., 79 L.R.R.M. (BNA) 2398 (N.D. Ohio 1972).
[10] Plaintiff has not requested the Court to consider a "stay of these proceedings as appropriate relief rather than a dismissal. This is perhaps attributable to the fact that plaintiff appears clearly to have lost his right to pursue his internal union remedies as a result of his delay in seeking such relief. If this be the fact, it would not alter any of the conclusions which the Court has here reached. Cf. Anson v. Hiram Walker & Sons, Inc., 248 F.2d 380 (3rd Cir. 1957).
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39 A.3d 1127 (2012)
134 Conn.App. 473
In re CHRISTOPHER C., Jr., et al.[*]
No. 33751.
Appellate Court of Connecticut.
Argued January 30, 2012.
Decided March 16, 2012.[**]
*1128 Alison P. Gaston, with whom was Erich H. Gaston, for the appellant (respondent mother).
Colleen B. Valentine, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Benjamin Zivyon, assistant attorney general, *1129 and Michael Besson, assistant attorney general, for the appellee (petitioner).
Michael Maggiacomo, for the minor children.
DiPENTIMA, C.J., and ESPINOSA and PELLEGRINO, Js.
PELLEGRINO, J.
The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her minor children, Christopher C. and Allyson L.[1] On appeal, the respondent claims that the court erred in finding (1) that the petitioner, the commissioner of children and families, made reasonable efforts to reunify the respondent and the children, (2) that the respondent was unwilling to benefit from reunification efforts and (3) that the respondent failed to achieve sufficient personal rehabilitation.[2] We affirm the judgments of the trial court.
The following facts were found by the court during the adjudicatory phase of the termination proceedings. The respondent has been involved with the department of children and families (department) since she was thirteen years old. As a child, the respondent was exposed to domestic violence, substance abuse and sexual abuse. She was removed from her mother's home and remained in the care of the department until she was eighteen. The respondent has a history of substance abuse, mental health issues and relationships with violent and abusive men.
The respondent met Christopher's father, a registered sex offender, when she was sixteen years old and the father was thirty years old. They were married in May, 2007. Christopher was born on February 29, 2008, when the respondent was nineteen. Christopher's father was verbally and physically abusive toward the respondent. The respondent and the father abused illegal drugs together. They were homeless and transient from December, 2008, to April, 2009, when they separated. The respondent began a relationship with Allyson's father in May, 2009, and thereafter she resided with him. The respondent's relationship with Allyson's father also was characterized by instances of domestic violence and abuse.
The petitioner took custody of Christopher on August 22, 2009, after he was treated at a hospital emergency room for multiple marks and bruises to his face that were consistent with physical abuse. On August 26, 2009, the petitioner filed a neglect petition and order of temporary custody on behalf of Christopher, which the court granted.[3] The court adjudicated Christopher a neglected child on May 7, 2010, and committed him to the custody of the petitioner on October 6, 2010.
Allyson was born on April 11, 2010. The petitioner took custody of Allyson on April 16, 2010, when she was five days old, after Allyson was treated at a hospital emergency room for bleeding from her nose and mouth and bruising to her mouth that was consistent with physical abuse. On April *1130 20, 2010, the petitioner filed a neglect petition and order of temporary custody on behalf of Allyson, which the court granted. The court adjudicated Allyson a neglected child and committed her to the custody of the petitioner on August 31, 2010. The children have remained in the custody of the petitioner. Since November, 2010, the children have resided together in a preadoptive foster home.
On November 19, 2010, the petitioner filed petitions to terminate the parental rights of the respondent as to the minor children. On June 9, 2011, after a three day evidentiary hearing, the court rendered judgments in favor of the petitioner. The court found, by clear and convincing evidence, that (1) the department had made reasonable efforts to reunite the respondent and the minor children as required by General Statutes § 17a-112 (j)(1),[4] and (2) the respondent had failed to achieve sufficient personal rehabilitation as required by § 17a-112 (j)(3)(B)(ii).[5] This appeal followed. Additional facts will be set forth as necessary.
General Statutes § 17a-112 (j) provides in relevant part: "The Superior Court ... may grant a petition filed [for termination of parental rights] if it finds by clear and convincing evidence that (1) the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) termination is in the best interest of the child, and (3) ... (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding ... and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent ... and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child...."
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j) ] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child....
*1131 "Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous.... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.... [G]reat weight is given to the judgment of the trial court because of [the trial court's] opportunity to observe the parties and the evidence.... [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.... [Rather] every reasonable presumption is made in favor of the trial court's ruling." (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 190-91, 986 A.2d 351 (2010).
I
The respondent claims that the court erred in finding that the department made reasonable efforts to reunify the respondent and the minor children, as required by § 17a-112 (j)(1).[6] We disagree.
"In order to terminate parental rights under § 17a-112 (j), the [department] is required to prove, by clear and convincing evidence, that it has made reasonable efforts... to reunify the child with the parent, unless the court finds ... that the parent is unable or unwilling to benefit from reunification[7] .... [Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn.... [R]easonable efforts means doing everything reasonable, not everything possible.... The trial court's determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous." (Internal quotation marks omitted.) In re G.S., 117 Conn.App. 710, 716, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009).
The court's memorandum of decision describes the department's efforts to reunite the respondent with the children. The petitioner issued specific steps for the respondent to follow in order to regain custody of Christopher on October 6, 2010. In accordance with the specific steps, the respondent participated in Intensive Safety Planning Services through United Community and Family Services in October, 2009, which did not support reunification with Christopher. The department offered domestic violence counseling, which the respondent undertook in 2009, and parenting courses, which the respondent took from September through November, 2009, and then again in January, 2010. From January to April, 2010, the Birth to Three program worked in home with Christopher, the respondent and Allyson's father. *1132 Intensive Family Preservation was engaged to assist in reunification. The respondent also participated in the Reconnecting Families program, a six month inhome service provided by the department and designed to facilitate successful reunification, beginning in February, 2010.
In April, 2010, at the time of Allyson's birth, the respondent was "within days of a reunification" with Christopher. Reconnecting Families discontinued its work with the respondent only after Allyson was injured and removed from the respondent's custody. The department discontinued its efforts to immediately reunite the respondent with Christopher, but it continued to offer services to the respondent. On April 20, 2010, following Allyson's removal, the petitioner issued specific steps for the respondent to follow in order to regain custody of Allyson. The department offered the respondent referrals to service providers so that she could satisfy the specific steps, but the respondent refused.
The petitioner provided supervised visitation for the respondent with both minor children. The respondent missed numerous visits during April, May, June, July, August, September and October, 2010. From November, 2010, to January, 2011, the respondent did not attend any scheduled visits.[8]
The respondent does not dispute the accuracy of these factual findings, but argues that the department failed to make reasonable reunification efforts because it (1) did not offer the respondent assistance in ending her relationship with Allyson's father and (2) "dropped the ball" in terms of engaging the respondent in individual mental health counseling. We are not persuaded.
"[R]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted.) In re G.S., supra, 117 Conn.App. at 716, 980 A.2d 935. The specific steps issued on April 20, 2010, required the respondent to take part in individual counseling *1133 to address her mental health issues and to participate in domestic violence education. Despite the department's repeated offers of referrals and assistance, the respondent refused to comply.[9] The court found: "The specific steps identify individual counseling as necessary, [and state that the respondent is required to] `make progress on [m]ental [h]ealth issues.' Exhibit FF is a group of letters addressed to [the respondent] which all but beg her to cooperate with the social worker by signing releases necessary to make referrals for required treatment. The letters were all ignored. The one-to-one conversations urging [the respondent] to cooperate, that the social worker had with [the respondent] ... were ignored."
After careful consideration of the respondent's arguments, the evidence and the court's specific findings of fact, we conclude that the court's findings, that the department made reasonable efforts to reunify the respondent with the children and, further, that the respondent was unwilling to benefit from the department's reunification efforts, are not clearly erroneous.
II
The respondent claims that the court erred in finding that she had failed to achieve such degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in the lives of her children within a reasonable period of time, as required by § 17a-112 (j)(3)(B). We disagree.
"Section 17a-112 (c)(3)(B) requires the court to determine whether the degree of personal rehabilitation [achieved by the parent] ... encourage[s] the belief that within a reasonable time ... such parent could assume a responsible position in the life of the child.... Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life.... In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child.... The trial court must also determine whether the prospects for rehabilitation *1134 can be realized within a reasonable time given the age and needs of the child.... [A] trial court's finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous...." (Citations omitted; internal quotation marks omitted.) In re Tremaine C., 117 Conn.App. 590, 597, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009).
The court's memorandum of decision describes the respondent's failure to achieve sufficient personal rehabilitation; specifically, the respondent's refusal to obtain mental health and substance abuse treatment and to secure a safe environment for the children. The respondent refused to comply with many, if not all, of the specific steps ordered by the court. The respondent refused to participate in individual counseling to address her mental health issues and "significant traumatic history." She missed and cancelled appointments to participate in substance abuse evaluation, was unsuccessfully discharged from a substance abuse treatment program and refused to submit to random drug testing. She did not cooperate with home visits and refused, on multiple occasions, to permit social workers to inspect the apartment she shared with Allyson's father. She moved and did not advise the department of her change of address. She did not attend scheduled visits with the children.
The respondent argues that the court's finding that she had not achieved sufficient rehabilitation was in error because (1) it was premised on the respondent's failure to end her relationship with Allyson's father, which was not required by the specific steps and (2) the court gave undue weight to the respondent's refusal to participate in individual counseling and substance abuse treatment.[10] We are not persuaded.
The respondent has a history of severe and longstanding mental health and substance abuse issues and involvement with violent and abusive men. The record reveals that the respondent's unwillingness to leave Allyson's father, a man who was abusive toward her and was suspected of inflicting the injuries to the children that resulted their removal by the petitioner, was inextricably linked to the respondent's unresolved mental health issues. The court found: "[The respondent] is a woman with monumental mental health needs. Her whole life has been affected by sexual predators and abusive relationships. She desperately needs mental health counseling." Considering the respondent's refusal to comply with the specific steps, the court stated: "Perhaps most troubling is that [the respondent] has never engaged in individual counseling to deal with her significant traumatic history. She selects significantly disturbed mates. She has forsaken her children for a very ill man [Allyson's father]. There certainly are issues of profound dependence. Her relationships have been characterized by control, violence and instability. The specific steps identify individual counseling as necessary, [and state that the respondent is required to] `make progress on [m]ental [h]ealth issues.'"
The court concluded: "The court finds that whatever the problems are with respect *1135 to [the respondent's] inability to protect her children and keep them safe from abuse, those problems remain unresolved and have not been addressed. A paramount concern of the court is the safety of the children. [The respondent] has done nothing to enable her to protect her children. The court finds by clear and convincing evidence that she has failed to rehabilitate." In its articulation, the court found: "There is nothing in the record to suggest that whatever caused her to stay with the abuser [Allyson's father] has been addressed in treatment and therapy."
After careful consideration of the respondent's arguments, the evidence and the court's specific findings of fact, we conclude that the court's finding that the respondent failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time and considering the age and needs of the minor children, she could assume a responsible position in their lives is not clearly erroneous.
The judgments are affirmed.
In this opinion the other judges concurred.
NOTES
[*] In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
[**] March 16, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
[1] The court's adjudicatory and dispositional orders also named as respondents the fathers of the minor children, but neither is a party to this appeal. Accordingly, we refer to the respondent mother as the respondent. Christopher's father's appeal to this court was released on the same date as this opinion. See In re Christopher, Jr., 134 Conn.App. 464, 39 A.3d 1122 (2012).
[2] Pursuant to Practice Book § 67-13(2), counsel for the minor children filed a statement adopting the brief of the petitioner in this appeal.
[3] The neglect petition was sustained by agreement of the parties. The respondent entered a no contest plea and the father, being noncustodial, stood silent as to the allegations.
[4] General Statutes § 17a-112 (j)(1) provides: "The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required...."
[5] General Statutes § 17a-112 (j)(3)(B)(ii) provides: "The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... the child ... is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child...."
[6] The respondent also claims that the court erred in finding that she was unwilling to benefit from the department's reunification efforts. As these claims challenge the court's finding with respect to § 17a-112 (j)(1), we consider them together.
[7] The department is not required to provide reasonable efforts to a parent when the parent refuses to participate or engage in any of those efforts. General Statutes § 17a-112 (j)(1); In re Krystal J., 88 Conn.App. 311, 318, 869 A.2d 706 (2005); see also In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999) ("[i]t is axiomatic that the law does not require a useless and futile act").
[8] The respondent was afforded biweekly supervised visitation with Ally-son. Beginning in May, 2010, the respondent was offered once a week supervised visitation for one hour with Allyson and once a week supervised visitation for one hour with both Christopher and Allyson, together. Beginning September 7, 2010, the respondent was offered once a week supervised visitation for one hour with both Christopher and Allyson, together. As of January 4, 2011, the respondent had failed to attend the following scheduled supervised visits:
April 20, 2010 (Allyson);
April 22, 2010 (Allyson);
April 27, 2010 (Allyson);
April 29, 2010 (Allyson);
May 19, 2010 (Allyson);
May 21, 2010 (Christopher and Allyson);
May 26, 2010 (Allyson);
June 2, 2010 (Allyson);
June 9, 2010 (Allyson);
June 23, 2010 (Allyson);
June 25, 2010 (Christopher and Allyson);
June 30, 2010 (Allyson);
July 7, 2010 (Allyson);
July 14, 2010 (Allyson);
July 21, 2010 (Allyson);
July 30, 2010 (Christopher and Allyson);
August 4, 2010 (Allyson);
August 13, 2010 (Christopher and Allyson);
August 18, 2010 (Allyson);
August 20, 2010 (Christopher and Allyson);
August 27, 2010 (Christopher and Allyson);
September 1, 2010 (Allyson);
September 17, 2010 (Christopher and Allyson);
October 1, 2010 (Christopher and Allyson);
October 15, 2010 (Christopher and Allyson);
October 22, 2010 (Christopher and Allyson);
November 3, 2010 (Christopher and Allyson);
November 10, 2010 (Christopher and Allyson);
November 17, 2010 (Christopher and Allyson); and
December 3, 2010 (Christopher and Allyson).
[9] With respect to the respondent's unwillingness to benefit from the services offered by the department, the court found: "[The respondent] was doing the right things to achieve reunification until Allyson was born and was abused. Whatever courses she had taken, whatever education she had received, appear to have had no benefit to [the respondent]. And, after April of 2010, [the respondent] appears to have lost interest in participation in services."
In its articulation, issued July 29, 2011, the court stated: "[The department] was offering the same or similar services as [the respondent] had successfully engaged in the past. The same kind of services that [the respondent] actually participated in before Allyson's injuries. What changed? Not [the department's] manner of doing business. What changed was [the respondent's] unwillingness to participate in the services.... The court specifically finds, by clear and convincing evidence, that [the department] made reasonable efforts from the time it became involved with [the respondent] and her children, to reunify them with her.... The court specifically finds that [the respondent] did not cooperate with [the department] after the removal of Allyson in April, 2010. [The respondent] was unwilling to cooperate. She had signed the specific steps. She knew from her prior experience with Christopher, what she could do to work with [the department]. After Allyson was removed, she no longer cooperated. She was unwilling to cooperate. She clearly understood what was required for a successful reunification. She had nearly achieved it prior to the birth of Allyson. With or without a lawyer, she was told by the social worker and she knew from the specific steps what was required. She valued her relationship with the abuser over the possibility of reunification with her children. That constitutes an unwillingness on her part."
[10] The respondent also claims that the court was inconsistent in its consideration of the events that occurred after the termination petitions were filed. We note that "[i]n making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time"; (internal quotation marks omitted) In re Sole S., supra, 119 Conn.App. at 192 n. 8, 986 A.2d 351; and conclude that the respondent's claim is without merit.
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132 Ga. App. 292 (1974)
208 S.E.2d 165
ASKREN et al.
v.
ALLEN.
49523.
Court of Appeals of Georgia.
Argued June 27, 1974.
Decided July 5, 1974.
T. M. Smith, Jr., Hunter S. Allen, Jr., for appellants.
Walter W. Calhoun, for appellee.
EBERHARDT, Presiding Judge.
Harris Montgomery Allen filed suits against Edward L. Askren, III, M. D., and against O. Henry Harsch, Ph.D., Irma Lee Shepherd, Ph.D., and Joen Fagan, Ph.D., seeking damages for alleged malpractice in counseling himself, his wife and his minor children relative to family problems. On September 19, 1973 his attorney gave written notice to the court, to the plaintiff and to counsel for the defendants (who had filed defensive pleadings in the actions) that he and his firm were withdrawing as counsel for the plaintiff, and notified the plaintiff to obtain other counsel and have him substituted on the court records in the matters.
The cases were placed on the trial calendar and notice thereof and of the time when they were set for trial was duly published in the Fulton Daily Report in accord with the rules of Fulton Superior Court, wherein the actions were pending. Upon call of the cases for trial neither the plaintiff nor any counsel for him appeared and the cases were dismissed November 19, 1973, during the November Term of court, for want of prosecution, as provided in Code Ann. § 81A-141 (b).
