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https://www.courtlistener.com/api/rest/v3/opinions/1324563/ | 689 S.E.2d 811 (2010)
LAWYER DISCIPLINARY BOARD, Complainant,
v.
Kenneth E. CHITTUM, Respondent.
No. 34733.
Supreme Court of Appeals of West Virginia.
Submitted January 12, 2010.
Decided January 29, 2010.
*813 Andrea J. Hinerman, Esq., Office of Disciplinary Counsel, Charleston, WV, Attorney for Complainant.
David L. White, Esq., The Masters Law Firm LC, Charleston, WV, Attorney for Respondent.
PER CURIAM:
This is a lawyer disciplinary proceeding brought against Kenneth E. Chittum (hereinafter "Mr. Chittum") by the Office of Disciplinary Counsel (hereinafter "the ODC") on behalf of the Lawyer Disciplinary Board (hereinafter "the Board"). A Hearing Panel Subcommittee of the Board determined that Mr. Chittum violated seven Rules of Professional Conduct. Consequently, the Hearing Panel Subcommittee recommended the following sanctions: (1) that Mr. Chittum be reprimanded; (2) that he sign and follow a plan of supervised practice for a period of two years with a supervising attorney; (3) that he complete an additional 9 hours of CLE during the 2009-2010 reporting period in the area of ethics and office management over and above that already required; (4) that he have a certified public accountant audit his office accounting records for two consecutive years; (5) that he deliver the personal items of a former client/complainant to a designated place within twenty days of the entry of the Order; and (6) that he pay *814 the costs incurred in this disciplinary proceeding.
Mr. Chittum does not contest the Board's finding that he committed seven violations of the Rules of Professional Conduct. He asks that this Court accept the Board's recommended sanctions as sufficient punishment for his transgressions. On September 3, 2009, we rejected the Board's recommended sanctions and ordered both parties to file briefs in this Court. Having reviewed the Board's recommended sanctions, the stipulated findings of fact, the briefs and arguments of counsel, and all other matters of record, we find that Mr. Chittum violated only four of the seven Rules of Professional Conduct. Nevertheless, we find that the Board's recommended sanctions, as moulded, are appropriate and are hereby imposed.
I.
Standard of Review
In Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), this Court took the opportunity to "resolve any doubt as to the applicable standard of judicial review" in lawyer disciplinary cases. 192 W.Va. at 289, 452 S.E.2d at 380. Thus, Syllabus Point 3 of McCorkle holds:
A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the Committee's recommendations while ultimately exercising its own independent judgement. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.
See also, Syllabus Point 1, Lawyer Disciplinary Board v. Lakin, 217 W.Va. 134, 617 S.E.2d 484 (2005); Syllabus Point 1, Lawyer Disciplinary Board v. Lusk, 212 W.Va. 456, 574 S.E.2d 788 (2002); Syllabus Point 3, Lawyer Disciplinary Board v. Barber, 211 W.Va. 358, 566 S.E.2d 245 (2002).
The above standard of review is consistent with this Court's ultimate authority with regard to legal ethics matters in this State. Syllabus Point 3 of Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), holds: "This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law." See also, Syllabus Point 2, Barber, supra; Syllabus Point 3, Lawyer Disciplinary Board v. Frame, 198 W.Va. 166, 479 S.E.2d 676 (1996).
Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedure provides that, in order to recommend the imposition of discipline of a lawyer, "the allegations of the formal charge must be proved by clear and convincing evidence." See also Lusk, supra, 212 W.Va. at 461, 574 S.E.2d at 793; Syllabus Point 2, Lawyer Disciplinary Board v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995). The various sanctions which may be recommended to this Court are set forth in Rule 3.15.[1]
II.
Factual Background, Charged Violations and Analysis
Mr. Chittum practices law[2] in Mercer County, Bluefield, West Virginia. On February 13, 2009, a two-count statement of ethical *815 violations was filed against Mr. Chittum. One count arose as the result of a complaint filed by a former client, the other complaint was filed by the ODC.
1. Count I Complaint of Deborah L. Stevenson
Ms. Deborah L. Stevenson was incarcerated in a federal prison in Florida in June 2004 when her husband filed for divorce in Mercer County, West Virginia. The Family Court of Mercer County appointed Mr. Chittum to serve as Ms. Stevenson's guardian ad litem and represent her in the divorce proceeding. He was appointed pursuant to a pro bono program and received no fee or reimbursement of expenses. After receiving this appointment, Mr. Chittum initiated a flirtatious long distance telephone and letter writing relationship with Ms. Stevenson. However, Mr. Chittum and Ms. Stevenson never met each other in person.
The final hearing in the divorce proceeding occurred on September 16, 2004. The following day, September 17, 2004, Mr. Chittum sent Ms. Stevenson a letter detailing the final hearing and discussing how he could assist her with a petition for a federal writ of habeas corpus that she was planning to file pro se. Thereafter, Mr. Chittum continued sending Ms. Stevenson flirtatious handwritten letters. In one such letter, he discussed the possibility of getting Ms. Stevenson transferred to Alderson, West Virginia, noting that he could visit her there and raising the possibility of contact visits. Ultimately, Ms. Stevenson was transferred to Alderson without Mr. Chittum's assistance and he has not visited or communicated with her since the transfer occurred.[3]
Shortly after the final divorce order was entered, Ms. Stevenson's ex-husband delivered her personal belongings to Mr. Chittum's office. On October 26, 2004, Mr. Chittum sent Ms. Stevenson photographs of these personal belongings and discussed his efforts to assist her with the writ of habeas corpus petition. Thereafter, Mr. Chittum reviewed her pro se writ of habeas corpus petition in November 2004.
The personal correspondence between Mr. Chittum and Ms. Stevenson continued until March 2005. Approximately six months later, Ms. Stevenson filed her complaint against Mr. Chittum, on September 12, 2005, alleging that he stopped corresponding with her about her legal matters and stopped accepting her collect telephone calls from prison. The complaint also alleges that she made numerous requests that Mr. Chittum deliver her personal belongings to her grandmother and that he repeatedly failed to do so. Mr. Chittum made two attempts to deliver these items to Ms. Stevenson's grandmother who lived in Virginia. On both occasions, Mr. Chittum contacted Ms. Stevenson's grandmother and agreed upon a delivery time and date, and paid someone to load, haul and deliver the items to the grandmother's residence in Virginia. On both occasions, Ms. Stevenson's grandmother was not at home when the delivery arrived. It appears from the record that Ms. Stevenson's grandmother thereafter remarried and moved to Colorado. In August 2008, Mr. Chittum received a letter from an individual in Arizona requesting the items be sent there. Mr. Chittum could not verify whether Ms. Stevenson designated that individual to receive the personal items. To the contrary, in a January 20, 2009, letter to counsel for the Board, and in her deposition for this matter, Ms. Stevenson requests that the personal items be sent to an individual named Diane Lavore, who lives in Annandale, Virginia.
A. Rule 1.3 Diligence
As a result of Mr. Chittum's failure to successfully deliver Ms. Stevenson's personal belongings to her grandmother in a timely manner, the Hearing Panel Subcommittee found that he violated Rule 1.3 of the Rules of Professional Conduct, which provides:
Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Our review of the record does not support this conclusion. Mr. Chittum contacted Ms. Stevenson's grandmother, agreed on a time *816 and date at which he could deliver the belongings and subsequently paid someone to load, haul and deliver the items to her residence in Virginia. Ms. Stevenson's grandmother was not at home when the delivery arrived. After this delivery failed, Mr. Chittum again contacted Ms. Stevenson's grandmother and again they agreed on a time and date at which she would accept delivery. Mr. Chittum again paid someone to load, haul and deliver the belongings to Virginia, and once again, Ms. Stevenson's grandmother was not at home at the agreed upon time. After this second delivery failed, Mr. Chittum kept the belongings in storage. Mr. Chittum left a voice mail message for Ms. Stevenson's grandmother after the second delivery failed, but did not receive a return phone call. The Hearing Panel Subcommittee determined Ms. Stevenson's grandmother remarried and moved sometime after these failed deliveries occurred. Based on the record before us, we do not find that Mr. Chittum's failure to successfully deliver Ms. Stevenson's personal belongings to her grandmother constitutes a violation of Rule 1.3.
B. Rule 1.4(a) Communication
The Hearing Panel Subcommittee found that Mr. Chittum's failure to respond to Ms. Stevenson and her grandmother's inquiries about her legal matters and personal belongings constituted a violation of Rule 1.4(a) of the Rules of Professional Conduct, which states:
Rule 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
Our review of the record indicates that Mr. Chittum did communicate with Ms. Stevenson's grandmother about the personal belongings and twice attempted to deliver these items at his own expense. Furthermore, Mr. Chittum communicated with Ms. Stevenson and kept her fully advised on the divorce proceedings. The divorce proceeding concluded in September 2004, and Mr. Chittum continued communicating with Ms. Stevenson through March 2005. Other than Mr. Chittum's retention of her personal belongings following the conclusion of the matter, Ms. Stevenson was pleased with his handling of her divorce proceeding. Mr. Chittum agreed to advise Ms. Stevenson on her pro se writ of habeas corpus petition and did so. In a December 2, 2004, letter from Mr. Chittum to Ms. Stevenson, he states that he reviewed her petition and "have had another attorney in my office (read it) ... and we believe it is all you can do." Mr. Chittum did not agree to represent Ms. Stevenson regarding her writ of habeas corpus petition.
Ms. Stevenson states that Mr. Chittum thereafter stopped corresponding with her and refused to accept her collect telephone calls from prison. At that time, Mr. Chittum no longer represented her. The pro bono appointment was only for the divorce proceeding and did not obligate Mr. Chittum to provide indefinite, unpaid legal assistance to Ms. Stevenson. We therefore do not find that Mr. Chittum violated Rule 1.4(a) of the Rules of Professional Conduct.
C. Rule 8.4(a), 8.4(d), and 8.4(g) Misconduct
The Hearing Panel Subcommittee also determined that Mr. Chittum's pursuit of a long distance personal relationship with a client in a vulnerable situation reflected adversely on his character and fitness to practice law. While there was no physical contact between the parties, the Board found that Mr. Chittum attempted to develop a sexual relationship with Ms. Stevenson which constituted a violation of Rules 8.4(a), 8.4(d) and 8.4(g) of the Rules of Professional Conduct, which provide:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ...
(d) engage in conduct that is prejudicial to the administration of justice; ...
(g) have sexual relations with a client whom the lawyer personally represents during the legal representation unless a consensual sexual relationship existed between them at the commencement of the *817 lawyer/client relationship. For purposes of this rule, "sexual relations" means sexual intercourse or any touching of the sexual or other intimate parts of a client or causing such client to touch the sexual or other intimate parts of the lawyer for the purposes of arousing or gratifying the sexual desire of either party or as a means of abuse.
Rule 8.4(g) of the Rules of Professional Conduct provides that it is professional misconduct to "have sexual relations with a client whom the lawyer personally represents during the legal representation unless a consensual sexual relationship existed between them at the commencement of the lawyer/client relationship." Based on the plain language of Rule 8.4(g), we find that Mr. Chittum did not have "sexual relations" with Ms. Stevenson. Rule 8.4(g) defines "sexual relations" as:
... sexual intercourse or any touching of the sexual or other intimate parts of a client or causing such client to touch the sexual or other intimate parts of the lawyer for the purposes of arousing or gratifying the sexual desire of either party or as a means of abuse.
Mr. Chittum and Ms. Stevenson never physically met each other. Their relationship existed solely through telephone calls and letters. Mr. Chittum never attempted to physically have sexual intercourse with Ms. Stevenson or touch her in any manner. Mr. Chittum's telephone calls and letters implied the possibility of having a romantic relationship with Ms. Stevenson at some future date. This conduct does not rise to the level of "sexual relations" as defined by Rule 8.4(g).
However, Mr. Chittum's flirtatious remarks were misconduct under Rule 8.4(a), because they were an attempt to establish a sexual relationship with his client. We condemn this conduct and find that Mr. Chittum's behavior was inappropriate and prejudicial to the administration of justice because his client was incarcerated and in a vulnerable position. Under the circumstances, Ms. Stevenson might have felt obligated to respond to Mr. Chittum's flirtatious overtures to ensure that he would fully pursue her interests in the divorce proceeding. We therefore agree with the Board's finding that Mr. Chittum's behavior was also a violation of Rule 8.4(d) of the Rules of Professional Conduct.
2. Count II Complaint of the Office of Disciplinary Counsel
On October 19, 2003, Mr. Chittum's wife was involved in an automobile accident and received serious injuries. Both Mr. and Mrs. Chittum asserted a claim for damages as a result of this accident and obtained the assistance of an attorney, McGinnis E. Hatfield, to help process their claim. Following the accident, Mr. Chittum and his wife received a settlement in the amount of $200,000.00. On December 5, 2003, and December 19, 2003, two $100,000.00 settlement checks were deposited into Mr. Chittum's "Attorney at Law Trust Account" that he maintained at First Community Bank. Mr. Chittum had a second account at First Community Bank titled "Client Trust Account-IOLTA."[4] On December 9, 2003, Mr. Chittum paid McGinnis E. Hatfield $5000.00 for legal work performed on behalf of himself and his wife, and the $195,000.00 from the settlement remained in his "Attorney at Law Trust Account." From December 11, 2003, through December 30, 2003, Mr. Chittum issued a number of checks for household and office expenses from his "Attorney at Law Trust Account."[5] Mrs. Chittum ratified and confirmed all of the expenditures made from the settlement fund. In addition, Mr. Chittum deposited client funds into his "Attorney at Law Trust Account" rather than his "Client Trust Account-IOLTA."
On March 23, 2004, Mr. Chittum wrote and cashed a check made out to "Cash" in the *818 amount of $150.00 from his "Client Trust Account-IOLTA." After this check cleared, he maintained a balance of $30.11 in his "Client Trust Account-IOLTA" until June 30, 2005, when he emptied the remaining funds from the IOLTA account.
The Hearing Panel Subcommittee determined that no client funds were misappropriated and restitution is not an issue in this matter. However, the Subcommittee found that by failing to properly maintain and administer a separate client trust account and by commingling his personal money with client funds, Mr. Chittum violated Rule 1.15(a) of the Rules of Professional Conduct, which states:
Rule 1.15 Safekeeping property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account designated as a "client's trust account" in an institution whose accounts are federally insured and maintained in the state where the lawyer's office is situated, or in a separate account elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
The Subcommittee also found that by closing his "Client Trust Account-IOLTA", Mr. Chittum failed to maintain an IOLTA account, thereby violating Rule 1.15(d) of the Rules of Professional Conduct, which provides:
Rule 1.15 Safekeeping property
(d) IOLTA (Interest on Lawyers Trust Accounts). A lawyer who receives client funds that are nominal in amount or are expected to be held for a brief period shall establish and maintain a pooled, interest or dividend-bearing, account for the deposit of such funds, at an eligible financial institution which carries federal deposit insurance, in compliance with the following provisions:
(1) The account shall include only such client funds that are nominal in amount or are expected to be held for a brief period of time such that the funds cannot earn income for the client in excess of the costs of securing that income. In determining whether a client's funds can earn income in excess of costs, the lawyer or law firm shall consider the following factors:
(i) The amount of funds to be deposited;
(ii) The expected duration of the deposit, including the likelihood of delay in the matter for which the funds are held;
(iii) The rates of interest or yield at financial institutions where the funds are to be deposited;
(iv) The cost of establishing and administering non-IOLTA accounts for the client's benefit, including service charges, the costs of the lawyer's services, and the costs of preparing any tax reports required for income accruing to the client's benefit;
(v) The capability of financial institutions, lawyers or law firms to calculate and pay income to individual clients;
(vi) Any other circumstances that affect the ability of the client's funds to earn a net return for the client.
(2) The lawyer shall review the account at reasonable intervals to determine whether the circumstances warrant further action with respect to the funds of any client.
(3) Lawyers may only establish and maintain an IOLTA Trust Account at an eligible financial institution.[6]
Our review of the record confirms the Board's finding that Mr. Chittum violated rules 1.15(a) and 1.15(d). Mr. Chittum had an "Attorney at Law Trust Account" that he deposited personal funds into, including the $200,000.00 settlement that he and his wife received following her automobile accident. *819 Mr. Chittum used his "Attorney at Law Trust Account" to pay personal expenses. While Mr. Chittum maintained a separate IOLTA account, which he used for some client funds, the bank records show he also deposited client funds into his "Attorney at Law Trust Account." This commingling of personal and client funds is a clear violation of Rule 1.15(a) of the Rules of Professional Conduct.
The record also shows that Mr. Chittum emptied the funds from his IOLTA account on June 30, 2005. This failure to maintain a proper IOLTA client trust account is a violation of Rule 1.15(d) of the Rules of Professional Conduct.
3. Sanctions
Having determined that Mr. Chittum violated four Rules of Professional Conduct, we now examine whether the recommended sanctions are appropriate. The Board and Mr. Chittum maintain that the Hearing Panel Subcommittee's recommended sanctions are reasonable and achieve the primary purpose of the disciplinary system which this Court has previously set forth:
[i]n deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.
Syllabus Point 3, Committee on Legal Ethics of the West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).[7]
In assessing the recommended sanctions, we note that this Court has previously recognized,
Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: "In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors."
Syllabus Point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).
The Hearing Panel Subcommittee properly found that Mr. Chittum violated duties to his client, to the public, to the legal system, and to the profession. He violated his duty to his client, to the public and to the profession by initiating and pursuing a personal relationship with a client who was incarcerated and in a vulnerable position. Mr. Chittum's failure to maintain his IOLTA account and commingling client funds with personal funds are violations of duties owed to his clients and to the legal profession.
The second factor under Rule 3.16 is whether the lawyer acted intentionally, knowingly, or negligently. The Hearing Panel Subcommittee found that Mr. Chittum's violations regarding his flirtatious overtures toward Ms. Stevenson were negligent. Additionally, the Board found that Mr. Chittum was negligent when he failed to deposit client funds into his IOLTA account and commingled his personal funds and client funds in his "Attorney at Law Trust Account." This Court has previously stated that "the penalty for a misappropriation offense must be consistent with the level of intent by the lawyer and the level of the injury." Lawyer Disciplinary Board v. Kupec, 204 W.Va. 643, 515 S.E.2d 600 (1999). The Court in Kupec adopted the standards *820 proffered by the American Bar Association to assess such offenses, stating:
The American Bar Association Model Standards for Imposing Lawyer Sanctions (hereinafter "ABA standards") classify misappropriation offenses according to the level of intent and the level of the injury. The ABA standards are consistent with the general rule in finding disbarment appropriate in cases of knowing conversion with injury or potential injury to the owner of entrusted funds. Where there is little or no actual or potential injury to the owner of entrusted funds, and when the lawyer knows or should know he/she is dealing improperly with entrusted funds, the ABA standards suggest suspension. When the lawyer is merely negligent in dealing with entrusted funds, the ABA standards suggest reprimand or admonishment.
Kupec, 204 W.Va. at 648-649, 515 S.E.2d at 605-606.
Since we must give the Board's findings of fact substantial deference, we cannot say that their finding of negligence was clearly wrong. We note that the Hearing Panel Subcommittee found that there was no actual injury to any client or to Mrs. Chittum with regard to Mr. Chittum's commingled funds and failure to maintain a proper IOLTA account. In addition, there was no intent to convert the clients' entrusted funds for his own use. Therefore the recommendation that Mr. Chittum be issued a reprimand, rather than a suspension, is supported by the ABA standards and our prior case law.
The third factor under Rule 3.16 is the amount of actual or potential injury caused by the lawyer's misconduct. As previously discussed, the Subcommittee found that Mr. Chittum's conduct did not cause actual injury. The record before us supports this finding.
The final consideration under Rule 3.16 is the existence of any aggravating or mitigating factors. This Court has held that "[a]ggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed." Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003). The Hearing Panel Subcommittee found the existence of three aggravating factors: (1) experience in the practice of law; (2) selfish motive; and (3) vulnerability of the victim. We note that Mr. Chittum had been engaged in the practice of law for over ten years at the time the violations in this matter occurred. We also note that Mr. Chittum violated four Rules of Professional Conduct and though not included as an aggravating factor by the Subcommittee, this Court in Scott "recognized `multiple offenses' as an aggravating factor in a lawyer disciplinary proceeding." Scott, 213 W.Va. at 217, 579 S.E.2d at 558.
The Subcommittee also determined that three mitigating factors weigh in Mr. Chittum's favor. We have previously held that "[m]itigating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify a reduction in the degree of discipline to be imposed." Syllabus Point 2, Scott, supra. In Scott, we further explained:
Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.
Syllabus Point 3, Scott, supra.
The three mitigating factors the Subcommittee found in this case are: (1) full and free disclosure to the ODC and cooperative attitude toward proceedings; (2) good faith effort to rectify consequences of misconduct; and (3) remorse.
When weighing the four factors set forth in Rule 3.16, we believe the sanctions recommended by the Board are proper and accomplish *821 the three main goals of our disciplinary proceedings by punishing Mr. Chittum, serving as a deterrent to other members of the bar and restoring public confidence in the ethical standards of our profession. Had the Hearing Panel Subcommittee determined that Mr. Chittum caused actual injury either to Ms. Stevenson or to any client in relation to his failure to maintain a proper IOLTA account and commingling of client and personal funds, harsher sanctions would have been appropriate.
III.
Conclusion
For the foregoing reasons, we adopt the recommendations, as moulded, set forth by the Board and impose the following sanctions: (1) that Mr. Chittum be reprimanded pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure; (2) that Mr. Chittum sign and follow a plan of supervised practice for a period of two years with a supervising attorney, consistent with the specifications set forth by the ODC; (3) that Mr. Chittum complete an additional 9 hours of CLE by July 1, 2011, in the area of ethics and office management over and above that already required; (4) that Mr. Chittum have a certified public accountant audit his office accounting records for two consecutive years, consistent with the specifications set forth by the ODC; (5) that Mr. Chittum deliver, at his own expense, Ms. Stevenson's personal items to a place designated by the ODC within thirty days of receiving notification from the ODC[8]; and (6) that Mr. Chittum pay the costs incurred in this disciplinary proceeding.
Public Reprimand and Other Sanctions.
NOTES
[1] Rule 3.15 of the West Virginia Rules of Lawyer Disciplinary Procedure provides:
A Hearing Panel Subcommittee may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Rules of Professional Conduct ... (1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment. When a sanction is imposed the Hearing Panel Subcommittee may recommend and the Court may order the lawyer to reimburse the Lawyer Disciplinary Board for the costs of the proceeding. Willful failure to reimburse the Board may be punished as contempt of the Court.
[2] He was admitted to practice law in West Virginia on January 12, 1993.
[3] Ms. Stevenson's prison term ends in 2016.
[4] IOLTA is an acronym for Interest on Lawyer Trust Accounts. Lawyers are required to maintain a client trust account under Rule 1.15 of the Rules of Professional Conduct.
[5] These checks were made out to various parties including: Krogers, Dish Network, First Community Bank (for payroll), Comcast, a client (for advance in settlement), child care service, Cellular One, cash, St. Lukes, and Bluefield Rescue Squad. A number of these checks went toward remodeling the Chittum home to make it wheelchair accessible.
[6] Rule 1.15(d)(3) and (4) goes on to give a detailed statement on the requirements a financial institution must meet to participate in the IOLTA program. Rule 1.15(d)(5) instructs attorneys on how to direct depository institutions regarding their IOLTA account. Rule 1.15(d)(6) sets forth attorneys who may be exempt from the program.
[7] "[A]ttorney disciplinary proceedings are primarily designed to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice." Committee on Legal Ethics v. Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994). Accord Lawyer Disciplinary Bd. v. Sims, 212 W.Va. 463, 469, 574 S.E.2d 795, 801 (2002) (per curiam) (Davis, J., concurring, in part, and dissenting, in part).
[8] The Board's recommendation that Mr. Chittum deliver Ms. Stevenson's personal belongings to a designated place did not state who would determine the whereabouts of the delivery location. Obviously, we can not allow Ms. Stevenson to unilaterally designate the place of delivery. It would be unfair to require Ms. Stevenson's unpaid lawyer to deliver these belongings over long distances or incur unreasonable expenses. The ODC must reach an accord with Ms. Stevenson as to a reasonable place for Mr. Chittum to deliver her personal belongings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324568/ | CHARLOTTE D. TAYLOR, Plaintiff,
v.
MILDRED BATTS and CREECH & CO., Defendants.
No. COA09-196
Court of Appeals of North Carolina.
Filed January 5, 2010.
This case not for publication
Rose Rand Wallace Attorneys, P.A. by Jason R. Page and J. Brian Pridgen, for plaintiff-appellant.
Poyner Spruill LLP by Gregory S. Camp, for defendant-appellee.
STROUD, Judge.
Plaintiff appeals the trial court order allowing summary judgment in favor of defendant Creech & Co. For the following reasons, we affirm.
I. Background
On or about 2 October 2006, plaintiff filed a verified complaint against defendants Mildred Batts and Creech & Co. Plaintiff alleged that Mildred Batts owned and Creech & Co. managed a home she had leased. Plaintiff claimed that on 8 September 2005 she "fell through the floor" of the home and sustained injuries. Plaintiff brought causes of actions for breach of the implied warranty of habitability, negligence, and unfair and deceptive trade practices.
On 25 October 2006, Ms. Batts answered plaintiff's complaint and filed a motion to dismiss. On 18 December 2006, Creech & Co., filed an answer and a motion to dismiss. On or about 9 August 2007, defendant Creech & Co. filed a motion for summary judgment. On 23 August 2007, the trial court allowed Creech & Co.'s motion for summary judgment. On 4 December 2008, plaintiff voluntarily dismissed her claims against Ms. Batts with prejudice. Plaintiff now appeals the summary judgment order as to Creech & Co. only.
II. Standard of Review
[T]he standard of review is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Summary judgment is appropriate when viewed in the light most favorable to the non-movant, 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.
S.B. Simmons Landscaping v. Boggs, ___ N.C. App. ___, ___, 665 S.E.2d 147, 152 (2008) (citations and quotation marks omitted) (citing N.C. Gen. Stat. § 1A-1, Rule 56(c)).
III. Summary Judgment
Plaintiff claims that the trial court erred in allowing summary judgment in favor of defendant on her three claims for relief.
A. Breach of the Implied Warranty of Habitability
By the enactment in 1977 of the Residential Rental Agreements Act, N.C. Gen. Stat. Secs. 42-38 et seq., our legislature implicitly adopted the rule, now followed in most jurisdictions, that a landlord impliedly warrants to the tenant that rented or leased residential premises are fit for human habitation. The implied warranty of habitability is co-extensive with the provisions of the Act.
Miller v. C.W. Myers Trading Post, Inc., 85 N.C. App. 362, 366, 355 S.E.2d 189, 192 (1987) (citation omitted).
N.C. Gen. Stat. § 42-38 provides that, "This Article, [Chapter 42, Article 5], determines the rights, obligations, and remedies under a rental agreement for a dwelling unit within this State." N.C. Gen. Stat. § 42-38 (2005). N.C. Gen. Stat. § 42-42(a) requires that a landlord, inter alia, "[c]omply with the current applicable building and housing codes" and "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition." N.C. Gen. Stat. § 42-42(a)(1)-(2) (2005). A landlord is defined as "any owner and any rental management company, rental agency, or any other person having the actual or apparent authority of an agent to perform the duties imposed by this Article." N.C. Gen. Stat. § 42-40(3) (2005).
The facts establish that plaintiff and defendant had entered into a "RESIDENTIAL RENTAL CONTRACT" for a home in Wilson, North Carolina; therefore, Article 5 controls. See N.C. Gen. Stat. § 42-38. Furthermore, Ms. Batts and defendant had entered into a "PROPERTY MANAGEMENT AGREEMENT" whereby defendant agreed "to rent, to lease, to operate and manage the property[.]" Ms. Batts further authorized defendant, as her agent, "[t]o answer Tenant requests and complaints and to perform the duties imposed upon the Owner by law or pursuant to the tenant leases covering the Property[.]" Though defendant has claimed it was not actually authorized to perform repairs, considering the evidence in the light most favorable to plaintiff, see S.B. Simmons Landscaping at ___, 665 S.E.2d at 152, defendant was a landlord pursuant to N.C. Gen. Stat. § 42-40(3) as defendant had "actual or apparent authority of an agent to perform the duties imposed by this Article" through the "PROPERTY MANAGEMENT AGREEMENT[.]" See N.C. Gen. Stat. § 42-40(3).
Plaintiff alleged in her complaint that defendant was in violation of Article 5 because the floor in her bedroom was in need of repair and in violation of the housing code; plaintiff further alleged her injuries were caused by this violation. Specifically, plaintiff alleged in pertinent part as follows:
11. On September 8, 2005, while Plaintiff was making her bed, the floor of the Leased Premises collapsed, and Plaintiff fell through.
12. At the time the Plaintiff fell through the floor of the Leased Premises, said Leased Premises were in violation of the City Housing Code, Chapter 43 of the Code of the City of Wilson, North Carolina in that the floor had not been kept in sound condition or good repair, that the floors were not safe to use and that they were not capable of supporting the load which normal use may cause to be placed thereon.
. . . .
19. By leasing the Leased Premises to Plaintiff, Defendants impliedly warranted that they would "[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition." N.C. Gen. Stat. § 42-42(a).
. . . .
21. Upon information and belief, at all times mentioned herein, the Leased Premises was unsafe, unfit and uninhabitable, and was in violation of the City Housing Code, Chapter 43 of the Code of the City of Wilson, North Carolina.
Although plaintiff forecast evidence of her notifications to defendant of various repairs which were needed in the house, she never notified anyone of any need to repair the bedroom floor; in fact, she was apparently unaware of the condition of the floor until she fell through it. Defendant argues that plaintiff cannot recover damages for her injuries caused by an alleged breach of the implied warranty of habitability where it had no notice of or reason to know of the defect or any need for repair prior to the incident in which plaintiff was injured.
In Surratt v. Newton, this Court determined that "where the conditions enumerated in G.S. 42-42(a)(4) are the same conditions which render the premises unfit and uninhabitable no written notice is required under the statute."[1] 99 N.C. App. 396, 405-06, 393 S.E.2d 554, 559 (1990). However, this Court went on to note that the plaintiff had actually provided defendant with notice of the condition, even though the notice was not in writing. See id. at 406, 393 S.E.2d at 559.
Here plaintiff has introduced sufficient evidence of notice of the conditions required by law. During trial plaintiff testified that while she dealt primarily with Jeff Newton during most of her occupancy of the premises, she also talked with Jerry Newton who usually responded by sending someone out to the house. Plaintiff testified that she told defendant Jerry Newton that the house needed to be "fixed up, inspected and all." Whether plaintiff provided notice to defendant of needed repairs is an issue of fact to be resolved by the trier of fact. Here, the jury determined that plaintiff had given defendant the notice required by law and a reasonable opportunity to repair the conditions which violated the applicable building codes and the statute. Accordingly, this assignment of error must also fail.
Id. (citation omitted). This Court's analysis in Surratt concludes that while written notice of needed repairs is not required, the landlord must have some form of notice so that there is a reasonable opportunity to repair the condition. See id. at 405-06, 393 S.E.2d at 559. We conclude that the landlord must have some notice or reason to know of the defective condition of the property before the landlord can be held liable for injuries caused by the condition. We do not believe that Chapter 42, Article 5 of the North Carolina General Statutes establishes strict liability of the landlord for conditions of the property of which the landlord has no notice or reason to know.
Viewing the evidence in the light most favorable to plaintiff, see S.B. Simmons Landscaping at ___, 665 S.E.2d at 152, she has not forecast any evidence that defendant was made aware of any need for repairs to the floor prior to her fall, either by notification by the plaintiff or in any other manner. Plaintiff has not forecast any evidence that defendant had any reason to believe that the floor needed repairs prior to her fall. Because plaintiff has failed to show that defendant had the required notice, the trial court correctly allowed summary judgment in favor of defendant.
B. Negligence
Plaintiff also brought a cause of action for negligence. Plaintiff contends that
Creech & Co. relies on an inspection that did not evaluate the structural integrity of the house and that may have been up to six months old . . . . The City inspector did not crawl under the house, did not check under the carpet, and did not move furniture . . . . [Plaintiff] contends that it was Creech & Co.'s duty to ensure that someone did so.
N.C. Gen. Stat. § 42-44(d) provides that "[a] violation of this Article shall not constitute negligence per se." N.C. Gen. Stat. § 42-44(d) (2005).
By providing that a violation of this Article shall not constitute negligence per se, the legislature left intact established common-law standards. The common-law standard of care is a generalized one of due care on the part of the defendant. The standard of due care is always the conduct of a reasonably prudent person under the circumstances.
Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 68, 376 S.E.2d 425, 428 (1989) (brackets, quotation marks, and citations omitted). Pursuant to the common law, "it is well settled that a landlord has a duty to warn of or repair latent defects only when he knows or should by reasonable inspection know of their existence." Bradley v. Wachovia Bank & Trust Co., 90 N.C. App. 581, 584, 369 S.E.2d 86, 88 (1988) (emphasis added).
Once again, plaintiff has failed to forecast any evidence that defendant "kn[e]w[] or should by reasonable inspection [have] know[n]" of the existence of the floor defect. Id. Plaintiff had not informed defendant of any concerns about the floor and the house had received a "Minimum Housing Code Compliance Notice" from its last inspection prior to plaintiff's fall. Although plaintiff alleges that defendant had relied upon an inspection which "did not evaluate the structural integrity of the house and that may have been up to six months old[,]" plaintiff has not forecast any evidence indicating that defendant had a duty to evaluate the "structural integrity" of the house at any particular frequency or that defendant had any reason to believe that the city's inspection of the home was inadequate. Viewing the evidence in the light most favorable to plaintiff, see S.B. Simmons Landscaping at ___, 665 S.E.2d at 152, there may be an issue as to whether the housing inspector for the City of Wilson did his job correctly; in fact, after plaintiff's fall, the City of Wilson issued a letter noting that the house was "in violation of the City Housing Code[.]" The floor was rotted to such an extent that the condition may well have been present at the time of the last inspection. However, plaintiff has not forecast any evidence that it was unreasonable for defendant to rely upon the city's compliance notice. As plaintiff has not forecast any evidence that defendant was aware or should have been aware of the condition of the floor prior to her fall, especially considering that she herself was apparently unaware of its condition, summary judgment was appropriately allowed in favor of defendant.
C. Unfair and Deceptive Trade Practices
Lastly, plaintiff contends that "there is a question of fact as to whether Creech & Co. knew or should have known that the Property was unfit" for purposes of a cause of action pursuant to N.C. Gen. Stat. § 75-16 regarding unfair and deceptive trade practices. However, once again we conclude that plaintiff did not forecast any evidence that defendant knew or should have known about any defects with the floor.
In order to prevail under Chapter 75, a litigant must prove that the other party committed an unfair or deceptive act or practice, that the action in question was in or affecting commerce, and that said act proximately caused actual injury to the litigant. Conduct is unfair or deceptive if it has the capacity or tendency to deceive the average consumer. Proof of actual deception is not required. A trade practice is unfair within the meaning of § 75-1.1 when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.
Creekside Apartments v. Poteat, 116 N.C. App. 26, 36, 446 S.E.2d 826, 833, disc. review denied, 338 N.C. 308, 451 S.E.2d 632 (1994) (citations and quotation marks omitted). It appears that in the context of housing, our courts have concluded that just as for a negligence claim, in order to be liable under N.C. Gen. Stat. § 75-16 of the North Carolina General Statutes, defendant must have known or at least have a reason to know of the alleged unfair and deceptive act. See generally id. at 37-38, 446 S.E.2d at 833-34 (holding "that the trial court's dismissal of defendant's unfair practices counterclaim was in error" and noting that "the trial court concluded that plaintiff had due notice of problem conditions and Code violations at the premises and did not make reasonable efforts to alleviate these conditions and violations until July 1992"); Allen v. Simmons, 99 N.C. App. 636, 644-45, 394 S.E.2d 478, 484 (1990) (holding "that a jury could find that plaintiff committed an unfair trade practice and the trial court erred in not submitting this issue to the jury" after noting that the "plaintiff had received numerous notices including notices dated 13 October 1986, 14 January 1987 and 23 March 1987 about the unfit and uninhabitable state of the house but plaintiff failed to respond to any of them"). Accordingly, the trial court properly granted summary judgment on this issue.
IV. Conclusion
As plaintiff failed to forecast evidence that defendant had any notice or reason to know of the defective condition of the floor prior to her fall, we affirm the trial court's order allowing summary judgment in favor of defendant.
AFFIRMED.
Judges GEER and ERVIN concur.
Report per Rule 30(e).
NOTES
[1] Effective October 1, 2009, N.C. Gen. Stat. § 42-42(a) has been amended by Session Law 2009-279 to require that the landlord have "actual knowledge or receiv[e] notice" before a duty to repair "unsafe flooring" arises. See 2009-2 N.C. Adv. Legis. Serv. 254-55 (LexisNexis). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324550/ | 167 S.E.2d 76 (1969)
4 N.C. App. 446
STATE of North Carolina
v.
Edna Royster BARNES and Sims Marsh.
No. 6926SC64.
Court of Appeals of North Carolina.
April 30, 1969.
*77 Atty. Gen. Robert Morgan and Staff Atty. Christine Y. Denson, Raleigh, for the State.
Peter A. Foley, Charlotte, for defendant appellants.
FRANK M. PARKER, Judge.
Reference is made to the opinion of this Court filed this date in State v. Garnett, N.C.App., 167 S.E.2d 63, which was an appeal by a codefendant from judgment entered in the same trial. Insofar as appellants Barnes and Marsh make the same assignments of error as were made in the Garnett appeal, we find no prejudicial error for the reasons stated in that opinion.
In addition to the assignments of error which were made in the Garnett appeal, the appellants Barnes and Marsh assign as error the refusal of the trial court to grant their motion for a new trial made on grounds that, during the progress of the trial, the two defendants involved in this appeal had been taken into custody by order of the court. Appellants contend that thereby they had been prejudiced in the eyes of the jury, citing State v. Simpson, 233 N.C. 438, 64 S.E.2d 568, and State v. McNeill, 231 N.C. 666, 58 S.E.2d 366.
In State v. Simpson, supra, the defendant and two of his witnesses were taken into custody in the courtroom in the presence of some members of the jury during noon recess of court. When court resumed, the jury being in the box, the defendant and his two witnesses were brought into the *78 courtroom in custody of the sheriff. Later in the day the court instructed the solicitor to draw indictments against the defendant and his two witnesses for perjury. On appeal, a new trial was ordered because of the impeachment by the court of the defendant's testimony and that of his witnesses. The opinion of the Supreme Court stated that "(t)his was done, first, by ordering the defendant and his two witnesses into custody during the trial, which action by the court came to the attention of the jury trying the case, * * * and, secondly, by the manner in which the court's charge was given to the jury." In State v. McNeill, supra, immediately after a witness for the defendant had testified, the court ordered the sheriff to take the witness into custody. This was held to be prejudicial error as impeaching the credibility of the witness in the eyes of the jury.
In State v. McBryde, 270 N.C. 776, 155 S.E.2d 266, as one of the defendant's chief witnesses stepped down from the witness stand, the court, in the presence of the jury, audibly told the witness not to leave the courtroom. Subsequently, during argument of counsel to the jury, the judge while sitting upon the bench had a conversation with the sheriff, heard only by the sheriff and the judge, and immediately thereafter the sheriff left the courtroom and took the witness into custody outside the courtroom, brought him back into the courtroom under custody, and placed him in the prisoner's box in the presence of the jury. On appeal, this was held to be prejudicial error entitling defendant to a new trial. The court, in an opinion by Branch, J., said:
"The State correctly contends that the circumstances of the case determine whether it is prejudicial to defendant for the trial court to order a witness into custody in the presence of the jury. State v. Wagstaff, supra, 235 N.C. 69, 68 S.E.2d 858. It is not necessary that the trial judge audibly in so many words order the witness into custody. Here, the witness Parker was told by the trial judge not to leave the courtroom, and shortly thereafter he was placed in custody in the prisoner's box in plain view of the jury. Parker was defendant's chief witness as to his principal defense. The words of the trial judge, coupled with his conference with the sheriff and the ensuing action by the sheriff in placing the prisoner in custody would unerringly lead the jury to the conclusion that the witness was guilty of perjury or of some other crime, which could only result in weakening his testimony in the eyes of the jury."
These cases establish that if a witness is taken into custody during the course of the trial under such circumstances as to lead the jury to the conclusion that the judge was of the opinion that the witness was guilty of perjury, such action constitutes prejudicial error as being an expression of opinion by the court as to the credibility of the witness.
In the present case the only reference in the record which indicates that the appellants were placed in custody during the course of the trial is contained in the statement of their counsel made to the court as the basis for the motion for a new trial and in the court's response to that motion. This clearly discloses that the appellants had been taken into custody outside of the presence of any member of the jury and during the noon recess of court. Nothing in the record indicates that the trial judge said or did anything in the presence of any member of the jury which would inform the jury that the appellants had been placed in custody by an order of the court. It is not unusual for defendants in criminal cases to be in custody while they are being tried. It is not even clearly evident from the present record that the jury was ever aware that appellants had been placed in custody. Certainly nothing in the record justifiably supports the conclusion that the jury heard or observed anything from which they could gain the impression that the trial judge was indicating any opinion as to the guilt of the appellants.
*79 It should also be noted that the appellants elected not to take the stand. Therefore no question as to their credibility was presented. It is recognized that the court has inherent power to assure itself of the presence of the accused during the course of the trial. For this purpose the trial judge has discretion to direct that an accused previously free under bond be taken into custody during the course of the trial. State v. Mangum, 245 N.C. 323, 96 S.E.2d 39. The only limitation is that this must not be done in such manner or under such circumstances as to convey to the jury the impression that the court is expressing an opinion as to the probable guilt of the accused or as to his credibility if he becomes a witness. Nothing in the record would indicate that this occurred during the trial here under review. Since the record is barren of the reasons which prompted the court's action in ordering appellants into custody, there is no basis for any contention, and appellants make none, that the court abused its discretion.
The judgment here appealed from was entered 13 August 1968. The record on appeal was docketed in this Court on 25 November 1968. No order extending the time to docket the appeal appears in the record. Rule 5 of the Rules of the Court of Appeals. Evidence was submitted under Rule 19(d) (2). There is no appendix to appellants' brief. For failure to comply with the rules of this Court, this appeal is subject to dismissal. State v. Garnett, supra. Furthermore, no valid reason appears for filing by these appellants of a separate record on appeal from the same judgment and trial as was presented in the appeal by their codefendant Garnett. The unlimited right of appeal which our law grants to defendants sentenced in criminal proceedings and the provision by which the public must bear the expense of such appeals by indigent defendants, imposes on their court-appointed counsel the obligation to create no greater expense to the public in duplicating records and briefs than is reasonably required to protect the interest of their clients.
As in State v. Garnett, supra, we have not dismissed the present appeal but have considered it fully on its merits, and find
No error.
MALLARD, C. J., and BRITT, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262055/ | 132 Cal.Rptr.2d 658 (2003)
107 Cal.App.4th 1052
ORRICK HERRINGTON & SUTCLIFFE LLP, et al., Petitioners,
v.
The SUPERIOR COURT for the City and County of San Francisco, Respondent;
Michael A. Malcolm, Real Party in Interest.
No. A101737.
Court of Appeal, First District, Division Four.
April 11, 2003.
Review Denied July 30, 2003.
*659 Keker & Van Nest, Robert A. Van Nest, Christa M. Anderson and Steven A. Hirsch, San Francisco, for Petitioners.
No appearance for Respondent.
Holme Roberts & Owen, James Wesley Kinnear and Adria Y. LaRose, San Francisco, for Real Party in Interest.
KAY, P.J.
The law in California is well established that when legal malpractice involves negligence in the prosecution or defense of a legal claim, the case-within-a-case methodology must be used. More specifically, for purposes of this case, which involved settlement of litigation, the plaintiff must prove his opponent in the underlying litigation would have settled for less, or that following a trial, plaintiff would have obtained a judgment more favorable than the settlement.
Real party in interest Michael A. Malcolm sued petitioners for malpractice, alleging they omitted critical terms from a marital settlement agreement. In response to a summary judgment motion, Malcolm did not produce evidence showing that his former wife would have settled for less, or that he would have obtained a judgment more favorable than the settlement. Instead he claimed as damages the legal fees he spent in an unsuccessful attempt to overturn the settlement. Contrary to the conclusion reached by the trial court, those fees do not represent possible tort damages. As there is no evidence of any other recognized tort damages, this case is simply a fee dispute. The action should go forward, but only on the contract causes of action alleged in the complaint.
BACKGROUND
Malcolm hired several lawyers to represent him in the dissolution of his marriage. Among the lawyers he hired were petitioners, the law firm of Orrick Herrington & *660 Sutcliffe LLP and one of its partners, Christopher Ottenweller (collectively, hereafter, Orrick, unless otherwise noted).
During a mediation session on March 13 and 14, 2000, Malcolm and his former wife signed a "Property Settlement Agreement" that divided their substantial assets. According to Malcolm, however, he was advised by Ottenweller that the agreement was a "term sheet," and that it did not contain all the terms required for a final, binding agreement.
The attorneys for Malcolm's former wife took the position that the agreement was fully enforceable as written. On March 31, 2000, Malcolm moved to set aside the settlement agreement. The trial court denied the motion, finding no reasonable basis for it. On July 11, 2000, the court entered a judgment in the dissolution action that incorporated the terms of the settlement agreement. When Malcolm persisted in efforts to set aside that judgment, the court imposed monetary sanctions in the amount of $100,000. The court also found a motion by Malcolm's new wife to intervene in the matter was frivolous and made for the purpose of bolstering Malcolm's attempt to set aside the settlement. Ultimately, Malcolm paid hundreds of thousands of dollars in attorney fees in his futile quest to overturn the settlement.[1]
Malcolm sued Orrick, the law firm of Kaufman & Young, P.C., and Robert S. Kaufman for professional negligence, breach of contract, and breach of fiduciary duty. Malcolm alleged his lawyers had failed to provide competent services, leading him to enter into a "horribly defective `settlement' agreement." He cited the agreement's failure to include a release from his former wife, and its inclusion of provisions that could expose him to adverse tax consequences or securities law violations. He also cited his lawyers' failure to obtain his current wife's consent to the settlement.
Orrick responded with a cross-complaint, which alleged Malcolm owed over $400,000 in fees.
Orrick moved for summary judgment on all causes of action, or, in the alternative, summary adjudication on the individual causes of action. Orrick asserted Malcolm could not prove actual damages, an essential element of each of his causes of action. Orrick submitted discovery responses that showed neither Malcolm's former wife nor his current wife had filed any claims against him in connection with the settlement, that Malcolm had not been accused of any securities law violations, and that Malcolm could not identify any adverse tax consequences.
In opposition, Malcolm identified as damages the fees he had paid to Orrick, the fees he had paid to attempt to remedy Orrick's errors, and his payment of over $500 million to his former wife to settle claims worth approximately $30 million at the time of separation. Malcolm submitted, among other things, his legal bills and a declaration from an expert, who stated Orrick's conduct in negotiating the settlement agreement, fell below the pertinent standard of care. Malcolm also submitted a declaration by Ottenweller from the dissolution action, dated October 6, 2000, in which Ottenweller stated it was his understanding that a final stipulated judgment would contain additional language and terms to "flesh out" the property settlement agreement, including a mutual release between the parties. In his separate statement of facts, Malcolm noted that although it was undisputed that his wives (former and current) had not filed *661 any claims against him and that there were no securities or tax claims against him, he was exposed to future claims.
The trial court denied Orrick's motion for summary judgment, finding there were triable issues of fact regarding "damages created by evidence of attorneys' fees expended in connection with attempts to correct errors committed in the negotiation, preparation and execution of a settlement agreement enforceable under Code of Civil Procedure section 664.6, entered on or about March 14, 2000, including, without limitation, motions to vacate the judgment and subsequent appeals."
Orrick timely filed a petition for peremptory writ of mandate and/or prohibition or other appropriate relief in this court. We asked for opposition from Malcolm and notified him that we were considering the issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.) Malcolm has filed his opposition, and after reviewing it, we conclude the issuance of a peremptory writ in the first instance is appropriate, as the applicable principles of law are well established and the relevant facts are undisputed. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1259-1260, 82 Cal.Rptr.2d 85, 970 P.2d 872.)
DISCUSSION
A. Standard of Review
"The grant and denial of summary judgment or summary adjudication motions are subject to de novo review." (Nakamura v. Superior Court (2000) 83 Cal. App.4th 825, 832, 100 Cal.Rptr.2d 97.) This court applies the same analysis as the trial court. We identify the issues framed by the pleadings, determine whether the moving party has negated the nonmoving party's claims, and determine whether the opposition has demonstrated the existence of a triable issue of material fact. (Yanowitz v. L'Oreal USA, Inc. (2003) 106 Cal.App.4th 1036, 1050, 131 Cal. Rptr.2d 575.) Summary judgment is appropriate if all the papers submitted show there is no triable issue of fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc, § 437c, subd. (c).)
B. Legal Malpractice Damages in Litigation
The only issue raised by this petition is whether Malcolm submitted any evidence of cognizable damages.
A plaintiff alleging legal malpractice in the prosecution or defense of a legal claim must prove that, but for the negligence of the attorney, a better result could have been obtained in the underlying action. (California State Auto. Assn. Inter-Ins. Bureau v. Parichan, Renberg, Crossman & Harvey (2000) 84 Cal.App.4th 702, 710, 101 Cal.Rptr.2d 72 (Parichan).) The purpose of this methodology is to avoid damages based on pure speculation and conjecture. (Ibid.) "Although no bright line rule tells us when this methodology must be used, it is quite clear that, when the malpractice involves negligence in the prosecution or defense of a legal claim, the case-within-a-case method is appropriately employed." (Ibid., italics added.)
In Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 86 Cal.Rptr.2d 1 (Marshak), the case-within-in-a-case method was applied to a legal malpractice claim arising from the settlement of a marital dissolution action. As in the instant case, the plaintiff in Marshak unsuccessfully attempted to set aside the settlement. He then sued his attorney, alleging she negligently failed to object to the valuation of certain assets, resulting in a loss of $337,000. In response to a summary judgment *662 motion, the plaintiff proffered evidence as to the value of the assets, but not as to the value of his case. Both the trial and appellate courts concluded he had failed to offer evidence of damages: "In order to prevail in his legal malpractice action, plaintiff must prove that the dissolution action would have resulted in a better outcome had defendant recommended that he reject the settlement offer. Plaintiff must prove what that better outcome would have been." (Id. at p. 1518, 86 Cal.Rptr.2d 1.) Simply showing the attorney erred is not enough. The plaintiff "must also prove that his ex-wife would have settled for less than she did, or that, following trial, a judge would have entered judgment more favorable than that to which he stipulated." (Id. at p. 1519, 86 Cal.Rptr.2d 1; see also Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 662-664, 43 Cal.Rptr.2d 142 [evidence fails to show that but for that attorney's delay in handling action, case would have settled sooner or on more favorable terms].)
Malcolm's showing in opposition to Orrick's summary judgment motion suffers from the same infirmity. He produced no evidence showing his ex-wife would have settled for less than she did, or that following a trial, he would have obtained a judgment more favorable than the settlement.[2] Malcolm also proffered no evidence showing his ex-wife would have agreed to a settlement that included the terms he claims were omitted. Instead he showed only that Orrick might have erred, exposing him to possible future claims. "The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harmnot yet realizeddoes not suffice to create a cause of action for negligence." (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal. Rptr. 849, 491 P.2d 433 (Budd); see also Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 754, 76 Cal.Rptr.2d 749, 958 P.2d 1062 (Jordache ) [speculative and contingent injuries are those that do not exist, as when an attorney's error creates only a potential for harm in the future].) Summary adjudication in favor of Orrick on Malcolm's tort claims should have naturally followed.
Malcolm, however, contends Marshak and the case-within-a-case method do not apply here because this was a case of transactional malpracticeOrrick committed errors in drafting the settlement agreement.[3] Therefore, according to Malcolm, the money he spent attempting to "correct" the errors, along with the fees he paid to Orrick, are his damages.
Before examining the authority Malcolm has cited in support of his contention, we think it is important to note that if Malcolm were correct, the holding in Marshak, indeed the case-within-a-case method, would be eviscerated. First, as Orrick points out, a litigant dissatisfied with a settlement (or a judgment for that matter) need only hire new attorneys and incur additional fees challenging the settlement to generate damages. The need to show a better result in the underlying litigation evaporates. Second, the idea that the fees paid to the negligent attorney constitute tort damages, if credited, would lead to an absurd result. Again there would be no *663 need to prove a better result in the underlying litigation, because damages would exist based on the mere acceptance of a fee for the services provided.
Malcolm relies on three cases to support his theory of recovery: Parichan; Sindell v. Gibson, Dunn & Crutcher (1997) 54 Cal.App.4th 1457, 63 Cal.Rptr.2d 594 (Sindell); and Jordache. None of these cases involved even remotely similar circumstances.
The law firm in Parichan was hired by an insurer to represent its insured in a personal injury lawsuit. As the Parichan court noted, the law firm was wearing two hatsdefending the insured, while providing something closer to business advice to the insurer. (Parichan, supra, 84 Cal. App.4th at p. 711, 101 Cal.Rptr.2d 72.) Had the law firm committed negligence in defending the insured, the case-within-a-case method would have been employed to determine whether the negligence caused damages. (Ibid.) The negligence, however, involved the insurer, the client receiving business advice. The law firm failed to forward information, which would have allowed the insurer to evaluate a policy limits settlement, offer. As a result of the error, the insurer ultimately paid a settlement far in excess of policy limits in order to fend off a threatened bad faith lawsuit by its insured. (Id. at p. 708, 101 Cal. Rptr.2d 72.) According to the Parichan court, under the "unique" circumstances of the case, the case-within-a-case method did not apply. (Id. at p. 714, 101 Cal.Rptr.2d 72.) "We emphasize ... the case-within-a-case methodology continues to apply in all legal malpractice actions involving a client's assertion that his attorney has either negligently prosecuted or defended the client's claim." (Ibid.)
Malcolm is on a par with the insured in Parichan, not the insurer. Orrick was defending Malcolm in the marital property dispute. Any advice was given in the context of litigation and presumably to achieve the best possible result in the litigation. Malcolm and Orrick were not negotiating a business transaction, in which they could simply walk away at any time and seek a better deal elsewhere. The matter was either going to settle or go to trial. Therefore, Malcolm, to show damages, would have to prove he could have achieved a better result in the litigation, but for Orrick's alleged errors or omissions.
In Sindell, the law firm allegedly committed an error while preparing an estate plan. As a result of the error, certain beneficiaries of the estate plan were sued. These facts presented a classic "tort of another" scenario. "A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620, 30 Cal.Rptr. 821, 381 P.2d 645; see Sindell, supra, 54 Cal.App.4th at pp. 1470-1471, 63 Cal.Rptr.2d 594; see also Brandt v. Superior Court (1985) 37 Cal.3d 813, 817-818, 210 Cal.Rptr. 211, 693 P.2d 796.)
Sindell and the instant case have one fact in common. Both involve an alleged failure to obtain the consent of a wife to property transfers. (See Sindell, supra, 54 Cal.App.4th at p. 1461, 63 Cal.Rptr.2d 594.) Where the cases diverge is the fact that the error in Sindell resulted in the filing of a lawsuit by the wife, requiring the estate beneficiaries to defend their interest in the estate. (Id. at p. 1471, 63 Cal.Rptr.2d 594.) They incurred hundreds of thousands of dollars in expense defending against the lawsuit.
*664 If Orrick's alleged errors had required Malcolm to act to protect his interests by bringing or defending an action against a third person, he might have a tort cause of action against Orrick. The undisputed facts, however, show neither his ex-wife nor his current wife, nor the taxing authorities nor the securities regulators have made any claims against Malcolm. Nothing compelled Malcolm to spend hundreds of thousands of dollars in his futile attempt to overturn the settlement. (Cf. Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d at p. 621, 30 Cal.Rptr. 821, 381 P.2d 645 [plaintiffs required to incur attorney fees to bring quiet title action as a result of escrow holder's error].)
Finally, Malcolm cites Jordache for the general propositions that (1) fees paid to a second attorney to correct errors committed by the first attorney represent damages, and (2) the fees he paid Orrick constitute actual damages.[4] The first proposition, as demonstrated in Sindell, is not in dispute. (See Jordache, supra, 18 Cal.4th at pp. 750-751, 76 Cal.Rptr.2d 749, 958 P.2d 1062.) It just does not apply in the instant case as discussed above. The second proposition is true only so far as Malcolm is claiming he paid more than the value of the legal services he received. (Ibid.) If he can prove he did not receive value for his payment, he may recover damages "to the extent" the fees exceed the value of the services received. (Budd supra, 6 Cal.3d at pp. 201-202, 98 Cal. Rptr. 849, 491 P.2d 433.) Thus, Malcolm's recovery is limited to the amount of fees paid.
Although neither Jordache nor Budd explicitly so states, we believe it is evident that an overpayment for services is contract damages.[5] As we have already explained, were the law to be otherwise, tort damages would exist in every instance an attorney collected a fee.
The trial court properly denied Orrick's motion for summary judgment, but for the wrong reason. Malcolm produced no evidence of cognizable tort damages. We do believe, however, that he produced sufficient evidence to proceed with his contract claims.
Malcolm claims he did not get what he paid for, Orrick claims it is owed additional sums for the services it provided. The case should proceed on that basis.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to vacate its order filed January 22, 2003, denying Orrick's *665 motion for summary judgment, or, in the alternative, summary adjudication. The court shall issue a new order denying summary judgment, but granting summary adjudication in favor of Orrick on Malcolm's professional negligence and breach of fiduciary duty claims. Orrick shall recover its costs for this petition.
We concur: REARDON and RIVERA, JJ.
NOTES
[1] Malcolm retained two new law firms for the quest. Attorney Lana Norris, who had been part of the original team of lawyers with Orrick, also continued to represent Malcolm.
[2] At the hearing on the summary judgment motion, counsel for Malcolm stated he was not arguing that Malcolm should have or would have done better at trial.
[3] Whether the case-within-a-case method should apply to attorney negligence committed while representing a client in a business transaction is an issue in an appeal currently pending before the California Supreme Court. (Viner v. Sweet (2001) 92 Cal.App.4th 730, 112 Cal.Rptr.2d 426, review granted Dec. 19, 2001 (S101964).)
[4] Malcolm does not appear to be arguing Jordache is factually apposite to his case. The attorneys in Jordache allegedly failed to advise their clients about the availability of insurance coverage for a third party suit, allowing the insurer to assert a viable coverage defense. (See Jordache, supra, 18 Cal.4th at p. 743, 76 Cal.Rptr.2d 749, 958 P.2d 1062.) At issue in Jordache was the meaning of "actual injury" for purposes of the legal malpractice statute of limitations. (Id. at p. 742, 76 Cal. Rptr.2d 749, 958 P.2d 1062; see Code Civ. Proc., § 340.6.)
[5] In contrast, both Budd and Jordache specifically identify fees paid to a second attorney to correct the first attorney's error as "tort" damages. (Budd, supra, 6 Cal.3d at pp. 201-202, 98 Cal.Rptr. 849, 491 P.2d 433; Jordache, supra, 18 Cal.4th at pp. 750-751, 76 Cal.Rptr.2d 749, 958 P.2d 1062.) "In characterizing the latter fees as a type of damage that allows a malpractice cause of action to accrue, Budd simply recognized the established rule that attorney fees incurred as a direct result of another's tort are recoverable damages." (Jordache, supra, at p. 751, 76 Cal.Rptr.2d 749, 958 P.2d 1062, citing Brandt v. Superior Court, supra, 37 Cal.3d 813, 210 Cal.Rptr. 211, 693 P.2d 796 and Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d 618, 30 Cal.Rptr. 821, 381 P.2d 645.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324671/ | 689 S.E.2d 94 (2009)
The STATE
v.
SMILEY.
No. A09A1827.
Court of Appeals of Georgia.
December 22, 2009.
*95 Carmen D. Smith, Solicitor-General, R. Leon Benham, Asst. Solicitor-General, for Appellant.
George C. Creal, Jr., Forest Park, for Appellee.
MIKELL, Judge.
Sperlin Smiley was accused of driving under the influence (DUI) of alcohol to the extent it was less safe for him to drive, per se DUI, failure to maintain lane, and a seat belt violation. The trial court granted Smiley's motion to suppress the results of his state-administered breath test, ruling that the state had failed to comply with the court's previous order to produce documents requested by Smiley. The state appeals. We affirm.
The facts, as summarized in the trial court's order, follow:
[Smiley] was stopped by Officer Gilmore of the Atlanta Police Department on January 26, 2006[,] for a traffic violation and subsequently arrested for DUI. [Smiley] consented to a [state-administered] test of his breath under the Georgia Implied Consent Law. An adequate breath sample was obtained by Officer Gilmore on Intoxilyzer 5000 s/n XX-XXXXXX.
Prior to trial, Smiley filed an amended motion to suppress/motion in limine, in which he requested production of "full information" from the state under OCGA § 40-6-392(a)(4), including the following items:
[(1)] all training materials utilized by the officer; [(2)] all training materials utilized by the Area Supervisor; [(3)] all training records for the Intox Operator in question; [(4)] all training records for the Area Supervisor in question; [(5)] copies of any studies, journal articles or other learned treatises relied upon by any experts called by the state on the Intox 5000 or utilized or referenced in training manuals utilized by operators or area supervisors; [(6)] all logs or other records maintain[ed] for the Intox 5000 in question for the past two years; [(7)] all maintenance logs for the Intox 5000 for the last 2 years; [(8)] all calibration records and test results for the last two years; [(9)] the owner's manual or operator's instructions for the Intox 5000 in question provided by CMI, Inc. or other applicable manufacturer, any and all software information including source code, software version on the arrest date, date of software version installation, date this version of the software was tested and approved by the [Division] of Forensic [Sciences] of the Georgia Bureau of Investigation; [(10)] and all maintenance, calibration, and test results stored in the software memory of the Intox 5000 as of the date of this motion.
After hearing argument of counsel, the trial court granted Smiley's motion and directed the state to produce to Smiley the "full information" requested, including but not limited to the items detailed above. The trial court further warned that a hearing would be convened prior to trial if the state failed to comply with the court's order. The state filed a motion for reconsideration, arguing that it was not required to produce the requested information because it was not in its possession and misdemeanor discovery rules only require the state to produce those documents in its possession; the records sought are neither "scientific reports" nor are they included under the "full information" prong of OCGA § 40-6-392(a)(4); and Smiley's right to confrontation is not impacted because a breath test is not testimonial hearsay. The state further argued that the source code, schematics, and service manuals for the Intox 5000 are retained by the manufacturer of the machine and, therefore, are not in the state's possession. The trial court denied the motion, citing Cottrell v. State,[1] in which we held that the full information requested by the defendant pursuant to OCGA § 40-6-392(a)(4), including source codes for the Intox 5000, were not discoverable because the defendant failed to show their relevance.[2] The trial court subsequently granted the state's motion for reconsideration, vacated all its prior orders, and directed the parties to file briefs in light of this Court's *96 decision in Hills v. State,[3] in which we held that source codes for the Intox 5000 were not discoverable because the defendant failed to meet his prima facie burden of showing that the state had possession or control of the codes.[4] The trial court then issued an order, finding Hills distinguishable and granting Smiley's motion to suppress/motion in limine for the reasons set forth in its original order. Shortly thereafter, the trial court granted Smiley's motion to suppress, finding that the state had produced the Intox 5000 breath test result strip, but refused to produce the other items as previously ordered. The trial court also ruled that the information requested has been shown by Smiley to be relevant and that "the [s]tate's argument that it does not possess the documents is not persuasive." The state appeals this ruling, arguing, inter alia, that the requested items are not required by law to be produced. Pretermitting whether the requested items are required by law to be produced, we find no error in the trial court's grant of the motion to suppress.
At a hearing on a motion to suppress, the trial judge sits as the trier of fact. And Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness. Thus, on appellate review of a trial court's order on a motion to suppress evidence, we never second-guess the trial court's factual findings where they are based on testimonial evidence. We construe the evidence most favorably to the upholding of the trial court's findings and judgment and affirm unless the court has committed an error of law.[5]
"Further, we must assume, absent the availability to us of whatever material the court considered while hearing evidence on the motion, that the court properly exercised its judgment and discretion in [ruling on a] defendant's motion to suppress."[6] OCGA § 40-6-392(a)(4), which applies to alcohol testing, requires that the state provide "full information concerning the test or tests [taken]." In Cottrell,[7] this Court noted:
OCGA § 40-6-392(a)(4) expanded previous discovery procedures which allowed discovery only of written scientific reports, and is consistent with the broad right of cross-examination embodied in OCGA § 24-9-64. Thus, as a general rule, a defendant now has the right to subpoena memos, notes, graphs, computer printouts, and other data relied upon by a state crime lab chemist in obtaining gas chromatography test results. A request directed to the state is also sufficient to require production of the information.[8]
While a defendant must show that the requested information is relevant, the state is not obligated to produce information that is not within its possession, custody or control.[9] Here, the trial court found that the requested materials were relevant and within the possession, custody or control of the state, and ordered the state to produce them. When the state failed to comply with the trial court's order, the trial court granted Smiley's motion to suppress the results of the breath test. In Birdsall v. State,[10] we noted that unlike OCGA § 17-16-23, OCGA § 40-6-392(a)(4) specifies no penalty for the state's noncompliance with discovery:
We do not agree with [the defendant] that the penalty should necessarily be exclusion of the printout and any oral testimony based on the test results, which were, in turn, based on the printout. On the other hand, exclusion of the printout, and the resulting test results and oral testimony, might be very appropriate upon a showing *97 of bad faith, or upon a showing of a failure to obey an order requiring production.[11]
In this case, the record reflects that the state disobeyed a discovery order. Moreover, without a transcript of the motion hearing, we must presume that the trial court found evidence of bad faith on the part of the state in not producing the requested information. Accordingly, we are unable to conclude that the trial court abused its discretion in suppressing the results of the breath test.
Judgment affirmed.
ELLINGTON, J., concurs. JOHNSON, P.J., concurs specially.
JOHNSON, Presiding Judge, concurring specially.
I am constrained to agree with the majority opinion not because I find the trial court rendered a correct ruling, but because the state failed to provide a proper record to enable this Court to review the trial court's ruling.
As the majority points out, we must construe the record most favorably to uphold the trial court's findings and judgments, and the applicable standard of review does not allow us to second-guess the trial court's factual findings where they are based on testimonial evidence. This is especially true when the appellant's assertion of error requires consideration of the evidence presented to the trial court. Here, each of the trial court's orders recites that the trial court considered, inter alia, "evidence of the parties," yet the appellant fails to file a transcript of the various hearings or attempt to reconstruct the proceedings in accordance with OCGA § 5-6-41(g) and (i). When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the trial court properly exercised its judgment and discretion and that the evidence supported the trial court's decision.[12]
That being said, I would like to point out that there were errors in the trial court's legal analysis. First, the trial court incorrectly ruled that Hills v. State[13] did not apply because Smiley requested the source codes under OCGA § 40-6-392(a)(4), rather than under OCGA § 17-16-23. According to the trial court, OCGA § 40-6-392(a)(4) mandates that "full information concerning the test or tests shall be made available" and does not require the information to be in the custody or possession of the state. This has never been the law. As the majority opinion correctly holds, it is well-established that the state cannot be compelled to produce items which are not in its possession.[14] "[W]hile a motion to produce may be filed and served on the state, such a motion will not reach material which is not in the state's possession."[15] The use of the term "full information" elsewhere in the Code does not compel us to deviate from settled law. Nonetheless, despite this error, the lack of a transcript or other evidence in record compels us to find that the trial court must have ascertained from proper evidence that the source codes and other items requested were both relevant and were in the state's possession, custody, or control. The trial court specifically noted in its order: "the State's argument that it does not possess the documents is not persuasive." This statement is ambiguous. It could be, and in the absence of a proper record probably must be, interpreted as a factual finding that the source codes and other requested documents were in the state's possession and control, however unlikely that may be. The statement could also be interpreted, in light of other legal conclusions drawn by the learned trial judge, as a *98 legal conclusion that the state was required to produce the items regardless of whether they were in the state's possession or control, where the state correctly argued it was not required to produce requested items which were not within its possession.
Second, it appears from the record that the trial court improperly shifted the burden of proof to the state in this case. We have previously found that before discovery will be ordered, the defendant must make a prima facie showing that the requested material is within the possession, custody, or control of the state.[16] Here, it appears that the trial court required the state to prove that it did not have possession, custody, or control of the source codes. However, once again, due to the lack of a transcript or admissions in the record to the contrary, we must presume that the trial court properly decided the issue.
It is important to note that the ruling in this case does not affect our decisions in Hills and Mathis. Our hands are simply tied in this case due to the state's failure to provide us with a record sufficient to enable us to review the trial court's decision.
NOTES
[1] 287 Ga.App. 89, 651 S.E.2d 444 (2007).
[2] Id. at 91(1), 651 S.E.2d 444.
[3] 291 Ga.App. 873, 663 S.E.2d 265 (2008).
[4] Id.
[5] (Punctuation and footnotes omitted.) State v. Rowell, 299 Ga.App. 238, 238-239, 682 S.E.2d 343 (2009).
[6] (Citations and punctuation omitted.) Rutledge v. State, 224 Ga.App. 666, 669(2), 482 S.E.2d 403 (1997).
[7] Supra.
[8] (Punctuation and footnotes omitted.) Id. at 90-91(1), 651 S.E.2d 444.
[9] Hills, supra; Cottrell, supra at 91(1), 651 S.E.2d 444.
[10] 254 Ga.App. 555, 562 S.E.2d 841 (2002).
[11] (Footnote omitted.) Id. at 558-559, 562 S.E.2d 841. Compare Rosas v. State, 276 Ga. App. 513, 518(2), 624 S.E.2d 142 (2005), citing OCGA § 17-16-6 (sanctions for failure to comply with Criminal Procedure Discovery Act appropriate if both prejudice to the defendant and bad faith by the state are shown).
[12] See Rutledge v. State, 224 Ga.App. 666, 669(2), 482 S.E.2d 403 (1997).
[13] 291 Ga.App. 873, 663 S.E.2d 265 (2008).
[14] See Cornell v. State, 165 Ga.App. 594, 595(2), 302 S.E.2d 133 (1983).
[15] Young v. State, 146 Ga.App. 167, 168(2), 245 S.E.2d 866 (1978); see also Shults v. State, 195 Ga.App. 525, 528(2), 394 S.E.2d 573 (1990).
[16] See Mathis v. State, 298 Ga.App. 817, 819(2), 681 S.E.2d 179 (2009); Hills, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262060/ | 132 Cal.Rptr.2d 377 (2003)
107 Cal.App.4th 691
The PEOPLE, Plaintiff and Respondent,
v.
Jesus ESPARZA, Defendant and Appellant.
No. C040863.
Court of Appeal, Third District.
April 1, 2003.
Review Denied June 25, 2003.[**]
*379 Deborah Prucha, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, Susan J. Orton, Deputy Attorney General, for Plaintiff and Respondent.
Certified For Partial Publication.[*]
*378 ROBIE, J.
This case presents two questions concerning eligibility for drug treatment programs established by Proposition 36. First, may a trial court send a defendant to prison for violating probation in a nondrug case when the violation is a new conviction for a drug possession felony? Second, if the trial court does send a defendant to prison for violating probation in the nondrug case, is the defendant still eligible for Proposition 36 drug treatment in the drug possession case?
Proposition 36, the "Substance Abuse and Crime Prevention Act of 2000" (Act), was approved by voters on November 7, 2000. The Act took effect on July 1, 2001, and is codified at Penal Code sections 1210, 1210.1, 3063.1,[1] and Division 10.8 (commencing with section 11999.4) of the Health and Safety Code. Proposition 36 requires the court to grant probation and drug treatment to any defendant convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation. (§ 1210.1, subd.(a).)
In this case, defendant was on probation for a nondrug-related felony, with execution of a three-year prison sentence suspended, at the time he committed the drug possession felony. The trial court sentenced him to prison on both cases.
We conclude that defendant was ineligible for Proposition 36 treatment on the nondrug-related felony, even though the drug possession felony was the cause of his probation revocation. We hold the trial court retained jurisdiction to order execution of the suspended prison sentence for the nondrug-related felony. We also hold that since defendant was sent to prison and is unavailable to participate in a Proposition 36 drug treatment program, he also may be sentenced to prison on the drug possession felony.
We affirm the judgment with modifications.
FACTUAL AND PROCEDURAL HISTORY
On October 6, 1999, defendant pled guilty to felony vandalism (§ 594, subd. (b)(2)) in case No. SCR2513 (the vandalism case).[2] On November 10, 1999, the trial court sentenced defendant to three years in prison, but suspended execution of sentence and placed him on four years' probation.
On September 29, 2001, defendant was arrested for possessing methamphetamine (Health & Saf.Code, § 11377, subd. (a)), resulting in the filing of case No. 02SCR5046 (the felony drug case).
On January 9, 2002, a preliminary hearing was held in the felony drug case, which also served as a probation revocation hearing *380 in the vandalism case.[3] Defendant was held to answer in the felony drug case and probation was revoked in the vandalism case.
On March 1, 2002, defendant pled guilty to possessing methamphetamine in the felony drug case and to possessing methamphetamine in a misdemeanor drug case. The trial court directed the probation department to consider a commitment of defendant to the narcotics addict program at the California Rehabilitation Center (CRC).
On March 22, 2002, after a contested hearing, defendant was sentenced to prison on the felony drug case and the vandalism case. Defense counsel acknowledged that defendant told the probation officer that he was not an addict and did not want to go to CRC. However, defendant told the trial court he had a problem with drugs and that treatment would be a "good idea." No mention was made of Proposition 36 or outpatient drug treatment.
The trial court ordered execution of the three-year suspended prison sentence in the vandalism case. The trial court denied probation in the felony drug case and sentenced defendant to eight consecutive months in prison, for a total term of three years eight months.
DISCUSSION
I
Defendant contends that he should not have been sentenced to prison because he was convicted of a nonviolent drug offense and was eligible for probation under Proposition 36. Defendant argues that the statute lists discrete criteria for ineligibility for Proposition 36 drug treatment, none of which apply to him. Defendant points out that the disqualifying factors listed in the statute do not include the situation presented here, in which a defendant is on probation for a nondrug-related offense, but then is convicted of a qualifying drug offense.
The People counter that Proposition 36 does not cover defendant's 1999 conviction for felony vandalism or any probation violations for that conviction because it is not a "nonviolent drug possession offense." The People argue that defendant failed to request Proposition 36 treatment at sentencing; therefore, he should be estopped from arguing the issue because his 1999 negotiated plea called for the imposed sentence. Finally, the People argue that defendant was ineligible for Proposition 36 treatment under section 1210.1, subdivision (b)(4), which disqualifies defendants who refuse drug treatment, inasmuch as he had failed to comply with probationary drug treatment in the past and was opposed to drug treatment at CRC.
A
Proposition 36 Comprehensive Sentencing Scheme
Proposition 36 established a comprehensive sentencing scheme for certain drug offenders. As discussed in a number of recent cases, the purpose of Proposition 36 is "[t]o divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses." (Prop. 36, § 3; People v. Murillo (2002) 102 Cal.App.4th 1414, 1417,126 Cal.Rptr.2d 358; In re DeLong (2001) 93 Cal.App.4th 562, 569, 113 Cal.Rptr.2d 385.) *381 The scheme offers these offenders the opportunity to participate in structured out-patient drug treatment programs in lieu of incarceration. The drug treatment programs are monitored and regulated by statute, and the program providers must report directly to the probation department. Within seven days of the court's order, the probation department must notify the drug program provider. (§ 1210.1, subd. (c).) Within 30 days of the notice, the drug program provider must prepare a treatment plan for the defendant. (Ibid.) Drug treatment services may not exceed 12 months or no more than 18 months for follow-up care. (§ 1210.1, subd. (c)(3).) Significantly, qualifying drug programs may not be located in a prison or jail facility. (§ 1210, subd. (b).)
The plain language of the statute defines eligibility for outpatient drug treatment. Section 1210.1 states, in relevant part: "(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation."[4]
Subdivision (b) sets forth five exceptions to eligibility for otherwise eligible defendants, which can be summarized as: 1) conviction of prior strike offenses within years; 2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; 3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof Of unamenability to drug treatment. (§ 1210.1, subd. (b).)
Finally, the statutory scheme includes detailed rules barring incarceration for those probationers who are on probation for nonviolent drug possession offenses. In pertinent part, section 1210.1, subdivision (e)(3) governs drug-relation probation violations. "If a defendant receives probation under subdivision (a), [for a nonviolent drug possession offense] and violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, ... or by violating a drug-related condition of probation," (italics added) then a system for adjudicating such probation violations follows. As we recently discussed in People v. Davis (2003) 104 Cal.App.4th 1443, 1448, 129 Cal.Rptr.2d 48, the revocation standards of section 1210.1, subdivision (e), are exclusively applicable to those defendants on probation for nonviolent drug possession offenses. For those defendants only, Proposition 36 supercedes the trial court's general power to revoke probation under sections 1203.2 and 1203.3. (Davis, at pp. 1447-1448, 129 Cal.Rptr.2d 48; People v. Murillo, supra, 102 Cal.App.4th at pp. 1418-1421, 126 Cal.Rptr.2d 358.)
B
Proposition 36 Does Not Apply to Drug-related Probation Violations when the Underlying Offense Is Not Drug Related
In determining whether defendant was eligible for Proposition 36 treatment for *382 the probation revocation in the vandalism case, we are guided by the plain language of the statute. The statute does not include any language applicable to defendants on probation for nondrug crimes. All of the provisions barring incarceration for probation violators refer solely and explicitly to defendants on probation for drug crimes. It is the underlying offense that controls.[5]
As recently explained in People v. Goldberg (2003) 105 Cal.App.4th 1202, 1208, 130 Cal.Rptr.2d 192, "Granting Proposition 36 treatment to a probationer who ... was convicted of a crime unrelated to drug possession as well as a drug possession offense, would be directly contrary to the purpose of the statute."
We decline the invitation to expand the statutory umbrella to include drug-related probation violations for nondrug offenses. If the drafters of the initiative had intended this unambiguous language to include all probationers, we assume they would have said so. "The drafters of Proposition 36 knew how to exclude the application of other sentencing statutes when they wanted to do so." (In re Mehdizadeh (2003) 105 Cal.App.4th 995, 1003, 130 Cal.Rptr.2d 98.) Defendant was not eligible for Proposition 36 treatment on the vandalism case.
This is not to say that the trial court could not have exercised its discretion to reinstate defendant's probation on the vandalism case in order to permit defendant to take advantage of the Proposition 36 programs in the felony drug case. The important point, however, is that the trial court was not required to do so. In the vandalism case, the trial court retained its general power under sections 1203.2 and 1203.3 to determine whether the violation was true and to make a disposition order that could result either in reinstatement of probation or in execution of the suspended prison sentence. (People v. Murillo, supra, 102 Cal.App.4th at pp. 1418-1421,126 Cal.Rptr.2d 358.)
C
The Trial Court was not Required to Place Defendant in a Drug Treatment Program for a Drug Offense when Defendant had Been Sentenced to Prison on a Nondrug-related Offense
The question remains whether defendant was eligible for Proposition 36 treatment on the felony drug case. We conclude defendant was eligible for Proposition 36 treatment on the felony drug case under the statutory criteria only if he had not been sent to prison for the vandalism case. However, because defendant was sent to prison with no access to drug programs administering Proposition 36 drug treatment, the trial court was not required to engage in the superfluous act of placing a defendant on probation when he could not participate in the treatment program required as a condition of that probation. We do not construe statutes to create absurd results. "`[I]t is fundamental that a statute should not be interpreted in a manner that would lead to absurd results.'" (People v. Bryant (1992) 10 Cal.App.4th 1584, 1600, 13 Cal.Rptr.2d 601; People v. Davis, supra, 104 Cal.App.4th at pp. 1447-1448,129 Cal.Rptr.2d 48.)
In order to accomplish its purposes, the statutory scheme includes extensive requirements for participation in outpatient drug treatment programs and rehabilitative probation conditions. Defendant had, through his prison sentence for the vandalism *383 case, become unable to participate in those programs or to comply with mandatory probation conditions. To claim that he should nevertheless have received a grant of probation on the drug offense while in prison on the vandalism case defies common sense and the letter of the law.[6]
Defendant could not participate in any approved drug program while incarcerated. Section 1210 explicitly provides: "The term `drug treatment program' or `drug treatment' does not include drug treatment programs offered in a prison or jail facility." (§ 1210, subd. (b).) Additionally, the statute requires that drug treatment begin within seven days of the trial court's order, by the probation department notifying the drug treatment provider, and the provider designing a treatment plan within 30 days. (§ 1210.1, subd. (c).) Neither the probation department nor any drug program provider could provide timely services to a prison inmate.
Therefore, had a Proposition 36 order for outpatient treatment continued after defendant had been delivered to state prison, probation revocation would inevitably be scheduled and accomplished under section 1210.1, subdivision (c)(1) and (2). That section provides procedures by which a drug treatment provider and the probation department may petition the court to revoke probation because a defendant is entirely "unamenable" to drug treatment. We conclude that defendant is "unamenable" when he is unavailable to participate in Proposition 36 programs within the statutory time periods because of his prison sentence.[7]
D
Defendant did not Waive his Proposition 36 Argument by not Requesting Drug Treatment
We disagree with the People that since defendant did not "request" Proposition 36 treatment, he has "waived" the issue for appellate review. When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors, including refusing drug treatment. (§ 1210.1, subd. (b)(4).) Placement of eligible defendants in Proposition 36 programs is not a discretionary sentencing choice made by the trial judge and is not subject to the waiver doctrine. (People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802.)
II[**]
DISPOSITION
The judgment is modified to include imposition of a laboratory fee of $50 under Health and Safety Code section 11372.5, a state penalty assessment of $50 under section 1464, and a county penalty assessment of $35 under Government Code section 76000. The superior court is ordered to issue a modified abstract of judgment and to forward a certified a certified copy *384 to the Department of Corrections. As modified, the judgment is affirmed.
We concur: SCOTLAND, P.J., and CALLAHAN, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
[**] George, C.J., did not participate therein.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] According to the probation officer's report, defendant and his companions broke out the windows of a car with baseball bats. Further discussion of the facts of the crime is unnecessary to this appeal.
[3] Before beginning the hearing, the defendant was served with declarations supporting an additional probation violation stemming from another arrest on December 22, 2001, for misdemeanor possession of methamphetamine and possession of drug paraphernalia.
[4] The statutory scheme also permits participation in Proposition 36 treatment by certain parolees who only violate parole by committing nonviolent drug possession offenses or who violate drug-related parole conditions. (§ 3063.1, subd. (a).) Significantly, the plain language of this statute does not require that parolees be on parole for a drug offense.
[5] The statute applicable to parolees, in contrast, is directed to the nature of the violation, not the underlying offense. (§ 3063.1.)
[6] We dare to suggest that this claim is also not in defendant's best interest. In order to avoid a de facto consecutive sentence, California law provides a procedure to have probationary sentences revoked when a defendant receives a prison sentence. (§ 1203.2a.)
[7] Because defendant was not eligible for probation and drug treatment on the felony drug case due to his prison sentence on the vandalism case, we need not reach the People's arguments that defendant was "unamenable" to drug treatment on other grounds. Similarly, we do not find that defendant "refused" drug treatment as a condition of Proposition 36 probation, although we recognize his failures to participate in past probationary drug treatment programs and his lack of interest in CRC.
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262106/ | 239 P.3d 366 (2010)
STATE of Washington, Respondent,
v.
Kenneth Michael LaPLANT, Appellant.
No. 39602-5-II.
Court of Appeals of Washington, Division 2.
July 13, 2010.
Publication Ordered September 14, 2010.
Catherine E. Glinski, Attorney at Law, Manchester, WA, for Appellant.
Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.
WORSWICK, J.
¶ 1 Kenneth LaPlant appeals from his conviction for unlawful possession of methamphetamine, arguing that the trial court's refusal to instruct the jury on unlawful use of drug paraphernalia as a lesser included offense violated his right to present a defense. We affirm.[1]
FACTS
¶ 2 On April 4, 2009, during a lawful search, a deputy found a plastic baggie, containing what later tested positive as methamphetamine residue, in LaPlant's vehicle. LaPlant told the deputy that he had used the methamphetamine in the baggie the night before. The State charged LaPlant with unlawful possession of methamphetamine from March 28 to April 4, 2009. During trial, LaPlant admitted that he had stored methamphetamine in the baggie but thought he had used all of the methamphetamine the night before and so did not know he was in possession of methamphetamine when the deputy seized the baggie. He asked the trial *367 court to instruct the jury on the lesser crime of unlawful use of drug paraphernalia. After initially granting his request, the trial court ultimately denied it, noting that a defendant could possess a controlled substance without using drug paraphernalia. A jury found LaPlant guilty as charged and he appeals.
ANALYSIS
¶ 3 A defendant is entitled to a lesser included offense instruction if (1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) the evidence in the case supports an inference that only the lesser crime was committed (factual prong). State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978). The factual prong is satisfied when, viewing the evidence in the light most favorable to the party requesting the instruction, substantial evidence supports a rational inference that the defendant committed only the lesser included or inferior degree offense to the exclusion of the greater one. State v. Fernandez-Medina, 141 Wash.2d 448, 461, 6 P.3d 1150 (2000).
¶ 4 We review de novo the legal prong of a request for a jury instruction on a lesser included offense. State v. Walker, 136 Wash.2d 767, 772, 966 P.2d 883 (1998). We review for abuse of discretion the factual prong of a request for a jury instruction on a lesser included offense. Walker, 136 Wash.2d at 771-72, 966 P.2d 883.
¶ 5 The crime of unlawful possession of a controlled substance requires proof of two elements: (1) possession (2) of a controlled substance. RCW 69.50.4013(1). The crime of unlawful use of drug paraphernalia requires proof of three elements: (1) use (2) of drug paraphernalia (3) to "plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance." RCW 69.50.412(1). "Drug paraphernalia" means:
all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.
RCW 69.50.102.
¶ 6 The elements of unlawful use of drug paraphernalia are not necessary elements of unlawful possession of a controlled substance. A defendant can possess a controlled substance without using drug paraphernalia. Moreover, proof that a defendant used drug paraphernalia requires proof of an element not found in the crime of possession, i.e., that the defendant used the drug paraphernalia in a prescribed manner. Thus, the trial court did not err in ruling that LaPlant's request for a lesser included instruction for unlawful use of drug paraphernalia did not meet the legal prong of the Workman test. Because LaPlant's argument fails on the legal prong, we need not address the factual prong. The trial court did not err when it denied LaPlant's request for a lesser included instruction on unlawful use of drug paraphernalia.
¶ 7 Affirmed.
We concur: ARMSTRONG and VAN DEREN, JJ.
NOTES
[1] A commissioner of this court initially considered LaPlant's appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312881/ | MEMORANDUM & ORDERBackground 3Desir's pro se complaint, though rife with legal conclusions, reveals little by way of operative facts. Obvious from the caption, subject of the suit is real property, which the complaint identifies as being located at 1192 East 46 Street in Brooklyn (the "property"). Desir had purchased it in 2006 to use as her personal residence. Compl. at 4. BNY, represented by its attorneys, Frenkel Lambert, initiated a foreclosure action against the property in Kings County Supreme Court on June 24, 2015. BNY was awarded a final judgment of foreclosure and sale on March 14, 2018.4th*171Id. at 7; see also Mar. 14, 2018 Order, Dkt. 145, Bank of New York Mellon as Trustee (CWALT 2006-31B) v. Carlyne Desir et al. , No. 507782/2015 (granting BNY's motion for judgment of foreclosure and sale and denying Desir's cross-motion in opposition).Desir filed the instant suit on May 3, 2018. She contends, generally, that BNY "improperly prosecut[ed] an unlawful foreclosure action based on an invalid note, an invalid mortgage and invalid default." Compl. at 7. As to the other defendants, Desir alleges that they each claim "an entitlement" to the property, which she seeks to challenge through this suit. Id. at 4. Desir notes that, while she is not sure what the basis is for those alleged entitlements, she included the other entities as defendants anyway, because she "cannot determine which claim(s) is/are valid without exposing [herself] to potential double litigation." Id. Transparently, Desir appears largely unsure as to the appropriate legal vehicle to present her challenges, thus relying on a spattering of them without any factual allegations in the complaint even remotely suggesting that some of these statutory and common law claims might be plausibly stated.Standard of Review"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005). Hardly confined to the four corners of the plaintiff's complaint in determining whether a plaintiff has satisfied her burden of showing the existence of subject matter jurisdiction, a district court may consider evidence outside the pleadings. Makarova , 201 F.3d at 113. Since subject matter jurisdiction is a threshold issue, when a party moves to dismiss under both Rule 12(b)(1) and 12(b)(6), the motion court must address the 12(b)(1) motion first. Sherman v. Black , 510 F.Supp.2d 193, 197 (E.D.N.Y. 2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n , 896 F.2d 674, 678 (2d Cir. 1990) ).If subject matter jurisdiction has been established, to survive a Rule 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This "plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted). On a Rule 12(b)(6) motion, a court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass'n for Victims of Agent Orange , 517 F.3d at 115.Of course, where a plaintiff proceeds pro se , the district court must read the complaint liberally, affording the pleadings the strongest interpretation possible. See *172Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). While a pro se plaintiff should be given the opportunity to amend the pleadings at least once, such leave need not be provided where amendment would be futile. See Hill v. Curcione , 657 F.3d 116, 123-24 (2d Cir. 2011) (upholding denial of leave to amend).DiscussionDefendants raise a plethora of grounds for dismissal, beginning with the argument that the Court lacks subject matter jurisdiction over plaintiff's claims because of the Rooker - Feldman doctrine. FCB Mem. at 4, Dkt. 59-13; BNY/Bayview Mem. at 6, Dkt. 63-28; MERS Mem. at 6, Dkt. 65-13; BoA Mem. at 4, Dkt. 67-2; Frenkel Lambert Mem. at 4, Dkt. 75-12. Since the jurisdictional argument takes precedence over the others, the Court evaluates it first.I. Rooker-Feldman DoctrineThe Supreme Court's decisions in Rooker and Feldman "established the clear principle that federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Hoblock v. Albany Cnty. Bd. of Elections , 422 F.3d 77, 84 (2d Cir. 2005) ; Rooker v. Fidelity Trust Co. , 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923) ("no court of the United States other than [the Supreme Court]" has appellate jurisdiction over state court judgments); District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ("a United States District Court has no authority to review final judgments of a state court in judicial proceedings"). Implementing this doctrine in the Second Circuit, a suit is barred by Rooker - Feldman where the federal court plaintiff lost in the state proceeding, complains of injuries caused by that state court judgment, seeks "district court review and rejection" of the state court judgment, and where the state court judgment was rendered before the federal suit began. Hoblock , 422 F.3d at 85. Importantly, for the Rooker - Feldman doctrine to have application, the aggrieved injury must have been "caused by" a state court judgment "and not simply ratified, acquiesced in, or left unpunished by it." Id. at 88 ; see also Sung Cho v. City of New York , 910 F.3d 639, 647 (2d Cir. 2018) (claims based on "wrongful conduct leading to settlement terms", and not the state court's approval of settlement, not barred by Rooker - Feldman ); Sykes v. Mel S. Harris & Assocs. LLC , 780 F.3d 70, 94-95 (2d Cir. 2015) (claims that "speak not to the propriety of the state court judgments, but to the fraudulent course of conduct that defendants pursued in obtaining such judgments" not barred by Rooker - Feldman ).Still, heeding that interpretive caution, courts in this circuit routinely dismiss challenges to state court foreclosure judgments under Rooker - Feldman . See, e.g. , Andrews v. Citimortgage, Inc. , No. 14-CV-1534 (JS)(AKT), 2015 WL 1509511, at *4 (E.D.N.Y. Mar. 31, 2015) (plaintiffs alleged illegal securitization and foreclosure judgment obtained through fraud); Done v. Wells Fargo, N.A. , No. 12-CV-04296 (JFB)(ETB), 2013 WL 3785627, at *7 (E.D.N.Y. July 18, 2013) (concluding that "the whole purpose of this action is to undo the foreclosure judgment"); Scott v. Capital One, Nat. Assocs. , No. 12-CV-00183 (ER), 2013 WL 1655992, at *2 (S.D.N.Y. Apr. 17, 2013) (plaintiff's RESPA and TILA claims were "merely an impermissible collateral attack of a state court judgment of foreclosure").This suit, which attacks a final judgment of foreclosure and sale previously rendered in state court, falls squarely within the bounds of Rooker - Feldman . At the outset, Desir describes it as an "interpleader action"*173seeking "relief from a judgment or order" under Rule 60(b). Compl. at 4-5. Her core grievance concerns BNY's pursuit of foreclosure without "any lawful proof of claim and standing"; as part of the relief sought, she asks BNY to dismiss the state court proceeding. Id. at 7, 12. She connects the defendants to the foreclosure judgment in myriad ways, under the common thread that they all claim "entitlements" to the property. For instance, she summarily alleges that BoA, Bayview and Frenkel Lambert acted as "third party debt collectors" in relation to the foreclosure action. Id. at 8-9. She also contends that BNY and MERS "recorded a fraudulent assignment of mortgage" on the property, thus calling into question any entity's standing to foreclose. Id. at 6, 12.Broadening focus, Desir purports to bring claims for fraud, which might survive Rooker - Feldman if the fraudulent conduct alleged did not lie at the core of the very loan agreement that was not only found valid in state court but was enforced by its judgment. For example, she claims that JPMCB committed "fraud and unjust enrichment" in relation to a loan it extended to her, because "Carlyne Desir funded the loan, which the bank still has not repaid me for! ... I'm the creditor because I put up the security for the loan." Compl. at 11. Certainly, had Desir's complaint given any indication that the fraudulent conduct at the center of the claim related to something other than the making of the foreclosed loan agreement, that is, something independent of a challenged state court judgment, such claims would not implicate Rooker - Feldman . See Graham v. Select Portfolio Servicing, Inc. , 156 F.Supp.3d 491, 507-08 (S.D.N.Y. 2016) (claims alleging invalid assignment of note upon which foreclosure was based barred by Rooker - Feldman while claims alleging breach of separate loan modification agreement not barred). But, attacking the very contract enforced by the state court as fraudulent is a claim that cannot be stated independently *174of the prior state court judgment; thus, Rooker - Feldman bars it.6II. Failure to State a ClaimEven if there were subject matter jurisdiction, the complaint would nevertheless fail on 12(b)(6) grounds, as it consists entirely of conclusory and speculative allegations that fail to state a claim under any cause of action. Desir purports to assert federal claims for violations of FDCPA, TILA, FCRA, RESPA, and RICO, and state law claims for fraud, breach of contract, breach of fiduciary duty, unjust enrichment, and defamation. As BNY and Bayview correctly observe, the "disorganized and incomprehensible" complaint does not meet the pleading standards set forth under Twombly / Iqbal and Rule 8(a)(2), "consisting instead of a series of legal conclusions and bald references to causes of action, without any factual support." BNY/Bayview Mem. at 8.a unilateral contract with no Duty or Performance signature by Defendant to provide any consideration whatsoever to Plaintiff. Until such a time that Defendant comes forth with proof of damages by providing original wet ink contract, and agrees to provide such lawful proof under oath, Plaintiff believes Defendant demand(s) [sic ] is entirely based on Hearsay, and that there is no lawful proof to the contrary, and therefore no controversy whatsoever before the Court to for foreclosure [sic ] on my property.Compl. at 7. In addition to these nonsensical attacks on the loan agreement, she repeatedly intones the names of various causes of action with no factual development whatsoever, such as: "CPA Audit is Fraud and GAAP Violation. FRAUD, violations of UCC 3-501, and Unjust enrichment .... BOA breach of contract and fiduciary duties." Compl. at 8. In a rambling manner, she asserts that "Frenkel Lambert Weiss, LLP Attorneys' statements are hearsay, counsels [sic ] do not have personal knowledge of the note, mortgage, deed, or my property", (id. at 10); "[defendants] began writing defamatory things about the plaintiff and prepared documents containing per se false, unfair and defamatory statements about plaintiff", (id. ); and "defendants intentionally inflicted emotional distress on plaintiff. Defendants [have] intentionally cause[d] me emotional distress, caused plaintiff suffering, mental and emotional distress .... this damages my reputation intentionally, recklessly, and with malice, spite and ill will", (id. ; see also id. at 12-14). No context is given for these extreme and conclusory allegations.Plaintiff has failed to state a claim with regard to any of the causes of action recited, in rote and seemingly endless fashion, throughout the complaint. Accordingly, even if the Court were to have subject matter jurisdiction over such claims, dismissal would still be warranted pursuant to Rule 12(b)(6). See, e.g. , Gonzalez v. Option One Mortg. Corp. , No. 3:12-CV-1470 (CSH), 2014 WL 2475893, at *13 (D. Conn. June 3, 2014) ("[W]here the Complaint *175is vague, ambiguous, or otherwise unintelligible, were it to be determined that the Court possesses subject matter jurisdiction, the Complaint is alternatively dismissed for failure to state any claim upon which relief may be granted."). Nor to the extent that a statute on plaintiff's laundry list of statutory violations might afford her a right of action on the grievances she asserts does the complaint give indication that any attempted amendment would be anything but futile.ConclusionIn line with the foregoing, the motions to dismiss are granted and the action is dismissed without prejudice except as to its refiling in federal court. Furthermore, plaintiff is hereby placed on notice that the re-assertion of the same claims against defendants in any future action filed in federal court may present grounds for sanctions. The Clerk of Court is directed to mail a copy of this Order to pro se plaintiff, to enter judgment, and to close this case for administrative purposes.So Ordered.Complaint page references are to ECF pagination.Off on the other foot, Stewart Title has elected to move for summary judgment, pursuant to Rule 56. Plaintiff has filed an opposition to that motion, styled as a cross-motion for summary judgment. See Stewart Title Mot. for Summ. J., Dkt. 78; Pl.'s Cross-Mot. for Summ. J., Dkt. 80. Stewart Title notes that the complaint "contains only two paragraphs concerning [it] ... which consist of a string of nonsensical phrases lacking any specific factual allegations" and purporting to assert claims for fraud and breach of fiduciary duty. Stewart Title Mem. at 3, Dkt. 78-15. In light of the Court's findings, infra pages 173-74 and 174-75, that plaintiff's challenge to the foreclosure judgment is barred by Rooker - Feldman and plaintiff has failed to state any viable claims falling outside the scope of Rooker - Feldman , the claims against Stewart Title are dismissed on that basis and plaintiff's purported cross-motion is denied.The background facts are taken from the complaint. See Chambers v. Time Warner, Inc. , 282 F.3d 147, 153 (2d Cir. 2002). All facts alleged in plaintiff's pleadings are taken as true and all reasonable inferences are drawn in her favor. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co. , 517 F.3d 104, 115 (2d Cir. 2008).The complaint also references a 2012 state court foreclosure action initiated by BNY against the property, which did not reach a final judgment; the last filing on the docket is BNY's Notice of Intent to Prosecute. See Apr. 25, 2017 Notice, Dkt. 28, Bank of New York Mellon as Trustee (CWALT 2006-31 B) v. Carlyne Desir et al. , No. 502162/2012. Desir appears to construe the two suits as one foreclosure action, though the complaint here primarily focuses on the 2015 action. The Court takes judicial notice of the state court filings. See AQ Consulting WLL v. Branca , No. 10-CV-7496 (AKH), 2011 WL 240812, at *1 (S.D.N.Y. Jan. 19, 2011) (taking judicial notice of state court filings on motion to dismiss).In her other opposition filings, plaintiff makes similar arguments and reiterates the allegations from the complaint. See, e.g. , Pl.'s Opp'n to MERS Mot., Dkt. 58; Pl.'s Opp'n to BoA Mot. at 4, Dkt. 61 (referring to state court as "a Kangaroo court, sham legal proceedings"); Pl.'s Opp'n to Frenkel Lambert Mot., Dkt. 76; Pl.'s Opp'n to JPMCB Mot., Dkt. 72-13; Pl.'s Cross-Mot. for Summ. J.To the extent that plaintiff seeks to assert state law claims unconnected to her challenge to the foreclosure judgment, such as for defamation, the Court declines to exercise supplemental jurisdiction over those claims. See, e.g. , Webster v. Wells Fargo Bank, N.A. , No. 08-CV-10145, 2009 WL 5178654, at *5 (S.D.N.Y. Dec. 23, 2009) (declining to exercise supplemental jurisdiction where "nearly all of Plaintiffs' claims are barred by the Rooker - Feldman doctrine" and the pendent claims "are implausible under Iqbal "). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1324644/ | 360 S.C. 421 (2004)
602 S.E.2d 56
Bennie WICKER, Respondent,
v.
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Appellant.
No. 25859.
Supreme Court of South Carolina.
Submitted April 21, 2004.
Decided August 23, 2004.
*422 Lake Eric Summers, of Vinton D. Lide & Associates, of Lexington, for Appellant.
Bennie Wicker, Jr., of Bennettsville, pro se.
Justice WALLER:
This is a direct appeal from an order of the circuit court which affirmed the decision of the Administrative Law Judge (ALJ). The ALJ held that Respondent, Bennie Wicker, was entitled to be compensated the prevailing wage of $5.25 per hour for the time he was in training for his employment at the South Carolina Department of Corrections (DOC) Division of Prison Industries. We affirm.
FACTS
Wicker, while an inmate at Evans Correctional Institute, participated in the Prison Industries Program. During the first 320 hours of his employment, he was paid .25-.75 per hour; he was thereafter paid an hourly wage of $5.25. He filed an inmate grievance contending his training wages violated the Prevailing Wage Statute, S.C.Code Ann. § 24-3-430(D) (Supp.2002). The DOC denied his appeal, and he appealed to the Administrative Law Judge (ALJ). The ALJ reversed the DOC's decision, finding Wicker was entitled to the prevailing wage during his first 320 hours of employment, and finding no authority for the DOC to deviate from the plain requirement of § 24-3-430. Accordingly, the DOC was ordered to compensate Wicker at a rate of $5.25 per hour for his first 320 hours of work. The circuit court affirmed.
*423 ISSUE
Did the circuit court err in holding Wicker was entitled to a $5.25 per hour training wage?
DISCUSSION
The statutes under which Wicker seeks relief are part of a statutory scheme creating a Prison Industries (PI) program to provide for employment of convicts and utilize their labor for self-maintenance and reimbursement of expenses. See S.C.Code Ann. § 24-3-310 (Supp.2003). In 1995, the General Assembly enacted S.C.Code Ann. 24-3-430, authorizing the DOC to use inmate labor in private industry. Section 24-3-430(D) provides that, "[n]o inmate participating in the program may earn less than the prevailing wage for work of similar nature in the private sector." Wicker filed an inmate grievance with the DOC, alleging his training wage of .25-.75 per hour was in violation of the statute. The DOC denied his grievance and he appealed to the ALJ, who reversed. The ALJ found no statutory authority for DOC to pay Wicker less than the prevailing wage; the circuit court affirmed.
The DOC appeals, contending the statutes under which Wicker seeks relief do not entitle him to the prevailing wage, and asserting the ALJ was without subject-matter jurisdiction to hear his appeal.
As recognized in the companion case of Adkins v. South Carolina Dep't of Corrections, 360 S.C. 413, 602 S.E.2d 51, 2004 WL 1878705 (2004), we agree with the DOC that section 24-3-430(D) does not give rise to a private, civil cause of action in Wicker. However, simply because Wicker may not file a civil claim for damages in circuit court does not mean he is without any remedy. There are numerous issues relating to inmates which, although not giving rise to a private, civil cause of action, are nonetheless grievable through DOC's internal grievance processes. For example, although inmates may not sue for civil damages on matters relating to parole, work release, or work credits, they may enforce such rights via DOC grievance procedures. We find no reason such procedures should not apply when an inmate challenges the wages he or she is being paid, particularly where there is a statute mandating payment of the prevailing wage. Accordingly, *424 we hold that although Wicker has no claim for civil damages, he properly filed a grievance with the DOC.
The DOC also contends, citing the ALJD's en banc decision in McNeil v. South Carolina Dept. of Corrections, 02-ALJ-04-00336-AP (filed Sept. 5, 2001), that the ALJ was without subject-matter jurisdiction to review its denial of Wicker's grievance. We disagree.
We find that where, as here, the state has created a statutory right to the payment of a prevailing wage, it cannot thereafter deny that right without affording due process of law. Cf. Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (where state has established, by statute, a right of inmates to compensation for work performed for private parties, it cannot deny that right after they earned the wages, without affording due process of the law); Borror v. White, 377 F. Supp. 181 (W.D.Va.1974) (although there was no federal constitutional right to payment, inmate might be entitled to such compensation under state statute).
We are not unmindful of our opinion in Sullivan v. South Carolina Dep't of Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003), in which we held the ALJ has jurisdiction to review DOC grievance proceedings only if they involve the denial of "state created liberty interests." There, we recognized that our opinion in Al-Shabazz v. State, 338 S.C. 354, 368, 527 S.E.2d 742, 750 (1999), held that administrative matters typically arise in two ways: (1) when an inmate is disciplined and punishment is imposed and (2) when an inmate believes prison officials have erroneously calculated his sentence, sentence-related credits, or custody status. However, we did not limit Al-Shabazz to these two instances. The Al-Shabazz Court explained that procedural due process is guaranteed when an inmate is deprived of an interest encompassed by the Fourteenth Amendment's protection of liberty and property. 338 S.C. at 369, 527 S.E.2d at 750.
We find the state's statutory mandate that inmates be paid the prevailing wage creates such an interest, which may not be denied without due process. Piatt v. MacDougall, supra. Accordingly, in this very limited circumstance,[1] we hold the *425 DOC's failure to pay in accordance with the statutes is reviewable by the ALJ.
Finally, we concur with the ALJ and the circuit court that there is simply nothing in the statutory scheme authorizing the DOC to pay Wicker a training wage less than the prevailing wage. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (If a statute's language is plain, unambiguous, and conveys a clear meaning, "the rules of statutory interpretation are not needed and the court has no right to impose another meaning"). Accordingly, the judgment below is affirmed.
AFFIRMED.
TOAL, C.J., and BURNETT, J., concur. PLEICONES, J., dissenting in a separate opinion. MOORE, J., not participating.
Justice PLEICONES, dissenting:
As explained more fully in my concurring opinion in Adkins v. South Carolina Dep't of Corrections, ___ S.C. ___, 602 S.E.2d 51, 2004 WL 1878705 (2004), I would hold that respondent's remedy is found in the South Carolina Payment of Wages Act, S.C.Code Ann. §§ 41-10-10, et seq. (Supp. 2003). Accordingly, I dissent.
NOTES
[1] We note that our holding today is extremely limited and is not to be viewed as expanding the jurisdiction of the ALJ in any other circumstance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324627/ | 689 S.E.2d 82 (2009)
HAYWOOD
v.
The STATE.
No. A09A1989.
Court of Appeals of Georgia.
December 16, 2009.
*83 Richard Parker, Fort Benning, for appellant.
Joseph K. Mulholland, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.
BERNES, Judge.
The jury found Darris Haywood a/k/a Darrius Haywood guilty of possession of marijuana with intent to distribute and possession of cocaine with intent to distribute. On appeal, Haywood contends that there was insufficient evidence to convict him. He further contends that the trial court erred by excluding testimony concerning the circumstances surrounding his co-defendant's arrest, and by admitting expert testimony relating to the cocaine charge that was based upon hearsay and violative of his constitutional right to confrontation. Discerning no error, we affirm.
1. Following a criminal conviction, the defendant is no longer presumed innocent, and the evidence is viewed in the light most favorable to the jury's verdict. See Wallace v. State, 294 Ga.App. 159(1), 669 S.E.2d 400 (2008). "We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt." (Citation and punctuation omitted.) Neugent v. State, 294 Ga.App. 284, 285(1), 668 S.E.2d 888 (2008). See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
So viewed, the evidence adduced at trial showed that officers with the Southwest Georgia Drug Task Force executed a search warrant for drugs on a hotel room that was registered under the name of co-defendant Elgin Clayton. The officers found marijuana in the hotel room. Although Clayton was not in the room at the time of the search, his girlfriend was there, and the officers convinced her to call Clayton and ask him to return to the room.
Following the phone call, the officers observed a vehicle pull into the hotel parking lot. Clayton was driving and defendant Haywood was riding in the front passenger seat. Clayton exited the vehicle and approached the hotel room, but fled on foot when he saw *84 the police officers. Two officers pursued him, but Clayton escaped apprehension.
Approximately one minute after Clayton fled on foot, an officer approached the vehicle from which Clayton had exited. The engine was still running, and Haywood remained seated in the front passenger seat. The officer saw that Haywood had a bag on his lap; he ordered Haywood out of the vehicle and seized the bag, which contained contraband that later tested positive as marijuana and cocaine. The bag was placed in the custody of an investigator with the drug task force, who maintained control over the bag until the contents were tested. After he was ordered from the vehicle, Haywood spontaneously asserted that the drugs were Clayton's but admitted to an officer that he had been holding the drugs for Clayton while the latter went to the hotel room.
Clayton was taken into custody almost two weeks later. Subsequently, Clayton and Haywood were jointly indicted and tried for possession of marijuana with intent to distribute, OCGA § 16-13-30(j)(1), and possession of cocaine with intent to distribute, OCGA § 16-13-30(b).[1] At trial, the officer who had ordered Haywood out of the vehicle and had seized the bag of contraband, as well as the investigator who took custody of the bag, testified to the events as set out above. Additionally, the officer was tendered, without objection, as an expert in marijuana identification, and he testified that he had tested the substance found in the bag and that in his expert opinion it was marijuana weighing 15.59 grams. He further opined that based on his training and experience, the amount and packaging of the marijuana was consistent with distribution rather than individual use. With respect to the cocaine, the investigator similarly opined that the cocaine found in the bag had a street value that was consistent with drug distribution. The state also called a forensic chemist from the state crime lab who was tendered, without objection, as an expert in forensic chemistry. The chemist testified that in her expert opinion, the other substance in the bag was cocaine weighing 17.84 grams.
Clayton did not testify at trial. In contrast, Haywood took the stand and testified that the drugs in the bag belonged to Clayton and that his only intention was to "smoke a blunt" with his friend. Haywood admitted, however, that he had known that Clayton was going to sell drugs to somebody in the hotel room.
After hearing all the testimony, the jury convicted Clayton and Haywood of the charged offenses. On appeal, Haywood maintains that there was insufficient evidence that he intended to distribute the drugs found in the bag on his lap. In this respect, he argues that the state was required to present expert testimony showing that the amount of the seized drugs reflected an intent to distribute rather than mere personal use. Haywood also argues that even if Clayton intended to distribute the drugs, he did not share in that intent because his only intent was to use some of the drugs himself. We disagree.
In order to prove a defendant guilty of possession with intent to distribute beyond a reasonable doubt, the state must prove more than mere possession. Hicks v. State, 293 Ga.App. 830, 831-832, 668 S.E.2d 474 (2008). But contrary to Haywood's contention, the state is not required to present expert testimony on the issue of intent to distribute.
We have considered various kinds of additional evidence as proof of intent to distribute, including drug measuring and weighing paraphernalia, the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.
(Citation and punctuation omitted; emphasis supplied.) Id. at 832, 668 S.E.2d 474. Moreover, even if not formally admitted as an *85 expert, a police officer may give his opinion as to whether the amount or value of the contraband is consistent with distribution, if the state lays a foundation for the opinion by eliciting testimony about the officer's experience and training in drug enforcement. See Daniels v. State, 278 Ga.App. 263, 267(2), 628 S.E.2d 684 (2006); Tate v. State, 230 Ga.App. 186, 188-189(3), 495 S.E.2d 658 (1998). In any event, if the defendant does not timely object at trial to the state's alleged failure to lay an adequate foundation for the officer's opinion testimony, such an objection is waived on appeal. See Driscoll v. State, 295 Ga.App. 5, 7(1)(a), n. 1, 670 S.E.2d 824 (2008); Clark v. State, 248 Ga.App. 88, 91(3), 545 S.E.2d 637 (2001).
Here, the officer seized 15.59 grams of marijuana and 17.84 grams of cocaine from the bag in Haywood's lap. Without objection by Haywood, the officer opined that the amount and packaging of the marijuana was consistent with distribution rather than individual use, and the investigator similarly opined that cocaine found in the bag had a street value consistent with drug distribution. Haywood also admitted on the stand that the purpose of Clayton going to the hotel was to sell drugs. This evidence showed that the drugs were not merely for personal use.
Furthermore, although Haywood did not himself approach the hotel room to carry out the sale, there was evidence that he shared in Clayton's intent to distribute the drugs. A defendant who does not directly commit the crime nevertheless may be convicted as a party to the crime if he intentionally aids or abets in its commission. See OCGA § 16-2-20(b)(3); Green v. State, 298 Ga.App. 17, 20(1), 679 S.E.2d 348 (2009). "Whether a person is a party to a crime may be inferred from that person's presence, companionship, and conduct before, during and after the crime." (Footnote omitted.) Marshall v. State, 275 Ga. 740, 742(4), 571 S.E.2d 761 (2002).
There was evidence that Haywood had actual possession of the drugs, accompanied Clayton to the hotel, knew that Clayton was going to the hotel room to sell drugs to someone there, and had agreed to hold the bag of drugs while Clayton went to the room with the engine of the car still running.[2] In light of this evidence, the jury could have found that Haywood actively participated in the attempted drug dealing activity by guarding the drug stash and by staying with the still running vehicle to facilitate a quick getaway if necessary.
While Haywood denied that it was his intent to distribute the drugs, "[i]t is the jury's prerogative to choose what evidence to believe and what to reject. Issues regarding the credibility of witnesses are in the sole province of the jury and only the jury may analyze what weight will be given each witness's testimony." (Punctuation and footnote omitted.) Lamb v. State, 293 Ga.App. 65, 67, 666 S.E.2d 462 (2008). Based upon the evidence presented at trial, a rational trier of fact was authorized to find Haywood guilty beyond a reasonable doubt of being a party to the crimes of possession of marijuana and cocaine with intent to distribute. See Jackson, 443 U.S. 307, 99 S. Ct. 2781. See also OCGA § 16-2-20(b)(3); Armstrong v. State, 298 Ga.App. 855, 859(1), 681 S.E.2d 662 (2009) (defendant convicted as a party to the crime of possession with intent to distribute). See generally In the Interest of C.L., 289 Ga.App. 377, 380(1)(b), 657 S.E.2d 301 (2008) (defendant's participation in crime could be inferred based in part upon continued involvement with co-defendants despite prior knowledge that crime would occur); Baggs v. State, 265 Ga.App. 282, 283, 283-284(1), 593 S.E.2d 734 (2004) (defendant's participation in drug sale inferred based upon fact that he accompanied seller to the scene and sat in car with large amount of drugs stashed directly underneath his seat while seller approached undercover buyer to finalize sale).
2. Haywood contends that the trial court erred by excluding a police officer's testimony *86 concerning the circumstances surrounding Clayton's arrest. According to Haywood's proffer before trial, the officer would have testified that Clayton had cocaine in the car with him at the time of his arrest. Haywood contends that the trial court should have allowed this testimony because it would have supported his claim that Clayton alone was the drug dealer and that the drugs seized in this case belonged exclusively to Clayton. Again, we disagree.
"Evidence of the circumstances surrounding an arrest is subject to the same standards of relevancy and materiality that govern the admission of all other evidence, and the decision whether to admit evidence connected to an arrest lies within the discretion of the trial court." (Footnote omitted.) Dukes v. State, 273 Ga. 890, 893(4), 548 S.E.2d 328 (2001). See Benford v. State, 272 Ga. 348, 350(3), 528 S.E.2d 795 (2000). We discern no abuse of discretion under the circumstances here.
At trial, the state proceeded under the theory that Clayton and Haywood jointly possessed the seized marijuana and cocaine. The fact that Clayton solely possessed drugs when he was arrested two weeks later "did not shine any light whatsoever" on whether Clayton was in exclusive possession of the drugs seized in this case. Nichols v. State, 282 Ga. 401, 403(2), 651 S.E.2d 15 (2007). In other words, testimony that Clayton was found with drugs at an entirely different time and place two weeks after the charged crimes had no "logical relation" to whether Haywood jointly possessed the seized marijuana and cocaine or actively participated in the attempted drug deal at the hotel. Id. at 404(3), 651 S.E.2d 15. Accordingly, the trial court acted within its discretion in concluding that the testimony concerning the arrest was not relevant for the proffered purpose and thus in excluding the testimony. See generally id. at 403-405(2), 651 S.E.2d 15; Crosby v. State, 269 Ga. 434, 435(3), 498 S.E.2d 62 (1998).
3. Haywood argues that the trial court erred by admitting the forensic chemist's expert testimony identifying the seized substance as cocaine because it was based upon inadmissible hearsay and violated his constitutional right to confront the witnesses against him. We are unpersuaded.
At trial, the forensic chemist with the state crime lab was tendered, without objection, to testify as an expert in forensic chemistry. She testified that she had retrieved the suspected cocaine from the sealed plastic evidence bag submitted by the investigator, weighed the substance, removed a small amount from the bag, and prepared two samples for testing. According to the forensic chemist, two tests were performed on the samples: a preliminary thin layer chromatography ("TLC") test and a gas chromatography-mass spectrometry ("GCMS") test. She testified that based on the TLC and GCMS test results, it was her expert opinion that the substance was cocaine.
On cross-examination, the forensic chemist testified that although she had prepared the samples for the tests, a lab technician conducted the TLC test and "sequenced" the machine for the GCMS test. While she did not directly supervise the lab technician's actions, the chemist testified that she had reviewed the testing done by the technician "to ensure that everything was working properly," and "[e]verything checked out."
Haywood contends that the forensic chemist's testimony identifying the cocaine was improper because it was predicated on data gathered by the lab technician and thus constituted inadmissible hearsay. But the forensic chemist reviewed the work performed by the lab technician for accuracy and exercised her own expert judgment as to whether the substance at issue was cocaine. Thus, the chemist was not acting as a "mere conduit" for the lab technician's findings. Watkins v. State, 285 Ga. 355, 358(2), 676 S.E.2d 196 (2009). See Rector v. State, 285 Ga. 714, 715(4), 681 S.E.2d 157 (2009). Furthermore, "[w]e have long held that an expert need not testify to the validity of every step that went into the formulation of his results as a foundation for their admissibility" and "may base his opinion on data collected by others." (Citations and punctuation omitted.) Dunn v. State, 292 Ga.App. 667, 671(1), 665 S.E.2d 377 (2008). See Watkins, 285 Ga. at 358(2), 676 S.E.2d 196; Byrd v. *87 State, 261 Ga.App. 483, 484, 583 S.E.2d 170 (2003). "[A]n expert's lack of personal knowledge does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion." (Citation and punctuation omitted.) Dunn, 292 Ga.App. at 671(1), 665 S.E.2d 377. See Velazquez v. State, 282 Ga. 871, 875(3), 655 S.E.2d 806 (2008); Byrd, 261 Ga.App. at 484, 583 S.E.2d 170.
Haywood further contends that the state's failure to call the lab technician to testify violated his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). He procedurally waived his contention, however, by failing to object on this ground at trial. See Melendez-Diaz v. Massachusetts, ___ U.S. ___, ___(III)(A), n. 3, 129 S. Ct. 2527, 2534, n. 3, 174 L. Ed. 2d 314 (2009); Purvis v. State, 273 Ga. 898, 899(3), 548 S.E.2d 326 (2001); Yates v. State, 298 Ga.App. 727, 729(2), 681 S.E.2d 190 (2009). In any event, Haywood's contention is controlled directly and adversely to him by several recent cases, including Rector, 285 Ga. at 715(4), 681 S.E.2d 157; Bradberry v. State, 297 Ga.App. 679, 682(2), 678 S.E.2d 131 (2009); and Dunn, 292 Ga.App. at 669-672(1), 665 S.E.2d 377.[3] Indeed, in Reddick v. State, 298 Ga.App. 155, 157(2), 679 S.E.2d 380 (2009), the same forensic chemist gave similar expert testimony predicated on data gathered by the same lab technician involved in this case, and we likewise rejected the defendant's contention that his right to confrontation was violated. As such, the drug identification testimony in the instant case did not run afoul of the Sixth Amendment.
Judgment affirmed.
SMITH, P.J., and PHIPPS, J., concur.
NOTES
[1] Clayton also was indicted, tried, and convicted of driving with a suspended license and obstruction of a law enforcement officer.
[2] On cross-examination, the state introduced a certified copy of Haywood's prior convictions for the sale of cocaine, the sale of marijuana, and possession of cocaine with intent to distribute. The state did not give Haywood notice of its intent to use similar transaction evidence. Hence, the trial court admitted the convictions solely for impeachment purposes rather than as substantive evidence of intent or bent of mind, and the jury was so instructed.
[3] The present case is distinguishable from cases where the state relied upon the affidavits of state laboratory analysts to identify the substance in question and did not call the analysts at trial. See Melendez-Diaz, ___ U.S. at ___ - ___ (III)(A), 129 S.Ct. at 2537-2539; Miller v. State, 266 Ga. 850, 856-857(7), 472 S.E.2d 74 (1996). See also Rector, 285 Ga. at 715(4), 681 S.E.2d 157 (distinguishing Melendez-Diaz and Miller). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324650/ | STATE OF NORTH CAROLINA
v.
DERRICK EUGENE GERVIN.
No. COA09-480.
Court of Appeals of North Carolina.
Filed January 5, 2010.
This case not for publication
Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for the State.
Russell J. Hollers III for Defendant-Appellant.
McGEE, Judge.
Defendant appeals from judgment consistent with a jury verdict finding Defendant guilty of second-degree murder. We find no error.
The State's evidence at trial showed that Defendant lived in Raleigh with his wife, Nadine; their three-year-old son; and Nadine's four-year-old daughter. After using cocaine on 6 May 2004, Defendant argued with Nadine. Defendant raised his hand at Nadine and she left the house without the children and went to her mother-in-law's house. Nadine told her mother-in-law she could no longer stay in the marriage and that she was going to call her family and have them come and get her and her children. Nadine called one of her brothers from a pay phone at a nearby store.
In the meantime, Defendant decided to look for Nadine at his mother's house. Defendant put the children in their stroller. He then took a knife from the kitchen and placed it in the stroller. Nadine's brother and his friend, Gregory Lamont Langley (Langley), came in Langley's car to pick up Nadine at the store. Nadine then gave Langley directions to her house. When she found no one at her house, Nadine asked Langley to drive to her mother-in-law's home, which he did. Langley parked his car outside the mother-in-law's house.
As Nadine exited Langley's car, Defendant came out of his mother's house. Nadine told Defendant she was leaving him and that she wanted the children. Defendant told Nadine she could have her daughter, but not his son. Defendant and Nadine began to argue. Nadine's brother and Langley joined Nadine in an attempt to convince Defendant to give Nadine the children. When Defendant refused to give the children to Nadine, Langley and Defendant started to argue face-to-face and the argument turned into a fist fight. Defendant grabbed the knife from the stroller and stabbed Langley in the back and in the shoulder. Defendant then chased Nadine, who ran to the nearby store where she found a police officer. She informed the officer that her husband had stabbed someone. Police arrived at the scene and Defendant was subsequently arrested.
At trial, Defendant testified to the following: that he put the knife in the stroller because his mother's house was located in a drug area; that Langley insisted Nadine was taking the children and leaving; that Langley struck Defendant; and that this caused Defendant to grab the knife and stab Langley.
On cross-examination, the prosecutor asked Defendant what he had been convicted of in the last ten years. The prosecutor then asked Defendant, "tell us any felony[,] class A1 misdemeanor, class one misdemeanor or class two misdemeanor that you were convicted of[,] which in the last ten years you were released from confinement on that conviction." Defendant objected. The prosecutor then informed the trial court of the following: that on 6 October 1988, Defendant had been convicted of assault with a deadly weapon with intent to kill inflicting serious injury and discharging a firearm into occupied property; that Defendant received a twenty-year sentence and had been paroled; that Defendant's parole was later revoked and Defendant was returned to prison; and that Defendant was discharged on 5 January 1999. Defendant asserted that the State had not given proper notice of its intent to use the 1988 conviction. The trial court ruled that the 1988 "conviction with a subsequent revocation parole and subsequent release date is clearly within the purview of subsection [b], Rule 609," and was admissible. The trial court further stated that it did not believe, "given the purpose of the rule[,] that its probative value would be substantially outweighed by the value of undue prejudice under [Rule] 403."
A jury found Defendant guilty of second-degree murder. The trial court sentenced Defendant to 240 months to 297 months in prison. On 1 April 2008, this Court allowed Defendant's petition for writ of certiorari to review the judgment.
Defendant contends the trial court erred in allowing the State to use a 1988 felony assault conviction to impeach him during cross-examination. We disagree.
Whether a prior conviction may be used to impeach a witness is governed by N.C. Gen. Stat. § 8C-1, Rule 609, which provides in pertinent part:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
N.C. Gen. Stat. § 8C-1, Rule 609(a), (b) (2007).
Defendant first argues that the State was required to give him advance written notice of its intent to use the 1988 conviction for impeachment purposes. Defendant's parole for the 1988 assault conviction was revoked and he was imprisoned until January 1999. Defendant's trial in the present case occurred in 2005, only six years after his 1999 release. Therefore, the date of trial in the present case is less than ten years from the date of Defendant's release from confinement. Because the evidence of the 1988 conviction is not more than ten years old "as calculated herein," the notice requirement does not apply to Defendant's case. Id. Therefore, Defendant's argument is without merit.
Defendant also argues the trial court erred in failing to make specific findings that the introduction of the 1988 conviction was more probative than prejudicial. A balancing test is required under N.C.G.S. § 8C-1, Rule 609(b) only in cases where the State intends to use a conviction which is more than ten years old, or where a defendant's release from confinement occurred more than ten years prior to trial. Id. As noted above, Defendant's trial in the present case occurred in 2005, which is less than ten years after his 1999 release. Therefore, the trial court was not required to apply a balancing test to Defendant's 1988 conviction under Rule 609(b). Further, our Supreme Court has held that a trial court has no discretion to exclude such evidence under the balancing test of Rule 403. See State v. Brown, 357 N.C. 382, 390, 584 S.E.2d 278, 283 (2003), cert. denied, 540 U.S. 1194, 158 L. Ed. 2d 106 (2004) ("The language of Rule 609(a) (`shall be admitted') is mandatory, leaving no room for the trial court's discretion."). Therefore, the trial court did not err in failing to make findings of fact regarding the probative value of the 1988 conviction.
We conclude the trial court properly allowed the State to cross-examine Defendant about his 1988 assault conviction.
No error.
Judges GEER and HUNTER, Jr., concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324653/ | 689 S.E.2d 308 (2010)
In the Matter of Stanley J. KAKOL, Jr.
No. S10Y0572.
Supreme Court of Georgia.
February 1, 2010.
*309 Paula J. Frederick, General Counsel State Bar, A.M. Christina Petrig, Asst. General Counsel State Bar, for State Bar of Georgia.
Warren R. Hinds, Roswell, for Kakol.
PER CURIAM.
This matter is before the Court on Respondent Stanley J. Kakol, Jr.'s Petition for Voluntary Discipline, filed after the filing of a Formal Complaint, in which he admits violating Rules 1.15(II) and 8.4(a)(4) of the Georgia Rules of Professional Conduct, see Bar Rule 4-102(d), and seeks the imposition of a Review Panel reprimand with conditions. The State Bar has no objection to the petition and the Special Master, H. Michael Bray, recommends that the Court accept the petition.
In his petition Kakol admits that he represented a client in a pending Chapter 13 bankruptcy proceeding that originally was filed by another attorney. The Chapter 13 plan was confirmed by the Bankruptcy Court but the client fell behind on her payments and the court granted relief from the automatic stay for the mortgage company to foreclose on the client's home. Kakol agreed to help the client avoid foreclosure and accepted $1,000 from the client on the condition that he would return it in full if he was not able to prevent the foreclosure. Kakol did not have an escrow account at that time (he generally accepted filing fees in cash and delivered the funds to the court), so he gave the $1,000 to a friend employed in another law office to hold; Kakol did not reclaim the funds for his personal use. During the bankruptcy proceedings the Chapter 13 Trustee asked Kakol if he had accepted a fee to represent the client and he disclosed the $1,000; he believes he told the Trustee they were being held "in escrow" but the Trustee stated that Kakol said the funds were in "an escrow account." Kakol filed an entry of appearance on the client's behalf in the bankruptcy case and an emergency motion to reimpose the automatic stay. He also filed amended schedules and a proposed modification to the Chapter 13 plan. The court granted the motion to reimpose the stay but, finding that Kakol did not file a statement under Rule 2016(b) with respect to the $1,000, ordered Kakol to refund the money to the client, which he did. The court also limited Kakol to filing no more than two new bankruptcy cases per month for 18 months; ordered him to complete a specified number of hours of continuing legal education on consumer bankruptcy law, ethics and professionalism, and to submit a report upon completion; and directed him to consult with the State Bar to obtain assistance with practice management issues. Kakol complied with the court's directives. Kakol admits that he violated Rule 1.15(II) by not having an escrow account, and violated Rule 8.4(a)(4) by telling the Trustee that he put the $1,000 in an escrow account.
Kakol has closed his solo practice and now works as an associate in a consumer bankruptcy law firm where he does not have responsibility for caseload management, filing of documents or advocacy in court. Kakol voluntarily sought counseling from a licensed psychologist to assist him with focus and organizational skills and has continued that counseling. In aggravation of discipline we find that Kakol has had prior discipline in the form of a 1984 public reprimand, a three-year suspension in 1998, and a letter of admonition in 2007. In mitigation of discipline, however, we find that Kakol's prior discipline did not involve trust fund issues; there was no selfish motive on Kakol's part with respect to the matter at issue here as Kakol merely was attempting to assist a client in a precarious legal situation and gave a money-back guarantee; the client did not file a grievance; there was no allegation of misappropriated funds; and Kakol returned the money. We also note that Kakol has been cooperative with disciplinary authorities; has sought and implemented interim rehabilitation; has voluntarily moved to an associate position; and was subjected to penalties and sanctions by the Bankruptcy Court, whose requirements he has fulfilled.
Having reviewed the record and weighed the aggravating and mitigating factors, *310 we accept Kakol's petition and hereby order that Stanley J. Kakol, Jr., receive a Review Panel reprimand in accordance with Bar Rules 4-102(b)(4) and 4-220, with the following conditions: (1) he will remain in his present employment with the Sandberg Law Firm LLC for at least 24 months following this Court's order, where his practice will be limited to meeting and interviewing new clients, researching legal issues and consulting with clients and attorneys on various strategies that might be used in seeking debt relief, but not signing and filing pleadings, appearing at hearings or handling financial issues for the law practice; and these restrictions will apply if Kakol leaves his current firm and works for any other law practice during the 24-month period; (2) for a period of 24 months following entry of this Court's order Kakol will continue treatment with Dr. James A. Howard (or another board-certified psychiatrist or licensed psychologist) on at least a monthly basis, and will place himself under the jurisdiction of the State Bar's Lawyer's Assistance Program ("LAP") for evaluation and monitoring within 120 days of the Court's order, will waive confidentiality, and during the two-year period will submit reports from his treating psychiatrist or psychologist to the Office of the General Counsel and LAP every six months certifying that he remains mentally fit to practice law, and will follow any additional recommendations that the LAP deems appropriate; and (3) if, upon the State Bar's motion, it is shown that Kakol has failed to comply with any of the foregoing conditions, he will voluntarily surrender his license and no longer will be entitled to practice law in the State of Georgia.
Review Panel reprimand, with conditions.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326428/ | 215 Ga. App. 53 (1994)
GWINNETT PLACE ASSOCIATES, L.P.
v.
PHARR ENGINEERING, INC. et al.
A94A1869.
Court of Appeals of Georgia.
Decided October 26, 1994.
Greene, Buckley, Jones & McQueen, Frank C. Schenck, for appellant.
Shivers, Johnson & Wilson, Wayne C. Wilson, Kimberly A. Johnston, Drew, Eckl & Farnham, T. Bart Gary, Wasson, Sours & Harris, W. Hensell Harris, James G. Stewart, for appellees.
SMITH, Judge.
Lillian Manley and her husband filed suit against Gwinnett Place Associates, L.P. d/b/a Gwinnett Place Mall, to recover damages for injuries incurred when Lillian Manley fell on a ramp located outside one of the mall restaurants.[1] After considerable discovery, Gwinnett Place filed a third-party complaint against Pharr Engineering, Inc., the engineering firm responsible for designing and constructing the *54 parking lot and curbs at the mall; RTKL Associates, the architectural firm responsible for the overall design of the mall, including sidewalks, ramps, and outside lighting; and Hoar Construction, Inc., the general contractor responsible for installation of the sidewalks and ramps.
In the third-party complaint, Gwinnett Place alleged that in the event it was held liable to the Manleys for reasons relating to the design and/or construction of the handicap ramp, then it was entitled to contribution or indemnification from the third-party defendants. The trial court granted the motions of the third-party defendants for summary judgment, and Gwinnett Place appeals.
1. One ground on which the trial court based its grant of summary judgment to all three third-party defendants is that the third-party complaint was barred by OCGA § 9-3-51 (a), the statute of ultimate repose.[2] That statute provides, in pertinent part, that no action for damages for injury to the person based upon "any deficiency in the ... planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property" may be brought against those responsible for designing, planning, supervising construction, or constructing such improvement more than eight years after "substantial completion" of the improvement.
It is undisputed that the construction of Gwinnett Place Mall was "substantially completed" no later than February 1984, and that the third-party complaint was filed on September 24, 1993, more than eight years after the date of substantial completion.
(a) Gwinnett Place first contends that its third-party complaint is is not an "action" covered under OCGA § 9-3-51 because it is an action for indemnification rather than for injury to person or property. In support of this argument, Gwinnett Place relies on an Indiana case, South Dearborn School Bldg. Corp. v. Duerstock, 612 NE2d 203 (Ind. App. 1993), in which a statute of repose similar to OCGA § 9-3-51 was held inapplicable to a third-party claim for indemnity. We find Duerstock distinguished on its facts, because it involved a written contract for indemnification, whereas this case does not; here, only common law indemnity is involved.
We have been unable to find a Georgia decision addressing this precise issue. However, we find helpful and persuasive Krasaeath v. Parker, 212 Ga. App. 525 (441 SE2d 868) (1994), a recent decision of *55 this court applying a similar statute of repose. In Krasaeath, one of several named defendants in a medical malpractice action settled with the plaintiff. He assigned to her his right of contribution from an unnamed joint tortfeasor, and the plaintiff later brought an action for contribution against the joint tortfeasor. In a case of first impression, this court held that although "couched as one for contribution," id. at 527, the claim against the joint tortfeasor was within the contemplation of the statute of repose applicable to medical malpractice claims, OCGA § 9-3-71 (b). This court reasoned that because recovery on the contribution claim was dependent upon proof of professional negligence on the part of the joint tortfeasor, it was both logical and fair to apply the statute of repose for medical malpractice. Otherwise, the plaintiff would be allowed, in essence, to bring an untimely and dilatory action for professional negligence. Because plaintiff brought the claim more than five years after the date on which the negligent act occurred, it was therefore barred. Id. at 526-527.
We are persuaded as well by the reasoning in decisions in other jurisdictions considering the issue presented here, holding that statutes of repose similar to OCGA § 9-3-51 bar third-party claims for indemnity. See e.g., Agus v. Future Chattanooga Dev. Corp., 358 FSupp. 246 (E. D. Tenn. 1973) (statute of repose bars untimely third-party indemnity action brought by owner of apartment building against architects, engineers, and general contractor of building); Nevada Lakeshore Co. v. Diamond Elec., 511 P2d 113 (Nev. 1973) (statute of repose bars untimely third-party claim for indemnification brought by owner of apartment complex against swimming pool designer and installer).
These decisions all defer to the legislature's intent, in enacting statutes of ultimate repose, to establish a reasonable outside time limit beyond which architects, engineers, and contractors are insulated from suit based upon their work in constructing improvements to real estate. See generally Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 427-428 (241 SE2d 184) (1977). Without such protection, such persons would be exposed to liability for many years after losing control over the improvements and their use and maintenance. Nevada Lakeshore, supra, 511 P2d at 114 (1). Allowing a claim for indemnification under these circumstances would indirectly thwart the intention of the legislature. We hold, therefore, that despite being couched in terms of indemnification, this claim, like the contribution claim in Krasaeath, supra, is within the contemplation of the statute of repose.
(b) Gwinnett Place contends alternatively that even if its claim is covered under OCGA § 9-3-51, an exception is provided under subsection (b) of the statute that renders its complaint timely. We do not agree.
*56 OCGA § 9-3-51 (b) provides that notwithstanding the eight-year absolute bar in subsection (a) of the statute, if an injury to property or the person occurs during the seventh or eighth year after substantial completion, "an action in tort to recover damages for such an injury or wrongful death may be brought within two years after the date on which such injury occurred,... but in no event ... more than ten years after the substantial completion of construction of such an improvement."
Lillian Manley was injured on April 26, 1991, which was in the eighth year after substantial completion of the mall. The Manleys therefore were required to file their complaint by April 26, 1993. Their complaint was filed on July 15, 1992. Gwinnett Place filed its third-party complaint on September 24, 1993. Gwinnett Place appears to argue that because the plaintiffs' action was timely filed and Gwinnett Place filed its third-party complaint when it learned the specific contentions of the plaintiffs regarding the defective ramp, fairness dictates that its complaint should relate back to the date of the filing of the plaintiffs' action.
Gwinnett Place cites no authority for this contention, and we find no support for such a position in OCGA § 9-3-51 (b). Given our holding in Division 1 (a) that the third-party claim for indemnification is an "action" covered under OCGA § 9-3-51 (a), and in view of the fact that the third-party claim was not filed within two years of Lillian Manley's fall, as required by subsection (b), it was not timely filed. The trial court properly entered summary judgment in favor of the defendants based on OCGA § 9-3-51.
2. A trial court's judgment, right for any reason, will be affirmed. Tillett Bros. Constr. Co. v. Dept. of Transp., 210 Ga. App. 84, 88 (435 SE2d 241) (1993). Because we hold that summary judgment was proper in favor of all third-party defendants on the ground that the third-party complaint was barred by the statute of ultimate repose, we need not consider Gwinnett Place's other enumeration addressed to the alternative ground relied upon by the trial court.
Judgment affirmed. Pope, C. J., and McMurray, P. J., concur.
NOTES
[1] The complaint was originally filed against JMB Property Managers, Inc. d/b/a Gwinnett Place Mall, and later amended to reflect the correct name of the defendant.
[2] A statute of ultimate repose limits absolutely the time during which a party may bring an action, regardless of when the cause of action accrues. It is distinguished from a statute of limitation, which is a procedural rule delineating a time period measured from the accrual of the right of action during which a party must bring an action. Krasaeath v. Parker, 212 Ga. App. 525, 526-527 (441 SE2d 868) (1994); see Wright v. Robinson, 262 Ga. 844, 845 (426 SE2d 870) (1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724366/ | 602 So. 2d 966 (1992)
Maurice BRYANT, a/k/a Ronald Sapp, a/k/a Maurice Long, Appellant,
v.
The STATE of Florida, Appellee.
No. 91-1727.
District Court of Appeal of Florida, Third District.
June 16, 1992.
Rehearing Denied September 8, 1992.
Bennett H. Brummer, Public Defender, and Valerie Jonas, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Marc E. Brandes, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
PER CURIAM.
Maurice Bryant appeals his conviction for robbery. We conclude that under the circumstances of the present case, the arresting officer should not have been permitted to testify, over defendant's objection, to the reason he initiated surveillance of the defendant. See State v. Baird, 572 So. 2d 904, 907-08 (Fla. 1990). The admission of the evidence was, however, harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
Over defense objection the trial court gave the jury a flight instruction. The supreme court recently held that "the better policy ... where evidence of flight has been properly admitted is to reserve comment to counsel... ." Fenelon v. State, 594 So. 2d 292, 295 (Fla. 1992). While, in this case, the objection to the flight instruction was sufficient and we must apply Fenelon retroactively, see Smith v. State, 598 So. 2d 1063 (Fla. 1992), we nonetheless find the error harmless. See Fenelon, 594 So.2d at 293.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324692/ | 689 S.E.2d 823 (2010)
SPENCER
v.
The STATE.
No. S09A1650.
Supreme Court of Georgia.
February 8, 2010.
*824 Dwight Spencer, Rome, appellant.
Leigh E. Patterson, District Attorney, John A. Tully, Harold W. Goldin, Jr., Assistant District Attorneys, for appellee.
THOMPSON, Justice.
Defendant Dwight Spencer was convicted of deposit account fraud pursuant to OCGA § 16-9-20. He appeals, pro se, and asserts, inter alia, that OCGA § 16-9-20 is unconstitutional because it does not contain an enacting clause on its face. Finding no error, we affirm.
1. Viewing the evidence in a light favorable to the verdict, as we are bound to do, we find the following: In November 2007, defendant hired Wallace, an electrical contractor, to install wiring in defendant's home. After completing the work, Wallace presented defendant with a bill for $3,394.73. Defendant wrote a check to Wallace for the full amount. Wallace presented the check to defendant's bank several times within 30 days, but it was not honored due to insufficient funds. The evidence is sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of deposit account fraud. Holder v. State, 242 Ga.App. 479, 529 S.E.2d 907 (2000); Watson v. State, 235 Ga.App. 381, 509 S.E.2d 87 (1998). Whether defendant knew his check would not be honored was a question for the jury, not this Court. See Russell v. State, 155 Ga. App. 555, 271 S.E.2d 689 (1980).
*825 2. Defendant asserts the trial court failed to charge him formally with a crime at an arraignment. However, the record shows that defendant was arraigned on September 26, 2009; that defendant refused to enter a plea; and that the trial court entered a plea of "not guilty" on defendant's behalf.
3. Inasmuch as defendant was not indigent, he was not entitled to the services of the public defender. See OCGA § 17-12-1 et seq.
4. Defendant contends OCGA § 16-9-20 is unconstitutional and cannot be enforced because it does not contain an enacting clause on its face. However, the Official Code of Georgia included an enacting clause when it was adopted by the legislature. See OCGA § 1-1-1 et seq. Moreover, the statute itself includes an enacting clause. See, e.g., Ga. L. 1974, p. 705, § 1; Ga. L. 2003, p. 140, § 16.
5. Defendant was ordered to refrain from possessing a firearm as a condition of probation. This condition does not violate defendant's constitutional right to bear arms. See District of Columbia v. Heller, ___ U.S. ___, ___, 128 S.Ct. 2783, 2817, 171 L.Ed.2d 637 (2008) ("longstanding prohibitions on the possession of firearms by felons" are not in doubt); Landers v. State, 250 Ga. 501, 503(3), 299 S.E.2d 707 (1983) (statute criminalizing possession of firearm by convicted felon does not transgress state constitution's right to bear arms).
6. The trial court did not abuse its discretion in quashing subpoenas for Georgia's governor, attorney general and chief justice. Defendant did not show the relevance of their testimony. See generally Plante v. State, 203 Ga.App. 33, 416 S.E.2d 316 (1992).
7. The trial court did not err in ordering defendant to make restitution in the amount of $3,394.73. Contrary to defendant's assertion, the trial court was not required to specify whether the payment was to be made in gold or silver coins.
8. The trial court did not err by displaying fringed flags of the United States and state of Georgia during trial. The display of the flags would not have led anyone to believe that defendant was being tried in a military setting.
9. The remaining enumerations of error are without merit.
Judgment affirmed.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261987/ | 261 N.J. Super. 378 (1992)
618 A.2d 937
BRENDA SMITH, PLAINTIFF,
v.
CYNFAX CORPORATION, JOHN DOES A THRU Z, (UNKNOWN PERSONS AND/OR ENTITIES) SAID NAME BEING FICTITIOUS, DEFENDANTS.
Superior Court of New Jersey, Law Division Essex County.
Argued October 9, 1992.
Decided November 12, 1992.
*379 Floyd C. Goldsman attorney for plaintiff.
John Methfessel, Sr. attorney for defendants.
YANOFF, J.S.C. (temporarily assigned) (Retired, on recall).
This matter comes before the court on a motion for an order enforcing a disputed settlement agreement. The facts follow:
On November 15, 1990, Mrs. Brenda Smith was injured by a ceiling fall in a building owned by defendant, Cynfax Corporation ("Cynfax"). She immediately retained Floyd C. Goldsman, Esq., who commenced suit.
In January 1992 Mr. Goldsman ascertained that Cynfax was insured by Cumberland Mutual Fire Insurance Company ("Cumberland"). Negotiations began, and on February 4, 1992, *380 Cumberland made a $7,000 settlement offer. Mr. Goldsman contacted the Smith home to notify his client of the offer. He was then made aware that Brenda Smith had died on February 2, 1991, from causes unconnected with this lawsuit.
May 22, 1992, Archie Bolden, husband of the deceased, was appointed the administrator of the estate. Mr. Bolden authorized Mr. Goldsman to accept Cumberland's settlement offer on behalf of the estate of decedent.
Mr. Goldsman forwarded on June 3, 1992, to Cumberland a release and stipulation of dismissal, along with proof of Bolden's appointment as administrator. Cumberland responded with a letter dated June 11, 1992, requesting a copy of Mrs. Smith's death certificate, which Mr. Goldsman promptly provided. Thereupon, in a letter dated July 21, 1992, Cumberland advised Mr. Goldsman that they did not feel bound by any settlement agreement because of Mr. Goldsman's failure to inform them of Mrs. Smith's death.
The Smith estate now moves to enforce the settlement. Cumberland opposes the motion, emphasizing that the alleged agreement is unenforceable due to a mutual mistake regarding a material fact, namely, the erroneous belief that the plaintiff was still alive at the time of the settlement offer. In reply, the estate posits that Cumberland's letter of June 11, 1992 merely requesting a copy of the death certificate, demonstrated Cumberland's intention not to revoke their offer, but, rather, to extend it to Mrs. Smith's estate. In words of counsel for the estate "This conduct constituted an implied waiver of any right of revocation of the settlement agreement and a reaffirmation of said offer to the administrator of the plaintiff's estate, which was duly accepted."
Defendant's assertion of mutual mistake merits discussion. The Appellate Division has held that a settlement is voidable by the disadvantaged party when there has been a mutual mistake "as to a basic assumption on which the contract was made[.]", Lampley v. Davis Mach. Corp., 219 N.J. Super. 540, 549, 530 *381 A.2d 1254 (App.Div. 1987). "Mutual mistake" is not a reason for ruling in favor of defendant because no contract came into being to which that doctrine could apply. There are other reasons for ruling in favor of defendant.
Executors and administrators "may have an action for any trespass done to the person ... of their ... intestate against their trespasser and recover their damages as their intestate would have had if he was living." N.J.S.A. 2A:15-3. Whether the statute means that the representative of decedent has a new cause of action, as the Vice Chancellor says in Prudential Insurance Co. v. Laval, 131 N.J. Eq. 23 at 29, 23 A.2d 908 (Ch. 1942) or the same cause of action is simply transferred to the personal representative (DeHerrera v. Herrera, Wyo., 565 P.2d 479, 482 (1977); Barragan v. Superior Court of Pima County, 12 Ariz. App. 402, 404, 470 P.2d 722, 724 (1970)) is not decisive because the question here is whether an offer of settlement survives the death of the offeree.
This is a contract, not a tort issue. Rule 4:34-1(a) provides:
(a) Party Survivors. In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be noted upon the record and the action shall proceed in favor of or against the surviving parties.
This suggests that the action continues, and is not a new action. Compliance with the Rule upon the death of a party is mandatory. Pressler, "1993 Edition Rules Governing the Courts" p. 1003. Here this was not done. In itself, this bars plaintiff's recovery, at least until suggestion of death upon the record. However, this is a matter of procedure, and I proceed to the question of substantive law which is whether there was a contract to settle the case.
The law as to this is clear. In Restatement [Second] of Contracts § 48 [1981] it is stated under the heading, "Death or Incapacity of Offeror or Offeree":
An offeree's power of acceptance is terminated when the offeree or offeror dies or is deprived of legal capacity to enter into the proposed contract.
*382 ....
Comment.
c. Death or incapacity of offeree. Only the offeree can accept an offer which is not also a contract. See Subsection 52. When the offeree dies or lacks capacity, therefore, acceptance is impossible. Compare Comment b to Subsection 36. By the terms of the offer, however, the personal representative or distributee of the offeree may be made an additional offeree.
In 1 Williston, Contracts Sec. 62, p. 206 [3d ed. 1957], we find:
Termination of Offers by Death. Assuming that the formation of a contract required mutual mental assent of the parties, and offer and acceptance were merely evidence of such assent, it would be obviously impossible that a contract should be formed where either party to the transaction died before this assent was obtained. That such assent was formerly thought necessary seems probable, and as to death, this theory is still maintained. Accordingly, it is generally held that the death of the offeror terminates the offer. Since an offer can be accepted only by the person to whom it is made, the death of the offeree also has the effect of precluding the possibility of a contract, as does the destruction of the subject-matter.
Many cases are cited in support, no New Jersey case among them, but there is no reason to conclude that New Jersey will not follow virtually unanimous authority which is correct on analysis.
It is undisputed in this case that defendant made a settlement offer of $7,000. The dispositive issue is whether anyone was capable of accepting that offer. Neither Mr. Goldsman nor Mr. Bolden ever stood in the shoes of the deceased for the purpose of accepting Cumberland's offer since the offeree was dead when the offer was made.
The offer was made to Brenda Smith, not her estate. As Mrs. Smith's attorney, Mr. Goldsman was an agent of his client. In order for Mr. Goldsman to have accepted the settlement offer, his agency must have survived the death of his client and his action must have been within the scope of the agency. An attorney does not have authority to settle a claim without express authority. Clarkson v. Selected Risks Insurance Company, 170 N.J. Super. 373, at 379, 406 A.2d 494 (Law Div. 1979); Cf. Matter of Advisory Comm. on Pro. Ethics, 125 N.J. 181, 592 A.2d 1210 (1991). The retainer agreement here *383 did not authorize the lawyer to settle. I am dubious that it could have, with propriety. Mr. Goldsman did not have authority to accept the offer on behalf of Brenda Smith.
Mr. Goldsman's agency immediately ceased when his client died. It makes no difference that the settlement negotiations were undertaken in good faith and in ignorance of Mrs. Smith's death. A general principle of agency is that the death of the principal terminates the authority of the agent. Restatement [Second] of Agency, § 120(1) [1958]. Knowledge of the principal's death only becomes an issue where the agency is derived from a written power of attorney. See N.J.S.A. 46:2B-9.[1]
An agency coupled with an interest survives the principal, even after notice of his death. Durbrow v. Eppens, 65 N.J.L. 10, 46 A. 582 (1900). This requires that the agent have some interest, such as a security interest, in the subject matter of the agency independent of the power conferred upon him by the principal. Sarokhan v. Fair Lawn Hospital, Inc., 83 N.J. Super. 127, 136, 199 A.2d 52 (App.Div. 1964). An interest merely in "the proceeds which will arise from the exercise of the power" of the agency is not sufficient for this purpose. Id. quoting 3 Am.Jur.2d, Agency, § 62. Mr. Goldsman's agency was controlled by an agreement which provided that "the law firm will protect your legal rights and do all necessary legal work to represent you in this matter" in exchange for a percentage contingency fee. This created an interest in the proceeds of a successful exercise of the powers of the agency, not in its subject matter. An attorney's contingent fee contract creates an agency which is not coupled with an interest, and which terminates upon the death of the principal. See Procanik *384 v. Cillo, 206 N.J. Super. 270, at 283, 502 A.2d 94 (L.Div. 1985); see Mubi v. Broomfield, 108 Ariz. 39, 42, 492 P.2d 700, 703 (1972). I conclude that the lawyer's authority to settle terminated with the client's death.
Motion denied. Counsel for defendant should submit an appropriate order pursuant to the Rule.
NOTES
[1] Some jurisdictions have also recognized an exception when monies are paid to an agent in the ignorance of the principal's death. See 67 A.L.R. 1419. There is an exception, also, for banking transactions and negotiable instruments. See N.J.S.A. 12A:4-405. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261995/ | 94 Md. App. 594 (1993)
618 A.2d 256
GENSTAR STONE PAVING PRODUCTS COMPANY, INC.
v.
STATE HIGHWAY ADMINISTRATION.
No. 507, September Term, 1992.
Court of Special Appeals of Maryland.
January 11, 1993.
Donald A. Tobin (Scott A. Livingston and Bastianelli, Brown & Touhey, Chartered, on brief), Washington, DC, for appellant.
Dana A. Reed, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.
Argued before WILNER, C.J., and MOYLAN and BISHOP, JJ.
WILNER, Chief Judge.
This appeal is from an order of the Circuit Court for Baltimore City reversing a decision of the State Board of Contract Appeals. It takes us into the arcane world of State (and Federal) procurement and, in particular, requires us to construe a mandatory clause in a road construction contract. The underlying facts are not in dispute.
In July, 1986, the State Highway Administration (SHA) awarded appellant a $5,951,622 contract to make resurfacing improvements to a two-mile stretch of the Baltimore Beltway. Both the bid and the contract were divided into many separate bid items; some of them called for a lump sum price a single amount to be paid for that item of work, no matter what quantity of that work might ultimately prove necessary while others (most) specified unit prices. The unit price items stated a price per unit (per ton, per day, per square or linear foot), the number of units that SHA estimated the job would entail, and an aggregate price determined by multiplying the unit price by the number of SHA-estimated units.
Appellant was required under the contract to maintain traffic flow during the construction work, and several of the items related to that function. Item 1002 called for a lump sum for "Maintenance of Traffic," and on that item appellant bid (and the contract stated) $67,500. Other items showed unit prices for temporary traffic signs, temporary pavement striping tape, the removal of that tape, and barrier walls. Item 1006 contained a unit price for arrow boards lighted signs forming the shape of an arrow that direct traffic into adjacent lanes when one or more lanes are closed because of the construction work. We are concerned here with the arrow boards.
The contract specified that the method of measurement and basis of payment for this item "shall be at the contract unit price bid per unit day." By "unit day" was meant that each arrow board used would be paid for once for each day of use, no matter how many times during the day it was moved or replaced. The contract also stated that the contract unit price "shall be full compensation for all labor, materials, equipment, tools and incidentals required to set up and operate at the site and at any relocated sites as required."
SHA estimated that the job would require 200 unit days of arrow boards. In preparing its bid, however, appellant concluded that SHA's estimate was far too low and that the job would require 555 unit days of arrow board. What it did, therefore, was as follows: (1) it determined that the actual cost of an arrow board for a unit day was $45/board; (2) it estimated that the additional crew and equipment costs associated with the arrow boards would be $783/day; (3) it multiplied the $783 by the 327 additional days it figured the extra crew and equipment would be needed, producing a cost of $256,041; (4) it then multiplied the actual $45 cost by 555 days, yielding $24,975, and added that amount to the $256,041, producing a combined cost of $281,016; (5) it divided that combined cost by 555, producing a per diem cost of $506; and (6) to that amount it then added (i) a $94 markup (making $600), (ii) $200 more on the assumption that a second arrow board crew shift would be required on one-third of the 555 crew arrow board days (raising the unit cost to $800), and (iii) $100 for overhead and profit, making a final unit price of $900.[1]
As things turned out, appellant's time estimate was much closer to the mark than SHA's. The job required 514 unit days of arrow board.
Part of the State's procurement regulations is COMAR 21.07.02.03, which requires that every State construction contract containing estimated quantity items include the following "variations" or "VEQ" (variations from estimated quantities) clause:
"Where the quantity of a pay item in this contract is an estimated quantity and where the actual quantity of such pay item varies more than twenty-five percent (25%) above or below the estimated quantity stated in this contract, an equitable adjustment in the contract price shall be made upon demand of either party. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above one hundred twenty-five percent (125%) or below seventy-five percent (75%) of the estimated quantity."[2]
That clause, in conformance with the regulation, was included as General Provision 4.03 of the contract.
As noted, SHA estimated that the job would require 200 unit days for arrow boards; 125% of that estimate is 250 days which, for purposes of this Opinion, we shall refer to as the base units units to be paid at the contract unit price without any adjustment. The job actually required 514 days, producing an overrun in excess of the base of 264 unit days; that overrun we shall refer to as comprising the adjustable units those subject to equitable adjustment in accordance with the variations clause. After the job was completed, SHA examined unit prices for this item in bids on other jobs and, from that examination, found that the average bid price for Item 1006 was $55/unit day.[3] From this, it concluded that appellant's actual cost for the item did not exceed $55/unit day and that, as a result, the cost to appellant of the overrun, due solely to the overrun, was only that amount. As the contract price was $900/unit day, it demanded an equitable adjustment under GP 4.03 and actually withheld $223,080 ($900-$55 X 264 days) as a retainage. This was based on the notion that, in measuring any equitable adjustment under the clause, the proper approach was essentially to ignore the contract unit price with respect to the adjustable units and to pay only the actual cost of providing those units.
Appellant, as might be expected from the circumstances, had a very different view. It construed the clause as requiring SHA to demonstrate (1) that there was a difference between the actual unit cost of the base units (the arrow boards necessary for 250 unit days) and the actual unit cost of boards for the adjustable units (the 264 additional days), and (2) that the difference was due solely to the overrun. That difference, if it could be proved, would then be deducted from the contract unit price.
When the SHA procurement officer rendered his decision, appellant appealed to the State Board of Contract Appeals. At a hearing before that Board, SHA, through an accountant offered as an expert witness, recalculated its demand. Instead of relying on average bids on other jobs, as the procurement officer had done, the witness examined certain of appellant's records on this job and determined therefrom that (1) appellant's actual cost per unit day for arrow boards was $76 and (2) there would be no increase or decrease in that unit cost resulting solely from the extra 264 unit days. The witness concluded, however, that appellant had included in Item 1006 certain traffic maintenance expenses that should have been placed in other items and that there was a $385 per unit decrease in those costs with respect to the adjustable units. On that basis, SHA believed it was entitled to an equitable adjustment of $385/day for 264 days.[4]
The Board rejected both analyses, concluding that they were each "flawed by the assumption that a bid price is reflective of actual costs and that the cost for the overrun quantity should be compared to the bid price." It was not the intent of GP 4.03, the Board held, "to allow either party the opportunity to renegotiate in hindsight a bid price when the actual cost is found to be too high or too low due to the variation in actual quantity necessary from the quantity estimated in the bid documents." Rather,
"[I]t is only the actual increase or decrease in costs for the quantity that exceeds 125% of the estimate based on a comparison of actual costs before and after 125% of the estimated quantity is reached and due solely to the variation in quantity that GP 4.03 gives as a remedy. It is not an escape hatch from a bid price which in hindsight was a `bad deal' for either party."
Under SHA's approach, it was not necessary to determine, or consider, the actual cost to appellant of providing 250 unit days of arrow board, and it therefore made no such determination. It calculated only the actual cost of providing the 264 overrun unit days, comparing that to the contract unit price (less, it seems, the $100 included therein for overhead and profit). As noted, the Board rejected that approach and construed GP 4.03 as requiring a comparison of actual costs for the adjustable and base units and a showing that the actual unit cost for the adjustable units was less than that for the base units. As SHA failed to make that showing, the Board concluded that it had failed to show a decrease in the costs for the 264 unit days of arrow board overrun due solely to the variation in quantity and thus had not established its right to an equitable adjustment.
SHA appealed that decision to the Circuit Court for Baltimore City which, after a non-evidentiary hearing, reversed the Board and concluded that SHA was entitled to an equitable adjustment. In its remarks from the bench, the court found troubling what it regarded as appellant's "machination" of "inflat[ing] this particular item to an amount of $826.00 in excess of that which is its actual unit cost per arrow board" by including in Item 1006 costs that were really attributable to Item 1002 (traffic maintenance), fully expecting a substantial overrun. That conduct, or "machination," resulted in an "excess profit" which the court found to be against public policy. Implicitly, the court construed GP 4.03 as requiring no more than a comparison between the actual cost of supplying the arrow boards during the overrun period and the unit price under the contract. If, as the court concluded, the actual cost (of $76) was less than the contract unit cost ($900), SHA was entitled to an equitable adjustment. It therefore remanded the case to the Board for a determination, in accordance with the court's views, of the amount of that adjustment.
Appellant is once again the aggrieved party and has brought this appeal, raising nine issues (some with several subparts). In essence, there is but one issue the proper construction of GP 4.03. As we indicated, the underlying facts are not in substantial dispute. Because the issue is one of "statutory" interpretation the interpretation of a regulation it is one of law, upon which a court may freely substitute its judgment for that of the administrative agency. Moreover, because the contract language mirrors exactly the required language of the regulation, to the extent there is any ambiguity, we look to the intent of the State in adopting the regulation and do not, as appellant suggests, apply the rule of contra proferentum and construe the clause against SHA because it was the "draftsman."
This is a matter of first impression in Maryland. State law has required a variations clause of this type at least since 1980 see 1980 Md. Laws, ch. 775, enacting § 3-602(a) to Md.Code, art. 21; current Md.Code, State Fin. and Proc. art., § 13-218(a)(3)). The regulation implementing that statutory direction and mandating the specific language of the clause was adopted in 1981 by each of the State procurement agencies the Board of Public Works, the Comptroller of the Treasury, the Secretaries of General Services, Budget and Fiscal Planning, Personnel, and Transportation, and the President of the University of Maryland. See 8:9 Md. Reg. S-1; 8:13 Md. Reg. II-3, II-9.
The record reveals no helpful legislative history with respect to the regulation other than its similarity to a comparable Federal procurement regulation currently codified in 48 C.F.R. § 52.212-11 (1991). Both sides thus look to how that Federal regulation evolved and has been interpreted. Two very different, and inconsistent, views have been taken of the Federal clause.
The general concept of, or right to, an "equitable adjustment" in a contract price based on changes in the scope of the work or on unanticipated working conditions is something Maryland borrowed from Federal procurement experience, and it applies in a number of different contexts. In Md. Port Adm. v. C.J. Langenfelder & S., 50 Md. App. 525, 540, 438 A.2d 1374 (1982), we described its function thusly, quoting from Bruce Construction Corporation v. United States, 324 F.2d 516, 518, 163 Ct.Cl. 97 (1963):
"Equitable adjustments in this context are simply corrective measures utilized to keep a contractor whole when the Government modifies a contract. Since the purpose underlying such adjustments is to safeguard the contractor against increased costs engendered by the modification, it appears patent that the measure of damages cannot be the value received by the Government, but must be more closely related to and contingent upon the altered position in which the contractor finds himself by reason of the modification."
See also General Builders Supply Co. v. United States, 409 F.2d 246, 249, 187 Ct.Cl. 477 (1969); Burnett Const. Co. v. U.S., 26 Cl. Ct. 296, 301 (1992).
We note these general statements because they serve as an important and convenient reference point. Excessive variations over or below estimates stated in the contract, upon which bids were based, can be like games of chance; who is helped and who is hurt can depend on a number of factors, including (1) whether the units actually required are less or more than the base amount; (2) the extent to which the contract unit price approximates the actual unit cost to the contractor, of either the base or the adjustable units; (3) if the variation is due to an overrun, as here, whether and to what extent the unit cost for the overrun differs from the unit cost for the base units; and (4) the extent to which the contractor's unit cost for the base units is affected by the underrun or the overrun. When, in an overrun situation, the unit cost for the adjustable units proves to be less than the contract unit cost, it is the government that seeks the equitable adjustment, looking to that difference to measure the amount, the contractor arguing that the proper comparison is not with the contract unit cost but with the actual unit costs of the base units. When, on the other hand, the actual unit cost for an overrun variation is greater than the contract unit cost, the contractor seeks the equitable adjustment and it is the governmental entity that urges an actual cost versus actual cost comparison. If the variation arises from an underrun rather than an overrun, other considerations may also arise, depending on whether the unit cost of the reduced work is increased or decreased because of the reduction. We need to look, then, beyond the result produced by one interpretation or another in a particular case whether it produces an excess profit or an excess loss but consider more generally how the clause was intended to be construed in any case.
In urging its approach, appellant relies largely on principles announced in Victory Construction Co., Inc. v. United States, 510 F.2d 1379, 206 Ct.Cl. 274 (1975), which we shall refer to hereafter as Victory. That case is quite complex and fact-specific. Suffice it to say that there was an overrun on five unit price items in an Army Corps of Engineers construction job. The government, seeking a downward equitable adjustment, placed the burden of proving the actual cost of the overrun units on the contractor. The contractor did not keep separate records enabling it to determine those costs, however, and so the government calculated the overrun unit costs based on its estimate of the actual unit costs of the base units. The Board of Contract Appeals sustained the Corps' decision, whereupon an appeal was taken to the Court of Claims.
In a per curiam opinion adopting the opinion of the trial judge, that Court reversed on a number of grounds. It first found error in the Board's refusal to give due consideration to an affidavit from the contractor attesting, in effect, that the contract unit prices fairly reflected the actual unit costs for the overrun units. It then faulted the Board for placing the burden on the contractor to prove its costs. As the proponent of the equitable adjustment, said the Court, "it was the Government, not the contractor, on whom devolved the burden of proving the extent of any downward departure from the unit prices established by the contract for the items comprising the excess work." 510 F.2d at 1385, citing Nager Electric Co. v. United States, 442 F.2d 936, 194 Ct.Cl. 835 (1971). Those two holdings alone would have justified the reversal. The Court went on, however, to conclude that the Board had also misconstrued the variations clause.
The clause actually inserted in the 1965 Victory contract was different than the one at issue here; it did not contain the second sentence of the clause, quoted above, and thus said nothing about the equitable adjustment being based on any increase or decrease in costs due solely to the variation. In 1968, prior to the Board's decision, a new mandatory clause, identical to that in appellant's contract, was promulgated.[5] Relying on an Armed Services Procurement Regulation cover sheet accompanying the revision, the Board concluded that the 1968 version was simply a clarification of the previous clause and that the two clauses were substantially the same. Although skeptical, the court accepted that conclusion for purposes of its discussion and decision and thus, in effect, construed the very clause at issue here.[6]Id. at 1386.
That clause, said the Court at 1386, clearly defined the scope of the inquiry in determining an entitlement to and the amount of an equitable adjustment:
"Distinctly, the proponent of an adjustment is told that it will be confined in amount to such cost differentials as are directly attributable to a volume deviation greater than 15 percent from stated contract quantities.... [I]t is simply not reasonably possible to conclude, as did the Board, that the implementary quantity variance clause of the subject contract `* * * contemplate[s] a complete repricing of those contract items which vary from the estimated quantities by more than 15%.'"
To secure a reduction in contract unit price for those excess quantities, the Government was required to demonstrate that the reduction sought represented a "decrease in costs due solely to the variation above 115%." Id. at 1387. The record, however, contained "no evidence whatever indicating the realization of cost economies attributable to excess volume," and, for that reason, the Government had failed to show its entitlement to an equitable adjustment. Id.
Significantly, the Court addressed and rejected the very argument made by SHA and stressed by the circuit court in this case, namely, that such a narrow reading of the clause would result in a windfall profit for the contractor and that a more expansive interpretation was necessary to discourage "unbalanced bids" by contractors:
"Such a bid, it is explained, is one in which the contractor allocates a disproportionate share of indirect costs and anticipated profit to the unit prices bid for those items on which he anticipates an overrun; the object being to reap overgenerous profits should the anticipated overruns materialize. While in the abstract this suggestion has considerable logical appeal, the difficulty with its application to the present controversy is that, in addition to the contradictory purport of the language employed in the governing regulation, there is not a shred of evidence in the record manifesting its involvement in any event. The burden of the argument is therefore more appropriately directed to those officials charged with responsibility for formulating procurement policy and effectuating it by adoption of appropriate contract language and regulations. Should those officials conclude that neutralization of the vice of unbalanced bids can best be accomplished by the de novo repricing of excess or short-fall procurement under an estimated quantity contract, they can readily adopt language to that end.... To date, this has apparently not been done."
Id. (emphasis added).
Notwithstanding SHA's argument to the contrary, it appears clear to us that the language embodied in this decision of the Court of Claims fully supports appellant's position that the proper standard is not whether the actual arrow board unit cost for the adjustable units was less than the contract unit price for arrow boards, but whether the actual unit cost for those adjustable units was less than the actual unit cost for the base units and, if so, whether the difference was due solely to the excess unit days. Appellant urges that we follow that approach, not only because it is a correct one and has been followed by a number of Federal contract appeals boards but also because it was the definitive interpretation of the Federal clause at the time Maryland adopted the State regulation and thus affords a compelling basis for concluding that the Maryland regulation was intended to be construed the same way.
SHA responds that Victory was wrongly decided and should not be followed. That decision, it says, fails to give proper recognition to the first sentence of the clause, which SHA believes is the critical provision. SHA conceives that, if it proves the requisite overrun, it is entitled to an equitable adjustment. Once it shows that entitlement, the contract unit price ceases to have real significance, and SHA's only obligation with respect to the adjustable (overrun) units is to pay the contractor his "costs" for those units, which it takes to mean actual cost plus reasonable profit. For the second sentence of the clause to permit that result, SHA conceded at oral argument, the "increase" provision would have to be construed as applicable only to overrun situations and the "decrease" provision would be limited to underruns. Thus, to support SHA's position, the second sentence would have to be read as though it said:
"The equitable adjustment shall be based upon any increase [or decrease] in costs due solely to the variation above one hundred twenty-five percent (125%) [or below seventy-five percent (75%)] of the estimated quantity or any decrease in costs due solely to the variation below seventy-five percent (75%) of the estimated quantity."
(Brackets indicating deletions from actual clause, underscoring indicating additions.)
In support of its position, SHA cites principally a decision rendered by three administrative law judges, in separate opinions, on behalf of the Armed Services Board of Contract Appeals in Bean Dredging Corp., 89-3 ENG B.C.A. (CCH) para. 22,034, p. 110,816, 1989 WL 81107 (1989) and the later Claims Court decision in Burnett Const. Co. v. U.S., 26 Cl. Ct. 296 (1992).
Bean involved a dredging contract based on a unit price for an estimated amount to be dredged. In fact, the contractor was required to dredge considerably more than 115% of the amount estimated in the contract, and because the cost of dredging the excess material far exceeded the contract unit price, the contractor sought an equitable adjustment. The underlying facts were not in substantial dispute; the issue, as framed by ALJ Peacock, is what it is here: "with respect to what price is the actual unit cost of the adjustable quantity to be compared, i.e., the contract unit price ... or the actual experienced unit cost of dredging 115% of the estimated quantity." Id. at 110,821.
ALJ Peacock acknowledged that, by law, the Board was bound by decisions of the U.S. Court of Claims, which would include the decision in Victory.[7] With the concurrence of his two colleagues, however, he distinguished Victory on its facts (and also suggested that the heart of that decision was dicta), and on that basis proceeded to act in complete derogation of the Court of Claims interpretation of the variations clause. The distinction, according to ALJ Peacock, was that, in Victory, there was no indication that the "actual unit costs for the nonadjustable [base] quantities differed materially from the contract unit prices." Id. at 110,821. The Victory court, he said "implicitly assumed that the actual unit cost for the nonadjustable quantity was reflective of the contract price" and that "[t]herefore, the Court was not comparing actual unit costs of the adjustable vis-a-vis nonadjustable units in the irrelevant abstract." Id. at 110,822.[8] Having noted this alleged distinction, ALJ Peacock asserted that application of the principles set forth in Victory would produce absurd results in a case where the contract unit price differed substantially from the actual unit cost of either the adjustable or the base units. In short, he proceeded to restrict Victory to the circumstance he assumed was present in that case, namely, where the contract unit price fairly represented the actual unit cost.
The two concurring ALJ's also noted their fundamental disagreement with Victory; ALJ Sheridan indeed complained that it had caused "undesirable and unnecessary confusion in the handling of variations in estimated quantities under construction contracts." Id. at 110,824. In his view, the intent of the variations clause "is to bind the parties to the contract unit prices for all quantities within the plus-or-minus fifteen percent range, but to release the parties from the contract unit price, upon demand, for the portions of overruns that exceed 115 percent of the estimated quantities." Id. at 110,825. He did observe, however, with some consternation, that the government had failed to make any change in the clause in the 15 years since Victory had been decided. ALJ Solibakke found fault both with the pronouncements in Victory and with what he regarded as the "sloppily and ambiguously drawn language" of the clause itself. Id. at 110,827.
In Burnett Const. Co. v. U.S., supra, 26 Cl. Ct. 296 (1992), Judge Horn, of the U.S. Claims Court, took essentially the same position on this issue as the administrative law judges in Bean. Although following Victory to the extent that it placed the burden on the proponent of the equitable adjustment to prove its entitlement to that adjustment (and to the amount sought), Judge Horn rejected the approach that the adjustment was to be measured by comparing the actual unit cost for the adjustable units with the actual unit cost for the base units. To do that, he said, would, as the Bean tribunal declared, produce absurd results if those costs varied significantly from the contract unit cost. If, for example, the actual unit cost for the adjustable units was less than the actual unit cost for the base units, the government would be entitled to a downward adjustment even if both actual unit costs exceeded the contract unit cost. On the other hand, if the actual unit cost of the adjustable units exceeded the actual unit cost of the base units, the contractor would be entitled to an increase even if both costs were less than the contract unit cost. Judge Horn concluded, at 307-08:
"The Variations clause, which was developed in recognition of the fact that, in some types of work, it is impossible to arrive at reasonably accurate estimates of the quantities of some operations to be performed, provides that unit prices set forth in the contract are to apply to all quantities of work within the range specified in the clause, and that either party may demand repricing of work which falls outside of that range. In situations in which the Variations clause is activated, however, normal principles of pricing equitable adjustments, such as are utilized under other standard government contract clauses, should apply."
(Emphasis added.)
Bean and Burnett have themselves been criticized. In Foley Co. v. U.S., 26 Cl. Ct. 936 (1992), the government, like SHA here, was seeking a downward adjustment in the contract unit price for overrun adjustable units. Relying on Bean and Burnett, the government contended that it was entitled to a complete repricing of the adjustable units to afford the contractor with no more than a price "that would provide actual costs plus a reasonable profit for the excess units." Id. at 941. Judge Turner declared that both of those cases were wrongly decided, and he returned to the Victory approach. The Bean approach, he said, "cannot be reconciled with the phrase `increase or decrease in costs due solely to the variation'" and itself could lead to an absurd result when the variation is due to an underrun. Id. at 943, 944. Nor, he continued, could Judge Horn's decision in Burnett be squared with the language of the clause. Judge Turner concluded, at 944, that "the government is entitled to a downward adjustment only if it can show that [the contractor's] per unit cost for removing sludge in excess of the base units decreased solely as a result of such excess."
The Armed Services Board of Contract Appeals reached a similar conclusion in Clement-Mtarri Companies, supra, ASBCA No. 38170 (July 8, 1992). That case also involved an overrun where the government sought a downward equitable adjustment restricting the contractor to its actual reasonable costs plus a reasonable profit for the adjustable units. The Board rejected Bean and its reasoning, concluding that, if the government was concerned that the contract unit price was inflated, it had the power to terminate and renegotiate the contract under the "termination for convenience" clause, a clause that is also required in Maryland construction contracts. If it sought relief under the variations clause, however, it would, as the Victory Court declared, have to prove "why the amount paid should be less than that called for by the contract unit prices." In calculating any such adjustment, the Board continued, "[o]ne needs to look to cost economies attributable to excess volume and to deduct those economies from the unit price" and not "reprice the adjustable quantities based on their cost plus a reasonable profit."
We, of course, are not bound by any of these Federal decisions; they are simply guides.
The basic scheme implicit in the variations clause, when read in conjunction with the contract as a whole, is not difficult to discern. We may question the wisdom of it, and we see some difficulty in its application, but the basic scheme, or process, seems clear.
We start with the contract unit price; that is the price to be paid, even for adjustable units, unless an equitable adjustment, to that price, is required. That basic premise, we think, is implicit from the contract language applicable to arrow boards (and other unit price items). See ante: "Method of Measurement and Basis of Payment shall be at the contract unit bid price per unit day." There is nothing in that language, or in any other, suggesting that there is to be a complete repricing or that the contract unit price is to be ignored for overrun (or underrun) units.
To become entitled to an equitable adjustment, a party must establish four things. The first thing he needs to show, of course, is the existence of adjustable units the requisite overrun or underrun. That is evident from the first sentence of the clause. The second thing he needs to establish is that the actual unit cost of the adjustable units varies, in his favor, from the contract unit price, for, unless he can show such a difference, no adjustment in the contract unit price is warranted. If the actual unit cost for the adjustable units is the same as the contract unit price, any reduction in the contract price would not make the contractor "whole," which is the purpose of an equitable adjustment, and any increase in the contract unit price would give the contractor a windfall profit, which is not the purpose of the clause.
The third thing that the proponent needs to establish is that the actual unit cost of the adjustable units is greater or lesser, as the case may be, than the actual unit cost of the base units. That second comparison, between actual unit costs, is required because it serves as the basis for measuring the amount of any adjustment. And finally, the proponent must demonstrate that this difference in actual unit cost is due solely to the overrun or underrun and not to any other cause.
If the proponent establishes these four things, under the clear language of the clause both sentences read together he would ordinarily be entitled to an adjustment to the contract unit price for the adjustable units in an amount equal to the difference in actual unit costs due solely to the variation. That difference would be added to, or deducted from, the contract unit price, as the case may be.
In construing the clause in this manner, we stress that this is its ordinary application. There is some flexibility, however, which also arises from the language of the clause. The clause speaks of an "equitable" adjustment that is to be "based on" an increase or decrease in "costs" due solely to the variation.
The word "costs" is not defined in the clause, and thus, when the evidence indicates that the contractor, in its bid, has shifted expenses from one item to another, it may indeed be inequitable to require the government, if it is the one seeking the adjustment, to be put to the burden of auditing the entire job to find and determine the relevance of camouflaged expenses. It may be, in that circumstance, that the government, in making its comparison of actual unit costs of the base and adjustable units, need look only at the lesser of those expenses properly allocable to the item for which an adjustment is sought or those actually included in it.
Apart from the determination of "costs," additional leeway is implicit from the "equitable" nature of the adjustment and the fact that it is merely to be "based on" and not necessarily equivalent to the cost differential. Keeping a contractor "whole" does not require that it be given an excessive profit based on its use of creative accounting in devising its item bid; nor does it allow the Board to cause injury to the contractor by refusing to compensate it for unit costs legitimately incurred by reason of a significant change in the scope of the work upon which the contractor bid.
The standard, being an equitable one, needs to be flexible in its application. It is not to be applied so rigidly as both the Board and the court, in their very different ways, applied it. We shall therefore vacate the judgment below and remand the case to the circuit court for further remand to the Board of Contract Appeals so that the Board may reconsider the matter in light of this Opinion and not as directed by the circuit court.
JUDGMENT VACATED; CASE REMANDED TO CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDING IN ACCORDANCE WITH THIS OPINION; COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.
NOTES
[1] Somewhere a $1 discrepancy occurred. The actual figure prior to the addition of overhead and profit was $801.
[2] There is additional language in the mandatory clause, but it has no application to this appeal, and so we have omitted it.
[3] Because appellant was the sole bidder on this job, it was not possible to compare the $900 unit cost with other bids on this contract.
[4] The witness started with the costs included in arriving at the $900 contract price, other than the $100 for overhead and profit, or $801. From that he subtracted the $76 actual cost of arrow board, thereby producing a unit cost for base units of $725. From appellant's records, he estimated the actual unit cost for the adjustable units to be $340. He arrived at the estimated decrease in cost by subtracting $340 from $725.
[5] There was one difference, but it is not germane to this appeal. The Maryland clause, as noted, gives a 25% leeway over and under the estimated number of units. The Federal clause gave a 15% cushion. Otherwise, the language of the 1968 Federal clause is the same as the 1981 Maryland clause.
[6] Later additional research indicated that the reason for the change was that the former clause had sometimes been interpreted to permit a repricing of the base units as well as the adjustable units which, in the view of the Armed Services Procurement Regulation Committee, "would encourage bidders to submit unrealistically low unit prices for estimated quantities in the hope of later recovering their actual costs by a mere showing that such costs were incurred and reasonable" and thereby deprive the government of "the advantage gained from unit prices arrived at by competitive bidding." See Clement-Mtarri Companies, No. 38170 (Armed Services Board of Contract Appeals, filed July 8, 1992). Addition of the requirement that an equitable adjustment be based on increases or decreases in costs "due solely" to the variation would preclude a complete repricing of the entire item and focus just on the underrun or overrun.
[7] The Federal Courts Improvement Act of 1982 abolished the U.S. Court of Claims and created in its place what is now the U.S. Claims Court. The new court inherited substantially all of the jurisdiction of the former court and, to assure continuity, declared in its first General Order that all published decisions of the U.S. Court of Claims would be accepted as binding precedent for the U.S. Claims Court until modified by that court, the U.S. Court of Appeals for the Federal Circuit, or the U.S. Supreme Court. See 1 Cl. Ct. cliv. In this regard, J. Cibinic and R. Nash, Administration of Government Contracts, 2d ed. (1985) p. 15, inform us that prior to 1982, the Court of Claims "effectively served as the court of last resort in litigation of procurement matters." Further review could be obtained only through a petition for certiorari to the Supreme Court, which rarely granted such petitions in procurement matters. Under the current law, the Claims Court serves as a trial court, with one judge presiding, and further review is available by appeal to the U.S. Court of Appeals for the Federal Circuit. Administrative resolution of disputes with government procurement agencies is handled by the several boards of contract appeals, which are part of the contracting agencies. Appeals from those boards are also to the Court of Appeals for the Federal Circuit. The boards and the Claims Court thus appear to have parallel trial jurisdiction.
[8] ALJ Peacock did not elaborate on this notion of an implicit assumption by the Victory court. It may have come from the Court's discussion of the contractor's affidavit that the Board had ignored. It may also have stemmed from the Government's concern about "unbalanced bids" leading to overgenerous profits, to which the Court responded, in part, that there was no evidence in the record demonstrating that to be the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261996/ | 132 Cal.Rptr.2d 848 (2003)
107 Cal.App.4th 1201
Edwin C. ILIFF, Plaintiff and Appellant,
v.
Paul S. DUSTRUD, Defendant and Appellant,
Peter Dustrud, Defendant and Respondent.
No. D039059.
Court of Appeal, Fourth District, Division One.
April 17, 2003.
As Modified on Denial of Rehearing May 12, 2003.
Rehearing Denied May 19, 2003.
*849 Procopio, Cory, Hargreaves & Savitch and Edward I. Silverman, San Diego, for Plaintiff and Appellant.
*850 Paul S. Dustrud, in pro. per, for Defendant and Appellant.
Lawton Law Firm and Dan Lawton, San Diego, for Defendant and Respondent.
O'ROURKE, J.
Edwin C. Iliff appeals an order vacating a renewed default judgment in favor of Iliff as against Paul S. Dustrud (Paul), Paul's brother Peter Dustrud (Peter) and other defendants (not parties to this appeal) and entering a new renewed default judgment against Paul only. The superior court's order was based in part on the ground the judgment as against defendants other than Paul was not renewed within 10 years of its entry in March 1991, even though it had been amended and reentered in May 1991, less than 10 years from the date of Iliff's renewal application. On appeal, Iliff contends the court erred by (1) vacating the renewed default judgment upon Peter's untimely motion; (2) concluding the 10-year period for renewal (Code Civ. Proa, §§ 683.020, 683.130, subd. (a))[1] had expired where the amended judgment superseded the original judgment; and (3) vacating the renewed judgment as against the other defendant judgment debtors who were not before the court and had not sought such relief.
Appearing pro se, Paul appeals the order and contends: (1) he was indigent and unable to defend himself in the original case; (2) the amount of interest and attorney fees specified in the renewed judgment is incorrect; and (3) the judgment is based on false testimony.
As to Iliff, we conclude the relevant renewal statutes unambiguously state that the effective date of any judgment for purposes of enforceability and accrual of the renewal period is the date of entry and thus Iliff's renewal application was timely filed within 10 years from the date of entry of the amended judgment. As to Paul, we reject his substantive contentions for his failure to furnish an adequate record to this court. We therefore reverse the order and direct the trial court to deny the motion to vacate and to reinstate renewal of the May 29, 1991 amended judgment nunc pro tunc as of April 20, 2001.
FACTUAL AND PROCEDURAL BACKGROUND
In December 1989, Iliff filed a complaint against Paul, Peter and other defendants for damages relating to their work on a construction project on Iliff's property in Oceanside, California. In early March 1991, the court held a default prove-up hearing, receiving into evidence certain declarations and considering Iliff's oral testimony in support of his request for a default judgment. On March 19, 1991, the court entered judgment in Iliff's favor against Paul in the amount of $340,126 on Iliff's first through sixth causes of action, with interest from June 14, 1989, through March 8, 1991. The court awarded Iliff $35,000 in punitive damages against Paul on Iliff's fourth and sixth causes of action. The court also entered judgment against defendant D & D Drywall & Painting (D & D) for $6,952 plus prejudgment interest, as well as $3,500 in punitive damages on Iliff s seventh cause of action. With respect to Iliff's eighth cause of action, the judgment provided that all defendants named in the judgment (Peter, Paul, D & D, Gregory Leon Wilson, Dan Sejd and Steven McCracken) would be jointly and severally liable for the amount of $340,126 plus prejudgment interest. The judgment concluded: "IT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff shall be entitled to *851 an aggregate award against all defendants named in this judgment in the amount of $340,126, with interest thereon at the legal rate from June 14, 1989 through March 8, 1991, plus reasonable attorneys' fees and costs, postjudgment interest and punitive damages as awarded."
On May 29, 1991, for reasons not apparent from the record, the court entered an amended judgment in Iliff's favor. That judgment was identical to the first, except it omitted the last paragraph and inserted the following three paragraphs:
"IT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED that all defendants named in the judgment shall be jointly and severally liable to plaintiff in the aggregate amount of $340,126, with interest thereon at the legal rate from June 14, 1989 through March 8, 1991 in the sum of $59,987.52 plus reasonable attorneys' fees and costs in the sum of $18,499.75, for a total judgment award of $418,613.27, plus postjudgment interest.
"IT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff shall be entitled to a further award of punitive damages against defendant Paul Dustrud in the amount of $35,000.
"IT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff shall be entitled to a further award of punitive and exemplary damages against [D & D] in the amount of $3,500."
On April 20, 2001, Iliff applied for renewal of the amended judgment. Shortly thereafter the superior court issued notices of renewal of the judgment against Peter, Paul, and the other defendants identified in the amended judgment. On May 7, 2001, Iliff served the notices of renewal on Paul, Peter and the remaining defendants.
On July 3, 2001, Peter moved under sections 683.170 and 473, subdivision (d) to set aside the renewal of the judgment on the ground the default judgment was void for improper service by publication.[2] Iliff opposed the motion. At some point, the court requested the parties brief whether Iliff timely filed his application for renewal on April 20, 2001, which was more than 10 years after entry of the original March 1991 judgment but within 10 years of entry of the May 1991 amended judgment. After continuing the hearing and considering arguments on that question, the court ruled: (1) As to Paul, who had filed for bankruptcy in January 2001, Iliff's renewal application was timely because the 10-year period had been extended for 30 days following termination of the automatic stay under federal bankruptcy law (11 U.S.C. § 108); and (2) as to Peter and the other defendants identified in the judgment, the renewed judgment was unenforceable and would be vacated because Iliff's application was filed more than 10 years after entry of the March 19, 1991 judgment. It rejected Peter's arguments as to improper service by publication, finding the service was proper and Peter had notice of the proceedings before entry of any judgment. Citing section 1710.40, subdivision (c), the court ordered entry of a different renewed judgment as against Paul only. That judgment was filed on October 29, 2001, and entered nunc pro tunc as of April 20, 2001. Both Paul and Iliff appeal.
DISCUSSION
I. Iliff's Appeal
A. Timeliness of Peter's Motion to Set Aside the Renewal of Judgment
Iliff first contends Peter's motion to set aside the default judgment was untimely *852 under section 683.170[3] because it was filed more than 30 days after he served his notice of renewal. However, while Iliff challenged the timeliness of Peter's motion under section 473, subdivision (d), he never raised the 30-day time limit of section 683.170, subdivision (b) in the trial court. He has consequently waived the argument here on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal. App.4th 92, 117, 95 Cal.Rptr.2d 113 ["It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal"].)
B. Calculation of 10-year Renewal Period
Iliff's primary contention is that the 10-year period within which a judgment creditor must renew a judgment (§§ 683.130, subd. (a), 683.020) commenced upon entry of the amended judgment entered in May 1991, not from entry of the original judgment entered in March 1991, and that the court erred by concluding otherwise. Based on the plain language of the renewal statutes, we agree the trial court erred in its order vacating renewal of the amended judgment.
The issue presented is one that we review de novo, since its resolution turns on interpreting the pertinent statutes and applying them to undisputed facts. (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672; McMillin-BCED/Miramar Ranch North v. County of San Diego (1995) 31 Cal.App.4th 545, 553, 37 Cal.Rptr.2d 472.) When interpreting a statute, we look first to the language of the statute itself, and its plain meaning controls unless the words are ambiguous. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572, 88 Cal.Rptr.2d 19, 981 P.2d 944.) "[O]ur Supreme Court has noted: `"If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) ...."'" (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200, 106 Cal.Rptr.2d 854 (Fidelity Creditor).)
Under section 683.010, "[e]xcept as otherwise provided by statute or in the judgment, a judgment is enforceable under this title upon entry." Section 683.020 provides: "Except as otherwise provided by statute, upon the expiration of 10 years after the date of entry of a money judgment or a judgment for possession or sale of property: [¶] (a) The judgment may not be enforced." Section 683.130, subdivision (a) provides in part that a lump-sum money judgment may be extended by renewal of the judgment "at any time before the expiration of the 10-year period of enforceability."
*853 These provisions need no judicial construction. The statutory language is unambiguous and we abide by its plain and straightforward terms. "`The 10-year period provided by Section 683.020 ... commences on the date of entry'" (Fidelity Creditor, supra, 89 Cal.App.4th at p. 201, 106 Cal.Rptr.2d 854, citing Cal. Law Revision Com. com., 17 West's Ann.Code Civ. Proc, supra, foil. § 683.050, p. 75) and not upon any other procedural or substantive event. Thus, a party in whose favor a judgment has been rendered is entitled to execution immediately upon entry. (Phillips v. Patterson (1939) 34 Cal.App.2d 481, 484, 93 P.2d 807.) By the statute's plain terms this rule applies to any money judgment (or judgment for possession or sale of property) regardless of whether it be a modified or amended judgment, and without regard to finality. Upon entry by the clerk, any such judgment is enforceable for a 10-year period.
We are convinced the Legislature intended a bright line rule when it enacted the statutory renewal procedure in 1982. (Stats.1982, ch. 1364, § 2, p. 5073 et seq.) As explained by the Fidelity Creditor court, this procedure is different from, and "was not intended to replace the then existing method to extend the life of a judgmentan independent action on the judgment." (Fidelity Creditor, supra, 89 Cal. App.4th at p. 201, 106 Cal.Rptr.2d 854.) The Law Revision Commission comment to the statute authorizing separate actions on judgments (section 683.050) demonstrates the 10-year period of enforcementunlike the 10-year limitation period to bring an action on the judgmentdoes not depend on the judgment's finality: "Section 683.050 makes clear that the 10-year period of enforcement prescribed by Section 683.020 and the renewal procedure provided by Article 2 (commencing with Section 683.110) do not affect the right to bring an action on a judgment. The limitation period for commencing the action is prescribed by Section 337.5. The 10-year period provided by Section 683.020 and the 10 year statute of limitations provided by Section 337.5 are not coterminous. The period prescribed in Section 683.020 commences on the date of entry and is not tolled for any reason. The statute of limitations commences to run when the judgment is final [citation] and may be tolled such as by the debtor's absence from the state (see Section 351)." (Cal. Law Revision Com. Com., 17 West's Ann. Code Civ. Proc., supra, foil. § 683.050, p. 75; accord, Pratali v. Gates (1992) 4 Cal.App.4th 632, 638, 5 Cal. Rptr.2d 733.) We need not look to the rules Iliff relies upon relating to amended judgments and the time for appeal (see CC-California Plaza Associates v. Palter & Goldstein (1996) 51 Cal.App.4th 1042, 1048, 59 Cal.Rptr.2d 382), because those rules involve a determination of which judgment is the final appealable judgment. Given the straightforward statutory renewal procedure, the trial court erred when it concluded Iliff untimely filed his application for renewal.
Because we reverse the court's order vacating the renewed judgment with directions to deny the motion to vacate and to reinstate the April 2001 renewal of the May 1991 amended judgment, we need not address Iliff's contentions as to the propriety of its order as to the remaining defendants.
However, we do address and reject Peter's contention that both the original and amended judgments, even if timely renewed, are void ab initio and must be vacated on the ground Iliff failed to achieve proper service by publication on him. We agree the evidence and trial court's ruling in this respect must be reviewed in the light most favorable to the order and for abuse of discretion. (Fidelity Creditor Service, supra, 89 Cal.App.4th at p. 199, 106 Cal.Rptr.2d 854.) Peter does not apply these standards; he merely *854 repeats his substantive argument before the trial court that Iliff's "perfunctory" and "suspect" attempts to serve Peter did not establish reasonable diligence, and thus the service by publication did not effect lawful service. Peter has not demonstrated the trial court's order is without substantial evidentiary support, nor has he established its ruling exceeded the bounds of reason. We reject his contention.
II. Paul's Appeal
Iliff contends we lack jurisdiction to consider Paul's appeal because as to him, the court's minute order is a nonappealable postjudgment order. Alternatively, he contends Paul has failed to present an adequate record on appeal indicating what issues he presented and litigated to the trial court, and on that ground, the trial court's minute order renewing the original judgment against him should be affirmed. As indicated above, however, we have reversed that order, only to direct the superior court to deny the motion to vacate and to reinstate the April 2001 renewal of the May 1991 amended judgment, in which Paul is a judgment debtor.
Notwithstanding the procedural quagmire presented by this matter, we will address Paul's substantive arguments only to reject them for lack of an adequate record on appeal demonstrating error. Paul first contends he was indigent and could not adequately defend himself in the proceedings leading up to the March 14, 1991 default judgment, and that the default judgment was obtained by false evidence. Assuming these arguments could properly be made on this appeal, as Iliff points out, they are not supported by any record evidence establishing Paul's indigent status or the truth or falsity of the evidence underlying the default judgment. There is no indication the attached exhibit 1 to Paul's briefa page of a Web site and a color photographwere before the trial court, and Paul does not establish how this document is judicially noticeable or of any evidentiary value on appeal. Nor are Paul's arguments supported by any authority demonstrating prejudicial error. On these grounds alone, we reject the contentions. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295, 240 Cal.Rptr. 872, 743 P.2d 932 [appealed judgments and orders are presumed to be correct; and appellant has the burden of overcoming this presumption by affirmatively showing error based on an adequate record]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.)
With respect to the renewed judgment, Paul contends it is incorrect for three reasons. First, Paul asserts the judgment is incorrect in its amount under section 1710.40, subdivision (a)[4] because the amount of interest is incorrect. However, Paul does not explain how the interest was incorrectly calculated in either the renewed judgment or any other judgment. His bare assertion provides no basis for us to reverse the renewed judgment.
Second, citing section 1710.55,[5] Paul contends the renewed judgment is incorrect on the apparent ground Iliff is continuing to enforce the original default *855 judgment against him in Oregon even after the trial court vacated that judgment. Again, there is no record evidence or authority to support this proposition, and we are unclear as to the applicability of the cited provision, which places restrictions on entry of a California judgment based on a sister state judgment. This contention similarly provides no basis for us to reverse the renewed judgment.
Finally, Paul contends the renewed judgment is incorrect in its award of attorney fees because they are disproportionate to his liability in the case, i.e., they should be 1/50th of the amount of the attorney fees awarded. Paul has not provided a record from which we may determine the legal basis for the award or how it was calculated, and he has cited no authority to support reversal of the attorney fee award on any ground. By taking this appeal, Paul "assumed `the burden of showing reversible error by an adequate record.'" (Tudor Ranches, Inc. v. State Com.p. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433, 77 Cal.Rptr.2d 574.) Adhering to the rule that an order is presumed correct unless the appellant has affirmatively demonstrated otherwise (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1056, 104 Cal.Rptr.2d 920), we are compelled to reject this last contention.
DISPOSITION
The order is reversed and the matter remanded with directions that the trial court deny the motion to vacate and reinstate renewal of the May 29, 1991 amended judgment nunc pro tunc as of April 20, 2001. Iliff shall recover his costs on appeal.
WE CONCUR: HUFFMAN, Acting P.J., and McINTYRE, J.
NOTES
[1] All statutory references are to the Code of Civil Procedure unless otherwise indicated.
[2] The record suggests, and Iliff states in his brief that Paul also filed papers in response to the notices of renewal. Those papers are not contained in the record before us. Because the trial court's order referred to a single motion to vacate renewal brought by both Peter and Paul, we will consider both to have been parties to the motion.
[3] Section 683.170 provides in part: "(a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect .... [¶] (b) Not later than 30 days after service of the notice of renewal pursuant to Section 683.160, the judgment debtor may apply by noticed motion under this section for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. [¶] (c) Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount."
[4] Section 1710.40, subdivision (a) provides: "A judgment entered pursuant to this chapter [Sister State Money Judgments] may be vacated on any ground which would be a defense to an action in this state on the sister state judgment, including the ground that the amount of interest accrued on the sister state judgment and included in the judgment entered pursuant to this chapter is incorrect."
[5] Section 1710.55 provides: "No judgment based on a sister state judgment may be entered pursuant to this chapter in any of the following cases: [¶] (a) A stay of enforcement of the sister state judgment is currently in effect in the sister state. [¶] (b) An action based on the sister state judgment is currently pending in any court in this state. [¶] (c) A judgment based on the sister state judgment has previously been entered in any proceeding in this state. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262006/ | 900 F.Supp. 604 (1995)
Kirk MARSHALL, Plaintiff,
v.
Richard M. SWITZER, Former Deputy Commissioner, Office of Vocational Rehabilitation of the New York Stated Educational Department, In His Individual Capacity, and Lawrence C. Gloeckler, Deputy Commissioner, Office of Vocational and Educational Services for Individuals with Disabilities of the New York State Education Department, in His Individual and Official Capacity, Defendants.
No. 92-CV-747 (FJS) (DNH).
United States District Court, N.D. New York.
October 4, 1995.
*605 *606 *607 Legal Aid Society of Mid-New York, Inc., Utica, New York (Paul J. Lupia, of counsel), for plaintiff.
Dennis C. Vacco, Attorney General of the State of New York, Albany, New York, for defendants.
*608 DECISION AND ORDER
SCULLIN, District Judge:
PROCEDURAL BACKGROUND
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that his rights under the Rehabilitation Act of 1973 were violated by defendants Switzer and Gloeckler. At the time of the alleged violation, defendant Switzer, who is being sued in his individual capacity, was serving as Deputy Commissioner of the New York State Office of Vocational Rehabilitation. Defendant Gloeckler, who is being sued in both his individual and official capacities, presently serves as defendant Switzer's successor in the position of Deputy Commissioner. Plaintiff seeks compensatory damages as well as declaratory and injunctive relief.
This matter is presently before the Court on remand from the Second Circuit Court of Appeals, where an initial Order dismissing the complaint on the grounds that plaintiff was not entitled to bring this claim under 42 U.S.C. § 1983 was vacated. The original dismissal was based on the Court's finding that Title I of the Rehabilitation Act does not create enforceable rights within the meaning of section 1983. The Second Circuit held that the Act does create such rights and, therefore, plaintiff is entitled to bring his claim under section 1983. Marshall v. Switzer, 10 F.3d 925 (2d Cir.1993).
The case was remanded for consideration of the remaining grounds for defendants' motion to dismiss. Those grounds consisted of defendants' assertions that plaintiff failed to state a claim for which relief may be granted, and that they are entitled to qualified immunity as a matter of law. By Order dated January 3, 1995, the Court converted the motion into a summary judgment motion on the same grounds.[1] Thereafter, the parties submitted additional affidavits addressing the issue of qualified immunity as well as the failure to state a claim defense. The Court, having duly considered all of the parties' submissions, will address each ground for summary judgment.
FACTS
The Rehabilitation Act of 1973 provides a framework within which states devise and implement federally funded and regulated plans to provide handicapped individuals with vocational services in order to enable them to obtain gainful employment to the extent of their capabilities. Substantial amounts of federal funds are made available to states for the providing of such rehabilitation services.
The primary goal of the Rehabilitation Act is to enable states to provide rehabilitation services tailored to each individual client's needs. Pursuant to 29 U.S.C. § 721, in order to receive federal funding under the Act, a state must submit an appropriate rehabilitation services plan to the Commissioner of the Federal Rehabilitation Services Administration. These state plans must include administrative procedures and regulations which govern the provision of services under the Rehabilitation Act. In New York State, the Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") is responsible for developing and implementing a state plan.
Both Title 29 of the U.S.Code and the corresponding state laws and regulations require that VESID prepare an individualized written rehabilitation program ("IWRP") for each of its clients.[2] An IWRP is intended to identify the vocational goal of the client along with the specific services which must be provided in order for him or her to achieve that goal.
The VESID regulation which is at issue in the case at bar is regulation number 1350.00, which is entitled "Vehicle Modifications and Adaptive Equipment." This regulation deals with client applications for the reimbursement of costs associated with vehicle modifications. In addition to setting forth the procedures that must be followed in requesting such reimbursements, this section also establishes limitations on the amount a client may *609 be reimbursed for vehicle modifications.[3] The regulation states that VESID will not reimburse a client for the cost of basic automobile "equipment available from [a] dealer through factory installation." Marshall Ans. Aff.Ex. 12, Policy 1350.00, Sec. I.
Plaintiff became a client of VESID in 1984, at which time an initial IWRP was established for him. In his initial IWRP, plaintiff's occupational goal was listed as "business management and/or human services." Soon thereafter, in February 1985, a rehabilitation counselor evaluated plaintiff and concluded that his vehicle would require many modifications in order to enable him to drive independently. These modifications included both factory and non-factory installed options.[4] Following this evaluation, in August 1986, plaintiff purchased a 1987 Ford van which contained all of the factory-installed modifications that had been prescribed by the rehabilitation counselor in 1985.
In August of 1987, VESID issued an amended IWRP for plaintiff which addressed his need for the prescribed van modifications. This IWRP stated that VESID would reimburse plaintiff for all "essential, justified, and recommended" modifications other than "standard or optional equipment available from the dealer by factory installation...." Marshall Ans.Aff.Ex. 4. VESID's decision not to reimburse plaintiff for the factory-installed options was based on the provisions contained in regulation number 1350.00.[5]
Plaintiff appealed this decision, and two levels of administrative review ensued, with the validity of regulation 1350.00 being upheld at both levels. Id. ¶ 15. Thereafter, an administrative hearing was held at which time the hearing officer found VESID's decision to not reimburse Marshal for factory-installed modifications "arbitrary and discriminatory," and recommended that VESID reconsider its policy of not reimbursing clients for such modifications. Id. Ex. 5.
The hearing officer's findings and recommendation were subsequently denied by defendant Switzer in his capacity as Deputy Commissioner of the Office of Vocational Rehabilitation.[6] In denying the recommendation, Switzer stated that section 1350.00 was "appropriate as stated and applie[d] to [Marshall's] case." Marshall Ans.Aff.Ex. 6. As a result of this decision, the denial of plaintiff's request for reimbursement for the factory-installed modifications was upheld, and plaintiff's VESID case was closed as "successfully rehabilitated." Id.
Following Switzer's final determination, plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging that VESID's refusal to fully reimburse him for the costs of the factory-installed modifications constituted a deprivation of his rights under the Rehabilitation Act. Plaintiff seeks declaratory and injunctive relief as well as compensatory damages.
DISCUSSION
In the case at bar, plaintiff seeks a judicial interpretation of the scope of services that the Rehabilitation Act requires state agencies to provide. Because this task "falls squarely within the traditional realm of judicial competence," Marshall, 10 F.3d at 930, the entire action is ripe for disposition at the summary judgment stage. As stated above, both defendant Switzer, in his individual capacity, *610 and defendant Gloeckler, in his individual and official capacities, have moved for summary judgment on two separate grounds.[7] First, they assert that plaintiff has failed to state a claim upon which relief may be granted. Because this motion is being decided in the summary judgment context, the Court will treat this as a claim that plaintiff failed to establish a prima facie case. And, secondly, defendants assert that they are entitled to qualified immunity to the extent that they are being sued in their individual capacities. The Court will address each of these grounds individually.
Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence in the light most favorable to the non-movant, the court determines that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 2077, 119 L.Ed.2d 265 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir.1993). The burden of showing that no genuine issue of material fact exists rests on the moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). Where the moving party does not bear the ultimate burden of proof at trial, the summary judgment burden may be satisfied by pointing out the absence of evidence to support the non-movant's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the movant shows the absence of such evidence, the burden of persuasion shifts to the non-movant to show that the record contains sufficient evidence to establish each element of its case. Id., at 322, 106 S.Ct. at 2552.
Because a motion for summary judgment requires the court to search the entire record, American Camping Ass'n. Inc. v. Whalen, 554 F.Supp. 396, 399 (S.D.N.Y.1983), "summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under Rule 56." 10 A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2720, pp. 29-30 (2d ed. 1983); see also Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir.1983).
The ability to grant summary judgment, sua sponte, allows a court to remain true to the goal of Rule 56 by expediting the disposition of cases. 10 A C. Wright et al., Federal Practice and Procedure, § 2720, at 33. Therefore, the Second Circuit has stated that where "the evidence of the facts bearing on the issues arising out of the complaint is all before the court in affidavit form, it is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had [the non-movant] made a cross-motion for summary judgment." Local 33, Int'l Hod Carriers Bldg. & Common Laborers' Union of America v. Mason Tenders Dist. Council of Greater New York, 291 F.2d 496, 505 (2d Cir.1961).
Both parties have submitted numerous affidavits supporting their respective positions on these motions. After examining these affidavits, the Court finds that there are no questions of material fact which would preclude it from disposing of this action at the summary judgment stage. Accordingly, the Court makes the following determinations.
Failure to Establish a Prima Facie Case
In order to properly allege a claim under 42 U.S.C. § 1983, a party must satisfy two essential elements. A party must allege that the conduct complained of was committed by a person acting under color of state law, and that that conduct deprived the party of rights, privileges, or immunities secured by the Constitution or laws of the United States. Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24 (2d Cir.1988). Additionally, allegations of personal involvement by any defendant "is a prerequisite to an award of damages (against that defendant) under [section] 1983." *611 McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978).
Defendant Gloeckler
In support of his motion for summary judgment, defendant Gloeckler argues that plaintiff has failed to state a claim for relief against him, in his individual capacity, because he was not personally involved in the alleged denial of services. The Second Circuit has recognized various ways in which a defendant can be personally involved in a deprivation of rights within the meaning of section 1983. One of the ways that personal involvement can exist is where "[a] supervisory official, after learning of the [statutory] violation through a report or appeal, ... fail[s] to remedy the wrong." Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). In the case at bar, plaintiff claims that defendant Gloeckler was personally involved in the wrongful denial of services because he ultimately learned of plaintiff's claim that policy 1350.00 was illegal and he failed to remedy it. Pl.Sec.Opp.Mem. at 10.
While plaintiff makes this contention in his memorandum, his complaint fails to allege any specific acts of personal involvement by Gloeckler. In fact, the only allegation that even mentions defendant Gloeckler summarily states that "[d]efendant Switzer's determination (not to reimburse plaintiff for the van modifications) became a final determination of the OVR and successor agency VESID and, as such, has been relied upon by Defendant Gloeckler." Complaint ¶ 49. There is no explanation, either in the complaint or in plaintiff's memorandum, of what, if anything, Gloeckler did to fail to "remedy the wrong" done to plaintiff.
Plaintiff argues in his memorandum that Gloeckler has had sufficient personal involvement in this matter because he admitted that he has been aware of plaintiff's claim of the illegality of policy 1350.00 since June 1992, and he has allowed it to continue to be applied since that time. Pl.Sec.Opp.Mem. at 10. He bases this argument on Gloeckler's statement that he took "no action with respect to the claims raised in plaintiff's complaint and, until informed of the services of process [in this case], [he] was unaware of the fact that plaintiff contends that VESID's vehicle modification policy is illegal...." Gloeckler Aff. ¶ 3. This statement hardly supports plaintiff's argument that Gloeckler was aware of a wrong towards plaintiff and allowed it to continue.
The record clearly indicates, and plaintiff openly concedes, that Gloeckler did not become aware of plaintiff's contentions that regulation 1350.00 was illegal until after he had been served with process. Thus, Gloeckler's failure to remedy the alleged illegality of regulation 1350.00 occurred, if at all, after this action had already been filed. Accordingly, the Court finds that plaintiff has failed to show that defendant Gloeckler was personally involved in the alleged wrongful conduct, and, therefore, he is entitled to summary judgment as to the claims against him in his individual capacity.
Defendant Switzer
In support of his defense that plaintiff has failed to establish a prima facie case against him in his individual capacity, defendant Switzer asserts that the present action is barred from going forward because it is comprised of claims which plaintiff failed to raise in the administrative process below. The Court, however, finds that plaintiff, at both the administrative stage and in filing this lawsuit, has consistently claimed that VESID's policy 1350.00 violated the Rehabilitation Act. Even if the Court were to find otherwise, "[i]t is well-established that § 1983 generally allows plaintiffs with federal or constitutional claims the right to sue in federal court without first resorting to state judicial remedies, or state administrative remedies." Kraebel v. Dept. of Housing Pres. & Dev., 959 F.2d 395, 404 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 326, 121 L.Ed.2d 245 (1992). Accordingly, defendant Switzer is not entitled to summary judgment on this ground.[8]
*612 Defendant Switzer's Motion for Summary Judgment on the Separate Ground that he is Entitled to Qualified Immunity
Qualified immunity protects state officials from liability for damages where their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would know." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Smith v. Coughlin, 938 F.2d 19 (2d Cir.1991). Simply stated, qualified immunity is intended to protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Accordingly, in order to establish the defense of qualified immunity, an official "must satisfy one of two tests: either that his conduct did not violate `clearly established' rights of which a reasonable person would have known, or that it was `objectively reasonable' to believe that his acts did not violate these clearly established rights." Finnegan v. Fountain, 915 F.2d 817 (2d Cir.1990).
It is well settled that a right may be deemed "clearly established," if it is "sufficiently clear that a reasonable official would understand that what he is doing violates the right." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, an action need not be previously held unlawful in order for it to be beyond the reach of qualified immunity. Rather, "in light of pre-existing law the unlawfulness [of the action] must be apparent." Id.
The Second Circuit has delineated three factors that a court may look to in determining whether a particular right was clearly established at the time the defendants acted. These factors include:
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied 503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992).
In determining qualified immunity, therefore, the initial inquiry must focus on the right that is deemed to have been violated by the defendants. In the case at bar, this inquiry is made more difficult by the fact that the parties do not agree as to what particular right may have been violated. Plaintiff asserts that the Rehabilitation Act requires the state to provide him with all necessary rehabilitation services, and that such services cannot be denied without taking into account the individual needs of the clients. Accordingly, plaintiff asserts that regulation 1350.00 is illegal because it is a blanket prohibition that denies him his right to receive necessary services. Plaintiff's Supp.Mem. at 17. However, defendants maintain that there is no clearly established legal right which requires "[s]tates to provide individuals with disabilities with compensation for factory-available options in vehicles they purchase." Def.Supp.Mem. at 14-15.
"The practical application of [the `clearly established'] standard depends substantially upon the level of generality at which the relevant legal [right] is to be identified." Alvarado v. Picur, 859 F.2d 448, 452 (7th Cir.1988). Therefore, the more generalized the right, the more likely that it will be deemed to have been "clearly established." For purposes of this analysis, the Court will assume that the right as proposed by plaintiff, being the more generalized, is the right at issue in this case.[9]
I. Was the "Right" Defined with "Reasonable Specificity?"[10]
The Rehabilitation Act mandates that state plans "shall provide, at a minimum, *613 for the provision of ... vocational rehabilitation services." 29 U.S.C. § 721(a)(8). Vocational rehabilitation services are subsequently defined as "any goods or services necessary to render a handicapped individual employable." Id. § 723(a). The Act requires states to provide all of the goods and services specifically described in section 723 of the Act, unless the client can receive similar benefits under any other program.[11] One of the services which states are required to provide, unless the client can receive similar benefits under another program, is "transportation in connection with the rendering of any vocational rehabilitation service." Id. § 723(a)(10). Additionally, in 1986, the Act was amended to include "Rehabilitation Engineering Services" as an additional benefit available to eligible clients. These services were defined as
the systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of and address the barriers confronted by individuals with handicaps in areas which include education, rehabilitation, employment, transportation, independent living, and recreation.
29 U.S.C. § 706(12) (West Supp.1990). The Act, however, does not provide any guidance as to what precise benefits are appropriate under either of these services.
In order to evaluate the full scope of the Rehabilitation Act, the Court must read it in conjunction with the regulations that were enacted to assist in its implementation by the states. See Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) ("regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute"). In this case, the pertinent regulations provide that a state vocational rehabilitation plan must establish a policy which sets forth "the conditions, criteria, and procedures under which each service is provided." 34 CFR § 361.42(b) (1995). They also direct that every IWRP include "[t]he terms and conditions for the provision of vocational rehabilitation services, including ... the extent of client participation in the cost of services...." 34 C.F.R. § 361.41(a)(9).
The regulations, therefore, seem to permit the provision of services to be conditional, while the language of the Act seems to mandate that the provision of some services be unconditional. Thus, it is unclear to what extent, if any, the Rehabilitation Act permits a state agency to have discretion over the disbursement of "necessary" rehabilitation services. Accordingly, the Court cannot find that the right in question as articulated by plaintiff was defined with "reasonable specificity."
II. Relevant Decisional Law
Neither party has been able to produce any relevant decisional law of the Supreme Court or the Second Circuit which would be helpful in ascertaining whether the right in question, as plaintiff perceives it, was clearly established in 1989. Plaintiff has produced two cases which he asserts are sufficient to show that the right to be protected from any state instituted "blanket prohibitions" on rehabilitation services was clearly established at that time.
In Schornstein v. NJ Div. of Vocational Rehabilitation Services, 519 F.Supp. 773 (D.N.J.1981), aff'd 688 F.2d 824 (3d Cir.1982), the district court held that a blanket policy which denied interpreter service to every deaf college student was in contravention of the Act's requirement of providing individualized programs. Similarly, in Scott v. Parham, 422 F.Supp. 111 (D.Ga.1976), the district court held that a state guideline which provided financial support only to those individuals receiving vocational rehabilitation who lived independently was unreasonable *614 due to its failure to address the particular needs of each individual.
These two cases illustrate the fact that the Rehabilitation Act established a right to the provision of individualized services. They do not, however, result in this Court finding that in the Second Circuit in 1987 there existed a right not to have any rehabilitation services denied by blanket prohibitions. As the Second Circuit discussed in Jermosen, a right can be deemed "clearly established" if the caselaw of "the Supreme Court and the applicable circuit court support the existence of the right in question." Jermosen, 945 F.2d at 550 (emphasis supplied). Because both of the above cited cases are from district courts, neither of which are within the Second Circuit, they could not, standing alone, create a clearly established right in this Circuit. See Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir.1987) ("a district court decision does not `clearly establish' the law even of its own circuit, much less that of other circuits").
As additional support for his argument that the right in question was clearly established in 1989, plaintiff places great reliance upon the decision that was issued at the conclusion of his administrative hearing. While it is clear that that decision contained a recommendation from the hearing officer that VESID "reconsider its policy of not paying for factory installed options," such a recommendation is hardly enough to "clearly establish" a right to be provided with such options. Marshall Aff.Ex. 5, p. 5. Because "a district court decision does not `clearly establish' the law even of its own circuit," Hawkins, 829 F.2d at 321, a recommendation from an administrative hearing officer surely cannot do so. Thus, there is no relevant decisional law which would support the existence of the right in question.
III. Whether A Reasonable Defendant Official Would Have Understood That His Acts Were Unlawful
In further support of his argument that the right in question was clearly established, the plaintiff relies on two policy directives that were issued by the federal Rehabilitation Services Administration. Plaintiff relies on these memoranda in an attempt to show that, in 1989, a reasonable official would have understood that it was unlawful to apply the blanket prohibition included in regulation 1350.00 to plaintiff's case. The first memo, issued in December 1985, discusses the propriety of establishing annual limits on the amount of money spent on each client or for each service category. Marshall Aff.Ex. 9. The memo states that "[o]verall annual dollar limits per individual [or per service category] are not allowable as a blanket rule." Id. Similarly, the second memo, issued in November 1987, states that "[s]ervice decisions should not be subject to arbitrary, categorical limitations on expenditures...." Id. Ex. 8.
It is clear from these policy directives that categorical limitations on the amount of money that may be spent on a client or a service are not permitted under the Act. In the case at bar, however, plaintiff was not denied any services as a result of a categorical limitation on expenditures. In fact, as stated above, the record clearly shows that plaintiff was granted a waiver by VESID so that his reimbursements could exceed the monetary limitations set forth in section 1350.00. Therefore, these directives did not serve to clearly establish plaintiff's right not to have his request for reimbursement denied through the application of a non-expenditure related blanket rule.
After analyzing the Act itself, and the entire record in this matter, the Court finds that, in 1989, a reasonable defendant would not have known that it violated the Rehabilitation Act to categorically deny a request for the provision of factory-installed modifications. Absent a violation of a "clearly established" right, an official is entitled to summary judgment based upon qualified immunity. See, e.g., Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.1993). Because the Court finds that the actions of defendant Switzer did not violate any clearly established rights, he is entitled to the protection of qualified immunity, and summary judgment is appropriate on the claim asserted against him.[12]
*615 Remaining Claims
Although the Court has determined that neither defendant may be held personally liable to plaintiff for compensatory damages, his claims for prospective relief still remain viable. As a result, defendant Gloeckler, in his official capacity as Deputy Commissioner of VESID, is the only remaining defendant in this action, and plaintiff's only remaining claims are those seeking declaratory and injunctive relief.
It is well settled that a suit seeking damages against a state official in his official capacity constitutes an action against the state for Eleventh Amendment purposes. Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985). The Eleventh Amendment bars suits against state officials seeking retroactive monetary relief, but not those where the relief sought is prospective in nature. See Association of Surrogates v. State of N.Y., 940 F.2d 766, 774 (2d Cir.1991). Actions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action. Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir.1988), cert. denied 495 U.S. 957, 110 S.Ct. 2562, 109 L.Ed.2d 744 (1990); See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2312 n. 10, 105 L.Ed.2d 45 (1989); Dube v. SUNY, 900 F.2d 587, 595 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2814, 115 L.Ed.2d 986 (1991). Here, the Deputy Commissioner of VESID was the official responsible for the allegedly wrongful denial of benefits. Thus, notwithstanding his lack of personal involvement in the alleged wrongful conduct, plaintiff's claims for declaratory and injunctive relief against defendant Gloeckler, in his capacity as Deputy Commissioner of VESID, are not barred. Luckey, 860 F.2d at 1015-16 ("Personal action is not a necessary condition of injunctive relief against state officers in their official capacity").
Injunctive Relief
As stated above, plaintiff seeks a permanent injunction prohibiting defendant Gloeckler and his successors from applying policy 1350.00 to him in the future. Plaintiff has the burden of establishing the necessity of such relief, which "can be issued only to prevent existing or presently threatened injuries." Socialist Workers Party v. Attorney Gen. of U.S., 642 F.Supp. 1357, 1425 (2d Cir.1986). Plaintiff is required to make "a showing of irreparable harm, `a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again.'" Levin v. Harleston, 966 F.2d 85, 90 (2d Cir.1992) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983)).
In the case at bar, plaintiff argues that because he is still a client of VESID, his IWRP is periodically amended and, therefore, he continues to suffer from the application of regulation 1350.00. Even if the Court were to assume that the application of policy 1350.00 constitutes a redressable "wrong," the injury that plaintiff is complaining of is a past injury, not a continuing one. VESID's refusal to provide plaintiff with factory-installed modifications to his van occurred in 1989. The fact that that denial has not been altered despite subsequent amendments to his IWRP does not mean that it has been repeated with each amendment.
"Past injury may have a bearing upon whether an injunction should be granted, but only as to the likelihood that the past misconduct will be repeated." Socialist Workers, 642 F.Supp. at 1425. Here, the only way that plaintiff could again be denied reimbursements for factory-installed modifications by VESID is if he were to purchase another van. Because plaintiff has given no indication that he will need to purchase a new van in the near future, it cannot be said that there is "any real or immediate threat that [he] will be wronged again." Lyons, 461 U.S. at 111, 103 S.Ct. at 1670. While the *616 Court recognizes that it is likely that plaintiff will have to purchase a new van at some time in the future, that is an event far too remote in time to compel injunctive relief in the present case. See Carey v. Klutznick, 637 F.2d 834, 837 (2d Cir.1980) (per curiam) ("Real and imminent, not remote, irreparable harm is what must be demonstrated."). Accordingly, the Court finds that plaintiff is not entitled to injunctive relief because he has not shown that he is suffering from any existing injury or that there is "any real or immediate threat" that he will again be denied reimbursement for factory-installed modifications to his van.[13]
Declaratory Relief
Plaintiff also seeks a declaratory judgment against defendant Gloeckler stating that VESID's policy 1350.00 violates the terms of the Rehabilitation Act. In order to establish standing for such relief, however, plaintiff must show that (1) policy 1350.00 is "fixed and definite," or (2) that VESID's allegedly unlawful actions were occurring at the time the complaint was filed or were imminent. See Socialist Workers Party v. Atty. Gen. of U.S., 642 F.Supp. 1357, 1425 (S.D.N.Y.1986) ("there can be no declaratory relief against governmental policy or action unless that policy is fixed and definite or unless the action is taking place or is imminent"). The Court finds that plaintiff has satisfied this requirement, as the record clearly shows that policy 1350.00 is "fixed and definite," and is regularly applied by VESID.
In assessing whether declaratory relief is appropriate in the case at bar, the Court must determine whether the portion of VESID policy 1350.00 that requires clients "to assume costs of the basic vehicle and equipment available from the dealer through factory installation," violates the provisions of the Rehabilitation Act. In effect, the Court must decide "whether factory-installed options are goods which [the Act] requires participating states to provide if necessary to render clients employable." Marshall, 10 F.3d at 929. The Court need not, however, require a showing of irreparable harm, because "declaratory relief does not share injunctive relief's requirement of irreparable harm." Levin, 966 F.2d at 90.
As stated above, section 103(a) of the Act defines the scope of vocational rehabilitation services provided under Title I as "any goods or services necessary to render an individual with a disability employable...." 29 U.S.C. § 723(a). This section provides a non-exclusive list of such goods and services. Presently, this list includes sixteen specific types of goods or services which are obtainable under the Act. "[T]ransportation in connection with the rendering of any vocational rehabilitation service" continues to be on the list, while "rehabilitation engineering services," was replaced by "rehabilitation technology services," in 1992.[14]Id. at (a)(10).
"The term [`rehabilitation technology services'] includes rehabilitation engineering, assistive technology devices, and assistive technology services," in addition to the above stated definition of "rehabilitation engineering services."[15] 29 U.S.C. 706(13) (West. *617 Supp.1993). The Act defines "assistive technology devices" as "any item, piece of equipment, or produce system, whether acquired commercially off the shelf, modified or customized, that is used to increase, maintain or improve functional capabilities of individuals with disabilities." 29 U.S.C. §§ 706(23) and 2202(1) (West Supp.1994). The Court finds that factory-installed modifications to a van, which are necessary to enable a handicapped individual to drive, would fit into this category of "assistive technology devices."
The full scope of the services required under the Act was also clarified in two separate policy directives which were issued to all state vocational rehabilitation agencies, including VESID, by the Rehabilitation Services Administration ("RSA") in November of 1990. In the first directive, the RSA stated that "[r]ehabilitation technology encompasses a range of services and devices which can supplement and enhance individual functions." Def.Supp.Mem.Ex. RSA-PD-91-03 (November 16, 1990) (emphasis supplied). Clearly, driving must be considered an "individual function," and factory-installed modifications do more than supplement or enhance that function for handicapped individuals, in most cases they make it possible.
Similarly, in a November 1990 "Technical Assistance Circular," the RSA elaborated on its earlier discussion of rehabilitation technology by stating that it was "available either to substitute for functions lost through disability, or to supplement or enhance existing functions in order to expand employment and independent living opportunities." Def. Supp.Mem.Ex. RSA-TAC-91-01, p. 2 (November 16, 1990). Again, it is clear to the Court that driving must be considered an individual function that would serve to "expand employment and independent living opportunities."
In light of the 1992 amendment, and the referenced policy directives, the Court finds that factory-installed modifications are goods which the Act now requires states to provide if necessary to enhance employment or independent living opportunities. Therefore, the Court finds that VESID policy 1350.00 violates the Rehabilitation Act to the extent that it precludes clients from being reimbursed for the costs associated with the purchase and installation of necessary, factory-installed vehicle modifications.
CONCLUSION
For the above stated reasons, defendant Switzer's motion for summary judgment based upon qualified immunity is granted, and the claims against him are dismissed in their entirety. Defendant Gloeckler's summary judgment motion for failure to establish a prima facie case is granted, and the claims against him in his individual capacity are dismissed. As for the claims against defendant Gloeckler in his official capacity, summary judgment is granted as to plaintiff's claims for injunctive relief and denied as to his claim for declaratory relief. And, finally, summary judgment is granted, sua sponte, to plaintiff on his claim for declaratory relief.
Accordingly, it is hereby
ORDERED, that defendant Switzer's motion for summary judgment is GRANTED, and all claims against him are dismissed; and it is further
ORDERED, that defendant Gloeckler's motion for summary judgment with respect to the claims against him in his individual capacity is GRANTED; and it is further;
ORDERED, that defendant Gloeckler's motion for summary judgment on plaintiff's claim for injunctive relief is GRANTED; and it is further
ORDERED, that summary judgment is GRANTED, sua sponte, to plaintiff on his claim for declaratory relief.
IT IS SO ORDERED.
NOTES
[1] This Order was supplemented by an Order dated September 12, 1995, which served to clarify the Rule 12(b) conversion.
[2] In New York, handicapped persons who apply for services and are found to be eligible are considered to be "clients" of VESID.
[3] These monetary limitations are set at (1) $4,000 for modifications made to any car, or to a van which the client will only use as a passenger; and (2) $10,500 for modifications to a van in which the client will function as driver. Marshall Ans.Aff.Ex. 12, Policy 1350.00, Sec. IV(3). These limitations, however, may be waived by VESID upon a client's showing of specialized need. Pawson Supp.Aff. ¶ 12.
[4] The factory-installed options in question consisted of such things as an automatic transmission, power steering, air conditioning, power brakes, rear heater, swing-out sliding door, and tinted windows. Complaint ¶ 37.
[5] The modifications to plaintiff's van cost approximately $17,500. Approximately $3,000 of this amount was attributable to the factory-installed modifications while the remaining $14,500 was attributable to the non-factory installed modifications. Marshall Ans.Aff. ¶ 9 & Ex. 4. In the amended IWRP, VESID agreed to reimburse plaintiff for the $14,500 attributable to non-factory installed modifications, thereby waiving the $10,500 cap stated in policy 1350.00. Ans. Aff.Ex. 4.
[6] The Office of Vocational Rehabilitation ("OVR") was the predecessor of VESID.
[7] As stated above, defendants' originally moved to dismiss the complaint on several grounds. Following remand, the Court notified the parties of its intent to convert the motion to one for summary judgment pursuant to FRCP 12(b)(6), and both parties have submitted additional materials and affidavits.
[8] The Court also finds no merit in defendant Switzer's argument that summary judgment is warranted due to the fact that plaintiff based his claims upon statutes which were enacted after the 1989 decision by him. It is clear that plaintiff's action is premised primarily upon 29 U.S.C. § 723 which was enacted as part of the original Rehabilitation Act in 1973.
[9] Obviously, if the Court finds that plaintiff's generalized right was not "clearly established," it must also find that defendants' more narrowly drawn right was not "clearly established."
[10] In performing a qualified immunity analysis, the Court must examine the statute in question as it existed at the time of the allegedly unlawful conduct. Accordingly, this portion of the Court's discussion is based on the relevant sections of the Rehabilitation Act as they existed in 1989.
[11] The Act provides that states are unconditionally obligated to supply: (1) an evaluation of rehabilitation potential; (2) counseling, guidance, and placement services; (3) vocational and training services; and (4) rehabilitation engineering services. States are only obligated to provide the other listed goods and services after it determines that the client cannot receive similar benefits under any other program. 29 U.S.C. § 721(a)(8).
[12] In light of the Court's finding that plaintiff did not have a "clearly established" right to reimbursement for the factory-installed modifications, it need not address whether Switzer's actions were "objectively reasonable."
[13] Plaintiff also seeks an injunction compelling defendant Gloeckler or his successors to amend his IWRP without reference to policy 1350.00. Presumably, plaintiff believes that such an injunction would result in a recovery of the expenses associated with the factory-installed modifications. It is well-settled, however, that the Eleventh Amendment bars any type of judgment which requires a state to pay retroactive damages. See Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (order requiring retroactive payment of wrongfully denied benefits barred by Eleventh Amendment). Accordingly, even if the Court were to find that a proper showing of irreparable harm has been made, such injunctive relief would be barred.
[14] Because this amendment occurred after Switzer's determination, it provided no assistance to the Court in its qualified immunity analysis. The Court is not, however, barred from referring to this amendment in analyzing whether prospective relief is appropriate. Such an analysis requires the Court to determine whether policy 1350.00 violates the Act as it exists presently, not as it existed in 1989 when Switzer's determination was made.
[15] The 1992 amendment to the Act also stipulated that "rehabilitation technology services" is one of the services that state agencies must provide to clients regardless of whether comparable services are obtainable through another program. 29 U.S.C. §§ 721(8) & 723(a)(12). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262009/ | 132 Cal.Rptr.2d 733 (2003)
107 Cal.App.4th 498
In re ASIA L., a Person Coming Under the Juvenile Court Law.
Contra Costa County Department of Children and Family Services, Plaintiff and Respondent,
v.
Robert L., Defendant and Appellant.
In re James H. et al., Persons Coming Under the Juvenile Court Law.
Contra Costa County Department of Children and Family Services, Plaintiff and Respondent,
v.
Monica D., Defendant and Appellant.
Nos. A098500, A099079.
Court of Appeal, First District, Division Three.
February 24, 2003.
*734 Office of the County Counsel, Silvano B. Marchesi, County Counsel, Paul Muniz, Deputy County Counsel, for Plaintiff and Respondent Contra Costa County Children and Family Services.
J. Ross Walker, Willits, for Defendant and Appellant Robert L.
Janet Hite Saalfield, Sausalito, for Defendant and Appellant Monica D.
POLLAK, J.
In appeal No. A099079, Monica D. appeals from an order terminating her pa-rental *735 rights with respect to three of her children, Asia, James, and Joel. In appeal No. A098500, Robert L. appeals from the same order terminating his parental rights with respect to his child Asia. The appeals have been consolidated and Robert and Monica raise overlapping arguments.