On January 28, 1974, during the January Term of court, the trial judge who had dismissed the cases sua sponte and ex parte, without prior notice to any interested party or his counsel, entered orders setting aside the dismissals which had been entered November 19, 1973.
On February 22, 1974 defendant Askren moved for judgment on the pleadings, asserting that the order setting aside the dismissal was void and of no effect and that the dismissal entered November 19, 1973 was res judicata. On March 4, 1974 the other defendants likewise moved for judgment on the pleadings. Both motions were denied and certificates for review were granted. This *293 joint appeal followed. Held:
1. The judgment of dismissal entered December 10, 1973, though for want of prosecution, was a final judgment, and the court had no jurisdiction in the situation here to set the dismissal aside after expiration of the term of court during which it had been entered. "It is well settled that the trial court, in either a civil or a criminal case, has no jurisdiction to set aside a dismissal and reinstate a cause after the expiration of the term at which it was dismissed, nor can a judgment of the court be changed, amended or modified after the expiration of the term at which such judgment was entered. Rutland v. State, 14 Ga. App. 746 (82 SE 293); Rogers v. Rigell, 183 Ga. 455 (188 SE 704); Carswell v. Shannon, 209 Ga. 596 (74 SE2d 850); East Tennessee, Va. & Ga. R. Co. v. Greene, 95 Ga. 35 (22 SE 36); Alley v. Halcombe, 96 Ga. 810 (22 SE 901)." Jacobs v. State, 95 Ga. App. 155, 157 (97 SE2d 528). "However erroneous, the express judgment of the court cannot be corrected at a subsequent term." Carswell v. Shannon, 209 Ga. 596, 599, supra. See also Haddon v. Brinson, 39 Ga. App. 798 (148 SE 541). Of course if it were during the term at which the judgment was rendered and still within the breast of the court it could be altered, amended, or set aside, upon motion or sua sponte. Jones v. Garage Equipment Co., 16 Ga. App. 596 (85 SE 940). The rule is not changed and applies with the same force under the Civil Practice Act of 1966. Holloman v. Holloman, 228 Ga. 246, 248 (2) (184 SE2d 653). And see Vick v. Vick, 230 Ga. 36 (195 SE2d 399). Consequently, the orders of January 28, 1974 setting aside the dismissals and reinstating the actions were wholly void and of no effect.
2. The dismissals for want of prosecution here, under the provisions of Code Ann. § 81A-141 (b), operated as an adjudication upon the merits, since the orders of dismissal did not otherwise specify, and are thus res judicata.
3. Another judgment on the pleadings would not benefit the appellants, since they already have a valid judgment in their favor which operates as an adjudication on the merits. However, for the purpose of clarifying the record the trial court is directed to vacate *294 the orders of January 28, 1974.
Judgments affirmed with direction. Deen and Stolz, JJ., concur.
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132 Ga. App. 304 (1974)
208 S.E.2d 167
THE STATE
v.
HOLLOMON et al.
49510.
Court of Appeals of Georgia.
Argued June 27, 1974.
Decided July 9, 1974.
Joseph H. Briley, District Attorney, for appellant.
Byrd, Groover & Buford, Denmark Groover, Jr., Frank D. Farrar, Jr., for appellees.
STOLZ, Judge.
The defendants, members of the Jones County Board of Commissioners, were convicted of malpractice in office. Code § 89-9907. The trial judge sentenced them to misdemeanor punishment and provided that they be "hereby removed from office" as county commissioners. The defendants filed a motion for new trial and supersedeas was granted. The state then filed a "motion for execution of sentence," alleging that the provision of § 89-9907 for removal from office is not a portion of the punishment prescribed for a misdemeanor offense, hence was not stayed by the supersedeas, and praying that the judge order the defendants to vacate their offices as *305 members of the board instanter and declare their posts vacant. Following a hearing, the trial judge overruled the state's motion, subject to the condition that, within 5 days, the defendants "shall post a bond with good and sufficient security payable to Jones County, Georgia in the sum of Fifty Thousand Dollars ($50,000) conditioned on their future faithful performance of their duties and the return of any sums received by them from Jones County in the form of salaries or other compensations or allowances which shall be determined to have been illegally received. . ." The state appeals from the overruling of its motion, which order was certified for immediate review. The appellees filed a motion to dismiss the appeal. Held:
Prior to 1973, there was no authority for appeals by the state in criminal cases. Code Ann. § 6-1001a (Ga. L. 1973, pp. 297, 298) provides as follows: "An appeal may be taken by and on behalf of the State of Georgia from the superior courts and such other courts from which a direct appeal is authorized to the Court of Appeals of Georgia and the Supreme Court of Georgia in criminal cases in the following instances: (a) From an order, decision or judgment setting aside or dismissing any indictment or information, or any count thereof. (b) From an order, decision or judgment arresting judgment of conviction upon legal grounds. (c) From an order, decision or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy. (d) In the case of motions made and ruled upon prior to the empanelling of a jury, from an order, decision or judgment sustaining a motion to suppress evidence illegally seized." The order appealed from in the case sub judice is not one of the instances in which the state is granted the right of appeal in criminal cases under the provisions of § 6-1001a, supra.
Nor is the order made appealable by virtue of the certificate for immediate review. Code Ann. § 6-1002a (Ga. L. 1973, pp. 297, 298) provides as follows: "Other than from an order, decision or judgment sustaining a motion to suppress evidence illegally seized, in any appeal under the provisions of this Chapter where the order, decision or judgment is not final, it shall be necessary that the trial judge certify within 10 days of *306 entry thereof that such order, decision or judgment is of such importance to the case that an immediate review should be had." (Emphasis supplied.) Although it might be argued that § 6-1002a provides for certification of any non-final order, decision or judgment, without regard to those enumerated in § 6-1001a, supra, we do not find this to be the legislative intent. § 6-1002a not only specifically refers to and excludes one of the instances specified in § 6-1001a (i. e., (d)), but also limits the appeals in which the orders, decisions or judgments can be certified to those "under the provisions of this Chapter." In construing this statute, it should be borne in mind that it creates new rights in favor of the state which are in derogation of pre-existing law, and that the accused's rights are thereby correspondingly diminished, since virtually any delay in the prosecution of criminal cases (such as appeals of interlocutory orders, decisions and judgments) can be harmful to the accused, amounting in some cases to deprivation of his constitutional rights of due process, speedy trial, etc. See Hall v. State, 131 Ga. App. 786. Within reason, criminal statutes are construed strictly against the state and liberally in favor of the prisoner. Matthews v. Everett, 201 Ga. 730, 735 (41 SE2d 148) and cit.; Waldroup v. State, 198 Ga. 144, 145 (30 SE2d 896); Floyd v. State, 95 Ga. App. 536, 541 (98 SE2d 161).
"[T]he right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts. The Constitution (Code Ann. § 2-3704) vests in the General Assembly the power to prescribe conditions as to the right of a party litigant to have his case reviewed by the Supreme Court or Court of Appeals.' Whether wise or unwise, as long as the Act does not offend the Constitution, courts must abide by it. Thus the Constitution gives the General Assembly the authority to enact laws placing conditions upon appeals." Fife v. Johnston, 225 Ga. 447 (169 SE2d 167). The General Assembly having placed the specific conditions upon appeals by the state in criminal cases which are contained in § 6-1001a, we will not by judicial construction extend the right of appeal beyond these instances, especially where the intent is expressed to *307 limit the state to appeals "under the provisions of this Chapter."
Accordingly, the motion to dismiss is granted.
Appeal dismissed. Eberhardt, P. J., and Deen, J., concur.
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563 S.E.2d 868 (2002)
275 Ga. 218
MARSHALL
v.
The STATE.
No. S02A0568.
Supreme Court of Georgia.
May 28, 2002.
*869 Charles H. Frier, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Marc A. Mallon, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee.
HUNSTEIN, Justice.
Appellant Timothy Marshall was convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a felony in connection with the death of Mico Curtis. He appeals from the denial of his motion for new trial, and we reverse.[1]
1. The evidence authorized the jury to find that on the night of the shooting Curtis went to appellant's home and joined appellant and others who were drinking beer and socializing on the porch. Curtis took a beer from the cooler and an argument ensued. Appellant pulled out a gun and shot Curtis, ran into the house, came back out, and shot Curtis several more times as Curtis *870 lay on the ground. Curtis died as a result of multiple gunshot wounds. Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to conclude that appellant was guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. On the second day of deliberations, jurors gave a note to the court stating that they could not reach a verdict on the charge of malice murder or the lesser included offense of voluntary manslaughter. With the approval of defense counsel, the court then received and published the jury's verdicts of guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. After a request by the State to dead-docket the malice murder count was denied, the trial court instructed the jury to continue its deliberations on malice murder and voluntary manslaughter and immediately thereafter released the jury for the weekend. When the court reconvened the following Monday, the State moved the court to enter a nolle prosequi on the malice murder count. The court agreed despite objection from the defense and dismissed the jury. Appellant contends it was error to allow the entry of a nolle prosequi of the malice murder count over his objection after the case was submitted to the jury. We agree.
It is well established that a court may not enter a nolle prosequi after the case has been submitted to a jury except by consent of the defendant, and entering a nolle pros without the defendant's approval after he has been placed in jeopardy constitutes error. OCGA § 17-8-3; Casillas v. State, 267 Ga. 541(2), 480 S.E.2d 571 (1997); Doyal v. State, 70 Ga. 134(3) (1883). Because the trial court erroneously entered the nolle prosequi, thereby eliminating the jury's full consideration of voluntary manslaughter and a possible finding of provocation and passion with respect to the act which caused the killing, we reverse and remand to the trial court for a new trial.[2] See Edge v. State, 261 Ga. 865(2), 414 S.E.2d 463 (1992).
3. We need not address appellant's remaining enumerations of error as they are not properly before this Court or are not likely to recur upon retrial.
Judgment reversed and remanded.
All the Justices concur.
NOTES
[1] The crimes occurred on October 11, 1999. On November 14, 2000, a Fulton County grand jury indicted Marshall for malice murder, felony murder, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He was tried November 27-December 4, 2000, and found guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a crime. The malice murder count was nolle prossed and the possession of a firearm by a convicted felon count was dead-docketed by the State. The trial court merged the aggravated assault conviction with the felony murder conviction and sentenced Marshall to life in prison with a consecutive five-year sentence for possession of a firearm during the commission of a felony. A motion for new trial was filed on December 20, 2000, amended on September 4, 2001, and October 15, 2001, and denied on November 2, 2001. Marshall filed a notice of appeal on November 30, 2001. The appeal was docketed in this Court on December 28, 2001, and orally argued on April 15, 2002.
[2] While the case law is clear that an erroneously entered nolle prosequi is the equivalent of an acquittal, we do not address here which charges the State may be authorized to assert against appellant upon retrial.
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994 So.2d 309 (2008)
CASAS-CHAVEZ
v.
STATE.
No. 2D07-5913.
District Court of Appeal of Florida, Second District.
November 7, 2008.
Decision without published opinion. Affirmed.
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4 A.3d 201 (2010)
COM.
v.
SHELTON.
No. 1664 EDA 2009.
Superior Court of Pennsylvania.
May 24, 2010.
Affirmed.
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650 So. 2d 228 (1995)
Ronald A. DUBOIS, Appellant,
v.
STATE of Florida, Appellee.
No. 93-4106.
District Court of Appeal of Florida, First District.
February 21, 1995.
Nancy A. Daniels, Public Defender, and Terry Carley, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
This cause is before us on appeal from appellant's convictions for armed robbery and attempted armed robbery. Finding no reversible error below, we affirm the convictions and sentences. We must reverse, however, the trial court's order of restitution which was entered without any notice or hearing. Rhoden v. State, 622 So. 2d 122 (Fla. 1st DCA 1993); Harris v. State, 593 So. 2d 1169 (Fla. 1st DCA 1992). Accordingly, we REVERSE AND REMAND for the trial court to hold such a hearing and order an appropriate amount of restitution.
BOOTH, MICKLE and VAN NORTWICK, JJ., concur.
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769 So. 2d 546 (2000)
Wilson NAQUIN and Gladys Naquin, individually, and Wilson Naquin as Administrator of the Estate of his Minor Children, Wilson Naquin, Jr., Peter Naquin and Chad Naquin
v.
LOUISIANA POWER & LIGHT COMPANY.
No. 2000-C-1741.
Supreme Court of Louisiana.
September 15, 2000.
Denied.
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389 S.E.2d 436 (1990)
97 N.C. App. 551
STATE of North Carolina
v.
Frankie WINSLOW.
STATE of North Carolina
v.
Jovahnie Wiggins WINSLOW.
No. 891SC682.
Court of Appeals of North Carolina.
March 20, 1990.
*439 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. D. Sigsbee Miller, Raleigh, for State.
Linwood Hedgepeth and Georgia H. Goslee, Baltimore, for defendants-appellants.
ARNOLD, Judge.
Defendants first assign error to the trial court's granting of the State's motion for joinder of defendants for trial. Defendants had objected to the joinder in an off-the-record bench conference. N.C.Gen.Stat. § 15A-927(c)(2) requires the court to deny joinder of defendants for trial whenever it is necessary to promote or achieve a fair determination of guilt or innocence. Whether defendants should be tried jointly or separately is a question addressed to the sound discretion of the trial judge. State v. Rasor, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987). Absent a showing that a defendant has been deprived of a fair trial by joinder, the trial judge's ruling on the question will not be disturbed on appeal. Id.
Defendants argue that the joint trial prejudiced them in that each was precluded from presenting certain defenses that would have incriminated the other: first, the defense that the other possessed all the cocaine and second, the defense that, while he or she possessed some cocaine, the amount possessed was less than the 28 grams required for a trafficking in cocaine conviction. In support of this argument, Frankie points to the discrepancy between Bazemore's voir dire testimony that Frankie had said the master bedroom was "his and his wife's" and Bazemore's testimony before the jury that Frankie had said the bedroom was "his." Frankie argues this redaction of his statement denied him the defense that he possessed some amount under 28 grams of cocaine.
Antagonism between two defendants' defenses does not necessarily warrant severance. State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980). "The test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial." Id.
In State v. Cook, 48 N.C.App. 685, 686, 269 S.E.2d 743, 744, disc. rev. denied, 301 N.C. 528, 273 S.E.2d 456 (1980), defendant Whitaker testified that, while he had been present at the murder scene, co-defendant Cook had killed the victim. Defendant Cook's evidence identified co-defendant Whitaker as the gunman. Id. This Court, while recognizing that these defenses were antagonistic, concluded that both defendants still received a fair trial because the State had presented "ample evidence to support a conviction of either or both defendants of [victim's] murder." Id. at 688, 269 S.E.2d at 745.
Similarly, had each defendant here defended on the grounds that he or she possessed only some or none of the cocaine, their defenses would have been antagonistic. However, as discussed further under defendants' next assignment of error, the State presented ample evidence that each defendant constructively possessed all the cocaine. Given all the evidence, defendants would have received a fair trial even if each had presented defenses tending to incriminate the other. The trial court did not, therefore, abuse his discretion in joining the defendants for trial.
Under this same assignment of error, defendants also argue that the joinder was in error because they were represented by the same attorney. No objection was made at trial to defendants' attorney's joint representation. "In order to establish a conflict of interest violation of the constitutional right to effective assistance of counsel, `a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.'" State v. Howard, 56 N.C.App. 41, 46, 286 S.E.2d 853, 857, disc. rev. denied, 305 N.C. 305, 290 S.E.2d 706 (1982) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)).
Defendants argue that their attorney's performance was adversely affected on the same grounds that they argue they *440 were prejudiced by their joinder for trial, that is, that each was precluded from defending with evidence that he or she possessed only some or none of the cocaine. Again, given the strong evidence that each defendant constructively possessed all the cocaine, we are not persuaded by the argument that defendants were prejudiced by having one attorney who did not present these defenses. This assignment of error has no merit.
In their next assignment of error, defendants argue that the trial court erred by failing to submit the lesser-included offense of possession of cocaine to the jury. Defendants argue that the evidence of the amount of cocaine each defendant possessed was equivocal. We disagree.
Felonious possession of cocaine requires proof of possession of one gram or more of cocaine, N.C.Gen.Stat. § 90-95(d)(2), while trafficking in cocaine by possession requires proof of possession of 28 grams or more of cocaine. N.C.Gen. Stat. § 90-95(h)(3). No instruction is required on a lesser-included offense when the State's evidence is positive as to each element of the crime charged and there is no evidence showing the commission of a lesser-included offense. State v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985). Here, the evidence was clear that each defendant had constructive possession of all 52.3 grams of cocaine.
Constructive possession of contraband material exists when there is no actual possession of the material, but there is an intent and capability to control its disposition. State v. Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588 (1984). Where possession of the premises is non-exclusive, constructive possession of contraband materials may not be inferred without other incriminating circumstances linking a defendant to the contraband. Id. at 569, 313 S.E.2d at 589.