Specifically, Robert and Monica contend there is insufficient evidence to support the court's finding that there is a likelihood that the children will be adopted; that the trial court abused its discretion in finding that the termination of parental rights would not substantially interfere with sibling relationships; and that the trial court further erred in failing to consider the wishes of the children prior to terminating parental rights. In addition, the parents contend that the trial court failed to secure compliance with the Indian Child Welfare Act (ICWA or the Act). In a prior appeal from the dispositional order regarding Joel (In re Joel G. (May 21, 2002, A095592), 2002 WL 1020657 [nonpub. opn.]), this court determined that there had not been adequate compliance with ICWA, and reversed, subject to reinstatement of the order upon compliance with the Act and consideration of the requirements of Welfare and Institutions Code section 361.3.[1] We conclude here that the court still has not properly secured compliance with ICWA. Moreover, the record does not reflect a likelihood of adoption sufficient to support the termination of Robert and Monica's parental rights.[2] Accordingly, we must again reverse.
Factual and Procedural History
In March 1998, the Contra Costa County Department of Social Services (the department) filed a juvenile dependency petition alleging that then three-year-old James H. and then one-and-a-half-year-old Asia L. came within subdivisions (g) and (i) of section 300 based upon Monica's drug use. Monica admitted certain of the allegations in the petition and the children were placed in the care of her mother. Robert has been in and out of prison throughout the dependency proceedings, and when released on parole his whereabouts have generally been unknown.
On August 25, 1999, the department filed a petition alleging that Joel G., then three days old, came within the meaning of section 300, subdivisions (b), (g) and (j), based upon Monica's drug use and Joel's positive test for drug exposure at birth. On September 15, 1999, Monica admitted to an amended petition alleging only a subdivision (b) cause of action. Throughout the next year, Monica made substantial progress in drug treatment and, in December 1999, Joel was placed in her care. In June 2000, Asia and James were also placed in her care.
In February 2001, however, a supplemental petition was filed alleging that the previous disposition had been ineffective in that Monica had failed to keep her drugtesting appointments and had been absent from the program for two days without making arrangements for the care of her children. All three children were removed from her care. On June 19, 2001, the court sustained the allegations in the supplemental petition and denied Monica reunification services. The court also set a section 366.26 hearing for James and Asia. Monica appealed the dispositional order on the supplemental petition regarding Joel *736 and argued, in addition to other contentions, that the court had failed to secure compliance with ICWA.
The section 366.26 hearing, originally set for October 16, 2001, was continued twice to permit the department to assess the adoptability of Asia and James and was ultimately set for April 9, 2002. On December 19, 2001, the court set a section 366.26 hearing in Joel's case, also to be heard on April 9, 2002. In the meantime, the department was authorized by the court to place Asia and James with a foster family in Stanislaus County because no suitable placement could be found within Contra Costa County. Joel was placed for a portion of this time with his paternal grandmother, but was ultimately removed when his grandmother had financial difficulties and was unable to care for him. He was then placed in an emergency foster home.
At the permanency planning hearing held on April 9, 2002, the children's social worker, Rachel Foster, testified regarding the notice she had given to various Indian tribes as ICWA admittedly required, and the responses she had received. The court concluded that proper notice had been given under ICWA, and terminated parental rights to all three children, consistent with the department's recommendation. Robert and Monica each filed timely notices of appeal.
On May 21, 2002, this court issued its opinion in In re Joel G., supra, A095592, in which it reversed the June 19, 2001 dispositional order as it related to Joel, "subject to reinstatement upon compliance with the ICWA notice requirements." On October 8, 2002, the trial court conducted a further dispositional hearing and set a section 366.26 hearing for January 21, 2003. In light of the ongoing proceedings in Joel's case, the department filed a motion to dismiss this appeal as it pertained to Joel only. The motion was denied.
Discussion
Initially, the department requests that we dismiss Monica's appeal on the ground that the appeal has not been authorized by Monica. Monica's attorney signed the notice of appeal. In the absence of a satisfactory showing that the party did not authorize counsel to sign the notice of appeal, we presume that her counsel had the necessary authority to do so. (In re Malcolm D. (1996) 42 Cal. App.4th 904, 910, 50 Cal.Rptr.2d 148.)
"A lack of consent is shown when a parent, through his or her actions, demonstrates no true interest in preserving parental rights." (In re Sean S. (1996) 46 Cal.App.4th 350, 352, 53 Cal.Rptr.2d 766.) Here, Monica has actively participated in the dependency proceedings. She attended the hearing on April 9, 2002. While she left the hearing early without explanation, she left her papers, book and water behind, indicating that she intended to return. Contrary to the department's assertion, her early departure from the hearing does not necessarily demonstrate a sufficient lack of interest in preserving her parental ties. Nor can any reasonable inference be drawn regarding Monica's level of interest in her children from the fact that her attorney did not sign and file the notice of appeal until two days before the filing deadline.
Monica's conduct is markedly different from that of the parents in the cases relied upon by the department (i.e., In re Sean S., supra, 46 Cal.App.4th 350, 53 Cal. Rptr.2d 766; In re Alma B. (1994) 21 Cal.App.4th 1037, 26 Cal.Rptr.2d 592). In Sean S., the court held that the department made a sufficient showing that the appeal was not authorized where the parent was properly notified of the selection *737 and implementation hearing and could have attended but instead telephoned her attorney and told him she was not going to appear. (46 Cal.App.4th at pp. 352-354, 53 Cal.Rptr.2d 766.) Likewise, in Alma B. the court found a sufficient showing of disinterest in the proceedings where the parent was not present at the hearing and neither the department nor her counsel knew her whereabouts. (21 Cal.App.4th at p. 1043, 26 Cal.Rptr.2d 592.)
Moreover, in opposition to the department's motion to dismiss, Monica's appellate counsel has submitted a declaration stating, "I have spoken with appellant numerous times during the pendancy of both her appeals.... [S]ince the filing of the notice of appeal in this case, appellant has once again made it extremely clear that she is most desirous of regaining custody of her children and pursuing this matter on appeal." Accordingly, we deny the department's request to dismiss the appeal, and we turn to the merits of the challenges to the order terminating parental rights.
1. ICWA Compliance
Monica and Robert question whether the trial court made the necessary determination that ICWA did not apply to the children and reassert that substantial evidence does not support the conclusion that notice had been given in compliance with ICWA. Initially, we reject the contention that the trial court was required to make an express finding that ICWA did not apply. While the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 705, 127 Cal.Rptr.2d 54; In re Levi U. (2000) 78 Cal.App.4th 191, 199, 92 Cal. Rptr.2d 648.) Here the trial court expressly found that "notice had been given pursuant to ICWA" and then proceeded to terminate appellants' parental rights under the usual rather than the heightened ICWA standards. Thus, the court implicitly found that ICWA was not applicable. Nonetheless, the record does not support the finding that the notice given by the department to the tribes satisfied the requirements of ICWA.
Title 25 United States Code section 1912(a) provides in relevant part: "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." California Rule of Court, rule 1439(g),[3] provides that "the juvenile court hearing shall not proceed until at least 10 days after those entitled to notice under the Act have received notice." Finally, the California Department of Social Services, Child Welfare Services Manual of Policies and Procedures, regulation 31-515.12, requires that the notice given to the Indian child's parent and to the child's tribe be sent on Form SOC 319 entitled "Notice of Hearing" and be received by the Indian child's parent and tribe no later than 20 days prior to the hearing date.
At the April 9, 2002 hearing, Foster testified that she "sent off completed 318 and 319 forms to the [Bureau of Indian Affairs (BIA) ] as well as a list of all Apache and Cheyenne tribes within the United States" and that she "received a number of responses from the tribes.... [O]f those responses, they all indicated that neither parent nor child is registered *738 nor eligible to be registered. The ones that I have not received a letter from the tribe directly, I do have the green certified cards that they did, in fact, receive the 318 and 319 forms but have not received an official response from them." She indicated that she received certified mail receipt cards from all the tribes, as well as from the BIA and Monica, which showed receipt between March 16 and 19, 2002. However, neither copies of the completed 319 forms, return receipt cards nor any other correspondence was received into evidence.
Monica and Robert contend that Foster's testimony is insufficient to demonstrate compliance with ICWA because the forms were mailed to the wrong addresses, and that without reviewing copies of the forms, the court could not and did not verify that the information submitted the tribes was accurate and complete.[4] In In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, footnote 4, 109 Cal.Rptr.2d 267, the court set out the necessary steps for ensuring compliance with ICWA: satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, [a social service agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested, (Rule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status." This two-step procedure was emphasized in two recent cases. (In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215, 128 Cal.Rptr.2d 12; In re Jennifer A., supra, 103 Cal.App.4th at pp. 702-703, 127 Cal.Rptr.2d 54.) In Jennifer A., the court reversed the trial court's jurisdictional and dispositional orders, holding that the record did not support the court's finding of ICWA compliance where the only evidence received was the social worker's testimony that she had sent notice to the relevant tribe and to the BIA. (In re Jennifer A, supra, 103 Cal.App.4th at pp. 698, 703, 127 Cal.Rptr.2d 54.) The court emphasized that the two-step procedure set forth in Marinna J. had not been followed and held that presentation of the required documents to the appellate court to by request for judicial notice was not an Unavailable solution. (Id. at pp. 702-703, 127 Cal.Rptr.2d 54.) The court noted that without the required documents "`... the court did not have a sufficient record from "To which to make a determination whether there had been compliance with the notice provisions of the ICWA, or whether further inquiry was needed.'" (Id. at p. 703, 127 Cal.Rptr.2d 54.) The court concluded that the error was not harmless, even though the department had presented to the appellate court a letter from the tribe sent two months after the hearing stating that the child was not an Indian child within the meaning of the Act. (Id. at p. 705, 127 Cal.Rptr.2d 54.) The court reasoned *739 that the notice sent to the tribe, of which the court did take judicial notice, omitted family information that seemingly was available and incorrectly related other information, so that it was necessary for the trial court to review the information in the first instance to make the necessary determination of compliance. (Ibid.) Similarly, in H.A., the court warned: "We hold that a party, such as the Department here, who seeks the foster care placement or termination of parental rights to a child who may be eligible for Indian child status, must do the following or face the strong likelihood of reversal on appeal to this court. [¶] First, the Department must complete and serve, pursuant to the terms of 25 United States Code section 1912(a) the `NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD' along with a copy of the dependency petition. Second, the Department must file with the superior court copies of proof of the registered mail or certified mail and the return receipt(s), the completed `NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD' that was served, and any responses received." (In re H. A., supra, 103 Cal.App.4th at pp. 1214-1215, 128 Cal. Rptr.2d 12.) In H. A., the department failed to use the proper 319 form and had not sent the notice by registered mail. The department argued that the error was harmless since it had received a response from the relevant tribe stating that the children were not affiliated with it. The court disagreed, pointing out that although the BIA periodically publishes a current list of designated tribal agents for service of process, the department had not sent the notice to the tribe chairperson or to its designated agent for service of process. (Id. at p. 1213, 128 Cal.Rptr.2d 12.) The court concluded that because there was no showing in the record that the response was from the proper person, the court could not rely on that letter as evidence of the tribe's lack of interest in the proceedings. (Id. at pp. 1213-1214, 128 Cal. Rptr.2d 12.)
Here, the department failed to comply with the second step in In re Marinna J. (90 Cal.App.4th 731, 109 Cal.Rptr.2d 267) by failing to submit the required documentation to the court for its review. While Foster's testimony provides evidence that she did use the correct form and served the notices by registered mail, copies of the forms were never submitted to the court. Hence, the court was unable to evaluate the sufficiency of the notices sent. The department argues that it was unnecessary to submit the form to the court as there is no evidence to suggest either that Foster was untruthful or that the notices were in some fashion defective. Absent the ability to review the forms, however, neither the trial court nor this court has the ability to evaluate whether the forms were defective. Moreover, the record does provide reason to question whether there was a defect in the notice given to several of the tribes because the department failed to serve the notice on the chairperson or designated agent for service of process as required by statute. Rule 1439(e)(2), specifically directs that "[n]otice to the tribe shall be to the tribal chairman unless the tribe has designated another agent for service." Foster testified that she sent notice to the "Apache Business Committee" in Anadarko, Oklahoma, rather than the "Apache Tribe of Oklahoma, Chairperson" as listed in the most recent Federal Register. (66 Fed. Reg. 65725, 67534 (Dec. 20, 2001).) Similarly, notice was addressed to the "Cheyenne-Arapaho Business Committee" rather than the "Cheyenne-Arapaho tribes of Oklahoma, Chairperson;" the "Fort Sill Apache Business Committee" rather than *740 the "Fort Sill Apache Tribe of Oklahoma, Chairperson;" and the "Northern Cheyenne Tribal Council" in Lame Deer rather than the "Northern Cheyenne Tribe of Northern Cheyenne Reservation, Director, Tribal Social Services." Absent some evidence that the various business committees had authority to speak for the tribes or that the responses received by Foster came from an authorized agent, the failure to submit the necessary documents to the court cannot be considered harmless. (In re H. A, supra, 103 Cal.App.4th at pp. 1213-1214,128 Cal.Rptr.2d 12 [no evidence that Enrollment Committee Chairman for the Santa Ynez Band of Mission Indians had authority to speak for tribe when designated agent for service of process under the Federal Register was Santa Ynez Band of Mission Indians, ICWA Coordinator].) Accordingly, the matter must be reversed for further compliance with ICWA.[5]
2. Clear and Convincing Evidence of Adoptability
Robert and Monica also appeal from the order terminating their parental rights on the ground that there is insufficient evidence of the children's adoptability. In order for a juvenile court to terminate parental rights under section 366.26, the court must find by clear and convincing evidence that it is likely that the child will be adopted. (§ 366.26, subd. (c)(1).) We review the juvenile court's order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that Asia, James and Joel were likely to be adopted. (§ 366.26, subd. (c)(1); In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154, 94 Cal.Rptr.2d 693.) "Clear and convincing" evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, 101 Cal.Rptr.2d 449.)
"The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]" (In re Brian P. (2002) 99 Cal.App.4th 616, 624, 121 Cal.Rptr.2d 326.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, 28 Cal.Rptr.2d 82.) Alternatively, evidence of "approved families willing to adopt a child of [this] `age, physical condition, and emotional state'" can be used to evaluate the likelihood of the child's adoption. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205, 101 Cal.Rptr.2d 449; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225, 4 Cal.Rptr.2d 101 [finding a *741 likelihood of adoption where the social worker had identified one family within the foster care system and three families outside the system, in addition to a potential relative, who were all willing to adopt a child with potential neurological problems and all the attendant risks].)
The evidence regarding the likelihood that James and Asia will be adopted is as follows. In anticipation of the initial October 2001 permanency planning hearing, Foster submitted a report that indicated that although James suffered from asthma and early exposure to lead, he was a healthy child and that, while he appeared to be physically developing normally, he lacked appropriate socialization skills. At the time of that report, James attended a regular first grade class, and his teacher reported that while he was a bright and energetic child, his behavior prevented him from accomplishing what he was capable of doing. "He needs constant supervision and is often out of control in the classroom to the point that he may not be able to be maintained in the classroom." James' therapist reported that James was a "bright child who is highly responsive to positive attention" but that he was also "extremely hyperactive and in need of medication; he is the most hyperactive child she has ever seen." She said that "James requires a great deal of limit setting and containment as he has a poor attention span and impulse control, has a low frustration tolerance, and makes abrupt changes." In her report, Foster stated that "James has a probability for adoption but it is difficult to place based on the fact that, at this time, there is no identified prospective parent." She requested and was granted a 90-day continuance to further assess James's adoptability.
Foster also prepared a report on Asia in anticipation of the October 2001 hearing. She indicated that while Asia suffers from enuresis, she was overall a healthy child and was on target developmentally. While the report states that Asia is a "super bright child," her teacher also reported that she has a problem with not listening, staying still, and stealing. Asia's therapist reported that she is hyperactive, steals, lies, hoards material items not food, aggravates other children, and pulls her braids out of her head when upset. The report states that the department "believes an ideal home for Asia would be a specialized placement where she is the youngest child; where the parents are `experienced' and capable of dealing with and providing non-punitive structure to a hyperactive child; one where the primary parent stays home; and one that will advocate for, participate in, and follow-up on all physical, mental health, and school related appointments." The report does not reach a conclusion regarding the likelihood of adoption and requests a 90-day continuance to further assess Asia's adoptability. The hearing was continued until January 2002.
In a supplemental report prepared for the January 2002 hearing, Foster indicated that James was undergoing a full developmental/educational assessment and that he had been taking Ritalin with mixed results. She also reported that Asia, while in therapy, was acting out confusion and distress in her play. Foster stated that the department "has determined that the children are adoptable but are in need of specialized placements" and requested a continuance to enable them to review a number of interested families' home studies. In preparation for the April 2002 hearing, Foster submitted an additional report, indicating that in the approximately two to three months since James and Asia were placed with a foster family agency in Stanislaus County, they have "continued to reciprocally connect with the foster parents and older foster brother" and "[a]though *742 James and Asia's foster parents have indicated that they are willing to explore adoption of the children, it is too soon for them to make such a permanent and life changing decision." Regarding the likelihood of adoptability, Foster concludes: "Although there is no identified prospective adoptive parent at this time, Children and Family Services is confident that a prospective adoptive family can be located for James and Asia."
While the age and physical health of James and Asia weigh in favor of adoptability, their emotional and psychological development present a potential obstacle to adoption. The department recognized that James and Asia would require specialized placementwhich at least initially was not available within Contra Costa Countyyet the department failed to provide evidence of approved families willing to adopt children with the developmental problems faced by James and Asia. Moreover, unlike the situation in In re Sarah M., supra, the foster parents' willingness to explore the option of adopting James and Asia is too vague to be considered evidence that some family, if not this foster family, would be willing to adopt these children. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205, 101 Cal.Rptr.2d 449 [stepfather's willingness and desire to adopt child were not sufficient to support the adoptability finding]; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065, 280 Cal. Rptr. 503 [permanency hearing report indicating that a few foster parents were considering adoption is a far cry from the clear and convincing evidence required to establish the likelihood of adoption].) Likewise, the social worker's conclusion alone is insufficient to support a finding of adoptability. (In re Brian P., supra, 99 Cal.App.4th at p. 624, 121 Cal.Rptr.2d 326.) This evidence simply fails to demonstrate clearly and convincingly that there is a likelihood that Asia and James will be adopted within a reasonable time.
The evidence regarding Joel's adoptability is similarly weak. Foster prepared a report for Joel in preparation for the April 9, 2002 hearing. In it she described Joel as a "cute, smart, hyperactive" two-and-a-half-year-old child. The report indicates that although Joel tested positive for drug exposure at birth and has asthma, he is generally healthy. He is developmentally on target and presents as a happy child although he has a temper when angered or does not get his way. Regarding the likelihood of adoption, the report concludes that Children and Family Services is confident that an adoptive home can be located for Joel. Again, however, the department failed to provide evidence that there were approved families interested in adopting a child similar to Joel. Foster suggests that the department would consider re-placing Joel with his nonbiological paternal grandmother if she got "back on her feet" financially, and alternatively, that the current caretakers for James and Asia have expressed an interest in having Joel placed in their care. These suggestions, however, are too vague and speculative to amount to clear and convincing evidence that Joel is likely to be adopted within a reasonable time. (In re Jerome D, supra, 84 Cal. App.4th 1200, 1205, 101 Cal.Rptr.2d 449.) Accordingly, the record does not support the finding of adoptability of any of the three children.[6]
*743 3. Failure to Consider the Children's Wishes
Monica contends the order must be reversed as to James and Asia because the trial court failed to consider the wishes of the children prior to terminating parental rights. Section 366.26, subdivision (h), requires the court to "consider the wishes of the minor" prior to making a determination as to whether parental rights shall be terminated. Section 366.22, subdivision (b)(5) requires the department to provide the court with "a statement from the child concerning placement and the adoption or guardianship, unless the child's age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition." "The purpose of the statutory injunction that the court `consider the wishes of the child' simply requires the court to consider what the child's preferences are. It is a reminder to all, but particularly those weighted with the decisionmaking responsibility, that the child is not a cipher in the process. While we are both statutorily mandated and morally constrained to act in the best interests of the child, to the extent possible children should have some voice. It is, after all, their futures we decide, their destinies we begin and their entire lives we affect." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592-1593, 24 Cal. Rptr.2d 253.)
The department concedes that the wishes of the children were not properly presented by the various reports prepared for the termination hearing and that the court did not consider the wishes of the children as required by the statute. The department contends that Monica failed to raise the issue in the trial court and has therefore waived the issue on appeal. Monica was served with the department's report, and she thus knew that it did not discuss the children's wishes. She failed, however, to argue below that the juvenile court should have obtained an expression of the minors' wishes for a permanent plan. Accordingly, she may well be precluded from presenting the argument here. (In re Amanda D. (1997) 55 Cal.App.4th 813, 819-821, 64 Cal.Rptr.2d 108.)[7] It is unnecessary to decide whether this court should nonetheless enforce the statutory requirement, which is intended for the benefit of the children, since reversal is required on other grounds. On remand, the trial court should consider the wishes of the children as required by section 366.26, subdivision (h).
*744 4. Sibling Visitation
Monica contends that the trial court erred by failing to consider and provide for sibling visitation. Monica does not dispute that prior cases have consistently held that a parent lacks standing to raise the issue of sibling visitation in an appeal from the termination of parental rights. These cases have held that the minor's interest in maintaining a relationship with siblings is unrelated to the parent's interest in reunification. (See, e.g., In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806-1808, 54 Cal.Rptr.2d 560; In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1560-1562, 49 Cal.Rptr.2d 200.) She contends, however, that these cases all involved orders that predated the effective date of subdivision (c)(1)(E) of section 366.26 (see fn. 6, ante), and that the order in this case was entered after the effective date of that provision. In In re Daniel H. (2002) 99 Cal.App.4th 804, 809-810, 121 Cal.Rptr.2d 475, the court held that the mother lacked standing to challenge the visitation order because the termination order was entered before the effective date of subdivision (c)(1)(E), but the court noted that "[t]he mother persuasively argues that this new sibling relationship exception probably renders the standing issue moot. Because sibling relationships are now a statutory exception to adoption, those relationships directly impact the parent's interest in reunification, an interest that can be kept alive merely by avoiding adoption." We agree that Monica has standing to raise the issue.
Since remand is necessary for other reasons, it is unnecessary to address the department's argument that Monica has waived any claim regarding visitation. It is sufficient to point out that on remand the court should consider sibling visitation when making further placement and case-plan orders. (§ 16002, subd. (b); In re Cliffton B. (2000) 81 Cal.App.4th 415, 427, 96 Cal.Rptr.2d 778.) "The statute contemplates that sibling contact will be an ongoing issue subject to periodic review throughout the dependency proceedings. When the juvenile court terminates parental rights and refers a child for adoption, it retains jurisdiction over that child until the adoption is effected. During that interim period, the juvenile court can make visitation orders as it sees fit, and sibling contact should remain the subject of its concern." (In re Cliffton B., supra, at p. 427, 96 Cal.Rptr.2d 778.)
Disposition
The orders terminating parental rights are reversed and the matter is remanded for further proceedings consistent with this opinion.
We concur: CORRIGAN, Acting P.J., and PARRILLI, J.
NOTES
[1] All statutory references are to the Welfare and Institutions Code unless otherwise noted.
[2] In light of this determination, we deny the several requests to augment the record that have been filed by the parties.
[3] All further references to rules are to the California Rules of Court.
[4] Monica also contends there is no evidence that she was mailed a completed 319 form, rather than merely a notice of the hearing. However, this claim has been waived because at the April 9, 2002 hearing, Monica's attorney did not raise any concerns about the form of the notice she received. While Monica cannot waive the tribes' rights to proper notice, she can waive procedural irregularities to the extent that they affect only her rights. (In re Jennifer A., supra, 103 Cal.App.4th at p. 707, 127 Cal.Rptr.2d 54.) Moreover, Foster testified that she mailed the 318 and 319 forms to the tribes and that she received return receipts from the tribes and from Monica all within three days. Absent any evidence to the contrary, it is reasonable to assume that Foster complied with the department's guidelines and mailed the 319 form to Monica on the same day she mailed the 319 form to each of the tribes. (See Evid.Code, § 664.)
[5] In the previous appeal from the dispositional order in Joel's case, we reversed subject to reinstatement of the order upon compliance with ICWA. Here, however, a similar condition of reinstatement is not appropriate in light of the insufficiency of the evidence that the children are likely to be adopted, as discussed infra.
[6] Monica and Robert also contend that the trial court abused its discretion by failing to find that termination of parental rights would substantially interfere with the children's sibling relationships. Under section 366.26, subdivision (c)(1)(E), once the court has found that it is likely that a child will be adopted, it must terminate parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child in that "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).) Here, the department acknowledges that "it certainly appears that the children had significant relationships with each other." However, since the lack of substantial evidence that the children are likely to be adopted requires that this predicate finding be set aside, it is unnecessary to determine whether the potential interference with the sibling relationship alone would have required that the orders terminating parental rights be vacated.
[7] But cf. In re Patricia E. (1985) 174 Cal. App.3d 1, 6, 219 Cal.Rptr. 783, relied upon by Monica, where it was held that a father has standing to raise his child's right to independent representation on appeal from an order terminating his parental rights because his interests were intertwined with the rights of his child. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262010/ | 421 Pa. Superior Ct. 582 (1992)
618 A.2d 962
Andrea BOYCE and Brian Boyce
v.
ST. PAUL PROPERTY AND LIABILITY INSURANCE CO., Appellant.
Superior Court of Pennsylvania.
Argued October 21, 1992.
Filed November 19, 1992.
Reargument Denied January 29, 1993.
*585 James C. Haggerty, Philadelphia, for St. Paul Property and Liability Ins. Co.
Michael W. McCarrin, Media, for Andrea and Brian Boyce.
Before CIRILLO, MONTEMURO and TAMILIA, JJ.
MONTEMURO, Judge:
Appellant St. Paul Property & Liability Insurance Company appeals from a final order, denying its petition to vacate and/or modify an amended arbitration award of one million dollars in favor of Appellee Boyce. Boyce crossappeals from the same order. For the reasons stated below, we affirm.
Appellee, Andrea Boyce, initiated the present action, seeking to recover uninsured motorist benefits for injuries she sustained in a February 3, 1986 motor vehicle accident which occurred in Philadelphia. At the time of the accident, Boyce was a passenger in an ambulance owned and operated by Paramedical Ambulance Service, Inc. and insured by St. Paul. She was monitoring a sick neonate child being transported to Philadelphia College of Osteopathic Hospital ("PCOM"), where she was head neonate and pediatric nurse. She did not work for the ambulance company. PCOM had contracted with Paramedical to perform the transport.
The accident occurred when an uninsured motorist, Louis Pocco, struck the ambulance broadside. The impact of the collision threw Boyce into the doors of the ambulance, striking her head, neck, shoulders and back. Immediately after impact, the ambulance driver saw Boyce lying in a prone position on the floor of the ambulance. A second ambulance transported *586 her to PCOM, where she was treated for a concussion and sent home. After experiencing increased dizziness, nausea, and pain, Boyce was hospitalized. She was subsequently released, but continues to suffer from the permanent damages received.
Following the accident, Boyce instituted an action in the Court of Common Pleas of Philadelphia County, seeking recovery of damages in tort. Named defendants included Paramedical, the ambulance driver, and Pocco.[1] In addition, she made demand upon St. Paul for recovery of uninsured motorist benefits.
Paramedical's insurance policy stated that all disputes regarding uninsured motorist benefits were to be resolved by arbitration upon written demand by either party. After St. Paul refused to pay the uninsured motorist claim, Boyce demanded arbitration in Philadelphia County and named Philadelphia attorney, Mayer Horowitz, as her arbitrator. When St. Paul refused to name an arbitrator, Boyce filed a petition in Philadelphia Common Pleas Court for appointment of the defense and neutral arbitrators. Immediately thereafter, St. Paul chose a Philadelphia attorney, Robert Coleman, as its arbitrator, and obtained an order, compelling Boyce to submit to a physical examination by an ENT specialist.
Boyce subsequently objected to Coleman's appointment, since his firm represented St. Paul. St. Paul then withdrew Coleman and appointed James Palmer, a Bucks County attorney.
In addition, St. Paul requested arbitration in Bucks County. St. Paul argued that both the policy and Pennsylvania Uniform Arbitration Act required arbitration in the county in which the protected person/Boyce lives. At the time of the accident, Boyce resided in Delaware County. During pendency of the uninsured motorist claim, she lived in Bucks County. At the time of the arbitration hearing, she was a resident of California. Since the parties could not agree on a neutral arbitrator, Boyce next filed an amended petition in *587 Philadelphia Common Pleas Court, asking the court to appoint the arbitrator. On June 21, 1990, the court appointed a Philadelphia attorney, Melvin Greenberg, as chairman of the arbitration panel, and ordered that the arbitration hearing take place in Philadelphia, in accordance with common law.[2]
The arbitration hearing was held in Philadelphia on September 27, 1990, September 28, 1990, October 18, 1990 and November 24, 1990. During the hearing, St. Paul stipulated that Pocco was uninsured and that he was the substantial cause of the accident. The panel determined that the insurance policy provided $1,000,000 in uninsured motorist coverage. On December 20, 1990, the arbitrators entered an award in favor of Andrea Boyce in the amount of $1,393,500, and awarded her husband, Brian Boyce, $90,000.
On July 8, 1991, the trial court vacated the award since it exceeded the $1,000,000 policy limit. The court ordered that a rehearing be held for the purpose of re-assessing damages. On October 18, 1991, the arbitration panel reduced Boyce's award to $1,000,000 and her husband's award to zero. Thereafter, St. Paul sought to have the amended arbitration award vacated. When its petition to vacate and/or modify was denied, it filed this appeal.
The first issue raised by appellant is that the Philadelphia Court of Common Pleas and the Philadelphia arbitrators had no authority to hear the present action in Philadelphia County. The insurance contract in question provided that arbitration was to take place in the "county where the protected person lives." The protected person in the instant action, appellee, lived in Delaware County at the time of the accident, Bucks County at the initiation of the arbitration dispute and subsequently in Los Angeles County, California. Although appellant correctly asserts that under the insurance contract the correct venue for the arbitration should have been in one *588 of these towns, appellant has failed to preserve this issue for our review.
In Clark v. State Farm Auto Insurance, 410 Pa.Super. 300, 599 A.2d 1001 (1991), this court refused to review a challenge to venue in a similar case involving a petition to compel arbitration. In refusing to review the claim, we stated:
A petition to compel arbitration is the functional equivalent of of a complaint. The proper way to challenge venue in a civil action is through a preliminary objection. Pa.R.C.P. Rule 1006 provides in pertinent part:
(e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived ...
Instead of first filing a preliminary objection to challenge venue, appellant proceeded directly to its responsive pleadings. The failure to file appropriate preliminary objections to contest improper venue results in waiver of the challenge.
Id. at 311, 599 A.2d 1001, 1006 (1991). We find this case to be indistinguishable from the Clark case, and therefore find that appellant has waived this issue.
Appellant's second and fourth argument on appeal is that the arbitrators exceeded their authority in entering an amended arbitration award without a re-hearing as ordered by the trial court. In its July 8 order vacating the arbitration award, Judge Cohen ordered that a rehearing be conducted for the purpose of reassessing damages. Appellant alleges that since the arbitrators entered an amended award without conducting a full hearing, they were denied their due process rights to such a hearing. We disagree. The trial court stated that the reason the original award was being vacated was because the arbitrators granted an award in excess of the policy limits. The arbitration panel had already conducted a full hearing on the issue of damages. They heard four days of testimony from both the appellees and the appellants. Appellants clearly had every opportunity to present all of their evidence and were awarded their right to a full and fair hearing. The arbitration panel was not required to conduct another full blown hearing regarding appellee's damages in order to come up with an amended award. It already had all *589 of the evidence presented to it, and was fully capable of determining an appropriate award without the unnecessary burden of another full blown hearing. Accordingly, we find appellant's contention to be without merit. Appellant's next issue is that the the original arbitration panel could not fairly and justly re-assess damages in the present matter. More specifically, appellant avers that Judge Cohen, when he ordered that the first arbitration award be vacated, should have ordered a hearing before a new panel because the original panel could not fairly reassess damages. We disagree.
Section 7314 Of the Uniform Arbitration Act provides that if the court vacates an arbitration award, the court may order a rehearing before the arbitrators who made the award, unless the award is vacated on grounds affecting the competency of the arbitrators. 42 Pa.C.S.A. § 7314(c). In the instant case, the original award was not vacated because of any incompetency of the arbitrators, but rather was vacated because the award exceeded the limits of the policy. This had nothing to do with the competency of the arbitrators, and therefore, the court did not err in ordering the same arbitrators to enter a new award. Furthermore, we do not agree with appellant's assertion that the arbitrators were partial to appellee. There is simply no evidence to support this assertion, and thus the order should not be vacated.
Appellant's next assertion is that the arbitration hearing was improperly conducted under common law. Although the trial judge initially labeled this as a common law arbitration matter, before it reviewed the arbitration award it correctly stated that, according to the terms of the insurance contract, this case was to be conducted under the Uniform Arbitration Act. Thus, the court properly reviewed the award according to the provisions in the Act. As the trial court noted, the type of arbitration, i.e., common law or statutory, only governs the scope of review on appeal, any error resulting from the court's initial determination that the arbitration should proceed under common law arbitration was rendered inconsequential by the court's review of the award in accordance with the rules of statutory arbitration. Additionally, *590 although appellant asserts that the arbitration was improperly conducted under the rules of common law arbitration, he fails to state how he was prejudiced by this procedure. We have carefully reviewed the record and the proceedings of the arbitration panel and fail to see how the hearing did not comply with the mandates of 42 Pa.C.S.A. § 7307. Thus, since the award was properly reviewed under the rules of statutory arbitration and since there is no indication or assertion that the hearing failed to conform to the requirements of the Uniform Arbitration Act, appellant's contention is without merit.
The sixth issue raised by appellant is that it was deprived of statutory and contractual rights by the appointment of a neutral arbitrator by the court. The insurance contract provided that in the event the parties could not agree on a neutral arbitrator within thirty days of when arbitration is demanded, either party could request that the selection be made by a Judge or a Court having jurisdiction. The trial court clearly had jurisdiction to compel arbitration in this case as it had personal jurisdiction over both of the parties. See Shapiro v. Keystone Insurance Co., 384 Pa.Super. 397, 558 A.2d 891 (1989). Since the parties could not agree on a neutral arbitrator, the court also had the authority, upon appellee's request, to appoint the neutral arbitrator. Appellants' contention that they were not given the opportunity to select the neutral arbitrator is without merit. At least thirty days had passed since the demand for arbitration was given. The fact that the appellants' did not act within the time frame provided by the contract is no one's fault but their own. If they were deprived of their right to select the neutral arbitrator, therefore, they can only blame themselves for not acting within the time provided for in the contract. Thus, the court acted within its authority in appointing the arbitrator and appellant's contention is without merit.
Next, appellant argues that the arbitration hearing should have been stayed pending the trial of the plaintiff's tort claims against the ambulance driver and the ambulance company. Appellant, however, in making this argument, fails to *591 cite to the provision of the Uniform Arbitration Act which governs the granting of a stay of an arbitration hearing. Section 7304(b) provides:
(b) Stay of arbitration. On application of a party to a court to stay an arbitration proceeding threatened or commenced the court may stay an arbitration on a showing that there is no agreement to arbitrate. When in substantial and bona fide dispute, such an issue shall be forthwith and summarily tried and determined and a stay of the arbitration proceedings shall be ordered if the court finds for the moving party. If the court finds for the opposing party, the court shall order the parties to proceed with arbitration.
42 Pa.C.S.A. § 7304(b). In Sanitary Sewer Authority v. Dial Associates Construction Group, Inc., 367 Pa.Super. 207, 532 A.2d 862 (1987), this court held that § 7304(b) means that
When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision.
Id. at 210, 532 A.2d at 863. The fact that there was a related action pending before a trial court which had taken up a substantial amount of time and which was directly related to and involved the parties to the arbitration proceeding was irrelevant. Id. The central focus is only on whether the parties agreed to arbitrate and whether the dispute involved in the arbitration proceeding falls within the arbitration clause. Id. Instantly, there is no question that the parties agreed to arbitrate and that the dispute falls within the arbitration clause. Thus, under § 7304(b) the trial court had no authority to grant a stay of the proceedings and appellant's argument to the contrary is without merit.
Appellant's next assertion is that the arbitrators had no authority to reform the uninsured motorist policy limits. More specifically, appellant claims that the testimony at trial established that the uninsured motorist benefits in the policy were limited to $300,000, and that the arbitrators erred in finding the coverage to be $1,000,000.00. We disagree.
*592 Initially we note that our scope of review regarding findings of fact by an arbitration panel is very limited. In cases where statutory arbitration is involved Sections 7314 and 7315 of the Uniform Arbitration Act delineate the circumstances under which a statutory arbitration award can be vacated by a court. Resolution of factual disputes is within the province of the arbitrators, and the court may review and modify or correct arbitrators where there was evident miscalculation of figures, or evident mistakes in description of any person, thing or property, or where the award is deficient in matter of form. Greenspan v. U.S. Auto Association, 324 Pa.Super. 315, 471 A.2d 856 (1984). Additionally, these sections provide for the vacating of a statutory arbitration award upon the showing of fraudulent, irregular or partial conduct on the part of the arbitrators. 42 Pa.C.S.A. § 7314.
Here, the appellant claims that the determination by the arbitrators that the policy provided for $1,000,000 in uninsured motorists benefits is contrary to the law. Appellant does not allege fraudulent, irregular, or partial conduct on the part of the arbitrators, or that the award contains miscalculations or deficiencies in form. Such a claim, that the award is contrary to the law, is not a sufficient basis for vacating the award pursuant to § 7314 and 7315. Even if we were to review the claim, we note that there was no error on the part of the arbitration panel. As the arbitration panel correctly found, there was no indication of a signed waiver as required by 75 Pa.C.S.A. § 1731 and 1734, and therefore, the uninsured motorists benefits must be equal to the liability benefits of $1,000,000. As such, this determination of the arbitration panel is affirmed.[3]
Appellant's next argument is that the arbitrators erred in permitting duplicate recovery of worker's compensation benefits. In support of this proposition, appellant cites to a number of cases which declare that double recovery of benefits for identical special damages is prohibited in Pennsylvania. While this is generally true, appellant completely fails to cite *593 to the portion of the Motor Vehicle Financial Responsibility Act which provides:
The Coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any worker's compensation benefits payable as a result of the same injury.
75 Pa.C.S.A. § 1735. Appellant also fails to cite to the cases decided under this section which have held that an individual injured by an uninsured motorist while in the scope of her employment is entitled to recover both uninsured motorist benefits and worker's compensation benefits. Ferry v. Liberty Mutual Insurance Co., 392 Pa.Super. 571, 573 A.2d 610 (1990) and Chatham v. Aetna Life & Casualty Co., 391 Pa.Super. 53, 570 A.2d 509 (1989). Accordingly, appellant's contention is without merit.
Appellant's tenth argument is that the arbitrators erred in permitting testimony of appellee's expert beyond the scope of the expert's report. More specifically, appellant claims that the arbitrators erred in allowing appellee's treating physician to testify as to appellee's permanent injuries where the doctor's reports did not discuss the permanency of the injuries. We find this contention to be without merit. Appellant knew well in advance of the arbitration hearing as to what appellees' treating physician was going to testify about. The doctor had been deposed two times. At both depositions, one which was at least a year before the arbitration hearing, the doctor testified regarding the permanency of appellees' injuries. Appellant's cannot now claim that they were surprised at the hearing when, for the third time, the doctor testified regarding the permanency of appellees' injuries. They had an ample opportunity to prepare for the testimony and were clearly put on notice that the testimony would be adduced from the treating physician. Their claims to the contrary are without merit. The arbitration panel did not abuse its discretion in permitting the testimony.
Appellant's final argument on appeal is that the arbitration award was excessive. As stated above, an arbitration award will only be reversed upon a showing of fraudulent, *594 irregular or partial conduct on the part of the arbitrators, or where the award contains miscalculations or deficiencies in form. Here, there is no indication that any of these reasons for vacating the award are present. Thus appellant's claim that the award is excessive, in the absence of an allegation of any of the above factors, does not provide a sufficient basis to vacate the award.
Appellee has also appealed from the trial court's order. In its cross appeal, appellee states that the trial court erred in vacating the initial award of the arbitrators. Appellee asserts that the trial court should have either 1) confirmed the initial award of the arbitrators, or 2) modified, rather than vacated, the initial award of the arbitrators.[4] This claim is without merit. Appellant's liability is limited to the one million dollar uninsured motorist coverage as provided for in the insurance policy. The initial arbitration award exceeded this one million dollar limit. As this was the cap on appellant's liability, the trial court was correct in vacating the award. Although the proper procedure may have been for the trial court to simply modify the award to fall within the policy limits, its failure to do so, in light of the amount awarded by the arbitration panel after its rehearing, does not entitle appellee to any relief. Appellant's liability is limited to one million dollars. Appellee was awarded one million dollars. Appellee cannot possibly receive more than one million dollars from appellant. Accordingly, appellee's claim is without merit.
Order affirmed.
NOTES
[1] That action has been stayed by order of the court pending resolution of the present appeal.
[2] The trial court later conceded that the arbitration should have proceeded in accordance with the Pennsylvania Uniform Arbitration Act, but held that such an error was harmless as long as the statutory standard of review was applied.
[3] We also note that we find no merit in appellant's contention to whom the provisions regarding waiver should not apply.
[4] Appellant argues that this issue is waived. We disagree. The Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. § 7320, states, in pertinent part, "An appeal may be taken from: [a] court order vacating an award without directing a rehearing." § 7320(a)(5) (emphasis added). By implication, this provision also means that an appeal cannot be taken from an order vacating an arbitration award and directing a rehearing. Such an appeal would be interlocutory. Accordingly, the Boyces have not waived this issue as an immediate appeal from the initial order which vacated the award and directed a rehearing would have been interlocutory. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262011/ | 421 Pa. Superior Ct. 433 (1992)
618 A.2d 415
COMMONWEALTH of Pennsylvania
v.
Aaron JOHNSON, Appellant.
Superior Court of Pennsylvania.
Argued September 16, 1992.
Filed November 16, 1992.
*436 Joel I. Fishbein, Philadelphia, for appellant.
Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before McEWEN, DEL SOLE and HUDOCK, JJ.
DEL SOLE, Judge.
This a direct appeal from a judgment of sentence imposed for the convictions of knowing or intentional possession of a controlled substance and possession of a controlled substance with intent to manufacture or deliver. Finding no abuse of discretion or error of law by the trial court, we affirm.
On August 8, 1990, Philadelphia Police Officer Genaro Fontanez was working with a partner on a drug surveillance assignment in a North Philadelphia neighborhood. Officer Fontanez observed Appellant, Aaron Johnson, approach a car at the intersection of Somerset and Reese Streets, one-half block away. Appellant briefly conversed with the driver and then handed him a green plastic packet, receiving money in exchange. Officer Fontanez followed Appellant until he reached Reese Street, where the officer lost sight of him for a brief moment. The officer next observed Appellant holding a paper bag, which he placed underneath a tire lying on the pavement. Appellant proceeded up Reese Street to the residence of Leslie Waters, approximately one hundred fifty feet away from the location of the bag. Upon reaching Ms. Waters' house, Appellant joined several neighbors who were working on Ms. Waters' car in front of her home.
Officer Fontanez went to investigate the contents of the paper bag left under the tire, while his partner apprehended *437 Appellant. The bag contained $1503.00 and five hundred twenty-seven small green packets of a white substance, which tested positive for the presence of cocaine and had a street value in excess of $35,000.00.
A jury found Appellant guilty of knowing or intentional possession of a controlled substance and possession of a controlled substance with intent to manufacture or deliver. Timely post-verdict motions were filed, and new counsel was appointed. The trial court, after hearing argument on the motions, denied them and imposed a sentence of five to ten years' imprisonment and a mandatory fine of $25,000.00, pursuant to 18 Pa.C.S.A. § 7508(a)(3)(iii). This appeal followed.
Appellant raises six issues for review:
1) Whether the verdict was supported by sufficient evidence, and whether the verdict was against the weight of the evidence and contrary to law?
2) Whether the supplementary instruction given to the jury regarding the legal definition of possession was contrary to law and highly prejudicial?
3) Whether trial counsel was ineffective for failing to give notice of an alibi defense, and for failing to request the standard alibi instruction?
4) Whether the sentence imposed constituted an aggravated sentence according to the sentencing guidelines and whether the court placed on the record any circumstance justifying an aggravated sentence?
5) Whether Appellant's prior conviction for a weapons misdemeanor was too remote to be considered in his sentencing?
6) Whether the mandatory fine set forth in 18 Pa.C.S.A. § 7508(a$)(3)(iii) is unconstitutional on its face and as applied in Appellant's case?
First we address Appellant's claims regarding the weight and sufficiency of the evidence in his case. Appellant argues that because he was not seen with the paper bag in his hand for any substantial period of time prior to the officer's observance of him placing the bag under the tire, there was no *438 evidence that Appellant exercised dominion and control over the bag.
In reviewing for sufficiency of evidence the test is whether the evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, and drawing all reasonable inferences therefrom, is sufficient to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). In the instant case, the officer did see the bag in Appellant's hand for a brief instant before Appellant secreted it in the tire. (N.T. 1/11/91, 28). The jury could correctly infer from the fact that Appellant hid the bag that he intended to exercise dominion and control over it; one does not deliberately hide property to which he is relinquishing ownership. Therefore, we find the evidence to be sufficient for the jury to have found every element of the crimes charged proven beyond a reasonable doubt.
Appellant does not specifically argue in what manner the verdict is against the weight of the evidence; however, we note that it is the jury's prerogative to believe all, part or none of the evidence, Id., and there is no inconsistency between the evidence and the verdict so as to shock our sense of justice. Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989). Therefore, Appellant's argument concerning the weight of the evidence also fails.
Appellant's second contention on appeal is that the trial court's supplementary instruction regarding the legal definition of possession was contrary to law and highly pre$judicial. When the jury requested that the court re-read Officer Fontanez's testimony regarding Appellant's discarding the paper bag, the court refused and instead gave an instruction concerning the legal definition of possession. Appellant claims that the instruction unfairly drew the jury's attention to a hypothetical basis for a guilty verdict that was not supported by the evidence or testimony.
When a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court's *439 discretion to grant or deny such request. Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984). We find no abuse of this discretion in the trial court's refusal to re-read the officer's testimony. In the instant case, the supplemental instruction given was in accordance with the standard jury instruction and took into account both the testimony of Officer Fontanez and Appellant's testimony. Therefore, the instruction was neither erroneous nor contrary to law.
Appellant's third claim is that trial counsel was ineffective for failing to give notice of an alibi defense and for failing to request the standard alibi instruction. Appellant contends that the testimony of Leslie Waters and her two neighbors establishes that Appellant was in front of Ms. Waters' house, and not at the corner where the drug transaction occurred, for at least five minutes and as much as an hour. Therefore, he claims that because he presented substantial evidence that he was at a place other than the scene of the crime, he deserved to have the jury properly consider an alibi defense.
In the instant case, the testimony of the witnesses does not place Appellant away from the scene of the crime, but rather implies that Appellant was at the scene and that the officers mistakenly identified him as the one who had hidden the bag, instead of the two men Ms. Waters saw running by her. (N.T. 1/11/91, 64-67, 72). Therefore, Appellant was not entitled to an alibi instruction, as he did not present an alibi defense, and accordingly, this claim is meritless. Trial counsel was not ineffective for failing to assert a baseless claim. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).
Appellant's fourth claim is that the trial court erred because the sentence imposed constituted an aggravated sentence and the court failed to state on the record the reasons justifying the imposition of such sentence. The Commonwealth asserts that Appellant has failed to raise a substantial question that the sentence imposed is not appropriate under the Sentencing Code. We disagree, noting that a substantial question is raised where there is an allegation that the sentencing court did not adequately explain its reason for the *440 sentence. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc), citing Commonwealth v. Thomas, 370 Pa.Super. 544, 537 A.2d 9 (1988). Therefore, we will address the merits of Appellant's first sentencing claim.
Sentences imposed at the overlap of the standard minimum and aggravated minimum ranges are presumed to be aggravated, Commonwealth v. Hoover, 342 Pa.Super. 163, 492 A.2d 443, 444 (1985), unless the trial judge asserts the contrary on the record. This occurred in the present case, when during sentencing, the judge specifically stated that the minimum sentence was within the standard range. (N.T. 9/25/91, p. 10). Therefore, Appellant's claim is meritless.
In regard to Appellant's fifth claim that the trial court erred in taking into account a weapons misdemeanor for which he was convicted in 1974, the Commonwealth again asserts that Appellant has failed to present a substantial question that the sentence imposed is inappropriate under the Sentencing Code, in accordance with Pa.R.A.P. 2119(f). Essentially, Appellant claims that the court erred in considering his weapons misdemeanor, as it was too remote in time, and that consequently, his prior record score was miscalculated. The Commonwealth is incorrect in its desire to apply § 9781(b) of the Sentencing Code and Pa.R.A.P. 2119(f) to this issue. Calculation of a prior record score or an offense gravity score are not matters within the trial court's discretion. Therefore, neither § 9781 nor 2119(f) are implicated in this issue on appeal. We hold that where the issue on appeal is the improper calculation of a prior record score or an offense gravity score, a direct appeal lies because these are legal questions, and a discretionary review is not appropriate. Therefore, we will address the merits of Appellant's sentencing issues.
In regard to the inclusion of the weapons misdemeanor as a background factor considered in the imposition of Appellant's sentence, we note that Appellant has an extensive history of criminal behavior, including aggravated assault on a police officer, burglary, and sexual offenses against children. The present offenses were committed while he was on probation. *441 Neither the Sentencing Code nor the sentencing guidelines place any time limits on offenses to be included in the prior record score, as such criminal history is relevant to sentencing. Thus, the 1974 conviction falls within the type of criminal activity that is pertinent to sentencing considerations, and we find no error by the trial court in including it as part of Appellant's criminal history in assigning a prior record score.
Appellant's final contention is that the mandatory fine of $25,000.00 set forth in 18 Pa.C.S.A. § 7508(a)(3)(iii) is unconstitutional on its face and as applied in the instant case. Appellant argues that because the statute does not permit the court to consider the defendant's ability to pay prior to imposing the fine, the fine is unconstitutional on its face. Appellant claims that the statute is also unconstitutional as applied because he has few assets, was declared indigent by the court and is thus unable to pay the fine. We find no merit to either argument.
In Commonwealth v. Green, 406 Pa.Super. 120, 593 A.2d 899 (1991), we held that § 7508 was not a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The appellant in Green argued that because of his advanced age and physical impairments, the imposition of a mandatory sentence under § 7508 amounted to cruel and unusual punishment. This court noted that the legislature, by enacting § 7508, acknowledged the gravity of drug offenses as well as the need to protect the public from such offenses. Therefore, we held that the mandatory minimum sentence established by § 7508 serves as a suitable deterrent and was not unconstitutionally disproportionate to the seriousness of the appellant's crimes.
The instant case, while addressing a different constitutional challenge, is analogous. We find the sentence and fine which Appellant received to be proportionate to the gravity of Appellant's offense. The Eighth Amendment only forbids extreme sentences which are "grossly disproportionate to the crime." Solem v. Helm, 463 U.S. 277, 288, 303, 103 S.Ct. 3001, 3008, 3016, 77 L.Ed.2d 637 (1983). We find nothing disproportionate *442 in regard to a $25,000.00 fine for possession of cocaine with a street value of $35,980.00. Therefore, Appellant's argument that the statute is unconstitutional on its face is meritless.
Furthermore, case law also explicitly states that "[t]here is no constitutional requirement that invalidates the imposition of an otherwise valid fine merely because a defendant lacks the immediate ability to pay or would have difficulty in doing so." Commonwealth v. Church, 513 Pa. 534, 522 A.2d 30 (1987). However, because payment by Appellant will not become due until he is paroled, the "cruel and unusual" implications of the Eighth Amendment are not applicable until that time. Therefore, the issue of whether the statute is unconstitutional as applied is not before us presently, as it will not arise until collection of the fine. Accordingly, we affirm the judgment of the trial court.
Judgment of sentence affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324735/ | 689 S.E.2d 347 (2009)
The STATE
v.
CARDER.
Carder
v.
The State.
Nos. A09A2083, A09A2084.
Court of Appeals of Georgia.
December 11, 2009.
Reconsideration Denied January 11, 2010.
*349 Penny A. Penn, District Attorney, Jennifer L. Scalia, Assistant District Attorney, for appellant.
Banks, Stubbs, Neville & Cunat, Rafe Banks III, Cumming, for appellee.
MILLER, Chief Judge.
Tammy Faye Carder was charged with two counts of homicide by vehicle (OCGA § 40-6-393(a)), one count of homicide by vehicle in the second degree (OCGA § 40-6-393(c)), two counts of serious injury by motor vehicle (OCGA § 40-6-394), one count of DUI-less safe (OCGA § 40-6-391(a)(1)), and one count of failure to maintain lane (OCGA § 40-6-48). Following a pre-trial suppression hearing, the trial court suppressed Carder's refusal to take a State-administered blood test and her statements to the arresting officer at the hospital. In Case No. A09A2083, the State appeals, arguing that the trial court erred in suppressing (i) Carder's statements to the arresting officer at the hospital that were made without Miranda warnings because she was not then in custody and (ii) Carder's refusal to take a State-administered blood test because she was timely warned of her implied consent rights at the hospital after the arresting officer formed probable cause to arrest her for DUI-less safe. Carder cross-appeals in Case No. A09A2084, arguing that the trial court erred in refusing to suppress her statement to hospital personnel of "I know what you want the blood for, I'm not giving you my blood" because the statement was given while Carder was in custody and without having been read Miranda rights. As both cases involve the same operative facts, we have consolidated them on appeal.
In Case No. A09A2083, we affirm in part, finding that the trial court properly suppressed Carder's statements to the arresting officer at the hospital because Carder was in custody without having been given her Miranda rights prior to the officer's interrogation. We reverse in part, finding that the trial court erred in suppressing Carder's refusal to take a State-administered blood test because implied consent warnings were read as soon as practicable after the arresting officer observed Carder's physical manifestations at the hospital, which provided the requisite probable cause to arrest her for DUI-less safe. In Case No. A09A2084, we affirm because Carder's statement refusing to have her blood drawn was voluntarily made to hospital personnel and not in response to police questioning.
In reviewing a trial court's decision on a motion to suppress,
we will not disturb a trial court's factual findings if there is any evidence to support them and, in reviewing that evidence, we defer to the trial court's judgment on issues of witness credibility and the weight to be afforded the evidence presented. We review de novo, however, the trial *350 court's application of the law to undisputed facts.
(Citations and punctuation omitted.) State v. Rish, 295 Ga.App. 815, 673 S.E.2d 259 (2009).
So viewed, the evidence shows that on June 18, 2005, at approximately 3:52 p.m., Corporal Chris Shelton, an accident investigator with the Forsyth County Sheriff's Office, responded to the scene of a two-car accident on Highway 369, which occurred at approximately 2:30 p.m. Upon his arrival, Shelton noticed that a female driver in one of the vehicles was deceased, and briefly made contact with Carder, who was the only person seated in the second vehicle. When his superior officer notified him that Carder had requested medical attention, Shelton returned to check on her and detected an odor of alcohol about her person. Shelton asked Carder if she had been drinking, and she indicated that she had some wine at lunch. Shortly thereafter, Carder told Shelton that she wanted to go to the hospital "to be checked out." At approximately 4:32 p.m., Carder was transported to Northeast Georgia Medical Center. Shelton remained at the scene to complete his investigation of the accident before proceeding to the hospital. Shelton arrived at the hospital at approximately 6:06 p.m. and spoke briefly with Carder, who was receiving medical attention from hospital staff, before leaving to speak with other individuals involved in the accident. At approximately 6:19 p.m., Shelton learned that Carder was attempting to leave the hospital and directed hospital staff to prevent her departure because he was trying to find her. In a hospital trauma room, Shelton questioned Carder for approximately 48 minutes about the accident, then read implied consent warnings at 7:13 p.m. and asked that she submit to a State-administered blood test, which she refused. Prior to such questioning, Nurse Susan Moody, who was present in the hospital room, attempted to draw Carder's blood for medical diagnostic purposes, but Carder would not permit her to do so, stating that she was a nurse and "I know what you want the blood for, I'm not giving you my blood."
Case No. A09A2083
1. The State argues that the trial court erred in suppressing Carder's statements to Shelton at the hospital because Carder was not in custody, but was being held pursuant to the hospital's authority. We disagree.
"The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous." (Citations and punctuation omitted.) Pinckney v. State, 259 Ga.App. 309, 310-311(1), 576 S.E.2d 574 (2003).
"In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." (Citations and punctuation omitted.) Id. We examine the circumstances to determine what a reasonable person would have understood in the situation. Turner v. State, 233 Ga.App. 413, 415(1)(a), 504 S.E.2d 229 (1998).
Here, the trial court suppressed Carder's statements to Shelton at the hospital except for her admission that she was the driver of her vehicle, finding that Shelton's order to detain Carder "ripened into a custodial arrest and Miranda warnings were required prior to any further questioning of [Carder] by [Shelton] at the hospital." We find that a reasonable person in Carder's position would have believed that she was being restrained to the degree associated with a formal arrest, when pursuant to a police request, hospital staff prevented her from leaving the hospital after she refused medical treatment. Shelton then located Carder and a nurse in the emergency room and escorted them to a hospital trauma room, where he questioned Carder about the accident for 48 minutes. Pinckney, supra, 259 Ga.App. at 311(1), 576 S.E.2d 574. Thus, the trial court was authorized to conclude that Carder's presence in the trauma room was "more investigative than medical." Compare Robinson v. State, 278 Ga. 299, 301-302(2), 602 S.E.2d 574 *351 (2004) (defendant had not been released from medical treatment or told by medical personnel that he could leave the hospital; nor was defendant isolated by police or asked any pre-Miranda questions about club shooting). As such, the interrogation before the giving of the mandated warnings was clearly in violation of Miranda. See Turner, supra, 233 Ga.App. at 414(1)(a), 504 S.E.2d 229 (custodial interrogation is defined as "questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of her freedom of action in any significant way") (citations and punctuation omitted). Construing the evidence in the light most favorable to the trial court's findings and judgment, we cannot say that its decision was clearly erroneous. Pinckney, supra, 259 Ga.App. at 310-311(1), 576 S.E.2d 574.
2. The State argues that the trial court erred in suppressing Carder's refusal to take the State-administered blood test because Shelton did not have a duty to advise Carder of her implied consent rights until he had probable cause to arrest her for DUI-less safe, which occurred when he observed her physical manifestations in the hospital room. We agree.
The implied consent statute authorizes chemical testing of the bodily substances of a driver who is involved in a traffic accident which results in serious injuries or fatalities. OCGA § 40-5-55(a); Ellis v. State, 275 Ga. App. 881, 882(1), 622 S.E.2d 89 (2005). When an individual is killed in a traffic accident, a law enforcement officer is not required to read implied consent warnings unless and until he has "probable cause to believe that the person asked to submit to testing was driving under the influence of alcohol, drugs, or other intoxicating substance. [Cit.]" Snyder v. State, 283 Ga. 211, n. 1, 657 S.E.2d 834 (2008); OCGA §§ 40-5-67.1(a), 40-5-55(a) and (c).
Here, the underlying facts are undisputed regarding Shelton's observations of Carder at the accident scene and the hospital. Thus, we apply a de novo standard of review to the trial court's application of law to the facts. In concluding that Shelton should have read implied consent warnings "the moment [he] arrived at the hospital[,]" the trial court specifically found that Shelton had probable cause to arrest Carder at the accident scene but her request for medical attention was an attenuating factor which prevented an earlier reading. This determination was based on Shelton's knowledge that Carder was the driver of her vehicle, smelled of alcohol, and had recently consumed wine at lunch. The trial court's finding, however, is erroneous because the mere consumption of alcohol is insufficient to show probable cause for DUI-less safe. See Rish, supra, 295 Ga.App. at 816-817, 673 S.E.2d 259 ("Because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver"); State v. Gray, 267 Ga.App. 753, 755(2), 600 S.E.2d 626 (2004) (in order to have probable cause for a DUI arrest, an officer must "have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely") (citation and punctuation omitted; emphasis in original).
And the trial court's finding to the contrary notwithstanding, Carder was being treated by hospital staff when Shelton first arrived at the hospital, making it impracticable for Shelton to read the implied consent warnings to Carder at that time. Nor could Shelton be present during her medical treatment. See Townsend v. State, 236 Ga.App. 530, 531-532(1)(b), 511 S.E.2d 587 (1999) (holding that exigencies of police and medical work prevented the officer from giving the implied consent warning earlier and officer did read implied consent warnings at next available opportunity). Moreover, Shelton did not have probable cause to arrest Carder for DUI-less safe until he interviewed her in the trauma room, which was the next available opportunity he had to speak with her. During that conversation, Carder repeated questions to the officer and had a flushed face, glossy eyes, slurred speech, and a lingering odor of alcohol about her person. The fact that Carder was the only person in her vehicle at the accident scene and her *352 admission that she had been drinking at that time, together with her physical manifestations at the hospital, provided Shelton with probable cause to believe that Carder had been driving under the influence. See Boyd v. State, 259 Ga.App. 864, 865-866(1), 578 S.E.2d 472 (2003) (erratic driving, bloodshot eyes, slurred speech showed impaired driving ability); Gray, supra, 267 Ga.App. at 755(2), 600 S.E.2d 626. And Shelton's failure to give Miranda warnings during his questioning of Carder did not vitiate his testimony about her physical manifestations. See State v. Carraway, 251 Ga.App. 469, 470, 554 S.E.2d 602 (2001) (officer's failure to give Miranda warnings does not require suppression of his testimony regarding his observations of defendant at scene of traffic stop). Further, Carder has not shown that an earlier reading of the warnings would have benefitted her. See Townsend, supra, 236 Ga.App. at 532(1)(b), 511 S.E.2d 587.
Given that Shelton did not have probable cause to arrest Carder for DUI-less safe until he observed Carder display signs of an impaired driver at the hospital, the trial court erred in finding that Shelton "unnecessarily delayed the reading of implied consent warnings." See Snyder, supra, 283 Ga. at 213, 657 S.E.2d 834. Accordingly, we reverse the trial court's suppression of Carder's refusal to submit to a State-administered blood test.
Case No. A09A2084
3. Carder argues that the trial court erred in not suppressing her statement "I know what you want the blood for, I'm not giving you my blood" because she was in custody and had not been given Miranda warnings. We disagree.
Here, there is no evidence that Moody was acting under Shelton's direction when she sought to draw Carder's blood for medical diagnostic purposes. When Carder blurted out the foregoing statement in response to Moody's attempt to take her blood, Shelton had not yet read implied consent warnings or initiated questioning to Carder about the accident. Although Shelton was present in the room and overheard Carder's statement, her statement was volunteered and not the product of any questioning by Shelton. See State v. Davison, 280 Ga. 84, 87-88(2), 623 S.E.2d 500 (2005) ("[v]oluntary, spontaneous outbursts that are not made in response to any form of custodial questioning or interrogation are admissible at trial") (citation and punctuation omitted).
To the extent Carder argues that her statement was protected by the privilege against self-incrimination, we disagree. "The privilege against self-incrimination protects an accused only from being compelled to testify against herself, or otherwise to provide the state with evidence of a testimonial or communicative nature." Scanlon v. State, 237 Ga.App. 362, 363(1), 514 S.E.2d 876 (1999). "It is the extortion of information from the accused [or] the attempt to force him to disclose the contents of [her] own mind that implicates the Self-Incrimination Clause. ..." (Citations and punctuation omitted.) Pennsylvania v. Muniz, 496 U.S. 582, 594(III)(B), 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). Given that Moody was not attempting to secure a communication from Carder when she asked to draw her blood, Carder's privilege against self-incrimination was not implicated. Id. As such, the trial court did not err in finding Carder's statement admissible.
Judgments affirmed in part and reversed in part in Case No. A09A2083. Judgment affirmed in Case No. A09A2084.
ANDREWS, P.J., and BARNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324737/ | 689 S.E.2d 412 (2009)
STATE of North Carolina
v.
Rodney Levon WILLIAMS, Defendant.
No. COA08-1578.
Court of Appeals of North Carolina.
December 8, 2009.
*414 Roy Cooper, Attorney General, by Anne M. Middleton, Assistant Attorney General, for the State.
William D. Spence, Kinston, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged in bills of indictment in which K.N.J.W.[1] was alleged to be the victim with first degree rape, first degree sex offense, common law robbery, assault inflicting serious bodily injury, assault with a deadly weapon inflicting serious injury, and first degree kidnapping. Defendant was charged in a bill of indictment in which M.L.W. was alleged to be the victim with two counts of first degree sex offense, common law robbery, assault inflicting serious bodily *415 injury, assault by strangulation, and first degree kidnapping. Defendant was charged in a bill of indictment in which K.L.A. was alleged to be the victim with assault by strangulation, common law robbery, assault inflicting serious bodily injury, assault with a deadly weapon inflicting serious injury, and first degree kidnapping. Defendant was charged in a bill of indictment in which L.T. was alleged to be the victim with common law robbery, assault inflicting serious bodily injury, assault by strangulation, and first degree kidnapping. Defendant was charged in a bill of indictment in which C.D.S. was alleged to be the victim with common law robbery and assault on a female. Defendant entered pleas of not guilty to each of the charged offenses.
Upon the State's motion, all of the charged offenses were joined for trial. At the close of the State's evidence, the charge of first degree rape of K.N.J.W. was dismissed; defendant's motions to dismiss the remainder of the charges, made at the close of the State's evidence and at the close of all of the evidence, were denied. A jury rendered verdicts finding defendant not guilty of assaulting K.L.A. by strangulation, and guilty of each of the other offenses with which he was charged. He appeals from judgments entered upon the verdicts, sentencing him to consecutive sentences within the presumptive range totaling a minimum term of 1122 months and a maximum term of 1411 months in the custody of the North Carolina Department of Correction.
Briefly summarized, the State's evidence at trial tended to show that during the period from the cold months of late 2004 or early 2005 to 10 October 2006, defendant picked up five different women, who were apparently working as prostitutes, in Goldsboro, North Carolina. Four of the women, C.D.S., L.T., K.L.A., and M.L.W., testified that defendant negotiated with them for the performance of various sexual acts in exchange for money and drove them to more secluded locations for performance of the acts. The women testified that defendant assaulted them, took the money he had given them and, while they fled or lay unconscious, he absconded with their personal belongings which had been left in his vehicle or at the scene. Defendant's admissions and testimony from witnesses, investigators, and hospital personnel established a similar set of circumstances for the fifth victim, K.N.J.W. We will summarize the evidence with respect to each of the victims in more detail only to the extent necessary to address defendant's assignments of error.
L.T.
The State's evidence with respect to the charges relating to L.T. tended to show that during the cold months of late 2004 or early 2005, L.T. was picked up by a man, whom she identified as defendant, after midnight. They negotiated for a sexual act in exchange for money. They drove to a parking lot. Defendant gave L.T. money and tried to perform the sex act, but could not maintain an erection. Defendant then punched L.T. and told her "this is what I like, bitch" and immediately obtained an erection. Defendant pushed his knee into L.T.'s pelvic bone and pressed against her throat while she was struggling to get away. L.T. managed to get out of the vehicle and defendant grabbed her belongings as they fell out. He asked her, "where's my fucking money, bitch?" L.T. told him the money was in her pants. Then, defendant put his foot on her neck and pressed down with his weight. Defendant put his other foot on L.T.'s rib cage, pushing until she heard her rib pop. A man came out on the porch of a nearby house and asked if L.T. wanted him to call 911. Defendant gathered up L.T.'s belongings and fled.
Defendant contends the trial court erred in denying his motion to dismiss the charge of common law robbery against L.T. In ruling upon a defendant's motion to dismiss in a criminal trial, "the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is defined as "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "[S]o long as the *416 evidence supports a reasonable inference of the defendant's guilt," the motion should be denied. State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009). In addition, "[t]he reviewing court considers all evidence in the light most favorable to the State," State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004), cert. denied, 543 U.S. 1156, 125 S.Ct. 1301, 161 L.Ed.2d 122 (2005), and "[a]ny contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal." State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
"Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear." State v. Black, 286 N.C. 191, 193, 209 S.E.2d 458, 460 (1974). Defendant appears to concede both that force was used and property was taken, but contends that the force was not used to take the property, but was instead a reaction to his failure to perform sexually. L.T. was severely beaten by defendant until she sought refuge behind a telephone pole, leaving her possessions. Defendant's grabbing of her possessions and saying "where's my fucking money, bitch?" indicate his intent to take her property. The evidence shows that the victim was fearful enough of defendant to tell him that the money was in her jeans and to try to escape from his vehicle. In the light most favorable to the State, this shows that defendant intended to take, and did take, by force the money which he had earlier given to L.T. This assignment of error is overruled.
Defendant next contends the trial court erred in denying his motion to dismiss the charge of assault inflicting serious bodily injury. Under N.C.G.S. § 14-32.4(a), this crime requires proof of (1) an assault and (2) infliction of serious bodily injury. See N.C. Gen.Stat. § 14-32.4(a) (2007). Under this statute, serious bodily injury is defined as "bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization." Id.
Defendant contends the injury inflicted on L.T. was not serious bodily injury, as required by the statute. The evidence showed that as a result of defendant's assault upon her, L.T. suffered a cracked pelvic bone, a broken rib, torn ligaments in her back, and a deep cut over her left eye. She was also unable to have sex for seven months. The eye injury developed an infection which lingered for months and was never completely cured. The incident left a scar above her eye. The scar amounts to permanent disfigurement. This case is similar to State v. Downs, 179 N.C.App. 860, 635 S.E.2d 518, disc. review dismissed and disc. review denied, 361 N.C. 173, 640 S.E.2d 57 (2006), in which this Court held that the loss of a natural tooth, even one that could be replaced with a dental implant, was enough permanent disfigurement to go to the jury on the issue of serious bodily injury. Downs, 179 N.C.App. at 861-62, 635 S.E.2d at 520. L.T.'s injuries were sufficient for a reasonable mind to conclude that she had suffered serious bodily injury. Therefore, we overrule this assignment of error.
Defendant next contends the trial court erred in denying his motion to dismiss the charge of assault by strangulation against L.T. Under N.C.G.S. § 14-32.4(b), the above crime is committed when a person (1) assaults another person (2) and inflicts physical injury (3) by strangulation. N.C. Gen.Stat. § 14-32.4(b).
Defendant first contends the indictment contained a "fatal" variance from L.T.'s testimony at trial. The indictment alleges that defendant strangled L.T. by placing his hands around her throat. Defendant contends L.T. testified that it was his elbow or his foot which was pressed against her neck. "A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial." State v. Norman, 149 N.C.App. 588, 594, 562 S.E.2d 453, 457 (2002).
L.T. testified that defendant pressed his foot or elbow on her neck. However, *417 while on the witness stand, she also verified that in her statement to Goldsboro Police Investigator Learnard, which was entered into evidence, she had stated that defendant "put his hand upon [her] chest, pushing [her] neck." This testimony indicates there may not have been a variance at all. However, even if L.T.'s testimony was at variance with the allegations of the indictment, defendant's argument would fail because the variance was immaterial and thus not fatal. State v. Craft, 168 N.C. 208, 212, 83 S.E. 772, 774 (1914). An indictment based on a statutory offense is usually sufficient if "couched in the language of the statute." State v. Palmer, 293 N.C. 633, 638, 239 S.E.2d 406, 410 (1977). "The [indictment] is complete without evidentiary matters descriptive of the manner and means by which the offense was committed." State v. Lewis, 58 N.C.App. 348, 354, 293 S.E.2d 638, 642 (1982) (internal quotation marks omitted), cert. denied, 311 N.C. 766, 321 S.E.2d 152 (1984). Thus, the method of strangulation was surplusage and should be disregarded. State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972).
Defendant next contends that his actions as alleged do not constitute actual strangulation. Defendant contends that in order to constitute strangulation there must be evidence that the victim had difficulty breathing. Defendant cites State v. Braxton, 183 N.C.App. 36, 643 S.E.2d 637, disc. review denied, 361 N.C. 697, 653 S.E.2d 4 (2007), for this proposition. However, defendant reads the language of Braxton too narrowly. The defendant in Braxton also moved to dismiss the charge of assault by strangulation claiming the State had presented insufficient evidence that defendant strangled the victim. Id. at 42, 643 S.E.2d at 641. In affirming the trial court's decision denying the motion to dismiss, this Court held the evidence that the victim had been strangled to the point of having difficulty breathing was sufficient to comprise "strangulation" under the statute. Id. at 43, 643 S.E.2d at 642. However, the Court did not go as far as to require proof that the victim had difficulty breathing in order to satisfy the statutory requirements.
In her statement to Investigator Learnard, L.T. stated that she felt that defendant was trying to crush her throat, that he pushed down with his weight on her neck with his foot, that she thought he was trying to "chok[e] her out" or make her go unconscious, and that she thought she was going to die. We hold the foregoing evidence is also sufficient evidence of assault by strangulation. Thus, we overrule this assignment of error.
Defendant next contends the trial court erred in denying his motion to dismiss the charges of first degree kidnapping against L.T. Kidnapping is defined in N.C.G.S. § 14-39 as:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
....
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person
....
N.C. Gen.Stat. § 14-39(a)(3) (2007). Section (b) of the statute describes the degrees of kidnapping. N.C. Gen.Stat. § 14-39(b). First degree kidnapping occurs "[i]f the person kidnapped either was not released by defendant in a safe place or had been seriously injured or sexually assaulted...." Id. Kidnapping can be accomplished either by actual force or by fraud or trickery which "induce[s] the victim to be removed to a place other than where the victim intended to be." State v. Davis, 158 N.C.App. 1, 13, 582 S.E.2d 289, 297 (2003).
Defendant contends there was insufficient evidence to show that he confined, restrained, or removed L.T. or that he did so for the purpose of causing her serious bodily injury. The State, however, points us to the similarities in the evidence with respect to L.T., K.N.J.W., M.L.W., and K.L.A., arguing that such evidence, taken together, shows a common plan and scheme by defendant to approach a prostitute, negotiate a sexual act in exchange for money, induce the woman to enter his car and move to a more secluded *418 location, while having the intent to beat the woman, and rob her of her belongings, including the money which he had earlier paid her. In addition, the State argues that defendant's statements to L.T. after he hit her that "this is what I like, bitch," and his achieving an erection after hitting her show that defendant knew he desired violence against another person and induced the women to get in his vehicle for that express purpose. We agree. We hold the State's evidence is sufficient to show that at the time defendant induced L.T. to enter his car on the pretext of paying her money in return for a sexual act, his intent was to assault her. In addition, we hold that a reasonable mind could conclude from the evidence that had L.T. known of such intent, she would not have consented to have been moved by defendant from the place where she first encountered him.
Finally, defendant contends his rights under the Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution have been violated by sentencing him under both N.C.G.S. § 14-32.4(a) for assaulting L.T. and inflicting serious bodily injury and N.C.G.S. § 14-32.4(b) for assaulting L.T. by strangulation. Defendant did not raise this issue at trial. It is well established that "a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Nevertheless, defendant contends the issue is reviewable as "plain error." Plain error analysis, however, "applies only to instructions to the jury and evidentiary matters." State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 121 S.Ct. 635, 148 L.Ed.2d 543 (2000). Since the issue implicates neither jury instructions or evidentiary rulings, it is not properly reviewable as "plain error."
Finally, defendant urges us to exercise our discretionary powers under Rule 2 of the North Carolina Rules of Appellate Procedure. N.C.R.App. P. 2. Rule 2 is used to suspend the rules of appellate procedure in order to "prevent manifest injustice" and has been used to review a case for double jeopardy even when the issue was not raised at trial. Id.; State v. Dudley, 319 N.C. 656, 659, 356 S.E.2d 361, 364 (1987). Rule 2 discretion should be exercised "cautiously" and only in "exceptional circumstances." State v. Hart, 361 N.C. 309, 315, 644 S.E.2d 201, 205 (2007) (internal quotation marks omitted from second quotation). We choose to exercise this discretionary power to review defendant's contentions with respect to double jeopardy.
The prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and which has been deemed a part of the North Carolina Constitution through the "law of the land" provision of Article I, Section 19, prohibits a defendant from receiving multiple punishments for the same offense. State v. Cameron, 283 N.C. 191, 197, 195 S.E.2d 481, 485 (1973). "The burden is upon defendant to sustain his plea of double jeopardy." State v. Cutshall, 278 N.C. 334, 343, 180 S.E.2d 745, 750 (1971). We review double jeopardy issues de novo. State v. Hagans, 188 N.C.App. 799, 804, 656 S.E.2d 704, 707, disc. review denied, 362 N.C. 511, 668 S.E.2d 344 (2008).
Defendant contends the language in N.C.G.S. § 14-32.4(b), "[u]nless the conduct is covered under some other provision of law providing greater punishment," is an indicator of legislative intent to prohibit a court from sentencing a defendant for the same conduct under both N.C.G.S. § 14-32.4(b) and N.C.G.S. § 14-32.4(a) because the former is a Class H felony and the latter is a Class F felony. We agree.
In State v. Ezell, 159 N.C.App. 103, 582 S.E.2d 679 (2003), this Court held that legislative intent would rebut the presumption created by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), that two offenses are not considered the same for the purposes of double jeopardy if each offense requires proof of an element that the other does not. Ezell, 159 N.C.App. at 109, 582 S.E.2d at 684. In Ezell, the Court went on to hold that the language "[u]nless the conduct is covered under some other provision of law providing greater punishment" *419 indicated legislative intent to punish certain offenses at a certain level, but that if the same conduct was punishable under a different statute carrying a higher penalty, defendant could only be sentenced for that higher offense. Id. at 111, 582 S.E.2d at 685. This same analysis was used by this Court in State v. McCoy, 174 N.C.App. 105, 620 S.E.2d 863 (2005), supersedeas and disc. review denied, 628 S.E.2d 8 (2006), to hold that a defendant could not be sentenced for the same conduct under both N.C.G.S. § 14-33(c)(1), which also contains the quoted language, and N.C.G.S. § 14-32(b). McCoy, 174 N.C.App. at 116, 620 S.E.2d at 871-72. Thus, even though N.C.G.S. § 14-32.4(a) and (b) require proof of different elements, so as to be distinct crimes under Blockburger, the insertion of the quoted language in the statute indicates the intent of the legislature that a defendant only be sentenced for the higher of the two offenses, assault inflicting serious bodily injury. Thus, we must vacate the judgment entered upon defendant's conviction in 06 CRS 57321, count 19. Since that conviction was consolidated with defendant's convictions of common law robbery, assault inflicting serious bodily injury, and first degree kidnapping in 06 CRS 057321, counts 17, 18 and 20, we must remand these convictions to the trial court for resentencing. State v. Wortham, 318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987).
K.N.J.W.
With respect to the charges relating to K.N.J.W., the State's evidence tended to show that around 7:45 on the morning of 10 October 2006, K.N.J.W. knocked on the door of Justin Wiggs who lived across from Peacock Park. She was bleeding from her mouth and vaginal area. She told Mr. Wiggs that she had awakened in the park and did not know what had happened to her. Mr. Wiggs called an ambulance, and K.N.J.W. was transported to the hospital. On the way to the hospital, K.N.J.W. told Wayne County EMS employee Kari McCallister that she had been picked up on George Street by an African-American male, and provided a description of the man and the vehicle he was driving. In the meantime, after the ambulance had departed with K.N.J.W., Mr. Wiggs, curious about what had occurred, went to Peacock Park where he encountered a man he identified at trial as defendant. At the hospital, K.N.J.W. told the emergency room nurse that she had been assaulted by the man who picked her up. The nurse collected evidence for a rape kit and bagged K.N.J.W.'s clothes to give to the police department. K.N.J.W. sustained a vaginal laceration, four to five inches in length, and lost nearly a quart of blood by reason thereof. She sustained injuries to her head and face, as well as multiple fractures to her jaw requiring the surgical insertion of titanium bone plates.
Later the same day, Investigator Learnard visited K.N.J.W., who gave her details about the person who had assaulted her. In combination with the information K.N.J.W. had given to Kari McCallister, these details led Investigator Learnard to defendant. Investigator Learnard questioned defendant, who initially denied being at the park, but later admitted being in the park and paying K.N.J.W. for oral sex.
Defendant's first assignment of error relates to the trial court's admission of a statement by Investigator Learnard. Investigator Learnard testified that when she visited K.N.J.W. in the emergency room, K.N.J.W. stated that when she awoke in the park her bra was hiked up and the money she had placed there was missing. Defendant first contends that this statement was inadmissible hearsay and its admission by the trial court was in error.
At trial, defendant's counsel made only a general objection to the admission of the statement. The trial court overruled the statement without stating grounds and defendant did not ask for clarification of the grounds. Rule 10(b)(1) of the North Carolina Rules of Appellate procedure requires that specific grounds be given for an objection unless the grounds are clear from the context. N.C.R.App. P. 10(b). In the context of the investigator's testimony, it is clear that the objection was made on hearsay grounds. Therefore, we will review the trial court's decision to admit the statement.
*420 Hearsay is defined under the North Carolina Rules of Evidence as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen.Stat. § 8C-1, N.C.R. Evid. 801(c) (2007). The statement at issue was "[K.N.J.W.] had stated when she woke up, that her bra was hiked up on one side and her money was missing." K.N.J.W.'s statement was clearly offered to prove the truth of the statementthat the money was missing, and there is no contention by the State that the statement was being offered for any non-hearsay purpose, or that it was admissible under any of the exceptions to the hearsay rule. Thus, the admission of the statement was error.
Nevertheless, defendant must demonstrate prejudice from the erroneous admission of the evidence. N.C. Gen.Stat. § 15A-1442(4)(c) (2007); State v. Bass, 190 N.C.App. 339, 348, 660 S.E.2d 123, 129, cert. denied and appeal dismissed, 362 N.C. 683, 670 S.E.2d 566 (2008). Defendant contends he was prejudiced because the hearsay statement was the only evidence of a taking to sustain the charge of common law robbery. We disagree. Even without K.N.J.W.'s statement, other evidence provides sufficient evidence of a taking. Defendant admitted to Investigator Learnard that he gave K.N.J.W. money in exchange for oral sex and that K.N.J.W. put the money in her bra. Investigator Learnard testified that no money was found at the scene of the crime. A nurse testified that she collected K.N.J.W.'s clothes at the hospital. The inventory of K.N.J.W.'s clothing does not include any money. In addition, a crack pipe with K.N.J.W.'s DNA was found in defendant's car.
Defendant next contends the admission of this statement violated the Confrontation Clause of the United States Constitution. Defendant appears to concede that this constitutional issue was not specifically raised at trial and therefore cannot be reviewed for the first time on appeal. State v. Chapman, 359 N.C. 328, 354, 611 S.E.2d 794, 822 (2005). However, defendant argues that this error should be reviewed for plain error. Plain error review requires that defendant show that the error was "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988).
In his brief discussing plain error review, defendant alleges none of the elements required of him for plain error review. However, in a previous section of his brief, defendant contends that because there was no other evidence of money or property having been taken from K.N.J.W. to support the common law robbery charge "there is a reasonable possibility that, had this testimony not been admitted in evidence, a different result would have been reached at trial." Plain error review, however, requires a higher standard, i.e., that a different result "probably would have been reached but for the error." State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000) (internal quotation marks omitted), cert. denied, 532 U.S. 997, 121 S.Ct. 1660, 149 L.Ed.2d 641 (2001).
Even had defendant properly asserted plain error, we cannot say that the erroneous admission of Investigator Learnard's hearsay testimony probably affected the result of the trial with respect to the common law robbery of K.N.J.W. As discussed above, there was substantial evidence that a taking occurred. This assignment of error is overruled.
Defendant's next five assignments of error are based on the trial court's denial of his motion to dismiss various charges relating to K.N.J.W.
Defendant first contends the trial court erred in denying his motion to dismiss the charge of common law robbery against K.N.J.W. Defendant contends the State failed to introduce sufficient evidence that (1) a taking occurred, (2) that force was used to accomplish the taking, and (3) that defendant was the perpetrator.
Defendant argues that the hearsay statement of Investigator Learnard discussed above is the only evidence of a taking, and without it the State's evidence of common law robbery is insufficient. However, in *421 considering a motion to dismiss, "[a]ll evidence actually admitted, both competent and incompetent, which is favorable to the State must be considered." State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984). In addition, as discussed above, even without the statement from Investigator Learnard, there was substantial evidence of a taking.
There is also substantial evidence that force was used to take the money from K.N.J.W. The State presented evidence that K.N.J.W. was picked up by someone matching defendant's description at around 8:00 a.m. on the morning of 10 October 2006. There was no evidence that she was injured at that time. By 8:22 a.m., Kari McCallister, with Wayne County EMS, arrived to find K.N.J.W. battered and bleeding from her head and vaginal area.
There is also ample evidence to support a reasonable inference that defendant was the perpetrator. Shoe prints matching defendant's shoes placed him at the scene. Defendant also admitted to investigators that he was with the victim at the scene on the morning in question. A receipt found at the scene bearing his name indicates that he was in the area sometime after 7:35 a.m. on 10 October 2006. A crack pipe with K.N.J.W.'s DNA was found in defendant's vehicle. His description matches that given by the victim to investigators. In addition, defendant was encountered by Justin Wiggs at the scene not long after the events occurred. Defendant also told conflicting stories to investigators. Such evidence can be used to show consciousness of guilt. State v. Redfern, 246 N.C. 293, 297-98, 98 S.E.2d 322, 326 (1957).
The present case can be distinguished from such cases as State v. Holland, 234 N.C. 354, 67 S.E.2d 272 (1951), and State v. Murphy, 225 N.C. 115, 33 S.E.2d 588 (1945), in which the victims were rendered unconscious by the defendants and regained consciousness bereft of their property. Holland, 234 N.C. at 356-59, 67 S.E.2d at 273-75; Murphy, 225 N.C. at 115, 33 S.E.2d 588. Our Supreme Court, in the above cases, held that the mere opportunity for defendants to take the property was not enough to establish common law robbery. Holland, 234 N.C. at 359, 67 S.E.2d at 275; Murphy, 225 N.C. at 117, 33 S.E.2d at 589.
In Holland, the victim was found unconscious in his home seven hours after an attack. Holland, 234 N.C. at 356, 67 S.E.2d at 273. When he awoke eight days later in the hospital, he realized some of his property was missing. Id. at 358, 67 S.E.2d at 275. Here, K.N.J.W. was picked up by defendant, was paid money to perform oral sex, and lost consciousness. When K.N.J.W. woke up in the park, the money she had been given was missing. All of this occurred sometime between 7:35 a.m. (the time on defendant's receipt found in the dugout) and 8:16 a.m. (when EMS was dispatched). This short period of time distinguishes this case from the facts of Holland. In Murphy and Holland, there was also evidence of other potential suspects. In Murphy, other people were around who witnessed the assault and some moved his unconscious body out of the street. Murphy, 225 N.C. at 116, 33 S.E.2d at 588. In Holland, nine people lived in the victim's home. Holland, 234 N.C. at 358, 67 S.E.2d at 275. In the present case, there was no evidence of the presence of any intervening persons. The State's witness Justin Wiggs stated that he went to the park after the ambulance had left with K.N.J.W. He did not see anyone or any cars in the parking lot until he encountered defendant. In addition, in the present case, unlike Murphy and Holland, defendant was found in possession of some property, the crack pipe, bearing K.N.J.W.'s DNA. Finally, the court in both Holland and Murphy noted that robbery did not seem to be the motive for the assault. In Murphy, the defendants claimed they were trying to disarm the victim who threatened them. Murphy, 225 N.C. at 116, 33 S.E.2d at 588-89. In Holland, money was left in the victim's cab and on the victim's person. Holland, 234 N.C. at 359, 67 S.E.2d at 275. Here, defendant's interactions with K.N.J.W. and the other victims more clearly indicate that he intended to rob the victims and take back the money he had given them. These distinctions establish that defendant had more than a "mere opportunity" to take the victim's property. For the above reasons, we overrule this assignment of error.
*422 Defendant next contends the trial court erred in denying his motion to dismiss the charge of assault inflicting serious bodily injury on K.N.J.W. Defendant argues that the State presented insufficient evidence that K.N.J.W.'s injuries were caused by an assault or that defendant was the perpetrator of the assault against K.N.J.W. Defendant does not dispute that K.N.J.W. sustained "serious bodily injury" from the brutal assault, and the evidence of that fact is beyond question. The nature of the injuries themselves give rise to a reasonable inference that they were neither accidental nor self-inflicted, and the State "is not required to exclude all other possible inferences" as to the source of K.N.J.W.'s injuries in order to withstand a motion to dismiss. Davis, 158 N.C.App. at 14, 582 S.E.2d at 298.
With regard to the perpetrator's identity, the same evidence which supports the conclusion that defendant was the perpetrator of the common law robbery on K.N.J.W. supports the conclusion that he perpetrated the assault on K.N.J.W. Therefore, we overrule this assignment of error.
Defendant next contends the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon inflicting serious injury. According to the North Carolina General Statutes, the above crime requires an (1) assault of another person, (2) with a deadly weapon, and (3) infliction of serious injury. See N.C. Gen.Stat. § 14-32(b) (2007). Defendant contends that there is insufficient evidence to show that he was the perpetrator of the assault against K.N.J.W. The same evidence which supports the conclusion that defendant committed common law robbery of K.N.J.W. and committed the assault inflicting serious bodily injury supports the conclusion that defendant was the perpetrator of this crime.
Defendant also contends there was insufficient evidence that a deadly weapon was used in his assault upon K.N.J.W. We disagree. This Court has held that an assailant's hands may be considered a deadly weapon considering the manner in which they were used and relative size and condition of the parties. State v. Allen, 193 N.C.App. 375, 384, 667 S.E.2d 295, 301 (2008). In the present case, the evidence shows that defendant was a big stocky man, probably larger than K.N.J.W., who was a female and a likely user of crack cocaine. Given the nature of the injuries sustained by K.N.J.W., the location of the assault, the similarity in the evidence of the assault upon K.N.J.W. with an assault on K.L.A. just five days earlier at the same location, we believe the evidence is substantial that defendant used his hands as deadly weapons to assault K.N.J.W. to the point of inflicting serious injury. This assignment of error is overruled.
Defendant next contends the trial court erred in denying his motion to dismiss the charge of first degree sex offense. According to N.C.G.S. § 14-27.4, first degree sexual offense is committed if a person (1) engages in a sexual act, (2) with another person by force and against her will, and either (3) "[e]mploys or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon" or (4) "inflicts serious personal injury upon the victim or another person." N.C. Gen.Stat. § 14-27.4 (2007). Defendant argues there is insufficient evidence (1) of the nature of the sexual act which caused the injuries to K.N.J.W., (2) that the sexual assault was against the will of K.N.J.W., or (3) that defendant was the perpetrator of said sexual assault.
The State has presented sufficient evidence that some sexual act caused the injuries to K.N.J.W. A sexual act is defined by statute as "cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body...." N.C. Gen.Stat. § 14-27.1 (2007). Dr. Lies, the operating physician in the emergency room, testified that the laceration in K.N.J.W.'s vagina was likely caused by the insertion of an object, possibly a fist, but not a penis. This meets the statutory definition of a sexual act. Again, the State is not required to rule out all other sources of injury to withstand a motion to dismiss. Davis, 158 N.C.App. at 14, 582 S.E.2d at 298.
*423 Defendant also contends there was insufficient evidence to show that K.N.J.W. did not consent to the sexual act. By defendant's own admission he was only to receive oral sex from K.N.J.W.; she did not consent to having any objects inserted into her vagina. In addition, a reasonable mind could infer that she would not consent to having an object inserted into her vagina which would leave a five-inch gash requiring surgery.
The evidence sufficient to support a conclusion that defendant was the perpetrator of the robbery and other assaults against K.N.J.W. are sufficient to support the conclusion that he also perpetrated this sexual offense against her. This assignment of error is overruled.
Defendant next contends that the trial court erred in denying his motion to dismiss the charges of first degree kidnapping of K.N.J.W. As with L.T., defendant again contends there was insufficient evidence to show that he confined, restrained, or removed K.N.J.W. or that he did so for the purpose of causing her serious bodily injury. We reject his argument for the same reasons discussed regarding defendant's contentions with respect to the first degree kidnapping charges in which L.T. was alleged to be the victim.
Defendant also contends any restraint or removal of K.N.J.W. was an inherent element of other felonies alleged to have been committed against her. This contention is likewise without merit. When kidnapping and another felony arise out of the same transaction, reviewing courts have examined the actions of the defendant to determine whether the kidnapping was a separate course of action to prevent the hindering of the commission of the other offense. State v. Newman, 308 N.C. 231, 239, 302 S.E.2d 174, 181 (1983) (holding that the removal of the victim to a wooded area to rape her was not "inherent in the commission of the crime of rape," but rather "a separate course of conduct designed to remove her from the view of a passerby who might have hindered the commission of the crime"). Here, a reasonable mind could easily conclude that defendant's acts in taking K.N.J.W. to a secluded area was a separate transaction designed to reduce his risk of discovery and hindrance of the crime. These assignments of error are overruled.
Defendant further argues that his commission of first degree sexual offense upon K.N.J.W. was used to elevate the kidnapping charge to first degree kidnapping. Thus, he contends his sentencing for both offenses violates his rights against double jeopardy. His argument must fail because the jury was instructed that to convict defendant of first degree kidnapping of K.N.J.W., it was required to find that the victim was "seriously injured." There was no reference to the sexual assault in the jury instructions. Jurors are presumed to follow the instructions of the trial court. State v. Tirado, 358 N.C. 551, 593, 599 S.E.2d 515, 543 (2004), cert. denied, 544 U.S. 909, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005). Thus, we overrule this assignment of error.
Defendant further contends the imposition of separate sentences for both his conviction of felonious assault upon K.N.J.W. and his conviction of first degree kidnapping upon her violates the prohibition of multiple punishments for the same act because his commission of the assault was used to elevate the kidnapping charge to first degree kidnapping.
Under the test outlined in Blockburger, two offenses are distinct for the purposes of double jeopardy if they each require proof of an element the other does not. 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. First degree kidnapping contains the additional element of restraint or confinement that is not statutorily required for conviction of the offense of assault inflicting serious bodily injury. N.C. Gen.Stat. § 14-39 (2007); N.C. Gen.Stat. § 14-32.4(a) (2007). In order to elevate second degree kidnapping to first degree kidnapping, the jury in this case was required to find that the victim was seriously injured. Assault inflicting serious bodily injury requires additional proof of "serious bodily injury" beyond the "serious injury" needed to prove first degree kidnapping. State v. Williams, 150 N.C.App. 497, 503, 563 S.E.2d 616, 619-20 (2002). We note that although the jury charge for kidnapping required a finding that the women were abducted "for the purpose of doing serious *424 bodily injury" which more closely coincides with the charge of assault inflicting serious bodily injury, we conclude that "for the purpose of" and the actual act of committing serious bodily injury are two different elements, the latter being more serious than the former. Thus, defendant's argument fails and this assignment of error is overruled.
Finally, defendant contends the trial court erred in sentencing him for both assaulting K.N.J.W. with a deadly weapon inflicting serious injury and assaulting her inflicting serious bodily injury. We must agree. "In order for a defendant to be charged with multiple counts of assault, there must be multiple assaults. This requires evidence of a distinct interruption in the original assault followed by a second assault." McCoy, 174 N.C.App. at 115, 620 S.E.2d at 871 (citations and internal quotation marks omitted). The evidence in the present case does not establish two separate assaults upon K.N.J.W., rather it establishes multiple injuries resulting from one continuous transaction. Therefore, defendant should have been sentenced only for the greater of the two offenses, assault with a deadly weapon inflicting serious injury. We must therefore vacate the judgment entered upon defendant's conviction of assault upon K.N.J.W. inflicting serious bodily injury in case 06 CSR 57025, count 3.
M.L.W.
With respect to M.L.W., the State's evidence tended to show that in early June of 2006, a man, identified as defendant, approached M.L.W. in his vehicle and told her to get inside the car. They negotiated for a sexual act in exchange for money. They drove to a location full of empty lots from flooded-out homes. Defendant gave M.L.W. money and she began to perform the sex act. Defendant was unable to achieve an erection and hit M.L.W. so hard that she fell to the ground. Defendant began kicking M.L.W. in the ribs; then picked her up by her neck and squeezed while he swung her body. She passed out. She woke up with her head under the wheel of defendant's vehicle as if he had placed her there. Defendant had his fingers in her vagina and in her rectum. He kept asking her "where's my money, bitch?" The money had been in M.L.W.'s hand and had fallen out during the beating. Defendant went over to where the money was laying and M.L.W. took this opportunity to flee, leaving her personal property with defendant.
Defendant contends the trial court erred in denying his motion to dismiss the charge of common law robbery against M.L.W. He admits the use of force, but denies that the force was used to take M.L.W.'s property. Instead, he claims the violence was a reaction to his inability to sexually perform. In addition, defendant contends there is a lack of evidence to show that he was the one who took the property of M.L.W.
With regard to the force element, the State has presented evidence that defendant punched, kicked, threatened to kill, and strangled M.L.W. until she lost consciousness. When defendant was momentarily distracted, she fled leaving her possessions behind. The force element required for common law robbery requires violence or fear "sufficient to compel the victim to part with his property." State v. Sipes, 233 N.C. 633, 635, 65 S.E.2d 127, 128 (1951), or "to prevent resistance to the taking." State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944) (internal quotation marks omitted). The force used by defendant was sufficient to compel M.L.W. to part with her possessions, leaving them behind as she fled to safety.
In addition, defendant's statement, "where's my money, bitch?," made to M.L.W. as he was assaulting her, indicates that he intended to take the money from her and provides circumstantial evidence that he did take it. Defendant also went over to where M.L.W.'s property had fallen from her hand, again indicating that he intended to take property from her. After M.L.W. had fled, leaving her property, she watched defendant leave in his vehicle and almost immediately went to retrieve her property and found it missing. In the light most favorable to the State, this evidence is substantial to allow a reasonable mind to draw the conclusion that *425 defendant took M.L.W.'s property. We overrule this assignment of error.
Defendant next contends the trial court erred in denying his motion to dismiss the charge of assault inflicting serious bodily injury on M.L.W. Defendant alleges there was insufficient evidence to show that M.L.W. suffered serious bodily injury. This Court has held that N.C.G.S. § 14-32.4(a) was meant to "cover those assaults that are especially violent and result in the infliction of extremely serious injuries." Williams, 150 N.C.App. at 503, 563 S.E.2d at 619. Thus, "`serious bodily injury' ... requires proof of more severe injury than the `serious injury' element of other assault offenses." Id. at 503, 563 S.E.2d at 619-20. As noted above, "serious bodily injury" is injury which "creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization." N.C. Gen.Stat. § 14-32.4(a). Serious injury has been defined as an injury which is serious, but falls short of death. See State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962).
While the State has presented sufficient evidence of "serious injury," the State has failed to show "serious bodily injury" on the part of M.L.W. While M.L.W. received a vicious beating, the evidence does not show that her injuries placed her at substantial risk of death. Though her ribs were still "sore" five months after the assault, in order to meet the statutory definition, the victim must experience "extreme pain" in addition to the "protracted condition." N.C. Gen. Stat. § 14-32.4(a); State v. Brown, 177 N.C.App. 177, 188, 628 S.E.2d 787, 793-94 (2006). The State presented no evidence of extreme pain. Therefore, the trial court erred in denying defendant's motion to dismiss the charge of an assault upon M.L.W. inflicting serious bodily injury, and we must reverse his conviction of that offense in Case No. 06 CRS 57321 as contained in count 9 of the bill of indictment.
Defendant next contends the trial court erred in denying his motion to dismiss the charge of assault by strangulation against M.L.W. Defendant claims that he should only be charged with either assault inflicting serious bodily injury or assault by strangulation. We need not address defendant's contention as we have previously determined that the charge under N.C.G.S. § 14-32.4(a) should have been dismissed.
Defendant also contends the trial court erred in denying his motion to dismiss at least one of the charges of first degree sexual offense against M.L.W. and in sentencing him for two counts of first degree sexual offense against M.L.W. He contends his conviction of, and punishment for, two counts of first degree sexual offense for inserting his fingers in her vagina and in her rectum during a single incident violates his double jeopardy rights. We disagree.
Defendant cites State v. Laney, 178 N.C.App. 337, 631 S.E.2d 522 (2006), in support of his contention that he should not be sentenced for both counts of first degree sexual offense. In Laney, defendant touched both the victim's breasts and put his hands under her waistband. Laney, 178 N.C.App. at 341, 631 S.E.2d at 525. This Court held that there was one single act of touching and not multiple sexual acts. Id. However, in State v. James, 182 N.C.App. 698, 643 S.E.2d 34 (2007), this Court, in distinguishing State v. Laney, stated that as opposed to mere touching, "multiple sexual acts, even in a single encounter, may form the basis for multiple indictments for indecent liberties." James, 182 N.C.App. at 705, 643 S.E.2d at 38. Thus, this Court found that a different analytical path should be applied when dealing with "sexual acts" as opposed to touching in the context of charges of indecent liberties. Id. This Court subsequently suggested in State v. Gobal, 186 N.C.App. 308, 651 S.E.2d 279 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008), that this same logic would apply to charges of sexual offense. Gobal, 186 N.C.App. at 322 n. 7, 651 S.E.2d at 288 n. 7 ("If defendant had properly preserved this issue ... we would affirm.... Even when multiple sex acts occur in a `single transaction' or a short span of time, each act is a distinct and separate offense.").
*426 Defendant attempts to distinguish Gobal by stating that in Gobal the sexual acts occurred in sequence whereas, in our case, M.L.W. regained consciousness to find defendant's hands in her vagina and her rectum at the same time. However, in neither Gobal nor James does this Court make noncontemporaneous penetration a requirement to charge defendant with two separate counts of sexual offense or indecent liberties. See id.; James, 182 N.C.App. at 705, 643 S.E.2d at 38. In fact, this Court in Gobal notes that the occurrence of the acts in a "single transaction" is irrelevant. Gobal, 186 N.C.App. at 322 n. 7, 651 S.E.2d at 288 n. 7. We, therefore, overrule this assignment of error.
Defendant also contends, for the same reasons as in his argument with respect to L.T., that the charge of first degree kidnapping of M.L.W. should have been dismissed. For the same reasons as previously stated in our discussion of his similar contentions with respect to L.T., we reject his argument. In addition, though we have concluded the charge of assault inflicting serious bodily injury should have been dismissed by reason of the insufficiency of the evidence that the injuries sustained by M.L.W. amount to "serious bodily injury," we believe the evidence was substantial that defendant's purpose in kidnapping her was to do her serious bodily harm, even if he only inflicted "serious injury" upon her.
Defendant further argues that his commission of first degree sexual offense upon M.L.W. was used to elevate the kidnapping charge to first degree kidnapping. However, the jury was instructed with regard to the kidnapping charge that a required element for defendant to be convicted of first degree kidnapping was that the victim had been "seriously injured or not released in a safe place." There was no reference to the sexual assault in the jury instructions. This assignment of error is overruled.
Defendant also contends the charge of kidnapping was elevated to first degree based on the felonious assault, thereby violating double jeopardy. We disagree. As we have reversed defendant's conviction for assault inflicting serious bodily injury, the assault which we must examine is assault by strangulation. This assault is clearly distinct from the crime of kidnapping in the first degree and thus this assignment of error is overruled.
K.L.A.
With respect to the charges in which K.L.A. is alleged to have been the victim, the State's evidence tended to show on 5 October 2006, K.L.A. was pregnant and working as a prostitute. At approximately 8:00 a.m. on that date, she was approached by a man, identified as defendant, who told her that he wanted oral sex. He took her to Peacock Park. They went to the dugout at the park and defendant gave K.L.A. some money. She attempted to perform the sex act but defendant did not get an erection. He picked up K.L.A. and slammed her down on the concrete floor of the dugout twice. Her head was cracked open and she began to lose consciousness. Defendant put his hands around her neck. When she regained consciousness, defendant and the money were gone. She was bleeding from her head and vaginal area. Later, she went to the emergency room. A few days later, she went into premature labor.
Defendant contends the trial court erred in denying his motion to dismiss the charge of common law robbery against K.L.A., arguing the evidence was insufficient to show that the force which he used was for the purpose of taking K.L.A.'s property. He contends the violence was a reaction to his inability to achieve an erection, and that there was insufficient evidence to show that he was the person who took K.L.A.'s property.
Taken in the light most favorable to the State, the evidence tends to show that defendant forcibly slammed K.L.A. onto the concrete floor of the dugout, cracked her head open, and strangled her, after which she lost consciousness and awoke to find defendant and her money gone. Her purse, which had been in defendant's vehicle, was gone as well. This evidence is adequate for a reasonable mind to draw the conclusion that defendant took K.L.A.'s property by the use of force. This assignment of error is overruled.
*427 Defendant next contends the trial court erred in denying his motion to dismiss the charge of assault inflicting serious bodily injury on K.L.A. We believe the State's evidence with respect to the injuries inflicted upon K.L.A. is substantial to show the infliction of serious bodily injury as defined by N.C.G.S. § 14-32.4(a). K.L.A. sustained a puncture wound to the back of her scalp and a parietal scalp hematoma. Additionally, she went into premature labor as a result of the attack. This was sufficient evidence for a reasonable mind to conclude that she was placed at substantial risk of death and suffered serious bodily injury within the definition of N.C.G.S. § 14-32.4(a). This assignment of error is overruled.
Defendant next contends the trial court erred in denying his motion to dismiss the charge of assaulting K.L.A. with a deadly weapon inflicting serious injury. As he did with respect to K.N.J.W., defendant contends that there was insufficient evidence that a deadly weapon was used in the assault. Again, we disagree.
K.L.A. was a small-framed, pregnant woman with a cocaine addiction. She testified that defendant used his hands to throw her onto the concrete floor, cracking her head open. Defendant also put his hands around her neck. Defendant's attacks on K.L.A. using his hands, or his hands in combination with the concrete floor, would be adequate to allow a reasonable mind to draw the conclusion that defendant's hands were used as a deadly weapon in the assault. This assignment of error is overruled.
Defendant assigns error to the denial of his motion to dismiss the charge of first degree kidnapping of K.L.A. For the same reasons discussed regarding his similar contention with respect to such charge in which L.T. was alleged to be the victim, we reject his contentions and find no error in the submission of such charge to the jury.
Defendant also contends the felonious assault was used to elevate the kidnapping charge to first degree in violation of double jeopardy. However, as discussed in the case of K.N.J.W., the two offenses each contain an additional element that the other does not. Thus, we overrule this assignment of error.
Finally, defendant contends the trial court erred in sentencing him for both assaulting K.L.A. with a deadly weapon inflicting serious injury and assaulting her inflicting serious bodily injury. The State concedes that defendant should only have been sentenced for one of the above crimes under State v. Ezell, 159 N.C.App. 103, 111, 582 S.E.2d 679, 685 (2003) (holding that a conviction and sentence for both assault with a deadly weapon inflicting serious injury and assault inflicting serious bodily injury for the same conduct was a violation of double jeopardy). Thus, we must vacate the judgment entered upon defendant's conviction of assaulting K.L.A. inflicting serious bodily injury in 06 CSR 57321, count 14.
C.D.S.
With respect to the charges in which C.D.S. is alleged to be the victim, the State's evidence tended to show that on 25 May 2006 C.D.S. was working as a prostitute on the corner of George Street. Defendant stopped his vehicle there and told C.D.S. to get in. C.D.S. got into defendant's vehicle and defendant drove her into some woods. Defendant gave C.D.S. money which she placed in her bra and she began to perform a sex act. When the sexual act was finished, defendant began punching C.D.S. He ordered her to take her clothes off, which she did. She feared she would die. He went through her clothes and then told her to run. She fled and defendant left in his vehicle.
Defendant contends the trial court erred in denying his motion to dismiss the charge of common law robbery against C.D.S. because he argues there was insufficient evidence that he took C.D.S.'s property. His argument has no merit. The State's evidence shows that after beating C.D.S. and ordering her to remove her clothes, he went through her clothing and told her to give him the money he had given her earlier. He then told her to run or he would "get her." The evidence was sufficient to show that defendant placed C.D.S. in such fear as to cause her to flee leaving the property with him. This assignment of error is overruled.
*428 CONCLUSION
We have carefully examined defendant's remaining assignments of error and conclude that they have been abandoned pursuant to N.C.R.App. P. 28(b)(6) (2009) (amended Oct. 1, 2009). For the reasons stated above, we must vacate defendant's conviction of assaulting K.L.A. inflicting serious injury in 06 CSR 57321, count 14; defendant's conviction of assaulting L.T. by strangulation in 06 CSR 57321, count 19; and defendant's conviction of assaulting K.N.J.W. inflicting serious bodily injury in 06 CSR 57025, count 3. Defendant's conviction of assaulting M.L.W. inflicting serious bodily injury in 06 CSR 57321, count 9 is reversed. Cases 06 CSR 57321, counts 17,18 and 20 are remanded for resentencing. As to all of the remaining counts, we find no error.
07 CRS 7397 1 No error.
06 CRS 57320 2 No error.
06 CRS 57025 3 Vacated.
06 CRS 57025 4 No error.
06 CRS 57320 5 No error.
06 CRS 57321 6-7 No error.
06 CRS 57321 8 No error.
06 CRS 57321 9 Reversed.
06 CRS 57321 10 No error.
06 CRS 57321 11 No error.
06 CRS 57321 13 No error.
06 CRS 57321 14 Vacated
06 CRS 57321 15 No error.
06 CRS 57321 16 No error.
06 CRS 57321 17 Remanded for resentencing.
06 CRS 57321 18 Remanded for resentencing.
06 CRS 57321 19 Vacated.
06 CRS 57321 20 Remanded for resentencing.
06 CRS 57321 21 No error.
Judges HUNTER and BRYANT concur.
NOTES
[1] Each of the five alleged victims will be referred to by initials in order to protect their identities. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324742/ | STATE OF NORTH CAROLINA
v.
ROBERT BOBBY PARHAM II
No. COA09-791.
Court of Appeals of North Carolina.
Filed December 22, 2009.
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.
Sue Genrich Berry for defendant-appellant.
BRYANT, Judge.
On 16 October 2008, a jury convicted defendant Robert Bobby Parham II of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury and first-degree burglary. The jury also found that defendant was a violent habitual felon. The trial court imposed sentences of life in prison without the possibility of parole for each offense. Defendant appeals. As discussed below, we find no prejudicial error.
Facts
The evidence at trial tended to show the following. On 25 May 2006, defendant's estranged wife Tessa Jones was living with Barry Thornton in Durham. That evening, at about 11:30 p.m., Jones and Thornton were awakened by a loud noise. Frightened, Jones grabbed her cell phone and hid in the closet. When she heard defendant speaking to Thornton, Jones called 911. Defendant then ordered Jones to come out of the closet and when she did, defendant stabbed her in the back, thigh and head with a butcher knife.
When police officers arrived, they heard a woman screaming and saw a side door to the apartment had been kicked in. Defendant shouted that he would kill Jones if the officers entered the bedroom. The officers talked defendant into releasing Thornton from the bedroom as Jones screamed in agony. Once defendant allowed the officers to enter the bedroom, they found defendant seated on the bed and Jones lying on the floor, barely breathing and gurgling blood. Defendant presented evidence from psychiatrist Dr. George Corvin, who opined that, because of defendant's mental condition, he lacked the ability to form plans with an understanding of the likely consequences of his actions.
On appeal, defendant made three assignments of error and lists each in his brief to this Court: the trial court erred in denying his request to instruct the jury on the defense of diminished capacity to the (I) assault with a deadly weapon with intent to kill inflicting serious injury and (II) burglary charges, and (III) in failing to properly instruct the jury on expert witness testimony. However, in his brief, defendant concedes the second and third issues and abandons his related assignments of error. Having carefully considered defendant's remaining argument and assignment of error, we find no prejudicial error.
Analysis
Defendant argues the trial court erred to his prejudice in denying his request for an instruction on diminished capacity as a defense to the assault with a deadly weapon with intent to kill inflicting serious injury charge. We disagree.
"It is the duty of the trial court generally to declare and explain the law arising on the evidence and to instruct according to the evidence." State v. Clark, 324 N.C. 146, 160, 377 S.E.2d 54, 63 (1989) (citation and quotation marks omitted). "It is a well-established rule that when a request is made for a specific instruction which is correct in itself and supported by evidence, the trial judge, while not required to parrot the instructions . .. must charge the jury in substantial conformity to the prayer." Id. at 160-61, 377 S.E.2d at 63 (citation and quotation marks omitted).
However, in order to prevail on appeal, a defendant asserting an error which does not implicate his constitutional rights must show more than error. He must also show prejudice, which is defined as "a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2009). The defendant bears the burden of showing prejudice. Id.
"The defense of diminished capacity applies to the element of specific intent to kill which is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury." State v. Williams, 116 N.C. App. 225, 231, 447 S.E.2d 817, 821 (1994), disc. review denied, 339 N.C. 741, 454 S.E.2d 661 (1995). The trial court in Williams erred when it failed to give an instruction on diminished capacity which was supported by the evidence. Id. at 232, 447 S.E.2d at 821. We held that "[b]ecause [the] defendant's state of mind was a crucial issue in the charge of assault with a deadly weapon with intent to kill inflicting serious injury, a reasonable possibility exists that absent the error the jury would have reached a different result." Id.
Here, defendant presented evidence from Dr. Corvin that would have supported an instruction on diminished capacity and the trial court erred in failing to give such an instruction on the assault charge.[1] However, the trial court did instruct on diminished capacity in charging the jury on attempted first-degree murder, which is also a specific intent crime:
Diminished Capacity. You may find there is evidence which tends to show that the Defendant lacked mental capacity at the time of the acts alleged in this case. If you find that the Defendant lacked mental capacity, you should consider whether this lack of mental capacity affected his ability to formulate the specific intent which is required for a conviction of attempted first degree [sic] murder.
In order for you to find Defendant guilty of attempted first degree [sic] murder, you must find beyond a reasonable doubt that he attempted to kill Tessa Jones with malice and in the execution of an actual specific intent to kill formed after premeditation and deliberation. If as a result of lack of mental capacity the Defendant did not have the specific intent to kill Tessa Jones formed after premeditation and deliberation, he is not guilty of attempted first degree [sic] murder.
Therefore, I charge that if, upon considering the evidence with respect to the Defendant's lack of mental capacity, you have a reasonable doubt as to whether the Defendant formulated the specific intent required for conviction of attempted first degree [sic] murder, you will not return a verdict of guilty as to this charge.
See State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004) ("The elements of attempted first-degree murder are: (1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing."), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). The defense of diminished capacity applies to the same element in both assault with a deadly weapon with intent to kill inflicting serious injury and attempted first-degree murder: a specific intent to kill. Here, the attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury charges are both based on the same action: defendant's knife attack on Jones. The jury, having received the proper diminished capacity instruction, convicted defendant of attempted first-degree murder, indicating they rejected defendant's defense of diminished capacity in considering that charge. Thus, defendant cannot show a reasonable possibility exists that the jury would have accepted the same defense in connection with his charge of assault with a deadly weapon with intent to kill inflicting serious injury which arose from the same facts. While defendant has shown error in the trial court's denial of his instruction request, he has failed to show that this error prejudiced him.
NO PREJUDICIAL ERROR.
Judges HUNTER, Robert C., and JACKSON concur.
Report per Rule 30(e).
NOTES
[1] While the State does not expressly concede that the trial court erred in failing to instruct on diminished capacity, its brief does not contend that the trial court's action was correct and instead focuses solely on the issue of prejudice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324745/ | 689 S.E.2d 825 (2010)
LUCKY
v.
The STATE.
No. S09A1527.
Supreme Court of Georgia.
February 8, 2010.
*826 Mack & Harris, Robert L. Mack, Stockbridge, for appellant.