Defendants Frankie and Jovahnie shared their house with each other and their two sons, so each defendant's possession was non-exclusive. However, there were other incriminating circumstances showing each defendant's intent and capability to control the cocaine. Defendants emerged together from the master bedroom where all the cocaine was found. The bedroom contained clothing and furnishings indicating both defendants lived there. Cocaine, drug paraphernalia and large amounts of cash were seized from the bedroom and hall. The following evidence linked Frankie in particular to the cocaine: he admitted that he lived in the master bedroom and that drugs would be found there; he provided the key to the safe containing cocaine; and he had $476 in cash in his pockets. The following evidence linked Jovahnie in particular to the cocaine: her dresser contained cocaine and lactose, $700 in cash, and a notepad with information on cocaine sales; she was seen dropping $1,000 as the officers entered the bedroom and a total of $1,400 was found in envelopes labelled with the name "Jo." The foregoing evidence is sufficient for the jury to infer that each defendant constructively possessed all 52.3 grams of cocaine. Since the State's evidence is positive as to the amount of cocaine each defendant possessed and there was no evidence that either defendant possessed an amount less than 28 grams, the trial court was correct in refusing to submit the lesser-included offense of possession of cocaine to the jury.
Defendants next assign error to the admission of testimony from SBI Agent Bazemore regarding Calvin Hyman's purchase of one and a half ounces of cocaine from defendants' residence several hours before the search. Defendants argue that there was no evidence showing that one or both defendants, rather than someone else in the house, sold the cocaine to Hyman. We disagree. Bazemore gave Hyman $2,500 in SBI special funds to make the cocaine purchase. Before the search of defendants' house, Bazemore recovered $600 of those funds from Hyman. The search of defendants' bedroom revealed the remaining $1,900. This evidence was sufficient to connect defendants with the earlier purchase. The trial court did not err in admitting evidence of that earlier purchase to show that defendants knowingly possessed *441 the cocaine which was the basis of the trafficking charge.
In their last assignment of error, defendants argue that evidence of Hyman's cocaine purchase from their residence was used both to prove an element of the charged crimes and to aggravate their sentences in violation of N.C.Gen.Stat. § 15A-1340.4(a)(1). We do not agree. The trial court admitted evidence of Hyman's cocaine purchase from defendants to show that defendants' possession of cocaine was knowing or intentional. The trial court aggravated each defendants' sentence with the non-statutory factor that both defendants "had the specific intent to sell the quantity of cocaine [they] possessed at the time of the search of [their] residence," citing State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986). Evidence that defendants possessed 52.3 grams of cocaine as well as a variety of packaging materials support this finding. See State v. Williams, 307 N.C. 452, 456-57, 298 S.E.2d 372, 375 (1983). Therefore, evidence used to prove an element of the crime was not also used to support an aggravating factor.
No error.
JOHNSON and ORR, JJ., concur.
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24 Cal.Rptr.3d 543 (2004)
126 Cal.App.4th 1180
FEDERATION OF HILLSIDE AND CANYON ASSOCIATIONS et al., Plaintiffs and Appellants,
v.
CITY OF LOS ANGELES et al., Defendants and Respondents.
No. B166819.
Court of Appeal, Second District, Division Three.
November 10, 2004.
Rehearing Denied December 3, 2004.
Review Denied February 16, 2005.
*546 Lawrence Teeter for Plaintiffs and Appellants.
Rockard J. Delgadillo, City Attorney, Susan D. Pfann and Jack L. Brown, Assistant City Attorneys, for Defendants and Respondents.
CROSKEY, Acting P.J.
Federation of Hillside and Canyon Associations and Coalition Against the Pipeline (collectively Petitioners) appeal the denial of their petition for writ of mandate against City of Los Angeles and Los Angeles City Council (collectively the city). Petitioners challenged the city's approval of a revised General Plan Framework and the city's findings and statement of overriding considerations under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in connection with that approval. We conclude that Petitioners have not shown error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prior General Plan Framework, EIR, and CEQA Findings
The General Plan Framework, an element of the city's general plan, states policies, objectives, and goals for the long-term growth of the city. The General Plan Framework influences but is separate from other general plan elements, which together comprise the general plan. The city completed a proposed General Plan Framework and a draft environmental impact report (EIR) and provided public notice and an opportunity to review and comment beginning in January 1995.
The proposed General Plan Framework included proposed operational and physical improvements to traffic systems and infrastructure, policies to encourage the use of public transit and reduce vehicle trips, and other measures to reduce traffic congestion and improve accessibility. It identified several programs necessary to implement the General Plan Framework, including a proposed "Transportation Improvement Mitigation Plan" (TIMP), described as a program to mitigate the transportation impacts of the General Plan Framework's land use and growth policies. It also called for the development of a general plan transportation element, superseding the prior circulation element, to describe specific proposals in greater detail. The General Plan Framework provided for the city to continue to monitor *547 population and employment growth and the effects on transportation.
The draft EIR analyzed the environmental impacts of the General Plan Framework, TIMP, and related planning and zoning code amendments. It stated that the General Plan Framework would result in significant increases in traffic congestion and would reduce average free-way speeds by as much as 50 percent by the year 2010. The draft EIR also stated, however, that the mitigation measures included in the TIMP would reduce those impacts to a level of insignificance. It also proposed further mitigation measures, including greater support for zero-emission and low-emission vehicles, greater expansion of bus and rail transit systems, and other measures. It stated that the mitigation measures would reduce the cumulative significant effects on transportation "to the extent feasible."
The city completed the proposed TIMP in February 1995, after it had circulated the proposed General Plan Framework and draft EIR. The city made the TIMP available to the public in February 1995 but did not provide formal public notice or recirculate the draft EIR at that time. The TIMP included several proposals to improve the existing transportation infrastructure and increase its capacity, provide additional rail and bus transit, and encourage greater use of public transit and telecommuting. The TIMP stated that to implement the proposals would require the cooperative efforts of several state, local, and federal public agencies together with the city at a cost of approximately $12 billion over 20 years. It stated that a substantial portion of the cost must be borne by state and regional agencies, and that a preliminary analysis indicated that the city's portion of the cost would far exceed its anticipated revenues, including revenues from Proposition C local return funds, gasoline taxes, development fees, street dedications and improvements related to private development, and the city's general fund.
The city produced a final EIR in June 1996 and an amended General Plan Framework in July 1996. Both documents cited and relied in large part on the TIMP mitigation measures to alleviate the significant effects on transportation. The final EIR stated that the project-specific effects on transportation were significant but could be substantially reduced through mitigation. It also stated, however, that even with the mitigation measures the cumulative adverse impacts on the Los Angeles region would be significant and unavoidable.
The city also prepared a document entitled "Proposed CEQA Findings and Statement of Overriding Considerations" (Proposed Findings) in July 1996. The Proposed Findings stated that the General Plan Framework's land use policy and the mitigation measures identified in the TIMP and final EIR would avoid or substantially reduce the significant impacts on transportation, but that even with mitigation the cumulative impact on transportation would be significant and unavoidable. The Proposed Findings discussed several alternatives to the General Plan Framework, concluded that they would not achieve the city's central objectives and were infeasible, and found that specific overriding considerations outweighed the unavoidable significant effects on the environment.
The city council held a public hearing on the proposal in July 1996 and amended the General Plan Framework. After further public hearings before the planning commission and city council, the city approved the General Plan Framework, adopted the Proposed Findings, and certified the final EIR at a public hearing in December 1996.
*548 2. Prior Litigation
Petitioners filed a petition for writ of mandate in the superior court in January 1997, challenging the sufficiency of the EIR and the city's failure to recirculate the draft EIR after releasing the TIMP. They argued that in light of the statement in the TIMP that the city's projected revenues were inadequate to meet its share of the TIMP's substantial costs, the mitigation measures upon which the draft EIR relied were infeasible, that the mitigation measures depended upon the cooperation of other public agencies and funding from those agencies was highly speculative, and that there was no substantial evidence to support the finding that the significant effects on transportation would be mitigated. They also argued that there was no substantial evidence to support the city's finding that water resources would be sufficient, that the EIR did not adequately address feasible alternative plans and the impact of population growth, and that the city's failure to recirculate the draft EIR after the TIMP was released invalidated the EIR. The trial court concluded that the city was required to circulate the TIMP for review and comment and ordered the city to do so, but rejected Petitioners' other challenges to the EIR. Petitioners and the city appealed the judgment.
The city complied with the trial court's order by circulating the TIMP for review and comment beginning in November 1998, while the appeal was pending. The city amended the final EIR by adding its responses to comments on the TIMP and certified the amended final EIR in September 1999.
On appeal, we determined that there was no substantial evidence to support the city's finding that transportation impacts would be mitigated because the city had acknowledged that funding for the TIMP was highly uncertain and made no provision to ensure that the TIMP would actually be implemented. (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261-1262, 100 Cal.Rptr.2d 301.) We rejected Petitioners' challenges to other findings and to the EIR. (Id. at pp. 1262-1265, 100 Cal.Rptr.2d 301.) We stated, "We find no fault with the EIR itself, but only with the GPF and the city's finding on transportation impacts." (Id. at p. 1266, 100 Cal. Rptr.2d 301.) We concluded that the city's appeal was moot because the city had complied with the trial court's order to circulate the TIMP. (Id. at p. 1266, 100 Cal. Rptr.2d 301.)
We therefore reversed the judgment denying the petition for writ of mandate and remanded the matter with directions to the superior court to grant the petition and order the city to vacate its approval of the General Plan Framework and its finding on transportation impacts. (Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at pp. 1266-1267, 100 Cal.Rptr.2d 301.) We stated, "The city may comply with CEQA by amending the GPF so that effective mitigation measures are required as a condition of the development allowed under the GPF or by restricting the scope of development and then making a finding under section 21081, subdivision (a)(1), or by making a finding of overriding considerations as to the significant effects on transportation. [Fn. omitted.]" (Id. at p. 1266, 100 Cal.Rptr.2d 301.) On remand, the superior court ordered the city to vacate its approval of the General Plan Framework and to "comply with the California Environmental Quality Act," and quoted the foregoing language from our opinion.
3. Revised General Plan Framework and CEQA Findings
The city council adopted several amendments to the General Plan Framework *549 before we filed our opinion in Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th 1252, 100 Cal.Rptr.2d 301. Petitioners do not discuss or challenge those amendments. After our opinion and a new judgment by the superior court on remand, the city vacated the General Plan Framework, adopted new CEQA findings and a statement of overriding considerations, and readopted the General Plan Framework in August 2001.
The new findings state that the General Plan Framework will result in potentially significant impacts that will be mitigated in the areas of housing/population, solid waste, wastewater, water resources, utilities, flood control/drainage, police, recreation and open space, and geologic/seismic conditions, and unavoidable significant impacts in the areas of land use, urban form, air quality, and biological resources. The findings also state that the population, employment, and housing growth provided for in the General Plan Framework will result insignificant impacts on transportation, that the mitigation measures in the TIMP and other mitigation measures were incorporated into the general plan's transportation element in September 1999, and that, contrary to the statement in the TIMP, the city will be able to fund its share of the costs for those measures. The findings state that those mitigation measures also will require funding from county, state, and federal government sources, however, and that adequate funding from those sources is a reasonable expectation but cannot be guaranteed. Citing our prior determination in Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th 1252, 100 Cal. Rptr.2d 301, that the city had failed to ensure that the mitigation measures would actually be implemented, the findings state that because the city cannot guarantee adequate funding from other government sources, the city has determined that the transportation mitigation measures are infeasible. The findings also state that the impacts on air quality will be significant and that full implementation of the TIMP would substantially lessen those impacts, but that unavoidable significant impacts will result if the TIMP is not fully implemented.
The city also adopted a statement of overriding considerations finding that the unavoidable significant environmental impacts, any potentially significant impacts due to the infeasibility of the TIMP and other transportation mitigation measures, and the cumulative adverse impacts are acceptable in light of particular project benefits. Among the benefits cited in the statement of overriding considerations are strengthening the city's economic base, providing greater employment opportunities for city residents, protecting the character of low-density residential neighborhoods while accommodating future housing needs, enhancing the city's role as a regional transportation hub, and accommodating regional growth more effectively and with less environmental impact than could other cities in the region.
4. Trial Court Proceedings
Petitioners filed a petition for writ of mandate in the superior court in September 2001 challenging the city's adoption of the General Plan Framework and the city's CEQA findings and statement of overriding considerations. The petition alleges that the General Plan Framework, findings, and statement of overriding considerations render the general plan's land use element inconsistent and noncorrelative with the circulation element in violation of Government Code section 65302, that the evidence does not support the findings and statement of overriding considerations in several respects, and that *550 the city was required to revise and recirculate the EIR in light of the new findings and new information but failed to do so.
After a hearing on the merits, the superior court concluded that our statement in Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at page 1266, 100 Cal.Rptr.2d 301, that "the city may comply with CEQA ... by making a finding of overriding considerations as to the significant effects on transportation" was law of the case and therefore rejected Petitioners' challenges under CEQA. The trial court requested further briefing on whether the cause of action under Government Code section 65302 was barred by either the statute of limitations or res judicata. After further briefing and hearing, the trial court concluded, based on the same statement in our prior opinion, that this court intended to allow the city to determine that the General Plan Framework is preferable to the alternatives, that the court must defer to the city's determination as long as substantial evidence supports the determination, and that Petitioners' cause of action under Government Code section 65302 does not challenge the evidence supporting that determination. The court therefore denied the petition and entered judgment for the city in February 2003. Petitioners appeal the judgment.
CONTENTIONS
Petitioners contend (1) the General Plan Framework provides no means to ensure that transportation infrastructure will be adequate to accommodate future population growth, and that inadequacy renders the land use and circulation elements of the general plan inconsistent and noncorrelative; (2) the city's finding that the TIMP and other measures to mitigate transportation impacts are infeasible due to the uncertainty of funding from sources other than the city amends the General Plan Framework in a manner that will have a different or more severe effect on the environment, so the city must revise and recirculate the EIR; (3) the city failed to consider alternative measures to ensure that development and population growth will not overburden the city's transportation infrastructure, so there is no basis for the statement of overriding considerations; (4) the evidence does not support the city's findings concerning impacts on air quality, water resources, waste water, solid waste, open space, and utilities; and (5) the population and housing projections in the General Plan Framework and the EIR are based on outdated census data, so the evidence does not support the projections.
The city contends (1) Petitioners could have argued in the prior action that the general plan is internally inconsistent and noncorrelative but failed to do so, so res judicata bars that contention in this action; (2) the city did not revise the General Plan Framework in a manner that will have a different or more severe effect on the environment, so it had no obligation to revise and recirculate the EIR; (3) this court determined in the prior action that the city could adopt a statement of overriding circumstances on remand, and that determination is the law of the case, so Petitioners' challenge to the city's adoption of a statement of overriding considerations must fail; (4) the city's findings support the statement of overriding considerations; (5) the city had no obligation to consider additional mitigation measures, and collateral estoppel bars any challenge to the EIR; and (6) collateral estoppel bars Petitioners' challenges to policy statements in the EIR, challenges to the city's findings concerning impacts on water resources, waste water, solid waste, open space, and utilities, and the challenge to the data supporting the city's population and housing projections.
*551 DISCUSSION
1. The General Plan Is Not Internally Inconsistent or Noncorrelative
A city or county must adopt a "comprehensive, long-term general plan" for its physical development. (Gov.Code, § 65300.) The general plan must include "a statement of development policies and ... objectives, principles, standards, and plan proposals" and elements addressing land use, circulation, housing, conservation, open space, noise, and safety. (Gov.Code, § 65302.) The general plan serves as a "charter for future development" (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 277 Cal. Rptr. 1, 802 P.2d 317) embodying fundamental policy decisions (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 571, 276 Cal.Rptr. 410, 801 P.2d 1161). The policies in a general plan typically reflect a range of competing interests. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142, 104 Cal. Rptr.2d 326.)
The land use element must designate the proposed general distribution and general location and extent of land uses, provide population density and building intensity standards, and identify areas subject to flooding. (Gov.Code, § 65302, subd. (a).) The circulation element must designate "the general location and extent of existing and proposed major thoroughfares, transportation routes, terminals, any military airports and ports, and other local public utilities and facilities," and must be "correlated with the land use element of the plan." (Id., subd. (b).)
A general plan and each of its elements must "comprise an integrated, internally consistent and compatible statement of policies for the adopting agency." (Gov. Code, § 65300.5.) Zoning and other decisions affecting land use and development also must be consistent with the general plan. (Gov.Code, § 65860, subd. (a); Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 570, 276 Cal. Rptr. 410, 801 P.2d 1161.)
A general plan is legally adequate if it substantially complies with the requirements of Government Code sections 65300 to 65307. (Gov.Code, § 65751.) "`Substantial compliance ... means actual compliance in respect to the substance essential to every reasonable objective of the statute,' as distinguished from `mere technical imperfections of form.' [Citations.]" (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 348, 176 Cal.Rptr. 620.) A petitioner may challenge a general plan on the ground that it does not substantially comply with these statutory requirements by way of petition for writ of mandate under Code of Civil Procedure section 1085. (Gov.Code, § 65751.)
The adoption or amendment of a general plan is a legislative act. (Gov. Code, § 65301.5.) A legislative act is presumed valid, and a city need not make explicit findings to support its action. (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 522, 169 Cal.Rptr. 904, 620 P.2d 565; Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 993, 21 Cal.Rptr.2d 803.) A court cannot inquire into the wisdom of a legislative act or review the merits of a local government's policy decisions. (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 118, 109 Cal.Rptr. 799, 514 P.2d 111.) Judicial review of a legislative act under Code of Civil Procedure section 1085 is limited to determining whether the public agency's action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 *552 Cal.4th 352, 361, 87 Cal.Rptr.2d 654, 981 P.2d 499; Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1070-1072, 33 Cal.Rptr.2d 875.) A court therefore cannot disturb a general plan based on violation of the internal consistency and correlation requirements unless, based on the evidence before the city council, a reasonable person could not conclude that the plan is internally consistent or correlative. (Cf. A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 648, 20 Cal.Rptr.2d 228.)
Contrary to Petitioners' argument, the internal consistency and correlation requirements do not require a city or county to limit population growth or provide traffic management measures to ensure that its transportation infrastructure can accommodate future population growth. The Planning and Zoning Law (Gov.Code, § 65000 et seq.) does not require a city or county to avoid adverse impacts on transportation. Rather, the city has broad discretion to weigh and balance competing interests in formulating development policies, and a court cannot review the wisdom of those decisions under the guise of reviewing a general plan's internal consistency and correlation. (Cf. Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 142, 104 Cal.Rptr.2d 326.)
Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal. App.3d 90, 212 Cal.Rptr. 273 (Calaveras) is not on point. In that case, the circulation element stated that state highways were inadequate to accommodate future traffic growth and stated clearly and repeatedly that there were no funds available to construct needed improvements. The land use element provided for a 46 percent growth in population over 10 years and substantial development, but failed to discuss and offered no proposals to mitigate the inadequacy of state highways, other than to lobby the state and federal governments for funding. (Id. at pp. 101-103, 212 Cal.Rptr. 273.) The court stated that the correlation requirement of Government Code section 65302, subdivision (b), means that the circulation element must include measures addressing changed demands on transportation infrastructure caused by changes in land use, and concluded that the proposed highway improvements were not meaningful proposals because the county had acknowledged that there were no funds to construct the improvements. (Calaveras, supra, at pp. 100, 103, 212 Cal.Rptr. 273.) The court concluded that the land use element was not correlated with and was inconsistent with the circulation element because the land use element provided for unlimited population growth yet the circulation element provided no measures either to satisfy the additional transportation needs or to limit growth if state highways were inadequate for future traffic. (Id. at p. 103, 212 Cal.Rptr. 273.)
Petitioners cite Calaveras, supra, 166 Cal.App.3d 90, 212 Cal.Rptr. 273, for the proposition that the city has an obligation either to limit population growth or to provide measures to manage increased traffic in the event that the TIMP is not fully funded. We do not construe Calaveras in that manner. Rather, we construe Calaveras to mean that the circulation element of a general plan must provide meaningful proposals to address changes reflected in the land use element, and the land use element must provide meaningful proposals to reflect changes reflected in the circulation element. The state highway improvements proposed in Calaveras could not reasonably be considered meaningful because in the circulation element the county clearly acknowledged its inability to fund the improvements. Here, in *553 contrast, the general plan does not state, let alone state clearly, that funding for the TIMP will be unavailable. Rather, the city stated in its CEQA findings that the city will be able to fund its share of the TIMP costs. The city also concluded, based on prior funding levels, that the necessary funds from other governmental sources probably will be available, and found that the TIMP was infeasible only because the city could not guarantee the necessary funding from other governmental sources. Thus, the city's finding that the TIMP is infeasible is not a definitive statement that the funds will not be available. The finding also is not part of the general plan and therefore cannot make the general plan internally inconsistent or noncorrelative.
We therefore conclude that the superior court's rejection of Petitioners' challenge based on the internal consistency and correlation requirements was correct. Accordingly, we need not decide whether res judicata bars Petitioners' contention.
2. CEQA Requirements
A public agency must prepare an EIR or cause an EIR to be prepared for any project that it proposes to carry out or approve that may have a significant effect on the environment. (Pub. Resources Code, §§ 21100, subd. (a), 21151, subd. (a); Guidelines,[1] § 15064, subd. (a)(1).) The EIR must describe the proposed project and its environmental setting, state the objectives sought to be achieved, identify and analyze the significant effects on the environment, state how those impacts can be mitigated or avoided, and identify alternatives to the project, among other requirements. (Pub. Resources Code, §§ 21100, subd. (b), 21151; Guidelines, §§ 15124, 15125.)
The agency must notify the public of the draft EIR, make the draft EIR and all documents referenced in it available for public review, and respond to comments that raise significant environmental issues. (Pub. Resources Code, §§ 21091, subds. (a), (d), 21092; Guidelines, §§ 15087, 15088.) The agency also must consult with and obtain comments from other agencies affected by the project and respond to their comments. (Pub. Resources Code, §§ 21092.5, 21104, 21153; Guidelines, § 15086.) It must prepare a final EIR including any revisions to the draft EIR, the comments received from the public and other agencies, and responses to comments. (Guidelines, §§ 15089, subd. (a), 15132.)
An agency may not approve a project that will have significant environmental effects if there are feasible alternatives or feasible mitigation measures that would substantially lessen those effects.[2] (Pub. Resources Code, §§ 21002, 21002.1, subd. (b); Guidelines, § 15021, subd (a)(2); Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134, 65 Cal.Rptr.2d 580, 939 P.2d 1280.) An agency may find, however, that particular economic, social, or other considerations make *554 the alternatives and mitigation measures infeasible and that particular project benefits outweigh the adverse environmental effects. (Pub. Resources Code, § 21081, subds. (a)(3), (b); Guidelines, § 15091, subd. (a)(3).) Specifically, an agency cannot approve a project that will have significant environmental effects unless it finds as to each significant effect, based on substantial evidence in the administrative record, that (1) mitigation measures required in or incorporated into the project will avoid or substantially lessen the significant effect; (2) those measures are within the jurisdiction of another public agency and have been adopted, or can and should be adopted, by that agency; or (3) specific economic, legal, social, technological, or other considerations make the mitigation measures or alternatives identified in the EIR infeasible, and specific overriding economic, legal, social, technological, or other benefits outweigh the significant environmental effects. (Pub. Resources Code, §§ 21081, 21081.5; Guidelines, §§ 15091, subds. (a), (b).) A finding that specific overriding project benefits outweigh the significant environmental effects (Pub. Resources Code, § 21091, subd. (b)) is known as a statement of overriding considerations. (Guidelines, § 15093.)
Thus, a public agency is not required to favor environmental protection over other considerations, but it must disclose and carefully consider the environmental consequences of its actions, mitigate adverse environmental effects if feasible, explain the reasons for its actions, and afford the public and other affected agencies an opportunity to participate meaningfully in the environmental review process. The purpose of these requirements is to ensure that public officials and the public are aware of the environmental consequences of decisions before they are made. (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564, 276 Cal.Rptr. 410, 801 P.2d 1161.) The EIR process also informs the public of the basis for environmentally significant decisions by public officials and thereby promotes accountability and informed self-government. (Laurel Heights I, supra, 47 Cal.3d at p. 392, 253 Cal.Rptr. 426, 764 P.2d 278; Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935-936, 231 Cal.Rptr. 748, 727 P.2d 1029.)
The agency must certify that its decisionmaking body reviewed and considered the information contained in the EIR, that the EIR reflects the agency's independent judgment and analysis, and that the EIR was completed in compliance with CEQA, before approving the project. (Pub. Resources Code, § 21082.1, subd. (c); Guidelines, § 15090.)
The standard of review of an agency decision under CEQA is abuse of discretion. Abuse of discretion means the agency did not proceed as required by law or there was no substantial evidence to support its decision. (Pub. Resources Code, §§ 21168, 21168.5; Laurel Heights I, supra, 47 Cal.3d at p. 392, fn. 5, 253 Cal.Rptr. 426, 764 P.2d 278 ["the standard of review is essentially the same under either section"]; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375, 43 Cal.Rptr.2d 170.) In reviewing the adequacy of an EIR, the court does not determine whether the agency's factual determinations were correct, but determines only whether they were supported by substantial evidence. (Laurel Heights I, supra, at pp. 392-393, 253 Cal.Rptr. 426, 764 P.2d 278.) On appeal, we independently review the administrative record under the same standard of review that governs the trial court. (Federation of Hillside & Canyon Associations v. City of Los Angeles, *555 supra, 83 Cal.App.4th at p. 1259, 100 Cal.Rptr.2d 301.)
3. The City Was Not Required to Prepare a Subsequent EIR or Supplement to the EIR
Public Resources Code section 21092.1 states that if "significant new information is added to an environmental impact report" after the agency has made the draft EIR available for public review and has consulted with other agencies but before the EIR is certified, the agency must make the revised EIR available for public review and must consult with the other agencies again before certifying the EIR.[3] Section 21092.1 applies only before an EIR is certified. (Pub. Resources Code, § 21092.1; Guidelines § 15088.5, subd. (a).)
Changes to a project or its surrounding circumstances made after an EIR has been certified for the project may require the preparation of a subsequent EIR or supplement to the EIR. The agency must prepare a subsequent EIR if (1) the project changes are substantial and require major revisions to the EIR due to either new significant environmental effects or a substantial increase in the severity of significant effects identified in the EIR; (2) substantial changes in the circumstances surrounding the project require major revisions to the EIR; or (3) new information of substantial importance shows that the project will have a significant effect not discussed in the EIR, significant effects discussed in the EIR will be substantially more severe, mitigation measures or alternatives found to be infeasible will be feasible and would substantially reduce a significant effect, or mitigation measures or alternatives considerably different from those discussed in the EIR would substantially reduce a significant effect. (Pub. Resources Code, § 21166; Guidelines, § 15162, subd. (a).)
The agency may prepare a supplement to the EIR in lieu of a subsequent EIR if only minor changes or additions to the EIR are necessary to address the project changes, changed circumstances, or new information. (Guidelines, § 15163, subd. (a).) An agency must provide the same notice and opportunity for public review of a subsequent EIR or supplement to an EIR as is required for a draft EIR. (Guidelines, §§ 15162, subd. (d), 15163, subd. (c).) We review the city's determination that the conditions requiring preparation of a subsequent EIR or supplement to an EIR were not present under the substantial evidence standard. (Friends of Davis v. City of Davis (2000) 83 Cal. App.4th 1004, 1018, 100 Cal.Rptr.2d 413; see Guidelines, § 15162, subd. (a).)
Petitioners characterize the city's finding that the TIMP and other measures to mitigate transportation impacts are infeasible due to the uncertainty of funding from sources other than the city as an amendment to the General Plan Framework. We reject that characterization. The city's finding did not amend the General Plan Framework. A public agency's findings with respect to a proposed project (Pub. Resources Code, § 21081(a)(1); Guidelines, § 15091) relate to the project but are separate and distinct from the project itself. (See Pub. Resources Code, § 21065; Guidelines, § 15378.) To the extent the city's finding reflects changed circumstances *556 surrounding the project, Petitioners have not shown that the changed circumstances compel the conclusion that the significant environmental effects will be different or more severe. The city's stated goal to implement the TIMP and other mitigation measures remains the same. The city's finding reflects a greater likelihood that the TIMP will be fully funded and implemented than the city believed at the time of the prior EIR approval, when the city stated that it could not meet its share of the TIMP's costs. Moreover, the EIR discussed the significant transportation impacts of the General Plan Framework without the proposed mitigation, and Petitioners have not challenged the adequacy of that analysis in the EIR. We therefore conclude that the city's finding that the mitigation measures are infeasible does not result in either new significant environmental effects or a substantial increase in the severity of significant effects identified in the EIR and does not otherwise trigger the need for a subsequent EIR or supplement to the EIR.
4. The City's Adoption of a Statement of Overriding Considerations Was Proper
A statement of overriding considerations is not a substitute for the findings required by Public Resources Code section 21081, subdivision (a).[4] (Guidelines, §§ 15091, subd. (f), 15093, subd. (c).) Rather, a statement of overriding considerations supplements those findings and supports an agency's determination to proceed with a project despite adverse environmental effects. (Guidelines, § 15093, subds.(a), (c).)
Challenging the city's statement of overriding considerations, Petitioners quote part of the Discussion by the Office of Planning and Research of Guidelines section 15093.[5] The Discussions are published by the Office of Planning and Research () but are not part of the California Code of Regulations. The Discussion of Guidelines section 15093 explains that before adopting a statement of overriding considerations, an agency must show that it has considered the mitigation measures and project alternatives identified in the EIR that would lessen the significant environmental effects. We agree. The requirement that an agency must make findings concerning the implementation or feasibility of mitigation and alternatives to the project (Pub. Resources Code, § 21081, subd. (a); Guidelines, *557 §§ 15091, subds. (a), (f), 15093, subd. (c)) means that the agency must consider the mitigation measures and project alternatives. (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 134, 65 Cal.Rptr.2d 580, 939 P.2d 1280.) Contrary to Petitioners' argument, however, the Discussion does not suggest and there is no basis to conclude that before adopting a statement of overriding considerations an agency must consider additional mitigation measures and project alternatives apart from those identified in an adequate EIR.
We therefore construe Petitioners' contention that the city failed to consider alternative measures to ensure that development and population growth will not overburden the city's transportation infrastructure as a challenge to the range of project alternatives and mitigation measures discussed in the EIR and to the city's findings in December 1996 and September 1999 that the EIR was adequate. The time for those challenges to the EIR expired long before Petitioners commenced this action in September 2001. (Pub. Resources Code, § 21167.) Moreover, we previously determined that the range of alternatives discussed in the EIR is reasonable (Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at p. 1265, 100 Cal.Rptr.2d 301), and that determination is binding on Petitioners in this action under the doctrine of collateral estoppel. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341-342, 272 Cal.Rptr. 767, 795 P.2d 1223.)
5. Res Judicata Bars Petitioners' Challenges to Some Findings
The city's current findings concerning impacts on water resources, waste water, solid waste, open space, and utilities are substantially identical to its prior findings on those matters. Petitioners either did not challenge those findings in the prior litigation or, in the case of water resources, unsuccessfully challenged the finding. (Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at pp. 1262-1263, 100 Cal.Rptr.2d 301.)
Res judicata or claim preclusion precludes the relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, 123 Cal.Rptr.2d 432, 51 P.3d 297.) Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974, 104 Cal.Rptr. 42, 500 P.2d 1386.) Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated. (Id. at p. 975, 104 Cal.Rptr. 42, 500 P.2d 1386.)
Two proceedings are on the same cause of action if they are based on the same "primary right." (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904, 123 Cal.Rptr.2d 432, 51 P.3d 297.) The plaintiff's primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. (Ibid.) The scope of the primary right therefore depends on how the injury is defined. A cause of action comprises the plaintiff's primary right, the defendant's corresponding primary duty, and the defendant's wrongful act in breach of that duty. (Ibid.)
An injury is defined in part by reference to the set of facts, or transaction, from which the injury arose. Thus, the *558 California Supreme Court in Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at pages 906, 123 Cal.Rptr.2d 432, 51 P.3d 297 to 907, held that a breach of contract gives rise to a single cause of action, all of the remedies for which must be sought in a single action, even if a particular item of damage has not yet been sustained. The court held that the plaintiff's primary right was the right to be free from all of the injuries arising from a particular breach of contract, and distinguished cases where separate and distinct contract covenants were breached at different times. (Id. at pp. 907-908, 123 Cal.Rptr.2d 432, 51 P.3d 297.) The Mycogen court declined to adopt the transactional theory of res judicata of the Restatement Second of Judgments in lieu of California's primary rights theory, noting that the result in the case would be the same under either theory. (Mycogen, supra, at p. 909, fn. 13, 123 Cal.Rptr.2d 432, 51 P.3d 297.)
Similarly, the California Supreme Court in Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860-861, 21 Cal.Rptr.2d 691, 855 P.2d 1263, determined that the plaintiff suffered a single injury as a result of an attorney's negligence in connection with a particular debt collection, even though the injury allegedly resulted from two different omissions. The court noted that the two omissions resulted in nonpayment of the same debt and that they "arose from the same transaction." (Ibid.)
These authorities do not mean that injuries arising from the same set of facts can give rise to only one cause of action. The California Supreme Court has rejected the transactional theory of res judicata. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, 160 Cal.Rptr. 141, 603 P.2d 58, disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4, 88 Cal.Rptr.2d 19, 981 P.2d 944.) Rather, these authorities indicate that in defining the injury suffered, primary rights theory incorporates to some degree a transactional standard. (See Heiser, California's Unpredictable Res Judicata (Claim Preclusion) Doctrine (1998) 35 San Diego L.Rev. 559, 569-570.)