Jewell C. Scott, Dist. Atty., Anece B. White, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., David A. Zisook, Asst. Atty. Gen., for appellee.
BENHAM, Justice.
Appellant Rico Antonio Lucky was convicted of and sentenced for felony murder with armed robbery as the underlying felony, assault with a deadly weapon, and possession of a firearm during the commission of a crime. On appeal, he challenges the sufficiency of the evidence supporting his convictions and takes issue with the trial court's decisions with regard to the guilty verdicts on which sentence was imposed.[1]
On July 28, 2004, Edward Rivers, Jr., was fatally shot after answering a knock on the door of the Clayton County apartment he shared with a friend. The friend, in the bathroom when the victim was shot, heard two people rummaging through the apartment after the shooting and discovered his and the victim's wallets were missing after the two intruders left. Neighbors told police they saw two men running from the building where the victim's apartment was located to a green Volkswagen Jetta with damage on one side. Appellant Rico Lucky, the owner *827 of a damaged green Jetta, contacted Clayton County police and stated he had visited the apartment complex where the victim lived on the day of the shooting. He also told police that a passenger in his car, DeJuan Curinton,[2] had told appellant after the shooting that he had shot the victim. Another passenger in Lucky's car testified that he, appellant, and a third man known only as Link had gone to the apartment complex to visit Curinton and to purchase marijuana through him. The passenger also testified that Link and Curinton had gone to the victim's apartment and returned to the car where appellant and the passenger awaited them. A resident of the apartment complex testified that two days before the victim was shot, appellant had admonished the victim for being involved with Curinton's girlfriend; that the night before the shooting, the victim and Curinton had talked in the complex's parking lot and the witness heard the girlfriend's name mentioned; and that, just before the victim was shot, appellant and Curinton talked privately for about five minutes.
Several weeks after Curinton was arrested and charged with murder, appellant was in Sarasota County, Florida, where he flagged down a deputy sheriff and told him he wanted to talk with someone about a Georgia homicide. Appellant told a Sarasota County detective that he had caused the victim's homicide by exploiting a rift between Curinton and the victim, and had used Curinton to do his "dirty work."
1. Appellant maintains the evidence was insufficient to support his convictions because the State presented only the uncorroborated testimony of his co-defendant, which is not sufficient to support a felony conviction (OCGA § 24-4-8), and because the State's evidence only showed appellant's mere presence at the scene of the crimes. Our synopsis of the State's case, in which we construed the evidence in a light most favorable to the verdict, supports a different conclusion. The State's evidence implicating appellant, including appellant's statements to law enforcement officers, was not limited to the testimony of co-defendant Curinton and showed appellant was a party to the crimes in that he intentionally aided and abetted the commission of the crimes and intentionally advised, encouraged, and counseled another to commit the crimes. OCGA § 16-2-20(b)(3), (4). Appellant's "[p]resence, companionship, and conduct before and after [the] offense[s were] committed are circumstances from which participation in the criminal act may be inferred. [Cits.]" Curinton v. State, supra, 283 Ga. at 228-229, 657 S.E.2d 824. The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty as a party to the crimes with which he was charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends the trial court erred when it sentenced appellant to life imprisonment on one of the two felony murder convictions instead of on the malice murder conviction. Appellant asserts that, had he been convicted and sentenced on the malice murder conviction, all other convictions except possession of a firearm during the commission of a crime[3] would have merged as a matter of law into the malice murder conviction.
Appellant is correct in his assertion that the trial court should have sentenced him on the malice murder conviction instead of the felony murder conviction. "When the jury returns guilty verdicts on both felony murder and malice murder charges in connection with the death of one person, it is the felony murder conviction, not the malice murder conviction that is `simply surplusage' [cits.], and stands vacated by operation of law." Williams v. State, 270 Ga. 125(4), 508 S.E.2d 415 (1998).
*828 To determine the validity of appellant's contention that, had he been sentenced for malice murder, the remaining crimes for which he was convicted, other than the firearm possession conviction, would merge into the malice murder conviction, we consider OCGA § 16-1-7(a) and Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006). The statute provides a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offense (id. at 212, 636 S.E.2d 530), and prohibits a defendant from being convicted of more than one crime if one of the crimes is included in another. OCGA § 16-1-7(a)(1). In the case at bar, the two felony murder convictions are vacated as a matter of law upon a sentence being imposed for the malice murder conviction (Malcolm v. State, 263 Ga. 369(4), 434 S.E.2d 479 (1993)), and the conviction for aggravated assault (assault with a deadly weapon) for which appellant received a 20-year sentence merges as a matter of fact into the malice murder conviction. Bell v. State, 284 Ga. 790(1), 671 S.E.2d 815 (2009). The armed robbery conviction, formerly merged into the felony murder/armed robbery conviction for which appellant was sentenced, is available for imposition of sentence because it does not merge into the malice murder conviction as a matter of law or fact. Hutchins v. State, 284 Ga. 395, 396, 667 S.E.2d 589 (2008). The conviction for aggravated assault with intent to rob, merged by the trial court into the felony murder/armed robbery conviction, is also revived.[4]
With the armed robbery conviction back in play, we apply the "required evidence" test of Drinkard v. Walker to determine if the conviction for aggravated assault with intent to rob merges into the conviction for armed robbery. The "required evidence" test examines whether each offense requires proof of a fact which the other does not. Drinkard v. Walker, supra, 281 Ga. at 215, 636 S.E.2d 530.[5] Armed robbery (OCGA § 16-8-41) requires an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another. Aggravated assault with intent to rob (OCGA § 16-8-21(a)) requires an assault upon the victim, with the intent to rob. An assault takes place when a perpetrator either attempts to commit a violent injury to the person of the victim or commits an act which places the victim in reasonable apprehension of immediately receiving a violent injury.
Armed robbery contains a provision, that property be taken, that is not a fact which must be proved in aggravated assault with intent to rob. However, aggravated assault with intent to rob does not contain a provision that is not a fact which must be proved in armed robbery. Both crimes require proof of an intent to rob, and the "assault" requirement of aggravated assault is the equivalent of the armed robbery requirement that the taking be "by use of an offensive weapon" since "use of an offensive weapon" takes place when the weapon is used as an instrument of actual or constructive force that is, actual violence exerted on the victim or force exerted upon the victim by operating on the victim's fears of injury to the person, property, or character of the victim. Maddox v. State, 174 Ga.App. 728, 729, 330 S.E.2d 911 (1985). See also Pope v. State, 201 Ga. App. 537, 411 S.E.2d 557 (1991). In order to establish that the taking was "by use of an offensive weapon," the State must establish that the defendant's acts created a reasonable apprehension on the part of the victim that an offensive weapon is being used. *829 Moody v. State, 258 Ga. 818(1), 375 S.E.2d 30 (1989). Stated in terms of aggravated assault, "use of an offensive weapon" takes place when the weapon is used to commit a violent injury to the person of the victim or to place the victim in reasonable apprehension of immediately receiving a violent injury. Since the "assault" element of aggravated assault with intent to rob is contained within the "use of an offensive weapon" element of armed robbery and both crimes share the "intent to rob" element, there is no element of aggravated assault with intent to rob that is not contained in armed robbery. Therefore, under Drinkard, the aggravated assault with intent to rob conviction merges into the armed robbery conviction.
In sum, the sentence of life imprisonment imposed on appellant should have been imposed on his conviction for malice murder rather than the conviction for felony murder/armed robbery. The conviction and sentence for felony murder/armed robbery must be vacated and, upon imposition of sentence for the malice murder conviction, the sentence imposed for aggravated assault with a deadly weapon must be vacated since that conviction merges as a matter of fact into the malice murder conviction, and the merger of the armed robbery conviction into the felony murder/armed robbery conviction must be vacated and sentence imposed for the armed robbery conviction. The sentence for possession of a firearm during the commission of a crime remains intact.
Judgment affirmed in part and vacated in part and sentence vacated in part, and case remanded with direction.
All the Justices concur.
NOTES
[1] The crimes occurred on July 28, 2004, and the Clayton County grand jury returned a true bill of indictment against appellant and his co-defendant, DeJuan Curinton, on July 20, 2005. The indictment charged the two men with malice murder, felony murder/aggravated assault, felony murder/armed robbery, aggravated assault with intent to rob, aggravated assault with a deadly weapon, armed robbery, and possession of a weapon during the commission of a crime. The two men were tried together in a trial that commenced December 5, 2006, and concluded with the jury's return of guilty verdicts on all counts on December 8. The trial court sentenced appellant on December 11, 2006, to life imprisonment on the felony murder/armed robbery conviction, imposed a concurrent 20-year sentence for the aggravated assault conviction, and imposed a five-year consecutive sentence for the firearm conviction. The trial court determined that the remaining convictions merged into the felony murder/armed robbery conviction. Appellant's trial counsel filed a timely motion for new trial on December 11, 2006, as did appellate counsel on January 9, 2007. On July 13, 2007, appellate counsel filed a motion to withdraw the appellant's motion for new trial. New appellate counsel was appointed in February 2008 and filed a motion for out-of-time appeal, which was denied. On April 9, 2009, a second motion for out-of-time appeal was granted by the trial court upon finding that appellant's right to direct appeal had been frustrated by his former appellate counsel. A notice of appeal was filed timely on April 15, 2009, and the case was docketed in this Court on May 29, 2009. It was submitted for decision on the briefs. Appellant's motion to dismiss the District Attorney's appellate brief because it was not timely filed is denied.
[2] Appellant and DeJuan Curinton were named in the same indictment and were tried together in the Superior Court of Clayton County. The judgment of conviction entered against Curinton was affirmed by this Court in Curinton v. State, 283 Ga. 226, 657 S.E.2d 824 (2008).
[3] The other convictions were for felony murder/aggravated assault, felony murder/armed robbery, aggravated assault (assault with intent to rob), aggravated assault (assault with a deadly weapon), and armed robbery.
[4] As appellant acknowledges, the sentence imposed for the conviction of possession of a firearm during the commission of a crime remains intact.
[5] In Mercer v. State, 289 Ga.App. 606(3), 658 S.E.2d 173 (2008), the Court of Appeals stated the Drinkard "required evidence" test, but, by finding merger because "all the facts used to prove the offense of aggravated assault with intent to rob were used up in proving the armed robbery," appears to have applied the "actual evidence" test we disavowed in Drinkard. In Elamin v. State, 293 Ga.App. 591(1), 667 S.E.2d 439 (2008), the Court of Appeals purported to apply the Drinkard test but did not complete the Drinkard analysis, finding only that aggravated assault with intent to rob required proof of at least one additional fact which robbery by intimidation did not require. The court never addressed whether robbery by intimidation required proof of at least one additional fact which aggravated assault did not require. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324750/ | CORINDA GREENE, Plaintiff,
v.
LORENZO RICHARDSON, Defendant.
No. COA09-271.
Court of Appeals of North Carolina.
Filed January 5, 2010.
This case not for publication
No appellee's brief filed.
Lorenzo Richardson, pro se.
STROUD, Judge.
On appeal, defendant Lorenzo Richardson "is seeking for relief/dismissal of the Child Support `order' which was entered on Nov,26,2008 (sic) by District Court Judge Kristen Ruth (sic)[,]" which set defendant's child support obligation at $147.00 per month. Defendant states in his brief that "[a] bias hearing was held on Jan,28,2009 and the Modification was denied." Defendant further states that he then filed "Notice of Appeal with the Clerk of Superior Court. After several denied motions, [he then] filed an Record on Appeal (sic) with the Court of Appeals."
According to Rule 9 of the North Carolina Rules of Appellate Procedure, the record on appeal shall contain "a copy of the judgement, order, or other determination from which appeal is taken[.]" N.C.R. App. P. 9(a)(1)(h). "Since entry of judgment is jurisdictional this Court is without authority to entertain an appeal where there has been no entry of judgment." Searles v. Searles, 100 N.C. App. 723, 725, 398 S.E.2d 55, 56 (1990) (citation omitted). Accordingly, when "the record on appeal does not include a judgment, [then] failure to include such in the record on appeal subjects the appeal to dismissal." Id. at 724, 398 S.E.2d at 56 (citing N.C.R. App. P. 9(a)(1)). See Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738, ("[T]his Court will dismiss an appeal if the judgment or order does not appear in the record on appeal."), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997). See also Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) ("A jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal"). "Appellate review is based `solely upon the record on appeal,' N.C.R. App. P. 9(a); it is the duty of the appellants to see that the record is complete." Collins v. Talley, 146 N.C. App. 600, 603, 553 S.E.2d 101, 102 (2001) (citation omitted).
Here, there is no 26 November 2008 child support order nor a 28 January 2009 order from a "bias hearing" in the record; only a child support transmittal order from 26 November 2008 is in the record. Therefore, defendant did not properly include any judgment or order from which appeal was taken as required by N.C.R. App. P. 9(a)(1)(h).
Even if defendant had included an order in the record, defendant also never properly filed or served notice of appeal. Rule 3(c) of the North Carolina Rules of Appellate Procedure, "Time for taking appeal," states, in pertinent part, the following:
In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure; or
(2) within 30 days after service upon the party of a copy of the judgment if service was not made within that three-day period . . . .
N.C.R. App. P. 3(c). "The provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal." Abels, 126 N.C. App. at 802, 486 S.E.2d at 737 (citation omitted).
Here, even assuming that orders from 26 November 2008 and/or 28 January 2009 exist, there is no notice of appeal from either or both of these orders included in the record. The only notice of appeal included in the record is a "Notice of Appeal to District Court" form for appeals from Small Claims Court filed 6 February 2009. Even though this notice of appeal lists the date of entry of judgment as 28 January 2009, the same as defendant's "bias hearing," defendant's arguments seem to address the alleged child support order entered on 26 November 2008. It is not clear from what order defendant has attempted to appeal, as the notice is for an appeal from Small Claims Court to the District Court, not a notice of appeal to this Court from a district court's determination regarding defendant's child support obligation. In addition, if defendant was attempting to appeal a November 2008 child support determination, as his arguments seem to suggest, his notice of appeal was filed much more than 30 days after the alleged entry of the child support order. Given the record before us, we hold that defendant did not properly file notice of appeal within the time as prescribed by N.C.R. App. P. 3(c). We therefore dismiss defendant's appeal based upon these jurisdictional defaults. Dogwood Dev. & Mgmt. Co., LLC, 362 N.C. at 197, 657 S.E.2d at 365.
DISMISSED.
Judges GEER and ERVIN concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324754/ | 386 S.C. 641 (2009)
689 S.E.2d 638
Gene Richard HUGHES, Jr., Respondent,
v.
WESTERN CAROLINA REGIONAL SEWER AUTHORITY, Appellant.
No. 4625.
Court of Appeals of South Carolina.
Heard May 27, 2009.
Decided October 22, 2009.
Withdrawn, Substituted, and Refiled on February 9, 2010.
*643 K. Lindsay Terrell, of Greenville, for Appellant.
David Alexander and Manning Y. Culbertson, both of Greenville, for Respondent.
THOMAS, J.
In this tort action, Western Carolina Regional Sewer Authority (WCRSA) appeals (1) the trial court's denial of motions for directed verdict and judgment notwithstanding the verdict, based on an alleged lack of proximate cause; (2) the trial court's instruction to the jury; and (3) the trial court's denial of a motion to set-off the verdict by the amount the plaintiff received in settling with a negligent third party. We affirm in part, reverse in part, and remand.
*644 FACTS
In December 2005, Gene Richard Hughes, Jr. was injured in an automobile accident consisting of two separate collisions. A WCRSA employee, Timothy Moser, caused the initial collision, which left Hughes uninjured but caused his vehicle to become stopped in an intersection. Roughly ten minutes after this initial collision, a third driver, James Coker, while drunk, negligently drove through the intersection, collided with Hughes, and caused him extensive injury.
On the night of the accident, an ice storm caused widespread power outages in Greenville County. In order to keep the sewer pumps running, WCRSA charged employees Timothy Moser and Benjie Burns with delivering fuel to emergency generators. WCRSA provided Moser and Burns with a Ford F350 pickup truck temporarily outfitted with a two-hundred-gallon, diesel-fuel tank. While making a delivery, Moser approached a four-way intersection where the power outage had caused the traffic signals to become disabled. At the same time, Hughes, after having made a complete stop at the intersection, made a left turn in front of Moser's lane of travel. Moser failed to stop at the intersection and collided with Hughes's vehicle. The collision caused Moser's vehicle to proceed a short distance through the intersection and come to a rest on the median. Hughes's vehicle came to a stop in the intersection.
Although Hughes stated he was "shaken up" as result of the collision, neither he nor his passenger was injured. Because the traffic signals and street lights were out, a witness to the accident parked her vehicle with its headlights pointed to illuminate Hughes's vehicle stopped in the intersection. During the minutes immediately following the accident, Hughes remained in the intersection outside of his vehicle.
Approximately ten minutes after the initial accident, Coker drove through the intersection, striking Hughes and his vehicle. Coker was intoxicated and driving a vehicle owned by his employer, Operator's Unlimited, Inc. As a result of this second collision, Hughes sustained extensive injuries to his leg. Coker later pled guilty to his second conviction for driving under the influence and admitted responsibility for the second collision.
*645 Hughes brought suit against WCRSA and Coker.[1] During trial, Hughes entered a settlement agreement and covenant not to execute with Coker. WCRSA unsuccessfully moved the court for a directed verdict. Over WCRSA's objection, the trial court instructed the jury on various statutes dealing with WCRSA's alleged duty to carry emergency signaling devices. The jury returned a verdict of $225,000 for Hughes. The trial court denied WCRSA's motions for judgment notwithstanding the verdict (JNOV) and to have the verdict off-set or reduced by the $80,000 Hughes received from the settlement with Coker. This appeal followed.
ISSUES ON APPEAL
I. Did the trial court err in denying Hughes's motions for directed verdict and JNOV?
II. Did the trial court err by instructing the jury on sections 56-5-5060 to -5100 of the South Carolina Code (2006)?
III. Did the trial court err in failing to set-off or reduce the verdict entered against WCRSA by the amount Hughes received from Coker?
LAW/ANALYSIS
Because we find it dispositive of this matter, it is only necessary that we address whether the trial court erred in instructing the jury. WCRSA alleges the trial court erred in instructing the jury on sections 56-5-5060 to -5100 of the South Carolina Code (2006).[2] We agree.
WCRSA's alleged error pertains primarily to instructing the jury on (1) section 56-5-5060, requiring, inter alia, "motor trucks" to carry flares or reflective devices and (2) section 56-5-5070 of the South Carolina Code (2006), which requires a *646 vehicle transporting "inflammable liquids" to carry reflective devices.[3]
This court will not reverse the decision of the trial court as to particular jury instructions absent an abuse of discretion. Cole v. Raut, 378 S.C. 398, 405, 663 S.E.2d 30, 33 (2008); Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). A trial court abuses its discretion when the ruling is not supported by the evidence or is based on an error of law. Clark, 339 S.C. at 389, 529 S.E.2d at 539. However, an erroneous jury instruction is not reversible error unless it causes prejudice to the appealing party. Raut, 378 S.C. at 405, 663 S.E.2d at 33; Ellison v. Simmons, 238 S.C. 364, 372, 120 S.E.2d 209, 213 (1961).
When interpreting a statute, the "cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature." Hardee v. McDowell, 381 S.C. 445, 453, 673 S.E.2d 813, 817 (2009); Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 122, 542 S.E.2d 736, 739 (Ct.App.2001). "A statute should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute." Ga.-Carolina Bail Bonds, Inc. v. County of Aiken, 354 S.C. 18, 22, 579 S.E.2d 334, 336 (Ct.App.2003).
When confronted with an undefined term, the court must interpret it in accordance with its usual and customary meaning. Branch v. City of Myrtle Beach, 340 S.C. 405, 409-10, 532 S.E.2d 289, 292 (2000); State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 581 (Ct.App.1999). However, this court will consider the language of the particular clause in which the term appears and also its meaning in conjunction with the purpose of the whole statute. See Hinton v. S.C. Dep't of *647 Prob., Parole & Pardon Servs., 357 S.C. 327, 332-33, 592 S.E.2d 335, 338 (Ct.App.2004) ("Terms must be construed in context and their meaning determined by looking at the other terms used in the statute."). Statutes must be read as a whole and sections that are part of the same statutory scheme must be construed together. Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992); Hinton, 357 S.C. at 332-33, 592 S.E.2d at 338. Further, the maxim expressio unius est exclusion alerius provides that the expression of one thing implies the exclusion of another or its alternative. State v. Leopard, 349 S.C. 467, 473, 563 S.E.2d 342, 345 (Ct.App.2002).
A. Section 56-5-5060
Section 56-5-5060 provides: "No person shall operate any motor truck, passenger bus or truck tractor upon any highway outside of the corporate limits of municipalities at any time from a half hour after sunset to half hour before sunrise unless there shall be carried in such vehicle" a specified quantity of signaling devices, flares, lanterns, or red-burning fuses.
The applicability of this statute hinges upon whether WCRSA's vehicle is a "motor truck." This chapter of the Code does not define the term "motor truck"; however, the term "truck" is defined as "[e]very motor vehicle designed, used or maintained primarily for the transportation of property." S.C.Code Ann. § 56-5-200 (2006). WCRSA argues the trial court erred in interpreting motor truck to be synonymous with the defined term truck. We agree.
In this case, when addressing whether truck and motor truck were synonymous, the trial court held because "there is no distinction between truck and motor truck in the definition section, I don't know how else to interpret it, except to think that they must be one in the same." However, a review of the statute as a whole, as well as reading the term motor truck in context with the remainder of the statute, does not support the trial court's interpretation.
In addition to the section in question, the term motor truck appears in section 56-5-4150 of the South Carolina Code (2006), providing in pertinent part:
A private motor truck or truck tractor of more than twenty-six thousand pounds gross weight and a for-hire motor *648 truck or truck tractor must have the name of the registered owner or lessor on the side clearly distinguishable at a distance of fifty feet. These provisions do not apply to two-axle straight trucks hauling raw farm and forestry products.
As the legislature specifically defines the term truck and clearly employs the term truck in other sections of the statute, the maxim expressio unius est exclusion alerius suggests motor truck and truck are not synonymous. See Leopard, 349 S.C. at 473, 563 S.E.2d at 345 (providing that the expression of one thing implies the exclusion of another). Had the legislature intended section 56-5-5060 to encompass trucks, we must surmise the drafters would not have elected to employ the term motor truck.[4] Moreover, considering the practices of statutory construction demonstrate the two terms are not to be construed as synonymous, motor truck must be given its plain and ordinary meaning. See Branch, 340 S.C. at 410, 532 S.E.2d at 292 (stating that terms must be given their natural and customary meanings). Naturally, the addition of the adjective motor qualifies the term to a narrower class of vehicles than merely a truck. The common meaning of motor truck is an automotive truck used especially for the transportation of goods. See Merriam-Webster English Dictionary 760, 466 (10th ed. 1993) (defining motor truck as a vehicle used for the transportation of freight, and defining freight as goods to be shipped). Further, the term motor truck appears in sections applicable to larger load-bearing and load-towing vehicles suggesting that a motor truck is a truck for the purposes of transporting freight being larger in size or weight than that of a common pickup truck, such as the WCRSA vehicle here. Accordingly, section 56-5-5060 does not require WCRSA to carry flares or reflective devices.
B. Section 56-5-5070
Section 56-5-5070 provides:
No person shall operate at the time and under the conditions stated in § 56-5-5060 any motor vehicle used in the transportation of inflammable liquids in bulk or transporting compressed inflammable gases unless there shall be carried *649 in such vehicle three red electric lanterns meeting the requirements stated in § 56-5-5060, and there shall not be carried in any such vehicle any flare, fuses or signal produced by a flame.
Whether section 56-5-5070 imposes a duty on WCRSA to carry warning devices hinges upon the interpretation of the term "inflammable liquid." This chapter of the Code does not define the term inflammable liquid; however, it does define the term "flammable liquid" as "any liquid which has a flash point of 70° F., or less, as determined by a Tagliabue or equivalent closed-cup test device." S.C.Code Ann. § 56-5-350 (2006). The general provisions of statutory construction would mandate that when the legislature employs a term other than one specifically defined, the implicit intent is that the undefined term has a different meaning. Leopard, 349 S.C. at 473, 563 S.E.2d at 345 (providing that the expression of one thing implies the exclusion of another). However, of paramount significance in this situation is that the defined termflammable liquidis used nowhere in this chapter outside of the definition section. Rather, the only similar term employed is inflammable liquid. We remain acutely mindful that the legislature employed different terms; however, the common definition of inflammable is flammable. See Merriam-Webster English Dictionary 598 (10th ed. 1993) (defining inflammable as flammable); see also Branch, 340 S.C. at 409-10, 532 S.E.2d at 292 (stating that terms must be given their natural and customary meanings); Ga.-Carolina Bail Bonds, 354 S.C. at 22, 579 S.E.2d at 336 ("All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered from the language used ... [and t]he legislature's intent should be ascertained primarily from the plain language of the statute."). Thus, in order to construe the statute to be consistent and give the terms their natural and common meanings, we look to the legislative definition of flammable.
Because we interpret inflammable and flammable to be synonymous, section 56-5-5070 applies only to vehicles that carry liquids with a flash point of seventy degrees Fahrenheit or lower, in bulk. At trial, WCRSA inquired as to the existence of evidence that the liquid at issue, diesel-fuel, fell within the ambit of the statute. To this, the trial court simply replied it was a "reasonable inference." However, upon review *650 of the record, we find no evidence to indicate the diesel-fuel being transported by WCRSA was actually a flammable or inflammable liquid. Notwithstanding that the truck in this case is not one described by section 56-5-5060, the trial court's assumption that the carrying of diesel-fuel implicated section 56-5-5070 is unsupported by the evidence and was therefore error.
As the trial court's erroneous instructions could have led the jury to infer WCRSA had a duty to carry and use warning devices, the instructions had a reasonable chance of influencing the jury's verdict and prejudicing WCRSA. Therefore, the trial court's instructions amount to reversible error.[5]See Raut, 378 S.C. at 405, 663 S.E.2d at 33 (stating that improper jury instruction is not reversible error unless it causes prejudice to the appealing party).
CONCLUSION
Accordingly, the ruling of the trial court is
REVERSED and REMANDED.
HEARN, C.J., and KONDUROS, J., concur.
NOTES
[1] Hughes also brought suit against Moser individually and Coker's employer, Operator's Unlimited, Inc.; however, these parties were dismissed.
[2] These sections provide generally that certain vehicles are required to carry various warning, lighted, or reflective signals, to be employed in case the vehicle becomes disabled.
[3] The various other sections on which the trial court instructed the jury deal specifically with how and where to set the specified warning devices and provide in pertinent part:
Whenever any motor truck, passenger bus, truck tractor, trailer, semitrailer or pole trailer is disabled upon the traveled portion of any highway or the shoulder thereof outside of any municipality at any time when lighted lamps are required on vehicles, the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway, except as provided in § 56-5-5100.
S.C.Code Ann. § 56-5-5090 (2006).
[4] The term motor truck is used only four times in the South Carolina Code. See S.C.Code Ann. §§ 12-36-2570, 56-5-4150, 56-5-5060, 56-5-5090 (2006).
[5] In light of this decision, we decline to address the remaining issue on appeal. Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an appellate court need not address remaining issues when a decision on a prior issue is dispositive); Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993) (holding the appellate court need not address all issues when decision on a prior issue is dispositive). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324755/ | 689 S.E.2d 562 (2010)
STATE of North Carolina
v.
Michael Burnette SINGLETON, Defendant.
No. COA09-263.
Court of Appeals of North Carolina.
January 5, 2010.
Attorney General Roy A. Cooper, III, by Special Counsel Hilary S. Peterson, for the State.
Robert W. Ewing, Clemmons, for defendant-appellant.
STROUD, Judge.
Defendant appeals from an order requiring him to enroll in satellite-based monitoring (SBM) pursuant to N.C. Gen.Stat. § 14-208.40B for the remainder of his natural life. Because the plain language of N.C. Gen.Stat. *563 § 14-208.40(a)(1), N.C. Gen.Stat. § 14-208.40B(c) and N.C. Gen.Stat. § 14-208.6(1a) requires enrollment in lifetime satellite-based monitoring for an offender who is convicted of an "aggravated offense," we reverse.
I. Factual background
On 5 May 2006, a warrant for defendant's arrest was issued, charging him with taking indecent liberties with a child pursuant to N.C. Gen.Stat. § 14-202.1(a)(1) (2005). At the time of the offense, defendant was age sixteen and the victim was age four. On 19 June 2006, a superceding indictment was issued, also charging defendant with taking indecent liberties with a child. On 21 August 2006, defendant pled guilty to a charge of taking indecent liberties with a child pursuant to N.C. Gen.Stat. § 14-202.1. Defendant had no prior record and was sentenced within the presumptive range based on prior record level I to imprisonment for not less than sixteen months and not more than twenty months, but this sentence was suspended and defendant was placed on probation for thirty-six months. Defendant was placed on intensive supervision for six months and was required to remain in high school, to complete the sex offender control program, and to register as a sex offender.
On 2 June 2008, the State filed a Petition for Judicial Findings as to Satellite-Based Monitoring, pursuant to N.C. Gen.Stat. § 14-208.40B (2007) for the trial court to order defendant to enroll in SBM. The State alleged that (1) the defendant is classified as a sexually violent predator pursuant to N.C. Gen.Stat. § 14-208.40B or; (2) the defendant is a recidivist or; (3) the offense of which defendant was convicted was an aggravated offense. The petition identified defendant's prior reportable conviction[1] for taking indecent liberties with a child as the basis for the request for SBM.
The trial court held the SBM determination hearing on 29 August 2008. The State presented testimony by Probation Officer Brian Holbrook, who was defendant's assigned probation officer. Officer Holbrook testified that defendant had not been assessed as a sexually violent predator, and that he had no prior convictions, so he was not a recidivist, but that defendant's conviction was for an "aggravated offense." Officer Holbrook testified that the victim was a 4 year old boy who was a friend of the family. On 20 April 2006, defendant and the victim were playing outside and then they went inside and, "long story short, there was anal penetration on a four year old boy." The court inquired "I guess as a result of the plea, it was reduced to indecent liberties?" Officer Holbrook answered, "Yes, Your Honor." Although the record does not contain defendant's STATIC 99 Risk Assessment, Officer Holbrook testified that the probation department had made a determination that defendant "is risked at a high."[2] Officer Holbrook noted that he could inform the *564 court "about his supervision if you'd like[,]" but the court inquired only as to whether defendant was registered, and Officer Holbrook said that defendant was registered as a sex offender. Defendant did not present any evidence. On 29 August 2008, the trial court entered an order finding that "The defendant (a) falls into one of the categories requiring satellite-based monitoring under G.S. 14-208.40 in that the offense of which the defendant was convicted was an aggravated offense." The trial court therefore ordered that defendant shall enroll in SBM for "the remainder of his natural life."
II. Grounds for Appellate Review
Defendant first argues that the court has jurisdiction over this appeal pursuant to N.C. Gen.Stat. § 7A-27(b)[3] and N.C. Gen. Stat. § 15A-1442[4]. In the alternative, defendant filed a petition for certiorari requesting review pursuant to N.C. Gen.Stat. § 15A-1444 (a1) (2007). The State does not contest that this Court has jurisdiction over this appeal, although the State argues that certiorari is not appropriate. However, defendant's argument as to the grounds for appellate review is well-taken, as the grounds for appeal are not entirely obvious. Although this Court has considered several appeals of orders for SBM under N.C. Gen. Stat. § 14-208.40B and N.C. Gen.Stat. § 14-208.40A, we have not addressed the basis for this Court's jurisdiction. Unfortunately, Chapter 14, Article 27A leaves many procedural questions as to SBM, including the manner of appeal, unanswered.
Generally, appeals based upon "errors committed in criminal trials and proceedings" are governed by Article 91 of Chapter 15A, the Criminal Procedure Act. N.C. Gen.Stat. § 15A-1401 (2007). Appellate jurisdiction in criminal appeals by a defendant and grounds for appeal in criminal cases are set forth in N.C. Gen.Stat. § 15A-1442 and N.C. Gen.Stat. § 15A-1444. "[A] defendant's right to appeal in a criminal proceeding is purely a creation of state statute. Furthermore, there is no federal constitutional right obligating courts to hear appeals in criminal proceedings." State v. Pimental, 153 N.C.App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
Generally, the right to appeal in criminal cases is set out in N.C. Gen.Stat. § 15A-1444 (2003). Under that statute, a defendant who pleads not guilty at trial may appeal the judgment itself as a matter of right. N.C. Gen.Stat. § 15A-1444(a). In addition, a defendant who was found guilty or who pled guilty or no contest has the right to appeal the following issues:
(1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant's prior record level under N.C. Gen.Stat. § 15A-1340.14 or the defendant's prior conviction level under N.C. Gen.Stat. § 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized by N.C. Gen.Stat. § 15A-1340.17 or § 15A-1340.23 for the defendant's class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant's motion to suppress; and (5) whether the trial court improperly denied the defendant's motion to withdraw his guilty plea.
State v. Brown, 170 N.C.App. 601, 606, 613 S.E.2d 284, 287 (quoting State v. Carter, 167 N.C.App. 582, 584, 605 S.E.2d 676, 678 (2004)), disc. review denied, 360 N.C. 68, 621 S.E.2d 882 (2005).
In Brown, this Court held that a defendant has no statutory right of appeal from an order denying post-conviction DNA testing *565 pursuant to N.C. Gen.Stat. § 15A-269. Id. at 606-07, 613 S.E.2d at 287. We rejected defendant's contention that he had a right to appeal under N.C. Gen.Stat. § 7A-27(b) because a post-conviction DNA motion is a "criminal proceeding," but an order denying DNA testing is not a "final judgment" in a "criminal proceeding." Id. at 606, 613 S.E.2d at 287. We went on to hold that
[u]nder N.C. Gen.Stat. § 15A-101(4a) (2003), judgment is defined as `when sentence is pronounced.' See also Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204, 204 (1937) (`Final judgment in a criminal case means sentence. The sentence is the judgment.'). The [order denying post-conviction DNA testing] does not involve the pronouncement of a sentence.
Id. at 606-07, 613 S.E.2d at 287.
In all of the SBM cases considered thus far by this Court, the SBM hearings have been conducted as "criminal" hearings, at least in the sense that the hearings were placed on criminal, not civil, calendars; the district attorney has represented the State; and the defendants have been represented by court-appointed counsel. However, SBM hearings are not "criminal" proceedings in the sense as addressed by Article 15A, Chapter 91. N.C. Gen.Stat. § 1-5 (2007) defines a "criminal action" as "(1) An action prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof. (2) An action prosecuted by the State, at the instance of an individual, to prevent an apprehended crime against his person or property." N.C. Gen.Stat. § 1-6 (2007) provides that "[e]very other is a civil action." A SBM proceeding is prosecuted by the State, but the defendant has not been charged with a "public offense" for which the State is seeking punishment. State v. Bare, ___ N.C.App. ___, ___, 677 S.E.2d 518, 526-27 (2009) (holding that even though the SBM hearings are prosecuted by the State, they are not designed as criminal punishment). According to N.C. Gen.Stat. §§ 1-5 and 1-6, an SBM proceeding, particularly one conducted under N.C. Gen.Stat. § 14-208.40B, would not be a "criminal action," so it must be a "civil action." In a SBM hearing, there is no entry of a plea of "guilty," "not guilty" or "no contest." See N.C.Gen. Stat. § 15A-1444. There is no jury verdict and certainly no "sentence" is pronounced in a SBM determination hearing under N.C. Gen.Stat. § 14-208.40B.[5] The SBM determination is distinguished from post-conviction DNA testing by the fact that a motion for DNA testing seeks to attack the underlying final criminal judgment. If a post-conviction DNA testing reveals evidence which is favorable to the defendant, "the court shall enter an order that `serves the interests of justice' and may (1) vacate and set aside the judgment, (2) discharge the defendant, (3) resentence the defendant, or (4) grant a new trial." Brown, 170 N.C.App. at 605, 613 S.E.2d at 286-87 (quoting N.C. Gen.Stat. § 15A-270 (c)). By contrast, the SBM determination hearing has no effect whatsoever upon the defendant's prior criminal convictions or sentencing and is not a part of any "criminal proceedings" or "criminal prosecution" of the defendant.
In addition to these distinctions between SBM proceedings and criminal prosecutions, the most important distinction is that this Court has held that the SBM statutes establish a civil regulatory regime and not a means of punishment for a crime. See State v. Bare, ___ N.C.App. ___, ___, 677 S.E.2d 518, 527 (2009); State v. Anderson, ___ N.C.App. ___, ___, 679 S.E.2d 165, 167 (2009). Therefore, for purposes of appeal, a SBM hearing is not a "criminal trial or proceeding" for which a right of appeal is based upon N.C. Gen.Stat. § 15A-1442 or N.C. Gen.Stat. § 15A-1444.
SBM hearings have been conducted much like probation violation hearings, which may be appropriate as probation violation hearings are not criminal prosecutions either. *566 See State v. Pratt, 21 N.C.App. 538, 540, 204 S.E.2d 906, 907 (1974)("A proceeding to revoke probation is not a criminal prosecution but is a proceeding solely for the determination by the court whether there has been a violation of a valid condition of probation so as to warrant putting into effect a sentence theretofore entered[.]") However, SBM hearings are unlike probation violation hearings in that a defendant who appeals from a revocation of probation has a specific right to appeal under N.C. Gen.Stat. § 15A-1347 (2007). The SBM statutes do not contain any specific right of appeal from the superior court's determination as to SBM.
This Court has previously noted that, "[f]or all practical purposes there is an unlimited right of appeal in North Carolina to the Appellate Division of the General Court of Justice from any final judgment of the superior court or the district court in civil and criminal cases." State v. Black, 7 N.C.App. 324, 327, 172 S.E.2d 217, 219 (1970) (citing N.C. Gen.Stat. § 7A-27). Under N.C. Gen. Stat. § 7A-27, the primary consideration is that the appeal must be from a "final judgment," and that appeals from interlocutory orders are allowed only in certain limited situations. Certainly the 29 August 2008 order requiring defendant to submit to SBM for the remainder of his natural life is a "final judgment." Our Supreme Court has defined a final judgment as "one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citation omitted). The 29 August 2008 order disposes of the State's petition for judicial findings as to satellite-based monitoring of defendant and leaves nothing further to be judicially determined. As the SBM order is a final judgment from the superior court, we hold that this Court has jurisdiction to consider appeals from SBM monitoring determinations under N.C. Gen.Stat. § 14-208.40B pursuant to N.C. Gen.Stat. § 7A-27.
III. Standard of Review
This Court stated the standard of review for orders as to SBM in State v. Kilby: "[w]e review the trial court's findings of fact to determine whether they are supported by competent record evidence, and we review the trial court's conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found." ___ N.C.App. ___, ___, 679 S.E.2d 430, 432 (2009) (quoting State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004) (citation, quotation marks, and brackets omitted), cert. denied, 543 U.S. 1156, 125 S.Ct. 1301, 161 L.Ed.2d 122 (2005)).
IV. Aggravated Offense
Defendant argues that the trial court's finding that he was convicted of an "aggravated offense" and that he therefore was required to enroll in SBM for the rest of his natural life was in error as the finding is not supported by competent evidence. The State sought an order for SBM based upon N.C. Gen.Stat. § 14-208.40(a)(1), which provides for SBM for "[a]ny offender who is convicted of a reportable conviction as defined by G.S. 14-208.6(4) and who is required to register under Part 3 of Article 27A of Chapter 14 of the General Statutes because the defendant is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense as those terms are defined in G.S. 14-208.6." N.C. Gen.Stat. § 14-208.40(a)(1)(2007) (emphasis added). N.C. Gen.Stat. § 14-208.40B(c) provides that if the court determines that "the conviction offense was an aggravated offense, the court shall order the offender to enroll in satellite-based monitoring for life." (emphasis added).
N.C. Gen.Stat. § 14-208.6(1a) (2007) defines "aggravated offense" as "any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old." N.C. Gen.Stat. § 14-208.6(1a).
Defendant was convicted of taking indecent liberties with a child in violation of N.C. Gen.Stat. § 14-202.1, which provides that
(a) A person is guilty of taking indecent liberties with children if, being 16 years of *567 age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen.Stat. § 14-202.1 (2005).
The State concedes that indecent liberties with a child is not an "aggravated offense" as defined by N.C. Gen.Stat. § 14-208.6(1a), as the "bare elements" of the offense do not require either "engaging in a sexual act involving vaginal, anal, or oral penetration of a minor under the age of twelve." However, the State argues that
[t]he crucial question in this appeal is not whether, by definition, the crime of which Defendant was convictedtaking indecent liberties with a childis an `aggravated offense' under N.C.G.S. § 14-208.6(1a). Instead, the issue is whether Defendant's guilty plea, in conjunction with the proffered factual basis for the conviction at the determination hearing, supported the trial court's conclusion that Defendant committed an `aggravated offense' thus subjecting him to lifetime enrollment in the SBM program.
(emphasis added). According to the State "the testimony of Defendant's probation officer and through no objections from the Defendant, established the necessary criteria to meet the `aggravated offense' standard, the trial court's lifetime enrollment of Defendant in the SBM program was proper." Therefore, the State asks us to base the determination of whether the defendant's "criminal offense" was an "aggravated offense" upon the facts of the underlying reportable offense as presented at the SBM hearing instead of upon the statutory elements of the crime for which the defendant was convicted.
The State's argument has recently been rejected by this Court in State v. Davison, ___ N.C.App. ___, ___, 689 S.E.2d 510, 517 (2009) (stating that "[t]he General Assembly's repeated use of the term `conviction' compels us to conclude that, when making a determination pursuant to N.C.G.S. § 14-208.40A, the trial court is only to consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction."). Accordingly, N.C. Gen.Stat. § 14-208.40(a)(1) requires that the offender be "convicted of an aggravated offense[,]" and N.C. Gen.Stat. § 14-208.40B(c) refers to the trial court's determination that "the conviction offense was an aggravated offense." (emphasis added). N.C. Gen.Stat. § 208.6(4) defines "reportable conviction" based upon a particular "final conviction."
The State notes the General Assembly's intent of protecting the public from sex offenders as expressed in Article 27A and argues that based upon the General Assembly's protective intent, we should read the definition of an "aggravated offense" broadly, such that we look beyond the statutory elements of a crime and consider both the elements of the crime and "the specific facts upon which the conviction is based." However, the plain language of the statute dictates a contrary result. We have previously held that
[t]he primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute. The first step in determining a statute's purpose is to examine the statute's plain language. Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.
Cashwell v. Department of State Treasurer, Retirement Systems Division, ___ N.C.App. ___, ___, 675 S.E.2d 73, 76 (2009). At least in regard to this particular issue, the statutes are clear and unambiguous. All of the relevant SBM statutes refer to the offense of which the offender was convicted, not charged, or even, as in this case, perhaps could have been charged. See N.C. Gen.Stat. §§ 14-208.6(4); 14-208.40; 14-208.40B.
This case demonstrates some of the problems which arise if the determination as to SBM could be based upon the "factual basis" *568 of a prior conviction as opposed to the actual conviction. The State argues that "[i]n its proffer to the trial court at the determination hearing, the State related the factual basis for Defendant's guilty plea was that Defendant had anally penetrated a four year old boy." It is true that defendant's probation officer testified that the defendant's anal penetration of a four year old boy was the factual basis for his prior conviction, but the record does not contain any information whatsoever about the "factual basis" for the defendant's plea which was actually provided to the court on 21 August 2006, when defendant entered his plea.[6] In addition, the trial court, upon hearing the testimony concerning the anal penetration of a four year old child, understandably assumed that defendant must have originally been charged with a greater offense, such as a first degree sexual offense under N.C. Gen.Stat. § 14-27.4 (2005) or a second degree sexual offense under N.C. Gen.Stat. § 14-27.5 (2005), but defendant had agreed to enter a plea to a lesser offense, taking indecent liberties with a child. Officer Holbrook incorrectly informed the trial court that defendant had pled to a reduced charge. The State introduced the file for the underlying offense at the SBM hearing, which demonstrates that defendant was charged only with taking indecent liberties with a child. He pled guilty to the same charge, with no reduction in the charge against him. He was never convicted of, or even charged with, any crime other than taking indecent liberties with a child.
The SBM statutes require a "reportable conviction," which is itself defined as a "final conviction" of one of many particular enumerated offenses, in order for the State to petition for an offender's enrollment in SBM. N.C. Gen.Stat. § 14-208.40B; N.C. Gen.Stat. § 14-208.6(4). The SBM statutes break down the various "reportable convictions" into two categories for purposes of SBM. N.C. Gen.Stat. § 14-208.6(4)(a). Those two categories include "A final conviction for [1] an offense against a minor [or] [2] a sexually violent offense[7][.]" Id.
As to the particular offenses identified under N.C. Gen.Stat. § 14-208.40(a)(1), lifetime SBM is required, without the need for the court to consider any other factors. N.C. Gen.Stat. § 14-208.40B(c). As to N.C. Gen. Stat. § 14-208.40(a)(2), if a defendant is convicted of a "reportable conviction," then the trial court must consider the level of risk of the offender's recidivism, if the offender requires the "highest possible level of supervision and monitoring" and the time period of SBM which should be imposed. N.C. Gen. Stat. § 14-208.40B(c). If SBM monitoring determinations could be based only upon the "factual basis" for a reportable offense which would demonstrate that the defendant actually committed a more serious crime than his "conviction crime," there would have been no need for the legislature to set forth in such detail the particular crimes which are subject to a particular degree of monitoring. In addition, the offender may be placed in the untenable position of having to refute factual allegations about a crime he may have committed years earlier in order to try to convince the court that the crime for which he was "convicted" was actually as stated by his conviction, and not a more serious crime. Evidence and witnesses as to the facts of the "reportable conviction" may no longer be available.
Therefore, the trial court's finding that defendant was convicted of indecent liberties with a child was supported by competent record evidence, as this was his "conviction offense." The trial court's conclusion that defendant had been convicted of an "aggravated *569 offense" was legally incorrect, as the offense of indecent liberties with a child does not fit within the definition of an "aggravated offense" pursuant to N.C. Gen.Stat. § 14-208.6(1a). In addition, the trial court's conclusion of law that defendant must be enrolled in SBM for the remainder of his natural life was also in error, as this conclusion did not "reflect a correct application of law to the facts found." State v. Kilby, ___ N.C.App. at ___, 679 S.E.2d at 432. The order requiring defendant to enroll in SBM for the remainder of his natural life is therefore reversed.
Because we have granted the relief as defendant requested, we need not address defendant's other assignments of error.
REVERSED.
Judges GEER and ERVIN concur.
NOTES
[1] N.C. Gen.Stat. § 14-208.6(4) (2007) defines four different categories of crimes which are considered as "reportable conviction[s]" for purposes of Sex Offender Registration and SBM. Defendant herein had a "final conviction" for a "sexually violent offense," which is defined by N.C. Gen.Stat. § 14-208.6(5). The definition of "sexually violent offense[s]" includes reference to nineteen separate crimes, identified by specific statutory references, as well as solicitation or conspiracy to commit any of the offenses or aiding and abetting any of these offenses. Taking indecent liberties with children in violation of N.C. Gen.Stat. § 14-202.1 is identified as a "sexually violent offense." N.C. Gen.Stat. § 14-208.6(5).
[2] We note that the evidence regarding the DOC's risk assessment, which found the defendant to be a "high" risk, was actually unnecessary and irrelevant at this particular hearing. In the "first category" of offenders under N.C. Gen.Stat. § 14-208B(c) (2007), SBM is required if the trial court determines that the offender is "qualified." No DOC risk assessment is required. The State was not seeking SBM of defendant pursuant to the "second category" of offenders pursuant to N.C. Gen.Stat. § 14-208.40B(c). See State v. Kilby, ___ N.C.App. ___, ___, 679 S.E.2d 430, 433 (2009) (This "second category" includes "(2) Any offender who satisfies all of the following criteria: (i) is convicted of a reportable conviction as defined by N.C. Gen.Stat. § 14-208.6(4), (ii) is required to register under Part 2 of Article 27A of Chapter 14 of the General Statutes, (iii) has committed an offense involving the physical, mental, or sexual abuse of a minor, and (iv) based on the Department's risk assessment program requires the highest possible level of supervision and monitoring. N.C. Gen.Stat. § 14-208.40(a)(1)-(2) (2007).") A DOC risk assessment is necessary only for offenders alleged to fall in the "second category."
[3] N.C. Gen.Stat. § 7A-27 (2007) governs the appellate jurisdiction of the Court of Appeals and of the Supreme Court for appeals from the trial divisions. Subsection (b) provides that "[f]rom any final judgment of a superior court ... appeal lies of right to the Court of Appeals." Id.
[4] N.C. Gen.Stat. § 15A-1442 (2007) governs the grounds for correction of error by the appellate division in criminal cases, and provides that "The following constitute grounds for correction of errors by the appellate division.
. . . .
(6) Other Errors of Law.Any other error of law was committed by the trial court to the prejudice of the defendant."
[5] Under N.C. Gen.Stat. § 14-208.40A(a), the SBM determination is made "during the sentencing phase," where the defendant has been convicted of a "reportable conviction." However, the SBM determination is separate from the sentencing hearing. See State v. Causby, ___ N.C.App. ___, ___, 683 S.E.2d 262, 263 (2009) (After defendant's sentencing hearing, the trial court conducted a separate hearing to determine whether defendant should be enrolled in a SBM program.)
[6] N.C. Gen.Stat. § 15A-1022(c) (2007) states the requirements for a "factual basis" for acceptance of a plea of guilty or no contest. Although we express no opinion on the issue, there is certainly a question as to whether Officer Holbrook's brief hearsay description of defendant's offense would suffice as a "factual basis" under N.C. Gen.Stat. § 15A-1022(c)(4). Article 27A, Sex Offender and Public Protection Registration Programs, contains no reference to a "factual basis" for any reportable conviction.
[7] The definition of "offense against a minor" includes reference to three separate crimes, identified by specific statutory references. N.C. Gen. Stat. § 14-208.6(1i). The definition of "sexually violent offense[s]" includes reference to nineteen separate crimes, identified by specific statutory references. N.C. Gen.Stat. § 14-208.6(5). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324763/ | 345 S.E.2d 419 (1986)
Mary Elaine ALTMAN and Lisa Elaine Munns
v.
Robert Allen MUNNS.
No. 8610DC56.
Court of Appeals of North Carolina.
July 15, 1986.
*421 George R. Barrett, Raleigh, for plaintiffs-appellees.
Donald H. Solomon and Leigh L. Leonard, Raleigh, for defendant-appellant.
PARKER, Judge.
Appellant contends that the facts as found by the trial judge do not support the conclusions of law and, in fact, compel the opposite conclusions. The facts were not in dispute and the trial judge found them essentially as outlined above. From these facts, the trial court concluded:
(5) The Defendant has breached the terms of the Separation Agreement and is indebted to the Plaintiff, Mary Elaine Altman, in the sum of $3,110.96, and is indebted to the Plaintiff, Lisa Elaine Munns, in the amount of $2,270.04.
(6) The Plaintiff, Mary Elaine Altman's, acceptance of a fait accompli in *422 her agreement to and payment of one-half of the 1983-1984 fees and costs for Lisa Elaine Munns' education, did not constitute a novation or modification of the Defendant's obligations under the terms of the Separation Agreement.
Defendant argues that he and Mrs. Altman reached an oral modification of their separation agreement as it related to the payment of Lisa's college expenses. The terms of the modified contract, asserted by defendant, are that each of Lisa's parents would pay one-half the expenses of Lisa attending a private college. In addition, defendant would pay Lisa a $150.00 per month allowance.
Under North Carolina law, a separation agreement may provide for the support of the children of the marriage after they reach majority. Shaffner v. Shaffner, 36 N.C.App. 586, 244 S.E.2d 444 (1978). The most common of these provisions is one providing for the payment of college expenses of the children. See generally 2 Lee, North Carolina Family Law, § 151 (1980). Ordinary contract law applies in interpreting such provisions. Shaffner, supra.
The 1971 Separation Agreement provided that:
... if either of said children shall continue her education beyond secondary school at the college level or at a vocational or similar school, the Husband agrees to pay the costs of such education, including board, tuition, living and clothing allowance, and a reasonable amount for books, laboratory fees and similar items. Notwithstanding the foregoing, the Husband's obligations for the college or vocational education of any such child shall not extend over more than four academic years for each said child.
There was no clause relating to the selection of a college, nor was there any requirement that the children attend a public college.
For there to be an effective parol modification of a written contract, all the requisites of a contract must be met. Yamaha Intern. Corp. v. Parks, 72 N.C. App. 625, 325 S.E.2d 55 (1985). The critical elements are mutual assent to the modification, and consideration or a substitute supporting it. Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 323 S.E.2d 23 (1984). The testimony of Mrs. Altman at the hearing shows her assent to the modification. She testified that she "realized Louisburg College was more expensive. I felt sorry for Bob and therefore I agreed to pay one-half of Lisa's college expenses."
Contrary to defendant's assertions, however, allowing Lisa to attend a private college does not constitute the additional consideration necessary to find a modification. Defendant was bound by the Separation Agreement to pay for his children's college expenses. No distinction was made between a private or public college. Defendant's pre-existing duty to pay for his daughters' college educations could not also be the additional consideration necessary to a modification. 17 Am.Jur.2d, Contracts, § 119 (1964). For the same reason, there was no detrimental reliance on the part of defendant, a necessary element for estoppel to be substituted as consideration. Restatement (Second) of Contracts, § 90 (1981). A party cannot be said to have relied to his detriment by performing that which he was originally bound to perform. Id., § 92. Defendant's arguments that there was an accord and satisfaction or that the claim is barred by laches are similarly unavailing.
However, in our view, with respect to the payments for the 1983-84 academic year and summer school, plaintiff Altman has waived her claim for breach of contract by her actions subsequent to her discussion with defendant about financing their daughter's education. A party may waive the breach of a contractual provision without consideration or estoppel where (i) the waiving party is the non-breaching party; (ii) the breach is not a total repudiation of the contract so that the non-breaching party continues to receive some benefit of the contract; (iii) the innocent party is aware of *423 the breach; and (iv) the innocent party performs or accepts the partial performance of the breaching party. Wheeler v. Wheeler, 299 N.C. 633, 263 S.E.2d 763 (1980). Plaintiff Altman contends that there can be no waiver when the innocent party is acting under duress or undue influence. See id. However, Mrs. Altman testified that she agreed to the modification because "she felt sorry for Bob, not because she felt pressured or coerced in any way." This evidence shows that there was no undue influence. The parties were divorced, and no longer stood in a fiduciary relationship. Further, Mrs. Altman was aware of the terms of the Separation Agreement, and nothing prevented her from enforcing those terms instead of agreeing to pay one-half their daughter's expenses.
The person for whose benefit anything is to be done may waive strict performance of the contract by dispensing with any part of the contract or circumstance in the mode of performance. Lithographic Co. v. Mills, 222 N.C. 516, 23 S.E.2d 913 (1943). A person may waive performance by saying that he dispenses with it or by conduct which naturally and justly leads the other party to believe that he dispenses with it. Wade Mfg. Co. v. Lefkowitz, 204 N.C. 449, 168 S.E. 517 (1933). In the instant case, the trial judge found that Mrs. Altman agreed to pay half the daughter's college expenses and half the payments on the student loan when due. Having voluntarily paid that which she knew defendant was obligated to pay, Mrs. Altman has waived her right to enforce the contract as to those monies. Mrs. Altman's conduct was positive, unequivocal and inconsistent with the terms of the separation agreement. See Singleton v. Atlantic Coast Line R.R., 203 N.C. 462, 166 S.E. 305 (1932).
With respect to plaintiff Munns, her benefit under the separation agreement was to have a four-year college education paid in full. Since plaintiff Altman's waiver did not affect this right and since there has been no breach of the contract as to her, plaintiff Munns' action was premature and entry of judgment in her favor was error.
We hold that the trial court erred in entering judgment for plaintiff Altman for the amount expended by her for Lisa's 1983-84 academic year and in entering judgment for plaintiff Munns for the amount of the loan. Plaintiff Altman is entitled to recover only the amount she expended for Lisa's 1984-85 academic year and to enforcement of the separation agreement for subsequent years. Plaintiff Altman and defendant are each obligated to pay one-half the student loan obtained by plaintiff Munns when the payments become due under the terms of the note and defendant is obligated to repay plaintiff Altman the amount she paid for the fall semester of Lisa Munns' second academic year at Louisburg College. The judgment of the trial court is
Reversed in part and affirmed in part.
PHILLIPS and MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324781/ | 602 S.E.2d 284 (2004)
268 Ga. App. 536
EVERETT
v.
GOODLOE et al.
No. A04A0297.
Court of Appeals of Georgia.
July 15, 2004.
*286 H. Mixson, Bondurant, Lynn Adam, Bondurant, Lisa Strauss, Bondurant, Mixson & Elmore, LLP, Atlanta, for Appellant.
Richard Gerakitis, Rebecca Williams, Ashley Hager, Troutman Sanders, LLP, Atlanta, for Appellee.
MIKELL, Judge.
Donna Everett appeals the trial court's grant of summary judgment to her former employer, John D. Goodloe, Jr., and companies previously owned by Goodloe, Abaco Inn Limited and Noble Island Properties Limited ("Noble Island"), on her claims of assault, battery, intentional infliction of emotional distress, invasion of privacy, and for quantum meruit. We affirm.
On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A defendant meets this burden by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of *287 plaintiff's case.... All of the other disputes of fact are rendered immaterial.[1]
The record in this case shows that from 1989 to 2000, Goodloe, a licensed real estate broker, owned a hotel in the Bahamas called the Abaco Inn. The hotel was owned by Abaco Inn Limited, which was a wholly owned subsidiary of Noble Island. Goodloe owned all of the shares of Noble Island. Appellant was employed as Goodloe's part-time personal secretary from January 1998, to October 1999. Prior to becoming Goodloe's employee, Everett dated Goodloe during the summer and fall of 1997. In October 1997, Goodloe ended the relationship and asked Everett not to call him. He asserted that he loved Everett, but, because they shared no intimacy, he could not continue the relationship. Goodloe did request that Everett keep him abreast of the progress of her book, in which he had invested $25,000. On December 3, 1997, Everett e-mailed Goodloe that she was searching for a part-time job, and he hired her as a personal secretary.
During Everett's employment with Goodloe, she maintains that she was sexually harassed, both mentally and physically, after refusing Goodloe's sexual advances. Also during that time, Everett maintains that she found a buyer for the Abaco Inn and that Goodloe agreed to pay her a fee for her assistance, which he failed to do in retaliation for her refusal to have a more intimate relationship with him. Everett filed this action, alleging assault, battery, invasion of privacy, and intentional infliction of emotional distress and asserting a claim for quantum meruit. Conversely, appellees contend that this lawsuit arose because Everett was not paid a commission from the sale of Noble Island, and not because Goodloe sexually harassed Everett. Goodloe filed a motion for summary judgment as to each of Everett's claims, which was granted. Everett appeals the grant of Goodloe's motion. The detailed facts pertinent to each of Everett's enumerated errors are discussed seriatim below.
1. Everett argues that the trial court erred by granting summary judgment to Goodloe on her claim for unjust enrichment.
The facts relevant to this enumerated error show that Goodloe began negotiating with prospective purchasers of the Abaco Inn in 1999. Goodloe averred that in October 1999, he reached an agreement with John Head to sell the Abaco Inn and the adjacent lot that was owned by Noble Island.
Everett deposed that six or seven months before Goodloe's contact with Head in October, she told Goodloe that she knew someone, whom she later identified as Head, who was interested in purchasing the hotel; that she had already given Head the "proforma" on the hotel when she told Goodloe about her prospective purchaser; that Goodloe told her that she "would be amply rewarded" if she found a buyer; and that at their initial conversation, she and Goodloe did not discuss the percentage that she would receive as her fee. After Head told her the price was excessive, she told Goodloe that she no longer had a prospective buyer, without ever having identified Head.
After a hurricane damaged the hotel, Goodloe reduced his asking price. Everett deposed that she told him that she wanted to approach her prospective buyer again with the reduced price; that she gave Head the new "proforma" with the reduced price; and that once she knew Head was interested, she told Goodloe about him, and again asked how she would be rewarded. Again, Goodloe told her she would be amply rewarded but would not give her a figure. Everett deposed that she sent a letter to Head, formally introducing him to Goodloe, but that when negotiations began, her involvement in the transaction ceased. Everett did not enter a written agreement with Goodloe regarding her fee, but deposed that she thought her services were worth five to ten percent of the purchase price.
Goodloe admitted that Everett told him that she wanted to be compensated for finding Head and that he planned to give her some form of compensation, though he did *288 not feel she was entitled to it. When asked how he classified the amount he was willing to pay Everett, he called it a bonus. Goodloe specifically stated that he never considered paying Everett a commission, because she was not a licensed real estate agent. Goodloe decided not to pay Everett a bonus after she filed the lawsuit.
In opposition to Goodloe's motion, Everett filed the unnotarized affidavit of John Head.[2] Head averred that he saw Everett at a social gathering and asked about the hotel; that she told him the previous purchasers were not going to close the deal because the hotel had been damaged during a hurricane and that Goodloe would probably reduce his purchase price; that she promised to contact him after she talked to Goodloe about the hotel; that within a few days, on September 23, 1999, he received a letter from Everett via facsimile, along with the letter from Goodloe to the previous prospective buyers and the "proforma"; that the letter provided Goodloe's home telephone number and address and encouraged Head to review the materials quickly; and that Everett met with him personally to review the materials and, in his presence, called Goodloe to arrange a meeting between them.
In October 1999, Goodloe and Head reached an agreement whereby Goodloe would sell Head the Abaco Inn, including the land, hotel buildings, furnishings, equipment, and business, and the adjacent lot that was owned by Noble Island for $2,750,000. They initially planned to structure the deal as a real estate asset purchase but ultimately entered a stock purchase agreement. Goodloe sold Head 100 percent of the stock of Noble Island. The deed to the real property remained unchanged.
(a) Everett argues that she was entitled to recover her fee because as a one-time referral agent, she was not governed by the real estate laws prohibiting unlicensed persons from engaging in acts related to the sale of real estate. It is correct that OCGA § 43-40-29(a)(9) provides that Chapter 40, which governs the conduct of real estate brokers and salespersons, does not apply to
[a]ny person acting as a referral agent who is not involved in the actual negotiations, execution of documents, collection of rent, management of property, or other related activity which involves more than the mere referral of one person to another and who: (A) Does not receive a fee for such referral from the party being referred; (B) Does not charge an advance fee; and (C) Does not act as a referral agent in more than three transactions per year.
However, Everett did not raise this argument below. Instead, she argued that a real estate license is not required to collect a fee where a transaction involves a sale of stock, rather than a sale of land. Further, Everett contended that the fee she sought was simply a finder's fee. Everett made no reference in the trial court to her argument on appeal that she was exempt from the real estate statutes because she was a referral agent.
In responding to a motion for summary judgment, plaintiffs must "produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case."[3]
[O]ur appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court.... Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court. If the rule were otherwise, a party opposing a motion for summary judgment need not raise any legal issue, spend the next year thinking up and researching additional issues for the appellate court to address, and require the opposing party to address those issues within the narrow time frame of appellate practice rules.[4]
*289 Therefore, because Everett did not raise this argument below, she cannot raise it now on appeal.
Pursuant to OCGA § 43-40-1(2)(A), "any person who, for another, and who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another ... assists in procuring prospects for the ... sale [of] any real estate" is considered to be a broker, and therefore, is subject to the laws applicable thereto. OCGA § 43-40-30(a) provides that such a person is deemed a licensee and violates the law by acting without a license. In Unifund Gen. v. Orr,[5] an action to recover a real estate broker's fee, this Court held that a corporation that contracted to find a purchaser in exchange for a $150,000 fee was precluded from bringing an action to recover the fee because it was not a licensed real estate broker, despite the fact that the contract specified that none of the parties were acting as a real estate broker.[6] The Court reasoned, "It is not the name one gives to a transaction, but the substance, which is material and which must be inspected and analyzed to determine its validity. Regardless of what the transaction is called, it cannot be upheld if it is prohibited by statute."[7] Similarly here, Everett's attempt to recover a fee for procuring a buyer for Goodloe is likewise prohibited because she is not a licensed real estate broker.
(b) Everett argues, in the alternative, that the real estate code, as a whole, does not apply to this transaction because it involved a sale of stock, not real estate. A fortiori, she was not required to have a license to collect her fee. We disagree.
In Kingston Dev. Co. v. Kenerly,[8] a broker brought an action against an investment corporation to recover his commission on the sale of a hotel. Instead of transferring its real property assets to the buyer, the defendant sold the buyer 100 percent of the stock of the corporation, which owned the hotel, and the broker was not paid his commission. The issue considered on appeal was:
Can a property owner who contracts with a licensed broker to pay as commissions a stated percentage of the sales price of its land be relieved of that contractual liability for commissions through a change in the form of the transaction from the usual seller's deed of conveyance into an exchange of corporate stock between the parties?[9]
The Court found that it could not, as to do so would elevate form over substance. The Court stated, "[j]urisprudential pragmatism prevents the exaltation of legalities to a sacrosanct status in disregard of realities.... This practical approach leads us to rule that the contractual commissions commitment continues enforceable against [the investment company]."[10] Additionally, quoting a factually similar Massachusetts case, the Court stated that "[t]he sale of all of the stock of the corporation was in legal effect a sale of all of its assets, and the mere fact that the parties found it more convenient to transfer all of the stock rather than to make a conveyance of its assets does not change the substance of the transaction."[11] We see no reason to deviate from this rule in this case. Thus, we must disagree with Everett that the sale of the stock removed this transaction from the ambits of the real estate code.
Regarding Everett's unjust enrichment claim, it is clear from the evidence that although Goodloe acknowledged that he would pay Everett a bonus for her work in procuring Head as a seller, there was never an agreement as to what amount she would receive. Everett deposed that Goodloe told *290 her that she would be "amply rewarded." Goodloe testified that Everett's efforts to find a buyer were not considered to be a part of her regular employment duties. Ordinarily, in the presence of such facts, the reasonable value of extra work performed outside the scope of one's job duties could be recovered in quantum meruit.[12] However, "[a] court of justice will not lend its aid to the enforcement of any contract the making of which is prohibited."[13] Furthermore, "[a]n agreement prohibited by law cannot be the basis for a claim of quantum meruit."[14] Since, as discussed above, Everett was not authorized to assist in the procuring of a buyer of real estate in exchange for a fee, the trial court's grant of summary judgment to Goodloe on Everett's quantum meruit claim was appropriate.
2. Everett contends that the trial court erred by granting Goodloe summary judgment on her claims for assault and battery, invasion of privacy, and intentional infliction of emotional distress. The facts pertinent to these claims follow.
Everett deposed that the first assault occurred in early 1998, when Goodloe grabbed her breasts, pressed up against her, and smashed his face and teeth into her mouth, causing it to bleed. Everett thought that the assault occurred because Goodloe was angry that Everett treated him like a friend, as opposed to a boyfriend, while they were out with friends on January 31, 1998, but she was not certain that this particular event preceded the assault. When shown an e-mail message that she sent to Goodloe the next day in which she indicated that she had a "good time last night," Everett again stated that the attack followed the January dinner date and explained that she ignored most of Goodloe's conduct because she needed her job.
Everett deposed that there were two assaults in May 1998, and that she began to fear Goodloe's anger, which typically followed her rejection of his sexual advances. She stated that the last incident occurred in September 1998 when Goodloe lunged at her and grabbed her legs. She deposed that she rejected him and that he fired her, only to rehire her the next morning.
In addition to Everett's deposition testimony, also considered on summary judgment were several other e-mail messages between Goodloe and Everett and excerpts from Everett's journal, which she called the "Morning Pages."[15] Everett deposed that the Morning Pages was not a diary per se, but simply notations of "whatever crept into my mind at the moment" and that she did not lie about events in the Morning Pages.
On April 6, 1998, Everett e-mailed Goodloe that he had offended her with his sarcasm about her work experience, that she expected him to treat her with the same courtesy and respect that she afforded him, and that she "did not see any room at all [in their relationship] for that sort of thing." On July 8 and 21, 1998, she signs other e-mail messages, "Love, Donna." On September 18, 1998, she writes in her journal,
I've sought this situation used my "power" to ingratiate myself to John so that I could survive.... Should I borrow the money from John today? Yes ... I can use the money.... He comes out in those shorts like he did in that bathrobe-here I am looking gorgeous.... At least I've gotten rid of that sucking on my lip kiss. I hated it. Why do I want them totally under my spell? It's the only way I feel safe.... The weight is heavy as shown by this relationship with John. He even said now that this has happened again (he blames it on both [sic] our drinking) and maybe it is, I lose my inhibitions and he sees my distaste.... I release my emotional attachment to John.
In an e-mail to Goodloe dated November 23, 1998, Everett writes,
*291 Just a short note to tell you what's been on my mind. I'm not angry anymore, John. The day all the boxes of Rena's things were moved,[16] I thought about you and your life and her life and the anger just went away.... And to make a long story short ... it just completed the whole healing process. I forgave you entirely for what I considered your wrongs toward me.... What all this means is that I am your friend, and I know you're mine. I miss your dear company and hope that you will be comfortable in renewing our friendship on a friendship basis. If you can do that, then you and Linda or whomever, and I and whomever (have been trying to go on some dates) can actually go to dinner and enjoy one another's company. But either way, the main thing I wanted you to know ... is that I'm not angry at you anymore.... With love, Donna Jean.
Under Prophecy Corp. v. Charles Rossignol, Inc.,[17] a party/witness' testimony "is to be construed ... against him when ... self-contradictory."[18] On summary judgment, the trial judge decides whether the testimony is contradictory, and if so, whether the witness has offered a reasonable explanation for the contradiction.[19]
(a) "[A]n assault occurs when all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another."[20] "[T]he act of intentionally causing actual physical harm to another is civilly actionable as a battery.... It is the intent to make either harmful or insulting or provoking contact with another which renders one civilly liable for a battery."[21] The test as to whether an assault and battery has occurred "`"is what would be offensive to an ordinary person not unduly sensitive as to his dignity."'"[22]
In her brief, Everett explains that she did not mention the attacks in her email messages or other writings because she feared losing her job. It does not appear, however, that Everett was so fearful of losing her job that she refrained from chastising Goodloe for other conduct that she felt was inappropriate. For example, she e-mailed him that she would not tolerate his insulting comments. Since Everett's deposition testimony about her contact with Goodloe contradicts her writings to Goodloe and in her journal, under Prophecy, we construe her testimony against her and affirm the grant of summary judgment to Goodloe on her claims for assault and battery.[23]
(b) Everett contends that the trial court erred by granting Goodloe summary judgment on her invasion of privacy claim.
Under Georgia case law, the concept of invasion of privacy encompasses four loosely related but distinct torts, as follows: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation for the defendant's advantage of the plaintiff's name and likeness.[24]
*292 Everett's privacy claim is based upon Goodloe's alleged intrusion upon her seclusion. Everett specifically refers to the unwanted sexual touching and argues that questions regarding the extent of that touching should be resolved by a jury.
Like assault and battery, this tort, is analyzed under an objective standard. The intrusion aspect of this type of invasion of privacy "involves a prying or intrusion, which would be offensive or objectionable to a reasonable person."[25] Everett relies heavily on Troncalli v. Jones[26] in support of her argument that the invasion of privacy claim should be resolved by a jury. However, in Troncalli, the evidence that the plaintiff suffered unwanted sexual touching at the behest of the defendant was clear, and the defendant's conduct was objectively unreasonable.[27] In this case, a personal relationship between the parties preceded and existed contemporaneously with the alleged improper conduct. In light thereof, and construing Everett's testimony against her under Prophecy, we must affirm the trial court's grant of summary judgment to Goodloe on this claim as well.
(c) Everett argues that the evidence that Goodloe exposed his sexual organ to her, forced her to touch him, lunged at her, grabbed her breasts, and sexually harassed her demanded the denial of Goodloe's motion for summary judgment on her claim for intentional infliction of emotional distress.
The four elements which must be proved in order to sustain a claim of intentional infliction of emotional distress are: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.... [I]t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.[28]
Therefore, "[a]lleged tasteless and rude social conduct ... is not actionable ... [and] [t]here is no occasion for the law to intervene in every case where someone's feelings are hurt."[29] "Only where the distress inflicted is so severe that no reasonable person could be expected to endure it does the law intervene."[30] Whether a claim rises to a sufficient level of outrageousness or egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law for the court.[31]
Absent the continuing and complex relationship between these particular parties, we would not hesitate to find the alleged action quite sufficient to support a claim of intentional infliction of emotional distress. However, in the particular facts of this case and in light of the nature of Goodloe and Everett's relationship, we do not find error in the trial court's conclusion that Goodloe's conduct did not rise to the level of outrageousness required to support Everett's claim.
Everett also argues that her tort claims against the corporate defendants should not have been dismissed as they were liable under respondeat superior. As summary judgment in favor of Goodloe on her claims was *293 proper, summary judgment in favor of the corporate defendants is likewise appropriate.
3. Everett was ordered to submit to an independent medical examination by a psychiatrist, Dr. Barbara Long. In her last enumeration of error, she contends that the trial court erred by admitting Dr. Long's report for consideration on summary judgment. In her brief, however, she argues that the error occurred when the trial court ordered the examination and relied on it in granting Goodloe's motion for summary judgment. We disagree.
Pursuant to OCGA § 9-11-35(a), "[w]hen the mental ... condition ... of a party ... is in controversy, the court ... may order the party to submit to a ... mental examination by a physician." The grant or denial of a motion requesting such an examination rests in the sound discretion of the trial court.[32] In her complaint, Everett repeatedly alleges that she suffered horrible emotional anguish, severe emotional injury, and great emotional harm, and asserts a claim for intentional infliction of emotional distress. Though Everett does not allege a continuing mental injury for which she is entitled to recover damages, as alleged in Roberts v. Forte Hotels,[33] she maintains that she suffered physical and mental injury. We have held that "[a] plaintiff in a negligence action who asserts mental or physical injury, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury."[34] We see no reason to apply a different rule where the action involves instead the alleged commission of intentional torts that resulted in physical and mental injury. As in negligence actions, the trial court should consider "the ability of the movant to obtain the desired information by other means ... [and] the timeliness of the motion and the events leading up to it"[35] in the exercise of its discretion. In this case, Everett states in her interrogatory responses that she "did not seek specific medical treatment for the emotional injuries, bruises, and pain that defendant Goodloe intentionally caused her." Thus, there was no independent source from which evidence of Everett's emotional injuries could be obtained. Therefore, we cannot find that the trial court abused its broad discretion by ordering the mental examination and considering the report upon summary judgment.[36]
Judgment affirmed.
RUFFIN, P.J., concurs.
BARNES, J., concurs in Divisions 1 and 3 and in the judgment.
BLACKBURN, P.J., not participating.
NOTES
[1] (Citations and punctuation omitted.) Howard v. J.H. Harvey Co., 239 Ga.App. 677, 678, 521 S.E.2d 691 (1999).
[2] "[I]n the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence." (Citations and punctuation omitted.) Allen v. Caldwell, 221 Ga.App. 54, 55(1), 470 S.E.2d 696 (1996).
[3] Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 606, 203 S.E.2d 173 (1974).
[4] (Footnotes omitted.) Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829(2), 573 S.E.2d 389 (2002).
[5] 191 Ga.App. 836, 383 S.E.2d 199 (1989)
[6] Id. at 837-838(2), 383 S.E.2d 199.
[7] (Citation and punctuation omitted; emphasis in original.) Id. at 838(2), 383 S.E.2d 199.
[8] 132 Ga.App. 346, 208 S.E.2d 118 (1974).
[9] Id. at 350(4), 208 S.E.2d 118.
[10] Id.
[11] (Citation and punctuation omitted.) Id. at 351(4), 208 S.E.2d 118. Accord Shortt v. Knob City Investment Co., 58 N.C.App. 123, 128, 292 S.E.2d 737 (1982) (sale of 100 percent of stock of corporation whose principal asset was real property constituted a sale of the property for the purpose of finding that the broker was entitled to his commission).
[12] See Gerdes v. Russell Rowe Communications, 232 Ga.App. 534, 537(3), 502 S.E.2d 352 (1998).
[13] (Citation and punctuation omitted.) Unifund Gen., supra at 838(2), 383 S.E.2d 199.
[14] (Footnote omitted.) O'Neal v. Home Town Bank of Villa Rica, 237 Ga.App. 325, 329(2), 514 S.E.2d 669 (1999).
[15] Everett verified that the documents produced as exhibits were e-mail messages between her and Goodloe and pages from the Morning Pages.
[16] Rena was Goodloe's late wife.
[17] 256 Ga. 27, 343 S.E.2d 680 (1986).
[18] (Citations and punctuation omitted.) Id. at 28(1), 343 S.E.2d 680. Accord Sawyer v. DeKalb Med. Center, 234 Ga.App. 54, 57(2), 506 S.E.2d 197 (1998).
[19] Prophecy Corp., supra at 30(2), 343 S.E.2d 680.
[20] (Citation and punctuation omitted.) Bullock v. Jeon, 226 Ga.App. 875, 878(4), 487 S.E.2d 692 (1997).
[21] (Citations omitted.) Hendricks v. Southern Bell Tel. etc. Co., 193 Ga.App. 264-265(1), 387 S.E.2d 593 (1989).
[22] Darnell v. Houston County Bd. of Ed., 234 Ga.App. 488, 490(1), 506 S.E.2d 385 (1998), citing Newsome v. Cooper-Wiss, Inc., 179 Ga.App. 670, 672, 347 S.E.2d 619 (1986), quoting Prosser, Law of Torts, § 9, p. 37 (4th ed. 1971).
[23] See generally Mangrum v. Republic Indus., 260 F. Supp. 2d 1229, 1255 (N.D.Ga.2003) (plaintiff could not succeed on assault and battery claims where plaintiff testified that her employer's touching was not always objectionable and employer probably did not know when the conduct was objectionable and when it was not).
[24] (Citation omitted.) Sun v. Langston, 170 Ga.App. 60, 61(2), 316 S.E.2d 172 (1984).
[25] (Citation omitted.) Yarbray v. Southern Bell Tel. etc. Co., 261 Ga. 703, 705(1), 409 S.E.2d 835 (1991).
[26] 237 Ga.App. 10, 514 S.E.2d 478 (1999).
[27] Id. at 14(2), 514 S.E.2d 478.
[28] (Citation omitted.) Northside Hosp. v. Ruotanen, 246 Ga.App. 433, 435, 541 S.E.2d 66 (2000).
[29] (Citation and punctuation omitted.) Kornegay v. Mundy, 190 Ga.App. 433, 434-435(1), 379 S.E.2d 14 (1989).
[30] (Footnote omitted.) O'Neal, supra at 331(6), 514 S.E.2d 669.
[31] Clark v. Prison Health Svcs., 257 Ga.App. 787, 793(3), 572 S.E.2d 342 (2002), citing Northside Hosp., supra.
[32] Crider v. Sneider, 243 Ga. 642, 644(1), 256 S.E.2d 335 (1979).
[33] 227 Ga.App. 471, 474-475, 489 S.E.2d 540 (1997) (affirmed trial court's order requiring victim of assault to undergo a psychological evaluation where victim's allegation of continuing mental injury placed her mental condition in controversy).
[34] (Citations and punctuation omitted.) Crider, supra at 645(1), 256 S.E.2d 335.
[35] (Citations omitted.) Metro. Life Ins. Co. v. Lehmann, 125 Ga.App. 539, 540, 188 S.E.2d 393 (1972).
[36] Roberts, supra at 474-475, 489 S.E.2d 540 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324789/ | 360 S.C. 530 (2004)
602 S.E.2d 113
The STATE, Respondent,
v.
Larry LEE, Appellant.
No. 3860.
Court of Appeals of South Carolina.
Heard May 12, 2004.
Decided August 23, 2004.
Rehearing Denied September 23, 2004.
*532 Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.
CURETON, Acting Judge:
Larry Lee appeals his convictions for four counts of first-degree criminal sexual conduct (CSC) with a minor and one count of lewd act upon a child. Lee asserts the State violated his Fifth Amendment guarantee of due process of law through excessive pre-indictment delay.[1] For the reasons set forth below, we vacate Lee's convictions.
*533 FACTS
Diana Baldwin married Larry Lee on August 29, 1982. After they married, Diana, Lee, Diana's two daughters, who were six and seven years old, and her one-year-old son moved into a home in Aiken. In the latter part of 1988, the Department of Social Services (DSS) began an investigation when Lee's stepdaughters alleged that he had sexually abused them. The allegations of abuse first arose during a juvenile criminal investigation being conducted against the stepdaughters by law enforcement officers. As a result of the investigation, DSS removed the girls from the home on September 15, 1988, and placed them in the custody of their aunt on an emergency basis until a hearing could be held in the family court. Within two to three months, DSS returned the girls to their home. Diana and Lee ultimately divorced in September of 1992.
Though the solicitor's office represented the State during all hearings before the family court, the State took no further action on the matter for more than twelve years after the children's return home. On May 14, 2001, an Aiken County grand jury indicted Lee for four counts of first-degree CSC with a minor and one count of lewd act upon a child, all arising from the allegations involving the stepdaughters. Around this same time, Lee was indicted for additional counts of CSC with a minor for incidents that occurred with different victims, including a niece, between 1985 and 1988 and in 1999.[2]
On May 17-21, 2001, Lee was tried only on the indictments involving the stepdaughters. Based on the delay, Lee's counsel requested at the pre-trial hearing that the court dismiss these indictments. During the pre-trial hearing, Lee's counsel informed the judge the State was aware of the charges in 1988 but did not arrest Lee until March 2001 and did not indict him until May 2001. According to Lee's counsel, the DSS worker who was involved in the case wrote a letter on January 6, 1989, stating DSS believed there was criminal activity and requested law enforcement make an investigation into the criminal matter. Lee's counsel also stated she was unable to locate records to determine whether this investigation had *534 taken place. Because the State was aware of potential criminal charges against Lee in 1988 and did not bring them until the 1999 charges involving Lee's niece, counsel argued the charges involving the stepdaughters should be dismissed. She contended Lee suffered substantial prejudice as a result of the State's negligent delay in bringing the charges. She claimed Lee was prejudiced due to the destruction of crucial records, the absence of witnesses, and the witnesses' inability to recall the alleged incidents in detail.
Specifically, counsel pointed out that the subject matter of the original investigation against the stepdaughters could not be determined given the DSS file had been destroyed and the juvenile officer who originally reported the matter to DSS recalled no details of the investigation. In similar fashion, the stepdaughters' school records were no longer available. In addition, the attorney that originally represented Lee before the family court no longer practiced law in South Carolina and could not be located. Based on these hindrances, Lee's counsel moved for the trial judge to dismiss the indictments because the delay in indicting Lee had affected his ability to mount an adequate defense. Though the State offered no explanation for the delay of more than twelve years, it countered that Lee offered no evidence the State intentionally delayed prosecution of the charges.
At the conclusion of the hearing, the judge denied Lee's speedy trial motion, but stated there may be a 5th Amendment right for pre-indictment or pre-arrest matter, but the law seems to indicate that one, there has to be show prejudice and two you have to show intention on the part of the government to try and ... put the individual in a worse position. The judge then denied the motion.
The day of the trial, Lee's counsel renewed her motion. She argued Lee's right to a fair trial had been compromised by the excessive delay on the part of the State. The judge again denied the motion, stating the 6th Amendment, the right begins at the time of arrest or indictment and if you're alleging on the 5th Amendment, then you've got to show prejudice ... and you also got to show there was some intent *535 on the part of the State to put you in a position, a disadvantage.[3]
The jury convicted Lee of four counts of first-degree CSC with a minor and one count of lewd act upon a child. The judge sentenced Lee to an aggregate of forty-five years imprisonment. Lee appeals his convictions and sentences.
DISCUSSION
Lee argues his convictions should be vacated because of the excessive pre-indictment delay. We agree.
"The Due Process Clause plays a limited role in protecting against oppressive pre-indictment delay." State v. Brazell, 325 S.C. 65, 72, 480 S.E.2d 64, 68 (1997); see United States v. Lovasco, 431 U.S. 783, 789-90, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977) (analyzing Due Process Clause of the Fifth Amendment with respect to pre-indictment delay); United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971) (recognizing Due Process Clause of the Fifth Amendment provides basis for dismissing indictment as a result of pre-indictment delay).
In Brazell, our supreme court considered the issue of pre-indictment delay. In its analysis, the court relied on decisions of the Fourth Circuit Court of Appeals. The court stated:
The United States Supreme Court has developed a two-prong inquiry when pre-indictment delay is alleged to violate due process. First, the defendant has the burden of *536 proving the pre-indictment delay caused substantial actual prejudice to his right to a fair trial. Second, if the defendant shows actual prejudice, the court must consider the prosecution's reasons for the delay and balance the justification for delay with any prejudice to the defendant. If the court finds the delay was an intentional device to gain a tactical advantage over the accused, the court should dismiss the indictment. Id.; Howell v. Barker, 904 F.2d 889 (4th Cir.), cert. denied, 498 U.S. 1016, 111 S. Ct. 590, 112 L. Ed. 2d 595 (1990); United States v. Automated Medical Laboratories, Inc., 770 F.2d 399 (4th Cir.1985). When balancing the prejudice and the justification, [t]he basic inquiry then becomes whether the government's action in prosecuting after substantial delay violates `fundamental conceptions of justice' or `the community's sense of fair play and decency.' Howell, 904 F.2d at 895 (quoting United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 404 (4th Cir. 1985)).
Brazell, 325 S.C. at 72-73, 480 S.E.2d at 68-69.
Reliance on the Fourth Circuit's interpretation of the pre-indictment delay test is significant in that it applies a less stringent standard as compared to other federal circuits. See Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (recognizing that federal circuits, with the exception of the Fourth Circuit and the Ninth Circuit, have held that in order to establish that a lengthy pre-indictment delay rises to the level of a due process violation, a defendant must show not only actual substantial prejudice, but also that `the government intentionally delayed the indictment to gain an unfair tactical advantage for other bad faith motives' (quoting United States v. Crooks, 766 F.2d 7, 11 (1st Cir.), cert. denied, 474 U.S. 996, 106 S. Ct. 421, 88 L. Ed. 2d 362 (1985))).
Under the Fourth Circuit's standard, a defendant who meets the initial burden of proving substantial actual prejudice does not have to further prove improper prosecutorial motive as the cause for the delay. Howell v. Barker, 904 F.2d 889, 894-95 (4th Cir.), cert. denied, 498 U.S. 1016, 111 S. Ct. 590, 112 L. Ed. 2d 595 (1990). In rejecting the decisions from the majority of the federal circuits, the Fourth Circuit reasoned as follows:
*537 Taking this position to its logical conclusion would mean that no matter how egregious the prejudice to a defendant, and no matter how long the preindictment delay, if a defendant cannot prove improper prosecutorial motive, then no due process violation has occurred. This conclusion, on its face, would violate fundamental conceptions of justice, as well as the community's sense of fair play. Moreover, this conclusion does not contemplate the difficulty defendants either have encountered or will encounter in attempting to prove improper prosecutorial motive.
Howell, 904 F.2d at 895.
Despite the clear reliance on Fourth Circuit precedent in Brazell, the State contends our supreme court did not adopt the more lenient standard for pre-indictment delay. Instead, the State submits that the burden is on the defendant to show that the delay was intentional and to gain a tactical advantage. We disagree with this contention.
Although a trial court should dismiss an indictment if the defendant shows improper prosecutorial motive for delaying indictment, such a showing is not required for pre-indictment delay to violate due process. Brazell, 325 S.C. at 72, 480 S.E.2d at 69. While a finding of improper prosecutorial motive ends the inquiry, the absence of such a showing does not likewise terminate the analysis. Instead, the proper course is to proceed to the two-prong inquiry applied in the Fourth Circuit in the case of United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 403-04 (4th Cir.1985), and adopted by our supreme court in Brazell. Under this test, the defendant first has the burden of proving the pre-indictment delay caused substantial actual prejudice to his right to a fair trial. Id. Second, the court must then consider the State's reason for the delay and balance the justification for delay with any prejudice to the defendant. Id.
Here, the trial court erred as a matter of law in placing the burden on Lee to prove substantial actual prejudice as well as the State's improper motive for the delay. Because the court required Lee to demonstrate intentional delay by the State, the court's decision is controlled by an error of law. United States v. Lynch, No. 94-5350, 56 F.3d 62, 1995 WL 325670, at *2 (4th Cir. June 1, 1995) (recognizing district court's decision *538 regarding pre-indictment delay was a mixed question of law and fact and will only be reversed if clearly erroneous) (citing United States v. Beszborn, 21 F.3d 62 (5th Cir.1994), cert. denied, Westmoreland v. United States, 513 U.S. 934, 115 S. Ct. 330, 130 L. Ed. 2d 288 (1994)). Without this additional burden, we find Lee established that the delay caused substantial actual prejudice.
In applying the first prong, substantial prejudice requires a showing that the defendant `was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was likely effected [sic].' Brazell, 325 S.C. at 73, 480 S.E.2d at 69 (quoting Jones v. Angelone, 94 F.3d 900, 907 (4th Cir.1996)). When the claimed prejudice is the unavailability of a witness, courts require that the defendant identify the witness he would have called; demonstrate, with specificity, the expected content of that witness' testimony; establish that he made serious attempts to locate the witness; and finally, show that the information the witness would have provided was not available from other sources. Brazell, 325 S.C. at 73, 480 S.E.2d at 69.
We note Lee did more than merely rely on the length of the delay to establish substantial actual prejudice. As Lee's counsel pointed out, the delay of twelve years presented a significant obstacle in preparing an adequate defense and receiving a fair trial. All the records from the family court case have been destroyed. No records contemporaneous with the alleged offenses are available, particularly those explaining why the stepdaughters were placed back into Lee's home after being removed. Lee's efforts to acquire the same information from other sources were likewise unavailing. Lee's original attorney could not be located, and the DSS investigator could recall no specifics about the investigation. Without this information, Lee's counsel could not adequately cross-examine the victims and other family members regarding the alleged incidents and the juvenile investigation that prompted DSS to become involved. Moreover, Lee's counsel was also prevented from refuting the delayed disclosure evidence presented by the State through its expert witness.
*539 Because Lee established that he was actually and substantially prejudiced, the inquiry turns to a consideration of the State's reasons for the pre-indictment delay. Under the second prong of the test, the court must balance the State's justification for the delay against the prejudice to the defendant. Brazell, 325 S.C. at 72, 480 S.E.2d at 68-69. In this case, the State has offered no explanation for the delay in indicting Lee. Given there is no valid justification, we find the State's prosecution of Lee violated `fundamental conceptions of justice' and `the community's sense of fair play and decency.' Id. at 73, 480 S.E.2d at 69 (quoting Howell v. Barker, 904 F.2d 889, 895 (4th Cir.), cert. denied, 498 U.S. 1016, 111 S. Ct. 590, 112 L. Ed. 2d 595 (1990)); see Howell, 904 F.2d at 895 (affirming district court's finding of unconstitutional pre-indictment delay where actual prejudice was assumed and conceded and the State failed to offer valid justification for the pre-indictment delay that prejudiced defendant). Accordingly, Lee's convictions involving his former stepdaughters are
VACATED.
HEARN, C.J. and STILWELL, J., concur.
NOTES
[1] Pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Williams, 305 S.C. 116, 406 S.E.2d 357 (1991), Lee's appellate counsel filed a brief along with a petition to be relieved, stating her examination of the record indicated the appeal was without merit. Lee filed a separate pro se response. Following our Anders review, this court ordered the parties to brief the following issue:
Whether the trial judge erred in declining to dismiss Lee's indictments on the ground Lee's Fifth Amendment due process rights were violated as a result of pre-indictment delay?
This issue is now our sole appellate consideration.
[2] Although it is not entirely clear, it appears Lee's former stepdaughters again came forward with their allegations after being informed of the more recent 1999 incidents.
[3] Lee's counsel's arguments regarding Lee's right to a speedy trial were intertwined with her motion to dismiss for pre-indictment delay; thus, we briefly address this issue. Here, Lee was arrested in March of 2001 and indicted and tried in May 2001. Because there was not a significant delay between the time Lee was arrested and the time he was tried, there is no merit to his contention that he was denied his right to a speedy trial. Therefore, we concluded during our Anders review that the judge did not err in denying the motion to dismiss on this ground. See State v. Brazell, 325 S.C. 65, 74, 480 S.E.2d 64, 70 (1997) (The Sixth and Fourteenth Amendments to the United States Constitution as well as Article 1, Section 14 of the South Carolina Constitution provide that a criminal defendant is entitled to a speedy trial.); see also United States v. Marion, 404 U.S. 307, 313-15, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971) (discussing pre-indictment delay in the context of the Sixth Amendment speedy trial provision; concluding Sixth Amendment speedy trial provision does not provide defendant protection until he or she is indicted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324752/ | 689 S.E.2d 286 (2010)
MIKELL
v.
The STATE.
No. S09A1766.
Supreme Court of Georgia.
February 1, 2010.
*287 Peter D. Johnson, Augusta, for appellant.
Richard A. Mallard, Dist. Atty., Statesboro, Thurbert E. Baker, Atty. Gen., Benjamin H. Pierman, Asst. Atty. Gen., Atlanta, for appellee.
HUNSTEIN, Chief Justice.
Fredrico Shenard Mikell was convicted of felony murder and multiple counts of armed robbery and aggravated assault arising out of an attack on six people in a home in Statesboro. He appeals from the denial of his motion for new trial[1] challenging the sufficiency of the evidence and asserting other errors. For the reasons that follow, we affirm.
1. The evidence authorized the jury to find that appellant guided Kendall Worthy, Marcus Benbow and a third man to a home in Statesboro where six people were inside playing or watching a dice game. Appellant went alone to the door and, after identifying himself, asked to speak to the murder victim, Corey Walker. Visible on the floor was the money paid in by Walker and the other participants in the dice game. Appellant was well known to Walker and others in the room, including Chalandria McClouden, with whose family appellant had frequently dined. Appellant asked Walker about purchasing drugs and left after learning Walker had none. Thirty to forty-five minutes later, dice game participant James Williams answered a knock on the door and was shot in the knee with a handgun as he struggled to keep out of the home a man Williams later identified as Benbow. Co-indictee Worthy then entered the home with an AK-47 assault rifle. He shot Williams in the other knee with the rifle and, as the home's unarmed inhabitants fled the gunmen, shot McClouden in the back and legs and fatally wounded Walker. McClouden testified that, after the shots were fired, she turned toward the front door and "could see [appellant] and he stood there looking at me and then he took out running." Benbow picked up the dice game money, shot Williams in the knee yet again, and then he *288 and Worthy fled the scene, driving off without appellant.
Worthy, as part of a negotiated guilty plea deal pursuant to which he was to receive a single life sentence, testified that appellant and the other indictees came to Statesboro to commit a robbery; that appellant approached several individuals under the ruse of wanting to purchase a large amount of drugs as a means of finding someone to rob; and that Benbow, upon hearing of the victims' gambling money, proposed robbing the victims, to which appellant agreed. Worthy testified that appellant carried the assault rifle up to the door but dropped it and ran away as Benbow struggled to get inside the home; that Worthy then joined Benbow, picked up the rifle and fired it in the home after Benbow shot victim Williams at the door; and that Worthy then ran to the car, followed by Benbow with the money from the dice game, and left town.
Appellant was identified by the surviving victims and, after being taken into custody, gave both a recorded statement, heard by the jury, and a written statement, read into evidence, in which he admitted his knowledge of and participation in the plan to commit armed robbery, including accompanying Benbow to the door, knocking on it and giving his name to gain entry into the home. However, he claimed he then hesitated and abandoned the enterprise by running away after Benbow got inside and kept on running as he heard the shots being fired.
In light of McClouden's testimony that she saw appellant in the doorway after the shots had been fired, we find no merit in appellant's contention that the evidence was insufficient to support his convictions because the State failed to disprove beyond a reasonable doubt his affirmative defense of abandonment. See OCGA § 16-4-5(a) (circumstances must manifest complete renunciation of the criminal purpose to constitute affirmative defense of abandonment); Johnson v. State, 276 Ga. 368(1), 578 S.E.2d 885 (2003). See generally Bentley v. State, 261 Ga. 229(2), 404 S.E.2d 101 (1991) (determination whether State has met its burden to disprove an affirmative defense is for the jury). Furthermore, whether the deal made by Worthy with the State rendered his testimony biased to a degree that left him less creditworthy was a determination to be made by the jury. See Yat v. State, 279 Ga. 611(1), 619 S.E.2d 637 (2005). The evidence adduced was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty as a party to the charged crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also OCGA § 16-2-20(a) (party to a crime is as guilty of crime's commission as the principal).
2. The transcript reveals that the trial court permitted appellant to question Worthy exhaustively about his knowledge of his possible punishment, thereby allowing appellant to fully explore the possible motivation for Worthy's testimony. See State v. Vogleson, 275 Ga. 637(1), 571 S.E.2d 752 (2002). Because the trial court did not violate appellant's right to confrontation under the Sixth Amendment by not allowing appellant to delve into the issue of Worthy's parole eligibility, see Hewitt v. State, 277 Ga. 327(2), 588 S.E.2d 722 (2003) (because authority to grant parole rests with Board of Pardons and Paroles and not the district attorney's office, cross-examination regarding parole is irrelevant on question of witness's potential bias in testifying favorably for the State), no further analysis of this issue is necessary to the determination of the case at hand. See generally Zepp v. Brannen, 283 Ga. 395, 397, 658 S.E.2d 567 (2008) (discussing "obiter dicta").
3. The trial transcript clearly reflects that appellant acted in compliance with OCGA § 17-8-58 at the time he objected to the trial court's failure to give his requested charge on withdrawal from a conspiracy.[2] However, it is reversible error for the trial court to decline to give a requested charge on an affirmative defense only where the charge is both a correct statement of the law and is adjusted to the evidence in the case. *289 See Bishop v. State, 271 Ga. 291(2), 519 S.E.2d 206 (1999). Appellant's requested charge tracked the language of OCGA § 16-4-9, which provides that withdrawal is a defense if the defendant can show that he withdrew "before [any] overt act [to effect the object of the conspiracy] occurred." (Emphasis supplied.) OCGA § 16-4-9. See also OCGA § 16-4-8 (person commits offense of conspiracy to commit a crime "when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). As appellant himself admitted, prior to his alleged withdrawal from the conspiracy, he acted to lead his co-indictees to the home where the victims were present; told his co-indictees, who were seeking victims to rob, about the dice game money he observed on the floor of the home; accompanied an armed co-indictee to the home and knocked on the door; and gave his name so as to enable his armed co-indictee to gain entry when the door was opened in response to appellant's words. The conspiracy to rob the victims could not have been effected without appellant's performance of these overt acts. See generally Bradford v. State, 285 Ga. 1(2), 673 S.E.2d 201 (2009) ("overt act" in OCGA § 16-4-8 refers to an open or manifest act made in furtherance of a conspiracy to commit a crime). Accordingly, because appellant's requested charge was not authorized by the evidence in the case, it was not error for the trial court to refuse to give it. See generally State v. Johnson, 280 Ga. 511, 630 S.E.2d 377 (2006) (requested jury charge must be legal, apt, adjusted to some principle involved in the case and authorized by the evidence).
4. Appellant failed to make a proper objection pursuant to OCGA § 17-8-58(a) regarding the trial court's failure to charge his supplemental requests to charge numbers 1 and 2, which identified abandonment and withdrawal as affirmative defenses that the State had the burden of disproving beyond a reasonable doubt. In light of the trial court's separate instructions to the jury that "it is an affirmative defense that [a person] abandoned his efforts to commit the crime," and that "[w]hen a defense is raised by the evidence the burden is on the State to negate or disprove it beyond a reasonable doubt," we conclude that the trial court's failure to give the requested supplemental charges cannot be considered such plain error under OCGA § 17-8-58(b) as to offset appellant's failure to object. See Givens v. State, 264 Ga. 522(3), 448 S.E.2d 687 (1994) (when properly requested, trial court is required to give specific charge on State's burden of proof with respect to an affirmative defense). Appellate review of this enumeration is thus precluded. OCGA § 17-8-58(b).
5. Appellant contends the prosecutor during closing argument improperly commented on appellant's pre-arrest silence in violation of Mallory v. State, 261 Ga. 625(5), 409 S.E.2d 839 (1991) (comment upon a defendant's silence or failure to come forward is more prejudicial than probative). Under the unique situation present in this case, we find no error. The transcript reveals that, five days after the crimes were committed, police officers sought out appellant and questioned him regarding the crimes. Appellant gave a statement in which he admitted he knew of and participated in the plan to commit the armed robbery of the victims but claimed he then hesitated because of his friendship with the victims and abandoned the enterprise by running away. See Division 1, supra. During the course of this statement, appellant specifically told the interrogating detective that he was "going to call you all next week" to report what Benbow and Worthy had done to the victims. In her closing argument, the prosecutor reiterated this comment appellant had made to the interrogating detective when she argued that appellant could have but did not call the police in the days following the crimes. We hold that appellant invited the prosecutor's comment about his pretrial silence by making the statement to the interrogating officer that he had intended to call the police "next week" and thereby raised an issue regarding his failure to come forward before the interrogation that the prosecutor was legitimately authorized to address in her closing argument. Moreover, we note that the prosecutor's comments in closing argument did not exceed the scope of the invited response. Under these circumstances, we find no erroneous *290 prosecutorial comment on silence. See generally Morgan v. State, 267 Ga. 203(3), 476 S.E.2d 747 (1996) (closing argument is appropriate as long as it is derived from evidence properly before the factfinder).
Judgment affirmed.
All the Justices concur, except MELTON and NAHMIAS, JJ., who concur specially.
NAHMIAS, Justice, concurring specially.
I join the majority opinion except for Division 2, as to which I concur only in the result. I believe that more analysis than the majority provides in Division 2 is needed to properly reach the result the majority comes to on that issue. More importantly, prosecutors and trial courts could fairly read the majority opinion as authorizing the exclusion of any and all cross-examination of the State's witnesses regarding parole eligibility, which I believe could, in some cases, result in reversible error.[3]
The trial court refused to allow appellant to cross-examine Kendall Worthy, a co-defendant who was testifying against appellant pursuant to a plea bargain with the State, regarding Worthy's parole eligibility. In quickly rejecting appellant's challenge to that ruling, the majority cites Hewitt v. State, 277 Ga. 327(2), 588 S.E.2d 722 (2003), with the explanatory parenthetical "(because authority to grant parole rests with [the] Board of Pardons and Paroles and not the district attorney's office, cross-examination [about] parole is irrelevant on question of witness's potential bias in testifying favorably for the [district attorney])." I believe this explanation is too broad and cannot, by itself, dispose of this case.
In accordance with the decisions of the United States Supreme Court, this Court has explained that:
"The Sixth Amendment to the [U.S.] Constitution guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him.'. . . The main and essential purpose of [the right of] confrontation is to secure for the opponent the opportunity of cross-examination.. . . The partiality of a witness is subject to exploration at trial, and is `always relevant as discrediting the witness and affecting the weight of his testimony.' [Cit.]"
State v. Vogleson, 275 Ga. 637, 638, 571 S.E.2d 752 (2002) (quoting Davis v. Alaska, 415 U.S. 308, 315-317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)).
This principle is particularly important with witnesses who have substantial incentives to cooperate with the government. "What counts is whether the witness may be shading his testimony in an effort to please the prosecution. `A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.' [Cit.] [Cit.]" Hines v. State, 249 Ga. 257, 260, 290 S.E.2d 911 (1982) (quoting Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir.1981)). Accordingly, "[d]efense counsel is entitled to a reasonable cross-examination on the relevant issue of whether [a] witness entertained any belief of personal benefit from testifying favorably for the prosecution." Vogleson, 275 Ga. at 639, 571 S.E.2d 752.
We have also repeatedly held, however, that trial courts:
"retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation *291 that is repetitive or only marginally relevant."
Vogleson, 275 Ga. at 639, 571 S.E.2d 752 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).
In seeking to reconcile the broad right to cross-examine cooperating witnesses and the trial court's broad discretion to regulate cross-examination, we have considered the extent of cross-examination allowed on other subjects and have also focused on whether the defendant was seeking to elicit "objective evidence" of the disparity between the sentence the witness will get as a result of his cooperation and the sentence he faced had he not cooperated, as opposed to the witness's mere hope for or speculation about the possibility of a lower sentence. See, e.g., Vogleson, 275 Ga. at 638, 571 S.E.2d 752 (objective evidence allows the jury to "determine whether the witness is biased to a degree that affects credibility and is an appropriate subject of inquiry"); Howard v. State, 286 Ga. 222, 225(2), 686 S.E.2d 764 (2009) (question is whether the witness "obtained a concrete benefit for her testimony by which an objective comparison could be made to her potential sentences"); Hodo v. State, 272 Ga. 272, 273, 528 S.E.2d 250 (2000) (cross-examination regarding possible sentence if witness were ever charged for criminal conduct admitted in his testimony properly excluded as "conjecture").
Our cases have mostly involved such disparities in the maximum sentences the witness faced, where the analysis is usually straightforward: compare the total maximum statutory sentence for the charge(s) the witness originally faced with the total maximum sentence for the charge(s) the witness faces after his agreement with the State. See, e.g., Vogleson, 275 Ga. at 637, 571 S.E.2d 752 (witness's guilty plea reduced his maximum sentence exposure from 25 years to 10 years).
The same reasoning applies, however, to a concrete disparity between the witness's minimum sentences resulting from the charging decisions made by the district attorney in exchange for the witness's cooperation and testimony for the State. The question then is not a change in the last date that the witness would get out of prison, based upon the maximum sentence the trial court did or could have imposed on the relevant charges, but rather a change in the first date when the witness would be eligible to leave prison, based upon parole eligibility pursuant to the relevant charges. The analysis of such disparities may be more complicated, both because determining parole eligibility often requires looking beyond the terms of the charged offenses to consider the statutes, rules, and practices relating to parole, see, e.g., OCGA §§ 17-10-6.1, 17-10-7, 42-9-39, 42-9-40, and because the Board of Pardons and Paroles is independent of the district attorneys and generally has broad discretion to grant or deny parole, as is correctly noted in Hewitt, 277 Ga. at 327, 588 S.E.2d 722 and in the majority opinion. See also Daker v. Ray, 275 Ga. 205, 206, 563 S.E.2d 429 (2002) (parole guidelines established and used by the Parole Board "simply establish an initial date of eligibility for parole, and the ultimate grant or denial of parole to a prisoner who is eligible for parole remains a discretionary matter for the Board").
But that does not mean that an objective and significant disparity in parole eligibility can never be presented. In some cases, particularly those involving statutory mandatory minimum sentences for certain offenses and recidivists, the Parole Board's discretion is limited by statute or by the rules it has adopted. See Ray v. Barber, 273 Ga. 856, 857, 548 S.E.2d 283 (2001) (affirming mandamus order where the Parole Board failed to follow its statutory duties and its rules in determining a tentative parole date). And there is no doubt that, in some cases, the opportunity for earlier release from prison, even if not guaranteed, is an important consideration for a witness facing time behind bars and therefore is an appropriate subject for cross-examination.
The most obvious example would be if the witness had originally faced a life sentence without possibility of parole but, after pleading guilty, faces life with the possibility of parole. While there still can be no certainty that the Parole Board will ever actually parole the witness, the witness's opportunity to *292 leave prison alive, rather than in a casket, is unquestionably a real benefit that could influence the witness's testimony and that the defendant is therefore entitled to make known to the jury. Where the witness's parole eligibility is reduced through the interaction of the district attorney's charging decisions and the laws governing parole, there may be a provable disparity that, if it is significant and was understood by the witness, is a legitimate subject for cross-examination. Likewise, in cases where the district attorney agrees to make a recommendation to the Parole Board in exchange for the witness's cooperation, that benefit is fair game for cross-examination.[4]
This does not mean that parole eligibility will regularly be a topic for cross-examination. In many cases, the time served before parole eligibility will not be affected by the State's dismissal or non-prosecution of some portion of the charges the witness faced. In other cases, evidence regarding the change in parole eligibility would add little to evidence regarding the change in the maximum sentence the witness faced, because the parole eligibility is simply proportional to the total sentence, and thus it could be limited or excluded in the trial court's discretion. In still other cases, the defendant would need to offer or proffer concrete evidence of the operation of the relevant parole statutes, regulations, or practices to show that an objective disparity in eligibility exists. And in every case, the witness would need to understand the parole disparity and its connection to the district attorney's charging decisions for the issue to be open to cross-examination, as witnesses cannot be influenced by matters about which they are unaware.
It cannot be said, however, as the majority opinion does in Division 2, that simply "because authority to grant parole rests with [the] Board of Pardons and Paroles and not the district attorney's office, cross-examination [about] parole is irrelevant on question of witness's potential bias in testifying favorably for the [district attorney]." There will be cases where a significant difference in parole eligibility can be objectively shown under existing law and practice, notwithstanding the Parole Board's independence and discretion. And if prosecutors and trial courts follow the majority's summary approach, there will be cases where they commit reversible errorwhether that error is reversed by this Court, by limiting or overruling this case and Hewitt, or by the United States Supreme Court, in accordance with decisions such as Davis v. Alaska.
I nevertheless believe that the trial court in this case did not abuse its discretion in excluding cross-examination regarding Worthy's parole eligibility, although to reach that conclusion, I believe more than summary analysis is required. The record indicates that Worthy was originally charged with offenses carrying multiple life sentences plus many more years, all with the possibility of parole; after his plea to a subset of the charges, he faced only one life sentence, still with the possibility of parole. At trial, appellant's counsel suggested that under OCGA § 17-10-6.1, Worthy was originally not parole-eligible, but the transcript does not indicate that Worthy was a recidivist and absent that, he was parole-eligible under that statute.
Section 17-10-6.1(c)(1) cross-references OCGA § 42-9-39, which provides that if Worthy had received consecutive life sentences including one for murder, he would have had to serve consecutive 30-year sentences for each such sentence, up to a maximum of 60 years, before being eligible for parole. So in theory, if Worthy had been convicted of more of his original charges and if the trial court had then sentenced him to consecutive life sentences, his parole eligibility would have come after 60 years in prison, rather than after 30 years (see OCGA § 17-10-6.1(c)(1)) as a result of his plea. That would mean the difference between Worthy, who was 21 years old at the time of trial, possibly getting out of prison in middle-age *293 or only having that chance as an octogenarian. That is a difference I believe would be significant to most young defendants and one that could affect how a jury evaluated such a witness's testimony for the State (particularly if the testimony about Worthy's maximum sentence left the impression that, despite the dismissal of charges pursuant to his plea bargain, he would still serve a "life sentence"). However, in the discussion at trial, defense counsel never mentioned OCGA § 42-9-39, and in the absence of such argument or more evidence on this point, I believe it too speculative to assume that the trial court would have given Worthy consecutive, rather than concurrent, life sentences had he not pleaded guilty. In this respect, I note that the trial court sentenced appellant, who was convicted after trial, to life for his felony murder conviction and to three concurrent life sentences on his armed robbery convictions.
During the argument on this issue at trial, the State noted that the defense had not offered any other evidence of a difference in parole eligibility, from someone familiar with the corrections system, for example. Finally, while Worthy told defense counsel that he thought he would be eligible for parole at some point, there is no evidence that Worthy thought he would not have been parole-eligible as originally charged. Thus, while Worthy's maximum sentence was greatly reduced by his dealand cross-examination was properly allowed on that issuethere was no solid evidence that his parole eligibility was substantially different or that he understood it to be different because of his plea bargain with the State. Under these circumstances, in my view, the trial court did not abuse its discretion is denying cross-examination on parole eligibility.
Hewitt and Division 2 of the majority opinion state without restriction that parole eligibility is "irrelevant" to a cooperating witness's potential bias in testifying favorably for the State and hold that all cross-examination on that subject may therefore be prohibited. I believe those statements sweep too far, and that prosecutors and trial courts should be wary of accepting that invitation, rather than analyzing the issue more carefully as discussed above. For these reasons, I concur only in the result of Division 2.
I am authorized to state that Justice MELTON joins in this special concurrence.
NOTES
[1] The crimes occurred on October 14, 2006. Mikell was indicted December 11, 2006 in Bulloch County along with Marcus Benbow, Bryan Hughley and Kendall Worthy. The 24-count indictment charged Mikell with malice murder, felony murder, burglary, six counts each of armed robbery, aggravated assault and false imprisonment, two counts of possession of a firearm during the commission of a crime (one each for the two weapons used during the crimes) and possession of a firearm by a convicted felon. The State nol prossed the final charge and two armed robbery charges. On May 22, 2008, a jury acquitted him of malice murder, burglary, the false imprisonment charges and the two firearm possession charges and found him guilty of the remaining charges. He was sentenced that same day to life for the felony murder charge, into which the trial court merged the armed robbery and aggravated assault charges as to the murder victim; three concurrent life sentences for the remaining armed robbery charges; and a consecutive 20-year sentence for aggravated assault with four concurrent 20-year sentences for the remaining aggravated assault charges. Mikell's motion for new trial, filed May 28, 2008 and amended March 10, 2009, was denied May 15, 2009. A notice of appeal was filed May 22, 2009. The appeal was docketed July 9, 2009 and was submitted for decision on the briefs.
[2] We thus reject the State's erroneous assertion that this enumeration has not been preserved for appellate review.
[3] The majority suggests that saying anything more than it does in Division 2 would be obiter dicta. Majority Op. at 288. If by that the majority means that its holding in Division 2 is very narrow and applies only to the facts of this case, and that its broad language does not constitute binding precedent, then that is a good thing, for all the reasons discussed below. My concern is that the unrestricted language used by the majority will nevertheless be cited as controlling by prosecutors, trials courts, and perhaps even this Court, as the majority has cited Hewitt, with the ultimate result being that defendants' Sixth Amendment right of confrontation will be improperly limited or, conversely, that hard-won convictions on behalf of crime victims will be reversed by appellate courts that more thoroughly analyze the issue.
[4] The fact that the Parole Board is an independent agency and might not follow the recommendation does not make the recommendation irrelevant, any more than the fact that even-more-independent trial judges may not follow a district attorney's recommendation as to how a cooperating defendant should be sentenced. The recommendation still has value to the cooperating defendantor there would be no point in its being offered and made by the district attorney. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324921/ | 153 Ga. App. 29 (1980)
264 S.E.2d 523
WALL
v.
CITIZENS & SOUTHERN BANK OF HOUSTON COUNTY.
58909.
Court of Appeals of Georgia.
Submitted October 31, 1979.
Decided January 9, 1980.
*33 Thomas Hylmon Wall, III, for appellant.
Pamela M. Richards, for appellee.
McMURRAY, Presiding Judge.
This is the second appearance of this suit on a note before this court (see Wall v. Citizens & Southern Bank, 145 Ga. App. 76 (243 SE2d 271)).
Since the last appeal this case has returned to the trial court where at the close of all the evidence the trial court directed a verdict in favor of the plaintiff and against the defendant on January 29, 1979. But no judgment followed as to the directed verdict. Defendant filed his motion for judgment notwithstanding the verdict or for a new trial on March 1, 1979. This motion was denied on July 9, 1979. On August 7, 1979, defendant filed his notice of appeal from the order which denied his motion for judgment notwithstanding the verdict or a new trial. On October 31, 1979, the date on which this case was scheduled and called for argument before this court, a final judgment was entered and filed in the trial court in this case nunc pro tunc to January 30, 1979. This nunc pro tunc judgment was filed in this court on November 2, 1979. Held:
1. The notice of appeal is sufficient to advise the opposing party that an appeal is being taken from a specific judgment, and the notice contained sufficient information so as not to prejudice or mislead the appellee. Under these circumstances we would have jurisdiction to consider the merits of this appeal. See Gillen v. Bostick, 234 Ga. 308, 310-311 (1) (215 SE2d 676); Kenerly v. Yancey, 144 Ga. App. 295, 296 (1) (241 SE2d 28). The appeal before us is from the trial court's order denying the defendant's motion for judgment notwithstanding the verdict or a new trial in which there was no judgment following the verdict. See Dodson v. Dodson, 231 Ga. 789 (1) (204 SE2d 109); Harrison v. Harrison, 229 Ga. 692 (194 SE2d 87). One *30 may not file a motion for new trial prior to entry of the judgment on the verdict. A motion for judgment notwithstanding the verdict likewise must be filed "[n]to later than 30 days after entry of judgment." Code Ann. § 81A-150 (b) (Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248). The trial court did not enter a judgment even though an order directing the verdict, having the effect of a verdict of the jury, was issued. Code Ann. § 81A-150 (a) supra. Compare Anthony v. Anthony, 236 Ga. 508, 509 (224 SE2d 349) and p. 514 wherein the case was further considered on motion for rehearing. In that case the Supreme Court held that there was no proper appeal and dismissed it.
2. A motion for judgment notwithstanding the verdict or for a new trial filed prior to entry of the judgment on the verdict is void. Hence, there was no error on the part of the trial court in denying the motion for judgment notwithstanding the verdict or for a new trial. Harrison v. Harrison, 229 Ga. 692 (1, 2), supra.
3. Applying the rule set forth in Gillen v. Bostick, 234 Ga. 308, supra, if the trial court would be allowed to file a nunc pro tunc judgment after appeal so as to follow the verdict that was directed and make the judgment effective January 30, 1979, some six months prior to the date the notice of appeal was filed; that is, if we deem the lower court had such authority, after the case was docketed in this court, to enter a nunc pro tunc order, dated October 31, 1979, this would amount to a trap for the appellant (defendant) resulting in the loss of his ultimate right of appeal as to that late filed judgment. Rather, such order filed and made effective nunc pro tunc is a nullity and does not require this court to consider it, as the lower court lost jurisdiction of this case on appeal. See Allied Productions, Inc. v. Peterson, 233 Ga. 266, 267 (211 SE2d 123); Park v. Minton, 229 Ga. 765, 766 (4) (194 SE2d 465); Walker v. Walker, 239 Ga. 175, 176 (236 SE2d 263); Aetna Cas. &c. Co. v. Bullington, 227 Ga. 485 (1) (181 SE2d 495); G.M.J. v. State of Ga., 130 Ga. App. 420, 422 (3) (203 SE2d 608); Jackson v. Martin, 225 Ga. 170, 172 (167 SE2d 135); Philips Broadcast Equip. Corp. v. Production 70's, Inc., 133 Ga. App. 765, 766 (1) (213 SE2d 35). Compare Holleman v. Holleman, 69 Ga. 676 and Swindle v. Swindle, 221 Ga. *31 760 (5), 763 (147 SE2d 307) (both involving temporary alimony); Thomas v. Home Credit Co., 133 Ga. App. 602, 604 (1) (211 SE2d 626) (payment of costs and opening default before remittitur returns to lower court); Shepherd v. Shepherd, 233 Ga. 228, 232 (210 SE2d 731) (revision of temporary alimony still in breast of lower court pending appeal).
4. In considering the other enumerations of error, the defendant in arguing his case by brief has not followed the proper sequence of his enumerations of error. Indeed he has combined certain of the alleged errors in the same enumeration and has jointly argued various alleged errors in the brief and not in sequence. We have endeavored to consider the various enumerations so as to rule on every enumeration argued. We proceed to consideration of all other enumerations of error.
As a basis for a reversal of the directed verdict in favor of plaintiff, defendant contends that "[a]ll actions upon promissory notes ... shall be brought within six years after the same shall have become due and payable." Code § 3-705. The note in question is not under seal. The note in this case is dated July 2, 1970, and contemplated that the last payment under the note would be made on July 15, 1971, or less than six years prior to September 28, 1976, the date on which this action was initiated. The statute of limitation as to all payments under the entire contract does not begin to run until after the date the last payment becomes due. Glass v. Grant, 46 Ga. App. 327, 328 (2) (167 S.E. 727); Slaten v. College Park Cemetery Co., 54 Ga. App. 451 (2) (188 S.E. 257). Defendant's testimony was that he made no payments on the note whatsoever resulting in demands for payment of the entire amount of the note being made by plaintiff prior to September 28, 1970. In other words, defendant contends that plaintiff accelerated the note so that all payments under the note were due and payable more than six years prior to the initiation of this action. 54 CJS 92, Limitations of Actions, § 150, sets forth the general rule that "... if the creditor elects to exercise his option [to accelerate the maturity of the debt] the statute of limitation begins to run from the time of such election, ..." Compare Slaten v. College Park Cemetery Co., 54 Ga. App. 451, supra, in which no election to accelerate *32 was made.
Acceleration of the note is denied by plaintiff. Plaintiff contends that this factual dispute was determined in the previous appeal to this court when, in an opinion by Judge Webb, this court stated that "[t]he bank had taken no action to collect or accelerate the balance due until the instant suit was filed ..." Wall v. Citizens & Southern Bank, 145 Ga. App. 76, supra.
Plaintiff's argument is without merit, however, as the evidence at trial differs substantially from that on the motion for summary judgment reviewed on the prior appeal. Therefore, the quoted language from the decision on that appeal is not res judicata. Davis v. Wight, 207 Ga. 590 (1) (63 SE2d 405); Williams v. Rentz Banking Co., 114 Ga. App. 778, 781-782 (152 SE2d 825). Accordingly, an issue of material fact remains as to whether the note was accelerated more than six years prior to the initiation of this lawsuit. The trial court erred in directing the verdict in favor of the plaintiff.
5. The contention that the note in question had been assigned to "Financial Collection Agencies" presents no defense where, as here, plaintiff is the holder of the note and none of the provisions of Code Ann. § 109A-3-603 (Ga. L. 1962, pp. 157, 277) prevent recovery. Code Ann. § 109A-3-301 (Ga. L. 1962, pp. 156, 252). See also in this regard Tidwell v. Bank of Tifton, 115 Ga. App. 555, 556 (1) (155 SE2d 451). There is no merit in defendant's enumeration of error No. 3 as to the alleged assignment of the note.
6. Although there is evidence that the note was executed by defendant to satisfy a deficiency remaining after the sale of collateral securing a prior obligation, this suit is not on that prior obligation. There is no evidence of the sale of any collateral securing the note in question. Therefore, Code Ann. § 109A-9-504 (3) (Ga. L. 1978, pp. 1081, 1130) which deals with notification to the debtor of the time and place of sales of collateral is not relevant to this action. The trial court did not err in failing to direct the verdict in favor of the defendant.
Judgment reversed. Banke and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324923/ | 152 Ga. App. 872 (1980)
264 S.E.2d 489
MOCK et al.
v.
CANTERBURY REALTY COMPANY.
58414.
Court of Appeals of Georgia.
Argued September 11, 1979.
Decided January 8, 1980.
Robert E. Hall, for appellants.
William R. King, W. Pitts Carr, David H. Pope, Charles B. Zirkle, Jr., for appellee.
BIRDSONG, Judge.
Summary judgment. The appellants, Mock and Tam-O-Shanter Properties, Inc. (TOS), undertook to purchase several hundred acres of land divided into separate parcels, most parcels being individually held by separate banks. The banks held title to the land due to deeds in lieu of foreclosure executed by an earlier developer. Each bank held title to a portion of the entire tract equivalent in ratio to that bank's portion of the entire loan to the original developer. TOS, together with Mock as its principle owner, executed security deeds to the several banks in addition to a minimal cash down payment. Each bank established a schedule of installment payments on the security deeds to be made by TOS based upon the projected sale of lots and houses thereon. TOS and Mock (and Mock's real estate firm) entered into an agreement with the appellee, Canterbury Realty Co., whereby Canterbury agreed to aggressively promote lots and homes for sale by TOS. Among other financial arrangements, TOS executed four notes to Canterbury. In substance each note reflected TOS' payment of deferred real estate commissions due Canterbury arising from TOS' purchase from a bank of that bank's undivided interest in the whole parcel of real property. Minimum payment on any annual installment due on a Canterbury note was 5% of the cash amounts paid in partial liquidation of the purchase price to the particular bank *873 from whom the land was purchased. In effect the face amount of each promissory note for commissions from TOS to Canterbury was based upon the total purchase price paid by TOS to the selling bank. However, to limit the financial impact upon TOS which was in the process of purchasing a several million dollar development, to be paid to the selling banks over a period of several years from funds generated by the development of the lots and sale of homes thereon, TOS was not obligated to pay Canterbury the entire real estate commission at the outset. Nevertheless, each note called for a sum certain to be paid, this amount being equal to the real estate commission payable for a sale of a particular tract at the full price as if paid in one payment. The installment payments called for in each note were based upon the projection of minimum sales generated by Canterbury during each year of the existence of the note. There was a provision also that TOS could pay partial prepayments on the note, with such partial prepayments credited to the next annual principal payment due. Apparently this provision contemplated that Canterbury might generate more than the minimum sales during any given year. If Canterbury failed to generate the promised sales, TOS also had the right to terminate the exclusive agency granted to Canterbury. Each note however also provided that Canterbury had the right to declare the total amount due and forthwith payable in advance of the maturity date upon the failure of TOS to pay when due any one of the installments. It is uncontested that each of the notes was executed by TOS, remain unpaid, and that demand for payment has been made by Canterbury.
In addition to the four notes executed by TOS, Mock in his individual capacity executed a $5,000 note to Canterbury. This note was prepared on a standard business form entitled "Real Estate Note Equal Monthly Payments." However, the note as executed was an unequivocal promise by Mock to pay to Canterbury the sum of $5,000. The face of the form note provided blanks for stating a rate of interest and a number of monthly installments, in amounts and frequency to be inserted. These spaces were not filled in on the face of the note. The form note also provided a blank to insert the place at *874 which principal and interest might be paid as well as provisions for a security deed. Neither were these blanks filled. In substance then the note provided only that Mock would pay Canterbury the sum of $5,000.
Canterbury filed suit against several defendants, including Mock as an individual and TOS as a corporate defendant. In its complaint Canterbury sought to recover the $5,000 from Mock on the individual note and a sum of $44,863.12 from TOS based upon the four notes signed by TOS in favor of Canterbury, in addition to certain other claims. Mock and TOS filed an answer denying the indebtedness and filed a counterclaim. The counterclaim asserted that Canterbury had "meddled" in the affairs of TOS to the extent that major lenders had refused to continue to make advances to TOS requiring TOS to execute deeds back to the lenders in lieu of foreclosure. TOS sought in excess of $1,000,000 as punitive damages as a deterrence to Canterbury. The trial court granted summary judgment to Canterbury as to the note executed by Mock and as to the four notes executed by TOS, but did not mention or otherwise dispose of the remaining counts of the complaint or the counterclaim. The court entered final judgment on the notes in the amount claimed. The briefs reflect that Canterbury has sought a fi. fa. on the judgment. Mock and TOS bring this appeal enumerating two alleged errors. Held:
1. In their first enumeration of error, appellants Mock and TOS urge that it was error for the trial court to grant summary judgment to Canterbury without also disposing of the counterclaim. This enumeration presents a procedural question that is clouded in confusion. The progenitor of what would appear to be a supportive rule is found in Rubel Baking Co. v. Levitt, a 1968 case of this court found at 118 Ga. App. 306 (163 SE2d 437). That case held in substance that where the defendant urges a legally sufficient counterclaim for an amount in excess of the amount demanded in the petition, the denial of a motion for summary judgment in toto ordinarily will not be error. From this holding declaring only that ordinarily the denial of summary judgment, where a valid counterclaim is pending, is appropriate, this court has significantly extended the Rubel rationale for reasons not apparent. In *875 McDonald v. Parker, 134 Ga. App. 577 (215 SE2d 334), the trial court was faced with a suit involving a note for $3,000. McDonald admitted the note but urged partial satisfaction. McDonald also filed a counterclaim, which if established, would have allowed McDonald to recoup $3,780, an amount in excess of the principal and interest sought on the note by Parker. In those circumstances, this court held that the trial court erred in granting summary judgment in any amount to Parker. Though no authority was cited for this statement, it would appear to have its genesis in the Rubel holding that ordinarily it is not error to deny summary judgment where the amount of a valid counterclaim exceeds the amount of the original claim. It was a major extension of the beneficent rule that it is not error to deny summary judgment where there is a significant chance that the plaintiff's recovery might be substantially reduced or offset, to one that asserts it is error to grant summary judgment under such circumstances. Since the McDonald v. Parker case, supra, that rule has been expressed repeatedly by this court. One of the latest cases stating the expanded rule is Match Point v. Adams, 148 Ga. App. 673, 675 (252 SE2d 90), in which this court held without stating a rationale that where the order granting summary judgment to appellees made no reference to the counterclaim, it was error to grant the summary judgment on the complaint without also ruling on the counterclaim. The citation in sole support for this ruling was Shaw v. Cousins Mtg. &c. Investments, 142 Ga. App. 773 (7) (236 SE2d 919), which in turn relied upon Real Estate World v. Southeastern Land Fund, 137 Ga. App. 771 (224 SE2d 747). Real Estate World held that the trial judge erred in granting summary judgment to the plaintiff on a note while defendant's counterclaim, which alleged a right of recovery, was still pending. The authority cited for that holding was McDonald v. Parker, supra. Thus, the evolution of the positive pronouncement found in Match Point v. Adams, supra, would appear to have its creative support in the Rubel decision, a case that clearly did not hold or establish a rule that it is error to grant summary judgment where there is a pending counterclaim.
We further observe that what appeared to be a *876 permissive exercise of judicial discretion in the Rubel case, has moved somewhat toward a more arbitrary rule. Following the Rubel decision in 1968, this court followed the rule announced therein in the case of Tipton v. Harden, 128 Ga. App. 517, 519 (2) (197 SE2d 746), adhering to the principle that it is not an abuse of discretion to deny a summary judgment in the face of a valid, pending counterclaim. However, in White v. Watson Enterprises, a 1973 case appearing at 129 Ga. App. 203, 205 (2) (199 SE2d 357), this court held: "Of course, the filing of a legally sufficient counterclaim in excess of plaintiff's claim ordinarily requires the denial of a motion for summary judgment." (Emphasis supplied.) The basis for this pronouncement was the Rubel case. It is interesting to note that because as a matter of law the counterclaim did not exceed the plaintiff's claim (and because the Rubel case was not controlling), this court affirmed a grant of summary judgment to the plaintiff even though there was a pending counterclaim.
Yet another line of cases has evolved from the supportive case of Rubel Baking Co. v. Levitt, supra. In Mays v. C. & S. Nat. Bank, 132 Ga. App. 602, 606 (208 SE2d 614), this court held: "Because there was a cross claim pending at the time the motions [for summary judgment] were filed, seeking recovery of sums in excess of the amount sought by plaintiff, and plaintiff in its motion sought no adjudication thereof, it would appear that plaintiff's partial motion for summary judgment sought an interlocutory adjudication." When the trial judge entered a final judgment on the partial grant, this court held: "In doing so he erred, because the recovery of plaintiff could be lessened by a recovery by the defendant on the counterclaim, or if the amount of the counterclaim recovery be sufficient, even secure a recovery against the plaintiff over and above the amount of the plaintiff's claim." Mays, supra, p. 606. This error was found to be harmless within the context of that case because the counterclaim was held legally not to exist. Citing the Mays case, this court held in Kinsey v. Fidelity Nat. Bank, 139 Ga. App. 217, 221 (3) (228 SE2d 161) that "[t]here is no evidence piercing the pleadings, and the trial judge, therefore, erred in sustaining the plaintiff's motion for *877 summary judgment against the counterclaim and in entering judgment against the defendant on the note prior to the counterclaim being determined." This portion of the ruling in the Kinsey case is the same as that announced in the decisions in Match Point, Shaw, and Real Estate World, supra.
However, a portion of the decision in the Mays case spawned another theory. For instance in Cobb County Syndicate I v. Berens, 144 Ga. App. 775, 777 (242 SE2d 629), this court found that: "The court did not grant summary judgment as to the counterclaim but merely as to the deficiency, thus being the grant of a partial summary judgment." On the ground that the trial court did not grant or deny summary judgment as to the counterclaim nor enter a money judgment for amount sought in the complaint, the court distinguished Rubel, Tipton, Mays, Shaw, and Real Estate World, supra. In substance, the decision held that all the trial court sought to do was to eliminate issues by a partial grant of summary judgment and thus in the guise of summary judgment formulate a pretrial order to limit the issue to be tried at the ultimate trial of the counterclaim. This partial summary judgment doctrine was followed in Fagala v. Morrison, 146 Ga. App. 377, 378 (2) (246 SE2d 408). Fagala had maintained that because his pending cross claim was for an amount greater than that sued for by the appellees, it was error to grant summary judgment to the plaintiffs. However, in that case the trial court did not enter final judgment thus leaving the grants of summary judgment still pending in the lower court, subject to the resolution of the unresolved issues. For that reason, the court distinguished Rubel and Cobb County Syndicate I, supra.
One of the most recent pronouncements of this court on this issue was found in Ivey Contracting Co. v. Elliott, 151 Ga. App. 361 (259 SE2d 658) (1979). In that case, the plaintiff brought suit on a promissory note. The defendant counterclaimed. The trial court granted summary judgment to the plaintiff but left the pending counterclaim for future resolution. On appeal, this court directly faced the issue of the impact of the pending counterclaim on the grant of summary judgment on the main action. The first issue resolved was that the grant of *878 summary judgment was called for by the evidence. The court then analyzed several of the cases discussed hereinabove (i.e., Rubel Baking Co. v. Levitt; Kinsey v. Fidelity Nat. Bank; Cobb County Syndicate I v. Berens; Mays v. C & S. Nat. Bank) and concluded that once a plaintiff-claimant has demonstrated entitlement to summary judgment as to liability, sound reasoning dictates that the plaintiff should not be required once again to prove that entitlement. In the Ivey case, this court concluded that any potential harm to the defendant would be obviated by an affirmance of the final order granting summary judgment to the plaintiff with direction that the amount of the recovery against defendant be reduced by the amount, if any that the defendant might recover on its counterclaim. The opinion also noted that any fi. fa. on the final judgment in favor of the plaintiff would be issued and effective only after the trial on the counterclaim. While we are aware that the trial court issued a final order in the instant case by declaring that no reason existed why final judgment should not be entered and that Canterbury has sought the issuance of a fi. fa. on that judgment, this does not negate the suspension of the vitality of the fi. fa. caused by the prompt and timely filing of the appeal by the appellants. See Code § 39-115.
We are persuaded by the logic advanced in the latest discussion of the issue by this court. There seems to be no sound reason to conclude that where there is a pending valid counterclaim, the trial court must deny a persuasive and valid motion for summary judgment, or alternatively, that it is error per se to grant a motion for summary judgment where there is a pending, valid counterclaim. Nevertheless, we recognize the inherent discretion vested in a trial court to weigh the equities of the situation and find no flaw in the reasoning of the Rubel and Tipton decisions that ordinarily it is not error for the trial court to deny what appears to be valid grounds for a summary judgment in the face of a valid, pending counterclaim where there is a reasonable probability that the recovery of the plaintiff will be greatly mitigated or even off-set by the defendant's recovery on the trial of the counterclaim. We believe that in each of these situations, the trial court should examine the question of the viability of the motion *879 for summary judgment on its own merits, independently of the merits of a pending, valid counterclaim. By the device of summary judgment, the trial court can eliminate extraneous issues from the ultimate trial and yet protect the party against whom the grant of summary judgment is rendered pending the trial of the counterclaim by the expedient of refusing to issue a final judgment until the counterclaim is concluded. Such is the approach followed in the cases of White v. Watson Enterprises; Cobb County Syndicate I v. Berens; Fagala v. Morrison, and Ivey Contracting Co. v. Elliott, supra. Insofar as the following stated cases support a holding that the trial court must deny summary judgment, or errs per se by granting summary judgment in cases where there is a valid, pending counterclaim, we conclude those cases are in error and create an improper limitation upon the discretion of the trial court and will no longer be followed in that regard. Match Point v. Adams; Shaw v. Cousins Mtg. &c. Investments; Real Estate World v. Southeastern Land Fund; McDonald v. Parker; Mays v. C. & S. Nat. Bank; White v. Watson Enterprises; Kinsey v. Fidelity Nat. Bank, supra, are hereby overruled.
Based upon the foregoing, we conclude that the trial court did not err procedurally in granting summary judgment to Canterbury on the five notes. Though the trial court erred in entering a final judgment, thus authorizing the issuance of a fi. fa. prior to the resolution of appellants' counterclaim, we view that error to be harmless because of the supersedeas automatically invoked by the timely appeal taken by the appellants. We can continue that protection by affirming the final order granting partial summary judgment on the five notes with direction that the amount of Canterbury's recovery against the appellants for which fi. fa. will issue after trial of the counterclaim be reduced by the amount, if any, that appellants may recover on their counterclaim. "This would have the beneficial, economical and overall just effect of dispensing with the requirement that [Canterbury] again demonstrate [its] right to summary judgment on the note[s], while protecting [appellants] from enforcement of a money judgment until such time as the merits of its counterclaim may be established." Ivey *880 Contracting Co. v. Elliott, 151 Ga. App. 361 (4), 366 supra. The first enumeration is without merit.
2. In their second enumeration of error, appellants complain that the trial court ignored serious questions of fact and thus erred in granting summary judgment to Canterbury on the five notes. As to the four notes executed by TOS, appellants argue that no commissions were due to Canterbury until and unless sales occurred. Appellants contend that this is manifest from the face of each note itself because each note specifies commissions are figured on 5% of the cash amounts paid to the seller bank. Canterbury on the other hand argues that the notes are for a sum certain with an acceleration clause which has been invoked by Canterbury. It is Canterbury's contention that the notes are admitted, the notes show themselves to be due, and that TOS does not deny that demand has been made, or that payment has not been made.
In order to accept the arguments of the appellants, we would have to look beyond the face of the promissory note. However, we do not perceive the ambiguity advanced by appellants. The notes may mention that commissions are to be based on 5% of the amounts paid to the seller bank. However, that 5% has already been computed as a definite amount and constitutes each installment, the sum total of which adds up to the total commission due based upon the total selling price. Added to the fact that the cumulative total of the installment commissions equals the amount shown as due the payee of the note, is the right of the payee to declare the amount due on the note if any installment is not paid when due. Such a right is totally inconsistent with a contention that the commission is inchoate and to be fixed and determined each year in accordance with the amount of sales consummated.
The construction of a plain and definite contract, if needed, is a matter of law for the court; a contract is not ambiguous, even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties. Village Enterprises v. Georgia R. Bank &c. Co., 117 Ga. App. 773 (1) (161 SE2d 901). We find the provisions *881 of this contract to be plain, unambiguous and susceptible of only one interpretation. We decline to inquire behind the plain meaning of the notes in question so as to vary their meaning as contended by appellants. The parol evidence rule fixes the finality of a written contract which is unmixed with fraud respecting the subject matter. Dolanson Co. v. C. & S. Nat. Bank, 242 Ga. 681 (251 SE2d 274); Ansley v. Forest Services, 135 Ga. App. 745 (218 SE2d 914). It is moreover a rule of substantive law, and even though parol evidence be erroneously admitted without objection, it is without probative value to vary terms of a written contract. Lyon v. Patterson, 138 Ga. App. 816, 820 (227 SE2d 423); Cooper v. Vaughan, 81 Ga. App. 330, 337 (58 SE2d 453).
As to the note signed by Mock individually, Mock argues that the note is uncertain and vague and thus is no note at all. We disagree. The absence of a maturity date creates a demand note. Pugh v. First Nat. Bank, 130 Ga. App. 627, 628 (2) (204 SE2d 370). The absence of any installment due dates or amounts due on installments simply created the note a demand note for the face amount of the note. We are not concerned by the absence of an interest rate inasmuch as appellant is seeking only the face amount of the note, i.e., $5,000. Thus, there is no ambiguity involved; only a $5,000 demand note for which demand has been made. Once again we will not examine beyond the clear intent of the written document to add to or detract from the stated terms of the note. We reiterate that where the provisions of a contract are unambiguous, its interpretation is a question of law for the trial court. Henderson Mill Ltd. v. McConnell, 237 Ga. 807, 809 (229 SE2d 660). Courts, including this one, are not at liberty to revise contracts while professing to construe them. Smith v. Standard Oil Co., 227 Ga. 268 (1) (180 SE2d 691); Stuckey v. Kahn, 140 Ga. App. 602, 606 (231 SE2d 565).
The purpose of the Summary Judgment Act is to eliminate the necessity for trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, *882 603 (203 SE2d 173); Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442). Canterbury has met that burden in this case. We find no error in the partial grant of summary judgment as to each of the five notes involved in this appeal. Accordingly, the order granting summary judgment to Canterbury on the five notes is affirmed with direction that the amount of the money judgment be reduced by an amount equal to appellants' recovery, if any, on their counterclaim.
Judgment affirmed with direction. Deen, C. J., Quillian, P. J., Shulman and Carley, JJ., concur. Smith, J., concurs specially. McMurray, P. J., and Banke, J., concur in judgment only.[*]
SMITH, Judge, concurring specially.
I believe that Rubel Baking Co. v. Levitt, 118 Ga. App. 306 (163 SE2d 437) (1968), should be overruled. In my view, where a moving party satisfies the legal requirements for summary judgment, the court must grant the motion. The language of CPA § 56 (c) (Code Ann. § 81A-156 (c)) is mandatory: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ..." (Emphasis supplied.) In view of this statutory command, I believe it would be erroneous for a trial court not to enter summary judgment to a moving party where the legal criteria for summary judgment are satisfied. The amount of an opposing party's claim should have no bearing on the trial court's *883 determination as to whether a moving party is entitled to summary judgment.
Furthermore, I do not believe the main opinion's reference to the "expedient of refusing to issue a final judgment until the counterclaim is concluded" is necessary. A grant of summary judgment, though appealable, is not a final judgment upon which a fi. fa. can issue where a valid counterclaim is pending against the plaintiff. Culwell v. Lomas & Nettleton Co., 242 Ga. 242 (248 SE2d 641) (1978). See 33 CJS 138-139, Executions, § 6. Moreover, where a valid counterclaim is pending, I do not believe the trial court would generally be authorized to enter a final judgment under CPA § 54 (b) (Code Ann. § 81A-154(b)), by an express determination that "there is no just reason for delay" and an express direction for entry of judgment, unless the court also stays enforcement of the judgment under CPA § 62 (f) (Code Ann. § 81A-162(f)).[1]
Absent unusual circumstances which need not be considered here, there is a just reason for delay where a valid counterclaim is pending against the plaintiff. Where such a counterclaim is pending, entry of a final judgment without staying its enforcement would, in the usual case, amount to an abuse of discretion. See 6 Moore's Federal Practice 751, ¶ 54.41[3]. Upon resolution of the counterclaim, the court can offset the amount of the counterclaim against the amount of the main claim. Fagala v. Morrison, 146 Ga. App. 377, 378 (246 SE2d 408) (1978).
NOTES
[*] The eight judges constitute the whole court in view of the resignation of Underwood, J., effective December 31, 1979.
[1] The primary effect of conferring final judgment status on a summary judgment is to enable a party to enforce that judgment. The grant of summary judgment is appealable in any event under CPA § 56 (h) (Code Ann. § 81A-156 (h)). By entering a final judgment under CPA § 54 (b) and staying enforcement of that judgment under CPA § 62 (f), the court places the parties in virtually the same position as if it had merely granted summary judgment and taken no further action. In either case, (1) the grant of summary judgment is appealable and (2) the judgment is not immediately enforceable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324926/ | 274 S.C. 125 (1980)
264 S.E.2d 142
IMMANUEL BAPTIST CHURCH OF NORTH AUGUSTA, Respondent,
v.
C.H. BARNES, Individually and d/b/a Red Wing Rollerway, Inc., Appellants.
21109
Supreme Court of South Carolina.
January 8, 1980.
*126 *127 Arthur D. Rich, Aiken, for appellants.
Franklin D. Beattie, Jr., Aiken, for respondent.
January 8, 1980.
GREGORY, Justice:
This is an appeal from an order of the lower court permanently enjoining appellants C.H. Barnes, individually and d/b/a Red Wing Rollerway, Inc., from using the private driveway of respondent Immanuel Baptist Church of North Augusta. We affirm.
Mr. Barnes is the sole shareholder of Red Wing Rollerway, Inc. For purposes of this appeal, we refer to C.H. Barnes, individually and d/b/a Red Wing Rollerway, Inc. as appellant.
The parties are adjacent property owners whose respective chains of title share a common grantor, Mrs. Warren K. *128 Toole. The properties were once contained in a thirty-one acre tract owned by Mrs. Toole.
Appellant began construction of a skating rink on his property in December of 1976, with access for ingress and egress on Atomic Road, a well-traveled highway in North Augusta, South Carolina, whereon appellant's property fronts.
What appellant seeks is additional access to the skating rink for the convenience of his customers by connecting a private roadway running across his property to the private paved driveway used by respondent's church members and employees. The private driveway divides respondent's pastorium and other church facilities on one side and the church building itself on the other, and opens onto another public roadway, Old Edgefield Road.
The connection of appellant's private roadway from the skating rink to respondent's driveway would in effect open as a shared roadway what was once planned as Benson Drive, and is so designated on a plat prepared in April of 1955 of a proposed residential subdivision to be known as Happy Acres.
Happy Acres was a project envisioned by Mrs. Toole and her children for the adjacent properties now owned by appellant and respondent.
Appellant claims a right of way across the church driveway as a grantee in a chain of title to property first conveyed to him by deeds of Mrs. Toole's children referring to the Happy Acres plat.
Respondent church acquired several parcels or lots from Mrs. Toole and her children over a period of nine years. The first parcel was acquired before the plat of Happy Acres was prepared, and it is on this parcel that the church building stands. Thereafter, from 1955 through 1962 respondent acquired several other lots from the children by deeds referring to the plat.
*129 These additional lots were either adjacent to the original parcel or directly across the roadway shown as Benson Drive on the plat of Happy Acres. On them respondent constructed its pastorium and other church facilities, using that portion of the proposed Benson Drive which divided its property as a private driveway.
Happy Acres subdivision never materialized. Not one lot shown on the plat of Happy Acres was ever sold by Mrs. Toole's children to anyone besides respondent for residential purposes.
Consequently, the children decided to abandon the residential project, close the proposed streets showing on the plat, and market the property as a large, single commercial tract. To this end there was prepared an agreement entitled "Agreement for Closing Streets" dated December 22, 1959, and recorded June 4, 1963, which was signed by all of the children owning lots in the proposed subdivision and by respondent church.
This agreement reflected the intention of the parties to close Benson Drive and declared that it shall no longer be recognized or used for street purposes. However, that portion of the roadway which divided the church property and which was used by respondent as a driveway was left open by the agreement.
Subsequent to the execution of the agreement, respondent paved the driveway at its own expense. No other portion of the once proposed Benson Drive was ever opened or used as a street by anyone until 1976, when appellant constructed the skating rink. It is undisputed that respondent used its portion of Old Benson Drive as a private driveway undisturbed for a period of approximately twenty years.
In 1964, appellant Barnes acquired several lots from each of the Toole children which in the aggregate comprise the large tract he now owns and upon which the Red Wing Rollerway Skating Rink now stands.
*130 Barnes conveyed the lots that same year to one Strickland, who later re-conveyed the property to appellant by two deeds in 1976 and 1977. It was not until appellant re-acquired the property that he made plans to build the skating rink and obtain access to Old Edgefield Road by right of way across the church driveway.
This being a matter in equity wherein the lower court is in disagreement with the findings of the matter to whom the case was first referred, we are free to review the record to determine in our own view where the preponderance of the evidence lies. Bryant v. Coleman, 271 S.C. 512, 248 S.E. (2d) 479 (1978). In so doing, however, we are not required to disregard the findings of the lower court. Nienow v. Nienow, 268 S.C. 161, 232 S.E. (2d) 504 (1977). And those findings of the master concurred in by the lower court will not be disturbed unless found to be without evidentiary support or against the clear preponderance of the evidence. Wilson v. Wilson, 270 S.C. 216, 241 S.E. (2d) 566 (1978).
Appellant's major contention is that he originally acquired lots from the various Toole children by deeds referring to the subdivision plat on which Benson Drive appeared. The children had acquired the lots from Mrs. Toole. Accordingly, he argues there was a completed dedication of a private easement over Benson Drive to appellant as grantee.
When the owner of a tract of land lays it out in streets and lots on a plat and sells those lots by deeds referring to the plat, normally the legal effect is the creation and conveyance of private easements in the streets to the grantees. Outlaw v. Moise, 222 S.C. 24, 71 S.E. (2d) 509 (1952); Briarcliffe Acres v. Briarcliffe Realty Company, Incorporated, 262 S.C. 599, 206 S.E. (2d) 886 (1974); Carolina Land Company, Inc. v. Bland, 265 S.C. 98, 217 S.E. (2d) 16 (1975). The dedication of this private easement is complete as to the grantee, becomes part of the property conveyed, and inures to the benefit of the *131 grantee's successors in title. 23 Am. Jur. 2d, Dedication, § 25. Bland, supra.
It is an equally well-settled principle that an owner of an easement may relinquish that easement by abandonment, express or implied. Hodge v. Manning, 241 S.C. 142, 127 S.E. (2d) 341 (1962); Bland, supra; 28 C.J.S. Easements, § 58. The pivotal issue in determining whether there has been an abandonment is the intention of the owner. Id. This intention can either appear by an express declaration of the owner, or be implied from his acts and conduct and the circumstances of the case. Bland, supra, and Hodge, supra.
If there appears a present intention to relinquish the easement, or if there is clear evidence of a purpose inconsistent with the existence of the easement, then a case for abandonment is presented. Hodge, supra.
We find that the facts and circumstances of this case clearly evince the intention of all the children to forsake the residential development scheme and embark on a project entirely inconsistent with the need for streets as shown on the plat: the assimilation of the children's individual interests in the lots into one large commercial tract to attract a purchaser for their collective interests. The agreement itself reflects this intention.
We cannot agree with appellant that respondent, by signing the agreement, was willing to give up its easement in the portion of Benson Drive dividing the children's property for the benefit of the children who shared the easement with respondent, without protecting its interests in the continuing private use of the driveway.
In our view, the intent of the agreement was to abandon all private easements in Benson Drive with the exception of respondent's right of private use of the small portion of Benson Drive which divided its property.
*132 Appellant next contends that the agreement is invalid because all of the subdivision lot owners did not sign it. It is true that at the time of the execution of the agreement, Boardman Petroleum, Inc. owned the southwest corner lot fronting on both Old Edgefield Road and Atomic Road upon which it operated a gasoline service station. Boardman did not sign the agreement.
This does not defeat the other owner's ability to abandon their respective interests. We are not dealing here with a dedication of a public easement in the street, but rather with the distinctly different interests of private easements. Outlaw, supra. Boardman has asserted no right to any portion of Benson Drive that appears in the record, and his absence of consent to the agreement does not preclude others from relinquishing their private rights.
The lower court agreed with the master that there was no evidence of acceptance by the public so as to complete a dedication to public use of Benson Drive. See Anderson v. Town of Hemingway, 269 S.C. 351, 237 S.E. (2d) 489 (1977). Agreeing that this finding is clearly supported by the evidence, we will not disturb it. Wilson, supra. Thus, any claim appellant may have by way of a public dedication is without merit.
The Agreement for Closing Streets was of record and within appellant's chain of title at the time appellant originally purchased the property from the Toole children. This was sufficient to put him on notice of the agreement and impute to him the recitals contained therein. Bland, supra.
The facts and circumstances, including the written declaration of the agreement, manifest the Toole children's clear intention to abandon their private easements in the proposed roads in the residential development scheme, and adopt a new plan for the property which eliminated the need for the proposed roads.
*133 We hold that the relinquishment of these easements by appellant's predecessors in title, prior to their conveying the property to appellant, effectively extinguishes the claim he asserts to that portion of old Benson Drive which divides respondent's property.
Lastly, appellant challenged the lower court's award of attorney fees to respondent. After reviewing the record and briefs and hearing arguments of counsel as to this issue, we are convinced there is no error of law present, and accordingly affirm under Rule 23 of the Rules of Practice of this Court.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and RHODES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262057/ | 618 A.2d 727 (1993)
Mark A. KING, Appellant,
v.
UNITED STATES of America, Appellee.
No. 91-CF-1182.
District of Columbia Court of Appeals.
Argued December 11, 1992.
Decided January 15, 1993.
*728 Richard Greenlee, Public Defender Service, with whom James Klein, Public Defender Service, Washington, DC, was on the brief, for appellant.
James M. Silver, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Elizabeth Trosman, and Michael Lennon, Washington, DC, were on the brief, for appellee.
Before ROGERS, Chief Judge, FERREN and KING, Associate Judges.
KING, Associate Judge:
Appellant was charged with armed assault with intent to kill ("AAWIK"), in violation of D.C.Code §§ 22-501, -3202 (1989 Repl.), and carrying a pistol without a license ("CPWL"), in violation of D.C.Code § 22-3204(a) (1992 Supp.). The trial judge granted a motion for judgment of acquittal as to AAWIK and instructed the jury on the lesser-included offense of assault with a deadly weapon ("ADW"). The jury found appellant not guilty of that offense, but guilty of CPWL. On appeal, appellant contends that the trial court committed reversible error by admitting the pistol into evidence. We affirm.
On December 21, 1988, complainant was standing with a group of people near some apartment buildings, when someone informed him that he should leave the area since appellant had gone to get a pistol to use to shoot complainant. Complainant immediately left the area at a rapid pace, walked a short distance, then turned in an effort to locate appellant. As he turned, he heard a shot, and saw a flash from a pistol being pointed at him by appellant who was standing approximately 50 to 100 feet away. He observed that the weapon was a silver, snub-nosed revolver. Complainant was not hit with a bullet, and moments later he saw appellant turn around and join the crowd of people standing near the apartment buildings.
Appellant challenges the trial court's ruling, admitting a pistol that had been recovered from a friend's apartment, on the ground that the pistol was not adequately linked to him. See Burleson v. United States, 306 A.2d 659 (D.C.1973). "Relevant evidence is that which tends to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence." Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977) (citation omitted), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978). Additionally, the evidence sought to be introduced must have "some connection with the defendant or the crime with which he is charged, and should not be admitted if the connection is too remote or conjectural." Ali v. United States, 581 A.2d 368, 375 (D.C.1990) (quoting Burleson v. United States, supra, 306 A.2d at 661), cert. denied, ___ U.S. ___, 112 S.Ct. 259, 116 L.Ed.2d 213 (1991).
Although the quoted language from Burleson appears to allow the evidence to be connected to either the defendant or the charged crime, we have always required that the evidence be connected to both. Indeed, a review of the cases following Burleson reveals that we have consistently addressed both the defendant's connection to the weapon and the weapon's connection to the crime. See Ali v. United States, supra, 581 A.2d at 374-75; Swinson v. *729 United States, 483 A.2d 1160, 1163-64 (D.C.1984); Lee v. United States, 471 A.2d 683, 685 (D.C.1984); Adams v. United States, 379 A.2d 961, 964 (D.C.1977); Coleman v. United States, 379 A.2d 710, 712 (D.C.1977). Thus, we view our authorities to require, as government counsel conceded at oral argument, that the weapon be linked to both the defendant and the crime in order to be admissible.
Our own review of the evidence in this case leads us to conclude that the weapon did indeed have "some connection" with both the crime and appellant. With respect to the former, the complainant, who informed the court that he had read books on pistols and was familiar with them ("I know my guns"), described, in his testimony, the pistol appellant used against him. Later a pistol was shown to him by the prosecutor, and the complainant testified that the weapon produced in court looked just like the pistol appellant had used. The complainant observed that he noticed nothing different from the pistol in court and the pistol he had seen in appellant's possession on December 21, 1988. On these facts the trial court could, and did, find that the necessary connection between the gun introduced and the offense had been made.
With respect to appellant's connection to the pistol, Ms. Perry, a friend of appellant's, testified that on January 3, 1989, appellant came to her home and asked her to keep a pistol for him, which she described as large and silver. She agreed, and appellant placed the weapon in her closet. Perry testified that this was the first time any weapon had ever been in the home and that there were no other silver-colored weapons in the closet that day. Several hours later, an unidentified female retrieved a pistol from the same apartment and gave it to Officer Joseph Green. Thirty to forty minutes after he received the pistol, and no more than three hours after appellant placed a pistol in Perry's closet, Officer Green encountered appellant and Perry in a parking lot near Perry's apartment. Appellant approached the van in which Officer Green was sitting and inquired: "Do you have my thing?" or "Do you have some property that belongs to me?" Green responded "Yes," and appellant then walked away at the insistence of Perry, who was with him. Finally, Officer Green identified the pistol presented in court as being the same one that had been retrieved from the Perry apartment. The weapon so identified was the same pistol shown to the complainant which, as he testified, looked just like the one he claimed was used by appellant on the day of the offense.
The only doubt raised at trial that the gun admitted was the same pistol left in the closet by appellant, was Perry's testimony that the pistol appellant put in the closet was larger than the one retrieved from the apartment and shown to her in court. But Perry acknowledged she knew so little about pistols that she could not distinguish between a revolver and an automatic. Moreover, it is not clear that she saw the pistol in appellant's possession at her home for more than the briefest period. Finally, the trial occurred more than two and a half years after Perry saw appellant's pistol at her apartment (January 1989 versus September 1991). Under these circumstances, any uncertainty that the pistol introduced into evidence was the same weapon left at Perry's home by appellant would go to the weight of the evidence rather than its admissibility. Ali v. United States, supra, 581 A.2d at 375. Accordingly, we conclude that the trial court did not err in finding that the necessary connection had been made between appellant and the gun recovered from Perry's apartment.
Since on these facts the trial court could permissibly find that the government established the necessary connection between the pistol offered and both the offense charged and appellant, we hold that the trial court did not err in admitting the pistol into evidence. See Ali, supra, 581 A.2d at 374-75 (photograph of shotgun properly admitted into evidence, where a witness testified that defendant killed decedent with a shotgun, and a witness testified that she saw defendant, two weeks before the murder, with a shotgun that looked like *730 the one shown in the photo); Lee v. United States, supra, 471 A.2d at 684-85 (trial court properly admitted knife allegedly used by defendant during rape, where knife was found in defendant's car 16 hours after the rape and complainant described the knife without having seen the knife before or during trial); Adams v. United States, supra, 379 A.2d at 964 (trial court properly admitted pistol, where police discovered the pistol after defendant's girlfriend revealed its location, and eyewitnesses identified the pistol at trial).
Appellant also claims that the trial court did not weigh the probative value versus the prejudicial effect of the pistol before allowing it into evidence. That is simply not the case. The trial judge, along with counsel for appellant and counsel for the government, considered the admissibility of the pistol and the testimony surrounding the pistol to be governed by "other crimes" evidence principles of Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). In order for evidence to be admitted under Drew, the trial court is required to find, inter alia, that the government has established, by clear and convincing evidence, that the other crime occurred and that the defendant is connected to that crime, Daniels v. United States, 613 A.2d 342, 346 (D.C.1992), and the probative value of the other crime outweighs any prejudicial impact, Groves v. United States, 564 A.2d 372, 374 (D.C.1989). The trial court found that the Drew requirements were met.
Before turning to discussion of that finding, we note that the trial court analyzed the admissibility of the evidence under the wrong theory. Our cases have repeatedly held that admissibility of this kind of evidence is based upon a determination of whether it was directly relevant to some issue in the case. See Ali, supra, 581 A.2d at 368. We have never held, and do not do so now, that such evidence must meet the standards established by the Drew line of cases. See Johnson v. United States, 596 A.2d 980, 986-87 (D.C.1991) (evidence that defendant possessed a gun days before the murder in question was not Drew other crimes evidence, but constituted evidence of the crime charged), cert. denied, Bullock v. United States, ___ U.S. ___, 112 S.Ct. 1987, 118 L.Ed.2d 585 (1992); Ali, supra, 581 A.2d at 377 (photograph of defendant with sawed-off shotgun taken one month before charged offense in which similar weapon was used "constituted evidence of the crime charged" and therefore was not subject to Drew analysis); Lee v. United States, supra, 471 A.2d at 686 (introduction of knife into evidence in trial for rape where the victim testified that her assailant was armed with a knife was proper; because of the government's need to prove by certain evidence the offense charged, the "revelation of other criminal activity is merely incidental") (quoting Smith v. United States, 312 A.2d 781, 785 (D.C.1973). We further note that although the trial judge was not required to undertake the analysis required for "other crimes" evidence, in doing so, he did weigh the probative value of the evidence against its prejudicial effect. On at least three occasions the trial judge clearly stated that he understood that he must make a probative/prejudicial determination before he could admit the pistol. There can be no doubt on this record that the trial judge understood the discretionary alternatives facing him and that he concluded that they weighed in the favor of admissibility. See generally Johnson v. United States, 398 A.2d 354, 363-64 (D.C.1977). We find no basis for overturning that determination.
Accordingly, we affirm the judgment of conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262066/ | 421 Pa. Superior Ct. 463 (1992)
618 A.2d 430
Wade A. STRICKLER and Susan A. Strickler, His Wife
v.
James L. HUFFINE, Royal Insurance Company.
Appeal of ROYAL INSURANCE COMPANY.
Superior Court of Pennsylvania.
Argued September 29, 1992.
Filed December 22, 1992.
*465 Dara A. Decourcy, Pittsburgh, for appellant.
Edward L. Russakoff, Pittsburgh, for Strickler, appellees.
Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
CERCONE, Judge:
This is a direct appeal from a civil judgment entered after an Allegheny County jury returned a verdict in favor of plaintiffs/appellees, Wade and Susan Strickler. We affirm.
Appellee Wade Strickler was injured in Fayette County on June 20, 1985 while riding as a passenger in an automobile driven by James L. Huffine. The binder of insurance which had been issued to Mr. Huffine by appellant Royal Insurance Company was cancelled effective July 28, 1985 because Mr. *466 Huffine's license was under suspension at the time of his application. In a letter dated August 8, 1985, appellant received actual notice of the accident from appellees' counsel less than two months after its occurrence. Appellees subsequently initiated legal proceedings in Fayette County against Mr. Huffine. On October 14, 1985, Royal Insurance sent a letter to Mr. Huffine denying coverage. Thereafter, Mr. Huffine took no action to defend against the suit and the Stricklers received a default judgment on the question of liability on March 31, 1988. The Court of Common Pleas of Fayette County subsequently granted summary judgment versus Mr. Huffine in the amount of forty-three thousand five hundred dollars ($43,500) to the Stricklers. This appeal stems from an Allegheny County garnishment action filed by the Stricklers against Mr. Huffine and his insurance carrier, Royal Insurance Company, in an effort to collect the Fayette County damage award.
In January of 1989, the Stricklers served Royal Insurance Company (hereinafter "Royal") with garnishee interrogatories. Royal filed an Answer and New Matter in April of 1989. In essence, Royal denied any liability on its part and refused to satisfy the Fayette County judgment entered against Mr. Huffine. At trial, the Stricklers presented copies of the Fayette County court order granting summary judgment, and a stipulation by Royal that a contract for insurance with Mr. Huffine listed as the insured was in effect on the date of the accident. After the Stricklers rested, Royal moved for a compulsory non-suit. It was Royal's contention that the Stricklers had not established a prima facie case since they never demonstrated that Mr. Huffine had complied with all conditions precedent to insurance coverage. The trial court rejected this claim and denied the non-suit. Royal then presented its case in chief and motioned for a directed verdict. The trial judge refused to grant the motion and the jury ultimately returned a verdict in favor of the Stricklers. Royal filed post-trial motions which were also denied by the trial court. The Stricklers (hereinafter "appellees") praeciped for *467 entry of judgment and the instant timely appeal by Royal Insurance Company followed.[1]
Appellant Royal has identified the following issues for our review:
I. Did appellees fail to satisfy their burden of production, in failing to offer evidence of the insured's [Mr. Huffine's] compliance with policy conditions sufficient to shift the burden to appellant to prove the insured's breach of policy conditions and resulting prejudice?
In the alternative, was the evidence insufficient to warrant submission of the issues to the jury, or was appellant entitled to a directed verdict where conclusive evidence of the insured's breach and resulting prejudice to the insurer was adduced?
II. Did the [trial] court abuse its discretion in excluding all evidence of defendant Huffine's misrepresentation in his application for insurance that he possessed a valid operator's license, and appellant's consequent cancellation of the binder issued to Huffine?
III. Did the [trial] court err in refusing to instruct the jury that [defendant Huffine's] conduct in permitting default judgment to be entered against him established prejudice to appellant?
IV. Did the [trial] court err in instructing the jury that when an insurer refuses coverage to the insured, the insured is no longer obligated to send the insurer suit papers, and in refusing appellant's request for instruction that the failure to forward suit papers, if prejudicial to the insurer, would release the insurer from its obligations under the contract?
We shall consider these claims seriatim.
The essence of appellant's first claim of error is that the trial court misapplied the precedential caselaw of this jurisdiction. To this end, appellant argues that it was irremediably prejudiced by the Fayette County default judgment which occurred because Mr. Huffine never notified appellant of *468 either the accident or of the fact that the Stricklers filed suit as a result thereof. It appears to be appellant's theory that under the law of Pennsylvania, the Stricklers were responsible for proving that on the relevant date Mr. Huffine was covered by a policy of insurance issued by Royal and that Royal suffered no prejudice by its lack of notice of the litigation which occurred prior to the garnishment proceeding underlying this appeal. Although appellant Royal concedes that it had issued an insurance binder to Mr. Huffine which was effective on the date of the accident, Royal contends that coverage was never in effect for Mr. Huffine because he failed to pay the insurance premium when it came due. Royal also argues that it would not have issued an insurance policy in any event because Mr. Huffine allegedly made material misrepresentations on his application for insurance.
First, we find appellant's argument specious insofar as it relies on the contention that coverage was non-existent on the relevant date because a "binder" and not a policy of insurance was in effect. "It is the custom of the insurance industry, and sound public policy, to provide on-the-spot temporary insurance coverage in the form of a binder until the application information can be verified and a formal policy issued." Klopp v. Keystone Ins. Companies, 528 Pa. 1, 7 n. 5, 595 A.2d 1, 4 n. 5 (1991). It is well settled in Pennsylvania that a binder constitutes evidence that insurance coverage has attached at a specific time, and continues in effect until either the policy is issued or the risk is declined and notice thereof is given. Harris v. Sachse, 160 Pa.Super. 607, 612, 52 A.2d 375, 378 (1947). Accord Stevens v. Kemper Ins. Co., 384 Pa.Super. 263, 558 A.2d 113 (1989), allocatur denied, 523 Pa. 646, 567 A.2d 650 (1989). The validity of a binder is not dependent upon payment of the premium. Rossi v. Firemen's Ins. Co. of Newark, N.J., 310 Pa. 242, 251, 165 A. 16, 19 (1932); Harris v. Sachse, 160 Pa.Super. at 615-16, 52 A.2d at 380.
We note that in the 1991 case of Klopp v. Keystone Insurance Companies, supra, the Pennsylvania Supreme Court ruled that failure to disclose material information on an application for automobile insurance entitles the insurance company *469 to the common law remedy of contract rescission if the carrier acts within the first sixty days after issuing a binder. Under such circumstances, the insurance binder is considered ineffective to trigger liability from its inception because contract law deems the coverage void ab initio rather than as of the date on which the denial of coverage letter was issued. Klopp explicitly held that a fraudulent policyholder is estopped from making personal claims arising out of the purported policy. However, concurring opinions filed by both Justice Larsen and Justice Cappy indicate that the rights of an innocent and injured third party were neither considered nor determined by Klopp. Both concurring opinions strongly imply that where an innocent third party is concerned, the Supreme Court might be disposed to hold the fraudulent policyholder's insurance carrier liable. A panel of the Superior Court was recently confronted with the issue left unresolved by Klopp, namely the precise rights of an innocent and injured third party against a carrier who has issued a binder of coverage because of material misrepresentations by the applicant for insurance. Shemory v. Keystone Insurance Company, 420 Pa.Super. 405, 616 A.2d 1036 (1992), filed November 24, 1992), holds that such a third party has no rights against the policyholder's carrier where rescission has been sought or the issuance of a policy has been denied within sixty days of the binder's issue date.
The outcome of the instant case is not controlled by either Klopp or Shemory, however. Royal sought neither cancellation nor rescission within the prescribed sixty day period. Although there is some dispute as to the effective date of the binder issued to Mr. Huffine, the certified record discloses that it was effective either on the 24th or 25th of April 1985. That the accident underlying the instant appeal occurred on June 20th, fifty-seven days into the binder period, is irrelevant. Royal did not attempt either to cancel the binder or seek rescission until July 28, 1985, well over sixty days after the binder's April effective date. Within the parameters defined by Klopp and explicated by Shemory, Royal Insurance Company failed to act on a timely basis to protect *470 its rights and is therefore ineligible to receive common law rescission.
Further, we find no authority in support of appellant's contention that appellees were required to shoulder the burden of demonstrating either that the insured complied with the contractual notice provisions or that appellant remained unprejudiced by the insured's alleged failure to provide the required notice. The law of Pennsylvania is currently the exact converse of the point advanced by appellant's argument:
We therefore hold that where an insurance company seeks to be relieved of its obligations under a liability insurance policy on the ground of late notice, the insurance company will be required to prove [(1)] that the notice provision was in fact breached and [(2)] that the breach resulted in prejudice to its position.
We recognize that prejudice is a difficult matter to prove affirmatively, but although it may be difficult for the insurance company to prove it suffered prejudice as a consequence of an untimely notice, it appears to us that it would be at least as difficult for the claimant to prove a lack of prejudice.
Brakeman v. Potomac Insurance Co., 472 Pa. 66, 76-77, 371 A.2d 193, 198 (1977) (emphasis added). It appears that appellant seeks to resurrect the strict contractual approach to insurance law which obtained in Pennsylvania before Brakeman. However, it would be inappropriate for either the trial court or for this court to ignore a plain Supreme Court pronouncement of law under the guise of following prior precedent which has been explicitly overruled by Brakeman. We agree with the appellees that the cases cited by appellant, when carefully read in their entirety and placed in their proper chronological context, are either inapplicable or actually support the trial court's rulings concerning the plaintiff's burden of proof and whether appellees presented a prima facie case sufficient to go to the jury on the question of appellant's liability.
We find no error by the trial court in refusing to grant appellant a directed verdict on the question of prejudice. *471 Appellant contends that Mr. Huffine's failure to forward notice of the lawsuit both prevented Royal from properly investigating the facts surrounding the automobile accident and precluded the insurer from participating in the defense of the original Fayette county action. However, testimony by Thomas R. Henderson, a Claims Manager who had worked for Royal Insurance Company for twenty-five years, established that Royal declined to fully investigate the accident and would have refused to participate in Mr. Huffine's defense had timely notice been received regarding the Fayette County action. N.T. January 18-23, 1991 at 62, 67-68, 70-74, 86-87.
Mr. Henderson testified that counsel for the Stricklers provided Royal with actual notice of the accident only two months after it occurred and that, although a claims adjustor was assigned to the case, he was specifically instructed not to investigate the facts. Id. at 62, 67-68, 70-71. Royal made no effort to contact the investigating police officer and never attempted to ascertain whether there were witnesses to the accident.[2]Id. at 69-70, 86. The claims adjustor was advised to refrain from travelling to Mr. Huffine's home to interview him in person. Id. Although Royal's representatives were unsuccessful in their attempts to reach Mr. Huffine via telephone during working hours, Mr. Henderson admitted that no effort was made to contact Mr. Huffine in the evening. Id. at 72. This fact was confirmed by the adjustor, Gary L. Boynes, who also stated that he never tried to meet Mr. Huffine personally. Id. at 86-87.
Finally, Mr. Henderson explicitly stated on cross-examination that even had Royal received the suit papers on a timely basis, their strategy would have been to deny coverage and to refuse to participate in any defense mounted by Mr. Huffine.[3]Id. at 73-74. In light of these facts adduced by appellees at trial and regardless of who maintained the burden of proof, it *472 appears that appellees have succeeded in demonstrating that appellant suffered no prejudice attributable solely to Mr. Huffine's actions. We therefore can discern no basis upon which the trial court, as a matter of law, could have directed a verdict in appellant's favor. See also Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 589, 152 A.2d 484, 488 (1959) (where a claim is potentially within the scope of an insurance policy, the insurer who refuses to defend at the outset does so at its own peril). Accord Stidham v. Millvale Sportsmen's Club, 421 Pa.Super. 548, 618 A.2d 945 (1992) (discussing the availability of an action for declaratory judgment as a means by which an insurance company can establish whether it has a duty to provide a defense in a given case).
Royal next contends that the trial court committed abuse of discretion in excluding all evidence of an alleged misrepresentation in Mr. Huffine's application for insurance to the effect that he possessed a valid operator's license and that in consequence the insurance company cancelled the binder and declined to issue a policy of insurance. Appellant argues that this evidence was necessary because "[t]he essence of appellant's defense was that [Mr.] Huffine utterly failed to cooperate in any respect with appellant, as evidenced by his failure to notify appellant of the accident, his failure to respond to appellant's efforts to discuss the accident with him, his subsequent failure to notify appellant of the suit, and his conduct in permitting judgment to be entered against him." Appellant's brief at 23-24. Appellant also believes this information was necessary to its case since its absence permitted the jury to speculate that the reason the coverage was declined stemmed from Mr. Huffine's failure to pay his premium. However, the trial court ruled that this evidence must be excluded because it was irrelevant as appellant had effectively stipulated that coverage existed at the time of the accident. Further, the trial court deemed the evidence to be unduly confusing as it might cause the jury to consider an issue not before it: whether coverage existed under the binder.
Our standard of review for evidentiary rulings by the trial court is very narrow. Gemini Equipment v. Pennsy *473 Supply, 407 Pa.Super. 404, 413, 595 A.2d 1211, 1215 (1991). In general, we may reverse only for an abuse of discretion or error of law. Id. The exclusion of evidence which is irrelevant, confusing, misleading, cumulative or prejudicial is within the sound discretion of the trial court and its decision thereon will not be disturbed lightly. Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985).
Appellant's claim is completely meritless insofar as it concerns the trial court's ruling that the evidence in question was irrelevant. The fundament of appellant's argument is a specious quibble over the applicable definition of the term "coverage." This question itself is irrelevant. Regardless of whether appellant is willing to concede the point, Royal stipulated that an insurance binder was in effect at the time of the accident. It is a distinction without a difference that an actual policy of insurance was never issued. As our previous discussion indicates, the binder constituted evidence that "insurance coverage" attached at a specific time and continued in effect until the risk was declined by Royal. Harris v. Sachse, supra. Royal did not decline the risk until after the accident in question occurred.
We note, moreover, that appellant was not prevented from following its chosen defense strategy by the trial court's evidentiary ruling. On redirect, Mr. Henderson testified freely concerning the total lack of cooperation by Mr. Huffine in that he never responded to letters or telephone calls from the insurance company. See N.T. January 18-23, 1991 at 75-81. In light of these facts, we are not prepared to find that the trial court committed abuse of discretion in excluding the evidence concerning Mr. Huffine's alleged misrepresentations as both irrelevant and unduly confusing to the jury. Nor can we discern any indication that appellant was impermissibly prejudiced by this ruling so as to mandate the grant of a new trial.
Next, appellant contends that the trial court erred in refusing to instruct the jury that Mr. Huffine's conduct in permitting a default judgment to be entered against him established prejudice as a matter of law. In support of this *474 claim, appellant quotes the following extract from Hargrove v. CNA Insurance Group, 228 Pa.Super. 336, 323 A.2d 785 (1974), "Simply then, if the evidence demonstrates that the insureds failed to forward suit papers, prejudice to the insurer is clearly established by the fact that a default judgment was taken against its insureds." Id., 228 Pa.Super. at 340, 323 A.2d at 787 (citation omitted). Unfortunately, appellant failed to demonstrate at trial that the suit papers were never forwarded; appellant merely showed that Royal never received any such papers. See N.T. January 18-23, 1991 at 67; 86-87. The holding in Hargrove explicitly requires that in order to show prejudice, the insurer must prove that suit papers were never forwarded, not merely that they were never received. Hargrove v. CNA, 228 Pa.Super. at 340-42, 323 A.2d at 787-88. Appellant was not entitled to the requested point for charge and the trial court correctly refused to so instruct the jury.
Appellant's final claim is that the trial court erred in granting appellee's point for charge number 9 yet refusing Royal's point for charge number 7. Appellant wanted the court to instruct the jury consistent with the following language: "If Huffine failed to forward suit papers and the other pleadings which he received in the lawsuit filed against him by the Stricklers, and such failure resulted in prejudice to Royal, then Royal is released from its obligations under the contract." Appellant's brief at 27. Instead, the trial court charged consistently with appellees' modified point number 9: "Once an insurance company refuses to provide its insured with coverage, the insured is no longer obligated to send the company suit papers." Id.
Citing DiSalle v. P.G. Publishing Company, 375 Pa.Super. 510, 565-66, 544 A.2d 1345, 1374 (1988), allocatur denied, 521 Pa. 620, 557 A.2d 724 (1989), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989), the trial court found that appellant waived this issue by not timely objecting to the omission of any instruction on point for charge 7. The trial court also determined that appellant assented to the final version of the instruction on modified point for charge 9 and *475 failed to timely object to the trial court's ruling thereon. While we disagree somewhat with the trial court's interpretation of the record, we nonetheless are in no position to grant the requested relief because we find that the trial court reached the correct result. The Superior Court may affirm the action of the trial court for reasons other than those given by the trial judge. Kline v. Blue Shield of Pennsylvania, 383 Pa.Super. 347, 351-52, 556 A.2d 1365, 1368 (1989).
Appellant maintains that Royal never agreed to the omission of point for charge number 7, but merely ceased to press the issue in order to avoid antagonizing the trial judge. We are cognizant of the difficulty faced by any trial advocate who must zealously protect his or her client's interest in the framing of points for charge while maintaining a properly deferential relationship with the trial court. Moreover, appellant's argument may have merit with regard to the hypothesis that at some stage of a proceeding, a mechanical recitation of objections could possibly become an exaltation of form over substance. The record in this case, however, shows no indication that the relationship between appellant's counsel and the trial court was ever anything other than properly balanced during the discussion regarding the jury instructions both before and after the charge was given. See N.T. January 18-23, 1991 at 242-257; 273. The record does not even hint that the trial judge waivered from the appropriate role of neutral arbiter when discussing the points for charge.
Nor do we find that appellant waived this sub-issue as appellees contend. Rather, in contradiction to appellant's claim, our inspection of the record discloses that defense counsel clearly agreed with the trial court's decision to dispense with any instruction consistent with point for charge number 7. After appellees' trial counsel objected to appellant's point number 7 on the grounds that it was inconsistent with appellee's modified point number 9 (which had already been accepted by the trial court), the following exchange occurred:
*476 By the Court: I could say the company would be justified in refusing coverage on the basis, you know, this is what his testimony was although it was inaccurate.
I don't know. I think it's better to leave it [Point for Charge Number 7] out.
By counsel for appellees: Yes. Yes.
By counsel for appellant: Okay.
N.T. January 18-23, 1991 at 256-57. The Pennsylvania Supreme Court has determined that abuse of discretion is "not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused." Kelly v. County of Allegheny, 519 Pa. 213, 217, 546 A.2d 608, 610 (1988). We see no indication that the trial judge committed an abuse of discretion in declining to instruct the jury on appellant's point for charge number 7 in light of the above described discussion.
The second half of appellant's argument concerning the propriety of the jury instruction given pursuant to appellees' point for charge number 9 has not been waived. Our inspection of the record discloses that appellant preserved an objection at all relevant times. We will therefore consider the merits of this portion of appellant's argument. It is well settled that when reviewing a party's challenge to a jury charge, an appellate court will scrutinize the entire instruction against the evidence presented to determine if prejudicial error has occurred. Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa.Super. 67, 71, 602 A.2d 897, 899 (1992). We will not reverse a trial court's instruction on the basis of isolated inaccuracies, but will only reverse if the charge as a whole was erroneous and prejudiced the complaining party. Id. Where the charge fairly and accurately apprises the jury of the relevant concepts, a new trial is not warranted. Wagner by Wagner v. York Hospital, 415 Pa.Super. 1, 14, 608 A.2d 496, 502 (1992).
*477 Appellant objects to the trial court's instruction that "[o]nce an insurance company refuses to provide its insured with coverage, the insured is no longer obligated to send the company suit papers." N.T. January 18-23, 1991 at 264. In giving this instruction, the trial court followed the reasoning set forth in DeForte v. Allstate Insurance Company, 81 A.D.2d 465, 442 N.Y.S.2d 307 (1981). In DeForte, the Supreme Court of New York, Appellate Division, explained that once an insurance company has denied coverage under a policy of insurance, forwarding suit papers becomes a useless act on the part of the claimant which the courts will not require. Id. at 469, 442 N.Y.S.2d at 311. Accord Moye v. Thomas, 153 A.D.2d 673, 544 N.Y.S.2d 675 (1989). We agree with the trial court's instruction in the instant case, but see no need to rely upon New York law as sufficient guidance is provided by Pennsylvania caselaw.
We note initially that the failure to furnish suit papers to the liability carrier does not of itself avoid the policy in the absence of prejudice to the insurer. Frank v. Nash, 166 Pa.Super. 476, 480, 71 A.2d 835, 836 (1950). Such prejudice does not exist per se but must be proven. Id. Moreover, our caselaw clearly indicates that an insured is not forced to slavishly pursue useless compliance with technical policy requirements once an insurance company has denied coverage. See Kolbe v. Aegis Insurance Company, 370 Pa.Super. 539, 537 A.2d 7 (1988), allocatur denied, 520 Pa. 576, 549 A.2d 136 (1988).
In Kolbe, the defendant insurance company disclaimed any liability by espousing the position that the policy's coverage was not applicable to the plaintiff's claim. After the insured entered into a settlement agreement with the injured party, the insurance company then argued that it had been absolved of liability because the insured had breached the policy's "consent to settle" clause. The Superior Court held that once the insurance company had denied coverage, it was unreasonable to permit the company to avoid answering the claim because of the insured's alleged violation of a contractual provision. As the Kolbe panel explained,
*478 We cannot condone the action of the [insurance company] in first denying the applicability of its policy and thereafter relying upon a consent requirement in the same policy to defeat a coverage claim. In reaching this conclusion we are also mindful of the principle that a party to a contract may not complain of a breach caused by his own default.
Id., 370 Pa.Super. at 543, 537 A.2d at 8.
As in Kolbe, the insurance company in the instant case first denied any liability to provide coverage and only thereafter attempted to defeat the claim by relying on a contractual provision within the policy itself. Thus, appellant's defense theory rests upon the insured's alleged material breach of a provision in a policy which, according to appellant, was never issued. Under the facts presented here, it would be unreasonable to permit appellant to prevail. Because the jury instructions provided by the trial court fairly and accurately apprised the jury of all the concepts pertinent to the instant case, a new trial is not warranted.
Judgment affirmed.
POPOVICH, J. concurs in the result.
NOTES
[1] The insured, defendant James L. Huffine, is not a party to this appeal.
[2] The transcript indicates that there was at least one witness identified at the accident scene. Id.
[3] According to the New Matter filed by appellant on April 21, 1989, Royal actually denied coverage to Mr. Huffine on October 14, 1985, well before the default liability judgment was entered in Fayette County on March 31, 1988. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325563/ | 203 S.E.2d 844 (1974)
285 N.C. 174
STATE of North Carolina
v.
Billy HONEYCUTT.
No. 53.
Supreme Court of North Carolina.
April 10, 1974.
*846 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas B. Wood and Associate Atty. Archie W. Anders, Raleigh, for the State.
Russell J. Lanier, Jr., Kenansville, for defendant appellant.
BRANCH, Justice.
Defendant by his first assignment of error contends that the jury selection process in this case deprived him of a truly representative and impartial jury as guaranteed by the Sixth Amendment to the United States Constitution.
*847 Defendant seeks to support this assignment of error with several separate arguments.
The record contains only the following statement concerning jury selection:
"JURY SELECTION
It is stipulated and agreed by counsel for the defendant and the solicitor for the State, that the following questions are true and accurate questions asked by the State in the selection of the jury that tried Billy Honeycutt.
1. Do you have any moral or religious scruples about capital punishment?
2. On account of these moral or religious scruples, would it be impossible, under any circumstances, and in any event, for you to return a verdict of guilty as charged even though the State proves the defendant guilty beyond a reasonable doubt?
3. Would you automatically vote against the imposition of capital punishment without regard to any evidence that might develop at the trial?
4. You would not vote in favor of the death penalty under any circumstances, no matter how aggravated the case was and no matter what the facts were?
It is further stipulated and agreed that no objections were interposed at the time the above questions were asked the jury during the jury selection of this case. It is further stipulated and agreed that the defendant did not exhaust his peremptory challenges to the jury in the jury selection in this case.
EXCEPTION NO. 1
That the court erred in allowing the State's challenge for cause of jurors who had conscientious objections to capital punishment and who stated that their objection to capital punishment would not allow them to return a guilty verdict in this case."
This record does not disclose the answers given by any juror. Neither does it reveal that any juror was excused for cause because of his opposition to capital punishment. An appellate court is bound by the record as certified and ordinarily can judicially know only what appears of record. 1 N.C.Index 2d, Appeal and Error § 42.
Our consideration of this assignment of error must therefore be limited to the effect of the inquiries to prospective jurors concerning their views on capital punishment.
We find no merit in defendant's contention that a juror cannot be excused under any circumstances because of his convictions concerning capital punishment. It is now well established that in a capital case a juror may be properly challenged for cause if he indicates he could not return a verdict of guilty knowing the penalty would be death, even though the State proved to him by the evidence and beyond a reasonable doubt that the accused was guilty of the capital crime charged. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, reh. den. 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186; State v. Washington, 283 N.C. 175, 195 S.E.2d 534; State v. Cook, 280 N.C. 642, 187 S.E.2d 104; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652; State v. Doss, 279 N.C. 413, 183 S.E.2d 671; State v. Sanders, 276 N.C. 598, 174 S.E.2d 487.
Defendant further contends that excluding veniremen opposed to capital punishment denied him an impartial and representative jury. He argues that polls and studies establish that a large part of contemporary society has some scruples about capital punishment and that employing a jury selection process which excludes such persons does not reflect a "cross section of the community" and is impermissible. He specifically contends that a jury without scrupled jurors is unbalanced or weighted toward conviction.
The United States Supreme Court addressed this same question in Witherspoon *848 v. Illinois, supra. There the defendant contended that such a jury, unlike one chosen at random from a cross section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death is the kind of juror who would too readily ignore the presumption of the defendant's innocence, accept the State's version of the facts and return a verdict of guilty.
After considering surveys cited by defendant in his brief, the Court in Witherspoon said:
". . . We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was."
In instant case petitioner presents the same argument without additional evidence or authority. Logic and the weight of authority require that we reject this argument.
Defendant argues that in capital cases there should be no voir dire examination of prospective jurors.
The purpose of the voir dire examination and the exercise of challenges, either peremptory or for cause, is to eliminate extremes of partiality and to assure both the defendant and the State that the persons chosen to decide the guilt or innocence of the accused will reach that decision solely upon the evidence produced at trial. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L. Ed. 429; State v. Spence, 274 N.C. 536, 164 S.E.2d 593.
Defendant's arguments in support of this assignment of error run counter to the well-recognized principle that both the State and the defendant are entitled to a trial by an impartial jury. Tuberville v. United States, 112 U.S.App.D.C. 400, 303 F.2d 411, cert. den. 370 U.S. 946, 82 S.Ct. 1607, 8 L.Ed.2d 813; State v. Childs, 269 N.C. 307, 152 S.E.2d 453.
In the recent case of State v. Crowder, N.C., 203 S.E.2d 38, we find the following pertinent statement:
"In order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment."
Here, the questions asked the prospective jurors by the Solicitor were permissible under both Federal and State decisions, and were necessary to insure trial by an impartial and representative jury.
This assignment of error is overruled.
Although assigned as error, defendant does not argue in his brief that the Court erred in denying his motion for a directed verdict of not guilty. We think it sufficient to state that the trial judge properly denied defendant's motion since there was ample, substantial evidence of every essential element of the crime of murder in the first degree to carry the case to the jury.
Finally, defendant contends that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
This Court has declared that upon conviction any person who commits the crime of burglary in the first degree, first degree murder, arson or rape after 18 January 1973 shall suffer the penalty of death. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19. We fully considered the constitutionality *849 of the death sentence in light of the Eighth and Fourteenth Amendments to the United States Constitution in the case of State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721, and there reaffirmed the holding of Waddell. See also State v. Noell, 284 N.C. 670, 202 S.E.2d 750; State v. Dillard, N.C., 203 S.E.2d 6; State v. Henderson, N.C., 203 S.E.2d 10; State v. Crowder, supra. The holdings in Waddell, Jarrette, Noell, Dillard, Henderson and Crowder control this assignment of error.
This assignment of error is overruled.
Examination of each assignment of error, every argument offered by counsel for defendant and a careful review of the entire record discloses that defendant has received a fair trial, free from prejudicial error.
No error.
BOBBITT, C. J., and HIGGINS and SHARP, JJ., dissent as to death sentence and vote to remand for imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747 (1974). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2759668/ | Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Dec 11 2014, 9:19 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW J. BALDWIN GREGORY F. ZOELLER
Baldwin Adams & Kamish Attorney General of Indiana
Franklin, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARON JACKSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1405-CR-296
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION 2
The Honorable Marc T. Rothenberg, Judge
Cause No. 49G02-1303-MR-018733
December 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Maron Jackson appeals his conviction and sentence for murder. He presents the
following consolidated and restated issues for review:
1. Did the trial court abuse its discretion when it admitted certain
evidence over Jackson’s Ind. Evidence Rule 404(b) objection?
2. Is Jackson’s fifty-eight year sentence inappropriate?
We affirm.
Around noon on March 13, 2013, Corey Edwards drove his cousin, Robert
Mitcham, to a pawn shop and then to a house near 86th Street and Lafayette Road in
Indianapolis. Edwards waited in his car while Mitcham spoke with Jackson for five to ten
minutes in the driveway. Edwards did not know Jackson but had seen him on one prior
occasion with Mitcham at that same house. When the seemingly cordial conversation
between Mitcham and Jackson ended, Edwards and Mitcham drove away.
Shortly after arriving back at Mitcham’s house, Mitcham received a phone call and
then asked Edwards for a ride to Lafayette Square Mall. Edwards drove to the mall, and
Mitcham rode in the passenger seat. While talking on the phone, Mitcham directed
Edwards to look for a green, four-door car in the mall parking lot. The parking lot was not
busy, and they eventually found the green car with two people inside. Edwards parked one
car down from the green car.
Earlier, Daniel Sanon had been hanging out with his friend Dominique Hughes
when Hughes received a phone call. In exchange for gas money, Sanon agreed to give
Hughes a ride. The two then traveled in Sanon’s green Buick Century to a house in the
area of 86th Street and Lafayette Road. At that house, Jackson, whom Sanon had not met
2
before, got in the back seat of Sanon’s car. Jackson spoke on his cell phone during the ride
to Lafayette Square Mall.1 Sanon parked at the mall and left Jackson and Hughes in the
car. Jackson requested that Sanon leave the keys, which he did.
After Edwards and Mitcham parked, Jackson exited Sanon’s car and approached the
front passenger side of Edwards’s car. Mitcham and Jackson engaged in greetings, and
then Jackson asked Edwards for permission to get in. Edwards agreed, and Jackson entered
through the rear passenger-side door and sat behind Mitcham. As Mitcham turned around
asking Jackson about money, Edwards saw that Jackson had a gun and yelled for Mitcham
to watch out. Jackson fired one shot. The bullet went through Mitcham’s headrest and
into his chest. Jackson then fled in Sanon’s car, as Hughes ran into the mall to find Sanon.
Mitcham died at the scene.
Shortly after police responded to the shooting, Sanon called 911 from a nearby store
and reported that his car had been stolen. Sanon did not tell police the truth in his initial
statement and did not mention Jackson until later. When his car was discovered the
following week, Sanon gave police permission to search it. During the search, police
recovered court papers in the backseat that Jackson had received on the morning of the
shooting.
A jury found Jackson guilty of Mitcham’s murder on March 18, 2014. Thereafter,
the trial court sentenced Jackson to fifty-eight years in prison. Jackson appeals both his
conviction and sentence.
1
Cellphone records later established that Jackson and Mitcham were communicating during this time.
3
1.
At trial, Jackson objected to the admission of the papers recovered from Sanon’s
car. The papers were court documents that Jackson had received on the morning of the
shooting. The State sought to admit the papers, which had Jackson’s fingerprints on them,
as evidence that Jackson had been in Sanon’s car the day of the shooting. Jackson objected
on Evid. R. 404(b) grounds because the documents generally referenced a pending criminal
case involving Jackson.2
The trial court admitted the documents over Jackson’s objection, noting that they
did not reference the charges or “any identifying information as to what type of case [it]
is”. Transcript at 244. Upon admitting the evidence, the court first informed the jury of
the parties’ stipulation that the papers found in the car had been created on the morning of
the March 13, 2013 and given to Jackson at approximately 8:30 that morning. The court
then provided the jury with the following limiting instruction:
[These exhibits] are being entered into evidence by the State for the purposes
of proving opportunity and identity of the Defendant. These exhibits contain
information beyond the relevance of those purposes. This additional
information is in no way to be considered in this case as evidence of the
character of the Defendant or the Defendant’s guilt in this matter. Further,
you are not to speculate as to what this additional information relates to as it
is irrelevant to this cause. These items are only to be used – I’m sorry. Are
to be used for identification and opportunity purposes only.
Id. at 255. Jackson contends that admission of this evidence violated Evid. R. 404(b).
At the time of Jackson’s trial,3 Evid. R. 404(b) provided:
2
Only a photograph of the stapled documents are in the record before us. A small top sheet indicates that
the case had been continued and provides information for the new court date. The bottom sheet is difficult
to read, but it appears to provide information regarding Jackson’s public defender.
3
Evid. R. 404 was amended effective January 1, 2014.
4
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon such request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or during trial if the
court excuses pre-trial notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial.
In assessing the admissibility of evidence under this rule, the trial court must: (1) determine
whether the evidence is relevant to a matter at issue other than the defendant’s propensity
to commit the charged act and (2) balance the probative value of the evidence against its
prejudicial effect. Halliburton v. State, 1 N.E.3d 670 (Ind. 2013). We review the trial
court’s 404(b) ruling for an abuse of discretion. Inman v. State, 4 N.E.3d 190 (Ind. 2014).
The evidence at hand was relevant for purposes other than propensity. In fact, the
nature of the documents was entirely irrelevant to the State’s case. The State admitted
them to show that an object Jackson obtained possession of on the morning of the murder
was found in the backseat of Sanon’s car with Jackson’s fingerprints. This evidence backed
up Sanon’s testimony that he had driven Jackson, someone he had not met before, to the
mall.4 The evidence helped place Jackson at the scene with an opportunity to commit the
crime.
The trial court recognized that the documents referenced prejudicial information
that the jury might use for the unintended purpose of establishing Jackson’s criminal
4
During cross-examination, defense counsel questioned Sanon regarding inconsistencies between his two
statements to police, noting that he initially denied that Jackson had been in his car. Counsel continued this
line of questioning with a detective who had interviewed Sanon. Further, on cross-examination of the DNA
expert, counsel established that the expert was unable to positively identify Jackson as being in Edwards’s
car where the shooting occurred. Contrary to Jackson’s assertion on appeal, his presence at the scene was
challenged at various instances during trial.
5
propensity or general bad character. The limiting instruction provided by the trial court
properly circumscribed the jury’s use of this evidence, which only generally referenced
Jackson’s involvement in another criminal matter. Balancing the probative value on the
issues of identity and opportunity against the potential danger of unfair misuse, we cannot
say that the trial court abused its discretion when admitting the challenged evidence.
2.
Jackson contends that his fifty-eight-year sentence is inappropriate in light of his
character and the nature of his offense. Article 7, section 4 of the Indiana Constitution
grants our Supreme Court the power to review and revise criminal sentences. See Knapp
v. State, 9 N.E.3d 1274 (Ind. 2014), cert. filed. Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State, 895
N.E.2d 1219 (Ind. 2008). Per App. R. 7(B), we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character of the
offender.” Inman v. State, 4 N.E.3d at 203 (quoting App. R. 7(B)). “Sentencing review
under Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012). Jackson bears the burden on appeal of persuading us that his
sentence is inappropriate. Conley v. State, 972 N.E.2d 864.
We initially observe that the statutory sentencing range for murder is forty-five to
sixty-five years, with an advisory sentence of fifty-five years. Ind. Code Ann. § 35-50-2-
3(a) (West, Westlaw current with all 2014 Public Laws of the 2014 2nd Regular Session &
6
2nd Regular Technical Session of the 118th General Assembly). Thus, Jackson’s fifty-eight-
year sentence is slightly above the advisory.
With respect to the nature of the crime, Jackson appears to argue that when viewed
in the context of other murders, the instant murder was not particularly heinous. Even
assuming this to be true, his character supports the aggravated sentence. By twenty-four
years of age, Jackson had already accumulated a significant criminal history with two
felony convictions (both theft) and six misdemeanors (alcohol offense, resisting law
enforcement, battery with bodily injury, invasion of privacy, harassment, and battery).
Moreover, he has had probation revoked twice (2009 and 2012), as well as home detention
revoked (2010). He has had several stints in prison but has remained undeterred in his
criminal pursuits. Jackson admitted that prior to his arrest he had been supporting himself
financially by selling drugs. Finally, as observed by the trial court, Jackson’s attitude at
sentencing is indicative of his poor character.5 See Totten v. State, 486 N.E.2d 519 (Ind.
1985) (defendant’s attitude in court may be considered as an aggravating factor). In sum,
we conclude that Jackson’s sentence is not inappropriate.
Judgment affirmed.
KIRSCH, J., and CRONE, J., concur.
5
The trial court stated at the sentencing hearing: “The way you sit here today unmoved, unfazed, even by
your own family’s testimony much less the victim’s family. How you do sit there with a grin on your face.”
Transcript at 420. Later, the court noted that during sentencing Jackson sat “slumped over … smirking”.
Id. at 421.
7 | 01-03-2023 | 12-11-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2759671/ | Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, Dec 11 2014, 6:26 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL P. QUIRK GREGORY F. ZOELLER
Muncie, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEFFREY S. TAYLOR, )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1404-CR-266
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Marianne Vorhees, Judge
Cause No. 18C01-0901-FC-1
December 11, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Jeffrey Taylor (“Taylor”) appeals the Delaware Circuit Court’s decision to order
Taylor to serve his previously suspended four-year sentence in the Indiana Department of
Correction following the revocation of his probation.
We affirm.
Facts and Procedural History
In 2010, Taylor pleaded guilty to Class C felony non-support of a child. On June
28, 2010, the trial court sentenced him to four years but suspended the entire sentence
and placed him on supervised probation.
On February 13, 2013, the State filed a petition requesting revocation of Taylor’s
supervised probation. The petition alleged that Taylor had not been in contact with his
probation officer since August 22, 2012, that he failed to appear for an administrative
hearing, and that he made only three child support payments from July 2012 to February
2013. Taylor failed to appear for the March 13, 2013 revocation hearing, and a warrant
was issued for his arrest. Taylor was arrested on March 20, 2013. He later admitted the
allegations in the State’s petition at a fact-finding hearing held on May 15, 2013. The
trial court released Taylor back to supervised probation.
Taylor’s probation officer requested a review hearing in August 2013 because
Taylor had not made child support payments as ordered. A hearing was scheduled for
September 9, 2013. At the hearing, Taylor informed the court that he had been injured
and was suffering from seizures; therefore, he had applied for disability. The trial court
ordered Taylor to report to his probation officer every other week beginning September
18, 2013. Appellant’s App. p. 11.
2
Taylor failed to report to probation on September 18, 2013. The State filed a
second petition to revoke Taylor’s probation on October 25, 2013. In addition to his
failure to report, the State alleged that Taylor last paid child support on April 26, 2013.
Taylor admitted to the allegations at the February 12, 2014 hearing.
At the dispositional hearing on March 19, 2014, the trial court noted that while on
probation for nearly four years, Taylor made minimal child support payments and failed
to maintain employment. The court found that during the nearly four-year period of
supervised probation, Taylor’s child support arrearage had almost doubled from $19,000
to $37,000. Tr. p. 34. The trial court therefore ordered Taylor to serve his previously
suspended four-year sentence in the Indiana Department of Correction. Taylor now
appeals.
Discussion and Decision
“Probation is a matter of grace left to trial court discretion, not a right to which a
criminal defendant is entitled.” Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009).
“Probation revocation is a two-step process. First, the court must make a factual
determination that a violation of a condition of probation actually has occurred. If a
violation is proven, then the trial court must determine if the violation warrants
revocation of the probation.” Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005),
trans. denied. If a defendant’s probation is revoked, the trial court may apply one or
more of the following sanctions:
(1) Continue the person on probation, with or without modifying or
enlarging the conditions.
3
(2) Extend the person’s probationary period for not more than one (1) year
beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the
time of initial sentencing.
Ind. Code § 35-38-2-3(h).
A trial court’s sentencing decision in a probation revocation hearing is reviewed
for an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011).
“An abuse of discretion occurs if the trial court’s decision is against the logic and effect
of the facts and circumstances before the court.” Id.
Taylor concedes that he violated his probation but argues that the trial court
abused its discretion when it ordered him to serve his previously suspended four-year
sentence. Specifically, Taylor claims that he took “extreme measures to fulfill his
obligations and the trial court completely ignored these mitigating factors.”1 Appellant’s
Br. at 8.
Taylor intended to fulfill his child support obligation by taking a class to become a
union crane operator and by applying for disability. Taylor also emphasizes the fact that
during the three weeks he was on home detention prior to the March 19, 2014
dispositional hearing, he made one $30 partial child support payment. Tr. p. 27. Finally,
1
Taylor also claims that it is “inappropriate for the trial court to execute [his] entire four year sentence to
the Indiana Department of Correction in light of the nature of the offense, based on the fact that [Taylor]
complied with every rule of probation except the payment of child support and the payment of his
probation fees and costs.” Appellant’s Br. at 5. Within the context of a probation revocation, it is well
settled that the Indiana Appellate Rule 7(B) standard for reviewing whether a defendant’s sentence is
inappropriate “is not the correct standard to apply when reviewing a trial court’s actions” because the
action “is not a criminal sentence as contemplated by the rule.” See Jones v. State, 885 N.E.2d 1286,
1290 (Ind. 2008); Prewitt v. State, 878 N.E.2d 184, 187-88 (Ind. 2007).
4
Taylor testified that when the weather improved, he would begin working for Taylor
Construction at a weekly wage of “probably” $500. Tr. p. 26.
However, Taylor ignores the fact that in nearly four years of supervised probation,
his child support arrearage nearly doubled from $19,000 to $37,000. Taylor is an
epileptic and blames medical issues for his failure to pay child support but references
only a two-week hospital stay in 2013. Taylor was given numerous opportunities to
comply with the court’s order to pay his child support and failed to do so. For all of these
reasons, we conclude that the trial court did not abuse its discretion when it ordered
Taylor to serve his previously suspended four-year sentence in the Department of
Correction.
Affirmed.
RILEY, J. and CRONE, J. concur.
5 | 01-03-2023 | 12-11-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1325093/ | 153 Ga. App. 178 (1980)
264 S.E.2d 710
BAILEY
v.
THE STATE.
58922.
Court of Appeals of Georgia.
Submitted November 6, 1979.
Decided January 25, 1980.
William C. McCalley, for appellant.
H. Lamar Cole, District Attorney, Dwight May, Assistant District Attorney, for appellee.
CARLEY, Judge.
Bailey was indicted, tried and convicted of voluntary manslaughter. He appeals.
1. On the night in question, a police officer, on his *179 regular patrol, heard a shot or "something sounding like a shot," perhaps fireworks. He received a radio dispatch to check out the area for "shooting of fireworks." While investigating for fireworks, the officer spotted Bailey, and approached him to secure information and not to make an accusation. The officer asked Bailey: "How are you doing, Eddie? Have you heard any shooting around here, fireworks or anything?" Bailey replied that he had. The officer then asked "Who?" Then the following colloquy occurred: Bailey: "I shot my brother-in-law." Officer: "What brother-in-law?" Bailey: "O. D. Edwards." Officer: "Well, where is he at now?" Bailey: "He's gone to the hospital. My wife and some people took him to the hospital. Well, I told him to give me the keys and he wouldn't give me the keys. I told him to give me the keys and he wouldn't, so I shot him." Officer: "Well, where is the weapon?" Bailey: "It's in my pocket." Bailey then produced the gun and was at that point informed that he was to be placed under arrest.
At trial, Bailey tried to exclude the testimony of the officer with reference to this colloquy on the ground that at the time he made the statements attributed to him no Miranda warnings had been given. The trial court conducted a Jackson v. Denno hearing and found the statements were made as the result of the officer's "general on-the-scene investigation" and not an "in-custody interrogation." Testimony as to Bailey's pre-Miranda statements was, therefore, allowed into evidence. Bailey enumerates as error the admission of this testimony.
"The principles announced [in Miranda] deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way ... [Miranda] is not intended to hamper the traditional function of police officers in investigating crime ... General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by [Miranda] ... In such situations the compelling atmosphere inherent in the process of in-custody *180 interrogation is not necessarily present." Miranda v. Arizona, 384 U.S. 436, 477-478 (86 SC 1602, 16 LE2d 694) (1966). Thus, the question to be resolved is when Bailey was, under the circumstances of this case, "in custody or otherwise deprived of his freedom of action in any significant way" in order to trigger the requirement that Miranda warnings be given.
We do not believe Bailey was "in custody" within the meaning of Miranda when the main part of the above quoted colloquy between himself and the officer occurred. One who is under investigative detention pursuant to Terry v. Ohio, 392 U.S. 1 (88 SC 1868, 20 LE2d 889) (1968) or is the subject of a general on-the-scene investigation is not within "custody." Shy v. State, 234 Ga. 816, 820 (218 SE2d 599) (1975). Here, it is apparent that when the officer approached Bailey and began to question him, Bailey was not suspected of any crime most certainly not of manslaughter. Compare Gainer v. State, 144 Ga. App. 703 (242 SE2d 286) (1978). The officer sought general information concerning the noise he had heard and was following up on the directive to investigate "fireworks." In response to a non-accusatory question, Bailey volunteered he had "shot" his brother-in-law. At that point there was nothing to indicate that the shooting was necessarily the result of Bailey's criminal actions. Futch v. State, 145 Ga. App. 485, 488 (3) (243 SE2d 621) (1978); Allen v. United States, 390 F2d 476 (D. C. Cir. 1968). The officer did not "interrogate" for the purpose of establishing Bailey's criminal culpability but inquired as to the name and location of the victim of the "shooting" the nature of the situation confronting the officer. Shy v. State, 234 Ga. 816, 823, supra. Bailey then made a voluntary statement, unresponsive to the question, that the shooting had occurred in a context in which he was exposed to potential criminal culpability a domestic dispute over keys. Roberts v. State, 146 Ga. App. 23 (1) (245 SE2d 358) (1978). It was at that point after Bailey's voluntary statement concerning the nature of the "shooting" that he was in "custody" within the meaning of Miranda, because not until then did he become the "focus" of a criminal investigation. Miranda v. Arizona, 384 U.S. 436, 444, fn. 4, supra. Gainer v. State, 144 Ga. App. 703, supra. Any *181 inquiries prior to this voluntary statement were clearly non-accusatory and a part of the "on-the-scene" investigation of a possible criminal act. King v. State, 147 Ga. App. 163, 164 (1) (248 SE2d 294) (1978); Futch v. State, 145 Ga. App. 485, 488 (3), supra. The only question the officer asked Bailey after this point was the location of the weapon, the result of which was the production of the gun and the formal arrest. This single "threshold inquiry" after Bailey was "in custody" but before the Miranda warnings were given was not an impermissible "interrogation." Tucker v. State, 237 Ga. 777 (229 SE2d 617) (1976).
Contrary to this analysis Bailey urges that he was "in custody" when he made the first response that he "had shot his brother-in-law" and that all responses to inquiries thereafter were made in violation of Miranda. The basis of this argument is that at the Jackson v. Denno hearing the officer agreed with defense counsel that in his (the officer's) mind Bailey was "under arrest" after saying he had shot his brother-in-law. However, it is apparent from the entire transcript of the officer's testimony that he was referring not to the first response concerning the mere "shooting" but to the second response concerning the "shooting" over a dispute involving keys. This is clear from the officer's testimony that he knew "at the time" that Bailey made the second admission and produced the gun that "[he] had no particular case against [Bailey] even though [Bailey] had told [him] that there had been a shooting out there." Thus any detention before the second admission was clearly for purposes of "preliminary investigation" and not for "custodial interrogation."
The evidence here amply supports the trial court's finding that there was no violation of Bailey's Miranda rights and the decision to admit the statements will not be disturbed. Westley v. State, 143 Ga. App. 344, 345 (2) (238 SE2d 701) (1977).
2. The evidence authorizes the verdict. Durham v. State, 129 Ga. App. 5 (1) (198 SE2d 387) (1973). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of Bailey's guilt beyond a reasonable doubt. Jackson v. Virginia, ___ U. S. ___ (99 SC 2781, 61 *182 LE2d 560) (1979).
Judgment affirmed. Deen, C. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325070/ | 345 S.E.2d 365 (1986)
STATE of North Carolina
v.
Charlie Johnson MANN.
No. 755PA85.
Supreme Court of North Carolina.
July 2, 1986.
*366 Lacy H. Thornburg, Atty. Gen. by Evelyn M. Coman, Asst. Atty. Gen., Raleigh, for state.
Malcolm Ray Hunter, Jr., Appellate Defender by David W. Dorey, Asst. Appellate Defender, Raleigh, for defendant.
MARTIN, Justice.
The primary issue raised on this appeal is one of first impression: whether solicitation to commit common law robbery is an infamous crime. We hold that it is and therefore reverse the decision of the Court of Appeals as to this issue.
At trial, the state's evidence showed that Penelope Dawkins, the fiancee of Richard Lockamy, lived with Lockamy in a Mebane trailer park which was managed by codefendant Keith Barts. In September 1983, while visiting Lockamy's sister, Penelope and Lockamy met defendant, Charlie Mann. Thereafter, Penelope and Lockamy would, about two to three times a week, help Mann with his sawmill, straighten up his yard, and clean his house. At some point, Mann told Lockamy that he knew Lockamy had a criminal record and that Lockamy and Penelope needed money. Penelope testified that Mann told them that he knew an elderly man in Snow Camp who carried large sums of money in his bib overalls and that "[h]e would be an easy man to rob. It would take two men to rob the man. The best thing to do would be to go to a shed and wait for him to come home and after he got out of his truck, rob him from there." Lockamy told Mann he would think about it. Penelope testified that thereafter the subject came up three or four times a week. Mann would ask Lockamy if he had thought about it, and Lockamy would respond that he had, but that "he hadn't done anything about it. And, Mr. Mann kept telling him that if he didn't do it himself, ... that he would find somebody else to do it or he would do it." About a week later, Mann picked up Lockamy at his trailer one morning in order to show him where the intended victim, Richard Braxton, lived.
Sometime later, it was discovered that Mann knew Keith Barts. About a week later, Barts told Penelope and Lockamy that he had known Mann for several years and that Mann "had set him up on three jobs," and he told Penelope and Lockamy "of the jobs he pulled off." Barts also said "[t]hat the set-up, the job in the country sounded like a good lick." Then, one Monday night approximately two weeks before Braxton was killed, Lockamy, Barts, and John David "Fireball" Holmes rode to Braxton's home planning to rob the old man. Their plan was thwarted when they saw Braxton's son or grandson was with him.
*367 On 20 November 1983, Barts arrived at Penelope's trailer. He told Lockamy, "I did that job last night.... The job in the country, but I think I killed the man." Barts went on to say that he had gone to the old man's house, hidden in the shed, and waited for him to come home. When the old man arrived home, Barts jumped him and began beating him. Barts said, "I beat the old ... until I got plumb tired of beating him.... I beat him until he quit moving. The whole time the old man screamed, `Oh, God, you're gonna kill me.'" Barts said that the old man was strong and that when he "bucked" on him and hit Barts in the back with something, Barts got mad. Barts then said that the only way to know if he had actually killed the man would be to read about it in the newspaper.
In exchange for his testimony for the state, as well as for his guilty pleas to conspiracy to commit robbery and armed robbery, all other charges against Richard Lockamy were dismissed. Lockamy substantially corroborated Penelope's testimony, saying that Mann had told him he probably could tie Braxton up with a rope and wouldn't have to use any weapons to get the money. Mann also told Lockamy what he considered to be "the best way to do the job." Lockamy testified that Mann "was very persistent about someone doing the job." Mann was "interested in some of the merchandise out of [Braxton's] home or either a thousand dollars." Mann said Braxton often carried with him $10,000 to $15,000 at a time. Mann also told Lockamy he had previously set up a burglary job for Keith Barts, who went on to actually commit that burglary. After the robbery and killing of Braxton, Barts told Lockamy that he had broken into Braxton's house "and messed it up quite a bit" and that he had also broken into the tool shed. Barts admitted he'd beat Braxton with a hammer and "some type of tool."
"Fireball" Holmes testified that on 19 November 1983, he drove Earl and Keith Barts to Braxton's house, arriving there at about 8:00 p.m. When they left the car, Keith had a baseball bat and a crowbar, and Earl had Holmes' .25-caliber automatic pistol and a rubber hubcap hammer. Holmes drove the car to a bridge some distance away and waited. About thirty minutes later, Holmes drove into Braxton's driveway and encountered Earl, who was carrying the baseball bat, a .22-caliber revolver which they had found in Braxton's house, and some brass knuckles. Braxton had not yet come home, so Holmes returned in the car to the bridge. About one and a half to two hours later, Keith and Earl came barrelling down the road in Braxton's pickup truck. Keith said they had had to beat the old man. After arriving at Earl's trailer, the three men split up the money, each taking approximately $1,000.
Written statements given by Keith Barts, Penelope Dawkins, and Richard Lockamy to SBI agent Terry Johnson, substantially corroborating the trial testimony of Dawkins, Lockamy, and Holmes, were read into evidence. However, Keith's statement indicated that Earl Barts, not he, had killed Mr. Braxton.
The assistant chief medical examiner testified that he performed an autopsy on the body of seventy-four-year-old Richard Braxton. Dr. Anthony testified that Braxton had at least six large open cuts on his left forehead which all ran together; both eyes were blackened; there were bruises on his face and chest; defensive wounds were present on his right hand; numerous other small cuts and abrasions were present, and bruises on the body "were so numerous we didn't actually count or quantitate them." Dr. Anthony said that the blows to the outside of the scalp broke skull bones, fragments of which had been driven into the brain, and in his opinion, Braxton died as a result of blunt trauma to the head. Dr. Anthony also testified that death was not instantaneous and that Braxton probably lived "for a period of time" after the blows were struck.
Defendant took the stand at trial and denied ever having asked either Penelope Dawkins or Richard Lockamy to rob Mr. *368 Braxton. He said that he had known Richard Braxton all his life, that Braxton was his friend, and that Braxton's name had been mentioned in conversations with Lockamy and Penelope only because the couple desperately needed money and Lockamy had asked Mann's sister about the possibility of his doing some painting for Mr. Braxton.
Defendant offered the testimony of several witnesses who testified as to his good character. He also offered the testimony of Hasan Abdus Sabr, one of Lockamy's former cellmates, to the effect that Lockamy and Penelope, not defendant, had originated the plan to rob Richard Braxton and that Lockamy had told him that Charlie Mann did not know anything about robbing Braxton. Sabr later shared a cell with defendant for a day and a half, but said he had no conversation with Mann about what Lockamy had said.
The jury returned verdicts of guilty of soliciting Richard Lockamy to commit common law robbery of Richard Braxton, not guilty of solicitation of Penelope Dawkins to commit common law robbery, not guilty of conspiracy to commit robbery with a dangerous weapon, and not guilty of feloniously conspiring with Richard Lockamy to commit robbery with a dangerous weapon or common law robbery of Richard Braxton. Defendant was sentenced to imprisonment for seven years for conviction of a Class H felony under N.C.G.S. § 14-3(b).
Defendant appealed to the Court of Appeals, which found no error in defendant's trial but remanded the case for resentencing of defendant as a misdemeanant. We granted the State of North Carolina's petition for discretionary review.
I.
It is well established that solicitation of another to commit a felony is a crime in North Carolina. State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281 (1977); State v. Hampton, 210 N.C. 283, 186 S.E. 251 (1936). This is true even though the solicitation is of no effect and the crime solicited is never committed. Id. It has been recognized at common law since at least Rex v. Higgins, 2 East 5, 102 Eng. Rep. 269 (1801) (solicitation to commit sodomy). It is an indictable offense under the common law of North Carolina. N.C.G.S. § 4-1 (1981). There is no question that common law robbery is a felony, State v. Smith, 305 N.C. 691, 292 S.E.2d 264, cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982); State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965); nor is there any doubt that common law robbery itself is an infamous crime, State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956); Arnold v. United States, 94 F.2d 499, 506 (10th Cir.1938); Stephens v. Toomey, 51 Cal. 2d 864, 338 P.2d 182 (1959); Cousins v. State, 230 Md. 2, 185 A.2d 488 (1962), as is an attempt to commit the felony of common law robbery, State v. McNeely, 244 N.C. 737, 94 S.E.2d 853; State v. Best, 11 N.C.App. 286, 181 S.E.2d 138, cert. denied, 279 N.C. 350, 182 S.E.2d 582 (1971). In order to determine whether defendant in this case is to be punished as a misdemeanant or as a felon, we must now decide whether solicitation of another to commit common law robbery is an infamous crime within the meaning of N.C.G.S. § 14-3.[1]
N.C.G.S. § 14-3, entitled "Punishment of misdemeanors, infamous offenses, offenses committed in secrecy and malice or with deceit and intent to defraud," provides, in pertinent part:
(b) If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a *369 misdemeanor, be guilty of a Class H felony.
N.C.G.S. § 14-3(b) (1981).
N.C.G.S. § 14-3 has remained basically unchanged since 1927. This Court held, in determining that an attempt to commit burglary was punishable under the statute, that if the crime was "infamous," or is one "done in secrecy and malice," or is committed "with deceit and intent to defraud," falling into any one of these categories, it is a felony under N.C.G.S. § 14-3 and punishable as prescribed therein. State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949). Thus, if solicitation to commit the crime of common law robbery falls into either of the three categories set out in N.C.G.S. § 14-3, it is punishable under it.
A crime is "infamous" within the meaning of the statute if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duties and a mind fatally bent on mischief, Surles, 230 N.C. at 277, 52 S.E.2d at 883. Other courts, using a similar test, look to the crime to determine whether it "shows such depravity in the perpetrator ... as to create a violent presumption against his truthfulness under oath." King v. State, 17 Fla. 183, 185-86 (1879); see Sylvester v. State, 71 Ala. 17 (1881) (citing 1 Bishop on Criminal Law § 974 (1923)); Smith v. State, 129 Ala. 89, 29 So. 699 (1900). As the court stated in Grievance Committee v. Broder, 112 Conn. 269, 275, 152 A. 292, 294 (1930):
In Drazen v. New Haven Taxicab Co., 95 Conn. 500, 506, 508, 111 A. 861, we define infamous crimes to be those "whose commission involves an inherent baseness and which are in conflict with those moral attributes upon which the relations of life are based.... They are said to be those which involve moral turpitude.... It [the infamous crime] includes anything done contrary to justice", honest, modesty, or good morals....
We define this term again in Kurtz v. Farrington, 104 Conn. 257, at page 262, 132 A. 540: "Generally speaking ... moral turpitude involves an act of inherent baseness in the private, social, or public duties which one owes to his fellowmen or to society, or to his country, her institutions and her government."
Which offenses are considered infamous are affected by changes in public opinion from one age to another, Mackin v. United States, 117 U.S. 348, 6 S. Ct. 777, 29 L. Ed. 909 (1886); Ex parte Wilson, 114 U.S. 417, 5 S. Ct. 935, 29 L. Ed. 89 (1885); State v. Surles, 230 N.C. 272, 52 S.E.2d 880, and the totality of circumstances must be examined in each case before a determination can be made that a specific crime is "infamous." Accord State ex rel. Wier v. Peterson, 369 A.2d 1076, 1079 (Del.1976). Further, "[i]n determining whether an offense is `infamous,' state courts exercise independent judgment and are not bound by decisions of federal courts as to nature of crimes against federal government." United States v. Carrollo, 30 F. Supp. 3, 6 (D.Mo.1939).
In determining whether the offense for which defendant was convicted in this case is infamous, we must, then, look to the nature of the offense being solicited. Our courts in prior cases have followed this analysis and concluded that solicitation to murder is an infamous crime, State v. Furr, 292 N.C. 711, 235 S.E.2d 193; see United States v. MacCloskey, 682 F.2d 468 (4th Cir.1982), and that solicitation to commit perjury is an infamous offense, State v. Huff, 56 N.C.App. 721, 289 S.E.2d 604, disc. rev. denied, 306 N.C. 389, 294 S.E.2d 215 (1982). The Court of Appeals has held, at the other end of the spectrum, that solicitation to commit crime against nature is not infamous. State v. Tyner, 50 N.C. App. 206, 272 S.E.2d 626 (1980), disc. rev. denied, 302 N.C. 633, 280 S.E.2d 451 (1981). Solicitation to commit common law robbery lies somewhere between these opposite poles.
Solicitation involves the asking, enticing, inducing, or counselling of another to commit a crime. State v. Furr, 292 N.C. 711, 235 S.E.2d 193. The solicitor conceives the criminal idea and furthers its commission via another person by suggesting to, inducing, or manipulating that person. As noted *370 by Wechsler, Jones, and Korn in The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum.L.Rev. 571, 621-22 (1961), "the solicitor, working his will through one or more agents, manifests an approach to crime more intelligent and masterful than the efforts of his hireling," and a solicitation, "an attempt to conspire," may well be more dangerous than an attempt. Indeed, a solicitor may be more dangerous than a conspirator; a conspirator may merely passively agree to a criminal scheme, while the solicitor plans, schemes, suggests, encourages, and incites the solicitation. Further, the solicitor is morally more culpable than a conspirator; he keeps himself from being at risk, hiding behind the actor, as occurred in this case.
Common law robbery, the solicitation of which defendant here was convicted, is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965); State v. Stewart, 255 N.C. 571, 122 S.E.2d 355 (1961). It is a crime against the person, effectuated by violence or intimidation. State v. Rivens, 299 N.C. 385, 261 S.E.2d 867 (1980); State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966). Where a defendant has counselled, enticed, or induced another to commit as degrading an offense as theft from the person or presence of a victim by force or violence by putting him in fear, he has committed an act of depravity and a crime involving moral turpitude and has demonstrated that he has a mind fatally bent on mischief and a heart devoid of social duties. It is an infamous crime within the meaning of N.C.G.S. § 14-3 and defendant should be subject to punishment as a felon instead of as a misdemeanant.
We therefore hold that solicitation to commit common law robbery is an infamous crime within the meaning of N.C.G.S. § 14-3. Our extensive research of case and statutory law throughout the nation has revealed no result to the contrary.
II.
Defendant next assigns as error certain of the trial court's actions and statements to the jury during deliberations, alleging that the trial court coerced a verdict in defendant's case.
Defendant's trial lasted twenty-one days; the trial transcript totals 3,236 pages. On 21 May 1984, the trial judge gave his charge to the jury and told the jurors:
I instruct you that a verdict is not a verdict until all twelve jurors agree unanimously as to what your decision shall be. You may not render a verdict by majority vote. You will have a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment.
Each of you must decide the cases for yourselves, but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations, each of you should not hesitate to re-examine your own views and change your opinion if it is erroneous, but none of you should surrender your 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.
The jury then retired to the jury room but not to deliberate. After hearing arguments of counsel, the trial judge called the jury back in, gave it further instructions, and sent the jurors to lunch at 12:30 p.m. At 2:00 p.m., court reconvened and the trial judge sent the jury to the jury room at 2:05 to begin deliberations. At 2:30, the jury sent a request for additional instructions as to the elements of each charge and "the steps necessary for conviction of each charge." The judge so instructed, the jury again retired at 2:55, and defendant renewed his objection to the charge of felonious conspiracy to commit common law robbery. The jury deliberated until 5:02 p.m., and the court recessed for the evening. At *371 9:35 a.m. on 22 May, the jury resumed deliberations. Court went into recess at 5:31 p.m., at which time the jurors had not reached a verdict as to all charges. On 23 May, the jury continued its deliberations, beginning at 9:35 a.m. At 10:38 a.m., the jury told the trial court it had reached a unanimous verdict on all but the charge of soliciting Richard Lockamy to commit robbery, and the trial judge thereupon instructed the jury:
With respect to that case, your foreman informs me that you have so far been unable to agree upon a verdict. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women and to reconcile your difference if you can, without the surrender of conscientious convictions, but no juror should surrender his or her conscientious conviction as to the weight or effect of the evidence, solely because of the opinion of his fellow juror, or for the mere purpose of returning a verdict.
A verdict is not a verdict until all twelve jurors agree unanimously as to what your decision shall be. You may not render a verdict by majority vote. You all have a duty to consult with one another and to deliberate with a duty to reaching an agreement if it can be done without violence to individual judgment.
Each of you must decide the case for yourselves, but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations, each of you should not hesitate to re-examine your own view and change your opinion if it is erroneous, but none of you should surrender your honest convictions 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.
At this time I'll let you resume your deliberations and see if you can reach a verdict in that case that the foreman has mentioned to me.
At 11:16, the jury asked the trial judge to again "define the elements needed with respect to solicitation and the definition of intent with respect to that file number." The trial judge complied with its request. The jury resumed its deliberations at 11:40 p.m. At 12:35 p.m., the jury returned to the courtroom before its lunch recess. At that time, it sent a note to the trial judge saying: "The jury is unable to reach a unanimous verdict with respect to file number 84-CRS-4858 only." The trial judge thereupon asked, "Without telling me how you are voting in that file number, can you tell me the numerical split for the jury?" The jury foreman replied that the last vote was eight-to-four, and the trial judge sent the jury to lunch. When the jurors returned at 2:00, the trial judge asked them to go back into the jury room "and discuss the evidence in this case once again and deliberate and to see if you can reach a verdict as to this particular case." The jury went to resume deliberations at 2:03 and returned at 3:00 with a verdict. The jury submitted the ten verdict sheets, and each and every juror raised his or her right hand to confirm agreement with the trial judge's reiteration of the verdicts in each case. Following this procedure, the defense attorney asked the trial judge to poll the jury on the solicitation of Lockamy to commit robbery charge, and the jury was polled. Each juror affirmed his or her assent to the guilty verdict.
Defendant contends that the trial court coerced the jury by, among other things, requesting that it resume its deliberations at 2:00 on 23 May without once more instructing the jurors at the time of his request that none of them had to give up their convictions in reaching a verdict. "[T]he actions and statements of the trial court, when viewed within the totality of the circumstances," defendant alleges, "were such that a reasonable juror could not help but feel required to surrender his individual convictions in order to reach a unanimous verdict." Defendant argues that the trial court's inquiring as to the numerical split and sending the jurors back for further deliberations without reinstructing them not to abandon their convictions *372 "might easily have been construed as a refusal, on the court's part, to accept anything less then [sic] a unanimous verdict." This, defendant maintains, violated the well-settled prohibition against a trial judge's coercing a jury into reaching a verdict. State v. Lipfird, 302 N.C. 391, 276 S.E.2d 161 (1981); State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978); State v. Roberts, 270 N.C. 449, 154 S.E.2d 536 (1967). We disagree.
When the jury first informed the court it had reached unanimous verdicts on all but one charge but had not reached a verdict in case number 84-CvS-4858, the trial court instructed the jury in accordance with N.C.G.S. § 15A-1235(b). N.C.G.S. § 15A-1235(b) provides:
(b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:
(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
Defendant concedes that the trial judge's instructions complied with the statute. Further, the trial court did not coerce a verdict by his inquiry as to the jury's division. The making of such inquiry lies within the sound discretion of the trial judge. State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980); State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, cert. denied & appeal dismissed, 306 N.C. 561, 294 S.E.2d 374 (1982); see generally Annot. Dissenting JurorsInstructions, 97 A.L.R. 3d 96 (1980 & Supp. 1985). We find no abuse of that discretion. Our consideration of all the circumstances in this case surrounding the trial judge's instructions reveals no reasonable ground to believe that the jury was misled, and we do not perceive a reasonable probability that the trial judge's actions or statements changed the result of the trial. State v. Alston, 294 N.C. 577, 243 S.E.2d 354. The trial court's charge to the jury on the matter of further deliberations was proper under the circumstances and without prejudice to defendant. Accordingly, this assignment of error is overruled.
Last, defendant assigns as error the trial court's finding as a factor in aggravation that defendant set a course of criminal conduct in motion by his own actions which ultimately resulted in other crimes.
At the close of all the evidence, the trial court dismissed the charges against defendant of murder in the first degree, burglary in the second degree, felonious breaking or entering, and robbery with a dangerous weapon. The jury returned verdicts of not guilty of the solicitation of Penelope Dawkins to commit common law robbery and of conspiracy to commit armed robbery. At defendant's sentencing hearing on the conviction of soliciting Lockamy to commit common law robbery, the trial judge found as a nonstatutory factor in aggravation of punishment that
[t]he defendant set a course of criminal conduct in motion by his own actions which ultimately resulted in the robbery with a dangerous weapon and death of Richard Braxton and the second degree burglary of his dwelling, the felonious breaking or entering of his storage shed, the felonious larceny of his truck and the taking of a large amount of cash money from his person.
Defendant contends that because all of the offenses for which this factor purports to hold defendant responsible were dismissed or resulted in acquittals, the factor is not reasonably related to sentencing under N.C.G.S. § 15A-1340.4. State v. Medlin, 62 N.C.App. 251, 302 S.E.2d 483 (1983). He further argues that the finding of the *373 factor was not supported by a preponderance of the evidence and violated the prohibition of N.C.G.S. § 15A-1340.4(a)(1)(o). This statute proscribes as an aggravating factor the use of convictions for offenses joinable under Chapter 15A of the General Statutes of North Carolina with the crime for which a defendant is being sentenced. State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984).
A preponderance of the evidence is sufficient to prove an aggravating factor supporting a sentence in excess of the presumptive term. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983); State v. Robinson, 73 N.C.App. 238, 326 S.E.2d 86 (1985). Here, both Richard Lockamy and Penelope Dawkins testified that defendant formed the original idea to rob Richard Braxton, that he masterminded the plan, and that he counselled and enticed others to rob Mr. Braxton. Defendant thereby set in motion a course of criminal conduct that resulted in the crimes of murder, burglary in the second degree, felonious breaking or entering, and felonious larceny of a truck. This evidence was properly considered by the trial court during sentencing and was sufficient to establish by a preponderance of the evidence that defendant set this course of criminal conduct into motion by his own actions.
Lattimore is inapposite because that case involved the aggravation of the defendant's sentence based on a joinable offense for which the defendant had been convicted. Here, the court properly considered evidence in support of an aggravating circumstance which supported crimes of which defendant was charged and tried but which were dismissed. State v. Abee, 308 N.C. 379, 302 S.E.2d 230 (1983). This assignment of error is overruled.
We find no error in defendant's trial or sentence. Accordingly, that part of the decision of the Court of Appeals finding no error in the trial of this case is affirmed; the order of remand to the superior court for resentencing of defendant as a misdemeanant is reversed.
AFFIRMED IN PART; REVERSED IN PART.
BILLINGS, Justice, concurring.