The decision in the prior litigation between these identical parties is final because the time to appeal the judgment by the superior court on remand has expired. (Castro v. Higaki (1994) 31 Cal.App.4th 350, 356-357, 37 Cal.Rptr.2d 84; see Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 303 & fn. 7, 63 Cal.Rptr.2d 74, 935 P.2d 781.) The decision is on the merits because the judgment decided the merits of Petitioners' challenges under CEQA. The CEQA cause of action in the prior proceeding and the CEQA cause of action in the present proceeding are based on the city's alleged failure to comply with CEQA with respect to the same project, the same EIR, and substantially the same findings.
Petitioners contend the material facts have changed so res judicata should not apply. They cite documents and information that became available only after the city made its original CEQA findings in December 1996. We disagree. The city's findings were based primarily on the information and analysis contained in the EIR. We rejected Petitioners' challenges to the EIR in the prior appeal and stated that the city need not revise its EIR unless it substantially changed the project, which it did not do. (Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at pp. 1261, fn. 7, 1266 & fn. 12, 100 Cal.Rptr.2d 301.) We directed the superior court to order relief limited to vacating the city's approval of the General Plan Framework and its finding on transportation impacts. (Id. at pp. 1266-1267, 100 Cal.Rptr.2d 301.) The city had no obligation to update the analysis *559 of environmental impacts in its adequate EIR or to comprehensively revise its findings.
We therefore conclude that the material facts have not changed and that the two proceedings involve the same primary right and the same cause of action. The primary right in both proceedings is the right to ensure the city's compliance with CEQA's substantive and procedural requirements in connection with the General Plan Framework and the certified EIR. Petitioners could have challenged the city's findings on waste water, solid waste, open space, and utilities in the prior proceeding, but did not. Res judicata bars Petitioners' challenges to those findings. Having unsuccessfully challenged the finding on water resources in the prior proceeding, Petitioners also are barred from challenging that finding again in this proceeding.
Petitioners cite Mata v. City of Los Angeles (1993) 20 Cal.App.4th 141, 24 Cal. Rptr.2d 314 for the proposition that a judgment in a mandamus proceeding cannot have a res judicata effect because a mandamus proceeding is a special proceeding rather than an ordinary action. Mata held that a prior ruling by the superior court on the merits of a police officer's petition for writ of mandate seeking reinstatement did not preclude causes of action for civil rights violations under 42 United States Code section 1983. The petitioner alleged the petition for writ of mandate and section 1983 claims in the same pleading are based on the same set of facts. (Mata, supra, at p. 143-144, 24 Cal. Rptr.2d 314.) The Mata court concluded that the prior ruling did not involve the same cause of action as the section 1983 causes of action. (Mata, supra, at p. 149, 24 Cal.Rptr.2d 314.) Although the reasons for that conclusion are not entirely clear, the Mata court apparently concluded that the causes of action were different because the writ petition and section 1983 causes of action involved "`separate and distinct torts.'"[6] (Mata, supra, at p. 149, 24 Cal.Rptr.2d 314.) The court stated further, "In fact, the mandamus proceeding is technically not regarded as an action at all. It is, instead, described as a special proceeding. [Citation.]" (Ibid.) We regard this statement as an attempt to explain why the causes of action were not the same, rather than a holding that res judicata was inapplicable because the prior ruling was in a special proceeding. Mata made no attempt to explain, and Petitioners do not explain, why a decision in a prior mandamus proceeding should not be res judicata if the requirements for the doctrine are satisfied.
We see no reason to distinguish between actions and special proceedings (see Code Civ. Proc., §§ 22, 23) for purposes of res judicata if the requirements of the doctrine are satisfied and if the issues asserted in the later proceeding could have been asserted in the prior proceeding. Application of res judicata in those circumstances serves the purposes of the doctrine, to prevent inconsistent rulings, promote judicial economy by preventing repetitive litigation, and protect against vexatious litigation. (People v. Barragan (2004) 32 Cal.4th 236, 254-255, 9 Cal.Rptr.3d 76, 83 P.3d 480; Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 875, 151 Cal.Rptr. 285, 587 P.2d 1098.) Code of Civil Procedure section 1908, a *560 codification of the res judicata doctrine, states that "a judgment or final order in an action or special proceeding" is conclusive as to "the matter directly adjudged." (Id., subd. (a) & (a)(2).) Moreover, the California Supreme Court has held that a judgment on the merits in a mandamus proceeding is res judicata and is conclusive on all issues that were raised or could have been raised in the proceeding. (Hollywood Circle, Inc. v. Department of Alcoholic Beverage Control (1961) 55 Cal.2d 728, 733, 13 Cal.Rptr. 104, 361 P.2d 712 ["It is settled that the doctrine of res judicata applies to judgments on the merits in proceedings in mandamus. [Citations.]"]; Caminetti v. Board of Trustees (1934) 1 Cal.2d 354, 356, 34 P.2d 1021 [held that a superior court judgment in a mandamus proceeding was "conclusive not only as to issues raised but also as to those which could have been raised"].) Although those two cases involved the issue preclusion aspect of res judicata, the Supreme Court in making those statements did not distinguish issue preclusion from claim preclusion, and we conclude that for these purposes no distinction is warranted.
6. The Evidence Supports the City's Findings on Air Quality Impacts
Petitioners contend the findings state that air quality impacts will be mitigated or avoided. Petitioners contend that finding conflicts with the finding that implementation of the TIMP is infeasible. The city's finding of TIMP infeasibility differs from its prior finding on that issue, so res judicata arguably does not preclude Petitioners' contention that the air quality findings conflict with the new TIMP infeasibility finding.
In fact, the findings state that air quality impacts will be significant and that full implementation of the TIMP would substantially lessen those impacts, but that unavoidable significant impacts will result if the TIMP is not fully implemented. Contrary to Petitioners' argument, the findings provide no false assurance that air quality impacts will be mitigated or avoided. Petitioners therefore have not shown that the air quality findings are not supported by the evidence.
7. Petitioners Have Not Shown Error With Respect to Projections Based on Census Data.
Petitioners contend the city's reliance in the General Plan Framework and EIR on population and housing projections by the Southern California Association of Governments (SCAG) based on 1990 census data, and the city's reference to those figures in its findings, is improper because the projections were outdated when the city adopted its findings in 2001. Petitioners argue that the projections "are not based on substantial evidence. Actions based upon an EIR reflecting data that is over ten years old violate CEQA." Petitioners cite no authority for their argument. They do not explain what more current information was available to the city, how that information differed from the projections that the city relied on, or how the more current information might have affected the city's decision. Apart from our conclusion that res judicata bars Petitioners' challenge to findings that are substantially the same as the city's prior findings, discussed ante, we conclude that Petitioners waive their contention that there is no substantial evidence to support the city's findings in this regard because they fail to discuss the evidence on point (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274, 90 Cal.Rptr.2d 41) and do not adequately explain their appellate argument *561 (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116, 75 Cal. Rptr.2d 27).
In any event, our review of Petitioners' comments to the city before project approval reveals the infirmity of Petitioners' argument.[7] Petitioners argued in comments submitted to the city that SCAG's population projections issued in 2001 were lower than its 1990 projections and that in light of the lower projections there is no substantial evidence that mitigation of the significant impacts resulting from population and employment growth is infeasible. If mitigation is feasible, Petitioners argued, there is no basis for a statement of overriding considerations. Petitioners do not argue on appeal, however, that the evidence does not support the city's findings on the feasibility of mitigation or that the city failed to adopt feasible mitigation measures. Moreover, Petitioners do not explain how the adoption of a statement of overriding considerations where none was needed would deprive the decision makers or the public of information necessary to meaningfully evaluate the project or otherwise result in prejudice. Petitioners therefore have not shown prejudicial error. (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236-1237, 32 Cal.Rptr.2d 19, 876 P.2d 505; cf. Association of Irritated Residents v. County of Madera (2003) 107 Cal. App.4th 1383, 1391, 133 Cal.Rptr.2d 718.)
DISPOSITION
The judgment is affirmed. The city is entitled to costs on appeal.
We Concur: KITCHING and ALDRICH, JJ.
NOTES
[1] All references to Guidelines are to the CEQA Guidelines (Cal.Code Regs., tit. 14, § 15000 et seq.) developed by the Office of Planning and Research and adopted by the California Resources Agency. (Pub. Resources Code, §§ 21083, 21087.) "[C]ourts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, 253 Cal.Rptr. 426, 764 P.2d 278, fn. 2 (Laurel Heights I).)
[2] "`Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors." (Pub. Resources Code, § 21061.1.)
[3] "When significant new information is added to an environmental impact report after notice has been given pursuant to Section 21092 and consultation has occurred pursuant to Sections 21104 and 21153, but prior to certification, the public agency shall give notice again pursuant to Section 21092, and consult again pursuant to Sections 21104 and 21153 before certifying the environmental impact report." (Pub. Resources Code, § 21092.1.)
[4] Public Resources Code section 21081 requires an agency to find with respect to each significant environmental effect that (1) mitigation measures required in or incorporated into the project will avoid or substantially lessen the significant effect; (2) those measures are within the jurisdiction of another public agency and have been adopted, or can and should be adopted, by that agency; or (3) specific economic, legal, social, technological, or other considerations make the mitigation measures or alternatives identified in the EIR infeasible. (Pub. Resources Code, § 21081, subd. (a); Guidelines, § 15091, subd. (a).)
[5] Petitioners rely on the following paragraph from the Discussion of Guidelines section 15093: "The court in Citizens For Quality Growth v. Mount Shasta (1988) 198 Cal. App.3d 433, 243 Cal.Rptr. 727, held that when an agency approves a project that will significantly affect the environment, CEQA places the burden on the approving agency to affirmatively show that it has considered the identified means (mitigation and/or alternatives) of lessening or avoiding the project's significant effects and to explain its decision allowing those adverse changes to occur. In other words, an agency may only get to overriding considerations after the agency has made the appropriate findings; then, and only then, may an agency go on to explain why a project may go forward notwithstanding its effects."
[6] The Mata court apparently concluded that there were "`separate and distinct torts'" and therefore separate causes of action because the petitioner/plaintiff relied on separate legal theories. (Mata v. City of Los Angeles, supra, 20 Cal.App.4th at p. 149, 24 Cal. Rptr.2d 314.) The law is clear, however, that causes of action based on the same primary right are the same cause of action even if they are based on different legal theories. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904, 123 Cal.Rptr.2d 432, 51 P.3d 297.)
[7] Petitioners' judicial challenge to the city's decision is limited to the grounds presented to the city. Public Resources Code section 21177 codifies the exhaustion of administrative remedies doctrine under CEQA. (Endangered Habitats League, Inc. v. State Water Resources Control Bd. (1997) 63 Cal.App.4th 227, 237-238, 73 Cal.Rptr.2d 388.) The statute prevents a petitioner from challenging a decision under CEQA on grounds that were not presented to the public agency during the public comment period or before the close of the public hearing, provided that the agency provided a public comment period or a public hearing concerning the decision and gave the notice required by law. (Pub. Resources Code, § 21177, subds. (a), (e); Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 701-702, 7 Cal.Rptr.3d 868.) As codified in CEQA, the exhaustion doctrine does not require that the petitioner personally presented the issue to the agency as long as somebody else did so and the petitioner timely objected to the project on another ground. (Pub. Resources Code, § 21177, subds. (a), (b); Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894, 236 Cal.Rptr. 794.)
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364 F.Supp. 1180 (1973)
Vertia BOYD, Plaintiff,
v.
R. ADAMS, badge no. 13001, et al., Defendants.
No. 73 C 403.
United States District Court, N. D. Illinois, E. D.
June 29, 1973.
*1181 Kenneth K. Howell, and David C. Thomas, Woodlawn Crim. Defense Services, Chicago, Ill., for plaintiff.
Richard L. Curry, Corp. Counsel, John V. Virgilio, Asst. Corp. Counsel, Chicago, Ill., for defendants.
*1182 MEMORANDUM OPINION
MAROVITZ, District Judge.
Motion To Dismiss And Summary Judgment
This is an action for declaratory judgment, injunctive relief and damages brought pursuant to 28 U.S.C. §§ 2201, 1331 and 1343 to redress injury arising out of alleged violations of the Civil Rights Act, 42 U.S.C. §§ 1983, 1985, 1986 and 1988. Plaintiff alleges deprivation of her constitutional rights as protected by the 1st, 4th, 5th, 6th, 8th and 14th amendments from the following undisputed facts as alleged in the five count complaint.
Plaintiff, Vertia Boyd, a passenger with two men in an automobile driven by Tommie Jones was ordered out of the car when officers Adams and Hofman, plain clothes policemen in an unmarked car, stopped the car after it turned left onto Laurel Street. The officers after preliminary inquiries searched the three men and the car finding no incriminating evidence and thereafter plaintiff, refusing to be searched, was violently pushed to the unmarked car, where the officers threatened and talked abusively to her. Plaintiff, pregnant at the time, was arrested for unstated reasons by the officers and later charged with disorderly conduct and resisting a police officer and held for five hours before release on bond. Plaintiff alleges she was under no pending charges, no outstanding warrants or indictments and that she was searched without probable cause. Plaintiff sues to recover damages for great bodily injury, pain, internal hemorrhaging, hospital expenses and miscarriage resulting in severe mental distress.
At her trial, plaintiff's attorney asked dismissal of the charges in exchange for plaintiff's release of all defendants from all civil liability, arising out of the arrest, which was agreed to by the Assistant State's Attorney. Plaintiff signed the release and by her same attorney filed this action claiming that the release was void.
Plaintiff joins as defendants the two arresting officers Adams and Hofman, the Chief of Police, James B. Conlisk, the City of Chicago, a municipal corporation, Edward V. Hanrahan, the State's Attorney and his Assistant State's Attorney, Paul Kayman, all in their individual and official capacities.
The complaint sets forth five counts and prays for the following relief:
Count I. prays $5,000 compensatory and $10,000 punitive damages jointly and severally against Adams and Hofman for injury resulting from the alleged unlawful search;
Count II. prays $1,000 compensatory and $5,000 punitive damages jointly and severally against Adams and Hofman for injuries resulting from the alleged unlawful arrest and confinement;
Count III. prays $1,000 compensatory and $5,000 punitive damages jointly and severally against Adams and Hofman for conspiring to injure plaintiff;
Count IV. prays $2,000 compensatory and $5,000 punitive damages jointly and severally against the City of Chicago and Conlisk under agency principles for the negligent training, supervision, knowledge and ratification of the actions of Adams and Hofman resulting in the injuries to plaintiff;
Count V. prays $2,000 compensatory and $5,000 punitive damages jointly and severally against Hanrahan and Kayman for severe mental anguish and asks this Court to declare the release of civil liability void and unenforceable and to permanently enjoin the practice of coercing releases for dismissal of criminal charges as well as any future prosecution of the charges and harassment against plaintiff.
The defendant City of Chicago, a municipal corporation, moves to strike plaintiff's complaint and to dismiss the City for lack of jurisdiction over the *1183 subject matter and for failure to state a claim upon which relief can be granted. Defendant Conlisk moves for summary judgment claiming that the doctrine of respondeat superior is inapplicable and that he may not be held accountable under § 1983 for actions in which he took no personal part. Defendants Hanrahan and Kayman move to dismiss on the grounds of prosecutorial immunity, failure to state a claim upon which relief may be granted and that the release was not coerced. Defendants Adams and Hofman move to dismiss the complaint on the grounds that plaintiff has executed a valid release of all civil liability, and also affirmatively plead the release as a defense.
Plaintiff moves for summary judgment on the release as void as a matter of law.
The central issue in this case revolves around the validity of plaintiff's release, executed in exchange for nonsuit by the state of criminal charges, of all civil liability for damages arising out of her arrest by the defendants. Before deciding this issue, however, it is essential that the proper defendants to the claim be established.
The defendant City of Chicago, a municipal corporation, moves to strike the complaint and dismiss it as a party defendant on the grounds that a municipal corporation is not a "person" within the Civil Rights Act § 1983, therefore affording no jurisdictional ground upon which a claim may be pursued. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1961). Plaintiff, however, argues that Monroe was wrongly decided and that municipalities were not included as immune but subject to suit, especially if the state had abolished sovereign immunity. Even if Monroe was correct, plaintiff further argues that § 1983 follows local law regarding sovereign immunity, which is governed in Illinois by Ill.Rev.Stat., Ch. 85, § 1-101 et seq., providing for liability with certain exceptions irrelevant in this case, and claims the City is liable for the intentional acts of officers Adams and Hofman (§ 2-202). Plaintiff also urges that § 1988 grants an extraordinary remedy applicable in this case and that the claim against the City could be joined under the doctrine of pendent jurisdiction to the federal civil rights claim although unsupported by an independent federal jurisdictional base.
Until recently divergent theories of municipal liability under the Civil Rights Act have resulted in confusion among the circuits and plaintiff urges adoption of municipal liability as stated in Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), rather than the Seventh Circuit's view in accord with Monroe in Ries v. Lynskey, 452 F. 2d 172 (C.A.7 1971). While plaintiff argues vigorously for vicarious liability by the City, the United States Supreme Court has now settled this question in three recent cases.
In District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), the Supreme Court reversed Judge Bazelon's interpretation that the District of Columbia was a "State or Territory" within the purview of § 1983, which therefore negated the jurisdiction of that Court. Without this jurisdictional basis, theories of vicarious liability applicable to maintaining municipal liability under that section of the Civil Rights Act evaporated, as to claims arising in the District of Columbia.