Because of a long line of cases since this Court's decision in State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949) and the failure of the General Assembly to amend or repeal N.C.G.S. § 14-3, I feel compelled to concur in the Court's interpretation of the term "infamous crime" as used in N.C.G.S. § 14-3. However, for all of the reasons expressed by Justice Ervin in his dissenting opinion in Surles, I believe that the interpretation given to that term by the majority in Surles was contrary to the meaning of infamous crime at the time of the original enactment of the statute and that the common law definition was intended. At common law, infamous crimes constituted a fairly clearly-identified group of offenses.
As construed, however, the statute allows the Court to determine what general misdemeanors are to be treated as felonies based upon our perception of the degree of depravity involved in the commission of the offense. It seems to me that this makes it impossible for anyone to anticipate the scope of application of the statute. As the result of today's decision, we know that solicitation to murder is an infamous crime but that solicitation to commit crime against nature may be "at the other end of the spectrum" (p. 369) and not infamous. Apparently, anything in between is potentially covered by the statute.
Justice Martin notes in the Court's opinion that the defendant has not made a challenge to the constitutionality of N.C.G.S. § 14-3, and, appropriately, the Court has not addressed that issue. I write separately not so much to suggest the unconstitutional vagueness of the statute as to suggest to the General Assembly that some legislative limitation on the scope of the statute as construed in Surles would seem appropriate.
NOTES
[1] Defendant has not made a challenge to the constitutionality of N.C.G.S. § 14-3; therefore, we decline to address it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325094/ | 345 S.E.2d 549 (1986)
STATE of West Virginia
v.
Larry Darnell DAVIS.
No. 16433.
Supreme Court of Appeals of West Virginia.
March 25, 1986.
Rehearing Denied July 9, 1986.
*552 Robert S. Baker, Beckley, for appellant.
Silas B. Taylor, Deputy Atty. Gen., Charleston, for appellee.
McGRAW, Justice:
The appellant, Larry Darnell Davis, appeals from his conviction of aggravated robbery in the Circuit Court of Raleigh County. His various assignments of error are as follows: (1) the failure to grant his motion for continuance made immediately before trial; (2) the admission of clothing seized from his home pursuant to a search warrant obtained following a warrantless search of the premises; (3) the permission *553 of an in-court identification by a witness who had participated in an allegedly constitutionally deficient photographic lineup; (4) the admission of a store audit showing the amount taken in the robbery over a hearsay objection; (5) the allowance of lengthy fingerprint testimony despite his stipulation to the use of a crime scene telephone booth from which the fingerprints were taken; (6) the limitation of cross-examination conducted by defense counsel; (7) the refusal to admit testimony concerning a statement made by trial counsel at the scene of a search; (8) the failure to permit impeachment by prior felonies of the appellant's alleged accomplice who testified against him pursuant to a plea arrangement; (9) the refusal to direct a verdict of the appellant at the close of all the evidence; (10) the failure to give an alibi instruction and the refusal to give a motive instruction; (11) the failure to submit a verdict form to the jury; (12) the failure to consider probation as an alternative to imprisonment; and, (13) unconstitutionally ineffective assistance of counsel. Following a brief recitation of the circumstances which formed the basis for this prosecution, we will address each of these assignments of error.
At approximately 8:00 a.m. on Sunday, September 13, 1981, Levi Cobb, a Beckley paperboy, upon entering a local 7-Eleven, noticed a black male dressed in an army jacket and hood exit a tan four-door Chevette hatchback, driven by another black male, and enter a telephone booth, after the car had pulled onto an Exxon service station lot across the street. Cobb testified that the reason he noticed this man was that he thought his attire inappropriate given the weather on that particular day. In any event, after Cobb left the 7-Eleven a few minutes later, following consumption of a hot chocolate, he observed that this individual was still standing in the telephone booth, and that the man was now wearing gloves.
A few minutes after Cobb's departure, Ida Mae Lilly, sales clerk at the 7-Eleven, testified that a black male, approximately six feet tall, wearing an army jacket, hood, and sunglasses entered the store. After surveying each of the three aisles, Lilly testified that the man asked for a paper bag. When Lilly, who had been cleaning in front of the counter, started around the counter to comply with this request, the man followed her, informed her that he wanted all her money, directed her to open the register, ordered her to lie still on the floor or he would blow her brains out, and emptied the register and a petty cash box. Lilly stated that no gun was visible, but that the assailant kept one hand in his jacket pocket. Neither Cobb nor Lilly was able to identify the appellant as the robber at trial.
Cynthia Applegate, a passenger in a car stopped at a light located at the intersection of two streets which bordered and divided the 7-Eleven and the Exxon lots, testified that, at approximately 8:30 a.m. that morning, she observed a heavily dressed black male, wearing a green jacket, hood, and sunglasses, walking briskly in her direction from the 7-Eleven to the Exxon station, carrying a white bag. She stated that although she observed this individual for two to three minutes while parked at the light, she never saw him fully in the face, noticing only that he had facial hair. After the light turned green, Applegate's companion drove onto the 7-Eleven parking lot, where both were informed by an unidentified gentleman that the store had just been robbed. The following day, Applegate was summoned to the police station, where the appellant, along with several other unidentified individuals were paraded past several times, with apparently no identification of the appellant taking place. Applegate was next shown six photographs, out of which she identified the appellant as the man she observed on the date of the robbery.
Herbert Cox, the appellant's cousin and coindictee, plead guilty to a reduced charge of accessory after the fact to aggravated robbery in exchange for his testimony against the appellant. Cox testified that he and the appellant initially went to the 7-Eleven at approximately 3:30 a.m. on the *554 morning of the robbery to purchase some cigarettes. After they returned to the appellant's home a few blocks away, Cox testified that the appellant immediately suggested that they return to the 7-Eleven. When they returned, parking on the Exxon lot, at sometime between 3:30 and 4:00 a.m., Cox testified that the appellant, who stated that he needed some money and was going to rob the 7-Eleven, left the vehicle and did not return for approximately two hours, during which time Cox stated that he slept in the car parked on the Exxon lot. Cox then testified that the appellant returned to the car at approximately 5:30 a.m. and instructed him to move the car to another location several blocks away. Again, Cox stated, the appellant left the vehicle and did not return for approximately two hours. Cox said he did not know where the appellant went during these two absences of approximately two hours each. Finally, shortly after 8:00 a.m., Cox testified that he became impatient, and drove the car toward the 7-Eleven in search of the appellant. He stated that he was initially unable to locate the appellant at the 7-Eleven, but eventually found him two blocks from the store. Cox then testified that they returned to the appellant's residence, where the appellant related that, "[H]e just went in and took the money and made the lady lay down and came out."
Assisted with Cobb's identification of a tan Chevette having been parked nearby, the police were able to determine that it was similar to a vehicle owned by the appellant and went almost immediately to the appellant's residence. After being informed by the appellant's wife that he had gone to the National Guard Armory to report for training, the police went to the Armory, located Cox and the appellant, and asked them to come to the police station for questioning. Following the appellant's departure from the station and his return to the Armory, the appellant's wife and a guest testified that police officers returned to the appellant's home at approximately 1:00 and 4:00 p.m. that afternoon, and, at 4:00 p.m., without benefit of a warrant, searched through the home for evidence. During the officers' search, appellant's trial counsel arrived, and secured compliance with his request that the officers leave the home if they did not have a search warrant. The following day, however, officers returned with a search warrant, and seized an army jacket, gloves, shirt, and head gear, which were on the floor of the appellant's basement. Evidence was also introduced concerning the appellant's fingerprints which were taken from the telephone booth in which Cobb observed the robber standing.
The appellant testified that at 3:00 a.m. on the morning of the robbery, he and Cox returned to his home after a night on the town. He stated that he left Cox there, and traveled to a bar known as The Pink Pussy in Dunbar, arriving at about 4:30 a.m. After spending around an hour at this establishment, the appellant testified that he returned home, arriving at 7:30 a.m. in an intoxicated condition. He stated that his wife woke him at about 8:15 a.m., and instructed him to prepare to report for training at the Armory. As he was dressing, the appellant testified that he looked outside for his car, but discovered it was missing. Eventually, around 8:40 a.m., Cox returned with his car, according to the appellant, and he and Cox traveled to the Armory, where he reported for duty at approximately 9:00 a.m.
The appellant's wife testified that she did not see her husband from 2:30 a.m., when she was informed he was going to Charleston, until 7:30 a.m., when he returned. She stated, however, that Cox remained at the house from the time her husband left for Charleston at least until 5:30 a.m. when she saw him sleeping on the couch on a trip to the bathroom, but had departed sometime during the night and was gone when she woke at 8:00 a.m. She testified that the appellant was dressed in civilian attire when he left the house at 8:40 a.m. to report to the Armory, after Cox arrived with his car which he had apparently taken after her husband's arrival at 7:30 a.m.
Four other witnesses testified on the appellant's behalf. Two testified that they *555 saw the appellant and Cox together at a bar known as the Nite Flight until about 2:30 a.m. on the morning of the robbery. The appellant's sergeant testified that he arrived at the Armory between 8:50 and 9:00 a.m. that morning, accompanied by Cox. Finally, another witness corroborated the appellant's wife's testimony concerning the search of the basement on Sunday afternoon.
I
The appellant's first assignment of error is the trial court's failure to grant his motion for a continuance filed three days prior to trial which alleged inadequate opportunity to prepare; inability to locate a turnpike tolltaker who recognized the appellant as he was coming into Charleston on the morning of the robbery; failure to receive a requested bill of particulars until four days before trial; lack of prior knowledge of Cox's plea agreement; and, competing federal court obligations of his attorney. The standard of review with respect to determinations regarding motions for continuance is well established. As this Court stated in Syllabus Point 1 of State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919):
The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made.[1]
Careful review of the record in this proceeding reveals no abuse of discretion with regard to the trial court's refusal to grant the appellant's motion for continuance. First, with respect to an opportunity for adequate preparation, this Court held in Syllabus Point 2 of State ex rel. West Virginia Pittsburgh Coal Co. v. Eno, 135 W.Va. 473, 63 S.E.2d 845 (1951), that, "The right guaranteed by State and Federal Constitutions to a person charged with a criminal violation to have effective assistance of counsel, cannot be abrogated by denying counsel, if timely employed, sufficient time to adequately prepare for trial."[2]See also State v. Demastus, 165 W.Va. 572, 577, 270 S.E.2d 649, 653-54 (W.Va.1980) ("The Constitutions of this state and the United States guarantee a defendant a reasonable time to prepare for trial....). Trial counsel in this case had represented the appellant for almost seven months prior to trial and had previously secured a continuance two months earlier. Certainly, trial counsel was afforded a "reasonable time to prepare for trial." Second, with respect to the absence of the tolltaker, this Court has frequently observed that:
A motion for a continuance based on the absence of a witness is addressed to the sound discretion of the court, and it must be shown to the satisfaction of the court that the witness is material, and that due diligence has been used to obtain his attendance, and that his evidence would not be cumulative.
*556 Syl. pt. 1, State v. Bridgeman, 88 W.Va. 231, 106 S.E. 708 (1921).[3] Trial counsel in this case gave no indication to the trial court with regard to what efforts had been made to secure the attendance of this witness. Furthermore, the tolltaker's testimony would not have provided the appellant with an alibi for the time of the robbery anyway, but would have served only to undermine his alleged accomplice's testimony. Third, with respect to the late production of the bill of particulars and information concerning Cox's plea agreement, this Court noted in State v. Schrader, 302 S.E.2d 70, 72 (W.Va.1982), "Given [the] absence of even alleged harm caused by the late production, we cannot say that the trial court erred in denying the appellant's motion for a continuance. See Wilhelm v. Whyte, V.Wa., 239 S.E.2d 735 (1977)." In the present action, no specific allegation of harm was made with respect to either the bill or particulars or the information concerning Cox's plea agreement. Finally, with respect to trial counsel's federal court obligations, it has been noted that, "[T]he question of granting a continuance because counsel for the accused is engaged in another court in the trial of a case rests largely in the sound judicial discretion of the trial court, whose ruling will be distrubed on appeal only when it is shown that the discretion has been abused." 17 Am. Jur.2d Continuance § 37, at 161 (1964); see also 17 C.J.S. Continuances § 38, at 417 (1963); Blake v. West Virginia Insurance Co., 111 W.Va. 245, 247, 161 S.E. 32, 33 (1931) ("We are in accord with these general rules respecting postponements and continuances."). In the instant proceeding, accommodations were made on two occasions during the appellant's trial to permit his counsel's attendance in federal court at unspecified hearings. Accordingly, we conclude that the trial court's refusal to grant appellant another continuance did not constitute an abuse of discretion.
II
The appellant's second assignment of error is the trial court's failure to suppress, as "`fruit of the poisonous tree,' clothing seized from his home pursuant to a search warrant obtained following a warrantless search of the premises." See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).[4] Unquestionably, as this Court held in Syllabus Point 2 of State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (W.Va.1980), "Property observed during an illegal or improper search cannot be subsequently seized pursuant to a lawful search warrant which was based solely upon observations made during the illegal search." The State's response, however, is that because the officer whose affidavit formed the basis for the issuance of the search warrant had no knowledge of the alleged warrantless search, there was no "causal link" between the initial search and the issuance of the warrant, rendering the "poisonous tree" doctrine inapplicable.
The United States Supreme Court observed in Wong Sun v. United States, 371 U.S. at 487-88, 83 S.Ct. at 417, 9 L.Ed.2d at 455, that:
We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to *557 which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt, 221 (1959).
For example, as this Court noted in Syllabus Point 2 of State v. Hawkins, 280 S.E.2d 222 (W.Va.1981), the exclusionary rule has no application where the evidence sought to be introduced has an "independent source;"[5] where the connection between the unconstitutional police misconduct and the discovery of the challenged evidence is "so attenuated as to dissipate the taint" of the original illegality;[6] or, where the evidence would have been "inevitably discovered."[7]
In the instant proceeding, the police officer's affidavit, containing absolutely no indicia of the existence of a previous search, corroborated his testimony that he was totally unaware of any search that had allegedly taken place on the date of the robbery. Absolutely no link was established by the appellant between the search and the warrant which raised even a possibility of "exploitation" of the initial search by the police. In Syllabus Point 9 of State v. Peacher, supra, this Court held that:
An affidavit in support of an application for a search warrant which contains information that antedates, and is totally independent of, information learned from an unconstitutional search, may still be the basis upon which a valid search warrant may issue, if the information in the affidavit, excluding that information attributable to the unconstitutional search, is sufficient to justify a finding of probable cause.
Therefore, we find no error in the trial court's failure to suppress evidence seized pursuant to the warrant.
III
The appellant's third assignment of error is the trial court's refusal to suppress an in-court identification by Cynthia Applegate, who participated in an allegedly unconstitutional pretrial identification procedure. We must first address the suggestiveness of the procedure utilized in this case. As this Court held in Syllabus Point 4 of State v. Harless, 285 S.E.2d 461 (W.Va.1981), "A pretrial identification by photograph will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification."[8] One aspect of this inquiry was expressed in Syllabus Point 6 of Harless:
Most courts have concluded that a photographic array will not be deemed excessively suggestive as long as it contains some photographs that are fairly representative of the defendant's physical features. The fact that some of the photographs are dissimilar to the defendant's appearance will not taint the entire array.[9]
Two aspects of the identification procedure used in this case combine to have created a substantial likelihood of misidentification. First, it appears from the record that only the appellant and possibly one other individual participated in both the physical lineup and the photographic array. Second, despite the previous indication by the witness that the individual departing the 7-Eleven was wearing *558 an "army green" jacket and hood, the appellant's photograph presented by police clearly depicted him in a uniform with the phrase "U.S. Army" emblazoned across one side of his military issue shirt, with his name apparently obliterated by a piece of masking tape across the other side.
Unlike the photographs depicting the appellant and one other individual, the other four photographs shown Applegate had been rather obviously drawn from police files, depicting individuals who more than likely would have been unavailable for the lineup. The witness was unable to identify the appellant at the physical lineup despite his being paraded back and forth several times. There is a distinct possibility that when the witness chose the appellant's photograph from the array, she was mistakenly identifying him not from the robbery, but rather from the prior lineup in which he had participated.
Although the suggestiveness of depiction of the appellant in military attire was somewhat ameliorated by the photograph of another individual wearing what appears to be a surplus army jacket with the phrase "S. Army" visible and the "U." apparently obliterated by his collar, this individual bears little resemblance to the suspect described by the witness, having a large, bushy hairstyle that would have significantly interfered with the rather tight-fitting hood described as being worn by the suspect and a prominent goatee that was not described by the witness. Furthermore, a report of arrest form stapled to the back of this individual's photograph clearly indicates that it was taken on January 9, 1976, in connection with charges of threatening, interfering, and obstructing a police officer at the National Guard Armory in Beckley. This form also contained information regarding this individual's name, address, age, and his status as a student at Woodrow Wilson High School in Beckley.
Standing alone, each of these two circumstances may not have been impermissibly suggestive. Taken together, however, particularly in light of the questionable reliability of the basis for identification by the witness, we find that the identification procedure in this case created a substantial likelihood of misidentification.
Inquiry with respect to the propriety of Applegate's in-court identification does not terminate with our determination that the photographic identification procedure utilized created a substantial likelihood of misidentification. As this Court stated in Syllabus Point 5 of State v. Harless, supra, "Even though there is an impermissibly suggestive pretrial photographic array, an in-court identification could be made if the identifying witness has a reliable basis for making an identification of the defendant which basis is independent of the tainted pretrial identification procedures."[10] "This principle," observed this Court in State v. Watson, 318 S.E.2d at 613, "utilizes the totality of the circumstances to determine if the witness had an independent basis for his identification other than an impermissible out-of-court identification."[11] Specific guidance with respect to a determination of the adequacy of an independent basis for an in-court identification is found in the five factor test borrowed by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) from Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972), which this Court adopted in Syllabus Point 3 of State v. Casdorph, supra:
In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court *559 identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witnesses to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.[12]
First, with respect to Applegate's opportunity to observe the suspect, she testified that she was sitting in a friend's automobile at a traffic light when she noticed a black male of medium height, approximately one hundred feet away, walking from the 7-Eleven at a brisk pace, wearing a green face mask, sunglasses, a heavy green coat, and blue jeans. She testified that she observed this individual only briefly; that she never saw him fully in the face; and, that the only reason she noticed him at all was because he seemed heavily attired for the weather. Second, with respect to her degree of attention, the witness testified that while sitting at the traffic light with a friend, "I poked her [the driver] in the side and I said, `Hey, look at this guy. Isn't he kind of funny?' You know, and she just laughed and glanced. She didn't really pay that much attention to him at all." Third, with respect to the accuracy of Applegate's previous description of the suspect, the focus was primarily upon his attire, and although she was able to relate a belief that he had some facial hair, she was extremely vague as to either its amount of location. Fourth, with respect to the level of certainty demonstrated by the witness at the photographic array, the record is silent, although her failure to identify the appellant at a physical lineup prior to the array indicates a rather significant degree of uncertainty. Finally, with respect to the lapse of time between observation and identification, only one day had passed.
In addition to these five factors, several other features of this proceeding are also relevant. First, the victim, who had the greatest opportunity to view the suspect, did not identify the appellant at trial. Second, the newsboy, who observed the suspect for several minutes at a closer distance than Applegate, was also unable to identify the appellant at trial. Finally, the reason for this lack of identification, the suspect's attire, which was obviously designed to conceal his identify, was present throughout the entire episode, including the time when Applegate's observations were made.
Careful review of the totality of the circumstances presented in this proceeding compels our conclusion that the photographic identification procedure used in this case created a substantial likelihood for misidentification and that the identifying witness did not possess a sufficiently reliable independent basis, for in-court identification. Accordingly, the trial court committed reversible error when it overruled appellant's motion to suppress Applegate's in-court identification.
IV
The appellant's fourth assignment of error is the trial court's admission *560 of a store audit, conducted by managerial personnel, but signed by the victim, over an objection that, granted the victim's admitted lack of participation in the actual audit, it was inadmissible hearsay. Irrespective of the propriety of this admission, however, as this Court held in Syllabus Point 2 of State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979):
Where improper evidence of a non-constitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.[13]
Under our aggravated robbery statute, West Virginia Code § 61-2-12 (1984 Replacement Vol.), the amount of money taken is irrelevant. The victim in the instant case testified that the robber emptied the bills from the cash register and petty cash drawer. Testimony with respect to the precise amount taken, even if hearsay, would have had no appreciable effect upon the jury, and, therefore, the admission of testimony concerning the result of the audit, if error, was harmless.
V
The appellant's fifth assignment of error is the trial court's permission of extensive expert fingerprint testimony despite his stipulation to the prior use of a crime scene telephone booth from which the fingerprints were taken. As noted by the State, however, the appellant failed to raise any objection at trial to such testimony. In fact, with respect to the extensiveness of the fingerprint testimony, appellant's trial counsel stated that, "It's up to them [the prosecution]. We're not questioning that." This Court held in Syllabus Point 4 of State v. Michael, 141 W.Va. 1, 87 S.E.2d 595 (1955), that, "Error in the admission of testimony to which no objection was made will not be considered by this Court on appeal or writ of error, but will be treated as waived."[14] Therefore, we find no merit in the appellant's fifth assignment of error.
VI
The appellant's sixth assignment of error is allegedly burdensome limitation of cross-examination by defense counsel. He complains, however, of but one instance in which the trial court sustained the prosecution's objection to defense counsel's question as repetitive, but overruled defense counsel's repetitiveness objection to a *561 question posed by the prosecutor. As this Court held in Syllabus Point 4 of State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956):
The extent of cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in case of manifest abuse or injustice.[15]
Careful review of the record in this proceeding reveals no abuse of discretion with respect to the scope of cross-examination allowed defense counsel.
VII
The seventh assignment of error raised by the appellant concerns the trial court's refusal to permit defense counsel's testimony regarding the warrantless search of the appellant's home on the day of the robbery. Specifically, the trial court sustained the prosecution's objection to defense counsel's inquiry of a visitor at the appellant's home at the time of the alleged warrantless search to the effect that, "Do you recall whether I asked them if they had a search warrant?" Granted our conclusion that evidence seized from the appellant's home pursuant to a search warrant was admissible irrespective of any previous warrantless search, the trial court's action, if erroneous, was harmless under Syllabus Point 2 of State v. Atkins, supra.
VIII
The appellant's next assignment of error is the trial court's refusal to permit impeachment by prior felony convictions of the appellant's alleged accomplice, who testified against him pursuant to a plea arrangement. In State v. McAboy, 160 W.Va. at 508, 236 S.E.2d at 437, this Court noted that whether prior convictions may be introduced to impeach the credibility of a witness other than the defendant in a criminal trial rests within the sound discretion of the trial court.[16] As the appellant candidly concedes, trial counsel's cross-examination of the alleged accomplice with respect to his prior convictions can best be described as "groping." Inadequate discovery on the part of trial counsel was the reason for this fumbling effort at impeachment of the alleged accomplice by prior convictions. Finally, in exasperation, the trial court stated, "[T]he Court directs you not to pursue that unless you've got some concrete evidence of a conviction of a felony. I'm going to allow you to show that, but that's as far as you can go." Having no concrete evidence of apparently several felony convictions, the appellant's trial counsel immediately abandoned this line of questioning. Under these circumstances, we conclude that the trial court did not abuse its discretion with respect to the appellant's impeachment of his alleged accomplice through prior felony convictions.
IX
The appellant's ninth assignment of error is the trial court's failure to direct a verdict of acquittal at the close of all the evidence. In Syllabus Point 1 of State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974), we held that:
"Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court *562 be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt." State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969).[17]
The appellant's representations concerning the imperviousness of his alibi defense notwithstanding, when viewed in a light most favorable to the prosecution, substantial evidence was presented upon which a jury might well find proof of his guilt beyond a reasonable doubt. Therefore, we find this assignment to be without merit.
X
The appellant's tenth assignment of error is the trial court's refusal to give a motive instruction and failure to give an alibi instruction.
The appellant's motive instruction, which was rejected by the trial court, attempted to establish motive as an element of the crime of aggravated robbery. As this Court observed in Syllabus Point 5 of State v. Lemon, 84 W.Va. 25, 99 S.E. 263 (1919), however, "While it is permissible to prove the motive which prompted the commission of crime, the failure of the state to discover and prove any motive therefor is no evidence of the innocence of the accused. Motive constitutes no element of the crime itself." To this Court, the motive which prompts robbery is self-evident. It is well settled that, "Instructions in a criminal case that are confusing, misleading, or incorrectly state the law should not be given." Syl. pt. 3, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978).[18] The trial court was correct in refusing to give the appellant's motive instruction.
The appellant also objects to the trial court's failure to give an alibi instruction despite trial counsel's failure to request such instruction. We note that some courts have held that where the sole defense of alibi, presented in a criminal prosecution, has been supported by corroborating testimony, the trial court has an affirmative duty, even in the absence of a request, to properly charge the jury on this issue. See generally Annot., 72 A.L.R. 3d 547 (1976). Granted our conclusion, however, that commission of the other trial error necessitates reversal, we refrain from making a determination on this issue except to note our displeasure with trial counsel's failure to request an alibi instruction. It seems that assignment of the fruit of arguably ineffective assistance of counsel is often employed as a diversionary technique designed to deflect judicial scrutiny of the quality of legal representation rendered by certain practitioners in criminal matters.
XI
The appellant's eleventh assignment of error is the trial court's failure to submit a *563 verdict form to the jury. The trial court instructed the jury that, "[U]nder the indictment in this case, if warranted, by the evidence, you may find one of the following verdicts, to-wit: (1) guilty of aggravated robbery; (2) guilty of unaggravated robbery; (3) not guilty." No verdict form was given to the jury. When the jury returned to the courtroom following completion of its deliberations, the foreman read the verdict, "Guilty as charged," from a piece of paper which he had signed. Following a poll of the jurors, the trial court instructed that the verdict be transposed onto the original indictment and read by the clerk, who stated, "We the jury find the defendant, Larry Darnell Davis, guilty as charged in the within indictment." The members of the jury stated their affirmance of this transcription, and the indictment was signed by the foreman.
Obviously, the provision of a verdict form would have avoided the confusion inherent in the procedure followed by the trial court in this case. In Syllabus Point 2 of State v. Arbruzino, 67 W.Va. 534, 68 S.E. 269 (1910), however, this Court held, "The verdict of a jury in a criminal case should be read in connection with the indictment, and, if the meaning of the verdict is thus made certain, it is sufficiently definite."[19] The indictment in the instant case clearly charged the appellant with aggravated robbery. The jury's verdict, "Guilty as charged," was transposed onto the indictment, affirmed by the jury, and signed by the foreman. Therefore, the verdict in this proceeding was sufficiently definite.
XII
The State concedes the validity of the appellant's twelfth assignment of error, the trial court's failure to consider probation as an alternative to imprisonment. The appellant was convicted six weeks after the effective date of amendment to West Virginia Code § 62-12-2(c)(1) (1984 Replacement Vol.), which provides, in relevant part, that:
The existence of any fact which would make an person ineligible for probation... because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm shall not be applicable unless such fact is clearly stated and included in the indictment or presentment by which such person is charged and is ... (ii) found by the jury, if the matter is tried before a jury, upon submitting to such jury a special interrogatory for such purpose....
The indictment in the present action did not allege use of a firearm and no special interrogatory was submitted to the jury for such purpose. The trial court, however, apparently unaware of the amendments, reluctantly found the appellant ineligible for probation.
Under West Virginia Code § 62-12-2(c)(1) (1984 Replacement Vol.), the commission or attempted commission of a felony with the use, presentment, or brandishment of a firearm must be clearly stated in the indictment or presentment by which a person is charged and must be found by the jury upon submission of a special interrogatory for such purpose in order to make any person ineligible for probation upon conviction in a jury trial of a felony prosecution. Obviously, because neither of the statutory criteria were met in this case, the trial court erred by failing to consider probation as an alternative to imprisonment due to the alleged use of a firearm by the appellant.
XIII
The appellant's final assignment of error is alleged unconstitutionally ineffective assistance of trial counsel. Specifically, the appellant complains concerning trial counsel's *564 failure to familiarize himself with the requirements of West Virginia Code § 62-12-2(c)(1) (1984 Replacement Vol.) with respect to his eligibility for probation; to make any pretrial discovery request of the prosecution; to make any pretrial suppression motion with respect to evidence seized from his home; to present important suppression evidence at suppression hearings which were held at trial; to obtain his alleged accomplice's felony record prior to trial; to subpoena key witnesses for trial; and, to request an alibi instruction, his sole defense.
Our standard for ascertaining the constitutional sufficiency of legal representation in a criminal proceeding is set forth in Syllabus Point 19 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), which provides that:
In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error.[20]
Confronted with several obviously prejudicial omissions on the part of trial counsel, the State offers that a hearing pursuant to an application for writ of habeas corpus would provide a more appropriate vehicle for examination of the effectiveness of counsel. Having concluded that commission of other trial error necessities reversal, we refrain from making a determination on this issue.
XIV
In conclusion, due to the trial court's allowance of an in-court identification by a witness who had no reliable basis for such identification independent of a pretrial photographic identification procedure which created a substantial likelihood of misidentification, we must reverse the appellant's conviction and remand his case for retrial.
Reversed and remanded.
NOTES
[1] See also Syl. pt. 2, State v. Trail, 328 S.E.2d 671 (W.Va.1985); Syl. pt. 1, State v. Angel, 319 S.E.2d 388 (W.Va.1984); Syl. pt. 2, State v. Hodges, 305 S.E.2d 278 (W.Va.1983); Syl. pt. 8, State v. Flint, 301 S.E.2d 765 (W.Va.1983); Syl. pt. 2, State ex rel. Shorter v. Hey, 294 S.E.2d 51 (W.Va.1981); Syl. pt. 1, State v. Cunningham, 290 S.E.2d 256 (W.Va.1981); Syl. pt. 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979); Syl. pt. 4, State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976); Syl. pt. 1, State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972); Syl. pt. 1, State v. Tapp, 153 W.Va. 759, 172 S.E.2d 583 (1970); Syl. pt. 7, State v. Nuckols, 152 W.Va. 736, 166 S.E.2d 3 (1968); Syl. pt. 2, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966); Syl. pt. 6, State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1955); Syl. pt. 1, State v. Simmons, 130 W.Va. 33, 42 S.E.2d 827 (1947); Syl. pt. 1, State v. Padgett, 93 W.Va. 623, 117 S.E. 493 (1923); Syl. pt. 3, State v. Lutz, 88 W.Va. 502, 107 S.E. 187 (1921); Syl. pt. 2, State v. Alie, 82 W.Va. 601, 96 S.E. 1011 (1918); Syl. pt. 2, State v. Swain, 81 W.Va. 278, 94 S.E. 142 (1917); Syl. pt. 1, State v. Angelina, 73 W.Va. 146, 80 S.E. 141 (1913); Syl. pt. 7, State v. Harrison, 36 W.Va. 729, 15 S.E. 982 (1892); State v. Betsall, 11 W.Va. 703 (1877).
[2] See also Syl., State ex rel. Rogers v. Casey, 273 S.E.2d 356 (W.Va.1980); Syl. pt. 1, State v. Bush, supra note 1; Syl. pt. 3, Wilhelm v. Whyte, 161 W.Va. 67, 239 S.E.2d 735 (1977).
[3] See also Syl. pt. 3, State v. Vance, 285 S.E.2d 437 (W.Va.1981); Syl. pt. 1, State v. Chaffin, supra note 1; Syl. pt. 2, State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1951); Syl. pt. 2, State v. Simmons, supra note 1; Syl. pt. 2, State v. Lucas, 129 W.Va. 324, 40 S.E.2d 817 (1946); Syl. pt. 2, State v. Whitecotten, 101 W.Va. 492, 133 S.E. 106 (1926); Syl. pt. 4, State v. Wisman, 94 W.Va. 224, 118 S.E. 139 (1923); Syl. pt. 3, State v. Lutz, supra note 1; Syl. pt. 2, State v. Jones, supra; Syl. pt. 1, State v. Duffy, 75 W.Va. 299, 83 S.E. 990 (1914).
[4] See also State v. Hilliard, 318 S.E.2d 35, 38 (W.Va.1983); State v. Aldridge, 304 S.E.2d 671, 673 (W.Va.1983); State v. Winston, 295 S.E.2d 46, 47 n. 3 (W.Va.1982); State v. Stone, 165 W.Va. 266, 271-73, 268 S.E.2d 50, 54 (1980); State ex rel. Williams v. Narick, 164 W.Va. 632, 633 n.2, 264 S.E.2d 851, 853 n.2 (1980); Syl. pt. 3, State v. Williams, 162 W.Va. 309, 249 S.E.2d 758 (1978).
[5] See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct. 182, 183, 64 L. Ed. 319, 321-22 (1920); State v. Peacher, 280 S.E.2d 559, 580-81 (W.Va.1981).
[6] See Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307, 312 (1939); State ex rel. Williams v. Narick, 264 S.E.2d at 855.
[7] See Nix v. Williams, 467 U.S. 431, ___, 104 S. Ct. 2501, 2507-11, 81 L. Ed. 2d 377, 388-90 (1984).
[8] See also Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968); Syl. pt. 6, State v. Watson, 318 S.E.2d 603 (W.Va.1984).
[9] See also Syl. pt. 3, State v. Boykins, 320 S.E.2d 134 (W.Va.1984); Syl. pt. 7, State v. Watson, supra; Syl. pt. 5, State v. Buck, 294 S.E.2d 281 (W.Va.1982).
[10] See also State v. Watson, 318 S.E.2d at 613; Syl. pt. 3, State v. Bennett, 304 S.E.2d 28 (W.Va. 1983); State v. Boyd, 280 S.E.2d 669, 680 (W.Va. 1981); Syl. pt. 5, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975); Syl. pt. 1, State v. Stollings, 158 W.Va. 585, 212 S.E.2d 745 (1975) overruled on other grounds State v. McAboy, 160 W.Va. 497, 498 n.1, 236 S.E.2d 431, 432 n. 1 (1977); Syl. pt. 3, State v. Moore, 158 W.Va. 576, 212 S.E.2d 608 (1975).
[11] See also State v. Casdorph, 159 W.Va. 909, 916, 230 S.E.2d 476, 480 (1976).
[12] See also Syl. pt. 2, State v. Boykins, supra note 9; State v. Watson, 318 S.E.2d at 613 n.12; Syl. pt. 1, State v. Audia, 301 S.E.2d 199 (W.Va. 1983); Syl. pt. 2, State v. Gravely, 299 S.E.2d 375 (W.Va.1982); Syl. pt. 1, State v. Dye, 298 S.E.2d 898 (W.Va.1982); Syl., State v. Cox, 297 S.E.2d 825 (W.Va.1982); Syl. pt. 2, State v. Swiger, 289 S.E.2d 497 (W.Va.1982); State v. Harless, 285 S.E.2d at 467 n. 10; Syl. pt. 2, State v. Morgan, 284 S.E.2d 924 (W.Va.1981); Syl. pt. 4, State v. Carter, 282 S.E.2d 277 (W.Va.1981); Syl. pt. 4, State v. Boyd, supra note 10; Syl. pt. 4, State v. Critzer, 280 S.E.2d 288 (W.Va.1981); Syl. pt. 3, State v. Hawkins, 280 S.E.2d 222 (W.Va.1981); State v. Payne, 280 S.E.2d 72, 79 (W.Va.1981); Syl. pt. 1, State v. Rickman, 278 S.E.2d 880 (W.Va.1981); Syl. pt. 6, State v. Demastus, supra; Syl. pt. 2, State v. Foddrell, 165 W.Va. 540, 269 S.E.2d 854 (1980); State v. Watson, 164 W.Va. 642, 648, 264 S.E.2d 628, 632 (1980); Syl. pt. 3, State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978); Syl. pt. 1, State v. Williams, 162 W.Va. 348, 249 S.E.2d 752 (1978); Syl. pt. 1, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978).
[13] See also Syl. pt. 12, State v. McFarland, 332 S.E.2d 217 (W.Va.1985); Syl. pt. 11, State v. Gum, 309 S.E.2d 32 (W.Va.1983); Syl. pt. 4, State v. Tanner, 301 S.E.2d 160 (W.Va.1982); Syl. pt. 3, State v. Church, 284 S.E.2d 897 (W.Va. 1981); State v. White, 280 S.E.2d 114, 120 (W.Va.1981); Syl. pt. 3, State v. Payne, supra note 12; State v. Rowe, 163 W.Va. 593, 601 n. 3, 259 S.E.2d 26, 31 n. 3 (1979); State v. Fraley, 163 W.Va. 542, 545-46, 258 S.E.2d 129, 131 (1979).
[14] See also Maxey v. Bordenkircher, 330 S.E.2d 859, 861-62 (W.Va.1985); Syl. pt. 2, State v. Wyant, 328 S.E.2d 174 (W.Va.1985); Syl. pt. 1, State v. Smith, 289 S.E.2d 478 (W.Va.1982); Syl. pt. 1, State v. Baker, 287 S.E.2d 497 (W.Va.1982); State v. Ketchum, 289 S.E.2d 657, 660 (W.Va. 1981); State v. Moran, 285 S.E.2d 450, 452 (W.Va.1981); State v. Craft, 165 W.Va. 741, 759, 272 S.E.2d 46, 56 (1980); State v. Clawson, 165 W.Va. 588, 619, 270 S.E.2d 659, 677 (1980); State v. Burton, 163 W.Va. 40, 58, 254 S.E.2d 129, 140 (1979); State v. Starkey, 161 W.Va. 517, 530, 244 S.E.2d 219, 227 (1978); State v. McGee, 160 W.Va. 1, 6-7, 230 S.E.2d 832, 836 (1976), overruled on other grounds State v. McAboy, 160 W.Va. 497, 498 n. 1, 236 S.E.2d 431, 432 n. 1 (1977); Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974); Syl. pt. 2, State v. Mahramus, 157 W.Va. 175, 200 S.E.2d 357 (1973); Syl. pt. 4, State v. Knotts, 156 W.Va. 748, 197 S.E.2d 93 (1973); State v. Pietranton, 137 W.Va. at 492, 72 S.E.2d at 625; State v. Mayle, 136 W.Va. 936, 942, 69 S.E.2d 212, 215 (1952); Syl. pt. 4, State v. Files, 125 W.Va. 243, 24 S.E.2d 233 (1943); Syl. pt. 7, State v. Driver, 88 W.Va. 479, 107 S.E. 189 (1928).
[15] See also Syl. pt. 10, State v. Gum, supra note 13; Syl., State v. Wood, 280 S.E.2d 309 (W.Va. 1981); Syl. pt. 18, Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975); Syl. pt. 1, State v. Charlot, 157 W.Va. 994, 206 S.E.2d 908 (1974); Syl. pt. 1, State v. Wolfe, 99 W.Va. 694, 129 S.E. 748 (1925).
[16] See also State v. Burton, supra note 14; State v. Justice, 135 W.Va. 852, 863, 65 S.E.2d 743, 749 (1951); Syl. pt. 3, State v. Lucas, supra note 3; Syl. pt. 1, State v. Crummit, 123 W.Va. 36, 13 S.E.2d 757 (1941); State v. Price, 113 W.Va. 326, 334, 167 S.E. 862, 866 (1933); State v. Worthington, 109 W.Va. 449, 450, 155 S.E. 313, 314 (1930); State v. Porter, 98 W.Va. 390, 403 127 S.E. 386, 392 (1925); Syl. pt. 2, State v. Walker, 92 W.Va. 499, 115 S.E. 443 (1922); State v. Prater, 52 W.Va. 132, 151, 43 S.E. 230, 237 (1903); Syl. pt. 4, State v. Hill, 52 W.Va. 296, 43 S.E. 160 (1903).
[17] See also Syl. pt. 16, State v. Cook, 332 S.E.2d 147 (W.Va.1985); Syl. pt. 1, State v. Gum, supra note 13; Syl. pt. 4, State v. Oldaker, 304 S.E.2d 843 (W.Va.1983); Syl. pt. 1, State v. Horton, 294 S.E.2d 248 (W.Va.1982); Syl. pt. 5, State v. Woods, 289 S.E.2d 500 (W.Va.1982); State v. Starkey, 161 W.Va. at 518, 244 S.E.2d at 221; Syl. pt. 4, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976) overruled on other grounds State ex rel. White v. Mohn, 283 S.E.2d 914, 915 n. 2 (W.Va.1981); State v. Woods, 155 W.Va. 344, 349, 184 S.E.2d 130, 134 (1971) overruled on other grounds State v. McAboy, 160 W.Va. 497, 498 n. 1, 236 S.E.2d 431, 432 n. 1 (1977).
[18] See also Syl. pt. 2, State v. Saunders, 330 S.E.2d 674 (W.Va.1985); State v. Lambert, 312 S.E.2d 31 (W.Va.1984); Syl. pt. 4, State v. Simmons, 309 S.E.2d 89 (W.Va.1983); State v. Wilcox, 286 S.E.2d 257, 261 (W.Va.1982); State v. Harris, 286 S.E.2d 251 (W.Va.1982); State v. Knight, 285 S.E.2d 401, 407-08 (W.Va.1981); Syl. pt. 1, State v. Romine, 272 S.E.2d 680 (W.Va.1980); State v. Butcher, 165 W.Va. 522, 528, 270 S.E.2d 156, 160 (1980); State v. McClure, 163 W.Va. 33, 37, 253 S.E.2d 555, 557-58 (1979); Syl. pt. 3, State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978); Syl. pt. 3, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975); Syl. pt. 6, State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973); Syl. pt. 2, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971); Syl. pt. 6, State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962) overruled on other grounds Syl. pt. 6, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975); Syl. pt. 4, State v. Travis, 139 W.Va. 363, 81 S.E.2d 678 (1954); Syl. pt. 12, State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1951).
[19] See also Syl. pt. 1, Crawford v. Coiner, 152 W.Va. 411, 163 S.E.2d 793 (1968); Syl. pt. 2, State v. Runnion, 122 W.Va. 134, 7 S.E.2d 648 (1940); State v. Frey, 92 W.Va. 323, 326, 114 S.E. 681, 682 (1922); Syl. pt. 2, State v. Brown, 91 W.Va. 187, 112 S.E. 408 (1922); State v. Vineynard, 85 W.Va. 293, 295, 101 S.E. 440, 443 (1919); Syl. pt. 1, State v. Moneypenny, 81 W.Va. 362, 94 S.E. 540 (1917); Syl. pt. 1, Moody v. State, 1 W.Va. 337 (1866).
[20] See also Syl. pt. 1, State v. Swiger, 336 S.E.2d 541 (W.Va.1985); Syl. pt. 1, State v. Blevins, 328 S.E.2d 510 (W.Va.1985); Syl. pt. 1, Tucker v. Holland, 327 S.E.2d 388 (W.Va.1985); Syl. pt. 3, State v. Cabalceta, 324 S.E.2d 383 (W.Va.1984); Syl. pt. 1, State v. Tadder, 313 S.E.2d 667 (W.Va. 1984); Syl. pt. 2, State v. Bogard, 312 S.E.2d 782 (W.Va.1984); Syl. pt. 1, State v. Cecil, 311 S.E.2d 144 (W.Va.1983); Syl. pt. 2, Carter v. Taylor, 310 S.E.2d 213 (W.Va.1983); Syl. pt. 1, State v. Bias, 301 S.E.2d 776 (W.Va.1983); Syl. pt. 4, State v. Mullins, 301 S.E.2d 173 (W.Va.1983); Syl. pt. 3, State v. Jacobs, 298 S.E.2d 836 (W.Va.1982); Syl. pt. 6, State v. Riser, 294 S.E.2d 461 (W.Va.1982); Syl. pt. 4, State v. Baker, supra note 14; Syl. pt. 6, State v. Hatfield, 286 S.E.2d 402 (W.Va.1982); Syl. pt. 4, State v. Church, supra note 13; Syl. pt. 1, Carrico v. Griffith, 165 W.Va. 812, 272 S.E.2d 235 (1980); Syl. pt. 3, State v. Foddrell, supra note 12; Syl. pt. 2, Scott v. Mohn, 165 W.Va. 393, 268 S.E.2d 117 (1980); State v. Watson, 164 W.Va. at 649, 264 S.E.2d at 632-33; Syl. pt. 2, State v. Bradley, 164 W.Va. 68, 260 S.E.2d 830 (1979); State v. Bush, 163 W.Va. at 175, 255 S.E.2d at 543; Syl. pt. 1, Cannellas v. McKenzie, 160 W.Va. 431, 236 S.E.2d 327 (1977); Syl. pt. 1, State ex rel. Wine v. Bordenkircher, 160 W.Va. 27, 230 S.E.2d 747 (1976); Syl. pt. 1, Carter v. Bordenkircher, 159 W.Va. 717, 226 S.E.2d 711 (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325105/ | 152 Ga. App. 805 (1979)
264 S.E.2d 276
RIDER
v.
WESTINGHOUSE ELECTRIC CORPORATION et al.
58564.
Court of Appeals of Georgia.
Submitted September 6, 1979.
Decided December 4, 1979.
Rehearing Denied December 19, 1979.
*813 Ben F. Smith, Brown & Browning, Thomas J. Browning, for appellant.
Frederick E. Link, Williston C. White, J. Kirk Quillian, for appellees.
CARLEY, Judge.
Appellant brought suit, as beneficiary of her deceased husband, to recover under a group occupational travel accident insurance policy provided by the appellee-Westinghouse to its employees and underwritten by the appellee-Insurance Company of North America (INA).
For the years 1974 and 1975 appellant's husband received a statement from Westinghouse which purported to inform him of his accrued benefits as an employee of that corporation. The statements were personalized, being headed by the name, social security number, date of birth and other identifying characteristics of the deceased. The documents for both years contained a standardized printed list of employee benefits, with spaces where the value or amount of the individual employee's entitlement to those benefits, which varied according to tenure and salary, were added by computer printout. From 1974 to 1975, while appellant's husband's entitlement to certain benefits was increased, the statements contained the following: "For ACCIDENTAL death, the following would also be paid: If death results from an accident ON THE JOB $20,000 Personal Accident Insurance Plan PLUS any Workmen's Compensation which applies. If death should result from an accident while you are traveling on Company business, $25,000 Travel Accident Insurance would ALSO be paid." The statements also contained the following advice to Westinghouse employees: "It is important to note that your benefits package represents a valuable part of your total compensation from the Company. Some of your benefits provide for immediate needs, while others are a source of lifelong protection for you and your family. And, as your pay and length of service grow, your benefits keep growing too. It is also important that you take this statement home and review it with members of your family. Not only will this give *806 them a better idea of the value of the benefits provided by the Company, but it will help them to know the full extent of what you have in the benefits `bank' and what you can count on if the need arises." Apparently appellant's husband heeded this advice, discussed the statement with appellant and other family members and concluded that, based on this statement, his death benefits coverage was adequate.
Upon the accidental death of her husband in 1975, appellant applied for and received all the benefits to which she was entitled under the statements save one. She was refused the $25,000 "Travel Accident Insurance" benefits. She was informed that entitlement to these benefits was based upon a group policy which specifically excluded from coverage those employees, such as her husband, whose principal job assignment was driving company owned or leased motor vehicles, unless they were traveling outside their territory. Appellant's husband was a Westinghouse truck driver who was killed in an accident which occurred in his regularly assigned territory.
Appellant brought suit against Westinghouse and INA for the $25,000 in travel accident benefits. Appellees answered that the statements issued to appellant's husband which indicated, by way of typing in the "$25,000" figure next to the printed designation of "Travel Accident Insurance" benefits was a computer printout error which would not be controlling over the specific exclusion from coverage contained in the group policy. After discovery both sides moved for summary judgment. Appellant's motion was denied but the trial court granted summary judgment in favor of Westinghouse and INA.
1. As against INA, appellant seeks to recover on a group policy which specifically excludes her husband from coverage under the circumstances of his death operation, as his principal job assignment, of a company vehicle, in his territory of regular assignment. She urges that, in compiling and issuing the statements furnished to her husband, Westinghouse was the "agent" of INA and that, since the statements purported on their face to extend unqualified coverage for death resulting from an accident while traveling on company business, INA *807 should be estopped to deny coverage based on the exclusions of the master policy.
There is no evidence that in compiling and issuing the statements Westinghouse was acting as INA's agent. There is no reference whatsoever in the statements to INA, the insurer, and no reference to a specific policy of insurance as the basis for the issuance. Compare Lipshitz v. New Zealand Ins. Co., 34 Ga. App. 825 (131 S.E. 924) (1926); Metropolitan Life Ins. Co. v. Fields, 53 Ga. App. 76, 79 (184 S.E. 752) (1936); Lancaster v. Travelers Ins. Co., 54 Ga. App. 718 (189 S.E. 79) (1936); Cherokee Credit Life Ins. Co. v. Baker, 119 Ga. App. 579 (168 SE2d 171) (1969). The statements are complete and entire documents by which Westinghouse, in its capacity as employer, advised appellant's husband, its employee, of the benefits he derived by virtue of his employment. The statements do not purport to be "part" of a contract of insurance, the missing elements of which are supplied by reference to a specific policy issued by INA. Compare Underwriters' Agency v. Sutherlin, 46 Ga. 652 (1872). There is nothing in the statements which would connect or interlock them with the group policy issued by INA upon which appellant seeks to recover; the statements and the policy are not contemporaneous instruments, each affecting and controlling the same subject matter. Compare Carruth v. Aetna Life Ins. Co., 157 Ga. 608 (122 S.E. 226) (1924). For all intents and purposes the statements are what they appear to be documents, entire and complete unto themselves, by which the employer, in that capacity, sought to inform its employee of the benefits to which he was entitled, without specifying the ultimate source, other than the fact of employment, from which that benefit flowed.
"Under the group insurance policy, the employer is acting for itself and on behalf of its members in order to obtain cheap insurance for them through a group plan. It is representing itself and its members, not the insurance company. Its only authority is to issue a certificate of insurance to its employees and to remit the premium therefor to the insurance company, but this does not make it a general agent. The employer is not in the insurance business, but is rendering all the service it can for its employees. It receives no compensation from the *808 insurance company ... Applying the above rules to the facts in this case, we do not think the employer ... was an agent of the insurer, or clothed with any power to waive any of the conditions of the group policy of insurance covering the employee of such employers..." Lancaster v. Travelers Ins. Co., 54 Ga. App. 718, 724, supra.
Furthermore, even assuming Westinghouse were the agent of INA in issuing the statements, it would not afford appellant any basis for recovery under the circumstances. "[T]he coverage of the policy [may not] be extended by estoppel or by waiver. The doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, or its agent, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom. [Cits.]" Ballinger v. C. & S. Bank, 139 Ga. App. 686, 689 (229 SE2d 498) (1976).
Appellant contends that the above stated rules do not apply where, as apparently was the case with her husband, no information is supplied by either the employer or the insurer that there is a group policy in effect which may be inspected or that the coverage afforded is subject to exclusions. She urges that since the only information given to her husband was the single statement that if he was killed while traveling on company business $25,000 in "Travel Accident Insurance" benefits would be paid, without reference to a group policy as the source of those benefits, he would not be chargeable as a matter of law with knowledge of the exclusions. It is contended that under these circumstances, her husband was entitled to rely upon the unequivocal statement of coverage. We do not agree that the fact that Westinghouse failed to inform appellant's husband of the group policy or of the exclusion affords the basis for estopping INA from raising the exclusion. The policy in question defined "Persons Insured" as: "All officers and employees of the Policyholder [Westinghouse] in a class or unit designated by the Policyholder [Westinghouse] as eligible for insurance hereunder, including all persons coming within the scope of such description at any time during the policy term, but excluding those whose principal job assignment is the driving of cars, trucks or other Company owned or leased *809 motor vehicles except while they are traveling outside their territory of regular assignment." (Emphasis supplied.) "`... Much is made in argument of the proposition that the whole plan and scheme was to furnish protection to the insured. Of course this is true, but it does not follow that the insurer is made chargeable with the conduct of the intermediary who sought to bring the insurer and the insured into relation, who offered and bound itself to pay to the insurer the price demanded for the insurance, and who agreed to perform the office of keeping the insurer informed as to who had accepted, and come under the terms of, the offer ... The insurer issued a policy that admittedly gave full information to the employer ... Having furnished to the party acting for and in behalf of the employees full and accurate information as to the terms of the contract it would make, the insurer would not be required to go further or be held responsible for the way in which the employer imparted the information to the employee for whom the employer was acting. If the employer failed of this duty, the employee might have a cause for complaint against his unfaithful representative [cit.], although he would have none against the third party with whom the representative dealt ..." Lancaster v. Travelers Ins. Co., 54 Ga. App. 718, 722, supra.
As against INA, appellant is the beneficiary of an employee who was specifically excluded from coverage under the policy sued upon. Summary judgment was properly granted to the insurer. Midland Nat. Ins. Co. v. Wright, 117 Ga. App. 208 (160 SE2d 262) (1968).
2. As against Westinghouse, however, appellant stands as the beneficiary of its employee, her husband. The statements her husband received were issued to him by Westinghouse. They purported to inform him and the "members of [his] family" of the "full extent of what [he had] in the benefits `bank' and what [he could] count on if the need arises." He was informed by the statements that he had in his benefits "bank" and could "count on" $25,000 "Travel Accident Insurance" if he were killed in an accident while traveling on company business. He was not informed that his entitlement to this "benefit" was based upon group insurance, which was controlled by a master *810 policy. Compare Lipshitz v. New Zealand Ins. Co., 34 Ga. App. 825, supra; Metropolitan Life Ins. Co. v. Fields, 53 Ga. App. 76, supra; Lancaster v. Travelers Ins. Co., 54 Ga. App. 718, supra; Cherokee Credit Life Ins. Co. v. Baker, 119 Ga. App. 579, supra; Ballinger v. C. & S. Bank, 139 Ga. App. 686, supra. Apparently appellant's husband had no knowledge of the existence of the specific group policy of insurance, the exclusions of which Westinghouse urges preclude a recovery by his beneficiary of travel accident death benefits, or of his right to inspect it. Compare Brown v. Mack Trucks, Inc., 111 Ga. App. 164 (141 SE2d 208) (1965); American Liberty Ins. Co. v. Sanders, 120 Ga. App. 1 (169 SE2d 342) (1969); Parris & Son v. Campbell, 128 Ga. App. 165 (196 SE2d 334) (1973). Under such circumstances, the employer may not avoid potential liability to an employee or to his beneficiaries by claiming the benefit of the insurer's defense to recovery based upon the specific exclusions of coverage found in the policy. Here, the employee's right to recover a "benefit" to which his employer has represented an entitlement resulting from his employment, must be determined under our decision in Hercules, Inc. v. Adams, 150 Ga. App. 223 (257 SE2d 289) (1979). "Accordingly, the crucial question to be determined in the instant case is whether the information contained in the [statements] adequately placed the employee on notice that the intent of [Westinghouse] was not that the [statements] distributed contained the [complete statement of the employee's benefits] but placed the employee on notice that the [statements] contained a summarization which was not binding, and the employees could inspect the controlling master plan ..." Hercules, Inc., supra, at 227.
The representations contained in the statement as to appellant's husband's "Travel Accident Insurance" benefits were those quoted in Division 1 of this opinion which included: "If death results from an accident while you are traveling on Company business, [$25,000] Travel Accident Insurance would ALSO be paid." (Emphasis supplied.) This is the sum total of Westinghouse's representation to appellant's husband as to this benefit. There was no statement that this benefit was based upon Westinghouse's group policy with INA or that appellant's *811 husband had the right to inspect that policy. There was no specific statement that the "benefit" represented was otherwise qualified. In other words, "[i]n the instant case, the summarized version of the [benefit] did not specify [any qualification on the beneficiary's right to recover]." Hercules, Inc., supra at 226.
It is true that the statements contained the following provision, located on the pages following the unqualified representation as to "Travel Accident Insurance": "We've made every effort to insure that the figures on your statement are accurate. However, you can appreciate that in preparing some 145,000 individual reports, occasional errors may occur. If you believe any of your figures are inaccurate, circle the items in question and return the form to your supervisor. You will get a corrected statement or an explanation of why the figures shown are correct." (Emphasis supplied.) However, there was no reason why appellant's husband, not having been informed that his "benefit" was based upon a group policy and, therefore, not chargeable with knowledge of the exclusions contained therein, should have suspected that the $25,000 figure may have been Westinghouse's computer printout error. He was encouraged to question the accuracy of the statement's representations and to discuss his "benefits" with his supervisor only if he had reason to suspect an error. Compare Hercules, Inc., supra at 223.
The statements also contained the following provision, again located in a part of the text separate from the representations concerning the "benefits" here in issue: "In all cases, your eligibility for benefits and the determination of actual benefits payments are governed and controlled by the provisions of the various benefit plans." However, nowhere was the employee advised that the "Travel Accident Insurance" benefits were predicated upon a group policy of insurance, the controlling master policy being subject to his inspection to determine the full details of its coverage and exclusions. Compare Hercules, Inc., supra.
Under these circumstances, "[w]e find the issue of adequacy of the notice to the employee, that [the master policy of group insurance, to which he had the right of *812 access, was controlling and that the representations contained in the statement were not], to be within the province of the jury. Thus, the grant of summary judgment [to Westinghouse] was improper ... " Hercules, Inc., supra at 227.
The record before us contains an additional booklet prepared by Westinghouse for delivery to its employees and which does specify the source of the "Travel Accident Insurance" benefits as the INA group policy and informs as to the limited coverage thereunder and the right to obtain "a certificate explaining the details." Were it undisputed that this booklet had been issued to appellant's husband, the case, in our opinion, would be taken out of the Hercules, Inc., reasoning and would be then controlled, adversely to appellant's claim, by the holding in Cherokee Credit Life Ins. Co. v. Baker, 119 Ga. App. 579, supra. However, the trial court found that a question of fact remained as to whether appellant's husband was issued this explanatory booklet or, as urged by appellant, he received only the statements entitled "Your Benefits as an Employee of Westinghouse" here sued upon. We are in agreement that such a fact question remains. If the jury determines that appellant's husband received only the statements and that the notice contained therein as to his limited entitlement to the benefits sought in this action was inadequate, appellant would be entitled to recover against Westinghouse. If the jury determines that such notice was sufficient or that appellant's husband received the additional explanatory booklet, as urged by Westinghouse, a verdict for the employer would be required. These factual questions remaining, the grant of summary judgment to Westinghouse on the basis of the Cherokee Credit Life Ins. Co. decision was erroneous.
Judgment affirmed in part and reversed in part. Deen, C. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325111/ | 178 Ga. App. 802 (1986)
345 S.E.2d 46
BONE
v.
THE STATE.
72111.
Court of Appeals of Georgia.
Decided April 10, 1986.
Rehearing Denied April 23, 1986.
John A. Nuckolls, for appellant.
Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.
BIRDSONG, Presiding Judge.
Charlotte Annette Bone was convicted of using a fraudulent writing in a matter within the jurisdiction of the state government, i.e., furnishing for remuneration a fictitious real estate license to an unqualified licensee. She was sentenced on three counts to run consecutively, on Count 1 to serve five years, and five years on probation on Counts 2 and 3. She brings this appeal enumerating nine alleged trial court errors. Held:
The facts giving rise to this appeal reflect that a land development corporation was selling lots for improvement at Lake Sinclair. *803 The development company hired several agents to sell these lots. When first hired, these agents were not required to be licensed real estate agents. When the company became aware that the state required licensed real estate agents to sell the property being developed, the company retained Ms. Bone to conduct a pretest real estate school at the company's premises in Hancock County. Ms. Bone is licensed by the state as a real estate broker and is qualified to conduct one of these pretest schools. Numerous students took the course and apparently most passed Ms. Bone's course of preparation and the state real estate examination. However at least three of her students were unsuccessful in passing the state administered real estate examination. These employees were aware that they had to have a license in order to retain their employment with the development company. Each of the three applicants (represented as co-indictees with Ms. Bone) approached the broker who was the principal agent representing the development company, one Lineberger, also a co-indictee. The employees made inquiry of Lineberger if there was any way they could get a license. Lineberger informed them that he would make inquiry of Ms. Bone to see if she could be of any help. Though no formal agreement between Lineberger and Ms. Bone appears of record, it apparently was agreed that for a payment of sums ranging from $700 to $1,200 paid to Lineberger (and another in one case) and by him to Ms. Bone, the employees could obtain a real estate license. Each paid the required sum and in due course a license was forwarded ostensibly from Ms. Bone to Lineberger as broker. The custom in the real estate business is that all real estate salesmen must be associated with a broker in order to sell real estate even though licensed to do so. Lineberger being the broker for the development company, all agents selling real estate for the company worked through Lineberger and their licenses were displayed on the wall of his office in Hancock County. Subsequently Lineberger left the Hancock County development and moved his office to Milledgeville in Baldwin County. He continued to display in his office in Baldwin County the several licenses of the real estate salesmen who worked with Lineberger as their broker.
One of the co-indictees after paying his money for his license to Lineberger did not receive it promptly. He made inquiry of the Georgia Real Estate Commission and repeatedly was told that the commission files did not show him as having a license and as not being a real estate agent. After receiving his license and upon inquiry to Ms. Bone, he was told that his license was authentic and had come from the Real Estate Commission because she had a "friend" in the commission office. An investigation of Lineberger ensued and in his office, displayed on the wall as evidence of valid real estate licenses, were three licenses an of which were fictitious in that none of the persons *804 represented in the licenses was recorded as having successfully passed the real estate agent's qualifying test. While all three had successfully completed Ms. Bone's pretest school with a passing grade, all three had taken the state test and failed to achieve a passing grade.
1. In her first enumeration of error, Ms. Bone argues that the trial court erred in allowing several witnesses to testify whose names had not been furnished in a timely fashion to the defendant pursuant to her demand for a list of witnesses. The facts show that pursuant to the request, the state furnished a list of five names. Several days before trial, an additional list of about ten more names was furnished. Of those ten, only three of the co-indictees were called, with their permission, as were two other witnesses. To the effect that names in the indictment constitute notice, see Redmond v. State, 252 Ga. 142 (2) (312 SE2d 315). The state showed that the names of all additional witnesses were furnished to the defense investigator several days before trial. When this was communicated to the defense counsel, he urged his investigator to interrogate as many as possible. The transcript does not show how many, if any, the investigator was able to interrogate before the trial started. Additionally, it was shown that two of the co-indictees upon the advice of their individual counsel declined to talk to the investigator or defense counsel when attempts were made to interrogate them. The trial court inquired fully into the state's efforts to comply with the demand for the list of witnesses. In view of the fact the defense announced ready when the case was called without registering any objection to the calling of additional witnesses, the court denied counsel's motion for continuance but granted the defense full opportunity to interrogate each witness not previously interrogated prior to the witness being called by the state. Counsel for Ms. Bone, after registering his motion to disqualify the additional state witnesses, acquiesced in the procedure without renewing his motion.
First, we observe that appellant's counsel apparently was aware prior to the start of the trial that the state intended to call several witnesses whose names had been filed with the appellant only a few days before trial was to start. Yet when the case was called, appellant's counsel announced as ready. Then as the witnesses were called, objection was made that the names of the witnesses had not been timely filed. Under such circumstances, it has been held by this court that any error in the delayed notification of witnesses to be called was waived by the announcement that the defense was ready. Hardin v. State, 142 Ga. App. 795, 796 (237 SE2d 202); Davis v. State, 135 Ga. App. 203 (217 SE2d 343). Moreover in this case, Ms. Bone's counsel admitted he had a weekend to interview the witnesses but simply did not know if his investigator had accomplished such interrogations. Lastly, we observe the trial court gave the defense opportunity to interview *805 each of these witnesses prior to the witness testifying. This procedure was acquiesced in and followed by counsel. The sanction of the statute excluding the testimony of a witness whose identity has not been disclosed as required by the statute is not a mandatory exclusion and the protection contemplated by the statute can be accomplished where the trial court in its discretion determines the defendant can be protected by some other form of relief. Wright v. State, 166 Ga. App. 295, 298 (3) (304 SE2d 105). Such protection can be afforded, as it was in this case, by giving the defendant an opportunity to interview the witnesses before allowing the witness to testify. Butler v. State, 139 Ga. App. 92, 93 (227 SE2d 889). There is no merit in this enumeration of error.
2. In her second enumeration of error, Ms. Bone argues the state did not prove venue in Baldwin County. This argument proceeds from the premise that the licenses in question were issued while the three unqualified agents were selling real estate in Hancock County and the licenses were "used" only in that county. Thus when Lineberger moved to Baldwin County and displayed the licenses on his wall in his office in Baldwin County, these licenses were not "used" in Baldwin County. It is not disputed that the state proved that Lineberger's office was located in Baldwin County and the three licenses were displayed, as if authentic, in his office. Thus the only question is whether a license is "used" as a license when it is displayed in the office of a broker as an authentic license or whether it was "used" only when displayed and the agent so licensed actually sells real estate.
We will not place the restricted meaning on the word "used" suggested by Ms. Bone. The gravamen of the offense charged was not that the bogus agents sold real estate but that an allegedly authentic real estate license, which lawfully could only be issued by the Real Estate Commission following the meeting of the requisite qualifications by the licensee, was surreptitiously issued by one not authorized and thereafter placed on public display as allegedly authentic. While certainly an unlawful act, if a license were unlawfully fabricated and hidden or destroyed without publication, it hardly can be said that the authority of the Real Estate Commission has been challenged or damaged nor does the mere sale of real estate necessarily involve the use of a fictitious license. We conclude therefore that the crime of using a fraudulent document within the jurisdiction of the state was committed when the fictitious documents were displayed as authentic in the office of a broker. Appropriate proof established that display occurred in Baldwin County. We find no merit in this enumeration.
3. In enumeration of error 3, Ms. Bone argues with much facial merit that the indictment charged her with "using" a fictitious document (as a statutory principal) whereas the trial court charged the *806 jury and thus allowed it to return a verdict if it found she "made" or "used" such a fictitious document. We would agree that this enumeration raises an inherently prejudicial charge except for two reasons contraindicative thereto. In the first place, the state offered no proof that the documents were prepared by Ms. Bone personally either by way of expert testimony that the documents came from her office or by use of documents or typewriters that could be located only in her office. Circumstantially it was shown that one of the licenses had been in her office at one time and that as to all three of the licenses, she was asked if she could obtain licenses, she accepted a fee and licenses shortly thereafter came through the mail to the broker Lineberger. While this evidence may circumstantially show that Ms. Bone "made" the licenses, it more nearly establishes the state's contention that she was a principal to the ultimate "use" of the documents when they were mailed to the broker and displayed on his wall as "authentic" licenses. Thus while there could have been a potential for confusion with the jury, the evidence most consistently established the fact and satisfied the responsibility of the jury to find a "use". We are satisfied a reasonable jury would not have been misled by the insertion of the word "made" in the charge of the court. See Jackson v. Kight & Sons, 159 Ga. 584 (3) (126 S.E. 379); Hogan v. City-County Hosp., 138 Ga. App. 906, 909 (227 SE2d 796).
Secondly, and more importantly, prior to its charge, the trial court conducted a precharge conference. Three times the court stated verbatim that the charge would be in the language of the statute and would include the words "made and used." Counsel for Ms. Bone then independently agreed that the charge was correct and repeated himself, as a proper use, the words "made and used" while suggesting the removal of other words which he felt were inappropriate. Even assuming arguendo the charge may have introduced an extraneous basis for conviction, the error was for all practical purposes not only waived but also induced by the defense. It is never permissible to base appellate error on induced error. Drake v. State, 142 Ga. App. 14, 16 (234 SE2d 825). Moreover at the conclusion of the charge of the court, counsel were asked if they had any objections. Counsel for Ms. Bone stated unequivocally he had none and even complimented the court on a job well done. This too precludes any appellate court enumerations on the charge. White v. State, 243 Ga. 250 (253 SE2d 694). This enumeration lacks merit.
4. Ms. Bone contends as error a passing reference by one witness that the Real Estate Commission had evidence of three additional fictitious real estate licenses probably attributable to Ms. Bone's activities. No further reference was made to these licenses by any witness and no objection was voiced at the time the evidence was admitted or at any other time before the trial court or jury. Ms. Bone now contends *807 the admission of these acts of uncharged misconduct violates the rules of procedure before superior courts in that she was not informed that the state was determined to use such evidence.
We will give no consideration to the merits of this enumeration. One cannot ignore what may be harmful error while hoping for a favorable result and then raise error when expectations prove false. Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221); Gibbons v. State, 136 Ga. App. 609, 610 (222 SE2d 55). Appellate courts exist for correction of trial error, where proper objection is taken. Velkey v. Grimes, 214 Ga. 420, 421 (105 SE2d 224). Where enumerated errors on appeal attempt to raise for the first time questions not raised in the trial court, nothing is presented for appellate decision. Cauley v. State, 137 Ga. App. 814, 815 (224 SE2d 794).
5. In enumeration of error 5, Ms. Bone contends there was no corroboration of the testimony of the several accomplices and a conviction may not be sustained upon the uncorroborated testimony of an accomplice.
We are not persuaded by this argument. The evidence showed that hanging on the wall in Lineberger's office were three fictitious real estate licenses. This was not evidence of a circumstantial nature nor evidence resting upon the testimony or veracity of an accomplice but real, demonstrative evidence. There was independent evidence that the named licensees had all attended a pretest school operated by Ms. Bone and that each had been certified as qualified as her graduates to take the real estate agent's state-administered exam. Three of the accomplices testified that they had sought a license from Lineberger and became aware that for the payment of a fee, a license could be obtained from Ms. Bone. After payment of that fee, a license was indeed obtained.
In the case of accomplice testimony, although the corroboration must be independent evidence which tends to connect the accused with the crime (West v. State, 232 Ga. 861 (209 SE2d 195)), slight evidence is still the test. Alderman v. State, 241 Ga. 496, 510 (246 SE2d 642); Birt v. State, 236 Ga. 815, 826 (225 SE2d 248). Moreover where two or more accomplices testify, the testimony of one may be corroborated by another. Considering the circumstantial evidence of Ms. Bone's connection to the real estate commission, her sponsorship of these co-indictees, the physical evidence of the forged documents, and her personal connection to at least one of the documents found hanging on Lineberger's wall, we are satisfied there was more than slight independent evidence to show her connection at least by circumstantial evidence. Williams v. State, 222 Ga. 208, 220 (149 SE2d 449). When that evidence is taken together with the further testimony of the co-indictees, we are satisfied there was ample evidence to withstand a motion for a directed verdict of acquittal. Davis v. State, 234 *808 Ga. 730, 732 (218 SE2d 20). There is no merit in this enumeration.
6. Ms. Bone urges error in the failure of the trial court sua sponte to charge upon the necessity of the corroboration of accomplice testimony. We first point out that trial defense counsel for all this record shows made no specific request for a charge on the corroboration of accomplice testimony and made no objection to the omission of such a charge. In its charge, the court informed the jury fully on the principles of credibility of witnesses, impeachment of witnesses, corroboration of a witness after impeachment, and the law of parties to a crime.
As we held in Division 5 of this opinion, the state did not rely wholly on the testimony of accomplices to justify the conviction of Ms. Bone. Contrary to appellant's argument, it has been held by this court that a trial court does not err in failing to charge on the weight to be afforded testimony of an accomplice nor the necessity for corroboration, where the appellant did not request such a charge, and did not except to failure to give such a charge sua sponte, and where the guilt of the accused was not based solely upon the accomplices' testimony. Maxwell v. State, 170 Ga. App. 831 (318 SE2d 650). This is reenforced by the affirmative charge given by the court on the weight and credibility to be given the testimony of any witness and the law of principles. See Been v. State, 163 Ga. App. 581 (295 SE2d 541). This enumeration lacks merit.
7. The seventh enumeration relates to the failure to conduct an in-camera review by the trial court of a tape recording of a conversation assertedly occurring between the appellant Ms. Bone and one Blumenthal. Ms. Bone has not made the court aware of what she contends the tape contains, where or what discrepancies may be present nor that production of the tape may cause a different trial result. An examination of the transcript shows that the trial court over a several day trial apparently intended to listen to the tape in-camera but did not do so. Again at the hearing on the motion for new trial, the court indicated it would do so. We are not aware from the record or transcript whether that has been done. Nevertheless, a Brady motion does not require a complete exposure of the prosecutor's file nor require the state to produce any and all tangible objects. Shavers v. State, 244 Ga. 491, 493 (260 SE2d 883). In this case, the prosecutor has averred that the tape does not contain any exculpatory material and the trial court has promised that it would conduct the in-camera examination and release exculpatory material to the defendant. The fact that such material has not been forthcoming would imply that the trial court, as a public officer, has conducted his duties properly, and found nothing exculpatory. In any event, a defendant assigning error upon the denial of a Brady motion must do more than show suppression. Dickey v. State, 240 Ga. 634, 636 (242 SE2d 55). He must go further and show that the suppressed evidence might have *809 affected the outcome of the trial. Legare v. State, 243 Ga. 744, 754 (257 SE2d 247). In the absence of such a showing, the appellant has raised no error for our consideration.
8. Enumeration of error 8 complains the state erroneously was allowed to call an expert witness concerning the examination of a questioned document in face of the failure to produce to the defendant a copy of any scientific reports. The request for all reports of scientific tests, studies or experiments made no reference to a ten-day time frame nor to the provisions of OCGA § 17-7-211. The request was contained in a motion denominated a "Motion for Discovery" and cited as authority for the grant thereof the case of Brady v. Maryland, 373 U.S. 83 (83 SC 1194, 10 LE2d 215). When the experts testified for the prosecution, no mention was made of a written report having been prepared or that such a report if prepared had been delivered into the custody of the state.
Inasmuch as the motion for discovery did not mention the statute or make clear that the ten-day time frame was being invoked, the trial court did not err in allowing the testimony of the experts, especially in the absence of an objection thereto. Massey v. State, 251 Ga. 515, 516 (2) (307 SE2d 489). Moreover, the transcript is wholly silent as to whether the experts made a written report or whether the state had possession of such scientific report. Standing alone, testimony arising out of the tests and their results was competent and admissible evidence notwithstanding the request. The request was for written reports in the possession of the state and there was no showing that the state had any written reports to deliver to the appellant. Billings v. State, 161 Ga. App. 500 (288 SE2d 622). See also Law v. State, 165 Ga. App. 687 (302 SE2d 570). This enumeration is without merit.
9. In her last enumeration, Ms. Bone contends the trial court erred in denying her post-conviction bail. While Ms. Bone presented substantial evidence of her good reputation and trustworthiness, nevertheless, the trial court was presented some evidence that Ms. Bone could possibly be dangerous to herself or others in that when asked prior to her incarceration on these charges if she had a gun, her response was to the effect that she did not have a gun but she wished she had. Another adverse witness testified that he was concerned that Ms. Bone could try to intimidate him either physically or eco-nomically.
While others considering this testimony may conclude these reasons for denying post-conviction bail to be tenuous, our responsibility is to determine if there is any evidence to show a possible violation of one or more of the Birge standards (Birge v. State, 238 Ga. 88 (230 SE2d 895)). If there is an affirmative finding by the trial court as to any one or more of the four standards and there is any evidence to support that finding, the denial of a bond will be sustained by this *810 court. Moore v. State, 151 Ga. App. 413, 414-415 (260 SE2d 350).
The evidence in this case at least minimally meets those requirements. There is no merit in this enumeration.
Judgment affirmed. Banke, C. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3757138/ | MEMORANDUM OPINION
{¶ 1} On February 12, 2004, appellant, Robert Gibson, filed a notice of appeal from a January 12, 2004 judgment of the Trumbull County Court of Common Pleas. In that judgment, appellant was found guilty of one count of corruption of a minor and five counts of sexual battery, and he was sentenced accordingly. Thus, appellant's notice of appeal was filed thirty-one days after the judgment had been issued by the trial court.
{¶ 2} App.R. 4(A) states:
{¶ 3} "A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure."
{¶ 4} App.R. 5(A) provides, in relevant part:
{¶ 5} "(1) After the expiration of the thirty day period provided by App.R. 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a defendant with leave of the court to which the appeal is taken in the following classes of cases:
{¶ 6} "(a) Criminal proceedings;
{¶ 7} "(b) Delinquency proceedings; and
{¶ 8} "(c) Serious youthful offender proceedings.
{¶ 9} "(2) A motion for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the failure of the appellant to perfect an appeal as of right."
{¶ 10} In the present case, appellant has neither complied with the thirty-day rule set forth in App.R. 4(A) nor sought leave to appeal. Thus, this court is without jurisdiction to consider this appeal.
{¶ 11} Based upon the foregoing analysis, this appeal is sua sponte dismissed pursuant to App.R. 4(A).
{¶ 12} The appeal is dismissed.
Appeal dismissed.
Christley and Rice, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2262042/ | 900 F.Supp. 238 (1995)
Charles Boston JONES, Movant,
v.
UNITED STATES of America, Respondent.
No. 4:95CV00782 GFG.
United States District Court, E.D. Missouri, Eastern Division.
October 12, 1995.
Jeff S. Allder, El Paso, TX, for petitioner.
Edward J. Rogers, Office of U.S. Attorney, St. Louis, MO, for respondent.
ORDER
GUNN, District Judge.
This matter is before the Court on a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The motion states only one ground for relief: Jones maintains that his conviction violates the Double Jeopardy Clause.
The parties agree regarding the following facts. On January 11, 1991 a 1987 International brand semi-tractor truck bearing ID # 2HSFBT6R7HC0872 was seized by agents of the United States Drug Enforcement Administration ("DEA") in El Paso, Texas. On January 25, 1991 Jones was indicted by the Grand Jury of the United States District Court for the Eastern District of Missouri and charged with conspiracy to possess with intent to distribute and/or distribution of marijuana (Count I) and distribution of marijuana (Count II). On March 27, 1991 the Grand Jury of the same court returned a superseding indictment in which additional defendants were charged in Count I of the indictment.
On August 19, 1991 the trial of Jones began, and on August 26, 1991 the jury returned a verdict of Guilty on both counts of the superseding indictment. Jones was sentenced on January 22, 1992 to a term of imprisonment of one hundred fifty-one (151) months concurrently on each count.
On April 17, 1991 DEA administratively forfeited the truck pursuant to 21 U.S.C. § 881(a)(4).[1] Section 881(d) makes many of *239 the provisions of the customs laws relating to forfeiture, found in the Tariff Act of 1930, 19 U.S.C. §§ 1581-1631, applicable to forfeitures brought pursuant to § 881(a)(4). Under the customs laws, administrative forfeiture may proceed if the vehicle was used to transport any controlled substance. 19 U.S.C. § 1607(a)(3). Written notice must be sent to each party "who appears to have an interest in the seized article." 19 U.S.C. § 1607(a). If no one files a claim within twenty days, then DEA may declare the property forfeited and sell it at a public auction "in the same manner as merchandise abandoned to the United States is sold." 19 U.S.C. § 1609(a). If a person files a claim and posts the requisite bond of $5,000 or ten percent of the value of the claimed property, whichever is lower but not less than $250, then the matter is referred to a United States attorney who must initiate judicial forfeiture proceedings. 19 U.S.C. § 1610. If a claimant proves his financial inability to post the bond, the bond requirement will be waived. 19 C.F.R. § 162.47(e).
The Declaration of Forfeiture states that there were no claims timely filed for the property. (Exh. 1.) Jones admits that he received notice of the seizure and states that he filed a claim and a request to proceed in forma pauperis. (Mov.Reply to Gov.Resp. at 2, Attachs.) Jones explains that the government denied his request to proceed in forma pauperis as "not adequately supported" and subsequently forfeited the truck when Jones was unable to provide the bond demanded by DEA. (Mov.Reply to Gov.Resp. at 2.)
Jones claims that in light of the forfeiture, his subsequent conviction violates the Double Jeopardy Clause. The Double Jeopardy Clause protects against multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The Supreme Court has determined that forfeitures under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881(a)(4), (7), are not solely remedial but penal. Austin v. U.S., ___ U.S. ___, ___, 113 S.Ct. 2801, 2810, 125 L.Ed.2d 488 (1993). Therefore, the forfeiture of the truck in this case constitutes "punishment." Additionally, the Court will assume, as Jones contends, that the forfeiture and criminal conviction in this case are punishment for the same offense and that the forfeiture and criminal prosecution constituted separate proceedings. Under these circumstances, Jones' conviction may violate the Fifth Amendment's Double Jeopardy Clause. See generally United States v. Ursery, 59 F.3d 568 (6th Cir.1995), petition for cert. filed, 64 USLW 3161 (U.S. Aug. 28, 1995) (No. 95-345); United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir.1994); United States v. Torres, 28 F.3d 1463 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994).
However, it is axiomatic that "an accused must suffer jeopardy before he can suffer double jeopardy." Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975). "Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy." Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064. The party claiming double jeopardy must have been a party to the forfeiture proceeding; otherwise, jeopardy does not attach because that person was never at risk of having a forfeiture judgment entered against him. United States v. Baird, 63 F.3d 1213, 1218-19 (3d Cir.1995); United States v. Cretacci, 62 F.3d 307, 310-11 (9th Cir.1995); Ursery, 59 F.3d at 572; Torres, 28 F.3d at 1465; Ringor v. United States, 887 F.Supp. 1371, 1376-78 (D.Haw.1995); United States v. Walsh, 873 F.Supp. 334, 337 (D.Ariz.1994); United States v. Branum, 872 F.Supp. 801, 803 (D.Or.1994); United States v. Kemmish, 869 F.Supp. 803, 805 (S.D.Cal.1994). Therefore, the Court in this case must address the threshold issue of attachment and must decide *240 whether jeopardy attached when the Declaration of Forfeiture issued.
Jones argues that he made a claim to the property and became a party to the forfeiture proceeding. The Court does not agree. There are certain rules described above which apply when a person wishes to become a party to an administrative forfeiture proceeding. A person must overcome such procedural hurdles to contest the forfeiture. Indeed, the person who fails to perfect his claim, just as one who chooses not to contest the forfeiture, is never in jeopardy because one cannot be in jeopardy without being subject to the risk of an adjudication of guilt or innocence. Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064. Therefore, because Jones did not fulfill the procedural requirements and subject himself to a proceeding where his guilt or innocence might be determined, he was never in jeopardy and cannot prevail on his claim that his subsequent conviction violated the Double Jeopardy Clause. See United States v. Unger, 898 F.Supp. 740, (D.Or. 1995) (finding that an administrative forfeiture did not implicate the Double Jeopardy Clause when the party filed a claim and posted the requisite bond but failed to file a claim and answer in the civil forfeiture case initiated upon referral of the administrative proceeding to the Office of the United States Attorney); United States v. Muth, 896 F.Supp. 196 (D.Or.1995) (finding that an administrative forfeiture did not implicate the Double Jeopardy Clause when the party's request to proceed in forma pauperis with his claim was denied for unsatisfactory proof and the party failed to perfect his claim by posting the bond or taking further action.)
Apparently, Jones sought no further relief following the denial of his request to proceed in forma pauperis; for example, there is no evidence that Jones sought to amend his request to supply adequate documentation. The Court additionally notes that it has reviewed the claim and the declaration Jones filed in support of his request to proceed in forma pauperis. (Mov.Reply to Gov.Resp.Attachs.) In his declaration dated February 26, 1991, Jones asserted that he was employed but had not worked for over a month since DEA seized his truck on January 7, 1991; he also claimed to have received during the past twelve months $106,307.83 in salary plus $9,564.00 in retirement benefits from the United States Army. He stated that he had an overdrawn checking account and supported his wife and son. As for property owned, Jones cited the seized truck as worth $50,000 and a 1990 Chrysler Imperial with a "$14,000 balance owed." The declaration included no attached documentation. The Court assumes that the required bond would have been $5,000. With a yearly income of over $110,000 and no additional information or documentation explaining why Jones was unable to post the demanded bond, the Court finds that Jones' Declaration in Support of his Request to Proceed in Forma Pauperis was inadequately supported and did not prove Jones' financial inability to post the bond. 19 C.F.R. § 162.47(e). Accordingly,
IT IS HEREBY ORDERED that the motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 of Charles Boston Jones is denied.
NOTES
[1] The Court assumes that the truck was forfeited pursuant to subsection (a)(4) of § 881 because the government in its response alleges that on or about December 12, 1990, Jones "used [the truck] ... to transport marijuana through the Eastern District of Missouri and unloaded a quantity of marijuana at a truck stop in the Eastern District of Missouri." (Resp't Resp. to Movant's Mot. at ¶ 1.) Section 881(a)(4) subjects "[a]ll conveyances, including ... vehicles ..., which are used ... to transport or in any manner to facilitate the transportation, sale, receipt, possession, or concealment" of controlled substances in violation of Subchapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-904. 21 U.S.C. § 881(a)(4). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262046/ | 240 P.3d 1246 (2010)
Clifford J. OCHSER, a single man, Plaintiff/Appellant,
v.
Deputy Gerard FUNK, in his individual capacity as a deputy with the Maricopa County Sheriff's Office, and Jane Doe Funk, husband and wife; Sergeant Anthony R. Cruz, in his individual capacity as a deputy with the Maricopa County Sheriff's Office, and Jane Doe Cruz, husband and wife, Defendants/Appellees.
No. 1 CA-CV 09-0141.
Court of Appeals of Arizona, Division 1, Department D.
September 28, 2010.
*1248 Robbins & Curtin, PLLC By Joel B. Robbins, Anne E. Findling, Phoenix, Attorneys for Appellant.
Jones, Skelton & Hochuli, PLC By Eileen Dennis GilBride, Daniel P. Struck, Lisa S. Wahlin, Phoenix, Attorneys for Appellees.
OPINION
OROZCO, Judge.
¶ 1 Appellant-Plaintiff Clifford J. Ochser (Ochser) appeals the trial court's grant of summary judgment in favor of Appellees-Defendants Funk, et al. (collectively, Defendants). For the following reasons, we affirm the trial court's grant of summary judgment in favor of Defendants.
FACTS AND PROCEDURAL HISTORY
¶ 2 When reviewing motions for summary judgment, we view the facts in the light most favorable to the non-moving party and the party against whom summary judgment was entered. Mousa v. Saba, 222 Ariz. 581, 585, ¶ 15, 218 P.3d 1038, 1042 (App.2009).
¶ 3 On May 5, 2004, the Maricopa County Sheriff's Office (MCSO) conducted "Operation Mother's Day 2004," an operation to arrest parents with outstanding child support warrants. MCSO obtained a list of active child support arrest warrants from the Arizona Department of Public Safety (DPS). Each of the warrants included in the "Operation Mother's Day 2004" list was checked for validity prior to inclusion on the list. Ochser's name was included on MCSO's active warrant list because he had an arrest warrant issued on January 3, 2003, as a result of unpaid child support. The arrest warrant, however, had been previously quashed in a March 2003 minute entry. Despite being quashed, Ochser's warrant remained in active status with MCSO, and his name was included on the May 4, 2004 list.[1] Pursuant to MCSO warrant procedure, Defendants confirmed the validity of Ochser's warrant with the MCSO OIC prior to executing the warrant.
¶ 4 On May 5, 2004, Defendants arrived at Ochser's workplace in Flagstaff, Arizona and informed him that he was under arrest in connection with an outstanding child support arrest warrant. Ochser protested his arrest, explaining the warrant had been quashed. He told Defendants he had a certified copy of the minute entry on his office desk that would confirm the warrant had been quashed. Defendants conferred and agreed to make an inquiry regarding the validity of the warrant. One Defendant officer alleges to have made a phone call to inquire about the validity of the warrant to both OIC and the chambers of the judge who issued the warrant.[2] Despite Ochser's protests, Defendants *1249 arrested Ochser pursuant to the warrant.
¶ 5 Ochser was released the following day after it was determined that the warrant had been quashed. Ochser filed a complaint, alleging among other wrongs, violations of his Fourth and Fourteenth Amendment rights. Defendants filed a motion for summary judgment, arguing that: (1) Ochser failed to comply with Arizona's notice of claim statute; (2) Defendants arrested Ochser on a facially valid arrest warrant; and (3) Defendants were entitled to qualified immunity on all claims. After reviewing Ochser's response, Defendants' reply and hearing oral argument, the trial court granted Defendants' motion for summary judgment and explained:
U.S. Supreme Court and Ninth Circuit authority provide that a law enforcement officer is entitled to qualified immunity from a § 1983 claim when the officer makes an arrest on a facially valid warrant. Baker v. McCollan, 443 U.S. 137 [99 S.Ct. 2689, 61 L.Ed.2d 433] (1979); Arnsberg v. United States, 757 F.2d 971 (9th Cir.1985) cert. denied 475 U.S. 1010 [106 S.Ct. 1183, 89 L.Ed.2d 300] (1986). Plaintiff does not challenge that the warrant was valid on its face. In essence, Plaintiff argues that these Defendants were required to investigate Plaintiff's claim that the warrant had been quashed. Baker is to the contrary. As a result, Defendants' failure to investigate did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982).
¶ 6 Ochser filed a motion for reconsideration, which was denied. The trial court signed a final judgment in favor of Defendants pursuant to Arizona Rule of Civil Procedure 58(a) and dismissed the action with prejudice.
¶ 7 Ochser timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 and -2101.B (2003).
DISCUSSION
¶ 8 Summary judgment is proper when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). A motion for summary judgment should be granted "if the facts produced in support of the claim . . . have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). When reviewing a grant or denial of summary judgment, "we determine de novo whether any genuine issues of material fact exist and whether the superior court properly applied the law." Mousa, 222 Ariz. at 585, ¶ 15, 218 P.3d at 1042.
¶ 9 Ochser raises two issues on appeal. First, whether "an arrest is unlawful if the arresting officer's reliance on an apparently valid warrant is unreasonable in light of the relevant circumstances." Second, whether as of the date of the arrest in this case, "was the law clearly established that an officer could not rely on an apparently valid warrant when it would be unreasonable to do so in light of the relevant circumstances?"
¶ 10 Ochser contends that the question before us is whether, as of the date of his arrest, "it was clearly established that where an officer is put on notice that objective evidence is readily at hand that would show the invalidity of an arrest warrant, that the officer was required to examine this objective evidence prior to effecting an arrest." He argues that the trial court's ruling conflicts with federal court decisions in various cases including Berg v. Allegheny County, 219 F.3d 261 (3d Cir.2000), cert. denied, 531 U.S. 1072, 121 S.Ct. 762, 148 L.Ed.2d 664 (2001), Torres Ramirez v. Bermudez Garcia, 898 F.2d 224 (1st Cir.1990) and Pena-Borrero v. Estremeda, 365 F.3d 7 (1st Cir.2004). Ochser explains that "[t]o the extent that the trial court held that this right exists but was not clearly established, the federal court cases all pre-existed Mr. Ochser's arrest . . . and, *1250 in fact, hold that qualified immunity was not available to the Defendant officers."
¶ 11 Defendants counter that because the warrant was facially valid, they "were not obligated to further investigate [Ochser's] protestations of innocence," and whether they checked the warrant's status or not "is irrelevant here and is not a genuine issue of material fact." Defendants are essentially arguing that the trial court correctly held qualified immunity precluded any liability on the part of Defendants. Specifically, Defendants contend summary judgment was proper because the officers could have reasonably believed, as a matter of law, that Ochser's arrest was lawful, in light of the clearly established principles governing arrests pursuant to facially valid warrants.
Qualified immunity
¶ 12 Qualified immunity as to a 42 U.S.C. section 1983 claim is a question of federal law. State v. Superior Court, 185 Ariz. 47, 49, 912 P.2d 51, 53 (App.1996). Therefore, "we follow federal court decisions on the subject." Id. Qualified immunity protects government officials from civil liability if a reasonable government official could have believed his actions to be lawful, in the light of clearly established law and the information he possessed at the time of the action. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). It is a doctrine that protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Officials are entitled to the protections of qualified immunity, unless "the law clearly proscribed the actions" that were taken. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
¶ 13 In this case, we consider qualified immunity using the two-step test set forth in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).[3] The first step is to determine whether a constitutional right was violated. Id. If so, the second step is to determine whether the right at issue was "clearly established" at the time of the alleged violation. Id. The determination as to whether a right is "clearly established" depends specifically on its context in the instant case. Id. In order for a right to be "clearly established . . . the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Stated in other terms, a government official is protected by qualified immunity if he can "demonstrate that he was performing a discretionary function and that a reasonable law enforcement officer would have believed that, at the time he acted, his actions were within the bounds of the law." Belcher v. Norton, 497 F.3d 742, 749 (7th Cir.2007). When determining claims of qualified immunity, "courts are sensitive to `[t]he broad range of reasonable professional judgment accorded' law enforcement officials in the § 1983 context." Berg, 219 F.3d at 272 (quoting Greene v. Reeves, 80 F.3d 1101, 1107 (6th Cir.1996)).
¶ 14 Our inquiry in the present case is whether Defendants' conduct violated a constitutional right which was clearly established law; and if so, did Defendants nevertheless reasonably believe that their conduct was lawful in light of the information they possessed at the time of Ochser's arrest?
Whether a constitutional right was violated
¶ 15 There is no doubt that Ochser has a constitutional right to be free from unreasonable seizures, here an arrest, pursuant to the Fourth Amendment.[4] The Supreme Court, however, has recognized that when viewing constitutional rights, such as the right to be free from unreasonable *1251 searches and seizures, that right is "clearly established" when any action violates the right, "no matter how unclear it may be that the particular action is a violation." Anderson, 483 U.S. at 639, 107 S.Ct. 3034. The Court further explained that "if the test of `clearly established law' were to be applied at this level of generality, it would bear no relationship to the `objective legal reasonableness' that is the touchstone of [the Harlow decision]."[5]Id. The Court also held that the right allegedly violated must be articulated and "clearly established" in a more particularized way. Id. at 640. Specifically, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right." Id. In other words, "in light of pre-existing law the unlawfulness [of the action in question] must be apparent." Id.
Whether the right was "clearly established"
¶ 16 Whether the law is "clearly established" and whether a government official could have reasonably believed his conduct was lawful in light of the surrounding circumstances are questions of law. See Harlow, 457 U.S. at 818, 102 S.Ct. 2727. "[E]ven if a defendant's conduct actually violates a plaintiff's Constitutional right, the defendant is entitled to qualified immunity if the conduct was objectively reasonable." Duckett v. City of Cedar Park, 950 F.2d 272, 280 (5th Cir.1992) (quotation omitted).
¶ 17 While Ochser indeed has a broad constitutional right to be free from unreasonable searches and seizures, it does not necessarily follow that the unlawfulness of Ochser's arrest was readily apparent to Defendants in light of a facially valid arrest warrant and the surrounding circumstances. It is not clearly established that an arresting officer acting pursuant to a facially valid warrant has the obligation to investigate documentary evidence. We conclude that in light of a facially valid arrest warrant, the unlawfulness of Ochser's arrest was not readily apparent to Defendants.
¶ 18 Next we must determine whether an officer of reasonable competence could disagree whether further investigation of the warrant was required in light of Ochser's statements that he had documentary support evidencing the warrant had been quashed. Whether a reasonable officer could have believed his actions were lawful is a question of law and not one of fact. Romero v. Kitsap County, 931 F.2d 624, 628 (9th Cir.1991). In this case, Defendants relied on a facially valid arrest warrant for Ochser. Ochser asserts he informed Defendants that he had a certified copy of a minute entry quashing his warrant, however, "[u]nless a warrant is facially invalid an officer has no constitutional duty to independently determine its validity." Hill v. Bogans, 735 F.2d 391, 393 (10th Cir.1984).
¶ 19 In this case, it is undisputed that Ochser's warrant was facially valid. Defendants had no knowledge or information, prior to Ochser's assertions the day of his arrest, that the warrant had been previously quashed. The warrant itself had been officially and validly issued in connection with Ochser's prior failure to pay child support. Pursuant to MCSO procedures, the warrant's validity was verified after inclusion on the "Operation Mother's Day 2004" list and was also verified on the very day it was served. Government officials are permitted and trained to rely upon the validity of officially issued documents verified through official channels. See, e.g., Mitchell v. Aluisi, 872 F.2d 577, 579-80 (4th Cir.1989) (holding an arrest based on a facially valid warrant did not violate arrestee's due process rights where the sheriff's office had not received notice that the warrant had been cancelled as the arrestee had claimed).
¶ 20 If "officers of reasonable competence could disagree on this issue, immunity should be recognized." Malley, 475 U.S. at 341, 106 S.Ct. 1092 (stating that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"). We find that "officers of reasonable competence could disagree" as to whether they were required to investigate further the *1252 warrant's validity in light of Ochser's claims he had a certified copy of the minute entry quashing the warrant. Because reasonable officers could disagree as to whether further investigation was required, Defendants are entitled to qualified immunity. See Id.
¶ 21 Ochser cites numerous cases for the proposition that Defendants are not entitled to qualified immunity. We find them distinguishable. In Torres Ramirez, the court determined there was evidence from which a jury could determine the defendant officer had sent out a warrant he already knew had been vacated. 898 F.2d at 226. Qualified immunity was not given because it was not objectively reasonable for a government official to process an arrest warrant he knew or should have known had already been vacated. Id. at 228. In Peña-Borrero, officers arrested a man after he had shown them a physical copy of an executed warrant, particularly, the exact warrant they were purporting to execute. 365 F.3d at 10. Qualified immunity was not extended to defendant officers because the evidence viewed in the light most favorable to the arrestee indicated the officers ignored unambiguous evidence that the warrant was unenforceable as it had already been served. Id. at 14. In Beier v. City of Lewiston, officers arrested Beier for violating an order of protection relying solely on his ex-wife's statements and without actually looking at the order itself. 354 F.3d 1058, 1062 (9th Cir.2004). The officers were not entitled to qualified immunity in that case because arresting Beier without reading the terms of the order was not something a reasonably competent officer would do under the same circumstances. Id. at 1072.
¶ 22 Ochser also cites Berg v. Alleghany County, 219 F.3d 261 for the proposition that a facially valid warrant does not provide the officer qualified immunity if "reliance on it is unreasonable in light of the relevant circumstances. Such circumstances include, but are not limited to, other information that the officer possesses or to which he has reasonable access, and whether failing to make an immediate arrest creates a public threat or danger of flight." Id. at 273.
¶ 23 In Berg, an arrest warrant was mistakenly issued for the plaintiff. Id. at 266-67. The warrant was executed by a constable who earned a fee for each person arrested. Id. at 267. The plaintiff offered to produce documents that indicated he was no longer on parole, however, the constable refused to look at the documents. Id.
¶ 24 Berg is distinguishable from this case, because in Berg, the constable unreasonably relied on an arrest warrant that was erroneously issued for the wrong person and thus not supported by probable cause. In this case, as previously stated, Defendants reasonably relied on official information regarding the validity of Ochser's warrant and relied on a facially valid warrant. Defendants checked the validity of the warrant prior to executing it. Defendants had no information prior to Ochser's protests that the warrant was invalid. In the face of official confirmation that the warrant was valid, Defendants were not required to investigate protests by Ochser as to his innocence.
¶ 25 Citing cases from United States Circuit Courts for the First and Third Circuit, the dissent concludes that, as of the date of Ochser's arrest, it was "clearly established" that "an arresting officer may not disregard documentary evidence offered by a person named on an arrest warrant that proves that the warrant was invalid." Infra ¶ 45. As of the date of Ochser's arrest, however, neither our supreme court nor the Ninth Circuit Court of Appeals has held it unlawful to arrest a person pursuant to a facially valid warrant without first examining documentary evidence offered by the person who is subject to an arrest warrant. As indicated above, we have explained why the cases relied upon by the dissent are distinguishable. As such, Defendants are entitled to qualified immunity.
CONCLUSION
¶ 26 For the foregoing reasons, we find that the trial court did not err and affirm the order dismissing this case.
CONCURRING: JON W. THOMPSON, Judge.
*1253 JOHNSEN, Judge, dissenting.
FACTS AND PROCEDURAL BACKGROUND
¶ 27 On January 6, 2003, the superior court issued a warrant for Ochser's arrest for violation of a child support order. Roughly 60 days later, on March 13, 2003, the court quashed that warrant. Unfortunately, although the court's minute entry order contained the legend: "FAXED: MCSO," the March 13 order did not make its way into the records of the Maricopa County Sheriff's Office. Before Deputies Funk and Cruz set out to arrest Ochser in Flagstaff the morning of May 5, 2004, they confirmed that Sheriff's Office records showed the outstanding warrant for his arrest. Of course, it would not matter how many times the deputies checked the Sheriff's records; because the order the court had issued more than a year before quashing the arrest warrant was missing from the Sheriff's records, the warrant would continue to show up as valid on those records.
¶ 28 Ochser had thought ahead about how to protect himself against precisely this sort of bureaucratic mishap. Out of an abundance of caution, he had obtained two certified copies of the order quashing the warrant. He carried one in his car; the other he kept in his desk at the Lowell Observatory in Flagstaff. But Ochser was not in his office or his car when the deputies arrived. They waited for him in the parking lot of the observatory and approached him when he pulled up in an observatory van.[6] Over his protests, they handcuffed him, then shackled him and put him in the back of a patrol car.
¶ 29 On summary judgment, we must take as true that after he was handcuffed, Ochser told the deputies that the arrest warrant was no longer valid. In deposition testimony submitted on the cross-motions for summary judgment, Ochser then related:
Q: What did theywhat did either one or both of them say when you said it wasn't valid?
A: They saidhe said, "We have what we need to bring you in." And I told him that he needed to check. . . . And I told him that he should go into my office, and in my inbox there is a certified copy of the minute entry where theor the order actually of where the judge quashes the warrant.
And he said to me, "I don't need to go to your office to find anything. I've got everything I need."[7]
¶ 30 After Ochser protested, Funk left him and Cruz in the parking lot and entered the building. He did not, however, go to Ochser's desk to pick up the certified copy of the order Ochser had told him was there. Instead, Funk used an observatory phone to make at least one telephone call. Funk testified that because Ochser was "quite insistent" that the warrant had been quashed, he called the Sheriff's OIC, which verified "[i]t was a valid warrant." Funk also testified he telephoned a judge's office and spoke to a temporary worker who "had no clue on how to check anything or do anything." (Cruz's account was different; he testified that when Funk returned to the car, he told Cruz he had reached a court clerk who confirmed that the warrant was valid.)[8]
¶ 31 In response to the deputies' motion for summary judgment, Ochser offered evidence that under these circumstances, if the *1254 subject of an arrest warrant informs officers that a copy of an order quashing the warrant is close by, the reasonable course for the officers is to retrieve the order. For example, the deputies' expert witness on law enforcement practices testified that he would agree "that if the jury believes that Mr. Ochser told [Funk and Cruz] `I've got a copy of the order quashing that warrant sitting in my desk; go get it,' that he should have done that." Funk and Cruz's supervisor at the time likewise agreed that he would want his deputies to take the time to inspect papers proffered by the target of an arrest if they could do so safely.
DISCUSSION
¶ 32 In reviewing the deputies immunity defense, we first determine whether the deputies violated Ochser's constitutional right to be free of arrest without probable cause. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The majority seems to conclude the arrest constituted a breach of Ochser's rights under the Fourth Amendment. Supra ¶ 17. I agree. See Wilson v. City of Boston, 421 F.3d 45, 55 (1st Cir.2005) (arrest made on mistaken belief that a warrant had been issued violated Fourth Amendment); Berg v. County of Allegheny, 219 F.3d 261, 270 (3d Cir.2000) ("[T]he Supreme Court has made clear that a mistakenly issued or executed warrant cannot provide probable cause for an arrest.") (citing Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)); State v. Evans, 177 Ariz. 201, 866 P.2d 869 (1994) (arrest made on warrant that had been quashed was a "warrantless" and "plainly illegal" arrest) rev'd on other grounds, Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).
¶ 33 Under Saucier, the next question is whether the right that was violated was clearly established at the time. 533 U.S. at 201, 121 S.Ct. 2151. This inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition. . . . Id. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202, 121 S.Ct. 2151; see Pearson v. Callahan, ___ U.S. ___, ___, 129 S.Ct. 808, 822, 172 L.Ed.2d 565 (2009) (collapsing the two analytical steps; outcome "turns on the `objective legal reasonableness of the [deputies'] action, assessed in light of the legal rules that were clearly established at the time it was taken'") (quoting Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).
¶ 34 In the ordinary case, a law enforcement officer reasonably may assume that probable cause supports issuance of an arrest warrant. Berg, 219 F.3d at 272. As the Supreme Court has explained in another context:
Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent.
Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).[9] Nevertheless, "an apparently valid warrant does not render an officer immune from suit if his reliance on it is unreasonable in light of the relevant circumstances." Berg, 219 F.3d at 273. The "relevant circumstances" that may render reliance on a warrant unreasonable "include, but are not limited to, other information that the officer possesses or to which he has reasonable access, and whether failing to make an immediate arrest creates a public threat or danger of flight." Id.
¶ 35 As in this case, the trial court in Berg entered summary judgment against a person who brought a civil rights claim after he was arrested pursuant to an invalid warrant. Id. at 267-68. The warrant in that case mistakenly was issued for violation of parole. When an officer showed up to make the *1255 arrest, the plaintiff protested and "offered to produce release documents proving that he was no longer on parole." Id. at 267. The arresting officer, however, refused to look at the release documents and instead told the plaintiff to bring them with him to jail. Id. The Third Circuit Court of Appeals vacated the order dismissing the plaintiff's claim and remanded for consideration of facts that it held raised "valid questions concerning the reasonableness" of the arresting officer's conduct, including that the warrant was three years old, the documentation the suspect offered to show that he had completed his parole and the "nonviolent nature of the crime." Id. at 273-74.
¶ 36 The majority attempts to distinguish Berg on the ground that the warrant in that case was not supported by probable cause. Supra ¶ 24. But the order that quashed the civil arrest warrant in this case eliminated the legal basis on which the warrant had been issued. Indeed, the universal premise of this variety of false-arrest civil rights claim is that the arrest was not supported by probable cause. See Wilson, 421 F.3d at 56 (no probable cause existed for arrest made in mistaken belief that warrant had been issued); Berg, 219 F.3d at 270 ("mistakenly issued or executed warrant cannot provide probable cause for an arrest") (emphasis added). That is because if there is probable cause for the arrest, absent excessive force or other circumstances not present here, there is no constitutional violation on which to base a claim under 42 U.S.C. § 1983.[10]
¶ 37 Moreover, the fact that the deputies in this case may have called to check on the warrant after Ochser complained does not distinguish this case from Berg. As in this case, after the suspect in Berg disputed the warrant, the arresting officer telephoned headquarters to confirm the warrant was valid. 219 F.3d at 268. Thus, Berg establishes that when a person named in an arrest warrant offers documentation close at hand to support his contention that the warrant is invalid, the arresting officers may not disregard that documentation simply because a call to headquarters has "proven" that the warrant remains outstanding.
¶ 38 The First Circuit Court of Appeals applied the Berg rule in Peña-Borrero v. Estremeda, 365 F.3d 7, 9 (1st Cir.2004). Having once been arrested on a valid warrant, the plaintiff in Peña-Borrero posted bail and was released. Id. Six weeks later, police officers came to his home and arrested him pursuant to the identical warrant. Id. at 9-10. The plaintiff told the officers he had a copy of the executed warrant and a bond receipt in the trunk of his car. Id. at 10. The officers retrieved the documents from the plaintiff's car, but arrested him anyway and brought him to police headquarters, where he was detained for several hours. Id.
¶ 39 The First Circuit concluded the plaintiff's allegation that officers made the arrest "in the face of unambiguous evidence that their warrant was unenforceable" "would support a jury conclusion that defendants acted unreasonably in arresting [him] and taking him into custody." Id. at 13-14. "In our view," the court held, "such a seizure could be objectively unreasonable and a violation of appellant's clearly established Fourth Amendment rights." Id. at 14. Standing alone, the officers' failure to check the warrant's validity before executing it would not have supported the plaintiff's claim; it was their insistence on proceeding with the arrest after they were confronted with the documents plaintiff offered that reflected "a much more deliberate disregard" for the plaintiff's constitutional rights. Id. at 13.
¶ 40 The majority attempts to distinguish Peña-Borrero on the ground that in that case the officers arrested the plaintiff even though they had "unambiguous evidence" that the warrant was not valid. Supra ¶ 21. But that is Ochser's precise allegation: He contends he told the deputies he had unambiguous *1256 proof that the warrant they sought to execute had been quashed. See, e.g., Detoledo v. County of Suffolk, 379 F.Supp.2d 138, 145 (D.Mass.2005) (motion to dismiss civil rights claim denied; even if officer had no duty to retrieve other documents from nearby storage locker, officer proceeded with arrest despite having the quash order at hand).
¶ 41 Contrary to the deputies' argument, Ochser's contention is not that Funk and Cruz were obligated to launch an independent investigation into the validity of the warrant. Rather, Ochser contends the deputies should not have brushed aside his offer to provide them with a certified court document proving that the warrant they were trying to execute had been quashed. By the same token, the issue is not, as the majority puts it, whether the deputies acted unreasonably by failing to independently investigate the warrant. Supra ¶ 17. Instead, it is whether they acted unreasonably by refusing Ochser's entreaty to examine the order he offered to provide them that had quashed that warrant more than a year before. Under these circumstances, as the court held in Peña-Borrero, the plaintiff's "claim of improper arrest arguably required no independent investigation; he did not simply assert a mistake, but also provided substantiation." 365 F.3d at 13.
¶ 42 For the same reason, Mitchell v. Aluisi, 872 F.2d 577 (4th Cir.1989), on which the majority relies, is not on point. Defendants in that case arrested the plaintiff over her oral protests that the warrant had been recalled. Id. at 578. She did not offer or offer to provide a copy of the order recalling the warrant. Id. In contrast, Ochser did more than complain that the arrest warrant was invalid: He informed the deputies that a certified copy of the minute entry quashing the warrant was on his desk.
¶ 43 The majority concludes that after Ochser told Funk and Cruz he had a certified copy of the order quashing his arrest on his desk, reasonable law enforcement officers could disagree "as to whether they were required to investigate further." Supra ¶ 20. My view is that to the contrary, reasonable law enforcement officers could not disagree that the deputies should have retrieved and inspected the order Ochser offered that quashed the warrant they were there to execute. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (issue should not be posed "as a broad general proposition" but instead "must be undertaken in light of the specific context of the case"). The deputies do not contend that inspecting the documentation Ochser offered would have required extraordinary effort. Nor do the deputies contend that retrieving the order Ochser offered them would have jeopardized their mission or public safety.[11]
¶ 44 On this record, under the authorities cited above and construing the facts and all inferences as we must in favor of Ochser, I cannot conclude that any reasonable law enforcement officer would decide that Funk and Cruz acted reasonably by rejecting Ochser's request that they inspect the certified copy of the court order he told them was on his desk.[12]
¶ 45 Furthermore, in my view there is no question that it was "clearly established" at the time of the arrest in this case that an arresting officer may not disregard documentary evidence offered by a person named on an arrest warrant that proves the warrant is invalid. Berg was decided by a United States Circuit Court of Appeals in 2000; another Circuit Court handed down Peña-Borrero in 2004, prior to Ochser's arrest. Cf. Soto v. Bzdel, 214 F.Supp.2d 69, 76-77 (D.Mass.2002) (holding that although officers who arrested person after he provided them with documentary evidence that warrant had been recalled would not be charged with *1257 knowing in 1999 they were violating a clearly established right, "[t]his ought not hold true in the future."). On appeal, the deputies have cited no case that rejects or even questions the principle these federal cases established.[13]
¶ 46 Accordingly, I would conclude that under the facts Ochser presented, and "in the light of pre-existing law," the unlawfulness of the deputies' conduct in this case was clear. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ("contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right"); McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir.1992) (issue does not "require a prior case that is `precisely on all fours on the facts and law involved here'") (citing Landstrom v. Illinois Dep't of Children & Family Servs., 892 F.2d 670, 676 (7th Cir.1990)).
CONCLUSION
¶ 47 Based on the authorities cited above, because Ochser submitted evidence on which it may be concluded that the deputies knew or should have known that their conduct violated a clearly established constitutional right, I would reverse the judgment and remand for trial.
NOTES
[1] Julie Ahlquist, Sheriff's Records Specialist Supervisor, testified that in her opinion, MCSO was most likely not contacted by the court to quash the warrant. Alan Quackenbush, a Sheriff's Records Lead for the Operation Information Center (OIC) for the MCSO warrants division, verified the OIC maintains a quash log for all verbal notices it receives to quash warrants. Additionally, Quackenbush indicated OIC maintains copies of all documents it receives from a court indicating a warrant has been quashed. Quackenbush further noted that OIC had received no notice that Ochser's warrant had been quashed during the time period of March 13, 2003 through the end of September 2003.
[2] Ochser claims this is "implausible" because if done, Defendants would have found the warrant was quashed. On summary judgment, taking as true Ochser's assertion that Defendants did not call either OIC or the issuing judge's chamber, it is undisputed that MCSO's records, which Defendants checked prior to executing the warrant, reflected Ochser's warrant was active.
[3] We note the Supreme Court recently revisited the two-step Saucier test and concluded while the sequential Saucier analysis may be helpful in qualified immunity cases, "it should no longer be regarded as mandatory." Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).
[4] The Fourth Amendment guarantees individuals the right to be "secure in their persons . . . against unreasonable searches and seizures" by government officials. U.S. Const. amend. IV.
[5] In Harlow, the Supreme Court defined the limits of qualified immunity to "objective terms." Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
[6] According to Ochser, the deputies had their guns drawn when they approached him; Funk denied that he or Cruz had removed their guns from their holsters.
[7] Funk admitted Ochser told him the warrant had been quashed. He denied, however, that Ochser told him a copy of the order quashing the warrant was in his office. Funk's partner, Cruz, also was asked whether Ochser said he had a copy of the order quashing the arrest warrant on his desk. At first, Cruz responded, "I don't recall that, no." A minute or so later, however, Cruz volunteered, "I do not recall that, but it could be possible."
[8] Ochser questions whether Funk in fact telephoned OIC. He argues that Ahlquist, the head of OIC, testified that if a deputy called to report that the subject of an arrest warrant was protesting that the warrant had been quashed, she would have searched the court's docket for an order quashing the warrant. In fact, at her deposition, Ahlquist was able to pull up a copy of the order quashing Ochser's arrest warrant in about two minutes. Since OIC did not search the court records in Ochser's case, Ochser argues Funk either did not call OIC or, if he did, he did not let OIC know that Ochser had said the warrant had been quashed.
[9] As Ochser points out, Baker did not concern the validity of an arrest but whether, after incarcerating a suspect, the sheriff had a duty to investigate the suspect's repeated assertions that the wrong person had been arrested. See Brown v. Byer, 870 F.2d 975, 978 (5th Cir.1989).
[10] The deputies similarly argue that Berg is distinguishable because the warrant in that case was mistakenly issued (rather than, in this case, mistakenly executed). But this argument overlooks Berg's observation that probable cause does not exist for a warrant that is "mistakenly issued or executed." 219 F.3d at 270.
[11] The undisputed evidence is that a third Sheriff's Office representative (a posse member) was present, and Ochser, whom deputies knew only as a child-support violator, was securely handcuffed and shackled in the back seat of a patrol car.
[12] In response to the deputies' motion for summary judgment, Ochser offered testimony by the deputies' expert witness and the deputies' supervisor that it would have been reasonable for the deputies to inspect the document he proffered. Supra ¶ 31.
[13] In Lauer v. Dahlberg, 717 F.Supp. 612 (N.D.Ill.1989) aff'd, 907 F.2d 152 (7th Cir.1990), the court concluded an arresting officer was entitled to disregard an uncertified copy of a warrant recall order. In that case, however, the officer inspected the document proffered by the suspect, and reasonably doubted its authenticity, given that it was not a certified copy. 717 F.Supp. at 614. By contrast, here, of course, Funk and Cruz did not bother to inspect the certified copy of the order to which Ochser directed them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262050/ | 618 A.2d 629 (1992)
UNITED STATES, Appellant,
v.
Kevin E. PORTER, Appellee.
No. 91-CO-1277.
District of Columbia Court of Appeals.
Argued June 30, 1992.
Decided December 22, 1992.
Henry K. Kopel, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Jr., Patricia A. Riley, and Wanda G. Bryant, Asst. U.S. Attys., Washington, DC, were on the briefs, for appellant.
Ronald A. Goodbread, Alexandria, VA, appointed by this court, for appellee.