The Supreme Court, thereafter in Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), further limited actions under the Civil Rights Act §§ 1983 and 1988 by enunciating greater immunity for municipalities stating that § 1988 was not "meant to authorize the wholesale importation into federal law of state causes of actionnot even one purportedly designed for the protection of federal civil rights". 411 U.S. at 703-704, 93 S.Ct. at 1793. By limiting extraordinary remedies under § 1988 to gaps only *1184 as left uncovered by specific provisions of the Civil Rights Act rather than remedies for civil rights protection in general, the Court stated that "§ 1988, in light of the express limitations contained within it, cannot be used to accomplish what Congress clearly refused to do in enacting § 1983". 411 U.S. at 710, 93 S.Ct. at 1796. The effect of Moor was supportative to the doctrine of municipal immunity (the County was held eligible for immunity as a sufficient "body politic") as established in Monroe, and precluded petitioners' recovering for injury resulting from a shooting by a Deputy Sheriff of Alameda County, California, as against the County of Alameda under the Civil Rights Act.
The Court also in Moor held that wide discretionary power was vested in the District Court's consideration of nonfederally cognizable claims under the doctrine of pendent jurisdiction and that the federal forum was inappropriate as trier of difficult, unsettled state questions. The lower Court therefore acted properly in declining to exercise pendent jurisdiction over a claim without a federal jurisdictional basis which would unduly complicate the suit, and thus properly dismissed the County.
The third decision which directly bears upon this case is City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), which closed off the avenue of equitable relief against a municipality. The Court ruled that no jurisdiction attaches under 28 U.S.C. § 1343 for suits brought under 42 U.S.C. § 1983 where a municipality is sought to be enjoined in an action for declaratory judgment and injunction. Thus, appellees claimed deprivation of due process when a local liquor licensing committee's hearing resulted in a failure to renew their liquor license on the grounds that community sentiment was against nude dancing in bars. The Supreme Court held that § 1983 did not include a city within the definition of a "person" either for damages or equitable relief and that § 1983 was not intended by Congress to have a "bifurcated application to municipal corporations depending on the nature of the relief sought against them". 412 U.S. at 513, 93 S.Ct. at 2226. This decision specifically overrules Schnell v. City of Chicago, 407 F.2d 1084 (C.A. 7 1969) and Adams v. City of Park Ridge, 293 F.2d 585 (C.A.7 1961), upon which the lower three-judge District Court relied and settles the last questions of municipal immunity.
The United States Supreme Court, therefore, his interpreted 42 U.S.C. §§ 1983 and 1988 in terms of municipal liability to prevent suits against such political subdivisions whether for damages or equitable relief in all cases, thereby granting full immunity under these sections. The original approach taken in Monroe, which sprouted divergent theories of municipal liability, has been now clarified to definitively end such controversy, foreclosing federal jurisdiction directly and limiting it indirectly by recognizing wide discretion in the District Courts to exercise pendent jurisdiction.
In light of the Supreme Court's clarification of municipal immunity defendant, City of Chicago's motion to strike the complaint as to it is granted, as it does not come within the definition of "person" in § 1983.
The defendant James B. Conlisk, Chief of Police, moves for summary judgment upon his affidavit that he did not personally act in the injury of plaintiff and that no responsibility under the doctrine respondeat superior binds him to the acts of the arresting officers under § 1983 without a showing of personal involvement. Plaintiff agrees that Conlisk is not bound under respondeat superior but emphasizes that a new relationship of supervisor-subordinate is created from which liability would attach to Conlisk for breach of his duty to carefully, competently and professionally train the men under his command. Again relying on Carter v. Carlson, supra, since reversed by the Supreme Court, plaintiff argues that supervisory *1185 negligence for failure to properly train subordinates should be actionable. The question presented, however, relates to the requirements contemplated by the Civil Rights Act, which in the case of supervisory personnel are conditioned upon personal involvement, thus eliminating the doctrine of respondeat superior from the reach of the statute. Sanberg v. Daley, 306 F.Supp. 277, 278 (N. D.Ill.1969); Salazar v. Dowd, 256 F. Supp. 220, 223 (D.Colo.1966). The statute looks to personal action in depriving the injured of constitutional rights rather than damage alleged by the chain of vicarious responsibility. Bond v. City of Chicago, 71 C 2731 (Judge Will, N.D. Ill.1972). Thus, without direct action causing injury to the plaintiff supported by allegations of the same, defendant Conlisk can not be sued as a proper defendant under 42 U.S.C. § 1981 et seq. As to other claims arising out of alleged negligent supervision by Conlisk not under the Civil Rights Act, the Court does not reach them.
Defendant Conlisk's motion for summary judgment therefore is granted because no issue of material fact as to Conlisk's personal participation in plaintiff's injury is alleged and under the doctrine of respondeat superior he is not capable of being sued under the Civil Rights Act merely as a supervisor.
Defendants Hanrahan and Kayman are sued by plaintiff for damages caused by "severe mental anguish". Clearly without allegations supporting direct injury outside the scope of their duties to prosecute in the name of the people of Illinois Hanrahan and Kayman are immune from such action under the Local Governmental and Governmental Employee Tort Immunity Act, Ill.Rev. Stat., Ch. 85, § 1-101 et seq. (1969); Littleton v. Berbling, 468 F.2d 389, 410 (C.A. 7, 1972). Since plaintiff makes no such allegations Hanrahan and Kayman are therefore dismissed.
What now remains of this action centers around the issue of the validity of the release of civil liability in exchange for dismissal of criminal charges. Since plaintiff in her motion for partial summary judgment declaring the release void as a matter of law and defendants' motion to dismiss the complaint are contingent upon the effect of the release, its validity will be examined first.
According to the record from the Circuit Court of Cook County, Illinois, Branch 46, plaintiff's attorney requested that a release be given in consideration for a nonsuit of the charges against the plaintiff. The release was executed by the plaintiff herself who subsequently filed this action. The defendants rely on the release to insulate them from liability arising out of alleged injuries of plaintiff, although the practice of securing releases seems to have been discontinued. The release states that:
GENERAL RELEASE
For and in consideration of the sum of $1.00 and other valuables and consideration, the receipt whereof is hereby acknowledged, the undersigned does hereby release and forever discharge the City of Chicago, its agents and employees including R. Adams #13001 and R. Hofman #8850 from any and all claims and causes of action, he, his heirs and assigns now has or hereafter may have against the City of Chicago, its agents, employees and R. Adams #13001 and R. Hofman #8850 from or arising out of an arrest which occurred on the 2/9/72 in the City of Chicago.
Name Vertia M. Boyd
Address 4838 W. Madison
WITNESSES Name David C. Thomas
Address 6020 S. University
Name __________________________
Address ________________________
Plaintiff contends that it is void and unenforceable because it was executed under duress, because it violates plaintiff's 1st, 14th and due process rights *1186 guaranteed by the Constitution and is unenforceable under contract law as constituting compounding a crime.
The issue of duress in the execution of the release must be divided into two categories: 1) actual duress and 2) inherent duress. Defendants claim that because plaintiff's attorney initiated the release plaintiff is unable to claim duress, but plaintiff claims she executed the release under duress, coercion and fear of harassment.
The issue of actual duress in the execution by the plaintiff, regardless of plaintiff's attorney's actions in securing the release, remains a question of fact disputed by both sides. But the issue of inherent duress, however, is more profound. In Bucher v. Krause, 200 F.2d 576 (C.A. 7 1952), plaintiff was mistakenly shot and arrested as a robbery suspect. He was treated for his wounds at several hospitals, including the one at the House of Correction. He was interrogated at the hospital and a police station and was told a mistake had been made. He nevertheless was charged with resisting arrest. In Court on that charge he executed a release of claims against defendants and subsequently filed suit claiming the release was executed under duress and thus void. Although no apparent duress was evident, the Court found that the execution of the release while plaintiff was restrained at Court on his criminal charge was sufficient for a jury to find duress in the execution under the concept of duress by imprisonment. The inherent duress underlying the release in Boyd derives from the same circumstances as Bucher and is therefore a question for the jury.
Thus for defendant's motion to dismiss it is enough that the plaintiff alleges duress, which will be taken as true for this motion, King v. Daniels, 72 C 1320 (Judge McGarr, N.D.Ill.1972); but it is also apparent that the allegation is not an empty one when couched in the circumstances surrounding the execution of the release. Defendant's motion to dismiss is therefore denied.
Plaintiff also contends, both in opposition to the defendant's motion to dismiss and in support of plaintiff's motion for summary judgment, that the release is void as a matter of law because it violates her 1st and 14th amendment rights and right to due process, and in support of her motion for summary judgment, that it is void under contract law. Plaintiff claims that there are no issues of material fact because the plaintiff was in fact arrested and secured nonsuit of the charges upon executing the release of civil liability. The question of duress is dropped as to her motion for summary judgment and plaintiff focuses her attack on the legal justification supporting such a release. Defendants, however, contend that there are issues of fact as regard to the question of duress and the lack of good faith of plaintiff's attorney in seeking the release and thereafter filing this action on the grounds of duress.
Plaintiff's motion for summary judgment relies upon three grounds: 1) that the release is an abridgment of her constitutional right to redress grievances and protest official misconduct; 2) that the release violates her right to due process because it is an invalid use of plea-bargaining; and 3) that as a matter of settled contract law the release constitutes compounding a crime and is void as against public policy.
Plaintiff cites Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F. 2d 966 (1968) and MacDonald v. Musick, 425 F.2d 373 (C.A. 9 1970) to support her contention that release of defendant's liability in this case abridged her first amendment right.
In Dixon, appellant, who allegedly violated a traffic law but did not receive a ticket, filed a complaint with the police department on the conduct of the two officers who stopped him. The appellant thereafter "entered into a tacit agreement" with the Corporation Counsel's office that if appellant would not proceed on his complaint no charges would be brought on the traffic violations. Appellant filed a formal complaint *1187 three months later and traffic charges were then brought against him. The Court found that such "agreements" and retaliatory conduct were contrary to a free society's need to air grievances.
While the need to redress grievances is of great importance, Dixon is based on two essential facts: 1) that the agreement was only "tacit"; and 2) that the prosecution was clearly in retaliation of the continued proceedings by the appellant. This case, however, relies on entirely different facts because a written agreement was executed for a stated consideration of "$1.00 and other valuables and consideration", while in Dixon the agreement was only "tacit" and supported by the government's promise not to prosecute. This Court can not say as a matter of law these agreements are the same when plainly they are different.
In MacDonald, petitioner under the charge of drunken driving was asked by the Court to stipulate to probable cause in exchange for the prosecution's dismissal of the charge. When petitioner refused, because such stipulation would bar a civil action, the prosecution was allowed to amend its complaint and added a second charge, upon which the petitioner was eventually convicted. The appellate court stated that
[w]e do not mean that the prosecutor cannot present such a criminal charge. What he cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter's civil case. (425 F.2d at 375.)
MacDonald, therefore, can be distinguished from this case because no agreement was reached separate and apart, supported by its own consideration and in writing from the action on the criminal charges. This Court can not find as a matter of law that this case and MacDonald are the same although the reality of the outcomes are similar.
Plaintiff also argues that this release is an invalid use of plea bargaining. Citing only one case which generally affirms the necessity of plea bargaining in our system of criminal justice, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), plaintiff does not show any authority to confirm her argument. Without clear precedent to guide the decision of this Court, it can not be said that such a release as a matter of law is unenforceable as an invalid use of plea bargaining or that it is even a form of plea bargaining.
Plaintiff's last argument states that by contract law in Illinois this release is void and unenforceable as a matter of law and constitutes compounding crime. While this may be the case, this Court can not find that the release on its face is violative of either the case law or the statute (Ill.Rev.Stat. Ch. 38, § 32-1). Whereas in Bucher v. Krause, supra, the release specifically stated that the consideration given for the promise not to bring civil action was dismissal of the criminal charges by the prosecution, the release in this case recites monetary and other consideration. The underlying factual circumstances surrounding the release, however, are crucial to the disposition of this case and consequently can only be resolved at trial. Thus this Court can not rule on those questions of fact at this stage of the proceedings. In view of the criticality of the release validity question the Court will order that the single issue of the validity of the release will be tried prior to the trial of the other issues concerning liability and alleged damages.
Plaintiff's motion for summary judgment on the validity and enforceability of the release is therefore denied and all parties are dismissed from this case except the two officers Adams and Hofman.
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364 F.Supp. 787 (1973)
ATLANTIC TUBING & RUBBER COMPANY
v.
INTERNATIONAL ENGRAVING COMPANY.
Civ. A. No. 5142.
United States District Court, D. Rhode Island.
September 21, 1973.
*788 George M. Vetter, Jr., Robert A. Lusardi, Providence, R. I., for plaintiff.
Thomas C. Angelone, Providence, R. I., for defendant.
OPINION
PETTINE, Chief Judge.
This is a products liability action based on theories of negligence, breach of warranty, and breach of contract for damages resulting from a fire which ignited at plaintiff's plant in Cranston, Rhode Island when an embossing roll manufactured by the defendant allegedly malfunctioned. The plaintiff is a corporation incorporated under the laws of the State of Rhode Island and having its principal place of business in the State of Rhode Island, while the defendant manufacturer is incorporated under the laws of the State of New Jersey and having as its principal place of business the State of New Jersey. Jurisdiction is alleged upon diversity of citizenship and an amount in controversy exceeding $10,000, 28 U.S.C. § 1332.
The defendant has moved to dismiss the complaint pursuant to the provisions of Rule 12(b)(2) of the Fed.R.Civ.P. claiming that this Court lacks in personam jurisdiction over the defendant.
FACTS
In 1965 the defendant, International Engraving Company, contracted, upon unsolicited request by telephone of the plaintiff, to manufacture and sell to the plaintiff for $1,566 an embossing roll for use in plaintiff's Rhode Island plant. On March 25, 1972, plaintiff charges that this embossing roll failed causing extensive damages to its plant.
The defendant asserts that it maintains no sales office in Rhode Island, employs no agent located in Rhode Island, and does no advertising or soliciting of business in Rhode Island. Further, the defendant maintains that between 1967 and 1971, its total sales in Rhode Island amounted to less than $9,000 and that the sale to Atlantic Tubing which is the subject matter of this controversy was its sole contact with Rhode Island in 1965. However, the 1965 sale to Atlantic Tubing & Rubber Company is not defendant's sole contractual relationship with this specific *789 Rhode Island plaintiff; the defendant has continued to make sales to the plaintiff and all but $3,600 of its total sales to Rhode Island since 1967 have been made to plaintiff. Also, while defendant's salesman has made only one visit to Rhode Island during this period, he did visit the plaintiff's plant on this trip. Since 1965, International Engraving's gross sales have averaged approximately $1,000,000 per year.
IN PERSONAM JURISDICTION
The limitations on in personam jurisdiction over a non-resident individual or corporation are twofold. The establishment of "minimum contacts" by the non-resident with the forum state must be in accordance with both federal constitutional limitations and with the law of the state in which the court sits. Westphal v. Stone Manufacturing Company, 305 F.Supp. 1187, 1190 (D.R.I. 1970).
Sec. 9-5-33, Rhode Island General Laws (1956), as amended, provides the statutory "long arm" jurisdictional basis for the courts of Rhode Island. It states:
"9-5-33. Jurisdiction over foreign corporations and over nonresident individuals, partnerships, or associations. Every foreign corporation, every individual not a resident of this state or his executor or administrator, and every partnership or association, composed of any person or persons, not such residents, that shall have the necessary minimum contacts with the state of Rhode Island, shall be subject to the jurisdiction of the state of Rhode Island, and the courts of this state shall hold such foreign corporations and such nonresident individuals or their executors or administrators, and such partnerships or associations amenable to suit in Rhode Island in every case not contrary to the provisions of the constitution or laws of the United States."
This Court has consistently held that "[f]rom the plain language of the statute it will be seen that the legislature of Rhode Island has chosen to exercise jurisdiction over foreign corporations up to the constitutional limitations." Del-Sesto v. Trans-World-Airlines, Inc., 201 F.Supp. 879 (D.R.I.1962); Scott Brass, Inc. v. Wire and Metal Specialties Corporation, 344 F.Supp. 711, 713 (D.R.I 1972); Westphal v. Stone Manufacturing Company, supra; Forsythe v. Cohen, 305 F.Supp. 1194, 1196 (D.R.I.1969). Supporting this position, the Rhode Island Supreme Court in Conn v. ITT Aetna Finance Co., et al., 105 R.I. 397, 252 A.2d 184 (1969) wrote:
"* * * That act made foreign corporations and nonresidents individuals having the necessary `minimum contacts' with this state amenable to the jurisdiction of our courts subject only to whatever limitations might be imposed by the constitution or laws of the United States; in substance and in effect, it empowers our courts * * * `to exercise jurisdiction over foreign corporations up to the constitutional limitation.'"
Therefore, a defendant whose contacts with the State of Rhode Island are sufficient to satisfy the due process requirements of the Fourteenth Amendment to the federal constitution is subject to the jurisdiction of the courts of Rhode Island.
Until International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), personal jurisdiction of courts to render in personam judgments required a party's presence within the territorial jurisdiction of the court. However, the court in International Shoe stated the test as follows:
". . . due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"
326 U.S. at 316, 66 S.Ct. at 158. *790 The United States Supreme Court subsequently elaborated on this test in McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed. 2d 223 (1957) when in upholding personal jurisdiction over a defendant foreign insurance company in an action arising from a single life insurance policy purchased by a resident of the state, the court noted the clearly discernible trend "toward expanding the permissible scope of state jurisdiction over foreign corporations" in light of the "fundamental transformation of our national economy over the years."
However, the court in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) seemed to retrench and warned that this trend had not obliterated judicial respect for state boundary lines. The Court said:
"The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. . . ."
Id. at 253, 78 S.Ct. at 1240.
As this Court wrote in Riverhouse Publishing Co. v. Porter, 287 F. Supp. 1, 9 (D.R.I.1968):
". . . the mere solicitation of business in this state by salesmen of the foreign corporation does not subject it to the jurisdiction of this court. It is the quality and nature of the activity in Rhode Island which the court finds significant."
However, what quantity and quality of contacts are necessary cannot be determined by any formula, but must be "worked out with reference to the facts of a particular case" taking into account "a multitude of various factors as they are presented." Westphal v. Stone Manufacturing Company, supra; Riverhouse Publishing Company v. Porter supra. Nonetheless, the First Circuit has recently enunciated in Whittaker Corporation v. United Aircraft Corporation, 482 F.2d 1079 (1973) a number of factors which must be considered. They include the nature and the purpose of the contacts, the connection between the contacts and the cause of action, the number of contacts, the interest of the forum, and the convenience and fairness to the parties. Analysis of this problem according to these guidelines is appropriate.
In Whittaker, the First Circuit decided that one who does no more than enter into a single manufacturing agreement to purchase from a resident of the forum state has insufficient contact with the forum state to satisfy minimum due process requirements. Correspondingly, this Court in Scott Brass v. Wire and Metal Specialties Corporation, 344 F.Supp. 711 (D.R.I.1972) and Leesona Corporation v. Concordia Mfg. Company, 312 F.Supp. 392 (D.R.I.1970) exercised jurisdiction after a finding of "substantial business activity between the Rhode Island plaintiff and the defendant." However, the nature of the contact involved in Scott Brass, Leesona, and Whittaker is substantially different from that before the Court today. None involved a products liability cause of action. Each case revolved around a simple breach of contract. This case presents the situation where a tort has been committed within the forum state [see Gray v. American Radiator and Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir. 1969)] as a result of an allegedly defective product manufactured by the defendant with full knowledge that it was to be used in the State of Rhode Island. As this Court noted in both Westphal v. Stone Manufacturing Co., supra, and Samson Cordage Works v. Wellington Pure Mills, Inc., 303 F. Supp. 155 (D.R.I.1969), the situs of a tort is an important factor in deciding *791 jurisdictional questions. Clearly, a state has a strong interest in preventing its citizens from physical and property damage from tortious action committed within the state. However, in both Leesona and Scott Brass the defendant had explicitly solicited business from the state and conducted systematic and substantial business in Rhode Island; therefore, the court was not forced to decide the jurisdictional issue in the absence of either of these factors. Consequently, these decisions are dispositive only to the extent that they recognize that the "totality of the contacts" both "quantitatively and qualitatively" must be such as to "not offend traditional notions of fair play and justice."
This case presents a situation involving a relatively isolated event or transaction. Without doubt the most significant developments in modern thinking and practice respecting jurisdiction concern the increasing acceptance of specific jurisdiction based on isolated events or episodes.[1] Furthermore, the comments to § 37 of the Restatement Second of the Conflict of Laws concludes that a state may "exercise judicial jurisdiction over an individual who has caused effects in the state by an act done outside the state as to causes of action arising from these effects if the individual had reason to foresee that the act would have effects within the state and the relationship of both the plaintiff and the defendant are sufficient to make the exercise of jurisdiction reasonable."
This Court recognizes that a corporation may be constitutionally amenable to jurisdiction in a tort action even if it has carried on only isolated or sporadic activity within the forum state, so long as the alleged tort grew out of that activity. Several courts, beginning with Gray v. American Radiator, supra, have dealt specifically with tortious injury resulting from defectively manufactured products and a comparison is useful. In Gray, an Illinois resident was injured when a water heater manufactured by the defendant and originally sold to another independent foreign middle man exploded after purchase and placement in Illinois. Without any detailed discussion of defendant's contacts, the court assumed that "it is a reasonable inference that [the defendant's] commercial transactions like those of other manufacturers, result in substantial use and consumption in this state." The court distinguished the requirement of Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 that the business of the foreign corporation in the forum state be of "sufficiently substantial nature" as applying particularly to cases where the cause of action arose from activities distinct from its conduct within the state. Instead, the Supreme Court of Illinois decided that the Hanson v. Denckla test is met where a corporation elects to sell its products for ultimate use in another state.
Unlike American Radiator, International Engraving did more than simply put its product into the stream of commerce uncertain as to its eventual destiny. International Engraving specifically and knowingly contracted to manufacture, sell, and ship its product to the forum state. American Radiator clearly bases its decision on contemporary notions of "fairness and justice." While it may be argued that American Radiator states only that substantial contacts will be presumed if the defendant is a mass producer whose goods regularly flow in interstate commerce [Liberty Mutual Insurance Company v. American Pecco Corporation, 334 F. Supp. 522, 524 (D.D.C.1971)], the better view is that from American Radiator has been developed the test that due process is met if it is foreseeable that one's products may ultimately come to rest in a particular state and may potentially *792 cause injury therein. A series of recent federal decisions[2] have subsequently held that the foreseeability requirement is satisfied when a manufacturer had actual knowledge of the destiny of his product without reference to a need to assume additional substantial contacts.
In Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir. 1969), a British corporation whose sole enunciated contact with the state of Hawaii was the presence of coach bodies in Hawaii manufactured by Duple with knowledge of their eventual destination was held to be within the jurisdiction of the State of Hawaii for injuries relating to the malfunctioning of Duple's product. Duple claimed no other contacts with the State of Hawaii other than this single contract. The court wrote:
"We do not regard it as offensive to fair play or substantial justice or an undue burden on foreign trade to require a manufacturer to defend his product wherever he himself has placed it, either directly or through the normal distributive channels of trade. If it is clearly foreseeable as a result of trade with a foreign state that injury from a defective product (if it occurs) would occur in that state, the hardship of defending the product in that state in our judgment must be assumed as an attribute of foreign trade."
417 F.2d at 235.
Similarly, the Ninth Circuit granted jurisdiction to the State of Alaska over one defendant who supplied materials to a contractor knowing that they would be used in the construction of a building in Alaska and over another foreign defendant who simply provided designs for use in the same building. Jones Enterprises, Inc. v. Atlas Service Corporation, 442 F.2d 1136 (9th Cir. 1971). The court declared that the existence of an effect in the forum state cannot without more create in personam jurisdiction in that state but "when the activities complained of create a substantial risk of injury in [that] state" and "the defendant purposely sets his product or his designs into the stream of commerce, knowing or having reason to know that they will reach the forum state," due process is met. On the other hand, the same court denied jurisdiction to an Idaho court over a South Dakota physician who gave a patient a prescription which was eventually filled in Idaho and harmed the plaintiff in Idaho because the court felt that in the case of personal services, the place where the services are rendered is the critical location. Further, the court felt that public policy would be ill served if a doctor could be forced to defend wherever a patient may travel. Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972).
These cases illustrate the need for individual analysis in order to satisfy "traditional notions of fair play and justice." The court has the flexibility to distinguish between the local dealer who deals primarily on an intrastate basis or who additionally sells to individuals passing through his residence and a company who regularly introduces his products into interstate traffic. In effect, this may amount to little more than a restated utilization of the foreseeability test. The court in In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220, 233-234 (6th Cir. 1972) stated the reality of the situation accurately:
"The existence of substantial interstate business in general cannot substitute for some direct contacts with the forum state . . . but . . . the general interstate involvement of the defendant is suggestive of the latter's expectation that it *793 may be involved in litigation far from its home base."
The court in Duple Motor Bodies, Inc., supra, recognized the need for limiting jurisdiction to those defendants for whom it is clearly foreseeable as a result of its business transactions that injury from a potentially defective product would occur in the forum state. Citing Keckler v. Brookwood Country Club, 248 F.Supp. 645, 649 (N.D.Ill.1965), the court stated:
"When a manufacturer voluntarily chooses to sell his product in a way in which it will be . . . transported from state to state, he cannot reasonably claim to be surprised at being held to answer in any state for damages the product causes."
However, the knowing and intentional manufacture and sale by defendant of its product for use in the forum state satisfied this test in Duple Motor Bodies, Inc. without discussion of the "national" character of the defendant's business. The Second Circuit echoed these views last year when it noted in Leasco Data Processing Equipment Corporation v. Maxwell, 468 F.2d 1326, footnote 11 (2d Cir. 1972) that in the area of products liability for defective products,
"courts have been careful to distinguish the test for liability in tort from that for personal jurisdiction"
stating:
"[I]t is clear that activity in interstate commerce must be sufficiently extensive and regular to make this possibility a foreseeable risk of the business."
As in Duple Motor Bodies, Inc., the court indicated in Leasco that the test was clearly met where a tortfeasor is specifically aware that his product might cause injury in the very state seeking to subject him to suit.[3] Thus, the flexibility of the court to decide personal jurisdiction on a case by case basis where jurisdiction is related to isolated or sporadic activity is an absolute necessity to satisfy due process requirements.
In the present action, the defendant by express contract with the Rhode Island plaintiff knowingly and intentionally manufactured its product for use in the State of Rhode Island. Since the transaction in question, the defendant has shipped additional equipment to the plaintiff in Rhode Island according to several subsequent contracts. There is no doubt of the defendant's awareness of the destination of the equipment. As the court in In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220, 226 (6th Cir. 1972) wrote:
"An essential element of such `fairness' in our society has always been that a person is not asked to bear a special burden (such as defending in a foreign forum) unless he has done something in a purposeful manner or with such knowledge as to make his deeds the equivalent of purposeful action. The Hanson v. Denckla requirement is simply designed to avoid the situation where the `unilateral activity' of the plaintiff can drag an unsuspecting and unwilling defendant into a foreign forum. See Hanson v. Denckla, 357 U.S. at 253, 78 S.Ct. 1228."
In light of the particular facts of this products liability action against the manufacturer of the allegedly defective product, jurisdiction in the State of Rhode Island is proper. The fact that the defendant alleges that it does not advertise or solicit business in Rhode Island does not prevent this Court from asserting jurisdiction where in the ordinary course of its business the defendant voluntarily, knowingly, and intentionally ships equipment to the State of Rhode Island for use therein. However, as with every case involving the assertion *794 of jurisdiction over a foreign defendant, the particular facts presented must be analyzed to ensure that "traditional notions of fair play and substantial justice" are not offended.
The defendant's motion to dismiss is hereby denied.
NOTES
[1] Trautman and vonMehren, "Jurisdiction to Adjudicate: A Suggested Analysis," 79 Harv.L.Rev. 1121, 1148 (1966). McGee v. International Life Insurance Company, supra.
[2] Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir. 1969); Leasco Data Processing Equipment Company v. Maxwell, 468 F.2d 1326 (2d Cir. 1972); Jones Enterprises, Inc. v. Atlas Service Corporation, 442 F.2d 1136 (9th Cir. 1971); Liberty Mutual Insurance Co. v. American Pecco Corporation, supra; Keckler v. Brookwood Country Club, 248 F.Supp. 645, 649 (N.D.Ill.1965).
[3] Several federal decisions concur in this reasoning. Liberty Mutual Insurance Co. v. American Pecco Corporation, supra; Jones Enterprises, Inc. v. Atlas Service Corporation, supra; LTM Corporation et al. v. Edward M. Livingston and Sons, Inc., 339 F. Supp. 1270 (E.D.Pa.1972); Rosen v. Savant Instruments, Inc., 264 F.Supp. 232 (E.D.N. Y.1967).
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389 S.E.2d 734 (1989)
Harry MANN as Ancillary Executor of the Estate of Irene Mann
v.
Sheldon GOLUB; Howard Golub; Sidney Blau; Senior Towers Associates; Michael Zukerman; and Sidgo Realty Company.[*]
No. 18376.
Supreme Court of Appeals of West Virginia.
July 13, 1989.
On Rehearing February 22, 1990.
*735 John C. Skinner, Nichols & Skinner, Charles Town, for Harry Mann.
Anthony Labozzetta, New York City, for Golubs & Blau.
Charles F. Printz, Jr., Riche, Douglas and Shingleton, Martinsburg, for Senior Towers Assoc.
L. Alvin Hunt, Hunt and Wilson, Charleston, for Michael Zukerman.
PER CURIAM:
Harry Mann appeals from a final order of the Circuit Court of Berkeley County entered April 13, 1987. Mann asserts that the trial court erred: (1) by converting his remedy from one seeking money damages to specific performance; (2) by designating the jury as advisory; and (3) by refusing to allow him to testify as an expert witness. We agree and remand with directions.
In 1975, Mann approached Sidney Blau, Sheldon Golub, and Howard Golub, three of the appellees, about forming a partnership to build a senior citizen housing project in Martinsburg, West Virginia. Mann explained that there was a need for senior citizens housing in West Virginia, and that the West Virginia Housing Development Fund (the Fund) would help finance the project.[1]
On October 22, 1975,[2] the four men and Seymour Siegel formed a partnership called Senior Housing Associates.[3] The appellees were limited partners and the primary investors in Senior Housing Associates. Irene Mann, the appellant's wife, was a general partner,[4] as was Sidgo Realty, a partnership owned by the Golubs and Blau. Ultimately, the appellees owned 75% and Irene Mann owned 25% of Senior Housing Associates.
Mr. Mann was responsible for putting the deal together, and for his services he was to receive a salary of $673.00 a week. He purchased land, had it re-zoned, found a potential builder, and arranged financing. In May, 1978, on the day scheduled for closing, the contractor announced that he could not complete the project without additional funding. Hence, the closing was postponed. Later, the closing was again deferred.
Because of the delays, the Fund terminated Senior Housing Associates as sponsors of the Martinsburg project. The Fund feared that, unless the project progressed, HUD would withdraw the federal money from West Virginia and allocate it elsewhere. Eventually, the Fund agreed to restore Senior Housing Associates' sponsorship under certain conditions; primarily, that Irene Mann be replaced as a general partner. With Ms. Mann as a general partner, the Fund believed it impossible to close the construction loan. A new partner, J. Christopher Enterprises, Inc., owned by John Ferchill, replaced Irene Mann as general partner. This new investment group was called Senior Towers Associates.
Harry Mann prepared a letter stating the consideration for and conditions under *736 which his wife would resign.[5] She was to receive six promissory notes, each valued at $4,700.00 and due in 1982, and one-third of any residual distribution.[6] Because of the problems in closing the project, the appellees insisted on a provision that addressed the possibility that additional investments might be necessary to consummate the deal.[7] The agreement was signed by Sidney Blau, Sheldon Golub, Howard Golub, Sidgo Realty, Inc., and Senior Towers Associates by Sidgo Realty, Inc. Irene Mann then resigned as general partner.
The construction loan closing finally took place in Charleston, West Virginia, in November, 1978. On November 20, 1978, the appellees wrote Attorney Zukerman and advised him that a dispute had arisen with Mann; consequently, they instructed Zukerman to hold the notes in escrow rather than distribute them immediately to Mann. Despite the clause in the agreement "... that if there are any unusual demands by any of the participating parties at the closing, this letter is subject to renegotiation prior to the closing," Mann testified that he was not approached by the appellees before the closing about renegotiation of the contract. The appellees do not dispute this testimony; however, they contend that the withholding of the notes was justified because they were required to invest additional money at the closing. Immediately thereafter, the Golubs and Blau resigned from the partnership.
In 1980, the appellant, as fiduciary for his wife's estate,[8] filed this suit in Berkeley County, West Virginia. The complaint alleged breach of contract and sought money damages. The case was tried in March, 1987. At the close of all the evidence, the trial court ruled:
We're in effect in a specific performance posture either as a result of lack of evidence or with rulings with respect to the court as matters of law. That's what we're left with; specific performance is an equitable proceeding. The jury therein is not absolute and is generally an advisory jury for the benefit of the court.
With respect to any verdict of the jury, the verdict should be directed as to the issue of whether or not the plaintiffs, the plaintiff is entitled to the eight notes or the proceeds thereof or whether the defendants are entitled to the eight notes or the proceeds thereof.[9]
The jury returned a verdict granting the appellant six of the eight notes. The trial court accepted this verdict and entered an order dated April 13, 1987.
Initially, we observe that the appellant filed this action as a breach of contract and sought not specific performance, but money damages. Although the case was pled and tried as an action for damages, at the close of all the evidence the trial court sua sponte ruled the case to be one for specific performance and allowed the jury only to advise as to who should have physical possession of the promissory notes.