David Reiser, with whom James Klein, Elizabeth G. Taylor, Rosemary Herbert, and Janet C. Hoeffel, Washington, DC, were on the briefs, for Public Defender Service, amicus curiae.
Before STEADMAN and SCHWELB, Associate Judges, and MACK, Senior Judge.
SCHWELB, Associate Judge:
This appeal presents our court for the first time with the question whether *630 "DNA" profiling evidence is admissible to corroborate the identification of a defendant in a criminal case. Provided that, as we anticipate, certain limited questions are successfully resolved on remand, the proponents of a technology which we view as a potentially valuable tool in the search for the truth carry the day.
I
THE FACTS
A grand jury indicted Kevin E. Porter on February 28, 1990, on one count of rape, D.C.Code § 22-2801 (1989), and one count of carnal knowledge. Id. The indictment was precipitated by Porter's alleged sexual assault upon the fourteen year-old sister of his girlfriend. Before trial, the prosecution filed a motion requesting the court for leave to introduce expert testimony that the deoxyribonucleic acid (DNA) extracted from semen specimens taken from the crime scene matched the DNA taken from Porter's blood. The government also sought to introduce evidence that the probability of a coincidental DNA match between two unrelated black males was no higher than one in thirty million.[1] The DNA evidence was thus intended to corroborate the complainant's expected identification of Porter as her assailant and to demonstrate that it was extremely improbable that someone other than Porter had committed the crime.
In response, Porter asked the court to exclude the proffered DNA identification evidence. He argued that the technology that the FBI had used to determine that his own DNA matched the DNA taken from the semen samples was lacking in quality control assurance and had not been generally accepted in the relevant scientific community. Porter also contended that the methodologies used by the FBI to calculate "coincidental match probabilities" likewise lacked general scientific acceptance. As a result, Porter argued, the government's proffered DNA evidence failed to meet the standard for the admissibility of novel scientific techniques set forth in the landmark case of Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923).
Porter's case was consolidated with eleven other prosecutions in which the admissibility of DNA evidence was at issue. During the twenty-day Frye hearing which followed, the judge heard testimony from eight expert witnesses, admitted over 110 exhibits, and received over 1,300 pages of briefs. The judge later issued an order, accompanied by a 93-page opinion, in which he held that the proffered DNA identification evidence was inadmissible. United States v. Porter, 120 Daily Wash. L.Rptr. 477 (Super.Ct.D.C.1991). The judge concluded that the FBI's method for determining that a defendant's DNA matched DNA taken from the crime scene was based on procedures generally accepted in the scientific community as reliable. He ruled, however, that the FBI's procedure for calculating coincidental match probabilities, and for arriving at the figure of one in thirty million, were not based on generally accepted techniques, and that the proffered evidence was therefore inadmissible under Frye. The judge observed that a number of studies were pending on the subject of the forensic use of DNA evidence and were expected to address issues with respect to which, as of the time of writing, there was scientific disagreement. He stated that "[i]t is after these studies and others, such as the study which is being prepared by the National Academy of Sciences [NAS] have been completed, when the court should be called upon to admit DNA evidence, not before." (Emphasis in original). Id. at 507.
In the Porter case only, the government filed a pretrial appeal pursuant to D.C.Code § 23-104(a)(1) (1989). During the pendency of the appeal, the National Research Council of the NAS issued the comprehensive and long-awaited report dealing with forensic DNA methodologies to which the judge alluded in his opinion. See COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, NATIONAL *631 RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE (1992) [hereinafter NRC REPORT]. In response to the NRC REPORT, the parties and the Public Defender Service, as amicus curiae, filed supplemental submissions to their already imposing briefs.[2]
We hold, essentially for the reasons stated by the trial judge, that the FBI's procedures for determining a match pass muster under Frye. We also agree with the judge that there was no consensus within the relevant scientific community in support of the FBI's calculation that the probability of a coincidental match was no higher than one in thirty million (or, a fortiori, one in forty million). We specifically decline the government's invitation to hold that the position of one group of distinguished scientists (those favoring the government's position) is more persuasive, as a matter of molecular biology or population genetics, than the position of an apparently equally distinguished group of scholars who have reached an opposite conclusion; indeed, we view the government's position on this issue as contrary to Frye. We thus agree with the trial judge's resolution of the principal issues which he addressed.
Nevertheless, we remand the case to the trial court. We do so for two reasons. First, at least in our view, the NRC REPORT, which was not available to the trial judge, suggests that the DNA evidence should be admitted on the basis of a probability calculation for which the requisite consensus may now exist. Second, we think it important to clarify a point on which the parties have not significantly focused, but which may considerably simplify the issue before the court.
We hold that it is not necessary for the prosecution to prove, in order that DNA evidence be admitted, that there is a scientific consensus as to the precise probability of a coincidental match. So long as there is a consensus that the chances of such a match are no greater than some very small[3] fraction, then the evidence is probative and should be admitted on an appropriately conservative basis. If, as the information available to us now suggests, reputable scientists would agree on some such minimal figure as the bottom limit of the possibility of a coincidental match, the evidence will be admissible under the Frye standard. On remand, however, Porter must have the opportunity to contest, if he can, the sufficiency of the government's showing that the relevant scientific consensus, as defined in this opinion, now exists.
II
ALLELES, CHROMOSOMES, AND POLYMORPHISMS THE NATURE OF DNA IDENTIFICATION EVIDENCE[4]
"The techniques of DNA typing are fruits of the revolution in molecular biology that is yielding an explosion of information about human genetics." NRC REPORT, supra, at 2. The opinion of the trial court contains a detailed exposition of the technology on which the prosecution relies in this case. Porter, 120 Daily Wash.L.Rptr. at 483-85; see also United States v. Jakobetz, 955 F.2d 786, 791-93 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 104, *632 121 L.Ed.2d 63 (1992). We attempt our own brief summary, in lay terms, of an esoteric but fascinating subject.
DNA is sometimes called the blueprint of life. It contains the chemical instructions for all of life's processes, as well as the "genetic code" that defines who we are, what we look like, and where our talents lie. With the exception of identical twins, no two people have the same DNA. The makeup of one's DNA remains constant throughout one's life. In recent years, forensic technologies have been developed for removing the DNA from human cells discovered at crime scenes and for comparing the evidentiary sample with the suspect's DNA. We must determine whether these technologies pass muster under Frye.
Embedded within the nucleus of virtually every cell of each human being's body are forty-six rod-shaped chromosomes. Half of these chromosomes are inherited from one's mother and half are inherited from one's father. Each chromosome has the shape of a twisted ladder or spiral staircase. The "banisters" of this staircase are made of phosphates and sugars, while the "steps" or "rungs" consist of "base pairs," or pairs of amino acids bound together. A single DNA molecule itself not a very large entity contains about three billion base pairs.
Located at specific sites, or "loci," along each chromosome are large groups of base pairs known as "alleles," or "genes." Over 99% of these genes are identical among all human beings. These genes define us as persons, rather than animals, plants, or other forms of life. They account for the many shared characteristics of all human beings. The remaining genes known as "polymorphic" genes because they vary in form from person to person account for our unique characteristics as individuals. Many polymorphic genes are known to have definite functions: some are responsible for the color of our hair and of our eyes, some for the shape of our body and the type of our blood. Other polymorphic genes, however, appear to have no function whatever. These "junk DNA" segments, which typically consist of varying lengths of repeating sequences of base pairs, form the basis for the DNA identification evidence at issue in this case.
The remarkable technology which has provided molecular biologists with an entree into the wonders of sub-microscopic exploration has not yet enabled them to compare every base pair in one DNA molecule with every base pair in another to determine conclusively that the two molecules are, in fact, identical. Forensic scientists, seeking to apply the new technology to identify the guilty and to vindicate the innocent, have developed a "shortcut" for making this determination. After extracting and "cutting" DNA from cells taken from the crime scene and from cells taken from the defendant, they isolate, from each sample, maternal and paternal fragments of "junk DNA" from four different loci, and measure the length of the repeating sequence in each fragment. In other words, rather than comparing every base pair in the two DNA molecules, they compare eight of the defendant's genes against the genes in the same locations on the evidentiary sample DNA to see if they are consistent with each other. This process is known as "restriction fragment length polymorphism," or, more manageably, as RFLP. It is aimed at measuring the "variable number of tandem repeats," a concept which DNA aficionados rattle off as VNTR.
Because each person has thousands of polymorphic genes, it is theoretically possible for two people to have identical genes in these four locations on their DNA molecules but to have differences perhaps even hundreds of differences in other locations. Accordingly, once it has been determined that the defendant's DNA and the DNA from the evidentiary sample share identical patterns at all four of the locations examined, scientists calculate the possibility that the match is merely a coincidence and that the two samples did not actually come from the same person.
Making that calculation is generally the role of human population geneticists. The particular system followed by the FBI and presented by the prosecution to the trial *633 court is known as "fixed bin analysis." Scientists utilizing this process first estimate, for each of the loci which was analyzed on the defendant's DNA, the fraction of people in the defendant's broad racial or ethnic group, e.g., Caucasian, Black American, or Hispanic, with genes at that locus identical to the defendant's genes. They then perform a series of multiplications to determine the fraction of the defendant's group with identical DNA fragments at all four of the loci examined. The resulting fraction is generally an astronomically low one.[5]
III
LEGAL DISCUSSION
A. The Frye Test.
In this jurisdiction, the starting point of our legal inquiry must be the test enunciated in Frye:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
54 App.D.C. at 47, 293 F. at 1014. Although it is now forty years since James Watson of the United States and Francis Crick of Great Britain received the Nobel Prize for their pioneering work on the DNA molecule, see People v. Axell, 235 Cal.App.3d 836, 845, 1 Cal.Rptr.2d 411, 415 (1991), review denied, (1992), forensic use of DNA technologies is of comparatively recent vintage (but boundless potential). See People v. Wesley, 140 Misc.2d 306, 307-11, 533 N.Y.S.2d 643, 644-46 (1988), (Wesley I), aff'd 183 A.D.2d 75, 589 N.Y.S.2d 197 (3d Dept.1992) (Wesley II). The use of DNA evidence in criminal cases is at the "cutting edge" of forensic science. Wesley I, supra, 140 Misc.2d at 307, 533 N.Y.S.2d at 644. This appeal therefore presents the very kind of issue which the quoted language from Frye was designed to address.
As Judge McGowan explained for the court in United States v. Addison, 162 U.S.App.D.C. 199, 201, 498 F.2d 741, 743 (1974),
the Frye standard retards somewhat the admission of proof based on new methods of scientific investigation by requiring that they attain sufficient currency and status to gain the general acceptance of the relevant scientific community.
Some jurisdictions have therefore abandoned Frye for a more liberal approach. See, e.g. Jakobetz, supra, 955 F.2d at 794. This court, however, continues to adhere to the traditional standard. Street v. Hedgepath, 607 A.2d 1238, 1244 (D.C.1992); Jones v. United States, 548 A.2d 35, 39-40 (D.C.1988); Ibn-Tamas v. United States, 407 A.2d 626, 637-39 (D.C.1979).
We agree with the government that, under Frye, the proponent of a new technology must demonstrate by a preponderance of the evidence that this technology has been generally accepted in the relevant scientific community. Yee, supra, note 4, 134 F.R.D. at 195-96; see also Jakobetz, supra, 955 F.2d at 796 (declining in DNA case, to require proof of reliability beyond a reasonable doubt); United States v. Roy, 114 Daily Wash.L.Rptr. 2481, 2489 (Super.Ct.D.C.1986);[6]cf. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Cr.App.1992) (requiring *634 proof of reliability in DNA case to be by clear and convincing evidence; Texas is a non-Frye jurisdiction, however, and general acceptance need not be demonstrated).
Given the requirement in Frye of "general acceptance," "[t]he issue is consensus versus controversy over a particular technique, not its validity." Jones, supra, 548 A.2d at 42 (citation omitted). As we bluntly put it in Jones, the prime focus is "on counting scientists' votes, rather than [on] verifying the soundness of a scientific conclusion." Id.; but cf. People v. Mohit, 153 Misc.2d 22, 579 N.Y.S.2d 990, 992 (Westchester County Ct.1992) (counting heads rarely feasible and can be of dubious value). Courts recognize that some "scientists" will testify to almost anything,[7] and unanimity is not required. People v. Middleton, 54 N.Y.2d 42, 49, 429 N.E.2d 100, 103, 444 N.Y.S.2d 581, 584 (1981); cf. Yee, supra, 134 F.R.D. at 166, 197, 202. Nevertheless, general acceptance is general acceptance. If "scientists significant either in number or expertise publicly oppose [a new technique] as unreliable," then that technique does not pass muster under Frye. People v. Shirley, 31 Cal.3d 18, 56, 181 Cal.Rptr. 243, 266, 723 P.2d 1354, 1377 (1982) (en banc).
The consensus that will satisfy Frye "is that of scientists, not courts," People v. Reilly, 196 Cal.App.3d 1127, 1135, 242 Cal. Rptr. 496, 500 (1987), for "[a] courtroom is not a research laboratory." United States v. Brown, 557 F.2d 541, 556 (6th Cir.1977). Accordingly, "the court may not resolve a scientific dispute between opponents and proponents of the technique, [and] the very existence of the dispute precludes admission of the testimony." Starr v. Campos, 134 Ariz. 254, 257, 655 P.2d 794, 797 (1982); cf. Friend v. Friend, 609 A.2d 1137, 1139-40 (D.C.1992) (distinguishing the existence of dispute from the merits of that dispute).
We have stated that the Frye test "begins and ends with ... whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology." Ibn-Tamas, supra, 407 A.2d at 638. The trial judge held, and we agree, that under the Ibn-Tamas articulation, "what must be generally accepted is forensic DNA analysis and not ... beyond that ... the results of that analysis in a particular case." Porter, 120 Daily Wash.L.Rptr. at 494.[8]
The trial judge also rejected the prosecution's tentative (and somewhat astonishing) proposal that he severely restrict the categories of scientists whose views he should consider in assessing general acceptance:
It simply is not creditable to argue, and the government does not do so with much enthusiasm, that general acceptance may be premised simply on the opinion of forensic scientists. Were it otherwise, there would have been no need for a month-long Frye hearing. There is no question but that forensic scientists accept no qualifier is necessary forensic DNA evidence and believe that the time has come for its use as powerful evidence in criminal trials. While views of forensic scientists have weight and must be considered, "members of the relevant scientific field will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it." Reed v. State, 283 Md. 374, 391 A.2d 364, 368 (1978). This court holds that this formulation states the relevant scientific field. *635 Porter, 120 Daily Wash.L.Rptr. at 495 (footnote omitted). We agree with the judge. See also Axell, supra, 235 Cal. App.3d at 857, 1 Cal.Rptr.2d at 424 ("[s]ince DNA profiling is an amalgamation of primarily two disciplines, molecular biology and population genetics ..., it appears logical to consider its acceptance by those communities for forensic use.")
B. The Scope of Review.
Generally, the decision whether or not to admit expert testimony is addressed to the sound discretion of the trial court. Street, supra, 607 A.2d at 1244; Jones, supra, 548 A.2d at 38. Where the question of the general acceptance of a new scientific technique is raised, however, the proponent will often be asking the court to establish the law of the jurisdiction for future cases. Jones, supra, 548 A.2d at 40. This is certainly true in the present instance. Accordingly, in recognition of the fact that the formulation of the law of this jurisdiction is a quintessentially appellate function, see Griffin v. United States, 618 A.2d 114, 117-119 (D.C. Dec. 18, 1992), we engage in a broad review of the trial judge's determination whether the forensic use of DNA technology has gained general acceptance. Jones, supra, 548 A.2d at 40. In doing so, we may consider not only expert evidence of record, but also judicial opinions in other jurisdictions, as well as pertinent legal and scientific commentaries. Id. at 41. The amount of reading which the parties and amicus have invited us to undertake has therefore been challenging to say the least.
C. Determining a Match.
During the Frye hearing, Porter subjected the FBI's RFLP procedure for determining a match between his own DNA and the evidentiary sample to a "blunderbuss" attack[9] from a number of different directions.[10] He reargues most or all of his contentions in this court, often in colorful if not altogether understated rhetoric.[11]
The trial judge addressed each of Porter's contentions in considerable detail. He concluded that the method of DNA typing used by the FBI forensic laboratory was generally accepted in the scientific community. Porter, 120 Daily Wash.L.Rptr. at 503. He found some of the defense objections to the FBI's procedures to be overstated, some irrelevant, and some unsupported by scientific evidence. Id.
*636 The recent NRC REPORT has generally reinforced the judge's views. See Bridgett, supra, 120 Daily Wash.L.Rptr. at 1703-04. Neither Porter, nor the Public Defender Service as amicus curiae, has brought to our attention any judicial decision holding or even implying that the FBI's technology for determining a match (as distinguished from its methodology for calculating the probability of a coincidental match) lacks general acceptance in the relevant scientific community.[12] The case law overwhelmingly supports the trial judge's conclusion that the "match" technology is generally accepted. See State v. Vandebogart, ___ N.H. ___, ___-___, 616 A.2d 483, 491-93 (1992); State v. Davis, 814 S.W.2d 593, 602 (Mo.1991); Axell, supra, 235 Cal. App.3d at 856 & n. 7, 1 Cal.Rptr.2d at 422-23 & n. 7; Wesley II, supra, 183 App. Div.2d at 77-79, 589 N.Y.S.2d at 199-201; Bridgett, supra, 120 Daily Wash.L.Rptr. at 1703-04, all citing numerous precedents.
For the reasons stated by the trial judge in this case and by the courts in the opinions cited above, we are satisfied that, provided the FBI's methodology is properly carried out, the possibility of a false positive match is negligible. "Even if [an erroneous match] were theoretically possible... the statistical likelihood of an artificial match at all eight bands is extraordinarily low." Axell, supra, 235 Cal.App.3d at 860, 1 Cal.Rptr.2d at 426. "Clinical errors are far more likely to cause an inconclusive or no match result than a false positive." Mohit, supra, 579 N.Y.S.2d at 995. Any failure by the scientists to adhere to the appropriate procedure is, of course, a proper subject of inquiry, but does not raise an issue which implicates Frye.
D. The Prosecution's Statistical Calculations and the Controversy Among Scientists.
In the trial court, the prosecution elected to put all of its eggs in a single basket. It contended below, and maintains on appeal, that there was general acceptance in the relevant scientific community, within the meaning of Frye, of the statistical methodology by which the possibility of a random match was calculated as being one in thirty million. The trial judge rejected this contention, noting the existence of a substantial controversy among distinguished scientists as to the soundness of certain assumptions on which this calculation was predicated. Porter, 120 Daily Wash.L.Rptr. at 505-06. We agree with the trial judge's analysis, which has been further reinforced by subsequent events.
In the very recent case of People v. Barney, et al., 8 Cal.App. 4th 798, 10 Cal. Rptr.2d 731 (1st Dist.1992), the California prosecutor presented essentially the same arguments as the government is making here. The court was not persuaded. We quote at length from Judge Chin's lucid analysis for the unanimous court in Barney:
There is currently a fundamental disagreement among population geneticists concerning the determination of the statistical significance of a match of DNA patterns. The dispute was recently featured in a leading scientific journal, Science, in which Richard C. Lewontin of Harvard University and Daniel L. Hartl of Washington University attack the reliability of DNA statistical analysis, while Ranajit Chakraborty of the University of Texas and Kenneth K. Kidd of Yale University defend it. (Lewontin & Hartl, Population Genetics in Forensic DNA Typing (Dec. 20, 1991) Science, at p. 1745 (hereafter Lewontin & Hartl) Chakraborty & Kidd, The Utility of DNA Typing in Forensic Work (Dec. 20, 1991), Science, at p. 1735 (hereafter Chakraborty & Kidd)).
Lewontin and Hartl question the reliability of the current method of multiplying together the frequencies with which each band representative of a DNA fragment appears in a broad data base. The problem, they say, is that this method is based on incorrect assumptions that (1) members of the racial groups represented *637 by the broad data bases Caucasians, Blacks, and Hispanics mate within their groups at random, i.e., without regard to religion, ethnicity, and geography, and (2) the DNA fragments identified by DNA processing behave independently and thus are "independent in a statistical sense" i.e., in the language of population genetics, they are in `linkage equilibrium.' (Lewontin & Hartl, supra, at p. 1746.)
Lewontin and Hartl claim that, contrary to the assumption of random mating, ethnic subgroups within each data base tend to mate endogamously (i.e., within a specific subgroup) with persons of like religions or ethnicity or who live within close geographical distance. Such endogamous mating tends to maintain genetic differences between subgroups or substructuring which existed when ancestral populations emigrated to the United States and has not yet had sufficient time to dissipate. As a result, the subgroups may have substantial differences in the frequency of a given DNA fragment or VNTR allele identified in the processing step of DNA analysis. A given VNTR allele may be relatively common in some subgroups but not in the broader data base. (Lewontin & Hartl, supra, at pp. 1747-1749.)
* * * * * *
Lewontin and Hartl conclude that because the frequency of a given VNTR allele may differ among subgroups, reference to a broad data base may produce an inaccurate frequency estimate for a defendant's subgroup. The current multiplication method may greatly magnify the error. The resulting probability for the defendant's entire DNA pattern may be in error by two or more orders of magnitude (e.g., 1 in 7.8 million could really be 1 in 78,000). (Lewontin & Hartl, supra, at p. 1749.)
Chakraborty and Kidd strongly disagree. They contend that Lewontin and Hartl exaggerate both the extent of endogamy in contemporary America and the effect of substructuring on the reliability of DNA statistical analysis. They concede there is substructuring (and thus variance of VNTR allele frequencies) within the data bases but assert its effect on the reliability of frequency estimates is "trivial" and "cannot be detected in practice." (Chakraborty & Kidd, supra, at pp. 1736-1738.)
In an article introducing the Lewontin-Hartl and Chakroborty-Kidd articles, Science describes Lewontin and Hartl as "two of the leading lights of population genetics" who "have the support of numerous colleagues." (Roberts, Fight Erupts Over DNA Fingerprinting (Dec. 20, 1991) (Science, at p. 1721 (hereafter Fight Erupts)). A population geneticist at the University of California at Irvine is said to agree "that the current statistical methods could result in `tremendous' errors and should not be used without more empirical data." (Id. at p. 1723.) The introductory article describes the debate as "bitter" and "raging," stating that "tempers are flaring, charges and countercharges are flying.... [] Dispassionate observers, who are few and far between, say that the technical arguments on both sides have merit.... [T]he debate is not about right and wrong but about different standards of proof, with the purists on one side demanding scientific accuracy and the technologists on the other saying approximations are good enough." (Id., at p. 1721.) Science concludes that the Lewontin-Hartl and Chakroborty-Kidd articles "seem likely to reinforce the notion that the [scientific] community is indeed divided" under the Frye standard, although the issue may become moot within a few years "with the expected introduction of even more powerful DNA techniques...." (Id. at p. 1723.)
The NRC report, which was released four months after the Science articles, acknowledges there is a "[s]ubstantial controversy" concerning the present method of statistical analysis. (NRC rep., supra, at p. 74.) The report does not, however, choose sides in the debate, but instead "assume[s] for the sake of discussion that population substructure *638 may exist...." (NRC rep., supra, at pp. 12, 80; see also id. at p. 94.)
* * * * * *
Evidently, Lewontin and Hartl along with their colleagues who agree with them, are significant in both `number' and `expertise.' [Citation omitted.] Science describes Lewontin and Hartl as "two of the leading lights of population genetics" who "have the support of numerous colleagues," and quotes a third population geneticist (Francisco Ayala) who agrees with the above criticism. (Fight Erupts, supra, at p. 1721.) Lewontin has been described by one of his colleagues as `probably regarded as the most important intellectual force in population genetics alive.' (U.S. v. Yee (N.D.Ohio 1991) 134 F.R.D. 161, 181.) Similar criticism of the statistical calculation process of DNA analysis have been leveled by other scientists in previous publications, some of which were admitted in evidence below (e.g., Lander, DNA Fingerprinting on Trial (June 15, 1989) Nature, at pp. 501, 504; Cohen, DNA Fingerprinting for Forensic Identification: Potential Effects on Data Interpretation of Subpopulation Heterogeneity and Band Number Variability (1990) 45 Am.J.Hum.Genetics 358, 367).
* * * * * *
[T]he point is not whether there are more supporters than detractors,[13] or whether (as the Attorney General and amicus curiae claim) the supporters are right and the detractors are wrong.[14] The point is that there is disagreement between two groups, each significant in both number and expertise (a "[s]ubstantial controversy," in the words of the NRC report). (NRC rep., supra, at p. 74.) Even Science, which purportedly sought balance in its coverage of this dispute by commissioning the Chakraborty-Kidd article as a rebuttal to the Lewontin-Hartl article (Roberts, Was Science Fair to its Authors? (Dec. 20, 1991) Science, at p. 1722, recognized that the competing articles "seem likely to reinforce the notion that the [scientific] community is indeed divided" under the Frye standard. (Fight Erupts, supra, at p. 1723.)
Our task under Kelly[15]-Frye is not to choose sides in this dispute over the reliability *639 of the statistical calculation process. Once we discern a lack of general scientific acceptance which in this instance is palpable we have no choice but to exclude the "bottom line" expression of statistical significance in its current form.
Barney, supra, 8 Cal.App. 4th at 814-19, 10 Cal.Rptr.2d at 740-43; accord, Pizarro, supra n. 12, 10 Cal.App. 4th at 78-90, 12 Cal.Rptr.2d at 451-58.
The decisions in Barney and Pizarro are no aberrations. Although it is true, as the government contends, that the decisions admitting DNA match probabilities outnumber those reaching a contrary result, the imbalance is not as great (and certainly not as significant) as the government suggests. In a majority of the cases in which these match probabilities have been admitted, the defense failed to present evidence of the controversy among scientists which has since been recognized in the NRC REPORT and described in detail in Barney.[16] Indeed, the articles in Science magazine which focused attention on the controversy had not been written at the time that the cases on which the government relies were decided.[17]
In Commonwealth v. Lanigan, 413 Mass. 154, 596 N.E.2d 311 (1992), the court, after discussing the NRC's recognition in its report of the current debate among population geneticists, concluded that
the lively, and still very current, dispute described above regarding the role of population substructure constitutes something much more than a lack of unanimity. We cannot say that the processes by which Cellmark and the FBI estimated the frequency of the defendants' DNA profiles has found "general acceptance" in the field of population genetics. Accordingly evidence of the estimated frequencies of the defendants' DNA profiles is not admissible. Because the frequency estimates are inadmissible, evidence of a match between profiles is also inadmissible.
Id. at 162-63, 596 N.E.2d at 316; (citation omitted). Similarly, in Bridgett, Judge Richter wrote that
while the Defendant's contentions regarding the FBI's RFLP procedure are without merit, the issues raised concerning the FBI's calculation of probability estimates are meritorious. Several courts, including the Porter court, have excluded DNA evidence because of either the lack of consensus in the scientific community or the unreliability of probability estimates attached to the declaration of a match. Moreover, many scientific articles have been written on the issue both critical of and in favor of the calculation methodology employed by the FBI.
120 Daily Wash.L.Rptr. at 1704 (footnote[18] and citations[19] omitted). See also Vandebogart, supra, ___ N.H. at ___-___, 616 A.2d at 493-94; State v. Houser, 241 Neb. 525, 545-50, 490 N.W.2d 168, 182-84 (1992); Commonwealth v. Curnin, 409 Mass. 218, 220, 565 N.E.2d 440, 442-45 (1991); State v. Pennell, supra, note 5, 584 A.2d at 517-20.[20]*640 To the extent that the decisions of the court and the magistrate in Yee, 134 F.R.D. at 165, 202, are to the contrary, we respectfully decline to follow them, especially in light of developments since Yee was decided.
The government further argues that the FBI's probability calculation should have been admitted because the defense objections to it go to its weight and not to its admissibility. As the trial judge noted, however, "the government ignores the fact that it is the probability feature which is at the very core of the DNA evidence." Porter, 120 Daily Wash.L.Rptr. at 506. "Since a match between two DNA samples means little without data on probability, the calculation of statistical probability is an integral part of the process and the underlying method of arriving at that calculation must pass muster under Kelly/Frye." Axell, supra, 235 Cal.App.3d at 866-67, 1 Cal. Rptr.2d at 430. "[W]e would not permit the admission of test results showing a DNA match (a positive result) without telling the jury anything about the likelihood of that match occurring." Curnin supra, 409 Mass. at 222 n. 7, 565 N.E.2d at 442-43 n. 7; see also Vandebogart, supra, ___ N.H. at ___, 616 A.2d at 494; Barney, supra, 8 Cal.App.4th at 816, 10 Cal.Rptr.2d at 742.
Since the probability of a coincidental match is an essential part of the DNA evidence, and since there is no consensus as to the accuracy of the FBI's calculation, we decline to hold that the defense objections to that precise calculation go only to its weight. But see State v. Pierce, 64 Ohio St.3d 490, 494-97, 500-01, 597 N.E.2d 107, 111-12, 115 (1992) (distinguishing cases based on Frye and noting that Ohio does not follow Frye; court holds that objections to DNA evidence, which included prosecution experts' calculations of odds of forty billion to one against a coincidental match, go to the weight of such evidence but not to its admissibility).
The lack of general acceptance among scientists of the proposition that the FBI's "fixed bin" methodology is sufficiently accurate to support a coincidental match probability of one in thirty (or forty) million, however, does not compel the conclusion that no probability estimate at all may be presented to the jury. As we explain below, demonstration of the existence of consensus among the appropriate scientists as to a more modest calculation would be sufficient.
E. A More Conservative Consensus?
The parties and the trial judge focused their attention at the Frye hearing on the question whether, consistent with Frye, the prosecution was entitled to introduce expert evidence to the effect that the probability of a coincidental match was thirty (or forty) million to one. The judge correctly found that there was no general acceptance by the relevant group of scientists for the proposition that the FBI's methodology is sufficiently accurate to support a calculation of these specific odds. There was no inquiry below, however, as to whether such a consensus existed in support of a more conservative figure.
"A criminal trial is not a game, but a quest for truth." Womack v. United States, 350 A.2d 381, 383 (D.C.1976); see also United States v. Nixon, 418 U.S. 683, 710 & n. 18, 94 S.Ct. 3090, 3108 & n. 18, 41 L.Ed.2d 1039 (1974). "The twofold aim of criminal justice is that guilt shall not escape or innocence suffer." Nixon, supra, 418 U.S. at 709, 94 S.Ct. at 3108 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). In the present case, the prosecution seeks to introduce the DNA evidence to corroborate an anticipated identification of Kevin Porter by the complaining witness. "[W]ith today's technology, which uses 3-5 loci,[21] a match between two DNA patterns can be considered strong evidence that the two samples came from the same source." NRC REPORT, supra, at 74. There is thus *641 no doubt that such evidence is strong; the only real question is: how strong? If the odds against a random match are substantial, then it would be a remarkable coincidence, to say the least, if the complaining witness identified Porter as her rapist, but if the crime was nevertheless committed by someone else whose DNA just happened to match Porter's with respect to each of four loci. "Coincidences happen, but an alternative explanation not predicated on happenstance is often the one that has the ring of truth." Byrd v. United States, 614 A.2d 25, 32 (D.C.1992) (quoting Poulnot v. District of Columbia, 608 A.2d 134, 139 (D.C. 1992)).
The odds against a coincidental match do not have to be thirty million to one for evidence of the match to be admissible. "[I]f the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury." Home Ins. Co. v. Weide, 78 U.S. (11 Wall.) 438, 440, 20 L.Ed. 197 (1870); see also Martin v. United States, 606 A.2d 120, 128-29 (D.C.1991). Accordingly, "[p]opulation percentages on the possession of certain combinations of blood characteristics, based upon established facts, are admitted as relevant to identification." State v. Washington, 229 Kan. 47, 59-60, 622 P.2d 986, 995 (1981) (0.6% of the population had defendant's combination of blood factors); see also Commonwealth v. Gomes, 403 Mass. 258, 273, 526 N.E.2d 1270, 1279 (1988) (defendant among 1.2% of blacks in United States whose blood was consistent with evidentiary sample); Plunkett v. State, 719 P.2d 834, 841 (Okla.Cr.1986) (blood with characteristics of victim found in 0.48% of population); cf. Jones, supra, 548 A.2d at 44-45; but see State v. Kim, 398 N.W.2d 544 (Minn.1987) (contra, expounding minority rule); Rivera v. State, 840 P.2d 933, 942, No. 90-163 (Wyo. Oct. 30, 1992). These principles apply with equal force in DNA cases. Smith v. Deppish, 248 Kan. 217, 235-39, 807 P.2d 144, 157-59 (1991); Martinez v. State, 549 So.2d 694, 696-97 (Fla. App.1989); People v. Mohit, supra, 579 N.Y.S.2d at 993, 999.[22]
In Mohit, the court hit the nail on the head in the following revealing passage:
If, as will be found in this case, a reliable match is made, but the probabilities attached are not reliable, should the proponent of the evidence be denied its admissibility altogether? Shouldn't the jury know that there was a match and that the possibility of the perpetrator being someone other than the defendant is remote, even if it is difficult to say precisely how remote? If, for example, many in the scientific community would agree that a probability is 1 in 1,000,000, but others, reasonably doubting the accuracy of that number, can only agree to 1 in 100,000, shouldn't a jury at least know the more conservative number? The defendant could not reasonably claim prejudice, and the prosecution could still bring important and reliable evidence to a jury's attention.
579 N.Y.S.2d at 993.
After describing the disagreement among scientists which we have discussed at pages 638-639, supra, the judge in Mohit *642 stated that "the fact that it is difficult, given the present state of knowledge, to be precise, does not mean that conservative numbers cannot be used." Id. 579 N.Y.S.2d at 999. Expressing confidence that "no credible segment of the scientific community would claim that the probability estimates ... in this case or any other could be higher than 1 in 100,000, id.[23] (rather than 1 in 67,000,000 as claimed by the People), the judge held that the prosecution would be permitted to introduce evidence of the match, but that the FBI probability estimates would be limited in accordance with his decision. Id. We agree with this analysis.
F. Identifying the Consensus.
We leave to the trial judge the initial determination as to whether the requisite consensus now exists for a conservative statement of the probability of a coincidental match and, if so, what the probability is in the present case. We do so, in part, because this issue was not focused upon by the court and counsel during the Frye hearing.[24] Although it appears improbable, in light of recent events, that no conservative consensus can be found, it would be unfair to Porter for the appellate court to proclaim ex cathedra the precise (and minimal) probability of a coincidental match without a crossing of swords on the issue in the court below.
The information presently before the court suggests, however, that the odds against a match being the result of a coincidence are extremely high even if one uses the most conservative reasonable calculation.
In Barney, supra, the court admitted evidence that the blood of one of the defendants and the evidentiary sample in his case "shared an unusual blood type found in only 1.2 persons out of 1000 in the Black population." 8 Cal.App. 4th at 828, 10 Cal. Rptr.2d at 748. In holding that the trial judge had committed error (but harmless error) when he admitted evidence that the probability of a coincidental DNA match was one in two hundred million, the court recognized
the irony in finding a frequency estimate of 1.2 in 1,000 to be significant while excluding DNA evidence which would have to be in error by five or six orders of magnitude a degree of error not even claimed by Lewontin and Hartl to *643 approach a reduced equivalence. This does not, however, undermine our finding of no general acceptance, but rather underscores the need to find a low threshold of agreed statistical significance for DNA evidence.
Id. at 826 n. 6, 10 Cal.Rptr.2d at 748 n. 6.[25]
In Bridgett, Judge Richter rejected the government's proffered probability evidence, agreeing with Judge Kennedy that the prosecution had failed to demonstrate general acceptance of the FBI's methodology. The judge nevertheless held that a more conservative estimate based on the NRC REPORT'S "modified ceiling principle" was admissible. Having noted the standing and impartiality of the authors of that study,[26] the judge wrote as follows:
This present lack of consensus should not, however, exclude probative DNA evidence if the deficiencies can be corrected through the use of conservative estimates. Indeed, the NAS report assumed that certain populations may be stratified or substructured and that such a phenomenon would not be evident in the frequencies employed by the FBI since the Hardy-Weinberg rule is a poor test to detect disequilibrium. The report concluded, however, that such deficiencies should not function to completely exclude DNA evidence from the courtroom, but may be corrected by ensuring that the probability estimates of a coincidental match between the evidentiary and known samples are "appropriately conservative."
The report formulated a methodology, the ceiling principle, which calculates the chance of a random match and incorporates the criticisms leveled by opponents of the FBI's methodology. Since the ceiling principle may not be employed until the proper population sampling is computed, the committee has formulated a modified ceiling principle: In effect, a more conservative version of the conservative ceiling principle. The modified ceiling principle may be employed at present since the frequencies are taken from existing databases. This modified formula requires that the largest frequency from the current databases be used for the defendant's allele frequencies. Once this frequency has been determined, one calculates the 95% upper confidence limit, or applies a frequency of 10%, whichever is larger. The committee recommends the use of the 10% frequency floor to account for the unsampled populations' allele frequencies.
This Court finds this formula appropriate under Frye for determining the probability estimates to be applied to a match declaration.
120 Daily Wash.L.Rptr. at 1704 (footnotes and citations to NRC REPORT omitted).
No appeal from the decision in Bridgett is before us, and we do not at this point rule definitively on Judge Richter's analysis and conclusion. On remand, the court *644 and counsel should address the holding in Bridgett and its potential applicability in this case.[27]
IV
CONCLUSION
For the foregoing reasons, the trial court's order denying the government's motion to introduce DNA evidence is vacated and the case is remanded to the trial court for further proceedings consistent with this opinion.
So ordered.[28]
MACK, Senior Judge, dissenting:
I would affirm the order of Judge Kennedy. I am tempted to say that I would do so for many of the reasons stated by the majority. However, since I emphatically disagree with the disposition of this case, I write to express my reasons.
In vacating the order of Judge Kennedy, and remanding for consideration in light of the holding by another trial judge in another case not before this panel (see United States v. Bridgett, 120 Daily Wash.L.Rptr. 1697, 1700-01 (D.C.Super.Ct. May 29, 1992)), my colleagues are issuing a polite invitation to Judge Kennedy to reverse himself in the interest of "a search for truth."[1] I respectfully decline to join in that invitation because I believe (1) that Judge Kennedy correctly applied the standard, of Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923), that a scientific technique sought to be admitted must be sufficiently established to have gained general acceptance in the particular field in which it belongs, and (2) that he was correct in holding that the admission of DNA evidence, with its multifarious but integral facets, had not gained general acceptance with respect to a critical aspect and therefore should await further studies. I also believe that the comprehensive report of the Committee on DNA Technology in Forensic Science (published by The National Research Council[2] in 1992) does not require *645 any other result, but in fact reinforces Judge Kennedy's analysis with respect to the nonacceptance of the FBI's methodology for calculating probabilities of guilt. See COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE (1992) [NRC REPORT].
I.
In my view, the existence of controversy between scientists negates the existence of general acceptance. If the suggested premature bent of my colleagues prevails in this jurisdiction, an unknowing Mr. Porter, an unsuspecting panel of jurors, and ultimately scores of hapless lawyers and judges will be engulfed in a sea of controversy. This is neither an answer to crime nor a wise use of potentially exciting resources of science. I reach this conclusion because the specific issue here is not whether a scientific "fingerprint" is admissible as evidence in a criminal trial; it is rather whether a computer-assisted mathematical computation designed to show the probability of guilt or innocence, and valid only if certain assumptions about the genetic structure of certain Census Bureau populations are in turn valid, is admissible, in the face of a bitter debate among distinguished population geneticists, and in the absence of any direct population studies of the conglomerate of races and ethnic groups (with subgroups) that make up America. The implication by my colleagues that the NRC Committee report (which this court can read for itself) requires vacation and remand is not warranted. The report does not disavow controversy but expressly concedes it. I read the interim suggestions and assumptions advanced by the Committee, as being made in the interest of trying to solve the controversy through compromise, not as indicating general acceptance. I read them as words of caution, not only directed to the jurisdictions which have, in unwarranted haste, committed themselves to the admissibility of DNA evidence but also to those jurisdictions which are considering the issue. Before I state my reasons for doing so let me briefly turn to the opinion which we are reviewing.
II.
I was impressed by Judge Kennedy's immediate recognition of the difficulty of applying a Frye test to forensic DNA analysis a task far more demanding than clinical analysis since it involved a feature (the making of "probability estimates") which is completely foreign to clinical analysis. The complexity, he noted, stems from the fact that DNA evidence draws upon principles and technology from a number of different scientific spheres and implicates the study of history and sociology as well. It was the "assumptions" about population genetics that gave him cause for pause assumptions made without convincing proof that Caucasians, Blacks, and Hispanics are homogeneously mixed populations without significant subgroups. The FBI's failure to recognize diverse subpopulations, Judge Kennedy thought, could produce tremendous error. And because, he reasoned, the "probability feature" was at the very core of DNA evidence, such evidence was "at this time" inadmissible in the cases before him.
III.
The NRC study is a compendium of expert and extremely helpful commentary detailing the technical aspects of DNA analysis, its exciting possibilities, its complexity, and its immense power. It speaks to the advantages and disadvantages of present methodology (including that at issue here), and the implications attendant to its use by the legal system and to society as a whole. It candidly speaks of controversy with respect to sensitive and constitutional matters, and of the need for regulation.
At the outset the report tells us what DNA is not. Comparing DNA profiles and latent fingerprints, the Committee notes, inter alia that where it exists, DNA evidence will often be more probative than fingerprints but that fingerprints are more highly individualized than the DNA profiles based on the present technology being used in forensic laboratories. NRC REPORT, *646 112-13. "Only when DNA technology is capable of sequencing the entire three billion basepairs of a person's genome could a DNA pattern be considered to be as constant and complete as a fingerprint pattern." Id. at 112. More significantly, in what I see to be a confirmation of Judge Kennedy's conclusion that the "probability feature" is at the very core of DNA evidence, the Committee notes "[t]o say that two [DNA] patterns match, without providing any scientifically valid estimate ... of the frequency with which such matches might occur by chance, is meaningless. The Committee recommends approaches for making sound estimates that are independent of the race or ethnic group of the subject." Id. at 9 (emphasis added).
The report suggests that courts, in jurisdictions without relevant statutes, judicially notice the appropriateness of the theoretical basis of DNA typing "by using this report, similar reports, and case law" and adds that "[a]s new methods are used the courts will have to assure themselves of their validity." NRC REPORT, 145. It reviews the state and federal case law that has accepted or rejected the admissibility of such technology, including the opinion of Judge Kennedy in the instant case, and specifically offers advice to parties in the legal system as to pitfalls to be avoided. Id. at 146-47. If there is one recurring theme that surfaces again and again it is the suggestion that accuracy and reliability, and thus acceptability require methodology that is independent of the race and ethnic group of a subject.
Significantly, in a clarifying foreword to the report, the Committee, apparently disturbed by what it characterized as a press "misrepresentation"[3] (subsequently corrected) stated its recommendation, "to avoid potential confusion," that the use of DNA analysis for forensic purposes be continued, and that no moratorium be declared while the changes and improvements suggested in its report were being made.[4] I read this foreword as constituting guidance to the courts that have previously admitted DNA evidence. I also read the report and its recommendations for reform as confirming that the technology is still in a stage of discovery;[5] in my view it adds credence to Judge Kennedy's ruling that the FBI's method for calculating the "probability" of a coincidental match was not yet accepted as technically reliable, and reinforces the wisdom of the trial court's caution in exercising judicial restraint in the absence of essential studies. I suggest that we, in what my colleagues describe as our "quintessentially appellate function," should exercise the same caution. See *647 Ibn-Tamas v. United States, 455 A.2d 893, 895 (D.C.1983) (Gallagher, J., concurring). "[S]cientific evidence by its nature necessarily has a special impact on a jury. This is why the judiciary should proceed with reasonable caution, where the evidence comes as a new scientific theory, as distinguished from a well established field...."[6]Id.
IV.
What is this probability feature that is so critical to the validity of DNA technology in the forensic arena? It is, under the circumstances of the methodology sought to be used here, the "game" which my colleagues say a criminal trial is not. It is not a clinical analysis but a mathematical calculation based upon theoretical models. The FBI expert appearing before Judge Kennedy confirmed that he was not testifying that a DNA match resulted in a positive match or identification. In describing the steps taken to rule on the probability of obtaining a coincidental match in any one case, he spoke of preparing a profile data base from blood samples of a "particular population" (Caucasian, Black, Hispanic & American Indian), measuring the frequency of each category of "bands" in that sample population ... assuming the independence of each band and applying a multiplication rule. He used the example of a dice game to illustrate the process:[7]
Let's take a pair of dice. Each one, assuming they're honest dice or die, is independent of the other. You throw one, you have one chance in six of getting a particular number. The same with the second. If you throw both of them together, you have one chance in 36 of getting two numbers, the same numbers, two sixes or two ones or whatever, because those are independent events. You multiply the frequency or the probability of one die becoming a six and the other die becoming a six and you generate a number one in 36.
With genetics it's slightly different because... this profile can be obtained in two different ways. The top band can be from the mother and the bottom band can be from the father [or vice versa]. And so the profile frequency is determined by multiplying the frequency of one band which is six percent times the frequency of the second band which is five percent times two since these profiles can be obtained in two different ways.
This number then in this example, .008, is the frequency of this two band profile. Assuming these are accurate numbers in the population.
It's equivalent to saying there is one individual in every hundred and twenty five that have this particular profile.[8] (Trial Transcript, Jan. 2, 3, 1991 at 128-29.)
This multiplication exercise is commonly referred to as the "product rule."
*648 In 1763, a philosopher, Rev. Thomas Bayes suggested a mathematical formula for "Solving a Problem in the Doctrine of Chance," a formula combining intuitive guesses with probabilities based on frequencies, see Prof. Tribe, 84 HARV.L.REV. 1351 et seq, discussing Bayes' Theorem. Reverend Thomas Bayes, An Essay Toward Solving a Problem in the Doctrine of Chance, PHILOSOPHICAL TRANS. OF THE ROYAL SOCIETY (1763). See also NRC REPORT at 85. To my knowledge, our trial courts (at least prior to the time of the present controversy) have not been asked to admit testimony or argument employing the "product rule" in the weighing of evidence.
Professor Tribe, in a highly technical and exhaustive analysis, uses a California case to illustrate the risk of seduction by mathematical probabilities. He suggests that "the relative obscurity that makes them at once impenetrable by the layman and impressive to him creates a continuing risk that he will give such arguments a credence they may not deserve and a weight they cannot logically claim." 84 HARV. L.REV. at 1334. He concludes that overall (with possible defined exceptions) the costs of attempting to integrate mathematics into the fact-finding process of a legal trial outweigh the benefits.
In the California case in question, the state Supreme Court reversed a conviction for robbery after a trial during which a probability theory was placed before a jury. See People v. Collins, 68 Cal.2d 319, 438 P.2d 33, 66 Cal.Rptr. 497 (1968). The case involved the robbery of an elderly woman. The victim and her neighbor testified that they had seen a young Caucasian woman with blond hair run from the scene into a yellow car driven by a black male with a mustache and beard. Several days later the police arrested a couple fitting this description. Id., 68 Cal.2d at 321, 438 P.2d at 34, 66 Cal.Rptr. at 498.
In Collins the issue at trial was identity. The prosecutor called as a witness a mathematics instructor who testified that the probability of the occurrence of six mutually "independent" events (i.e., yellow automobile, man with mustache, girl with pony tail, girl with blond hair, Negro man with beard, interracial couple in car) was equal to the product of the individual probabilities that each event would occur. Applying the product rule and assigning a probability for each of the six events, the prosecutor calculated, and argued, that there was one chance in twelve million that a randomly chosen couple would fit the description provided by the witness. 68 Cal.2d at 325, 438 P.2d at 36-37, 66 Cal.Rptr. at 501.
In holding the mathematical testimony and the prosecutor's argument inadmissible, the California Supreme Court gave four reasons for its rejection of the product rule: (1) that there was no empirical evidence to support the assumed individual probabilities, (2) that even if the assumed probabilities were themselves correct, the multiplication presumed the independence of each factor (which was unsupported and plainly false), (3) that (the product rule notwithstanding) there remained a substantial possibility that the prosecution's witnesses could be mistaken or lying or that the couple could have been disguised, and (4) that it was error to equate the probability that a randomly chosen couple would possess the incriminating characteristics with the probability that any given couple possessing these characteristics would be innocent.[9]
The California Supreme Court concluded that the product rule "would inevitably yield a wholly erroneous exaggerated result even if all of the individual components had been determined with precision." Collins, supra, 68 Cal.2d at 329, 438 P.2d at 39, 66 Cal.Rptr. at 503. The Court warned that "mathematics, a veritable sorcerer in our computerized society, while assisting *649 the trier of fact in the search for truth, must not [be allowed to] cast a spell over him." 68 Cal.2d at 320, 438 P.2d at 33, 66 Cal.Rptr. at 497.
V.
From this analysis, a stark conclusion emerges. While one thinks of mathematics as a precise science, the result one reaches depends upon the numbers one factors into the equation. In any attempt to integrate the product rule into the fact-finding process of a trial, certain assumptions must be made. Events to which assumed probabilities are assigned must be independent of each other and the assumed probabilities must be supported by empirical evidence. The possibility of error must be ruled out. Otherwise the application of multiplication will simply magnify beyond reason a basic error.
In the instant case we are not only applying assumed objective frequencies to obviously subjective probabilities but, in the absence of more refinement, we are applying obviously subjective frequencies to subjective probabilities. Thus in the DNA analysis employed in this case, this product or multiplication process would be reliable only if the conditions of the so-called "Hardy-Weinberg" rule were met. While my colleagues summarily deal with what they term the "esoteric" principles of the "Hardy-Weinberg equilibrium" or "linkage disequilibrium," this is precisely what the "bitter controversy" which they describe (lifted from the opinion of Judge Chin in a California case)[10] is about.
The NRC Committee details this controversy. As the Committee stresses, again and again, the validity of the multiplication rule employed by the FBI depends upon the absence of population substructure, because only in this special case are the different alleles (or polymorphisms) statistically uncorrelated with one another (as Hardy-Weinberg equilibrium requires).[11] The NRC Committee, assuming the absence of population substructure, has described the calculation as follows:
Suppose for example, that [a defendant] has a genotype a1/a2, b1/b2, c1/c1. If a random sample of the appropriate population [i.e., the fixed bin] shows that the frequencies of a1, a2, b1, b2 and c1 are approximately 0.1, 0.2, 0.3, 0.1 and 0.2, respectively, then the population frequency of the genotype would be estimated to be [2(0.1)(0.2)] [2(0.3)(0.1)] [(0.2)(0.2)] = 0.000096, or about 1 in 10,417.[12]
*650 To sum up, under this method, population frequencies quoted for DNA typing are based not on actual counting but on theoretical models based on the principles of population genetics. Each matching allele is assumed to provide statistically independent evidence and the frequencies of the individual alleles are multiplied together to calculate the frequency of the complete DNA pattern. Yet it is only now that population studies are being undertaken to validate the assumptions of the absence of substructure.
The difficulty that the courts have had in applying this product rule is summed up by the Committee as follows:
Statistical interpretation of DNA typing evidence has probably yielded the greatest confusion and concern for the courts in the application of DNA to forensic science. Some courts have accepted the multiplication rule based on the grounds of allelic independence, others have used various ad hoc corrections to account for nonindependence, and still others have rejected probabilities altogether. Some courts have ruled that it is unnecessary even to test allelic independence, and others have ruled that allelic independence cannot be assumed without proof. The confusion is not surprising, inasmuch as the courts have little expertise in population genetics or statistics. (NRC REPORT, 89.)
In the instant case, at time of the hearing before Judge Kennedy, the FBI, using its fixed bin system, had calculated Mr. Porter's four-locus probability estimate as 1 in 40 million. After the issuance of the preliminary National Academy of Sciences report, this estimate was recalculated as being 1 in 270,000. We have not been told the details as to the calculation.[13] The view of my colleagues that reputable scientists "would agree on such minimal figure as the bottom line of the possibility of a coincidental match," prompts me to revisit the controversy which necessitated the report in the first place.
VI.
The debate among population geneticists underlying the use of the multiplication rule is currently described by the Council's study essentially as follows. One group (Lewontin and Hartl) maintains that census categories such as North American Caucasians, Blacks, Hispanics, Asians, and Native Americans are not homogeneous groups but that each group is an admixture of subgroups with somewhat different allele frequencies. Allele frequencies have not been homogenized because people tend to mate within their subgroups. Subpopulation differentiation cannot be predicted in advance but must be assessed through direct studies of allele frequencies in ethnic groups. Furthermore, this group doubts that the presence of substructure can be detected by the application of statistical tests to data from large mixed populations.
Another group of population geneticists (Chakraborty and Kidd), while recognizing the possibility or likelihood of population substructure, concludes that evidence to date indicates that multiplication of gene frequencies across loci does not lead to major inaccuracies in the calculation of genotype frequency, at least not for the specific polymorphic loci examined.
I gather further, from exhibits and pleadings before us that there are disagreements between population geneticists as to fundamental principles which are essential to the validity of the product rule. Thus Lewontin and Hartl point to theoretical misunderstandings about the term "random mating" which has two different meanings. In the narrow sense the term applies to blood groups and other marker genes that do not have a direct effect on a person's appearance. In a broader sense "random mating" means that individuals choose their mates without regard to "endogamy" i.e., religion, ethnicity, geography, etc. Therefore, in the Lewontin/Hartl view the census term "Hispanics" is misleading since it embraces a "biological hodgepodge" of Mexican, Puerto Rican, Guatemalan, Cuban, Spanish and other ancestries. *651 Reliable probabilities for "Blacks" cannot be estimated without use of a reference population that is at least geographically relevant[14] and takes family history into account. "Caucasian" Americans are derived from genetically diverse European subgroups that migrated to North America only in recent generations and that have tended to maintain their ethnic and religious separateness in marriage. As a consequence under this rationale (1) there existed no single homogeneous reference group to which all individuals could be referred for estimating probabilities of a random match of DNA type, and (2) the multiplication rule for calculating probabilities across multiple VNTR [variable number of tandem repeats] loci would not apply.
Further exhibits show that another group of geneticists (Budowle and Stafford), responding to Lewontin and Hartl, countered that empirical data shows that the effect of population subgroups within the United States on the final statistical element is small and that the FBI's fixedbin approach was designed intentionally to minimize differences between subgroups, both geographic and ancestral. It argued that a comparison of fixed bin frequency data for Caucasians from the United States, Canada, France, Israel, Switzerland and Australia demonstrates that in most cases there are few or no differences for bin frequencies and the most extreme differences are no more than two to threefold. It attacked Lewontin data as consisting of extremes and outliers. As to Hispanics, the FBI approached the expected differences from a "geopolitical" perspective. Suggesting that Lewontin and Hartl had intimated that there are more genetic differences between ethnic groups (e.g., Irish and Swiss) than between racial groups (Black and Caucasian) Budowle and Stafford geneticists wrote: "It is intuitively obvious that persons of the same race share more common traits than do persons of different races." NRC REPORT, 86.
There is also controversy about the effect of passing generations on the existence of substructures.[15]
Into this fray the NRC Committee, noting that the Hardy-Weinberg test is very weak for testing substructure, states:
Differences between races cannot be used to provide a meaningful upper bound on the variation within races. Contrary to common belief based on difference in skin color and hair form, studies have shown that the genetic diversity between subgroups within races is greater than the genetic variation between races....
In summary, population differentiation must be assessed through direct studies of allele frequencies in ethnic groups. Relatively few such studies have been published so far, but some are underway. Clearly, additional such studies are desirable. (NRC REPORT, 82.)
The Committee's report further expresses concern about the discrepancies in frequency estimates that can result from "assumptions" *652 about population structure as opposed to counting "matches," noting:
Substantial controversy has arisen concerning the methods for estimating the population frequencies of specific DNA typing patterns. Questions have been raised about the adequacy of the population databases on which frequency estimates are based and about the role of racial and ethnic origin in frequency estimation. Some methods based on simple counting produce modest frequencies, whereas some methods based on assumptions about population structure can produce extreme frequencies. (NRC REPORT, 74-75.)
Noting that in one investigation frequency estimates ranged from 1 in 500 to 1 in 739 billion, the report makes a most significant observation:
The discrepancy not only is a question of the weight to accord the evidence (which is traditionally left to a jury), but bears on the scientific validity of the alternative methods used for rendering estimates of the weight (which is a threshold question for admissibility). (NRC REPORT, 75 (emphasis added)).
VII.
The Committee, mindful of the controversy concerning population genetics, proposes its own methodology, one assuming the existence of population substructure. It recommends that blood samples be obtained from 100 randomly selected persons in each of 15-20 relatively homogeneous populations, and that the DNA in lymphocytes be immortalized and preserved as a reference standard for determination of allele frequencies in different laboratories. The collection of samples and their study should be overseen by a National Committee on Forensic DNA typing (NCFDT) whose mission would be independent of law enforcement. In applying the multiplication rule, the highest allele frequency found in any of the 15-20 populations or 5% (whichever is larger) should be used. This is the "ceiling principle." See NRC REPORT, 93.
In the interval ("which should be short") while the reference samples are being collected, the 95% upper confidence limit of the frequency of each allele should be calculated for separate United States "racial" groups and the highest of these values or 10% (whichever is the larger) should be used in applying the multiplication rule. Population databanks should be openly available for scientific inspection by parties and laboratory error rates should be measured with appropriate proficiency tests. Id.
We need not quibble over whether the Committee's "conservative modification of a ceiling principle," proposed for an interval time period, would meet the admissibility standard of general acceptance in view of the intensity and depth of the scientific controversy. Admittedly those of us in the law might have some personal concern about an acceptable risk of error to which we are willing to subject an accused.[16] However, the issue here is whether we should rush to vacate Porter, a decision carefully drafted, after momentous effort,[17] by the trial judge who conducted the Frye hearing a decision which in rationale has voiced the same concerns as that of a committee of distinguished scientists. We should certainly refrain from issuing a broad stamp of approval to admissibility of novel scientific evidence particularly in a case where because of available testimony such evidence is not crucial to the search *653 for truth.[18] Such restraint is advisable in view of NRC's admonition that regulation of such powerful potential is critical, and that adequacy of the method used to acquire and analyze samples in a given case bears on admissibility and should be adjudicated on a case by case basis.[19] (Indeed, Frye could be interpreted as being antithetical to case by case adjudication.)
Finally, apart from the considerations of Frye, from an administrative viewpoint, our criminal justice system cannot ignore the cost of widespread use of DNA typing (expected to run into the tens of millions of dollars a year). The fact that DNA evidence might obviate trials in some cases may be cause for reassurance or fear, depending upon one's point of view.[20]
Man's "search for truth" is a never-ending odyssey. The ultimate issue here, however, is not whether that search should be employed to determine whether Mr. Porter is guilty or innocent of a sexual assault on a complaining witness, but rather whether a hastily developed two-part methodology which reeks of scientific controversy in critical respect, can be employed summarily to undermine a system of individual justice, carefully and painfully crafted over the centuries.[21] I defer to the trial judge, to the legal precedent of Frye, and to the scientific genius that has argued that we are not yet ready.
I respectfully dissent.
NOTES
[1] The government later amended its probability estimate to one in forty million. Now, before this court, it essentially takes the position that the figure of one in 270,000 may also be presented to the jury.
[2] Porter's initial brief, for example, is 241 pages long, not including the fifty-seven exhibits appended to it.
[3] We need not here determine how small that fraction may be, since it does not appear that the trial court will be dealing with probabilities less than one in many thousand. Moreover, in the present case, the evidence is offered to corroborate the identification of Porter as the assailant, and the entire prosecution case does not depend on the expert testimony. We emphasize that we are dealing here with the admissibility of the evidence, and not with its sufficiency, standing alone, to convict a defendant.
[4] In order to keep this opinion within reasonable bounds, we adopt, but do not set forth de novo, the trial judge's comprehensive summary of the testimony of the six prosecution experts and two defense experts who gave evidence at the Frye hearing. See Porter, supra, 120 Daily Wash.L.Rptr. at 485-87, 89-93. We note that the judge also considered the extensive testimony of expert witnesses for the prosecution and for the defense in United States v. Yee, 134 F.R.D. 161 (N.D.Ohio 1991), as set forth in the unusually detailed report of the federal magistrate in that case. See Porter supra, 120 Daily Wash.L.Rptr. at 495 n. 47.
[5] The technical details of fixed bin analysis are not easy for a lay person to comprehend. In light of our disposition of this case, we do not find it necessary to try to explicate in our own words such esoteric principles as "Hardy-Weinberg equilibrium," or "linkage disequilibrium." See State v. Pennell, 584 A.2d 513, 517 (Del.Super. 1989), on rehearing, id. at 521-22; (defining Hardy-Weinberg equilibrium). For more detailed descriptions of the technology of probability estimates, see Porter, 120 Daily Wash. L.Rptr. at 485; and United States v. Bridgett, 120 Daily Wash.L.Rptr. 1697, 1700-01 (Super.Ct.D.C.1992).
[6] Judge Burgess' opinion in Roy has been characterized by this court as "cogent ... thoughtful and comprehensive." Jones, supra, 548 A.2d at 45.
[7] will take judicial knowledge of the scientific fact that the earth is round. At the same time, we know there are still individuals who claim to be scientists who have other theories, even to the extent of holding that instead of living on the outer surface of a globe we live within a globe, and that there are within it sun, moon, stars and all the heavenly bodies which we observe.
McKay v. State, 155 Tex.Crim. 416, 419, 235 S.W.2d 173, 174 (1950).
[8] Cf. Yee, supra, 134 F.R.D. at 197 (the question is whether "the pertinent scientific community generally accepts the ability of the FBI's protocol and procedures to ... provide a scientifically acceptable estimate of the relative rarity of the particular pattern in the [relevant] population.")
[9] "In objecting to the admission of this evidence, the defendant has adopted a `scorched earth' strategy, one which leads him to object to virtually each and every aspect of this evidence and, even, to question the motives of its proponents." Porter, 120 Daily Wash.L.Rptr. at 501.
[10] Porter challenged, inter alia, the following:
1) the FBI's practice of declaring a match by both visual and computer-assisted means;
2) the FBI's failure to replicate test results;
3) the inability of the FBI to precisely measure the VNTR;
4) the absence of standards governing forensic DNA typing;
5) the FBI's purported lack of a blind proficiency testing program; and, in light of the foregoing,
6) the alleged existence of a significant danger that a false positive could be called a match.
See Bridgett, supra, note 5, 120 Daily Wash. L.Rptr. at 1701; see also Mohit, supra, 579 N.Y.S.2d at 994-95, discussing the use of Ethidium Bromide during gel electrophoresis, a process described in Jakobetz, supra, 955 F.2d at 792. The recent decision of the Supreme Court of Minnesota in State v. Jobe, 486 N.W.2d 407, 419-20 (Minn.1992) contains a concise and persuasive analysis of the objections commonly offered to the FBI's RFLP matching procedure.
[11] E.g., the government displays a "virtual mania to get this evidence before a jury," Appellee's brief at 40 n. 95; the FBI "is as disingenuous as its terminology is artful," id. at 41; the government's position is "audacious," id. at 42; "the so-called `blind' proficiency testing `program' of the FBI is a sham," id. at 50; "[f]or the government to make that proffer in the instant litigation borders on the absurd," id. at 56; "the hyperbole of the FBI and its fellow travelers [!!] in the DNA lobby," id. at 82 (this must be one of the few occasions on which the FBI has been "red-baited"); the FBI is "[l]ike the evangelist quoting his own scripture as authority ...," id. at 94; "the entire `galaxy' of pro-FBI `stars,'" id. at 135; "nudum dictum," id. at 139; pro-DNA scientists' "concatenation of broad, flat assertions without supporting authority are simply too ponderous to swallow whole," id. at 145; the NRC Report is not a "papal encyclical," id. at 191; NRC's "suggested practice which may be `robust' scientific theory but which is `moribund' due process of law." Id. at 206.
[12] But cf. People v. Pizarro, 10 Cal.App.4th 57, 95-96, 12 Cal.Rptr.2d 436, 461 (5th Dist.1992) (trial court must determine whether private laboratory's RFLP protocol is generally accepted as reliable within scientific community).
[13] In its brief on appeal in the present case, the government repeats its argument below that
the peer-reviewed scientific articles in press at the time of the Frye hearing sufficiently demonstrated the general acceptance of fixed bin analysis. More articles have either appeared or been accepted for publication since that time, however, making even more apparent the overwhelming weight of supporting scientific authority. Of the articles and letters in scientific journals that discuss the human population genetics component of forensic DNA analysis, at least 18 peer-reviewed articles and ten letters support the methodology at issue, while only 6 articles and commentaries and 7 letters question it. Further reflecting this broad support, over 45 scientists appear as either authors or co-authors on the "favorable" articles, while only a dozen scientists authored or co-authored the critical articles or letters to the editor.
We think that in the foregoing passage, the government asks this court to choose between scientists on the basis of rather unimpressive numbers, and thus to make precisely the kinds of determinations as to which Frye requires a consensus of experts.
[14] In light of the "abstruse, intensely technical [scientific] standards involved," Hopkins v. State, 579 N.E.2d 1297, 1303 (Ind.1991), courts are well advised not to pick sides in scholarly controversies between eminent scientists about molecular biology or population genetics. As one scholar has observed, "[t]he theory and technology of DNA far surpass everyday knowledge. In fact, only those specifically trained in molecular biology and chemistry [and population genetics] can even begin to understand the concepts involved." Norman, DNA Fingerprinting: Is It Ready For Trial, 45 UNIV.MIAMI L.REV. 243, 243-44 (1990). We, therefore, elect instead to heed Lord Mountararat's musical commentary on the House of Lords:
And while the House of Peers withholds
Its legislative hand,
And noble statesmen do not itch
To interfere with matters which
They do not understand,
As bright will shine Great Britain's rays
As in King George's glorious days!
WILLIAM GILBERT & ARTHUR SULLIVAN, IOLANTHE, ACT II (1882). The hereditary peerage is not the only branch of government which can benefit from his lordship's counsel.
[15] People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976).
[16] In Spencer v. Commonwealth, 238 Va. 275, 289-91, 384 S.E.2d 775, 783 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990), a case on which the government relies, defense counsel acknowledged that DNA tests are accepted as reliable and that he was "unable to find or produce one qualified expert to debunk either the theory of DNA printing or the statistics generated therefrom." But see the very recent decision in Satcher v. Commonwealth, 244 Va. 220, 421 S.E.2d 821, 833-34 (1992), in which the Supreme Court of Virginia adhered to its Spencer holding in the face of a much more sophisticated defense presentation.
[17] "Whatever the merits of the prior decisions on the statistical calculation process ... the debate that erupted in Science in December 1991 changes the scientific landscape considerably and demonstrates indisputably that there is no general acceptance of the current process." Barney, supra, 8 Cal.App.4th at 820, 10 Cal. Rptr.2d at 744.
[18] In the omitted footnote, Judge Richter cited a number of other decisions, some of them unreported, in which evidence of probabilities was excluded for lack of scientific consensus.
[19] The citations included the Lewontin-Hartl Chakraborty-Kidd brouhaha in Science magazine.
[20] Cases in which the prosecution's probability calculations were excluded but more conservative estimates were admitted are discussed in Part III D, infra.
[21] In this case, four loci.
[22] We disagree with Porter's contention that admission of statistics as to the minuscule probability of a random match is unduly prejudicial. "The defendant fails to persuade us that the admission of DNA identification evidence will lead to an improper trial by mathematics." People v. Adams, 195 Mich.App. 267, 278, 489 N.W.2d 192, 198 (1992). As the court stated in Martinez, supra, 549 So.2d at 697,
[i]f we adopt Martinez's position, we will exclude statistical probability testimony where it is the most cogent.... Indeed, [the defense logic] might lead to the exclusion of fingerprint evidence, which also is based on the mathematical theory of probabilities that the chance of two individuals bearing the same fingerprint (or prints) is so infinitesimally small as to be negligible.
In State v. Brown, 470 N.W.2d 30 (Iowa 1991), the court, after quoting from the foregoing passage in Martinez, observed that "statistical evidence does not remove the issue of identity from the jury, which is free to disregard or disbelieve expert testimony." Id. at 33; accord, Adams, supra, 195 Mich.App. at 278-80, 489 N.W.2d at 198. See also State v. Garrison, 120 Ariz. 255, 258, 585 P.2d 563 (1978) (en banc) (trial court properly admitted testimony that the teethmarks on the decedent's breast were consistent with those made by Garrison and that the chances of another person having made them were about eight in one million).
[23] Other cases in which probability calculations more conservative than those proposed by the prosecution were admitted into evidence include Caldwell v. State, 260 Ga. 278, 288-89, 393 S.E.2d 436, 443-44 (1990) and Wesley I, supra, 140 Misc.2d at 331-32, 533 N.Y.S.2d at 659, recently affirmed in Wesley II.
[24] "[P]arties may not assert one theory at trial and another theory on appeal." D.D. v. M.T., 550 A.2d 37, 48 (D.C.1988) (quoting Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982). "Points not asserted with sufficient precision [in the trial court] to indicate distinctly the party's thesis will normally be spurned on appeal." Hunter v. United States, 606 A.2d 139, 144 (D.C.1992) (quoting Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)). These principles apply as rigorously to the government as they do to a criminal defendant who faces the loss of his liberty. Even on appeal, the government continues to rely principally on the argument that consensus exists as to a probability of one in thirty million a notion which we emphatically reject in this opinion. (The government does make an alternative argument in its initial and reply briefs in support of a more conservative statement of the probability of a coincidental match.)
We think the question whether a more conservative consensus exists is nevertheless properly before us. First, the authoritative NRC REPORT, which was issued well after the Frye hearing, provides important support for use of a more conservative figure, as do several recent decisions issued since Judge Kennedy's ruling, including Mohit and Bridgett. The judge anticipated that the NRC REPORT might change things, and he should be given the opportunity to determine if it has done so. Second, admission of evidence of a coincidental match probability of, say, one in thirty thousand is arguably "lesser included" relief where the prosecutor has sought to elicit testimony that the odds are one in thirty million. Finally, the case is one of general public importance, and, as our first venture into the subject, has the potential for becoming a significant precedent in this jurisdiction. So long as procedural fairness is preserved and we think our remand procedure preserves it, for Porter has had or will have an opportunity to address all relevant issues it is imperative that a case in which so extensive a record has been developed be decided in conformity with correct legal principles.
[25] In Barney, the calculation which lacked consensus had already been received in evidence. The court was therefore in no position to direct that a more conservative figure be placed before the jury. This was likewise true in Lanigan, supra, in which the court reversed a conviction after the admission of a calculation of one in 2.4 million for which there had been no showing of general acceptance in the scientific community. 413 Mass. at 156-58, 596 N.E.2d at 312-13.
[26] National Academy of Sciences (NAS) published [its] report on forensic DNA typing in the interim between the decision rendered in the Porter case and the oral arguments held in this case. That report reinforced the general reliability of forensic DNA typing and, although it noted the dissension in the scientific community over the calculations employed by DNA typing laboratories, the NAS provided an alternative calculation scheme. This definitive report is central to the Court's determination. A review of the committee members reveals that the committee itself is a distinguished cross section of the scientific community. Indeed, committee members included Dr. Eric Lander, an outspoken critic of the FBI's methodology and one whose views were forthrightly promoted by the defense in this case and in Porter. Thus, that committee's conclusion regarding the reliability of forensic DNA typing, specifically RFLP analysis, and the proffer of a conservative method for calculating probability estimates can easily be equated with general acceptance of those methodologies in the relevant scientific community. Indeed, in terms of the spectrum of existing scientific scholarly opinion, the report falls well towards the cautious end.
120 Daily Wash.L.Rptr. at 1702 (footnotes omitted).
[27] We note that in three very recent decisions in which it was held that FBI match probability calculations had been improperly received, the courts have expressly endorsed what the Supreme Judicial Court of Massachusetts has described as "[t]he national call for considered, conservative approaches to DNA testing, such as the use of ceiling frequencies." Lanigan, supra, 413 Mass. at 163, 596 N.E.2d at 316; accord, Barney, supra, 8 Cal.App. 4th at 821-22, 10 Cal. Rptr.2d at 745; see also Vandebogart, supra, ___ N.H. at ___-___, 616 A.2d at 494-95 (remanding to trial court for a determination whether there is general acceptance of NRC's recommended ceiling principle). Judge Richter's general approach in Bridgett is thus in excellent company.
[28] The parties and amicus have asked us to address a number of procedural and other issues which we decline to reach. In light of our basic holding, however, we do not think that extensive Frye hearings will be necessary in future DNA litigation. See, generally, Jones, supra, 548 A.2d at 43-46. Some pretrial inquiry may be necessary in some cases to identify a conservative estimate of the probability of a random match. If there is some persuasive reason to doubt that the FBI or private laboratory has conscientiously followed its own protocol and conducted the procedures correctly, however, the trial court should also hold a pretrial hearing on that limited issue. See, e.g., State v. Jobe, 486 N.W.2d 407, 419 (Minn.1992); People v. Castro, 144 Misc.2d 956, 977-78, 545 N.Y.S.2d 985, 998 (Supreme Ct. Bronx County 1989).
[1] The sentence "[a] criminal trial is not a game but `a quest for truth'" is repeated in Womack v. United States, 350 A.2d 381, 383 (D.C.1976) (citing other omitted opinions) where the issue was whether a trial court had abused its discretion in directly questioning a witness an obviously different issue from that of a ruling on the admissibility of evidence, particularly the admissibility of a new and novel scientific methodology. Surely we are not suggesting that in the interest of a search for truth, a court may admit the inadmissible.
In this regard the comments of Professor Lawrence A. Tribe [citing Hart & McNaughton, Evidence and Inference in the Law, EVIDENCE AND INFERENCE 48, 52 (D. Lerner ed. 1958)] are pertinent:
It would be a terrible mistake to forget that a typical lawsuit, whether civil or criminal, is only in part an objective search for historical truth. It is also, and no less importantly, a ritual a complex pattern of gestures comprising what Henry Hart and John McNaughton once called "society's last line of defense in the indispensable effort to secure the peaceful settlement of social conflicts."
See Lawrence A. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV.L.REV. 1329, 1376 (1971).
[2] Members of the Council are drawn from the Councils of the National Academy of Science, the National Academy of Engineering and the Institute of Medicine.
[3] On Tuesday, April 14, 1992, headlines in the New York Times read "U.S. Panel Seeking Restriction on Use of DNA in Courts, Labs' Standards Faulted, Judges are Asked to Bar Genetic "Fingerprinting" Until Basis in Science is Stronger." Gina Kolata, N.Y. TIMES, April 14, 1992, at A1, C7.
The text begins: "[A] long-awaited Federal report on a powerful new genetic technique for identifying criminal suspects says it should not be allowed in court in the future unless a more scientific basis is established." It quotes a defense lawyer who predicts reopening of cases and a prosecutor who terms the Committee's report "irresponsible." Id.
[4] The NRC foreword reads in relevant part:
We recommend that the use of DNA analysis for forensic purposes, including the resolution of both criminal and civil cases, be continued while improvements and changes suggested in this report are being made. There is no need for a general moratorium on the use of the results of DNA typing either in investigation or in the courts.
We regard the accreditation and proficiency testing of DNA typing laboratories as essential to the scientific accuracy, reliability, and acceptability of DNA typing evidence in the future. Laboratories involved in forensic DNA typing should move quickly to establish quality-assurance programs. After a sufficient time for implementation of quality-assurance programs has passed, courts should view quality control as necessary for general acceptance. (NRC REPORT, foreword (emphasis added)).
[5] The NRC REPORT emphasizes that new methods for demonstrating individuality in a person's DNA are in a stage of development. Acknowledging that methods outlined in the report will likely be superseded by other new methods, the NRC cautioned that
[c]are must be taken to ensure that DNA typing techniques used for forensic purposes do not become `locked in' prematurely. Otherwise, society and the criminal justice system will not be able to derive maximal benefit from advances in the science and technology. (NRC REPORT, 49.)
[6] See also Richard Lempert, Some Caveats Concerning DNA as Criminal Identification Evidence: With Thanks to the Reverend Bayes, 13 CARDOZO L.REV. 303, 336 (1991):
While the law must admit the possibility that what most scientists "know" is wrong, in deciding what is scientifically sound a court can do no better than to proceed on the assumption that what scientists generally know is correct. But if there is substantial dissensus within the relevant scientific community, or if in a certain sphere the scientists who are most expert in a matter disagree with the conclusions of other scientists, the evidence should be excluded for the time being. Given the general adequacy of trial procedures at any particular point in time, we should not risk overwhelming the jury with information whose validity rests on propositions that are questioned by many knowledgeable scientists. If the skeptical scientists are wrong, a consensus regarding where the truth lies should emerge soon enough, and little harm is likely to occur in the meantime.
[7] One court has explained a product or multiplication rule by reference to a population of 10 automobiles and the probability of selecting (sight unseen) one of a certain model or a certain color. People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643 (N.Y.Crim.Ct.1988).
[8] It is unclear how the frequency of the two band profile of .008 was computed based on the preceding example which multiplied the frequency of one band (6 percent) times the frequency of the second band (5 percent) times two. This equation provides a two band frequency of .006, not .008. [2(.06 × .05) = .006].
[9] The error has been explained as follows: If there were 24 million couples in the suspect population, and if the probability that a couple, chosen randomly from the suspect population, having the same characteristics was one in twelve million, then two such couples exist in this population. Thus, the probability that any given couple, possessing these characteristics, would be innocent is approximately one in two, and not one in twelve million. Lawrence A. Tribe, 84 HARV.L.REV. at 1336.
[10] See People v. Barney, et al., 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731 (1st Dist.1992).
[11] One court describes the Hardy-Weinberg requirements thusly:
For a test to be reliable, two basic conditions must be met: 1.) the alleles that are tested for must not be the result of linkage disequilibrium; and 2.) the data base population must be in or approach Hardy-Weinberg equilibrium.
The first condition is met by seeking alleles from different chromosomes. This increases the probability that the segments measured occurred randomly, rather than being the product of one parent's genetic contribution.
Hardy-Weinberg equilibrium assumes that allele frequencies in the population will remain constant from generation to generation so long as there is random mating in the population. Of course, small deviations from Hardy-Weinberg equilibrium exist in human communities for a number of reasons, including the fact that human mating is not, in its truest sense, random.
If the population is in Hardy-Weinberg equilibrium, a probability that a DNA with eight identified rare alleles will occur is determined by multiplication of the eight individual probabilities, e.g., 1/a × 1/b × 1/c × 1/d × 1/e × 1/f × 1/g × 1/h. It is easy to see that if the probability of each of these alleles occurring is but 1 in 10, the probability of all eight appearing in the same individual is 1 in 108 or 1 in a hundred million. If but two of the alleles occur only in 1 of a hundred individuals, the resulting probability of all eight alleles matching becomes one in ten billion. It is easy to see just how powerful this identification tool is and what a tremendous impact it could have on a jury.
State v. Pennell, 584 A.2d 513, 517 (Del.Super.1989).
[12] NRC REPORT, 78-79. After one does the initial multiplication (accounting for the fact that the profiles can be obtained in two different ways), the equation would be:
96/1,000,000 = 1/X
96X = 1,000,000
X = 1,000,000
----------
96
X = 10,416,666
[13] The Public Defender Service, appearing before this court as amicus in oral argument, indicated that this figure was proffered without explanation as to how it was calculated.
[14] The blood samples in the Black database underlying Mr. Porter's initial probability estimate were collected in South Carolina, Florida and Texas.
The FBI expert pointed out that use of this Black database operated to produce odds in favor of Mr. Porter. I am not certain that this is the kind of affirmative action that an accused would embrace with much enthusiasm. See, e.g., note 15, infra.
[15] As the majority correctly notes, it is not for the courts to resolve a dispute between scientists. I mention the following only to echo the Committee's emphasis upon direct studies.
The October 1992 issue of "Ebony" magazine tells the poignant story of a distinguished law professor at the University of Iowa who, born into white middle-class comfort in suburban Washington, D.C., discovered that he was Black at 10 years old (and describes the chaos that followed thereafter). [This comes as no surprise to older generations of the slave states who are not only aware of communities and towns where "coloreds" (including octoroons, mulattoes and quadroons, many with white complexions, blond hair and blue eyes) perpetuated sub-grouping, but who also remember the disappearance of migrating family members (thus coining the phrases of "passing" and "crossing over"). See "Ebony," February 1957, "How to Tell a Negro."] Charles Whitaker, The True Story of an Indiana `White' Boy Who Discovered that He Was Black, EBONY, Oct. 1992, at 88.
[16] Professor Tribe has put this thusly:
Now it may well be, as I have argued elsewhere, that there is something intrinsically immoral about condemning a man as a criminal while telling oneself, "I believe that there is a chance of one in twenty that this defendant is innocent, but a 1/20 risk of sacrificing him erroneously is one I am willing to run in the interest of the public's and my own safety."
84 HARV.L.REV. at 1372.
[17] As the majority points out, Judge Kennedy sat for twenty days, heard testimony from eight expert witnesses, admitted over 110 exhibits, and received over 1,300 pages of briefs. I want to go on record with a commendation for all counsel.
[18] Presumably the testimony of the complainant in this case will not need corroboration.
[19] See State v. Vandebogart, ___ N.H. ___, ___-___, 616 A.2d 483, 493-94 (N.H.1992) (holding that trial court erred in admitting population frequency estimates used by FBI since such statistical techniques are not generally accepted among population geneticists because of the debate regarding population substructure).
[20] The Committee has voiced serious concern about privacy rights which state legislation has failed to address. It notes that DNA data banks have the ability to point not just to individuals but to entire families including relatives who have committed no crime (NRC REPORT, 87) and that there is greater likelihood that information on minority-group members such as Blacks and Hispanics will be stored or accessed. NRC REPORT, 25.
In this jurisdiction the daily press has reported that the National Institutes of Health has suspended funding for a conference at a local university until its organizers can reshape the program to make it clear that NIH does not advocate a genetic explanation for crime. See Lynne Duke, Controversy Flares Over Crime, Heredity, WASHINGTON POST, Aug. 19, 1992, at A4; Samuel Francis, Genes, Crime and Freedom, THE WASHINGTON TIMES, Sept. 22, 1992, at F1, F4. The African-American oriented press has broached the subject of "eugenics." See Alexander B. Jones, THE WASHINGTON NEW OBSERVER, Sept. 19, 1992, at 5; Tony Brown's Comments, THE WASHINGTON NEW OBSERVER, Sept. 26, 1992, at 2.
[21] Professor Tribe has expressed his concern thusly:
Although the mathematical or pseudomathematical devices which a society embraces to rationalize its systems for adjudication may be quite comprehensible to a student of that society's customs and culture, those devices may nonetheless operate to distort and, in some instances, to destroy important values which that society means to express or to pursue through the conduct of legal trials.
HARV.L.REV. at 1330. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262059/ | 900 F.Supp. 515 (1995)
COMSAT CORPORATION, Plaintiff,
v.
FINSHIPYARDS S.A.M., et al., Defendants.
Civ. No. 94-0165 PLF.
United States District Court, District of Columbia.
September 15, 1995.
*516 *517 *518 Andrew N. Vollmer, Marc R. Cohen, Washington, DC, for plaintiff.
Jack P. Janetatos, Stuart M. Weitz, Washington, DC, for defendants.
OPINION
PAUL L. FRIEDMAN, District Judge.
COMSAT Corporation is an American telecommunications provider that carried long distance telephone calls placed from the Republic of Zaire by Mobutu Sese Seko Kuku Ngbendu Wa Za Banga, the President of Zaire, and by others in Zaire to various places around the world. It sued President Mobutu in his personal capacity and the Republic of Zaire because, COMSAT contends, they have not paid their phone bills. COMSAT also names Finshipyards S.A.M. as a defendant because Finshipyards was responsible for receiving and forwarding COMSAT's invoices to the Zaire defendants and for remitting payment to COMSAT. Finshipyards, a company formed in Monaco and maintaining its principal place of business there, has moved to dismiss this action as to itself on the grounds that the Court lacks personal jurisdiction over it. The Court finds that it does not have jurisdiction over Finshipyards and that COMSAT therefore must seek relief against Finshipyards in another forum.
I. BACKGROUND
COMSAT Corporation is a private entity, incorporated and, at the time of the events underlying this dispute, maintaining its principal place of business in the District of Columbia. It was created under federal law to, among other things, operate a commercial communications satellite system. 47 U.S.C. §§ 731, 735. COMSAT is the United States' sole representative to the International Maritime Satellite Organization ("Inmarsat").
Inmarsat is an international organization established pursuant to the Inmarsat Convention, opened for signature, September 3, 1976, 31 U.S.T. 1. Inmarsat owns, leases and operates telecommunications satellites that permit users to communicate with other persons anywhere in the world. Satellite capacity is made available through private entities such as COMSAT and national telecommunications administrations that own or operate land earth stations ("LESs") capable of sending and receiving signals to and from Inmarsat satellites and connected to terrestrial telecommunications systems. COMSAT is the sole United States' entity authorized by federal law to participate in Inmarsat, for the purpose of providing satellite telecommunications services to users. 47 U.S.C. § 752(a)(1). It owns three LESs located in Connecticut, California and Turkey and charges users for telecommunications services at rates filed with the Federal Communications Commission.
Potential users of the Inmarsat system must commission a mobile earth station ("MES") or terminal which can transmit and receive telecommunications signals directly to and from the Inmarsat satellite.[1] Commissioning such a terminal requires the completion of a Commissioning Application and the appointment of an Accounting Authority. By signing the Application, the applicant agrees to the obligation to pay without delay the charges set by the LES operator for the services provided. The Accounting Authority must be licensed by a member state of the International Telecommunications Union *519 ("ITU"), a United Nations agency. It is expected to receive and pay bills issued by the LES operators and collect payment for the telecommunications services from the terminal owner-operators.
Zaire has commissioned Inmarsat terminals since approximately 1986. In 1988 Finshipyards, which is licensed by Monaco to act as an accounting authority, was appointed to act as Accounting Authority in connection with the Zaire terminals. Under the agreement between Zaire and Finshipyards, in return for its services as Accounting Authority Finshipyards was to receive a commission from Zaire on the amounts paid to Inmarsat LES operators.
The Zaire terminals received telecommunications services from COMSAT LESs in Connecticut, California and Turkey for calls made to Washington, D.C., other parts of the United States and other parts of the world from approximately March 1989 through June 1993. COMSAT sent invoices from its offices in Washington, D.C., to Finshipyards in Monaco for the telephone calls placed from the Zaire terminals and instructed Finshipyards to pay by check to COMSAT in Charlotte, North Carolina, or by transferring funds to a COMSAT bank account in New York City. The invoices also directed that billing inquiries were to be addressed to COMSAT's Washington offices. Finshipyards always made payment by transferring funds to the COMSAT bank account in New York. It paid every COMSAT invoice for service to Zaire terminals from March 1989 to November 1991.
Between January 1990 and May 1993, COMSAT personnel in Washington, D.C., communicated with Finshipyards to complain about late payment or non-payment of Zaire terminals' invoices. Finshipyards responded to these communications and, plaintiff alleges, made representations regarding its intention to pay these invoices. In response to its own difficulty in collecting payment from Zaire, sometime in 1992 Finshipyards sent out a document to the LES operators from whom it had received invoices, including COMSAT in Washington, D.C., indicating that they should bar all calls originating from the Zaire terminals. In November 1992, COMSAT suspended service to certain Zaire terminals and met with Zaire's Ambassador to the United States to demand payment.
COMSAT has brought this action, claiming that Finshipyards was a principal participant in the telecommunication transactions for which COMSAT has not yet received payment and that Finshipyards owes COMSAT for those telecommunications services despite the fact that Finshipyards may not yet have collected payment from the Zaire terminals. COMSAT alleges breach of implied contract by Finshipyards, seeks payment of account stated, and claims that Finshipyards violated the Communications Act, 47 U.S.C. § 203(a).[2] Finshipyards has moved to dismiss COMSAT's complaint for lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and for failure to state a claim under the Communications Act. The Court heard oral argument on Finshipyards' motion. For the reasons stated below, the Court finds that it lacks jurisdiction over defendant Finshipyards and dismisses this action.
II. DISCUSSION
A federal court may exercise personal jurisdiction over a non-resident defendant only when service of process is authorized by statute and only when consistent with due process of law. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Founding Church of Scientology of Washington, D.C. v. Verlag, 536 F.2d 429, 432 (D.C.Cir.1976). In this federal question case, the Court first must look to the District of Columbia long-arm *520 statute to determine whether it has personal jurisdiction. Edmond v. United States Postal Service General Counsel, 949 F.2d 415, 424 (D.C.Cir.1991). If that analysis demonstrates that the defendant would not be subject to the jurisdiction of the District of Columbia courts, the Court may look to Rule 4(k), Fed.R.Civ.P., which may permit a more expansive jurisdictional analysis.
A. District of Columbia Long-Arm Statute
Under the District of Columbia long-arm statute, a plaintiff has the burden of establishing that personal jurisdiction exists by demonstrating a factual basis for the exercise of such jurisdiction over the defendant. Edmond v. United States Postal Service General Counsel, 949 F.2d at 424; Crane v. New York Zoological Soc., 894 F.2d 454, 456 (D.C.Cir.1990); Dooley v. United Technologies Corp., 786 F.Supp. 65, 70 (D.D.C.1992). While the long-arm statute is interpreted broadly and factual disputes are resolved in favor of the plaintiff, the plaintiff must allege some specific facts evidencing purposeful activity by the defendant in the District of Columbia by which it invoked the benefits and protections of the District's laws. Edmond v. United States Postal Service General Counsel, 949 F.2d at 428; First Chicago Int'l v. United Exchange Co. Ltd., 836 F.2d 1375, 1378-79 (D.C.Cir.1988); Mitchell Energy Corp. v. Mary Helen Coal Co. Inc., 524 F.Supp. 558, 563 (D.D.C.1981); Meyers v. Smith, 460 F.Supp. 621, 622 (D.D.C.1978).
In this case, plaintiff relies on both the "transacting business" and "contracting to supply services" provisions of the District of Columbia long-arm statute, D.C.Code §§ 13-423(a)(1) and (2).[3] Because a court in the District may exercise jurisdiction over a non-resident defendant "only [for] a claim for relief arising from the specific acts enumerated in [the statute] ...," D.C.Code § 13-423(b), plaintiff's jurisdictional allegations must arise from the same conduct of which the plaintiff complains. Willis v. Willis, 655 F.2d 1333, 1336 (D.C.Cir.1981); Dooley v. United Technologies Corp., 786 F.Supp. at 71; LaBrier v. A.H. Robins Co., Inc., 551 F.Supp. 53 (D.D.C.1982).
1. Transacting Business
The "transacting business" provision of the District of Columbia long-arm statute permits the exercise of personal jurisdiction to the full extent permitted by the Due Process Clause of the Constitution. First Chicago Int'l v. United Exchange Co. Ltd., 836 F.2d at 1377; Environmental Research Int'l, Inc. v. Lockwood Greene Eng'rs, Inc., 355 A.2d 808, 810-811 (D.C.1976) (en banc). The constitutional touchstone of the due process determination is "whether the defendant purposefully established minimum contacts in the forum state." Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 108-09, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987) (internal citations and emphasis omitted).
The Supreme Court recognized in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), that in today's commercial world, business is often transacted solely by mail and wire communications across state lines and that jurisdiction may sometimes exist even if a defendant "did not physically enter the forum state." Id. at 476, 105 S.Ct. at 2184. The Court explained that in such cases it is necessary to determine whether the commercial actor that is the subject of the lawsuit purposefully availed itself of the privilege of conducting business in the forum state and whether the defendant's conduct in connection with that state is such that it "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The minimum contacts analysis embodies the basic notion that the defendant's *521 own action must be such as to put it on notice of the possibility of defending itself in the forum state. Id. at 298, 100 S.Ct. at 567-68; Chung v. NANA Development Corp., 783 F.2d 1124, 1127 (4th Cir.), cert. denied, 479 U.S. 948, 107 S.Ct. 431, 93 L.Ed.2d 381 (1986); Bueno v. La Compania Peruana de Radiodifusion, S.A., 375 A.2d 6, 8-9 (D.C. 1977). The Constitution does not permit a defendant to be haled into court in a jurisdiction "solely as a result of `random,' `fortuitous,' or other `attenuated' contacts ... or of the `unilateral activity of another party or third person'...." Burger King Corp. v. Rudzewicz, 471 U.S. at 475, 105 S.Ct. at 2183 (citations omitted).
To establish personal jurisdiction under the "transacting business" clause of the long-arm statute, D.C.Code § 13-423(a)(1), a plaintiff must demonstrate that (1) the defendant transacted business in the District; (2) the claim arose from the business transacted in the District (so-called specific jurisdiction); (3) the defendant had minimum contacts with the District; and (4) the Court's exercise of personal jurisdiction would not offend "traditional notions of fair play and substantial justice." Dooley v. United Technologies, 786 F.Supp. at 71. In a case such as this one, the long-arm statute analysis is subsumed by the due process analysis expressed in the third and fourth prongs. Fisher v. Bander, 519 A.2d 162, 163 (D.C.1986).
Plaintiff has not suggested that Finshipyards or any agent of Finshipyards is resident in the District of Columbia or has ever entered the District for the purpose of transacting business with COMSAT related to the Zaire terminals transactions. Plaintiff relies on Finshipyards' alleged awareness that COMSAT was located in the District of Columbia when it accepted appointment as Zaire's Accounting Authority, Finshipyards' entitlement to commissions for processing the Zairean account, COMSAT's services related to the Zairean account, telephone and fax communications between COMSAT and Finshipyards regarding unpaid invoices, and Finshipyards' agreements that it would pay certain amounts due.
The first factor on which plaintiff relies is Finshipyards' awareness that COMSAT was located in the District of Columbia when it accepted appointment as Zaire's Accounting Authority. Plaintiff argues that COMSAT is one of only six major LES operators and that Finshipyards knew, before it began operating as Accounting Authority for Zaire, that it would have regular, continuous and extensive contacts with the major LES operators, including COMSAT. Plaintiff relies on Burger King Corp. v. Rudzewicz where the Supreme Court explained that "parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities." Burger King Corp. v. Rudzewicz, 471 U.S. at 473, 105 S.Ct. at 2182 (internal citations omitted).
In Burger King, the relationship between the plaintiff and Burger King was based on a written contract which contemplated "a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts with Burger King in Florida," and the franchisee voluntarily accepted "the long-term and exacting regulation of his business from Burger King's Miami headquarters." Burger King Corp. v. Rudzewicz, 471 U.S. at 480, 105 S.Ct. at 2186. As a result, the Supreme Court concluded that Rudzewicz purposefully availed himself of the privilege of conducting activities in Florida and "the `quality and nature' of his relationship to the company in Florida could in no sense be viewed as `random,' `fortuitous,' or `attenuated'." Id. at 475, 480, 105 S.Ct. at 2183, 2186.
The contact between Finshipyards and the District of Columbia, while occurring regularly over a period of time, is a far cry from that between Mr. Rudzewicz and Florida. The particular LES that receives the signal from the Inmarsat satellite system is determined either by the user, who may designate a particular LES, or by the orientation of the terminal's antenna because of a previously designated LES. Complaint at ¶ 24. Plaintiff concedes in its complaint that "[t]he Zaire Users specified COMSAT LESs for each call that is the subject of this Complaint." Complaint ¶ 32(a) (emphasis added). Finshipyards had nothing to do with that *522 choice. While it is likely that Finshipyards was aware that Zaire's telephone calls could be transmitted to COMSAT LESs, the mere "foreseeability of an injury in a distant forum is not the touchstone of minimum contacts." Chung v. NANA Development Corp., 783 F.2d at 1128. It was the unilateral decision by the Zaire users, without any effort or encouragement by Finshipyards, that led to the telecommunications signals being directed toward COMSAT. Cf. Chery v. Bowman, 901 F.2d 1053, 1058 (11th Cir.1990). Such unilateral activity by persons other than the defendant are insufficient to provide jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 298, 100 S.Ct. at 567-68; Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 375-76 (8th Cir. 1990).
The law firm billing cases cited by plaintiff are inapposite. In those cases the non-resident defendant either specifically sought out legal services from a District of Columbia law firm and visited and communicated with the law firm in the District in order to establish the relationship or sent an attorney into the District in order to obtain legal services there. See Koteen v. Bermuda Cablevision, Ltd., 913 F.2d 973 (D.C.Cir.1990); Fisher v. Bander, 519 A.2d 162, 164-65 (D.C.1986); Hummel v. Koehler, 458 A.2d 1187 (D.C. 1983); Rose v. Silver, 394 A.2d 1368 (D.C. 1978). Plaintiff also relies on Cohane v. Arpeja-California, Inc., 385 A.2d 153, 158 (D.C.), cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978), but in that case the non-resident defendant was being sued by a salesman whom the defendant had contracted with to enter the District in order to solicit sales. The subject matter of that suit concerned commissions arising at least in part out of those sales in the District. The non-resident defendant in Cohane clearly sought out contact with the District of Columbia when it specifically endeavored to make sales in the District.
Plaintiff's second theory is that Finshipyards' contractual relationship with Zaire, which entitled Finshipyards to commissions for processing the Zairean account, is relevant to the jurisdictional inquiry. The Court finds the connection between the economic benefit contracted for and received by Finshipyards and the District of Columbia too attenuated to provide a basis for jurisdiction here. The benefit did not arise out of Finshipyards' activities in the District; it arose from Zaire's use of COMSAT LESs in Connecticut, California and Turkey. See Bueno v. La Compania Peruana de Radiodifusion, S.A., 375 A.2d at 8-9. The argument that jurisdiction over Finshipyards can be derived from its agreement with Zaire fails because no facts suggest that Finshipyards' involvement with Zaire was purposely directed toward the District of Columbia. See Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 946-47 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1103, 130 L.Ed.2d 1070 (1995). As noted above, the "unilateral activity of another party or third person" is not a sufficient basis for establishing minimum contacts. Burger King Corp. v. Rudzewicz, 471 U.S. at 475, 105 S.Ct. at 2183.
Plaintiff points out that as a result of Zaire's use of COMSAT LESs, Finshipyards received monthly invoices from COMSAT for Zaire's phone charges that reflected COMSAT's Washington, D.C., address. Finshipyards processed those invoices and paid COMSAT monthly, by wire transfer to New York State. Throughout the entire period COMSAT's principal place of business was Washington, D.C.
To be sure, COMSAT did conduct business, including billing for Zaire's telecommunications service, in the District of Columbia. Those activities, however, were related to its supplying telecommunications service to Zaire, not for the provision of any services to Finshipyards or receipt of services from Finshipyards. Even if these administrative services could be construed to have been performed for the benefit of Finshipyards, they were not integral to Finshipyards' operations in a way that would be necessary to show that Finshipyards purposely availed itself of the privilege of doing business in the District of Columbia. See Health Communications, Inc. v. Mariner Corp., 860 F.2d 460, 464 (D.C.Cir.1988); United States v. Ferrara, 54 F.3d 825, 830 (D.C.Cir.1995). "A plaintiff may not ... depend upon his own activity to establish the existence of minimum contacts; *523 the defendant must in some way have voluntarily and purposefully availed himself of the protection of the forum state's laws." Reiman v. First Union Real Estate Equity & Mortgage, 614 F.Supp. 255, 257 (D.D.C.1985); Environmental Research Int'l, Inc. v. Lockwood Greene Engrs., Inc., 355 A.2d at 812 (rejecting argument that activities performed by the plaintiff for the benefit of the defendant could constitute a basis for personal jurisdiction in the District of Columbia).
Nor are the limited fax and telephone communications between COMSAT's office in Washington, D.C., and Finshipyards, including some which were initiated by Finshipyards, sufficient to demonstrate that Finshipyards purposely availed itself of the privilege of transacting business in the District of Columbia. While these contacts were in part by mail and wire into the District of Columbia, the fact that Finshipyards was required to communicate with COMSAT at its offices in the District of Columbia regarding invoices has not been shown to arise out of any desire of Finshipyards to do business with COMSAT in Washington, D.C. Nor did it establish the minimum contacts that would put the defendant on notice of the possibility of being haled into court here.
The first fax communication cited by COMSAT that came from Finshipyards concerned a statement of account provided by COMSAT that was missing a particular invoice. COMSAT then sent that invoice by fax to Finshipyards. Declaration of John Strand ¶ 19. The sole purpose of the communications regarding the missing invoice was to correct a mistake apparently of COMSAT's own making. These communications do not evidence any purpose on the part of Finshipyards to do business in the District of Columbia. See Jadair, Inc. v. Walt Keeler Co., Inc., 679 F.2d 131, 134 (7th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 258, 74 L.Ed.2d 201 (1982); United States v. Ferrara, 54 F.3d at 831 (a "single, responsive mailing cannot constitute the `meaningful' contact or `substantial connection' between the defendant and the forum state.") (internal citations omitted).
The second contact occurred that same day when an unidentified person at Finshipyards allegedly telephoned an unidentified person at COMSAT to indicate when it would remit payment for certain bills. Strand Decl. ¶ 18. This contact, even if substantiated, is simply not very substantial and is no evidence of any intent on the part of Finshipyards to do business in the District of Columbia. Moreover, "[i]f a party's slightest gesture of accommodation were to impose personal jurisdiction, commercial dealings would soon turn unobliging and brusque." Chung v. NANA Development Corp., 783 F.2d at 1129.
Plaintiff maintains that after Zaire stopped paying its bills in a timely fashion Finshipyards entered into agreements with COMSAT to pay certain amounts due. COMSAT cites one fax sent by Finshipyards informing LES operators from whom it received bills to bar telephone calls originating from the Zaire terminals. The fax to LES operators is a specific contact between Finshipyards and the District of Columbia, but it is not a contact made in order to conduct business with or related to the transaction of business between COMSAT and Finshipyards. The fax relates to business between Finshipyards and Zaire. As discussed above, that relationship was not purposely directed towards the District of Columbia by Finshipyards.
Having found plaintiff's other theories legally insufficient to establish minimum contacts, the Court is left to consider plaintiff's allegations regarding eight additional communications between itself and Finshipyards. Because plaintiff has not identified who initiated the contacts, when they were made, and for what purpose, the Court has no basis on which to judge whether these alleged communications could constitute purposeful availment of the privilege of doing business in the District of Columbia. The fact that mail and wire communications may have occurred between COMSAT in the District of Columbia and Finshipyards does not, standing alone, provide a basis for jurisdiction, however. See, e.g., Health Communications, Inc. v. Mariner Corp., 860 F.2d at 461. In the face of COMSAT's lack of specificity, even in the aggregate these fax and telephone communications with the District of Columbia forum do not manifest the deliberate and voluntary association with the District *524 of Columbia that is necessary to invoke the jurisdiction of this Court. See Bank of Cape Verde v. Bronson, 869 F.Supp. 21 (D.D.C.1994); see also Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1076-77 (10th Cir.1995).[4]
2. Contracting to Supply Services
With respect to its implied contract claim, COMSAT argues that Finshipyards is subject to jurisdiction under the "contracting to supply services" provision of the District of Columbia long-arm statute. D.C.Code § 13-423(a)(2). COMSAT rests this argument on the allegation that COMSAT provided services to and for the benefit of Finshipyards and that International Telecommunications Regulations ("ITRs") oblige Finshipyards to pay COMSAT despite the fact that Zaire might not have paid Finshipyards.
The case law interpreting the "contracting to supply services" provision of the District of Columbia long-arm statute is sparse. The minimum contacts analysis above may alone command the finding that the "contracting to supply services" provision of the statute fails to provide a basis for jurisdiction on the facts alleged in this case.
In addition, the Court finds that the "contracting to supply services" provision, by its own terms, would not cover Finshipyards' conduct because it only applies to a non-resident who injects itself into the District by agreeing to provide some service to the resident in the District. See Textile Museum v. F. Eberstadt & Co., Inc., 440 F.Supp. 30, 32, 33 (D.D.C.1977). Finshipyards has not done so here and COMSAT's own activities in the District are irrelevant.
The mere existence of a contract between a non-resident and a resident is not a sufficient basis on which to claim jurisdiction over the non-resident in the District of Columbia. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Willis v. Willis, 655 F.2d at 1338. The Court must consider the terms of the alleged implied contract and whether the implied contract obligates Finshipyards to provide services in the District of Columbia. In this case, the contract was neither made nor performed in the District, and no services were provided or to be provided here.
Plaintiff argues that, under the implied contract resulting from Finshipyards' agreement to comply with the ITRs, Finshipyards is obligated to pay COMSAT for telecommunications charges incurred by Finshipyards' client regardless of whether the client has paid Finshipyards. The ITRs referenced by plaintiff provide:
4.1 All international ... telecommunications accounts shall be paid by the accounting authority without delay and in any case within six calendar months after dispatch of the account....
4.2 If international ... telecommunications accounts remain unpaid after six calendar months, the administration that has licensed the mobile station shall, on request, take all possible steps, within the limits of the applicable national law, to ensure settlement of the accounts from the licensee.
The clear meaning of these regulations is that if accounts are not paid within six months of receipt, the administration that licensed the mobile earth station is responsible for assuring that the licensee, in this case the Zaire defendants, pays its accounts. See also Administration of Accounting Authorities *525 on Maritime Mobile and Maritime Mobile Satellite Radio Services, 58 Fed.Reg. 68,373 (1993) (proposed regulations). Finshipyards neither licensed nor is the licensee of Zaire's mobile earth station. Thus Finshipyards did not agree to take ultimate responsibility for paying telecommunications charges incurred by the Zaire defendants simply by agreeing to comply with the ITRs. Finshipyards has not contracted to supply services in the District of Columbia.[5]
B. The Communications Act and Rule 4(k), Fed.R.Civ.P.
COMSAT argues that jurisdiction is saved by a new provision to the Federal Rules of Civil Procedure which authorizes service of process (1) with respect to claims arising under federal law, (2) "[i]f the exercise of jurisdiction is consistent with the Constitution and Laws of the United States" and (3) the defendant "is not subject to the jurisdiction of the courts of general jurisdiction of any state." Fed.R.Civ.P. 4(k)(2). If personal jurisdiction is established under Rule 4(k), the Court could decide to exercise supplemental jurisdiction over plaintiff's non-federal claims against Finshipyards. 28 U.S.C. § 1367.
"Rule 4(k)(2) only provides federal courts with personal jurisdiction over a foreign defendant in federal question cases and only if the foreign defendant has sufficient contacts with the United States to satisfy due process requirements." Eskofot A/S v. E.I. Du Pont de Nemours & Co., 872 F.Supp. 81, 87 (S.D.N.Y.1995). There is no need in this case to determine whether Finshipyards has sufficient minimum contacts with the United States because the Court concludes that COMSAT has failed to state a federal claim under the Communications Act of 1934, 47 U.S.C. § 203.
Section 203 of the Communications Act requires common carriers to file with the Federal Communications Commission a tariff of the rates charged for its services. 47 U.S.C. § 203(a). That tariff sets the terms of the contract between the carrier and the purchaser of telecommunications services. MCI Telecommunications Corp. v. TCI Mail, Inc., 772 F.Supp. 64, 66 (D.R.I.1991). Several courts have held that an action by a carrier against its customer to collect unpaid telecommunications charges states a claim under section 203. MCI Telecommunications Corp. v. Graham, 7 F.3d 477, 479 (6th Cir.1993); MCI Telecommunications Corp. v. Garden State Inv. Corp., 981 F.2d 385 (8th Cir.1992); Ivy Broadcasting Co. v. AT & T Co., 391 F.2d 486 (2d Cir.1968). These courts have reasoned that the Communications Act created federal rights and obligations, wholly apart from any contract to pay certain prices for phone service. By contrast, in MCI Telecommunications v. Credit Builders, 980 F.2d 1021 (5th Cir.), cert. granted and judgment vacated to consider mootness, ___ U.S. ___, 113 S.Ct. 2925, 124 L.Ed.2d 676 (1993), the Fifth Circuit held that a carrier of telecommunications services was limited to a state law contract or quantum meruit action and that no federal claim exists under section 203. The District of Columbia Circuit has not had occasion to address whether such a federal claim exists.
Even if such a federal claim exists, however, the Court is persuaded by defendant's argument that the cause of action would lie only against the user of the carrier's services. Section 203 imposes a responsibility for payment of charges outlined in the filed tariff. The "charges" are defined to include "charges for, or services in connection with, the use of common carrier lines of communication...." 47 U.S.C. § 202(b). COMSAT has not alleged that Finshipyards ever made use of its telecommunications services or telecommunications lines. Nor, as explained above, has COMSAT established that Finshipyards is the party responsible for paying the charges incurred by Zaire. Count VII of *526 COMSAT's complaint therefore fails to state a claim for relief and must be dismissed.
III. CONCLUSION
For the reasons stated above, the Court concludes that it lacks personal jurisdiction over Finshipyards. An Order consistent with this Opinion is entered this same day.
ORDER
For the reasons stated in the Opinion issued this same day, it is hereby
ORDERED that defendant Finshipyards' Motion To Dismiss is GRANTED; and it is
FURTHER ORDERED that Counts I, V and VII of COMSAT's Complaint are DISMISSED insofar as they relate to Finshipyards.
SO ORDERED.
NOTES
[1] Users of the Inmarsat system initiate calls at their terminal. These calls are transmitted directly to the Inmarsat satellite from which they are retransmitted to a LES. The particular LES that receives the signal is determined either by the user, who may designate a particular LES, or by the orientation of the terminal's antenna because of a previously designated LES. After reaching the LES, the telephone signal is then retransmitted to terrestrial telephone lines.
[2] COMSAT has also brought claims against the Republic of Zaire and President Mobutu of Zaire, who is sued solely in his personal capacity, alleging breach of implied contract, unjust enrichment, third party beneficiary and violation of the Communications Act. These parties have not appeared in this action. COMSAT has moved for a default judgment against Zaire and intends to do the same with respect to President Mobutu. Having concluded that COMSAT has satisfied all the requirements of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., and Rule 55(e), Fed.R.Civ.P., on September 13, 1995, this Court entered a Final Judgment for COMSAT against Zaire in the amount of $2,584,895.34.
[3] The District of Columbia long-arm statute provides in pertinent part:
A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia; ...
D.C.Code § 13-423(a).
[4] COMSAT requests the opportunity to take discovery concerning the contacts Finshipyards had with the District of Columbia related to this dispute. A District court has discretion whether to hold in abeyance a decision on a motion to dismiss for lack of personal jurisdiction to enable a party to conduct discovery. 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1351, at 253-59 (2d ed. 1990). See Edmond v. United States Postal General Counsel, 949 F.2d at 425; Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir.1983). In this case discovery is not reasonably necessary to establish jurisdiction. See Crane v. Carr, 814 F.2d 758, 760 n. 2 (D.C.Cir.1987). The identity of the persons who took part in the eight communications as well as the purpose of the communications is the sort of information within the knowledge of COMSAT, and jurisdictional discovery would not help COMSAT to learn anything new. In the absence of any showing (let alone a prima facie showing) that the Court has personal jurisdiction over Finshipyards, it would be inappropriate to subject Finshipyards to the burden and expense of discovery. The request for discovery is denied.
[5] COMSAT seeks discovery related to the implied contract issue and has particularly requested an opportunity to depose Mr. Camoletto on Finshipyards' "belief" that it is not liable under the ITRs to pay the charges for which Zaire has not yet paid it. Because plaintiffs rely on the ITRs to provide the essential terms of the implied contract and the Court is capable of interpreting the meaning of those terms so long as they are not ambiguous, the requested discovery would be of minimal significance. The request is denied. See note 4 supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262064/ | 900 F.Supp. 706 (1995)
Aaron FRITH, Plaintiff,
v.
GALETON AREA SCHOOL DISTRICT, et al., Defendants.
No. 3:CV-92-1877.
United States District Court, M.D. Pennsylvania.
September 20, 1995.
*707 Stephen L. Axelrod, Susan B. Bolno, Philadelphia, PA, for plaintiff.
Robert F. Cox, Cox & Cox, Wellsboro, PA, Allan D. Goulding, Rosemary E. Mullaly, Curtin & Heefner, Doylestown, PA, for defendants Seneca Highlands Intermediate Unit and the Galeton defendants.
Louis A. Bove, Swartz, Campbell & Detwiler, Philadelphia, PA, for Coudersport defendants.
MEMORANDUM
McCLURE, District Judge.
BACKGROUND:
Plaintiff Aaron Frith alleges in this civil rights action[1] that his constitutional rights were violated by defendants' failure to place him in an appropriate educational program to address problems stemming, directly or indirectly, from his medical condition. Plaintiff was diagnosed in the eighth grade as suffering from Tourette's syndrome, a disorder of the nervous system characterized by tics: rapid, involuntary, sudden movements, sounds and other behaviors beyond the control of the individual. This behavior sometimes takes the form of socially-unacceptable comments, such as racial epithets and four-letter words. Such comments are also involuntary.[2]
*708 Plaintiff attended the Galeton Elementary School from kindergarten through eighth grade. Prior to his admission to kindergarten, plaintiff was referred for psychological testing by Galeton School Superintendent Frank Flamish, Jr. and Principal Mack Grant to Charles Cole Memorial Hospital and Community Mental Health Center. A report generated by psychologist Jane Wingo diagnosed plaintiff as exhibiting numerous "neurological soft signs including awkwardness, disturbances of balance, hyperkinesis, motor overflow, problems with fine motor coordination and defective speech." Plaintiff was observed as exhibiting other unusual and inappropriate behavior.
Plaintiff continued to exhibit this behavior throughout his elementary education at Galeton. While enrolled at Galeton, plaintiff was, from time to time, referred for testing to determine the cause of the disruptive behavior he exhibited in the classroom. Plaintiff was referred by school officials to Cole Memorial Hospital where he was seen by Dr. Jack Goga and Widad Bazzoui, M.D. Plaintiff alleges that the doctors who saw him at Cole Memorial negligently failed to diagnosis his condition as Tourette's syndrome and prescribe an appropriate course of treatment.
Plaintiff alleges that as a result of the actions of the Galeton school officials and the Cole Memorial medical personnel named in this action, he was unable to complete his high school education, was forced to miss one and one-half years of school, was not properly educated and had the maturity level of a twelve or thirteen year old, despite testing indicating that he has a high I.Q.
Plaintiff left the Galeton school system at the end of the seventh grade and began attending the Coudersport Junior/Senior High School in Coudersport, Pennsylvania. As a result of his previous bad experiences, plaintiff became very fearful of school. In January, 1987, Dr. Bazzoui recommended that plaintiff be institutionalized. Plaintiff's mother, Beverly Frith, decided to have his condition evaluated by another psychologist, Penny Miller, Ph.D. Dr. Miller made a provisional diagnosis of Tourette's syndrome on plaintiff's second visit, which diagnosis was subsequently confirmed, on March 19, 1987, by Dr. C. Berlin at the Hershey Medical Center. Plaintiff was then placed on medication which greatly benefitted him and markedly decreased his symptoms. Plaintiff remained, however, very fearful of school because of his prior experiences.
Plaintiff was enrolled as a student at the Coudersport Junior/Senior High School from September 1987, to January, 1991. Plaintiff alleges that defendants failed to take steps reasonably necessary to identify him as an exceptional child consistent with federal and state law. He further alleges that he was assigned to homebound instruction, a form of special education, without the benefit of the procedural safeguards to which he was entitled under the law. In 1991, plaintiff was unlawfully dismissed from school and thereby denied the opportunity to complete his education.
Plaintiff, who was born May 5, 1973, brought this action, at age 19, for the alleged violation of his civil rights and his rights under federal statutory law by school officials and treating psychologists and psychiatrists.
Plaintiff brings this action against: the Seneca Highlands Intermediate Unit (the Seneca Highlands IU); the Galeton Area School District (Galeton); and the Coudersport Area School District (Coudersport) and employees and administrators of those entities with whom he and his parents interacted over the years. He also brings claims against the Department of Community Mental Health (DCMH); the Charles Cole Memorial Hospital (the hospital); Dr. Widad Bazzoui; and Dr. John Goga.