*737 It is a well established principle of law that the injured party is entitled to select his remedy. As explained in 1 Am. Jur.2d, Actions § 31 (1962):
Contracts sometimes provide a remedy or remedies to which the parties may resort upon breach thereof. If the contract specifically provides that the remedies enumerated shall be the only course of settlement, a party to it is limited to the remedies mentioned. Where, however, there is no limitation in the contract which makes the remedies enumerated therein exclusive, a party is entitled to the remedies thus specified, or he may at his election pursue any other remedy which the law affords. Thus, the common law right to sue upon a written obligation is not affected by the remedies provided in a mortgage securing it, unless such right is excluded by the express terms of the mortgage or by necessary implication.
Citing Fleming v. Fairmont & M.R. Co., 72 W.Va. 835, 79 S.E. 826 (1913). (Other citations omitted.) (Emphasis added.)[10]
Implicit in a party's right to choose the remedy he wishes to pursue is a prohibition against the trial court's changing the chosen remedy. In this case, there was never any question that the appellant sought money damages and not specific performance. After all the evidence had been presented, the trial court announced that the evidence presented allowed only for the remedy of specific performance. It is not within the trial court's province to dictate what remedy a party must seek.[11] If a trial court finds that the evidence is legally insufficient to sustain the relief requested, the trial court should dismiss the action pursuant to Rule 41(a)(2) or direct a verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure.
The appellant argues that by converting the remedy from money damages to specific performance, the trial court denied the appellant his constitutional right to a jury trial. The appellant is correct that art. III, § 13 of the West Virginia Constitution[12] gives an absolute right to a jury trial in actions at law when the matter in controversy exceeds twenty dollars. Matheny v. Greider, 115 W.Va. 763, 177 S.E. 769 (1934). Indeed, we held in syllabus point 2 of Matheny v. Greider, supra:
*738 When a trial by jury has been demanded in an action involving more than $20.00, the impaneling of a jury to try the issue is a jurisdictional requirement, and a judgment rendered without complying with it is void.
E.g., State ex rel. W.Va. Truck Stops v. McHugh, 160 W.Va. 294, 233 S.E.2d 729 (1977); Stephenson v. Ashburn, 137 W.Va. 141, 70 S.E.2d 585 (1952).
In the instant case, the appellant did have a jury trial[13] on the issue of liability. By awarding the six promissory notes to the appellant, the jury necessarily determined that the appellees breached the contract. We will not disturb this finding. The only issue which needs to be resolved is to calculate the current value of the notes.[14] Each of the notes was for the face value of $4,700 and provided interest at the rate of 8-½% per annum until the due date of the note, January 15, 1982. An interest rate of 8-½% per annum should be used to calculate the value of the notes from the date of issue until the due date. At this point, because the damages are liquidated, W.Va. Code, 56-6-31 (1981),[15] becomes applicable and interest on the entire amount of principal and accumulated interest, as of January 15, 1982, shall then be determined. From January 15, 1982, until the judgment is paid, the interest shall be calculated at 10% per annum.
For the reasons stated herein, this proceeding is remanded to the Circuit Court of Berkeley County with instructions to calculate the value of the six promissory notes.[16]
Remanded with directions.
ON REHEARING
On August 14, 1989, Harry Mann petitioned this Court for a rehearing. Mr. Mann contends that the trial court committed reversible error when it granted Senior Towers Associates' motion for a directed verdict.[*] Mr. Mann asserts that he will not be able to collect his judgment unless Senior Towers Associates is a party to the proceeding.
In an order dated October 27, 1989, we granted Mr. Mann's petition and directed both parties to respond to the following issues: "(1) whether the trial court committed reversible error by directing a verdict in favor of Senior Towers Associates; and (2) whether one party who has erroneously been directed out of the case at the conclusion of all the evidence can still be bound on the judgment if it can be shown as a matter of law that such party's liability is the same as that of co-defendants who have been found liable by the jury."
We find that the law is clear that a partner acting on behalf of the partnership binds the partnership, and, if such partner is found liable to a third party for such acts, then the partnership is also liable. See W.Va. Code, 47-8A-9(1) and -13 (1953). See also Belmont County Nat'l Bank v. *739 Onyx Coal Co., ___ W.Va. ___, ___ n. 2, 350 S.E.2d 552, 554 n. 2 (1986); Pruitt v. Fetty, 148 W.Va. 275, 134 S.E.2d 713 (1964). See generally Rowley, The Law of Partnership § 9.0(3) (2d ed. 1960); 59A Am.Jur.2d, Partnership § 647 (1987 & Supp.1989).
Here, the facts are not in dispute. The partnership agreement provides that the signature of a general partner on a contract is binding on the partnership. The contract between Mr. Mann and the appellees was signed by Sidgo Realty Company, a general partner. Moreover, it is clear that the contract was executed for the benefit of the partnership. Finally, neither party asserts that the general partner acted outside of the scope of its authority. In light of the foregoing, we find that Senior Towers Associates was a party to the contract and would be liable for breach of the contract as a matter of law once liability was established against a partner.
The partnership, Senior Towers Associates, was directed out of the case at the close of all the evidence. This was done after the trial court converted Mr. Mann's chosen remedy of damages to a request for specific performance, i.e., who was entitled to possession of the promissory notes. The trial court found that since the partnership did not have the notes in its possession, the remedy of specific performance was unavailable against it.
In the foregoing opinion, we found this action on the part of the trial court to be error. We held that the plaintiff was entitled to obtain damages equal to the value of the notes plus interest. With the partnership liability established as a matter of law, it was error for the trial court to dismiss the case.
In the past where an error of law has been made on a conclusive factual record, we have rectified the error by entering a proper judgment on appeal. For example, in Estate of Bayliss by Bowles v. Lee, ___ W.Va. ___, 315 S.E.2d 406 (1984), the trial court, based upon a stipulation of the facts, had rendered judgment against one of the parties. On appeal, we concluded that the trial court had committed several legal errors and that, based on the stipulated facts and the law, the other party was entitled to judgment. We then entered judgment for the appellant and stated in Syllabus Point 5:
"`When, upon the trial of a case, the evidence decidedly preponderates against the verdict of a jury or the finding of a trial court upon the evidence, this Court will, upon review, reverse the judgment; and, if the case was tried by the court in lieu of a jury, this Court will make such finding and render such judgment on the evidence as the trial court should have made and rendered.' Syllabus Point 9, Bluefield Supply Co. v. Frankel's Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965)."
See also Huntington Dev. & Gas Co. v. Topping, 115 W.Va. 364, 176 S.E. 424 (1934); McKown v. Citizens' State Bank of Ripley, 91 W.Va. 716, 114 S.E. 271 (1922).
Here the evidence regarding the partnership's liability was not in dispute. The only reason the partnership was dismissed from the case was the trial court's erroneous decision to convert the plaintiff's case from a suit for damages to one seeking recovery of the promissory notes.
In order to rectify the error in our initial opinion, we award the plaintiff damages equivalent to the value of the notes together with interest. For the reasons set out on this rehearing, we award a similar judgment against the partnership, Senior Towers Associates.
NOTES
[*] Editor's Note: This opinion was originally published at 384 S.E.2d 847. It is published here with the on rehearing opinion.
[1] The West Virginia Housing Development Fund provides the loans which are guaranteed by the U.S. Department of Housing and Urban Development (HUD).
[2] The record is unclear as to when the partnership was formed. The partnership agreement is dated October 22, 1975; however, the appellants' brief states that the partnership was formed in 1977.
[3] Seymour Siegel resigned from the partnership in August, 1977, and is not a party to this proceeding.
[4] It is undisputed that Irene Mann acted solely as a figurehead for her husband, the appellant. Mann could not serve as a general partner in the partnership because he had previously been a member of a partnership that had declared bankruptcy.
[5] The November 9, 1978, letter provided, in pertinent part:
Dear Mr. Zukerman:
You are hereby authorized to release to Irene Mann after the closing with HUD of Senior Towers of the construction loan, six (6) notes, each in the amount of $4,700.00 due in 1982.
Sidney Blau will hold in escrow two (2) notes each in the amount of $4,700.00 for any contingencies.
It is further agreed that Irene Mann or her assigns shall be entitled to 1/3 of any residual distribution which shall be made up to the undersigned including any payments of the wrap-around mortgage.
It is further understood that if there are any unusual demands by any of the participating parties at the closing, this letter is subject to renegotiation prior to the closing.
(Emphasis in original.) Mr. Zukerman was the partnership's attorney.
[6] Although not defined in the partnership agreement or in the November 9, 1978, contract, Mann testified that residual distribution was "... all monies after the payment of the mortgage, interest, taxes and expenses of the project."
[7] See footnote 5, infra.
[8] Irene Mann died in March, 1979.
[9] Moreover, the trial court directed a verdict for Senior Towers Associates. Because Senior Towers Associates was a party to the contract, it appears that the trial court erred. Neither party asserts that Senior Towers Associates is a necessary party to assure collection on the notes; thus, we do not deem this error to be reversible.
[10] E.g. Johnson v. National Exchange Bank of Wheeling, 124 W.Va. 157, 19 S.E.2d 441 (1942) (at the election of the injured party, the tort involved in the conversion of one's property can be waived, and indebitatus assumpsit relied upon for recovery); Inter-Ocean Casualty Co. v. Leccony Smokeless Fuel Co., 123 W.Va. 541, 17 S.E.2d 51 (1941) (a person wronged by conversion of money or property, may waive the tort and recover on contract); Eads v. Marks, 39 Cal. 2d 807, 249 P.2d 257 (1952) (contractual negligence ordinarily gives rise to an action either on contract or in tort, and the injured party may at his election waive the tort and sue on contract); Rawls Bros. Co. v. Paul, 115 Ga. App. 731, 155 S.E.2d 819 (1967) (a party is entitled to elect his remedy); Community Ins. Agency, Inc. v. Kemper, 426 N.W.2d 471 (Minn. App. 1988) (a vendor may elect cancellation of a contract or sue for general damages when a vendee defaults under a contract for deed); J.M. Hamilton Co. v. Battson, 99 Mont. 583, 44 P.2d 1064 (1935) (a party is entitled to pursue any remedy the law affords); State Mut. Cyclone Ins. Co. v. O & A Electric Co-op., 5 Mich.App. 452, 146 N.W.2d 823 (1966), rev'd on other grounds, 381 Mich. 318, 161 N.W.2d 573 (1968) (election of a remedy is up to the injured party and his measure of damages depends on the remedy he elects); Bishop v. Associated Transp., Inc., 46 Tenn.App. 644, 332 S.W.2d 696 (1959) (where a breach of covenant in a lease also constitutes a tort, the lessor may elect to bring his action in contract rather than in tort).
[11] Even if the trial court's action were permissible, it would have erred by converting an adequate legal remedy to an equitable one. It is well established that a party cannot seek specific performance if he has an adequate remedy at law. Manning v. Bleifus, 166 W.Va. 131, 272 S.E.2d 821 (1980); Floyd v. Watson, 163 W.Va. 65, 254 S.E.2d 687 (1979); see generally, 17 Michies Jurisprudence, Specific Performance § 5 (1979 and supp.). Our discussion of the appellant's right to choose his remedy does not detract from this rule. In this case, appellant's counsel could have confidently advised his client that specific performance was unavailable. Hence, the appellant's choice of damages as his remedy is hardly surprising.
[12] Article III, § 13 of W.Va. Const. provides, in pertinent part:
In suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved...
[13] Though the trial court designated the jury as advisory, he sustained its factual findings. Because there is no conflict between the jury's "advice" and the court's judgment, that advice was the functional equivalent of a verdict.
[14] The contract also states that "Irene Mann or her assign shall be entitled to 1/3 of any residual distribution...." The undisputed evidence was that there was no residual distribution; thus, the trial court properly refused to allow this aspect of damages to go to the jury.
[15] West Virginia Code § 56-6-31 (1981) provides:
Except where it is otherwise provided by law, every judgment or decree for the payment of money entered by any court of this State shall bear interest from the date thereof, whether it be so stated in the judgment or decree or not: Provided, that if the judgment or decree, or any part thereof, is for special damages, as defined below, or for liquidated damages, the amount of such special or liquidated damages shall bear interest from the date the right to bring the same shall have accrued, as determined by the court. Special damages includes lost wages and income, medical expenses, damages to tangible personal property, and similar out-of-pocket expenditures, as determined by the court. The rate of interest shall be ten dollars upon one hundred dollars per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time, notwithstanding any other provisions of law.
[16] Because we are remanding this case solely to determine the value of the promissory notes, we need not address whether the trial court erred in refusing to allow Mann to testify as an expert witness.
[*] See note 9, supra.
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208 S.E.2d 203 (1974)
23 N.C. App. 48
STATE of North Carolina
v.
Barry Dean LINDLEY.
No. 7419SC606.
Court of Appeals of North Carolina.
September 18, 1974.
*204 Atty. Gen. Robert Morgan by Asst. Attys. Gen. H. A. Cole, Jr. and Thomas B. Wood, Raleigh, for the State.
Dark & Edwards by Phil S. Edwards, Siler City, for defendant appellant.
PARKER, Judge.
Defendant first assigns as error the court's ruling allowing the officer to testify to his opinion that defendant was under the influence of some type of drug. In this connection defendant points out that there was no showing that the witness had any expertise in such matters. However, our Supreme Court has held that a lay witness may state his opinion as to whether a person is under the influence of drugs when the witness has observed the person and such testimony is relevant to the issue being tried. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971). On authority of those decisions, defendant's first assignment of error is overruled.
Defendant's second assignment of error is that the court erred in not allowing defendant's attorney to cross-examine the officer concerning other possible causes of defendant's impairment. On cross-examination the officer admitted that he did not eliminate the possibility that defendant might have had an inner ear infection, but then testified that he had asked the defendant if he had diabetes, if he had any physical defects, if he was sick, if he limped, if he had been injured, if he had seen a doctor or dentist lately, or if he had been taking any kind of medication, to all of which questions defendant had answered "no." Only after this testimony did the court sustain an objection when defendant's counsel asked the officer whether he had eliminated "all the other possibilities."
Control over the manner and extent of cross-examination is a matter within the sound discretion of the trial court, and its rulings in this regard should not be disturbed except when prejudicial error is made to appear. State v. Diaz, 14 N.C.App. 730, 189 S.E.2d 570 (1972). In the present case no attempt was made to place in the record what the witness would have said had he been permitted to answer, and we can see no way in which defendant could have been prejudiced when, after permitting extensive cross-examination, the court finally sustained an objection to the broadside and somewhat repetitious question asked by defendant's counsel. Defendant's second assignment of error is overruled.
The next assignment of error discussed in defendant's brief relates to a remark made by the trial judge after the case had been submitted to the jury. The jury had commenced deliberations and the judge called them back into the courtroom for the evening recess. After ascertaining that they had not agreed on a verdict, the judge said:
"Well, I guess you want to go to supper now, don't you? Maybe you will feel better in the morning, fresh and be able *205 to agree on something. How come everybody got so stubborn? That other jury hasn't agreed yet.
"I hope you will weigh and consider everything and the law that the court gave you, and be able to agree some way in the morning. We will let you go today. Don't talk to anybody about the case. Don't let anybody talk to you. Don't talk to each other, if any of you happen to be together. Come back in the morning and go directly to that same jury room, and when all twelve are present, you begin your deliberations. Do what you think is right based upon the evidence and the law that the court gave you. That is all anybody wants you to do."
Defendant contends that by this statement the court intimated that the jury should have already found him guilty and that not to have done so was stubbornness on their part. The court's statement, however, expressed no opinion as to what the jury's verdict should be, nor was the statement, when considered as a whole, in any way coercive. This assignment of error is also overruled.
The evidence in this case, considered in the light most favorable to the State, was sufficient to require submission of the case to the jury, and defendant's assignments of error directed to the denial of his motions for nonsuit are overruled.
In defendant's trial and in the judgment appealed from we find
No error.
CAMPBELL, J., concurs.
VAUGHN, J., dissents.
VAUGHN, Judge (dissenting):
I am not firmly committed to the notion that a lay witness, after stating in detail all the relevant and specific facts observed by him, should not be allowed to state his conclusion based on those facts for whatever weight, if any, the jury may elect to attach to it. As a practical matter I doubt that the results at trial would be affected if all rules to the contrary were discarded.
Given however, that we do recognize a concept called the "opinion rule," I must dissent from the view of the majority that the decisions in Cook and Fletcher require us to hold, without qualification, and contrary to the great weight of authority in this country, that any witness may testify that in his opinion a defendant was under the influence of drugs. As to this question, the law of Cook and Fletcher appears to be only that in those cases the admissions or exclusion of the lay opinion did not constitute prejudicial error so as to require a new trial.
The issue is squarely presented in the case at bar. There is no evidence that the witness had ever seen anyone known to be under the influence of drugs or that he was aware of any symptoms a person under the influence of drugs might display. On the record he was without experience or training relating to drugs. He had never seen defendant before the occasion of the arrest. In my view defendant's first assignment of error is well taken and there should be a new trial.
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