Initially, plaintiff alleged violations of his Fifth, Eighth and Fourteenth Amendment rights; the Civil Rights Act of 1981, 42 U.S.C. § 1983; the Education for the Handicapped Act (EHA) of 1975 (now the Individuals With Disability Education Act (IDEA) or the Act), 20 U.S.C. §§ 1401-1485; Section 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504); the Pennsylvania Constitution; Pennsylvania *709 regulatory and statutory law, and Pennsylvania common law.
Counts I, IV, V, VI and VIII of plaintiff's original complaint[3] were dismissed for failure to exhaust administrative remedies and/or for failure to state a cause of action. Plaintiff was granted leave to filed an amended complaint alleging facts demonstrating why the exhaustion requirement should be excused, if that is his contention.
Plaintiff's amended complaint asserts the following claims: 1) a civil rights claim against Galeton (Count I); 2) a negligence claim against Dr. Bazzoui, Dr. Gogh, the hospital and the Galeton defendants (Count II); 3) a malpractice claim against Dr. Bazzoui and Dr. Gogh, the hospital and the Department of Community of Mental Health (Count III); 4) a civil rights claim against Coudersport defendants and the Seneca Highlands IU (Count IV); 5) an EHA claim against Coudersport and Seneca Highlands IU (Count V); 6) a section 504 claim[4] against Coudersport and Seneca Highlands IU (Count VI); 7) state statutory law claims against Coudersport defendants and Seneca Highlands IU (Count VII); and 8) a claim for punitive damages against all defendants (Count VIII).
Defendants moved to dismiss the amended complaint. In an order dated January 12, 1995, this court granted defendants' Rule 12(b)(1)/12(b)(6) motions in part. Under the court's ruling, the claims which survived were:
Count I civil rights/IDEA claims asserted under section 1983 and grounded in the IDEA, and the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment[5] to the United States Constitution with demands for relief under the IDEA limited to claims for reimbursement or compensation for educational services necessary to make up for the deficiency in those provided by the defendants IDEA claims survive as against the school district and Seneca Highlands IU only, since for reasons explained in the prior memorandum of April 11, 1994, only those claims grounded in alleged noncompliance with the IDEA are viable. Only the school district, and possibly Seneca Highlands IU, have a legal duty to provide plaintiff with the rights accorded him under the IDEA.
Count II negligence claim survives against Drs. Bazzoui and Gogh, the Department of Community Mental Health, and Charles Cole Memorial Hospital only;
Count III malpractice claim survives against Drs. Bazzoui and Gogh, the Department of Community Mental Health, and Charles Cole Memorial Hospital only;
Count IV civil rights/IDEA claims asserted under section 1983 and grounded in the IDEA, and the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment[6] to the United States Constitution with demands for relief under the IDEA limited to claims for reimbursement or compensation for educational services necessary to make up for the deficiency in those provided by the defendants;
IDEA claims survive as against the school district and Seneca Highlands IU only, since for reasons explained in the prior memorandum of April 11, 1994, only those claims grounded in alleged noncompliance with the IDEA are viable. Only the school district, and possibly Seneca Highlands IU, have a legal duty to provide plaintiff with the rights accorded him under the IDEA.
Count V EHA claim survives as against Coudersport and Seneca Highlands IU only
Count VI Section 504 claim, Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794 *710 survives as against Coudersport and Seneca Highlands IU only;[7]
Count VII Claims arising out of state statutory and regulatory law None survives for reasons stated in the prior memorandum dated April 11, 1994.
Count VIII Claim for punitive damages survives as against all defendants
All claims identified above as surviving were stricken with prejudice, and all defendants who had not yet filed an answer to plaintiff's amended complaint were granted twenty days from the date of the court's memorandum to file the same.
The court's order and memorandum of January 12, 1995 generated the filing of the following: 1) a letter from counsel for the Coudersport defendants requesting that the January 12, 1995 order be vacated to allow the parties to supplement the record with information obtained in the course of discovery; and 2) a motion filed by plaintiff seeking additional time for the filing of a motion for reconsideration of the court's January 12, 1995 order.
On January 31, 1995, the court entered an order: 1) vacating in part the order dated January 12, 1995; 2) granting all parties additional time to supplement the record; 3) granting plaintiff's motion for an extension as moot; and 4) granting plaintiff's motion to compel the deposition of John Garman.
Under our order and memorandum of January 31, 1995, those claims dismissed with prejudice pursuant to the January 12, 1995 order on the ground that the remedies sought are unavailable to plaintiff, under existing law, remained dismissed with prejudice. Only those portions of the later order which dismissed, or declined to dismiss, claims on exhaustion grounds were vacated.
Both sides were given the promised opportunity to file supplemental briefs on the exhaustion issue. Supplemental briefs and other supporting documentation has been filed, and we are now in a position to rule on the outstanding motions.
Currently before the court are: 1) plaintiff's motion for reconsideration of the order filed January 12, 1995 (record document no. 88); 2) the Coudersport defendants' motion to dismiss plaintiff's amended complaint (record document no. 89); and 3) the Seneca Highlands IU and Galeton defendant's supplemental motion to dismiss the amended complaint (record document no. 91).
For the reasons which follow, we will enter an order: 1) denying as moot plaintiff's motion for reconsideration of the order dated January 12, 1995 (record document no. 88); 2) granting the motion to dismiss plaintiff's amended complaint filed by the Coudersport defendants (record document no. 89); and 3) granting the motion to dismiss plaintiff's amended complaint filed by the Seneca Highland IU and the Galeton defendants (record document no. 91). Only the claims asserted against Dr. Bazzoui, Dr. Gogh, the hospital and the Department of Community of Mental Health (Counts II and III) remain.
DISCUSSION
Proof that exhaustion requirement has been met
Courts have uniformly held that plaintiffs are precluded from seeking relief in state or federal court under the IDEA or section 1983 until they have exhausted their administrative remedies. See, e.g., Christopher W. v. Portsmouth School Committee, 877 F.2d 1089, 1093-94 (1st Cir.1989) and Stauffer by DeMarco v. William Penn School District, 829 F.Supp. 742, 748 (E.D.Pa.1993). "EHA exhaustion must occur *711 before plaintiffs may file an action under any other federal law seeking relief that is also available under the EHA." Waterman v. Marquette-Alger Intermediate School District, 739 F.Supp. 361, 365 (M.D.Mich.1990), and Hayes v. Unified School District No. 377, 877 F.2d 809, 812 (10th Cir.1989). Failure to exhaust administrative remedies is grounds for dismissal of the complaint on a Rule 12(b)(6) motion. Gardner v. School Board Caddo Parish, 958 F.2d 108, 111-12 (5th Cir.1992).
For the reasons discussed previously, the viability of plaintiff's claims asserted under the IDEA, section 504 and section 1983 against all defendants, the only federal claims asserted, all turn on the question of whether he can demonstrate that he qualifies for an exemption from the administrative exhaustion requirement.
Although the policy of requiring exhaustion of administrative remedies is "a strong one, some exceptions have been recognized." Komninos v. Upper Saddle River Board of Education, 13 F.3d 775, 778 (3d Cir.1994). Recognized exceptions are: 1) a showing that the parents were unaware of their right of administrative appeal because the school district failed to notify them of their right to pursue an administrative remedy; 2) a showing that the administrative process would be futile or inadequate; 3) if the issue presented is purely a legal question; 4) a showing that the administrative agency cannot grant effective relief; or 5) if requiring exhaustion "would work `severe or irreparable harm' upon a litigant." Id. See also: Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988); and Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990); and Gardner v. School Board Caddo Parish, 958 F.2d 108, 111-12 (5th Cir.1992).
Frith argues that he is exempt from the exhaustion requirement because his parents never received proper notice of their due process right to challenge decisions made by the district and school administrators.
Notice requirements
Notice requirements are imposed pursuant to 20 U.S.C. § 1415(a), which provides:
Any State educational agency, any local educational agency, and any intermediate educational unit which receives assistance under this subchapter shall establish and maintain procedures in accordance with subsection (b) through subsection (e) of this section to assure that children with disabilities and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies and units.
Id.
Required procedures, set forth in 20 U.S.C. § 1415(b), include:
(A) an opportunity for the parents or guardian of a child with a disability to examine all relevant records with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child;
(B) procedures to protect the rights of the child whenever the parents or guardian of the child are not known, unavailable, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, local educational agency, or intermediate educational unit involved in the education or care of the child) to act as a surrogate for the parents or guardian;
....
and
(E) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.
(2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements *712 of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child.
Id.
Notice obligations on the part of the school district are triggered when or if the agency or unit
(i) proposes to initiate or change, or
(ii) refuses to initiate or change,
the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child.
20 U.S.C. § 1415(b)(1)(C).
Regulation section 300.504 elaborates on the requirements that notice be given:
(a) Notice. Written notice that meets the requirements of s 300.505 must be given to the parents of a child with a disability a reasonable time before the public agency
(1) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE[8] to the child; or
(2) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.
(b) Consent; procedures if a parent refuses consent.
(1) Parental consent must be obtained before
(i) Conducting a preplacement evaluation; and
(ii) Initial placement of a child with a disability in a program providing special education and related services.
(2) If State law requires parental consent before a child with a disability is evaluated or initially provided special education and related services, State procedures govern the public agency in overriding a parent's refusal to consent.
(3) If there is no State law requiring consent before a child with a disability is evaluated or initially provided special education and related services, the public agency may use the hearing procedures in §§ 300.506-300.508 to determine if the child may be evaluated or initially provided special education and related services without parental consent. If it does so and the hearing officer upholds the agency, the agency may evaluate or initially provide special education and related services to the child without the parent's consent, subject to the parent's rights under §§ 300.510-300.513.
(c) Additional State consent requirements. In addition to the parental consent requirements described in paragraph (b) of this section, a State may require parental consent for other services and activities under this part if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE.
34 C.F.R. § 300.504.[9]
The regulations require the district to send written notice to a child's parents before identifying, evaluating, or placing the child under the IDEA. Kroot v. District of Columbia, 800 F.Supp. 976, 982 (D.D.C. 1992), citing 34 C.F.R. § 300.504. See also: 34 C.F.R. § 300.505.
The purpose of requiring such notice is to ensure that parents receive sufficient information about where the agency proposes to place their child and why that placement was chosen, so that parents may reach an informed conclusion about whether the placement will provide an appropriate education. The information in the notice, along with the IEP, the MDT Report, and all other information the agency has provided to the parents, should enable them to decide whether to contest the *713 placement. If the notice provides such information, then it is sufficient.
Smith v. Squillacote, 800 F.Supp. 993, 998 (D.D.C.1992).
Consistent with these purposes, the courts have held that technical non-compliance with the notice provisions is not a violation of the Act if the parents had actual notice and were not deprived of any substantive right. See: Thomas v. Cincinnati Board of Education, 918 F.2d 618, 625 (6th Cir.1990) (Technical defects do not result in a violation of the IDEA if there is no substantive deprivation); Cordrey v. Euckert, 917 F.2d 1460, 1467 (6th Cir.1990), cert. denied, 499 U.S. 938, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991); Doe v. Defendant I, 898 F.2d 1186, 1190-91 (6th Cir.1990) (Technical defects are not sufficient to render the IEP inappropriate if the parents and district are aware of the relevant information.); Chuhran v. Walled Lake Consol. Schools, 839 F.Supp. 465 (E.D.Mich.1993), aff'd per curiam, 51 F.3d 271, 1995 WL 138882 (6th Cir.1995); Hiller v. Board of Education, 743 F.Supp. 958, 970 (N.D.N.Y.1990) (violation of notice requirements that does not prejudice child or parents need not result in conclusion that child had been denied "free appropriate education" under Act), and Max M. v. Illinois State Board of Education, 629 F.Supp. 1504, 1518 (N.D.Ill.1986). Cf. Jackson v. Franklin County School Board, 806 F.2d 623 (5th Cir. 1986); and Hall v. Vance County Board of Education, 774 F.2d 629, 635 (4th Cir.1985) (same); and Edwards-White v. District of Columbia, 785 F.Supp. 1022 (D.D.C.1992) (Parent's request for due process hearing constituted reasonable notice that parent was dissatisfied with school district's placement of her handicapped child, obligating school district under Education for All Handicapped Children Act to review and possibly revise child's individualized educational program.)
PLAINTIFF'S EDUCATIONAL HISTORY
Because the issues before us turn in part on what notice, if any, plaintiff's parents received from the school district, we begin by reviewing the history of the Friths' interactions with school district personnel and administrators over the years and the decisions made about plaintiff's education.
The years at Galeton
Plaintiff attended the Galeton schools from kindergarten through seventh grade. Although he exhibited unusual behaviors throughout his attendance there and even prior to his admission, and was referred for psychological testing a number of times, he was not diagnosed as suffering from Tourette's Syndrome while a student at Galeton.
An IEP prepared for him on February 1, 1980, when he was six years of age, stated: "Aaron will be in full-time regular education and attend speech correction services appropriate to need." (Garman deposition, exhibit no. 4) A second IEP prepared for Aaron on May 23, 1980, stated essentially the same thing. (Garman deposition, exhibit no. 7)
Standardized intelligence testing indicated that he was of average intelligence. He also received average grades until the seventh grade. In grades one through six, he received mostly "B's" and "C's" with the occasional "A." In the seventh grade, his grades plummeted. During that year, he received failing or incomplete grades in most subjects. (Garman deposition, exhibit no. 4) His behavior was viewed as a disciplinary problem, not a problem which required his placement in special education. (Garman deposition at pp. 41-50)
Aaron received in-school suspensions while at Galeton only in the seventh grade. That year he received in-school suspensions totalling less than nine days for disciplinary infractions. According to Garman, he was placed in a room adjacent to the school office while under such suspensions. Students were monitored by the school secretaries in the adjacent office. Students on suspension received the same work as their counterparts in class that day and were responsible for making-up the work they missed. Parents were routinely notified by telephone or by mail of such suspensions.
Throughout his attendance at the Galeton schools, plaintiff was classified throughout as a regular student. At no point while Aaron was a student at Galeton did his parents *714 request formal evaluation or formally protest decisions made about his academic career.
Galeton defendants' motion to dismiss
Plaintiff has produced nothing to justify his argument for exemption from the exhaustion requirement with respect to his claims against Galeton. He merely reasserts allegations from the complaint, which are not sufficient to rebut the extensive documentary and testimonial evidence submitted by defendants on this issue.
In our prior memorandum, we stated that if there were evidence that plaintiff was repeatedly separated from other students and placed in a room separate and apart from his classmates, as he alleges, such evidence could arguably support his claim that he was placed in a de facto separate program, triggering parental notification requirements. We allowed plaintiff an opportunity to conduct additional discovery on this issue.
Following the opportunity for additional discovery, these facts emerge as unrebutted by plaintiff: 1) Aaron began school at Galeton as a student in the regular program that classification never changed; 2) although plaintiff points out that an IEP was prepared for him what he does not point out is that the IEP pertained only to some pronunciation difficulties which he was having in the first grade and, moreover, that the IEP stated that he was classified as a "fulltime regular education" student who would "attend speech correction services appropriate to need." (Garman deposition, exhibit nos. 4 and 7); 3) Aaron's progress through grades one through six was fairly normal the only indication of a problem was repeated disciplinary incidents; 4) his grades to the extent they can be considered a reflection of his acclimation to school and academic progress during that period were, in fact, fairly good consisting mostly of "B's" and "C's" with a smattering of "A's"; 5) it was not until the seventh grade that his academic performance and his behavior declined precipitously; 6) that year, he received in-school suspensions totaling nine days for discipline problems; 7) defendants have produced evidence (and plaintiff has produced no evidence to the contrary) that these suspensions were the only instances of disciplinary isolation (with the possible exception of occasions on which he had to stay inside during recess); 8) they have also produced evidence, also unrebutted, that during these suspensions, Aaron was placed in a room adjacent to the school office, subject to the supervision of the office secretaries, and was given the same school work as the students in his class were doing that day.
Nothing in any of this triggered an obligation on the part of the district to notify the Frith's of their due process rights. See the discussion at pp. 11-15 supra, on the notice requirements imposed by 20 U.S.C. § 1415. See also: Hiller, (School did not commit procedural violation by failing to notify child's parents of its decision not to refer child to committee on special education (CSE) where child had not been declared handicapped child on his entry into school; teacher believed child had learning problem and not "disability" and evaluation of any disability was result of request from child's parent and not due to teacher's belief that child was handicapped.) Cf. Doe v. Rockingham County School Board, 658 F.Supp. 403 (W.D.Va.1987) (School board and superintendent, who learned of student's learning disability while he was under disciplinary suspension, were required to give written notice of his rights and full procedural remedies of Education for All Handicapped Children Act.)
We therefore find no basis for waiving the exhaustion requirement on grounds that defendants failed to fulfill their duty to notify the Friths of their due process right to a hearing.
Plaintiff also argues that he is entitled to a waiver under the futility exception. We again disagree. There is nothing in the record before us to indicate that resort to administrative remedies would, at this stage be futile. As we have stated before, plaintiff has the right to file administrative claims for compensatory education, even at this late date. We find nothing in the record to compel the conclusion that resort to such remedies would be futile.
To the extent he is asserting a right to proceed under the exception acknowledged *715 in Lester H., i.e. that only legal issues remain, that assertion also fails. There is clearly a factual dispute on many issues relating to, inter alia, what Galeton teachers and administrators involved with Aaron over years did or should have done, whether they should have been aware that he had some serious emotional or psychological difficulty that was causing him to act out, etc., what they should have done about this realization if they had such knowledge, etc.
We find, in conclusion, no justification for waiving the exhaustion requirement with respect to the claims asserted against Galeton and will dismiss all remaining claims asserted against the Galeton defendants on that ground.
The years at Coudersport
Plaintiff transferred to Coudersport Junior/Senior High School as an eighth grade student in the fall of 1986. (Beverly Frith deposition at pp. 9-10)[10] and (Record document no. 90, exhibit "H", Harpst Affidavit, ¶ 4) He again had difficulties with school.
The school contacted his mother about repeated incidents of tardiness. According to Beverly Frith, he was having phobic attacks which made it difficult for him to enter school and for which he was under psychiatric care. (Beverly Frith deposition at p. 12) Eventually, he was referred for diagnosis at the Hershey Medical Center, where he was diagnosed as suffering from Tourette's Syndrome in February of 1987. (Beverly Frith deposition at p. 13). A recommendation of homebound instruction was made by Ruth Neipris, Senior Psychiatric Social Worker at Hershey Medical Center (Record document no. 90, exhibit "G"-11) A further recommendation for homebound tutoring was made by Dr. Bazzoui in a letter dated March 30, 1987 addressed to Coudersport Junior/Senior High School principal Terry Erway.
Following that diagnosis, the school district sent his parents a "Request for Permission to Evaluate." The request contained a notice advising them of their right to request a hearing concerning the proposed evaluation of Aaron. (Record document no. 90, exhibit "H", Harpst Affidavit, ¶¶ 5-9) Beverly Frith signed the request on February 19, 1987 and returned it to school administrators. (Record document no. 90, exhibit "G"-2) The form which she signed contained two signature lines. Above one, the one on which she placed her signature, the form stated: "If you agreed to an evaluation as outlined above, please sign here." Id. Above the second, where she did not place her signature, there was the following:
If you do NOT agree to an evaluation as outlined above at this time, please sign here. We will contact you to arrange a personal conference as soon as possible. You also have the right to request a hearing concerning this proposed evaluation.
Id. Beverly Frith opted not to pursue her right to request a hearing concerning the proposed evaluation. (Beverly Frith deposition at p. 19-20). Pursuant to Beverly Frith's consent, psychological, psychiatric and social evaluations were performed on Aaron on March 12, 23 and 30 and September 23, 1987.
During the period, Beverly Frith sought the advice of counsel. She retained the services of William Hebe, Esq., who, in a letter dated September 15, 1987, addressed to school superintendent Joseph DeRenzis, requested, inter alia, that the district work toward establishing a program for Aaron whereby he would be tutored for an hour each day outside the school. (Record document no. 90, exhibit "G"-6)
A Conference Meeting was held on October 26, 1987 to review the findings and recommendations of the multi-disciplinary teams (MDT's) who had evaluated Aaron and assess how his educational needs could be met. (Harpst Affidavit, ¶¶ 11-16[11] and DeRenzis affidavit, ¶¶ 6-9[12]) Present at the meeting *716 were Gary and Beverly Frith, their attorney, William Hebe, Esq., two clinical psychologists who had evaluated Aaron, and school and intermediate unit officials.
At that meeting, the Friths were told that: 1) the MDT's who had evaluated Aaron had concluded that he was not an "exceptional" student and the basis for that conclusion; and 2) that it was their recommendation that Aaron remain a student in the regular education curriculum. (Beverly Frith deposition at pp. 40 and 45)
Follow-up correspondence addressed to the Friths reviewed the conclusions reached at the October, 26, 1887 meeting and requested their signature on a "Notice of Recommended Assignment," and other parental notification forms (collectively NORA) forms enclosed. (Beverly Frith deposition at pp. 39-45 and record document no. 90, exhibits "G"-4 and G-21) The NORA restated that Aaron remain classified as a regular education student and included three pages discussing the Frith's due process rights under what was then the Education of All Handicapped children Act (EAHCA) and is now the IDEA. The Form B Notice enclosed also restated the MDT's conclusion that Aaron did not qualify for a special education program and advised the Friths of their right to review all data compiled by the district on their son, to request a conference on the evaluation findings and Aaron's educational needs, or to request a due process hearing. (See: Harpst Affidavit, ¶¶ 16-20)
The forms were accompanied by a letter from Guidance Counselor Thomas A. Harpst stating that, as was concluded at the MDT meeting held October 26, 1987, Aaron was a "nonexceptional student" and was to "continue in the regular education mode" receiving instruction at home for the present time with the hope that he would, eventually be able to return to a classroom setting. (Record document no. 90, exhibit "G"-21)
Beverly Frith signed the NORA on November 18, 1987, thereby acknowledging her consent that Aaron remain classified as a regular education student. (Beverly Frith deposition at pp. 42-45). The NORA contained two signature lines. She signed opposite the statement was said: "I approve this recommendation and do not wish to request a pre-hearing conference of a hearing." She did not sign opposite the statement which read: "I do not approve this recommendation. I request a pre-hearing conference."
The attached documents provided extensive details about the Friths rights of administrative appeal, spelling out in detail and in comprehensible language which such rights were and how they could be invoked. (Record document no. 90, exhibit "G"-4) This information, provided in the form of a letter to the parents, included such things as details about the pre-hearing conference and hearing, as well as citations to the applicable laws and regulations. Id.
Aaron remained classified as a regular education student throughout the remainder of his academic career at Coudersport. Although he carried out his studies at times through homebound instruction, at times in a classroom setting and at times at the public library, his classification was never changed.
Under Coudersport school district policy, homebound instruction is not a form of special education. It is defined by school district policy as a form of individualized instruction appropriate for "students confined to home or hospital for ... illness or injury; or when ... recommended for psychological or psychiatric reasons." (Record document no. 90, exhibit "G"-1)
Aaron continued on a program of homebound instruction into the 1988-89 school year consistent with the recommendation of his pediatric neurologist, Dr. Cadman. (Record document no. 90, exhibit "G"-22) Beverly Frith knew of the program and agreed at the time that it was best for her son. She requested approval from the district for homebound instruction in a letter dated September 12, 1988. (Record document no. 90, exhibit "G"-23) Later during the 1988-89, school year, attempts were made to gradually reintroduce Aaron into the classroom setting. This, again, was done with Beverly Frith's knowledge and consent. She did not request any further evaluation or a hearing on her *717 son's assignment. (Beverly Frith deposition at p. 53)
In a letter dated February 24, 1989, Dr. Penny Miller requested that Aaron resume attending classes full-time. (Record document no. 90, exhibit "G"-24)
Aaron began eleventh grade in the fall of 1989. Beverly Frith advised school officials that she had chosen to have him privately tutored at home that year and that he would not be attending classes. (Beverly Frith deposition at pp. 54-58) She stated this in a letter dated September 5, 1989 addressed to School Superintendent Derenzis. (Record document no. 90, exhibit "G"-25) This decision was somewhat contrary to the recommendation and diagnosis of Aaron's clinical psychologist, Dr. Miller, who stated, in a report dated September 19, 1987 addressed to Coudersport Principal Larry Frank, that Aaron had a history of panic attacks while attending school due to his Tourette's Syndrome going undiagnosed and untreated for a number of years, but had made substantial progress in overcoming these difficulties and was able, in his professional opinion, to attend school and participate in normal school activities. Aaron, however, continued to refuse to attend class. (Record document no. 90, exhibit "G"-29)
These issues were discussed at a conference held November 2, 1989 attended by the Friths, Dr. Miller, school administrators and a representative from County Children and Youth Services (CYS). It was agreed that homebound instruction would continue. That recommendation was accepted by the school board on November 15, 1989. No protest, objection or request for reconsideration was filed by the Friths.
Aaron began twelfth grade at Coudersport in the fall of 1990. On June 11, 1990, a conference was convened to discuss Aaron's situation. It was agreed at that meeting that Aaron would undergo further evaluation prior to the start of the school year. Before the evaluation was conducted, Beverly Frith received and signed a "Request for Permission to Evaluate" which advised her of her right to requested a hearing on the proposed evaluation of Aaron. (Harpst Affidavit, ¶¶ 22-27) She did not request a hearing. (Beverly Frith deposition at pp. 81-83) and (record document no. 90, exhibit "G"-32) This form contained the same type of signature line arrangement as the one she had signed in 1987. The form contained two signature lines. Above one, the one on which she placed her signature, the form stated: "If you agreed to an evaluation as outlined above, please sign here." Id. Above the second, where she did not place her signature, there was the following:
If you do NOT agree to an evaluation as outlined above at this time, please sign here. We will contact you to arrange a personal conference as soon as possible. You also have the right to request a hearing concerning this proposed evaluation.
Id. Beverly Frith opted not to pursue her right to request a hearing concerning the proposed evaluation.
In a letter dated September 27, 1990 addressed to Beverly Frith, Larry Frank, principal of the Coudersport Junior Senior High School stated that homebound instruction was being terminated and that it was the school's position that he henceforth be "considered as a full-time regular education student with special needs." The letter mapped out a program to deal with Aaron's "special needs." (Record document no. 90, exhibit "G"-34)
The evaluation was performed by Seneca Highlands IU. (Record document no. 90, exhibit "G"-33). On October 3, 1990, the MDT panel recommended that Aaron remain classified as a non-exceptional student and that he pursue a regular educational program with some modifications. (Record document no. 90, exhibit "G"-35) Those recommendations were communicated to the Friths in a letter dated October 5, 1990. (Record document no. 90, exhibit "G"-35) The proposal was that Aaron receive tutoring at the school and gradually progress to spending increasing amounts of time in a classroom setting. The letter further stated that it was the unanimous conclusion of the MDT that Aaron "is not to be considered as a special education student. It is their conclusion that Aaron is to be considered a regular education student who has special needs." Id.
*718 Dr. Cadman issued a report on October 9, 1990 recommending that Aaron receive homebound instruction for five hours a week over the school year. In a follow up letter to Beverly Frith dated October 15, 1990, Superintendent DeRenzis reviewed the various expert opinions provided over the years concerning Aaron's proper placement, and rejected the Frith's request for continuing homebound instruction, on the grounds that such instruction was never intended to be long-term and that it had proven unsuccessful in the past due to what he characterized as Aaron's uncooperative attitude and his unwillingness to "accept his responsibilities as a student." Id. The last sentence of Dr. DeRenzis's letter reminded Beverly Frith that she had a right to request a due process hearing if dissatisfied with the school's recommendation. Id.
Beverly Frith received similar information from a representative of the Pennsylvania Tourette's Syndrome Association, who advised her to request a hearing and further evaluations for Aaron. However, no hearing or further evaluations were requested. (Beverly Frith deposition at pp. 100-01 and record document no. 90, exhibit "N")
Aaron did not attend classes at Coudersport that year. At 17, he was beyond compulsory school age. Beverly Frith received a letter from Dr. DeRenzis dated February 5, 1991 advising her that Aaron had been withdrawn from the school rolls effective January 31, 1991 and that he had not completed his education. She did not formally protest that action. (Beverly Frith deposition at pp. 110-111 and Harpst affidavit, ¶ 29)
Coudersport/Seneca Highlands defendants' motion to dismiss
Beverly Frith's testimony and the extensive documentary evidence produced by both sides effectively rebuts any contention that the Friths did not receive information about or were unaware of their right to appeal decisions made by school administrators affecting their son's academic progress.
"At no time during or after Aaron Frith's enrollment in the Coudersport Area School District, did Aaron Frith or his parents and natural guardians request a pre-hearing conference or due process hearing." (Harpst affidavit, ¶ 30 and DeRenzis affidavit, ¶ 19)
It cannot be convincingly argued that Beverly Frith did not receive notice of her right to challenge decisions concerning her son made by the district or school administrators. The record is replete with letters, notice forms and other documents indicating that at every critical juncture, she was reminded of her right to pursue the matter further if dissatisfied with the district's decision. When the NORA forms were submitted to her, they were accompanied by documents spelling out in great detail precisely what her options were, in terms of requesting a review hearing, how those options could be exercised, and how the hearing would be conducted, what her rights were, e.g. whether she was entitled to have counsel present, etc.
On the basis of the overwhelming evidence before us, we conclude that plaintiff cannot rely on the exemption applicable to cases in which the parents received no notice or inadequate notice of their due process rights to prevail on his claim for application of the exemption against Coudersport. See: Max M. v. Illinois State Board of Education, 629 F.Supp. 1504 (N.D.Ill.1986) (School district's violations of procedural rights of handicapped child and parents under Education for All Handicapped Children Act in failing to provide written notice including full explanation of all procedural safeguards was not sufficient to find that child had been denied free and appropriate public education in light of involvement of parents in developing child's special education programs, consistent with purposes of Act's notice provisions.) Compare: Scituate School Committee v. Robert B., 620 F.Supp. 1224 (D.C.R.I.1985), aff'd 795 F.2d 77 (1st Cir.1986) (Notice to parents of handicapped child of meeting to develop individual education program was inadequate where it failed to specify who would be in attendance and did not mention that other individuals could attend; however, infirmities did not require invalidation of resulting plan since spirit of regulation was satisfied where mother had attended previous meeting and was aware of purpose of such meetings, persons who attended were the same individuals involved in a prior meeting *719 and parents were not prejudiced.); and Mason v. Schenectady City School District, 879 F.Supp. 215 (N.D.N.Y.1993) (Mother of developmentally disabled student was not required to exhaust administrative remedies before bringing action against school district under Individuals with Disabilities Education Act (IDEA), where school district persistently failed to inform mother of her due process rights over period of years.)
To the extent plaintiff argues that he is entitled to a waiver under the futility exception, we also disagree. Again, we find nothing in the record before us to indicate that resort to administrative remedies would, at this stage be futile. As we have stated before, plaintiff has the right to file administrative claims for compensatory education, even at this late date. We find nothing in the record to compel the conclusion that resort to such remedies would be futile. See generally: N.S. v. Commonwealth of Pennsylvania, 875 F.Supp. 273 (E.D.Pa.1995).
Finally, the exemption recognized by the Third Circuit in Lester H., i.e. that only legal issues remain, is also unavailable to plaintiff. There are many disputed factual issues surrounding the question of whether plaintiff should have been classified as an exceptional student once the diagnosis of Tourette's Syndrome was made.
We find, in conclusion, no justification for waiving the exhaustion requirement with respect to the claims asserted against Coudersport and will dismiss all remaining claims asserted against the Coudersport defendants on that ground.
Plaintiff's motion for reconsideration
Plaintiff seeks reconsideration of those portions of the court's memorandum and order dated January 12, 1995 which address the damages recoverable under the claims asserted in Counts I and IV. Both counts will be dismissed pursuant to this memorandum, rendering plaintiff's motion moot.
NOTES
[1] 42 U.S.C. § 1983.
[2] Tourette's syndrome is defined in medical terms as:
A syndrome of facial and vocal tics with onset in childhood, progressing to generalized jerking movements in any part of the body, with echolalia and coprolalia; once thought to have an unfavorable prognosis but recently shown to be responsive to treatment with butyrophenones.
Mullins v. North Dakota Department of Human Services, 483 N.W.2d 160, 161 n. 1 (N.D.1992), citing Dorland's Illustrated Medical Dictionary, (Twenty-fifth edition; 1974), p. 1520.
See also: Witherspoon v. Ciba-Geigy Corp., 1986 WL 2138 at *1 (Tenn.Ct.App.1986) (Tourette's syndrome described as "a central nervous system disorder characterized by uncontrollable motor and phonic tics that wax and wane in severity.").
[3] Plaintiff's original complaint contained headings listing twelve counts, but contained, in actuality, only eight counts or distinct claims for relief. For an explanation of our re-numbering system, see the prior order dated April 11, 1994.
[4] 29 U.S.C. § 794, a reference to section 504 of the Rehabilitation Act of 1973.
[5] Plaintiff's asserted civil rights claim under the Due Process Clause of the Fifth Amendment to the United States Constitution was dismissed as duplicative.
[6] Plaintiff's asserted civil rights claim under the Due Process Clause of the Fifth Amendment to the United States Constitution was dismissed as duplicative.
[7] Left open, under our prior order and memorandum, was the question of whether compensatory damages, other than reimbursement for educational expenses may be recoverable under section 504, (See: Hall v. Knott County Board of Education, 941 F.2d 402, 407 (6th Cir.1991) ("It may be true ... that damages may be awarded for violations of the anti-discrimination provisions of § 504 of the Rehabilitation Act."), while at the same time noting that there may be impediments to plaintiff's maintenance of any section 504 claim at all, (See: Barwacz v. Michigan Department of Education, 674 F.Supp. 1296, 1307 (W.D.Mich.1987)) ("[W]here ... whatever remedy might be provided under § 504 is provided with more clarity and precision under the EHA, a plaintiff may not circumvent or enlarge on the remedies available under the EHA by resort to § 504."), citing Smith v. Robinson, 468 U.S. 992, 1021, 104 S.Ct. 3457, 3473, 82 L.Ed.2d 746 (1984).
[8] FAPE is the acronym for a free appropriate public education.
[9] Federal law incorporates state standards, and a school district may violate the IDEA if it fails to satisfy the more stringent state law requirements. Doe v. Board of Education, 9 F.3d 455, 457 (6th Cir.1993) (per curiam), cert. denied, ___ U.S. ___, 114 S.Ct. 2104, 128 L.Ed.2d 665 (1994).
[10] Beverly Frith's deposition is included within Coudersport's exhibits submitted in support of its motion (record document no. 90) as exhibit "F".
[11] Thomas Harpst's affidavit is included as part of Coudersport's exhibits submitted in support of its motion (record document no. 90) as exhibit "H".
[12] Superintendent DeRenzis' affidavit is included as part of Coudersport's exhibits submitted in support of its motion (record document no. 90) as exhibit "I". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262068/ | 131 Cal.Rptr.2d 801 (2003)
107 Cal.App.4th 147
The PEOPLE, Plaintiff and Respondent,
v.
Donald BARKER, Defendant and Appellant.
No. A093759.
Court of Appeal, First District, Division Three.
March 18, 2003.
Rehearing Denied April 8, 2003.
Review Granted June 11, 2003.
*804 Richard Such, First District Appellate Project, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, René A. Chacón and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
McGUINESS, P.J.
A jury convicted appellant Donald Barker of one count of willful failure to register as a sex offender within five working days of his birthday, in violation of Penal Code section 290, subdivision (g)(2).[1] Having dismissed in the interests of justice nine of appellant's ten prior convictions for purposes of the Three Strikes Law, the court sentenced him to state prison for a total *805 term of nine years. On appeal, appellant contends we must reverse his conviction because (1) the trial court failed to instruct the jury correctly on the knowledge element of a section 290 violation; (2) the trial court erred prejudicially by instructing the jury that forgetting the statutory registration requirement was not a defense to the charge; (3) the trial court denied appellant's due process rights by so instructing the jury after it had allowed appellant to base his defense on having forgotten to register; and (4) there was insufficient evidence independent of his own extrajudicial admissions to establish the actual date of appellant's birthday for purposes of conviction. We conclude that to the extent the trial court did err in instructing the jury, any possible error was not prejudicial beyond a reasonable doubt; the trial court's instruction on forgetting was neither erroneous nor misleading; appellant waived his objection to the use of his own extrajudicial admissions to establish the date of his birth; and there was sufficient evidence to support appellant's conviction without reference to his own extrajudicial statements. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of forcible rape in March 1979. As a result of this conviction, he was required pursuant to section 290 annually to update his registration as a sex offender with the police department of the jurisdiction in which he resided. As reflected by the records of the San Mateo City Police Department, as stated on appellant's probation report, and as admitted by appellant himself, appellant's date of birth was March 5, 1950. At the time relevant to this case, appellant was consequently obliged under the terms of section 290 to update his sex offender registration within five working days of March 5 every year.
As shown by the files of the California State Department of Justice and the San Mateo City Police Department, appellant registered five times as a sex offender with different jurisdictions, most recently with the San Mateo Police Department on August 26, 1999. The registration form signed by appellant on that date states that his date of birth was March 5, 1950, and his place of residence was 15 Ninth Avenue in San Mateo. It was the standard procedure in the San Mateo City Police Department to go over the notification material on the registration form with registrants before they signed and initialed it.
Immediately over appellant's signature on the form is a printed statement expressly declaring appellant's actual understanding of his mandatory obligations under section 290. In pertinent part, this statement is as follows: "I am registering in compliance with Section 290. . . . I understand my requirement as stated in the appropriate code sections. When registering pursuant to [section] 290 PC my requirement to register is for life and I must, within 5 working days: register with the agency having jurisdiction over my residence address. . . . Annually within five working days of my birthday, I must update my registration address. . . ." On another form entitled "Registration Change of Address/Annual Update," appellant again signed a statement stating that "I have been notified of my duty to register" as a convicted sex offender under section 290. On the reverse of this form, appellant initialed 16 specific statements acknowledging that he had received notice that, among other things, his "responsibility to register is a lifetime requirement"; he was required to register as a sex offender within five working days with the local law enforcement agency having jurisdiction of his residence every time he changed his address; and that he must *806 annually, within five working days of his birthday, update his registration at the law enforcement agency having jurisdiction over his location or place of residence.
In early March 2000, San Mateo Police Officer Al Baccei was assigned to process the registration of convicted sex offenders within the jurisdiction of the San Mateo Police Department. While checking to see if the Department's sex offender registrations were current, he noticed that appellant's birthday was March 5. As a result, the "window" for appellant to register was from Monday, February 28, 2000, through Friday, March 10, 2000.
On Monday, March 13, 2000, after appellant had failed to register within the statutory time period, Officer Baccei attempted to telephone him at his last known address at Project 90, a men's residential alcohol and recovery program where appellant had been living since August 1999. Appellant returned Officer Baccei's telephone call about 15 minutes later. They arranged to meet each other at the Police Department later that same day to discuss appellant's registration.
Appellant came to the Police Department within an hour of the telephone call. Officer Baccei's interview with appellant was tape recorded and subsequently transcribed. In the interview, appellant affirmed that his date of birth was March 5, and acknowledged that he was required to comply with the annual registration requirement within five days of his birthday. Asked why he had not called to make an appointment to register, appellant said it was "because I'm in a program. I'm a house manager. . . . And it keeps me busy all the time." Although appellant acknowledged his awareness that he was required "once a year" to register "on my birthday," he failed to do so this time because he was "too busy." Appellant further explained: "Well, you know what, I totally forgot about it, I'm not going to make up no excuses." In addition, appellant told Officer Baccei that although he had been living at 15 Ninth Avenue when he last registered on August 26, 1999, he had moved to 14 South Norfolk Avenue about a month before the date of the interview on March 13, 2000. Appellant acknowledged knowing that he was required to notify the Police Department whenever he changed his residence. Asked whether he had failed to notify the police about this change of address because he "[j]ust forgot or [was] too busy," appellant stated that he had "no excuse" for his failure. Asked if the police had read the registration requirements to him the last time he had updated his registration, appellant denied that they had been read to him. Appellant acknowledged having read the requirements before signing and initialing the form, "but vaguely." Officer Baccei placed appellant under arrest for failing to register in accordance with the time requirements of section 290.
David Meeds, program director at Project 90, testified that both 15 Ninth Avenue and 14 South Norfolk Avenue were addresses of rehabilitation facility residences at which appellant had been housed since joining the program in August 1999. He also explained that after successfully completing the program in December 1999, appellant had received special training and become a house manager. In his defense, appellant offered the testimony of Meeds and James Stansberry, the executive director of Project 90, regarding appellant's duties as house manager and his full schedule involving 16 to 18 hours of work on a typical work day.
By information filed on April 10, 2000, and amended on October 11, 2000, appellant was charged with two counts of willfully failing to register as a sex offender in violation of section 290, subdivision (g)(2), with 10 prior convictions alleged for purposes *807 of the Three Strikes Law and three priors alleged for purposes of section 667.5, subdivision (b). Count one charged appellant with failing to update his registration within five working days of his birthday; count two charged him with failing to do so within five working days of changing his residence.
Jury trial commenced on October 10, 2000. On October 13, the jury found appellant guilty of failing to register within five working days of his birthday as charged in count one, but acquitted him of the charge in count two. Appellant waived jury trial on the priors, and the trial court found all the alleged prior convictions true. After denying appellant's motion for a new trial, the trial court dismissed all but one of appellant's prior "strike" convictions in the interests of justice pursuant to section 1385. It then sentenced appellant to state prison for a total term of nine years as follows: the upper term of three years on count one, doubled under the Three Strikes Law to six years, plus three consecutive one-year terms as to the prior prison terms charged pursuant to section 667.5, subdivision (b). This appeal timely followed.
INSTRUCTIONS ON KNOWLEDGE AND WILLFULNESS
Appellant first contends that the trial court erred in violation of the federal and state constitutions by failing to give correct jury instructions on the element of knowledge, and instead instructing that ignorance of or forgetting the law is not a defense to a charge of violating the registration requirements under section 290. We conclude the instructions given by the trial court were correct and not misleading. To the extent the trial court's instructions were either misleading or erroneous, we conclude the error was harmless beyond a reasonable doubt.
We begin with the requirements of the statute at issue. As amended in 1996, 1997 and 1998, and in effect at the time appellant registered in August 1999, section 290 provided in pertinent part that every person convicted of an enumerated sex offense is required "for the rest of his . . . life while residing in . . . California . . . to register . . . within five working days of coming into, or changing his . . . residence or location within, any city, county, or city and county . . . in which he . . . temporarily resides." (§ 290, former subd. (a)(1)(A), as amended by Stats.1996, ch. 909, § 2; Stats.1997, ch. 821, § 3; Stats.1997, ch. 821, § 3.5; and Stats.1998, ch. 930, § 1.1; see § 290, present subd. (a)(1)(A).) In addition, "[beginning on his . . . first birthday following registration or change of address, the person shall be required to register annually, within five working days of his . . . birthday, to update his . . . registration . . ., including, verifying his . . . name and address, or temporary location, on a form as may be required by the Department of Justice." (§ 290, former subd. (a)(1)(C), as amended by Stats.1997, ch. 821, § 3.5 and Stats.1998, ch. 930, § 1.1; see § 290, present subd. (a)(1)(D).) A person required to register because of a felony conviction who "willfully violates" the registration provisions "is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years." (§ 290, former subd. (g)(2), as amended by Stats.1994, ch. 867, § 2.7; see § 290, present subd. (g)(2).)
The trial court instructed the jury on the elements of the charged offense, telling them that in order to convict appellant the prosecution was required to prove that appellant "was notified" of the statutory registration requirements of section 290, and that he "willfully failed to register with the law enforcement agency where he lives within five working days of his birthday." With regard to the element of willfulness, the trial court instructed the jury *808 in the language of CALJIC No. 1.20 that "[t]he word `willfully' when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word "willfully' does not require any intent to violate the law, or to injure another, or to acquire any advantage." In addition, the trial court instructed on the concurrence of conduct and general criminal intent in accordance with CALJIC No. 3.30, as follows: "In the crime[s] charged in the Information there must exist a union or joint operation of act or conduct and general criminal intent. General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful."
Appellant contends that in giving the above instructions, the trial court committed at least two "major instructional errors": (1) it failed to include in its instructions on willfulness the requirement that appellant be proven to have had actual knowledge of his duty to register; and (2) by instructing on general criminal intent in accordance with CALJIC No. 3.30, it effectively instructed the jury that "ignorance of the law is not an excuse." In support of its argument, appellant cites our Supreme Court's opinion in People v. Garcia (2001) 25 Cal.4th 744, 107 Cal.Rptr.2d 355, 23 P.3d 590. That decision held that actual knowledge of the duty to register is an element of any charge of violating the registration requirements of section 290; a failure to register did not violate section 290 if the defendant had no actual knowledge of the registration requirement; and in any case charging a violation of section 290, it is error to give an instruction that "`ignorance of the law is no excuse.'" (Id. at pp. 752-754, 107 Cal.Rptr.2d 355, 23 P.3d 590.)[2]
In addition, appellant cites the recently published decision of People v. Edgar (2002) 104 Cal.App.4th 210, 127 Cal. Rptr.2d 662. In Edgar, Division Two of this court concluded that "like the `"ignorance of the law is no excuse"' instruction (CALJIC No. 4.36) given in Garcia, the general intent instruction given here (CALJIC No. 3.30) `on its face would allow the jury to convict [appellant] of failing to register even if he were unaware of his *809 obligation to do so.' [Citation.]" (Edgar, supra, 104 Cal.App.4th at p. 219, 127 Cal. Rptr.2d 662.) On this basis, the Edgar court held that the same instructions given in this case i.e., CALJIC Nos. 1.20 and 3.30, in combination with general instructions on the elements of the offense under section 290 "were erroneous in that they failed to clearly state that a conviction required actual knowledge of the duty to register." (Ibid.)[3]
The trial court's instructions must be construed together as a whole. (People v. Castillo (1997) 16 Cal.4th 1009, 1016, 68 Cal.Rptr.2d 648, 945 P.2d 1197.) On our reading, the instructions sufficiently advised the jury of the necessary elements of the charged offense, including actual knowledge. Thus, the trial court instructed the jury not only that the prosecution was required to prove that appellant "willfully" failed to register, but that in this context "willfully" meant the prosecution had to prove beyond a reasonable doubt that appellant had "a purpose or willingness . . . to make the omission in question." (CALJIC No. 1.20, italics added.) This instruction simply and correctly restates the statutory definition of "willfully" as set forth in section 7, subdivision 1.[4]*810 As the Supreme Court stated in Garcia, "one cannot purposefully fail to perform an act without knowing what act is required to be performed." (Garcia, supra, 25 Cal.4th at p. 752, 107 Cal.Rptr.2d 355, 23 P.3d 590.) By implication, therefore, the trial court's instruction on willfulness informed the jury that in order to convict appellant of failing to register, the prosecution had to prove that appellant had knowledge of the act he was obligated to perform, and purposefully failed to comply with his annual registration requirement. (See People v. Johnson, supra, 67 Cal. App.4th 67, 71-73, 78 Cal.Rptr.2d 795.)[5]
Moreover, unlike in Garcia, the jury in this case was not instructed that "ignorance of the law is no excuse." (CALJIC No. 4.36; Garcia, supra, 25 Cal.4th at pp. 751, 754, 107 Cal.Rptr.2d 355, 23 P.3d 590.) Contrary to appellant's assertion, the instruction on general criminal intent given pursuant to CALJIC No. 3.30 did not so instruct the jury. CALJIC No. 3.30 does state that so long as an accused intentionally does that which the law declares criminal, he "is acting with general criminal intent, even though [he][she] may not know that [his][her] act or conduct is unlawful." However, this is a very different statement than one implying that a person accused of willfully failing to perform a legally required act need not know of the obligation he is legally required to perform, such as the duty to update a sex offender registration. CALJIC No. 3.30 does not convert a general intent offense into a strict liability one as to which ignorance of the law is no excuse; it simply states that a defendant need not intend to violate the law to be guilty. (People v. Johnson, supra, 67 Cal. App.4th at pp. 71-73, 78 Cal.Rptr.2d 795.) Section 290 is not a specific intent crime, and appellant does not so contend.[6] (Id. at p. 72, 78 Cal.Rptr.2d 795 [because section 290 simply prohibits willful failure to register and contains no other intent language, it "is unquestionably a general intent offense"].) There was therefore no error in instructing the jury, in effect, that appellant did not have to intend to violate section 290 to be convicted of failing to register.
In short, we conclude that, read in combination with the CALJIC No. 1.20 instruction on willfulness, the trial court's general intent instruction pursuant to CALJIC No. 3.30 did not mislead the jury. "The general intent instruction required an `intentional' failure to register. The 'willful' instruction required a `purpose or willingness' to make the omission." (People v. Johnson, supra, 67 Cal.App.4th at p. *811 73, 78 Cal.Rptr.2d 795.) Together, these two instructions correctly informed the jury that in order to be convicted of violating section 290, appellant had to have knowledge that he was required to register. There was no error.
Even if we were to conclude the trial court's use of the CALJIC No. 3.30 instruction wrongly informed the jury either that the prosecution did not have to prove appellant had actual knowledge of his duty to register or that ignorance of the law was no excuse a conclusion which, we reiterate, we do not make the question remains whether any such error would be prejudicial. Despite its holding that the trial court had erred both in failing to instruct on the element of actual knowledge and in giving an instruction that ignorance of the law was not a defense to the charge of failing to register under section 290, the Garcia court nevertheless concluded the error in that case was harmless beyond a reasonable doubt. The Supreme Court found the prosecution had presented "strong evidence" that the defendant actually knew of the registration requirements, based on his signing of the written notifications thereof and the jury's implied finding pursuant to other properly given instructions that the defendant had read and understood these notifications. (Garcia, supra, 25 Cal.4th at p. 755, 107 Cal. Rptr.2d 355, 23 P.3d 590.)
In the instant case, as appellant himself concedes, the undisputed evidence shows he was given actual notice of the registration updating requirement. Although notice alone does not prove actual knowledge of the registration requirement, there is also overwhelming evidence in the record that appellant did actually know about the annual updating requirement. The record shows that when he updated his registration in August 1999, appellant signed forms attesting that he had been notified and was aware of his lifetime obligation as a convicted sex offender under section 290 to update his registration annually "within 5 working days" of his birthday. In connection with the same registration update, appellant initialed no fewer than sixteen clearly legible and straightforward statements again acknowledging that he had received notice of his lifetime responsibility to register as a sex offender with local law enforcement agencies annually within five working days of his birthday and also within five working days of every change of his address.
Neither was this the first notification appellant had received of the registration requirements. The record shows appellant had signed numerous sex offender registration forms in the past, dating back to 1988. When he registered in 1998, he signed a form which specifically notified him of the then-new statutory requirement that he update his registration annually within five working days of his birthday. Similar forms signed by appellant in 1996 and 1997 also mentioned the yearly updating requirement. Finally, appellant's own statements to Officer Baccei on March 13, 2000, clearly show that appellant had actual knowledge of the annual registration updating requirement, even if that information may have "skipped" his mind. On the basis of this record, we conclude that there was no evidence on the basis of which a rational fact finder could find that appellant did not have actual knowledge of his duty to update his registration on his birthday. Thus, we conclude that any possible error in failing to instruct the jury on the knowledge element of section 290, or in giving the general intent instruction under CALJIC No. 3.30, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Garcia, supra, 25 Cal.4th at p. 755, 107 Cal.Rptr.2d 355, 23 P.3d 590; People v. Flood (1998) 18 Cal.4th *812 470, 502-503, 76 Cal.Rptr.2d 180, 957 P.2d 869.)
FORGETFULNESS AS A DEFENSE
During jury deliberations, the trial court gave an additional instruction to the jury in response to the following written question sent by the jurors to the trial judge: "Is forgetting to regester [sic] a `willfull' [sic] act according to the law." After extended colloquy with both trial counsel, the trial court instructed that "forgetting to register by itself does not provide a defense to a charge of willful failure to register." Appellant argues that the trial court erred by instructing the jury during deliberations, in response to the jurors' own written question, that forgetting to register was not "by itself a defense to the charge of willful failure to register. In pursuing this argument, appellant urges that this court undertake a painstaking legal and factual analysis of the evidence to ascertain the precise degree of his own forgetfulness. Thus, he insists that it is not clear whether his obligation to update his registration had merely slipped his mind in which case, it could be said he actually knew it, but had simply failed to bring that actual knowledge to mind at the appropriate time or whether instead he had completely forgotten his registration obligation and had lost the ability to recall it altogether, and consequently might not be said to have actual knowledge thereof.[7]
Appellant's suggested exercise, although intellectually intriguing, is both factually and legally irrelevant. Factually, appellant's own statements to Officer Baccei clearly acknowledged his actual awareness of the requirement that he update his registration annually within five working days of his birthday. Although he claimed the requirements were not read to him when he signed the previous registration form in 1999, he admitted reading and "vaguely" remembering them. When Officer Baccei read all the detailed requirements and notifications to appellant again "so you remember them so we don't have any problems in the future," appellant said his recollection of them was "coming back" to him. The only excuse he offered for his failure to register was that his duties as a house manager at Project 90 kept him "too busy," so that he "totally forgot about it." Indeed, he expressly acknowledged that his failure to update his registration "was my fault." On their face, these statements conceded that appellant's actual knowledge of the annual registration requirement just slipped his mind, i.e. he simply failed to remember to update his registration when he needed to do so. As even appellant appears to acknowledge in his brief on this appeal, this kind of common, everyday forgetfulness does not negate the actual knowledge required for willfulness.
In any event, we are of the opinion that as a matter of law forgetting, by itself, does not negate willfulness for purposes of a charge of violating the registration updating requirement of section 290. Because one cannot forget something one does not already know, the fact one has forgotten something necessarily presumes actual knowledge. There is a fundamental difference between a claim, like the one made by the defendant in Garcia, that one did not know about the registration requirement, and the claim made by appellant in this case that he simply forgot to register. The latter claim in reality amounts to a tacit admission of actual knowledge of the registration requirement. *813 As stated in the recent opinion in People v. Cox (2002) 94 Cal.App.4th 1371, 115 Cal. Rptr.2d 123 (Cox): "[W]ithin this context one willfully fails to register when possessed of actual knowledge of the requirement he or she forgets to do so. [¶] . . . [¶] . . . [T]he Legislature has created a registration scheme that places strict demands not only on registrants but also on state and local agencies. . . . In the face of such rigorous notification and registration requirements, it is unreasonable to believe that . . . the Legislature intended that a mere lapse of memory would excuse a failure to register. There are simply some things that cannot be forgotten. To allow forgetfulness to excuse a failure to register, would serve, in this context, as an incentive not to remember." (Cox, supra, 94 Cal.App.4th 1371, 1376-1377, 115 Cal. Rptr.2d 123.)[8]
Section 290 imposes a statutory obligation to register and re-register at certain times and under enumerated conditions. As is the case with any legal obligation, inherent in that statutory mandate is the duty not to forget to perform it. In contrast to the kind of subjective "forgetfulness" defense argued by appellant here, under the statutory definition of "willfully" found at section 7, subdivision 1, an omission to act would not be "willful" if objective circumstances beyond the defendant's control prevented him from acting. For example, a debilitating injury, illness or mental infirmity might objectively prevent a defendant from registering in timely fashion, thereby rendering "unwillful" the defendant's failure to register in compliance with the strict time deadlines of section 290, and providing a defense whether or not the defendant had also simply forgotten *814 his obligation to register.[9] Mere forgetfulness, however, does not rise to the level of such an objective circumstance preventing compliance with the statute. Whether the obligation has simply slipped the individual's mind is essentially irrelevant, because he was at all times obliged not to let that happen. Without an objective circumstance preventing compliance with the statutory obligation, a mere subjective failure to remember to do so therefore remains "willful." (Cox, supra, 94 Cal.App.4th at pp. 1376-1377, 115 Cal. Rptr.2d 123; Cf. People v. Johnson, supra, 67 Cal.App.4th at p. 73, 78 Cal.Rptr.2d 795 [instructions permitted jury to find that failure to register was not willful, but the result of "misinformation and lack of transportation"].)
The dissent asserts that Cox reads the term "willfully" out of Penal Code section 290, and is in conflict with Garcia. We respectfully disagree. In the first place, we note that there is no California law or case authority holding that forgetfulness is a defense to a charged crime of willful omission to perform a statutory duty. The only case authority directly addressing this precise issue is Cox.
In this regard, we find the history of the Cox decision instructive. The original decision by Division One of the Fourth District Court of Appeal in People v. Cox was filed in November 1999. In August 2001, after ordering the decision depublished and granting review, the Supreme Court ordered the case transferred back with directions that the court of appeal vacate its prior decision and reconsider the appeal in light of Garcia. (People v. Cox, review granted, Feb. 16, 2002, S084020, cause transferred to Court of Appeal with instructions Aug. 8, 2001.) The court of appeal published its reconsideration of the appeal at Cox, supra, 94 Cal.App.4th 1371, 115 Cal.Rptr.2d 123, duly analyzing Garcia's impact, and holding squarely that forgetfulness is not a defense to a charge under section 290. It is that decision upon which we rely herein. Although the defendant again petitioned for review of that decision, the Supreme Court denied review and allowed the opinion to remain published. (Cox, supra, 94 Cal.App.4th 1371, review den. Mar. 20, 2002, S104197.) We view the court of appeal's published decision in Cox as the most recent, and therefore controlling, authority on this question.
In any event, we are in substantial agreement with the holding and result in Cox. Although under Garcia, knowledge is required for willfulness, forgetting a fact does not negate the preexisting knowledge thereof. To the contrary, forgetfulness requires the preexistence of knowledge, since one cannot forget something unless one already knows it. Knowledge is defined as "the fact of knowing a thing," or personal acquaintance with some fact or thing. (8 Oxford English Diet. (2d ed.1989) p. 517.) The opposite of knowledge is ignorance. Because knowledge of the registration requirement is a necessary element of the crime as defined by section 290, subdivision (g), in this instance ignorance of the law must be a defense to a charge of failing to register under section 290. However, forgetfulness is neither a loss of knowledge, nor a form of ignorance. Although forgetfulness may temporarily or momentarily negate the immediate awareness that one must undertake a given action at a given time, it does not alter or affect the underlying knowledge that such *815 action is required. If someone forgets something he or she already knows, a simple reminder is generally sufficient to restore the preexisting knowledge to awareness. Thus, one may know that one has an obligation, even if one has a temporary lapse in awareness thereof at the particular moment the obligation is due to be performed. In contrast, if one does not know something in the first instance, no amount of reminding will bring it to awareness until actual knowledge of the fact is imparted. Forgetting something is fundamentally different from not knowing that thing.
The dissent states that the term willfully as used in section 290, subdivision (g) "has meaning only if it is interpreted to require a conscious determination not to register, as distinguished from inadvertence or forgetfulness, in order to impose criminal liability." Once again, we respectfully disagree. A "conscious determination not to register" is an example of the kind of specific intent or mental state that is not required in a general intent crime like the one at issue. (People v. Johnson, supra, 67 Cal.App.4th at pp. 71-72, 78 Cal. Rptr.2d 795.) The element of willfulness simply requires that the defendant have actual knowledge of the registration requirement. It does not create any additional element of a specific intent not to register. Because section 290 is a general intent crime, conviction requires proof only that a defendant failed to register despite having knowledge of the registration obligation. (Johnson, at pp. 71-72.) The "willfulness" requirement does not protect a properly informed and knowledgeable defendant from criminal liability if the obligation inopportunely slips his mind.[10]
By following Cox in ruling that forgetfulness is not a defense to the charge in this case, we neither transform failure to register into a strict liability offense, nor do we eliminate general intent as an element of the crime. In a strict liability crime, ignorance of the law is no excuse, and one may be convicted even in the absence of any knowledge of the requirements of the statute. Failure to register would be a strict liability offense only if knowledge of the statutory obligation were not required. However, as seen, one may not be guilty of a violation of section 290 if one is ignorant of the law. (Garcia, supra, 25 Cal.4th at p. 754, 107 Cal.Rptr.2d 355, 23 P.3d 590.) Moreover, the only intent required for a general intent offense like the one at issue in this case "is the purpose or willingness to do the act or omission." (People v. Johnson, supra, 67 Cal.App.4th at p. 72, 78 Cal.Rptr.2d 795, italics added.) Thus, "[t]he willfulness element of Penal Code section 290 is satisfied by a purposeful *816 or willing omission." (Ibid., italics added.) Because forgetfulness neither negates knowledge nor constitutes ignorance, a defendant will be liable for failing to register once it is established that he had actual knowledge of the statutory obligation to do so, regardless of whether he temporarily forgot. He willfully i.e., willingly failed to assume a responsibility to abide by the law of which he cannot be said to have been ignorant. Here, it is clear that appellant had actual knowledge of the registration requirement. Yet he did not take that requirement seriously enough to do whatever it took to remember to abide by the law. He was willing to risk the omission, and must pay the penalty for that willful failure.
Contrary to the dissent, the crime of perjury is not analogous to the offense of failing to register in compliance with section 290. Unlike the crime at issue, perjury is a crime of commission rather than omission. Perjury requires the willful act of stating as unqualifiedly true some material matter which the defendant either knows to be false, or does not know to be true. (§§ 118, 125.) Thus, the element of willfulness in perjury requires proof the defendant made the statement with the consciousness that it was false, or else with the consciousness that he did not know it was true and with intent that it should be received as a statement of true fact. (People v. Hagen (1998) 19 Cal.4th 652, 663-664, 80 Cal.Rptr.2d 24, 967 P.2d 563 (Hagen); People v. Von Tiedeman (1898) 120 Cal. 128, 135, 52 P. 155; People v. Tolmachoff (1943) 58 Cal.App.2d 815, 821, 138 P.2d 61.) The willfulness element of perjury does not make forgetfulness a defense thereto. The key to perjury is the honesty of the witness's testimony concerning facts, not whether or not the witness has forgotten the facts. If one simply forgets one's former knowledge of the facts, one may still testify truthfully that one is unable to recall them, and avoid committing perjury. On the other hand, if a person has forgotten the facts and nonetheless goes ahead and testifies thereto not knowing whether his testimony is true or false, he has committed perjury. (§ 125.) Moreover, unlike the offense of failing to register, conviction of perjury does not require proof that the defendant had actual knowledge of the requirements of the perjury statute. There is simply no similarity between the two crimes, and the elements of perjury offer no support for the alleged defense of forgetfulness.
The dissent also analogizes to duties arising in the context of federal statutes dealing with taxation, immigration and military selective service. We believe that any analogy between these statutes and the registration requirement at issue is strained at best. In the principal California case cited by the dissent in support of the alleged analogy, our Supreme Court itself made clear the fact that "mistake or ignorance of the penal law is almost never a defense," and any exception to the usual common law rule that ignorance of law is no excuse has been limited to situations in which an individual's misunderstanding or ignorance of civil statutory provisions may be pertinent to some corollary penal sanction. (Hagen, supra, 19 Cal.4th at pp. 660-661, 80 Cal.Rptr.2d 24, fn. 4.)[11] At *817 least according to Hagen, then, the general rule that ignorance of the law is no excuse continues to apply in the context of criminal statutory duties.
The dissent urges that permitting a defendant to offer forgetfulness as a defense to the charge of willful failure to register, and instructing the jury to evaluate the credibility of such a claimed defense, would not impose an insuperable burden on the prosecution in section 290 cases. Although our disagreement is with the premise of the dissent's argument the validity of the claimed forgetfulness defense we also disagree with the assumption that such a defense might easily be tried in practice. Even with a carefully crafted instruction, allowing forgetfulness as a defense places the burden on the prosecution to prove a negative that the defendant did not forget the knowledge as claimed. Assuming that it may be relatively easy to prove intent inferentially from circumstantial evidence, or to infer a defendant's knowledge from proof of actual notice, the same cannot be said of proving the fact that a defendant failed to forget something he already knew. Unlike the positive state represented by actual knowledge of a fact, forgetfulness, or the loss of awareness of a fact, is itself a negative condition. Inferring the absence of this negative state of forgetfulness from proof that a defendant was given actual notice of the registration requirement is far more difficult than inferring the presence of the positive state of knowledge. Yet each time the prosecution proves that a defendant was given such actual notice of the registration requirement, the defendant could claim that he simply "forgot it." The practical difficulties presented in trying to enforce the dictates of section 290 in the face of this "defense" seem to us all too obvious.
The people of this State, through their Legislature, have imposed in section 290 a yearly registration requirement on convicted sex offenders. The dissent urges that the consequences of inadvertently forgetting to comply with this requirement are too "draconian" for the courts to disallow a convicted sex offender from asserting his *818 alleged forgetfulness as a defense to the charged crime of failing to register. But there are some responsibilities which are so important they simply cannot be forgotten. The registration requirement established by section 290, subdivision (a)(1) is one of these responsibilities. It is fixed and ongoing, and does not expire or diminish over time. Nor are the consequences of failing to comply ameliorated or reduced by good behavior or life changes. Appellant owed it to himself as well as to society to remember to fulfill the statutory responsibility to register annually at the time of his birthday. He concededly had longstanding actual knowledge of this important responsibility. It was a responsibility the law does not permit him to forget, or as he initially stated, to ignore because he was "too busy."
In sum, we hold that simply forgetting is not a defense to a charge of violating section 290, and appellant's present claim that he lacked the necessary willfulness to commit the charged offense because he forgot the annual registration updating requirement is meritless. For that reason, the trial court did not err in instructing the jury that "forgetting to register by itself does not provide a defense to a charge of willful failure to register." The instruction was a correct statement of the law; forgetting the mandatory registration requirement of section 290 is simply not a legitimate defense to the charge of willfully failing to register. Section 290 imposes a duty upon all registrants, once they have received and understood advisement of the duty to register, to remember and fulfill that legal obligation. We do not believe the Legislature intended that a defendant could successfully evade this duty by claiming that "I totally forgot about it." "The willfulness element of section 290 requires actual knowledge of the registration requirement. We take that to mean that the defendant has become actually aware of the duty to register. Once a person is made aware of the registration responsibility, he or she may not defend on the basis that the requirement simply 'slipped' his or her mind." (Cox, supra, 94 Cal.App.4th at p. 1377, 115 Cal.Rptr.2d 123.)
ALLEGED UNFAIR PRECLUSION OF DEFENSE
Appellant next asserts that, independent of whether forgetfulness is a legitimate defense to the charge of willfully failing to register, he was denied due process of law by the trial court's jury instruction to that effect after appellant "had been allowed" to offer evidence that he had forgotten to update his registration because of "how busy he was at Project 90," and had then relied on that evidence in arguing to the jury that his failure to update was not willful because it was the product of his forgetfulness. In appellant's words, "[t]he error was not in the content of the instruction per se but it was the denial of a fair trial by allowing appellant to rely on a defense and then precluding the jury from considering it." Appellant offers no citations to any authority in support of this creative line of reasoning.
When the jury sent the trial court a message during deliberations asking whether forgetting to register was a willful act, the court was obliged to answer according to the law. It had no duty to instruct on a defense unsupported by substantial evidence (People v. Barton (1995) 12 Cal.4th 186, 201, 47 Cal.Rptr.2d 569, 906 P.2d 531), and certainly was not permitted to give an instruction that was either misleading or incorrect as a matter of law. (People v. Ashmus (1991) 54 Cal.3d 932, 994, 2 Cal.Rptr.2d 112, 820 P.2d 214; People v. Gordon (1990) 50 Cal.3d 1223, 1275, 270 Cal.Rptr. 451, 792 P.2d 251.) Contrary to appellant's unsupported assertion, the trial court was not required to bolster appellant's purported "I forgot" defense *819 by giving the jury a response in any way suggesting that, despite a defendant's actual preexisting knowledge of his legal obligation to register, a willful failure to do so might be excused by sheer forgetfulness. In responding to the jury's note with the instruction that "forgetting to register by itself does not provide a defense to a charge of willful failure to register," the trial court simultaneously gave a correct statement of the law, and avoided the pitfall of misleading the jury. (Cox, supra, 94 Cal.App.4th at pp. 1376-1377, 115 Cal.Rptr.2d 123.)
Appellant nevertheless insists that even if the instruction was technically correct, giving it at that stage of the trial "unfairly pulled the rug out from under" appellant and his counsel, undermining their credibility and appellant's basic defense at trial. Although a trial court may be precluded from barring or undermining a particular defense once it has expressly ruled that it was available (cf. People v. Quartermain (1997) 16 Cal.4th 600, 616-623, 66 Cal. Rptr.2d 609, 941 P.2d 788 [prosecution's use of defendant's pretrial statement to impeach his trial testimony, in breach of pretrial agreement with defendant not to use the statement in court, was fundamentally unfair and a violation of due process] ), there is no rule stating that a trial court's silence on a particular issue may induce a defendant's detrimental reliance thereon and prevent subsequent jury instructions on that issue unfavorable to the defense. Here, there was no pretrial agreement between the parties or ruling by the trial court permitting appellant to rely on the defense that forgetfulness may negate willfulness for purposes of section 290. The trial court simply allowed appellant to present evidence of his duties at Project 90, thereby permitting the jury to draw the inference that appellant was too busy to remember to register. The trial court's silence on the question whether forgetting was a defense apparently prompted the jury's inquiry on this point. The trial court's response to the jury's question was legally appropriate, and appellant was not denied due process thereby.
Moreover, the trial court's instruction did not preclude the jury from considering the evidence of appellant's forgetfulness in determining whether his failure to register was willful. The trial court specifically advised the jury that forgetting to register "by itself" did not constitute a defense to the charges. The clear implication of this instruction was that the evidence of appellant's busy schedule and resulting forgetfulness might, in combination with other evidence bearing on the issue of willfulness, be considered in determining whether appellant's failure to update his registration within the statutory time frame was "willful." Thus, the trial court's instruction did not actually exclude the jury's consideration of appellant's evidence or defense. It simply and correctly stated that forgetfulness alone cannot negate willfulness.
SUFFICIENCY OF EVIDENCE OF APPELLANT'S BIRTH DATE
Finally, appellant contends that he was denied due process because he was wrongly convicted without sufficient evidence of the corpus delicti of the offense specifically, the actual date of his birth, within five days of which he was obliged to update his registration by means of evidence independent of his own extrajudicial statements. Appellant's contention is meritless.
"Distilled to its essence, the corpus delicti rule requires that the prosecution establish the corpus delicti of a crime by evidence independent of the defendant's extrajudicial inculpatory statements before he or she may be held to answer a criminal complaint following a preliminary examination, be convicted of an offense, or hear the *820 statements repeated as evidence in court. [Citation.] The corpus delicti in turn consists of at least slight evidence that somebody committed a crime." (People v. Ochoa (1998) 19 Cal.4th 353, 450, 79 Cal. Rptr.2d 408, 966 P.2d 442.)
Appellant impliedly concedes that with his extrajudicial statements, the evidence was sufficient to prove his birthday. Indeed, the record contains several express admissions by appellant that his birthday was on March 5, as well as abundant police records evidencing that fact. Appellant never objected to the admission of any of this evidence on corpus delicti grounds. Of equal importance, he never asserted the insufficiency of the evidence of his birthday based on the corpus delicti rule.
"By failing to object, [appellant] cannot now complain the evidence was improperly admitted. [Citation.] It may well be that `proof of the corpus delicti was available and at hand during the trial, but that in the absence of [a] specific objection calling for such proof it was omitted.' [Citation.]" (People v. Wright (1990) 52 Cal.3d 367, 404, 276 Cal.Rptr. 731, 802 P.2d 221.) "A defendant cannot on review complain of insufficiency of evidence based on improper admission of corpus delicti evidence where defendant omitted to interpose a specific objection on the ground of the corpus delicti rule, especially when `[i]t may well be that "proof of the corpus delicti was [otherwise] available. . . ." [Citation.]' [Citation.]" (People v. Sally (1993) 12 Cal.App.4th 1621, 1628, 16 Cal. Rptr.2d 161; see also People v. Martinez (1994) 26 Cal.App.4th 1098, 1103-1104, 31 Cal.Rptr.2d 869 [same].) Because he failed to object at trial to the admission of the evidence of his birth date on the ground of violation of the corpus delicti rule, appellant may not now for the first time on appeal rely on that rule to attack the sufficiency of the evidence to support his conviction. (People v. Sally, supra, 12 Cal.App.4th at p. 1628, 16 Cal.Rptr.2d 161.)
Appellant's current contention is meritless for another reason. To establish the corpus delicti of an offense, only a "slight or prima facie showing" is required. (People v. Jennings (1991) 53 Cal.3d 334, 364, 279 Cal.Rptr. 780, 807 P.2d 1009; see also People v. Ochoa, supra, 19 Cal.4th at p. 450, 79 Cal.Rptr.2d 408, 966 P.2d 442; People v. Kraft (2000) 23 Cal.4th 978, 1057, 99 Cal.Rptr.2d 1, 5 P.3d 68; People v. Diaz (1992) 3 Cal.4th 495, 528-529, 11 Cal. Rptr.2d 353, 834 P.2d 1171.)[12] By this standard, the evidence of appellant's birth date was plainly sufficient. The records and files of the Department of Justice and the San Mateo Police Department going back to 1988 consistently refer to appellant's birth date as March 5, 1950. Contrary to appellant's assertion on this appeal, *821 there is nothing in the record to support the alleged inference that only he himself could have been the ultimate source of the birth date information contained in these public records. The Police Department files were public records, of which "[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1280, subd. (c); see People v. Monreal (1997) 52 Cal.App.4th 670, 678, 60 Cal.Rptr.2d 737.) Even if the ultimate source of this information in the public records was appellant himself, the fact remains that March 5, 1950, has been accepted as his actual birth date for as long as he has been obliged to register as a sex offender. Assuming hypothetically that appellant's own statements were the ultimate source of this information, certainly the fact it has been accepted as true for over twelve years by the public, the Department of Justice, and appellant himself is "slight or prima facie" evidence of the truth of that fact, and therefore sufficient for purposes of the corpus delicti rule.[13]
In sum, the corpus delicti having been established by competent evidence, we conclude there was sufficient evidence to support appellant's conviction of the charged offense of violating section 290.
DISPOSITION
The judgment is affirmed.
I concur: CORRIGAN, J.
POLLAK, J., Dissenting.
The majority concludes that if one forgets to do something, that person has willfully failed to perform the act that he or she has forgotten. This conclusion and the decision in People v. Cox (2002) 94 Cal. App.4th 1371, 115 Cal.Rptr.2d 123 (Cox), on which the majority relies, eliminate the critical element of willfulness from the statute involved in this case, disregard the legislative history as well as the language of that very statute, misconstrue controlling authority of the California Supreme Court and, with all respect, distort fundamental principles of our criminal law. If permitted to stand, I believe this decision will plant disturbing confusion into an important field of law, as well as work a grave injustice in this case.
For the reasons explained in People v. Edgar (2002) 104 Cal.App.4th 210, 218-219, 127 Cal.Rptr.2d 662 (Edgar), I disagree with the majority's conclusion that the initial instructions given to the jury on the subject of willfulness (CALJIC No. 1.20) and general intent (CALJIC No. 3.30) sufficiently advised the jury of the necessary elements of the charged offense, including actual knowledge. As in Edgar, "[t]he trial court in this case gave the same willfulness instruction found inadequate in Garcia [(2001) 25 Cal.4th 744, [107 Cal. Rptr.2d 355, 23 P.3d 590]] ([s]ee CALJIC No. 1.20)" and "like the `"ignorance of the law is no excuse"' instruction (CALJIC No. 4.36) given in Garcia, the general intent instruction given here (CALJIC No. 3.30) `on its face would allow the jury to convict [appellant] of failing to register even if he were unaware of his obligation to do so.' (People v. Garcia, supra, 25 *822 Cal.4th at p. 754, [107 Cal.Rptr.2d 355, 23 P.3d 590].)" (Edgar, supra, 104 Cal. App.4th at p. 219, 127 Cal.Rptr.2d 662.)
However, regardless of the sufficiency of these CALJIC instructions, here, in response to a specific inquiry in the midst of its deliberations, the jury was instructed that "forgetting to register by itself does not provide a defense to a charge of willful failure to register." This supplemental instruction was wrong, and prejudicially compounded the effect of the error in the initial instructions.
There are numerous reasons for which Cox was wrongly decided. Cox held that forgetting is not an available defense to the crime of failing to register under Penal Code section 290.[1] The Cox court reasoned that "Forgetting presupposes knowledge. Appellant, in our view, conceded that he had actual knowledge of the registration requirement. Human beings store in their brains a myriad of facts. At any given time the vast majority of those facts are in storage waiting for some cue to bring them to conscious recognition. A spouse may forget a wedding anniversary, a patient a medical appointment; such lapses arise not from a lack of actual knowledge but a failure to respond to cues. Persons keep calendars and appointment books, ask others to remind them of duties and obligations and tie strings around their fingers all to insure that important responsibilities are met. We conclude that within this context one willfully fails to register when possessed of actual knowledge of the requirement he or she forgets to do so." (Cox, supra, 94 Cal.App.4th at p. 1376, 115 Cal.Rptr.2d 123.) The court then concluded that this interpretation of the statute is consistent with the public policy embodied in the registration statute, emphasizing the "great importance that those who have committed qualifying sex offenses be readily available for police surveillance." (Id. at p. 1377, 115 Cal.Rptr.2d 123.)
This conclusion reads the critical term "willfully" out of the statute. If correct, Cox means that once an individual learns of the requirement to register, he (or, rarely, she) as a matter of law will forever be deemed to retain that knowledge in his consciousness, and will be held strictly liable for the failure to re-register when required to do so, regardless of whether the failure results from a conscious decision not to register or from mere inadvertence. The majority here repeatedly endorses this view that, as a matter of law, knowledge is permanent, so that once one has been told of the need to register, any failure to do so when required is necessarily willful as long as the individual is not physically restrained from complying. (Maj. opn. ante, pp. 812-814.)
Simply as a matter of common understanding, there is no doubt that "merely forgetting to do an act does not equate with intentionally and willfully refusing to do it." (Grumet v. State (Fla.Ct.App.2000) 771 So.2d 39, 44 (cone. opn. of Farmer J.) [revocation of probation for failure to register as sex offender as required by Florida statute remanded for clarification of whether trial court determined that defendant did not forget requirement].)[2] Indeed, *823 the word "forget" is defined as "[t]o omit or neglect through inadvertence; . . . to cease or omit to think of, let slip out of the mind, leave out of sight, take no note of (Oxford English Dictionary (2d ed.1989)). I shall explore more fully the meaning of "willfully" in the discussion below, but whatever else the term may mean, it is the opposite of inadvertently. One who forgets to do something such as celebrate a wedding anniversary, or keep a medical appointment, using the examples in Cox does not willfully insult their spouse or willfully stand up their doctor. Whatever the consequences of such an inadvertent omission may be, if one has forgotten, the omission is not willful.
Appellant was charged with violating section 290, subdivision (g)(2), which punishes any person required to register under section 290, subdivision (a)(1) based on a felony conviction "who willfully violates any requirement" of the section. The inclusion of the qualifier "willfully" was not inadvertent. In tracing the history of section 290, one finds that the Legislature repeatedly amended the penal provisions of the statute, generally to include willfulness as an element of the offense when increasing the punishment. Prior to 1979, former section 290 provided simply that "[a]ny person required to register under the provision of this section who shall violate any of the provisions thereof is guilty of a misdemeanor." (Stats.1947, ch. 1124, § 1, p. 2562.) Simple failure to register constituted the misdemeanor; there was no element of willfulness. In 1979, while retaining the first sentence, the Legislature inserted two additional sentences in subdivision (f), mandating a minimum 90-day period of confinement for persons who had committed designated sex crimes and "willfully" failed to register as required by the statute. (Stats. 1979, ch. 944, § 8, p. 3256.)[3] Over the years, the penal provisions for failure to register, now in subdivision (g), were expanded to their present form. (See, e.g., Stats.1989, chs. 1316, 1402, 1407; Stats.1994, ch. 865, § 1.7, pp. 4351-4352; Stats.1994, ch. 867, § 2.7, p. 4393; Stats.1999, ch. 901, § 1.5, pp. 77-78.) Under the current subdivision (g)(1), one required to register because of a prior misdemeanor conviction or juvenile adjudication who "willfully violates any requirement of this section" is guilty of a misdemeanor. Similarly, except as provided in subdivisions (g)(5) and (g)(7), one required to register based on a felony conviction or juvenile adjudication who "willfully violates any requirement of this section," is guilty of a felony.[4] The exceptions provided in (g)(5) and (g)(7) are telling. Under subdivision *824 (g)(7), one "who fails to provide proof of residence," as required, is guilty of a misdemeanor punishable by imprisonment for no more than six months, and under subdivision (g)(5) a person adjudicated a sexually violent predator under section 6600 of the Welfare and Institutions Code "and who fails to verify his or her registration every 90 days as required" shall be punished by imprisonment for not more than one year.[5] Thus, individuals subject to registration who fail to provide the information referred to in subdivisions (g)(5) and (g)(7) are criminally liable for the omission whether or not their failure was willful, but these omissions are not punishable as felonies. Similarly, under subdivision (h), if a person released on parole or probation is required to register "but fails to do so within the time prescribed," the parole authority or the court "shall order the parole or probation of the person revoked." No element of willfulness is required.
Attempts have been made to further amend section 290 to delete willfulness as an element of the offense of failing to register. (See Assem. Bill Nos. 3513 and 1211 (1993-1994 Reg. Sess.) §§ 865, 864.) To date, however, all such efforts have been unsuccessful. In 1994, Assembly Bill No. 3513 was introduced, which sought to "delete the element of willfulness from the statute requiring sex offenders to register," as well as to increase the penalty for failure to register from a misdemeanor to a felony. (Assem. Bill No. 3513 (1993-1994 Reg. Sess.) § 865; Assem. Com. on Public Safety, Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) Apr. 5, 1994, p. 2.) "The purpose of the bill [was] to increase the penalties under the sex offender registration statute and to broaden its scope and application." (Cal. Sexual Assault Investigators Association, Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) Aug. 26, 1994, p. 3.) The analysis of the bill given by the Assembly Committee on Public Safety offered in support of the amendment that "Section 290 of the Penal Code is not effective in identifying the whereabouts of previously convicted sex offenders. To make the registration program successful, the sponsor, DOJ [Department of Justice], believes the failure to register should be elevated to a felony. In this time of limited resources, district attorneys generally do not have the resources to prosecute misdemeanors. Since failure to register is a misdemeanor, district attorneys generally do not file complaints for failure to register. As a result, sex offenders learn if they fail to re-register upon moving, law enforcement will not follow-up. It is estimated that much of the address information maintained by the DOJ registration program is out-of-date or incorrect." (Assem. Com. on Public Safety, supra, p. 4.) However, the bill was amended in the Senate and, as finally adopted, increased the penalties for a violation but retained the element of willfulness in section 290. (Sen. Amend, to Assem. Bill No. 3513 (1993-1994 Reg. Sess.) Aug. 9, 1994; Stats.1994, ch. 865, § 1, p. 4321; Stats.1994, ch. 867, § 2.7, p. 4393.)
Thus, the current statute reflects a considered legislative determination that the failure to comply with the registration requirements constitutes a basis to revoke parole or probation whether or not the failure was willful, but that only certain *825 failures to comply with these requirements are subject to an additional criminal punishment in the absence of willfulness. Most failures to comply, including the more serious failures to register that constitute a felony, are not subject to the additional penalties that the statute imposes unless the failure was willful.
Accordingly, in Garcia, supra, the Supreme Court rejected the Attorney General's argument that a violation of the statute is established by proof that a defendant who failed to register received actual notice of his registration obligations and that "actual knowledge is not an element of the offense." (25 Cal.4th at p. 751, 107 Cal.Rptr.2d 355, 23 P.3d 590.) The Supreme Court explained: "a sex offender is guilty of a felony only if he 'willfully violates' the registration or notification provisions of section 290. [Citations.] The word `willfully' implies a `purpose or willingness' to make the omission. (§ 7.) Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. As stated in People v. Honig (1996) 48 Cal. App.4th 289, 334, 55 Cal.Rptr.2d 555 `the term "willfully" . . . imports a requirement that "the person knows what he is doing." [Citation.] Consistent with that requirement, and in appropriate cases, knowledge has been held to be a concomitant of willfulness. [Fn. omitted.]' Accordingly, a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (Garcia, supra, 25 Cal.4th at p. 752, 107 Cal.Rptr.2d 355, 23 P.3d 590.)
The conclusion reached in Cox and reaffirmed here in effect, that a defendant is deemed to know whatever he once knew is inconsistent with both the language and the reasoning of Garcia. In Garcia the Supreme Court concluded that "the court's instructions on `willfulness' should have required proof that, in addition to being formally notified by the appropriate officers as required by section 290, in order to willfully violate section 290 the defendant must actually know of his duty to register." (25 Cal.4th at p. 754, 107 Cal. Rptr.2d 355, 23 P.3d 590, italics added.) The court said "know," not "knew" or "have known." Implicit in the court's analysis is that the defendant must have the necessary knowledge at the time he was required but failed to register not at some time in the past. The court referred to and relied upon the definition of "willfully" that appears in section 7, subdivision 1, that "when applied to the intent with which an act is done or omitted, [the term] implies simply a purpose or willingness to commit the act, or make the omission referred to."[6] One does not have a purpose or willingness not to register when one has forgotten that he must register. Indeed, *826 the court noted the fundamental requirement for a criminal conviction that, unless excluded expressly or by necessary implication, there must be mens rea, "a union of act and wrongful intent." (Garcia, supra, at p. 754, 107 Cal.Rptr.2d 355, 23 P.3d 590; § 20.) Such a union requires that the act and state of mind concur. (People v. Green (1980) 27 Cal.3d 1, 53-54, 164 Cal. Rptr. 1, 609 P.2d 468, overruled on different ground in People v. Martinez (1999) 20 Cal.4th 225, 237, 239, 83 Cal.Rptr.2d 533, 973 P.2d 512.)
It may be, as the Cox opinion states, that a registration requirement about which one has been told is "in storage" and could be brought to "conscious recognition" by some cue or reminder. But while the failure to keep a calendar or appointment book or tie a string around one's finger may fail "to [e]nsure that important responsibilities are met" (94 Cal.App.4th at p. 1376, 115 Cal.Rptr.2d 123), the failure to take such precautions does not convert the resulting omission into a willful act. Willfulness might be established if it were shown that the defendant consciously decided not to take measures that would remind him to register because he did not wish to bother registering.[7] But if the defendant made no such conscious determination, and simply overlooked the fact that the five-day window for re-registering had arrived, there is no sense in which his failure to re-register can be characterized as willful. A defendant's failure to have taken adequate measures to ensure that he did not overlook the need to re-register might well be negligent, but this characterization merely "import[s] a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns." (§ 7, subd. 2.) The "requirement of a willful (purposeful, willing or intentional) omission is more onerous than a negligent or reckless omission." (People v. Johnson (1998) 67 Cal.App.4th 67, 72, fn. 3, 78 Cal.Rptr.2d 795.)
Applying this basic distinction requires no elaborate differentiation between types of forgetfulness such as the majority constructs to justify its conclusion. (Maj. opn. ante, pp. 812, 813, 814.) Nor does acknowledging *827 this distinction convert section 290 into a specific intent crime, as the majority also suggests. To the contrary, the conclusion reached by the majority eliminates even general intent as an element of the crime. Since the offense created by subdivision (g)(2) is the willful failure to register as required by subdivision (a)(1), all that is required for a violation of subdivision (g)(2) is that the individual consciously determine not to register as required by subdivision (a)(1). In the words of section 7, there must be a purpose or willingness not to do what is required by subdivision (a)(1). It is not necessary that the defendant intend to violate subdivision (g)(2), and ignorance of the fact that failure to register as required by subdivision (a)(1) is an offense under subdivision (g)(2) is no defense. That, however, does not eliminate the requirement that the defendant at least have intended not to perform the act required by subdivision (a)(1) i.e., that the individual have intended not to register when required to do so.[8]
California's perjury statute provides a helpful analogy. Under section 118, one commits perjury only if, after having taken an oath, one "willfully and contrary to the oath, states as true any material matter which he or she knows to be false." (Italics added.) Past knowledge that one has forgotten is not sufficient. "The essential as to knowledge of falsity pertains to the condition of mind of the witness at the time he gives the alleged false statement." (People v. Wong Fook Sam (1905) 146 Cal. 114, 116, 79 P. 848, italics added.) And before one may be convicted of perjury, "it must be shown that he made such statement 'willfully' that is, with the consciousness that he did not know that it was true, and with the intent that it should be received as a statement of what was true in fact. . . . [T]he `willful' element in his testimony is quite as essential to the crime in the case of an unqualified statement of that which one does not know to be true, as in the case of a statement of that which one knows to be false. . . . [¶] `. . . [I]t is not perjury to swear honestly to testimony which the witness believes to be true, though a little diligence would have enabled him to have discovered its falsity.'" (People v. Von Tiedeman (1898) 120 Cal. 128, 135, 136, 52 P. 155; see also, e.g., People v. Tolmachoff (1943) 58 Cal.App.2d 815, 821, 138 P.2d 61 ["willfully" as used in perjury statute requires that the statement be made "with the consciousness that it was false; with the consciousness that he did not know that it was true"].)[9]
*828 I do not quarrel with the view expressed in Cox that the Legislature has ascribed great importance to the need for compliance with the registration requirements for those who have committed qualifying sex offenses. Nor do I question that the Legislature constitutionally could impose strict criminal liability on those who fail to register as required, so long as they have been given due notice of the need to register. (Cf. Lambert v. California (1957) 355 U.S. 225, 227, 78 S.Ct. 240, 2 L.Ed.2d 228; Garcia, supra, 25 Cal.4th at p. 753, 107 Cal.Rptr.2d 355, 23 P.3d 590.) In that event, a person required to register would act at his peril if he failed to take adequate measures to ensure that he remembered when it was time to re-register. Such a statute would indeed impose on the individual a "duty not to forget to perform" which the majority reads into the present statute. (Maj. opn. ante, p. 813.) Some states in fact have adopted sex-offender registration statutes that impose strict liability for failure to register by omitting the requirement that the failure be willful.[10] (State v. Beasley (Sept. 27, 2001) Ohio App., 2001 WL 1152871; People v. Patterson (2000) 185 Misc.2d 519, 708 N.Y.S.2d 815; cf. Grumet v. State, supra, 771 So.2d 39.) Under such a strict liability statute "a careless Sex Offender might simply forget about his registration obligation after a number of years have passed" but will have nonetheless "committed acts that fall within the statutory definition of the Crime of Failure-to-Register. . . ." (People v. Patterson, supra, at pp. 822-823.) New Hampshire, on the other hand, has made a sexual offender "who negligently fails to comply" with its registration requirements guilty of only a violation, while one who "knowingly" fails to comply is guilty of a misdemeanor for the first failure and of a felony for subsequent failures. (LXII N.H.Rev.Stat. Ann. § 651-B:9.) However, as pointed out above, and contrary to what the majority reads into section 290, California like many other states[11] has not adopted either approach, and the Legislature has rejected proposed amendments to the statute that would have eliminated the *829 willfulness requirement. As another division of this court observed in holding that one does not "willfully" discharge a firearm under section 246.3 if the person does not believe the gun is loaded, "we must give effect to the statute as written, not as it might have or should have been written." (In re Jerry R. (1994) 29 Cal. App.4th 1432, 1439, 35 Cal.Rptr.2d 155.)
Garcia emphasized, in determining the significance to be attached to the element of willfulness, that section 290 does not penalize affirmative conduct, but simply the "mere failure to act." (25 Cal.4th at p. 752, 107 Cal.Rptr.2d 355, 23 P.3d 590, italics in original.) A review of other statutes that penalize omissions underscores the difference between criminalizing a failure to do what the law requires, where forgetfulness is no excuse, and making the willful failure to take such action a crime, where the consequences are more severe but there is a correspondingly heavier burden to prove that the offender made a conscious decision not to comply.
Revenue and Taxation Code section 19701 makes it a strict liability offense, punishable as a misdemeanor, for a person to fail to file a tax return even if that person has no intent to evade the law.[12] (People v. Allen (1993) 20 Cal.App.4th 846, 850, 25 Cal.Rptr.2d 26.) In contrast, Revenue and Taxation Code section 19706 punishes as a felony those who willfully fail to file tax returns.[13] California law is based upon the federal model, which "provides a graduated scheme of civil penalties and misdemeanor and felony punishment to deter both honest mistakes and willful fraud." (People v. Hagen (1998) 19 Cal.4th 652, 662, 80 Cal.Rptr.2d 24, 967 P.2d 563.)[14]
Under federal law, 26 United States Code section 7203 punishes any person who willfully fails to a file a tax return, whereas 26 United States Code section 6651, subdivision (a) imposes a penalty upon a person who fails to file a specified return "unless it is shown that such failure is due to reasonable cause and not due to willful neglect." While a person who inadvertently forgets to file a federal tax return is not guilty of willfully failing to file a return under section 7203 (United States v. Rifen (8th Cir.1978) 577 F.2d 1111, 1113; United States v. Olson (8th Cir.1978) 576 F.2d 1267, 1272 fn. 4; United States v. Bengimina, supra, 499 F.2d at p. 119; see State v. Sinner (Mo.App.1989) 779 S.W.2d 690, 693), inadvertence, oversight, or forgetfulness *830 do not constitute reasonable cause under section 6651. (Weiss v. C.I.R. (1986) T.C. Memo 1986-469; Johnson v. C.I.R. (1966) T.C. Memo 1966-164; see also Murrill v. State Board of Accountancy (1950) 97 Cal.App.2d 709, 712-714, 218 P.2d 569 [plea of `'willful" failure to supply information for federal income tax computation shows omission was not negligent, inadvertent or an honest mistake, but dishonest, deceitful or fraudulent].)
Section 1302 of the Immigration and Naturalization Act (8 U.S.C. § 1302) requires aliens residing in the United States to register and be fingerprinted.[15] Section 1306, subdivision (a) of the Act provides that "any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted . . . shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both." (Italics added.) Section 1306, subdivision (b) of the Act, in contrast, provides in relevant part that "[a]ny alien or any parent or legal guardian in the United States of any alien who fails to give written notice to the Attorney General, as required by section 1305 [16] of this title, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $200 or be imprisoned not more than thirty days, or both." (Italics added.) The latter provision, imposing a lower fine and lesser jail time for its violation, is a strict liability offense under which the prosecutor is not required to prove a defendant's willfulness. (Legalization Assistance Project v. I.N.S. (9th Cir.1992) 976 F.2d 1198, 1208, fn. 16, vacated on other grounds in 510 U.S. 1007, 114 S.Ct. 594, 126 L.Ed.2d 560.)
Section 453 of the Military Selective Service Act (50 App. U.S.C.A. § 453) requires "every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration. . . ." Under section 462 of the Act, "any . . . person charged as herein provided with the duty of carrying out any of the provisions of this title . . . who shall knowingly fail or neglect to perform such duty . . . shall, upon conviction . . . be punished by imprisonment for not more than five years or a fine of not more than $10,000." (Italics added.) Because the statute requires that a defendant knowingly fail or neglect to report, an inadvertent failure to report is not a violation. (United States v. Johnson (2d Cir. 1971) 443 F.2d 189, 192 [affirming conviction on other grounds but implying that oversleeping might be considered inadvertent].)
These exemplary statutes, and others that might be cited,[17] emphasize the wide-spread *831 legislative and judicial recognition of the significant difference between a statute criminally punishing the mere failure to perform a legally required act, as to which forgetting provides no defense, and the willful failure to do so, for which the penalty typically is greater but which Jis not made out unless the failure reflects a conscious decision not to comply.
During oral argument in this case, it was suggested that the holding in Cox does not deprive the statutory requirement of willfulness of all meaning because it excludes from liability one who is unconscious or physically prevented from registering, for instance because the person is hospitalized or otherwise physically restrained from traveling to the registration site. The majority adopts this suggestion. (Maj. opn. ante, p. 813.) But even under statutes that impose strict criminal liability, physical impossibility provides a defense. Section 26 identifies classes of persons incapable of committing crimes, including, "[p]ersons who committed the act charged without being conscious thereof and "[p]ersons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." Unconsciousness is a complete defense to a criminal charge. (People v. Wilson (1967) 66 Cal.2d 749, 761, 59 Cal. Rptr. 156, 427 P.2d 820; People v. Newton (1970) 8 Cal.App.3d 359, 376-378, 87 Cal.Rptr. 394.) "Some mental state, if only consciousness, is required for every crime, even one termed a `strict liability' offense." (People v. Atkins (2001) 25 Cal.4th 76, 93, 104 Cal.Rptr.2d 738, 18 P.3d 660 (cone. opn. of Mosk, J.).) There is no criminal liability "as to failure to be present at a required time and place (e.g., a juror, witness, or soldier on leave) because of a flood or a broken bridge, or any other physical force that makes locomotion impossible." (Hall, General Principles of Criminal Law (2d ed.1947) p. 423.) Thus, to the extent that a defendant's failure to register is caused by some circumstance beyond his control, he would not be subject to criminal liability under section 290 even if the requirement of willfulness were deleted from the statute. Hence, the term "willfully" as it appears in section 290 subdivision (g) has meaning only if it is interpreted to require a conscious determination not to register, as distinguished from inadvertence or forgetfulness, in order to impose criminal liability. And of course it is a basic precept of statutory construction that every term be given meaning if reasonably possible to do so. (In re Jerry R., supra, 29 Cal. App.4th at p. 1437, 35 Cal.Rptr.2d 155 ["Whenever possible, we must give effect to every word in a statute and avoid a construction making a statutory term surplusage or meaningless. [Citations.] We cannot create an offense by . . . deleting words, or by giving terms false or unusual meanings."].)
Contrary to a further argument advanced to support the conclusion in Cox, recognizing that a failure to register because one forgot is not willful does not place an insurmountable evidentiary burden on the prosecution, or threaten to undermine enforcement of the registration statute.[18] "[F]rom the very beginning of the public welfare offenses to the present *832 time, there has been an unvarying insistence on the difficulty of proving mens rea; e.g. `to permit such a defense would be to allow every violator to avoid liability merely by pleading lack of knowledge and thus, practically, nullify the statute. . . .' [Fn. omitted.] This argument implies that even though mens rea exists, it is impossible to prove it, presumably because there are distinctive features in such cases that make this proof peculiarly difficult. But if we appraise the actual situation in this respect, without prejudging it, it is impossible to attach any great weight to that argument. It amounts to no more than a bare assertion or a mere guess. It is obviously at odds with what is actually done in countless prosecutions. Moreover, a glance at the law on various major crimes reveals many situations where serious difficulties must be overcome in proving mens rea, e.g. receiving stolen goods, numerous instances where ignorance of fact is a defense, and innumerable statutory provisions where knowledge must be shown. [Fn. omitted.] The burden of proof would obviously be lightened, indeed practically eliminated, if there were no need to prove mens rea. But even primitive law did not often attach punitive sanctions to harms totally unrelated even to negligence. . . . It has never occurred to anyone to assert that the mere denial by the defendant that he had knowledge, e.g. that the goods he purchased were stolen, foreclosed the opportunity of proof to the contrary. The fact that minor offenses are involved does not alter the prospects or methods of establishing mens rea. Instead, the judges of the facts may be expected to be less hesitant to find such offenders guilty. Nor should it be forgotten that proof of recklessness is sufficient to sustain penal liability; that not only lessens the burden of prosecution, it also conforms to established principles." (Hall, General Principles of Criminal Law, supra, pp. 348-350.)
It is well established that intent may be proven circumstantially. (1 Witkin, Cal. Evidence (3d ed. 1986) Circumstantial Evidence, § 408, pp. 381-382.) In Garcia itself, the Supreme Court recognized that "[although notice alone does not satisfy the willfulness requirement, a jury may infer from proof of notice that the defendant did have actual knowledge, which would satisfy the requirement." (25 Cal.4th at p. 752, 107 Cal.Rptr.2d 355, 23 P.3d 590, italics in original.) The court acknowledged that in some cases potential difficulties of proof have justified interpreting statutes to include criminal negligence, i.e., conviction based on what the defendant reasonably should have known, but it pointed out that these cases generally involve affirmative acts, and should not be applied to the registration statute which involves only the failure to act. (Ibid.) While it may be an easy matter for a defendant to say that he forgot, it is another matter to convince a jury that this is true. Grumet v. State, supra, 771 So.2d at page 43 illustrates that the trier of fact may well reject a defendant's "testimony that `he forgot all about it.'" The same has proven true in perjury prosecutions. (E.g., People v. Tolmachoff, supra, 58 Cal. App.2d 815, 821, 138 P.2d 61 [evidence sufficient to support jury's finding of willfulness, rejecting defendant's testimony that her prior statements reflected "her best recollection, honestly given, as to what occurred nearly a year prior to the time she testified"]; People v. Todd (1935) 9 Cal.App.2d 237, 244, 49 P.2d 611 ["The question of whether the false swearing is the result of an honest mistake or has been committed willfully, knowingly and corruptly is one of fact for the jury to decide [citation], and evidently the jury in the present case, as shown by its verdict, *833 did not believe the story told by appellant."].) Similarly, in the present case, the evidence of the explicit notifications given to defendant, his written acknowledgements of receiving and understanding these notices, his prior compliance with the registration requirements, and the importance of compliance which he presumably understood, would amply support a finding that defendant's failure to register was willful.
Nonetheless, the instructions given in this case improperly removed from the jury the opportunity to evaluate the credibility of defendant's claim that he did forget that it was time to re-register on the occasion in question. And unlike the situation in Garcia, supra, 25 Cal.4th 744, 107 Cal.Rptr.2d 355, 23 P.3d 590, there is no basis to suggest that the error was harmless. In Garcia, the defendant did not testify that he had forgotten to register. Rather, the only evidence he introduced to show lack of knowledge was his testimony that nobody had explained the registration requirement to him, and under the instructions which the trial court gave, the jury was required to find that defendant had been informed of the duty to register in order to convict. Since the only factual question presented by the evidence had been properly put to the jury, the court concluded that proper instructions on the knowledge requirement would have made no difference in that case. (Id. at p. 755, 107 Cal.Rptr.2d 355, 23 P.3d 590.) Here, in contrast, the defendant acknowledged that he was properly notified of the registration requirement but testified that, under the particular circumstances, which he described, he had forgotten that it was time to re-register. The inquiry submitted by the jury in the middle of deliberations, asking "Is forgetting to register [sic] a 'willful' [sic] act according to the law," shows unmistakably that some or all members of the jury believed, after hearing defendant's testimony, that its credibility was entitled at a minimum to serious consideration.[19] Under these circumstances, it is impossible to conclude that it is not reasonably probable that a result more favorable to the defendant would have been reached if the correct instructions had been given. But in all events, since the instructions as augmented by the trial judge's response to the jury's explicit question effectively denied defendant his constitutional right to have his factual defense determined by the jury, the standard is whether the error was harmless beyond a reasonable doubt the standard applied in Garcia. (Id. at p. 755, 107 Cal.Rptr.2d 355, 23 P.3d 590; see also People v. Flood (1998) 18 Cal.4th 470, 479-482, 76 Cal. Rptr.2d 180, 957 P.2d 869.) In view of the specific inquiry from the jury, there can be no question that the error here was not harmless beyond a reasonable doubt.
More than 20 years ago, Barker was convicted of a serious sex crime. He was duly sentenced to a lengthy term of imprisonment, which he served. Upon his release from prison, he registered as required by section 290 and for five years he timely re-registered annually in accordance with the statute. During this period, he made progress in pulling his life together, finding employment and committing no further offenses. When he missed the window for his annual re-registration by less than three days assertedly because *834 he overlooked the filing period in the press of extraordinary job demands he hurried to the police station to re-register within an hour of being reminded of the need to do so. For this, he has been removed from society for an additional nine years.
If Barker consciously chose to disregard the deadline for his annual re-registration, he has no one but himself to blame for incurring the severe consequences that the statute imposes for a willful failure to comply. However, if his oversight was inadvertent, the law does not impose such draconian consequences. However dubious this court may be that he truly forgot, as he testified, members of the jury who heard his testimony apparently were not so skeptical. Our Constitution guarantees a defendant the right to have the jury weigh the credibility of his testimony against the weight of the evidence offered by the prosecution to show that his failure to timely register was purposeful. Barker was denied that right and is entitled to a new trial.
For these reasons, I would reverse the conviction and remand for a new trial under proper instructions.
NOTES
[1] Unless otherwise indicated, all further statutory references are to the Penal Code.
[2] "In a case like this, involving a failure to act, we believe section 290 requires the defendant to actually know of the duty to act. . . . [A] sex offender is guilty of a felony only if he 'willfully violates' the registration or notification provisions of section 290. [Citations.] The word `willfully' implies a `purpose or willingness' to make the omission. [Citation.] Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. . . . `[T]he term "willfully" . . . imports a requirement that "the person knows what he is doing." [Citation.] Consistent with that requirement, and in appropriate cases, knowledge has been held to be a concomitant of willfulness Accordingly, a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (Garcia, supra, 25 Cal.4th at p. 752, 107 Cal.Rptr.2d 355, 23 P.3d 590.)
"Accordingly, we conclude the [trial] court's instructions on `willfulness' should have required proof that, in addition to being formally notified by the appropriate officers as required by section 290, in order to willfully violate section 290 the defendant must actually know of his duty to register. We also conclude that the court erred in giving an 'ignorance of the law is no excuse' instruction (CALJIC No. 4.36), which on its face would allow the jury to convict defendant of failing to register even if he were unaware of his obligation to do so. . . . [Although the `no excuse' principle is `deep in our law, . . . due process places some limits on its exercise.' [Citations.] In the registration act context, the jury must find actual knowledge of the act's legal requirements." (Id. at p. 754, 107 Cal.Rptr.2d 355, 23 P.3d 590.)
[3] We note that Edgar is distinguishable from this case on its facts. In Edgar, there was substantial evidence that although the defendant had acquired one or more additional addresses during the relevant time period, he had never abandoned the original residential address at which he had previously registered. Because during the time applicable to Edgar neither section 290 itself nor the registration documents given to the defendant addressed the issue of multiple residences, Division Two concluded he did not have clear notice of what he had to do to comply with his registration responsibilities under the statute, and the trial court's jury instructions effectively imposed criminal liability for failing to register "without any need for the jury to find that [the defendant] actually knew the law required him to register multiple residences." (Edgar, supra, 104 Cal.App.4th at p. 220, 127 Cal.Rptr.2d 662.) Moreover, even though there was evidence at trial that the defendant had actual knowledge of his general duty to register a change of address with the appropriate law enforcement agency, there was no evidence showing he also knew that his acquisition of a temporary second residential address (at a transient hotel or homeless shelter) constituted a "change in residence" for purposes of section 290, requiring registration of the new address. On this basis, Division Two "concluded that the trial court's instructions together with the evidence adduced at trial make it highly unlikely that a properly instructed jury would have found that [the defendant] actually knew of the requirement to register his additional addresses." (Id. at pp. 221-222, 127 Cal. Rptr.2d 662, fn. 13.)
The circumstances before us are clearly different. Here, there were no multiple simultaneous residential addresses, with the corresponding issue of whether the section 290 registration requirement applies to them. Unlike the defendant in Edgar, appellant admitted having received advisement of the registration requirement applicable to his actual residential situation. There was no evidence presented at all to show that appellant did not receive and understand his obligation to re-register. The central issue in this case was whether appellant's registration requirement was excused because it happened to slip his mind. Edgar did not address this issue, and its holding is not authority for appellant's contention that forgetfulness is a valid defense to a section 290 charge.
[4] In pertinent part, section 7 provides as follows: "The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: [¶] 1. The word `willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (Italics added.)
We do not read the statutory definition as being inconsistent with the Supreme Court's holding that it was error to instruct the jury that ignorance of the law is no excuse. The statement in section 7 that willfulness "does not require any intent to violate law" simply makes clear the fact that the crime at issue is a general intent crime, and that no specific intent or mental state is required. (People v. Johnson (1998) 67 Cal.App.4th 67, 71-72, 78 Cal.Rptr.2d 795.) This language in section 7 does not in any way imply that ignorance of that law may be an excuse; nor does it contradict the Supreme Court's holding that "[i]n the registration act context, the jury must find actual knowledge of the act's legal requirements." (Garcia, supra, 25 Cal.4th at p. 754, 107 Cal.Rptr.2d 355, 23 P.3d 590.) One may have actual knowledge of the statutory registration requirement and yet willfully fail to comply without any specific intent to violate the law. All that is required for violation of section 290 is a willing failure to register, without any other specific intent or mental state. (People v. Johnson, supra, 67 Cal. App.4th at p. 72, 78 Cal.Rptr.2d 795.)
[5] To this extent, we respectfully disagree with that portion of the opinion of our colleagues in Division Two of this court stating that the trial court's instructions to the jury in that case which included both CALJIC No. 1.20 and CALJIC No. 3.30 "did not tell the jury about the necessity that [the defendant] purposefully violate the registration statute." (Edgar, supra, 104 Cal.App.4th at p. 220, 127 Cal.Rptr.2d 662.)
[6] At oral argument, counsel for appellant acknowledged that the offense at issue in this case is a general intent crime.
[7] Appellant also suggests a third or intermediate kind of forgetfulness, of the kind where a person is aware he or she cannot remember some needed information, and merely needs a means of refreshing or "prompting" his or her recollection to bring it immediately to mind. There is no evidence of this kind of forgetfulness in this case.
[8] "We conclude there is a fundamental difference between Garcia's claim [in People v. Garcia, supra, 25 Cal.4th 744, [107 Cal. Rptr.2d 355, 23 P.3d 590]] that he did not know he was required to register and appellant's claim that he forgot to register. Forgetting presupposes knowledge. Appellant, in our view, conceded that he had actual knowledge of the registration requirement. Human beings store in their brains a myriad of facts. At any given time the vast majority of those facts are in storage waiting for some cue to bring them to conscious recognition. A spouse may forget a wedding anniversary, a patient a medical appointment; such lapses arise not from a lack of actual knowledge but a failure to respond to cues. Persons keep calendars and appointment books, ask others to remind them of duties and obligations and tie strings around their fingers all to insure that important responsibilities are met. We conclude that within this context one willfully fails to register when possessed of actual knowledge of the requirement he or she forgets to do so.
"We think it is inconceivable the Legislature could have intended otherwise. Because the Legislature believed it is essential the authorities know at all times the whereabouts of those who have been convicted of committing sex offenses, it has created a demanding and rigorous registration scheme. [Citation.] [¶] . . . [¶]
"The Legislature obviously believes it is of great importance that those who have committed qualifying sex offenses be readily available for police surveillance. [Citation.] To this end the Legislature has created a registration scheme that places strict demands not only on registrants but also on state and local agencies. The legislation also contains strict requirements for notification to registrants of their obligations under section 290. In the face of such rigorous notification and registration requirements, it is unreasonable to believe that in this context the Legislature intended that a mere lapse of memory would excuse a failure to register. There are simply some things that cannot be forgotten. To allow forgetfulness to excuse a failure to register, would serve, in this context, as an incentive not to remember.
"The willfulness element of section 290 requires actual knowledge of the registration requirement. We take that to mean that the defendant has become actually aware of the duty to register. Once a person is made aware of the registration responsibility, he or she may not defend on the basis that the requirement simply `slipped' his or her mind." (Cox, supra, 94 Cal.App.4th at pp. 1376-1377, [115 Cal.Rptr.2d 123].)
[9] Certainly, if appellant was hospitalized or snow-bound at a remote location, his failure to appear at the police station and register would not have been done willingly. Here, however, appellant had the ability to do what the law required. He willingly that is, willfully chose to do other things for five days. Knowing his obligation and willfully choosing to do other things, he broke the law.
[10] Quoting from the concurring opinion in a Florida appellate case, the dissent avers that "[s]imply as a matter of common understanding, there is no doubt that `merely forgetting to do an act does not equate with intentionally and willfully refusing to do it.' [Citation.]" Even if one may agree with this thought in the abstract, it does not address the statute at issue. The question before us is not whether "merely forgetting" to register equates with "intentionally and willfully refusing" to comply with the statute. Section 290 does not require that a defendant intentionally and willfully refuse to register; it simply requires that he or she willfully fail to do so. (Garcia, supra, 25 Cal.4th at pp. 751-752, 107 Cal. Rptr.2d 355, 23 P.3d 590.) A willful failure to do something is not the same thing as a refusal. The first simply requires knowledge of the required act; the second implies an active intent to frustrate its fulfillment. We can find no authority for the proposition that by using the word "willful," section 290 requires proof of this kind of active intent to thwart the statute by refusing to perform the registration obligation. To the contrary, no such specific intent is required for commission of a general intent crime like the one at issue in this case. (People v. Johnson, supra, 67 Cal.App.4th at pp. 71-73, 78 Cal.Rptr.2d 795.)
[11] In Hagen, the Supreme Court affirmed a defendant's conviction for three felony counts of willfully making and subscribing a tax return without belief in its material truth under Revenue and Taxation Code, former section 19405, subdivision (a)(1) (now Rev. & Tax. Code, § 19705, subd. (a)(1)). The pertinent statute "punished as a felony any person who `[w]illfully makes and subscribes any return, statement, or other document, that contains or is verified by a written declaration that it is made under the penalties of perjury, and that he or she does not believe to be true and correct as to every material matter.' [Citation.]" (Hagen, supra, 19 Cal.4th at pp. 658-659, 80 Cal.Rptr.2d 24, 967 P.2d 563.) Although the Supreme Court held that the use of the word "[w]illfully" in the statute "created an exception to the common law presumption that ignorance or mistake of law is no defense" (id. at p. 660, 80 Cal.Rptr.2d 24, 967 P.2d 563), the court was careful to emphasize that any such exception to the usual common law rule was limited to a person's misunderstanding or ignorance of the civil, nonpenal provisions of statutes imposing penal sanctions. "Neither this court nor the federal high court, however, has suggested that mistake or ignorance of the law operates to excuse what would otherwise be criminal falsehoods. We hold only that the failure to comply with tax laws is not a violation of a particular penal statute, former [Revenue and Taxation Code] section 19405[, subdivision] (a)(1), if the noncompliance is not willful, i.e., if the taxpayer, in good faith, misunderstands or is ignorant of the pertinent provisions of the tax law. We agree malefactors cannot be permitted to redefine the criminal law by their own subjective misconceptions of that law. For that reason, mistake or ignorance of the penal law is almost never a defense. There are a number of circumstances, however, in which violation of a penal statute is premised on the violator's harboring a particular mental state with respect to the nonpenal legal status of a person, thing, or action. In such cases, the principle is `firmly established that defendant is not guilty if the offense charged requires any special mental element, such as that the prohibited act be committed knowingly, fraudulently, corruptly, maliciously or wilfully, and this element of the crime was lacking because of some mistake of nonpenal law.' [Citation.] . . . [T]he mistake must be one of nonpenal law. [Citation.] Thus, a taxpayer may defend against a section 19405(a)(1) charge on the basis, for example, that he mistakenly believed certain deductions were proper under the tax laws, but not on the basis that he was unaware it was a crime to lie on one's tax return." (Hagen, supra, 19 Cal.4th at pp. 660-661, 80 Cal. Rptr.2d 24, 967 P.2d 563, fn. 4.)
[12] "We reemphasize that the quantum of evidence the People must produce in order to satisfy the corpus delicti rule is quite modest; case law describes it as a `slight or prima facie' showing. [Citations.] This minimal standard is better understood when we consider that the purpose of the corpus delicti rule is `to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.' [Citation.] As one court explained, `Today's judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.' [Citation.] [¶] Viewed with this in mind, the low threshold that must be met before a defendant's own statements can be admitted against him makes sense; so long as there is some indication that the charged crime actually happened, we are satisfied that the accused is not admitting to a crime that never occurred." (People v. Jennings, supra, 53 Cal.3d at p. 368, 279 Cal.Rptr. 780, 807 P.2d 1009.)
[13] At the time appellant hypothetically provided his date of birth to the authorities, there was no criminal investigation of his failure to register because he had not yet committed that offense. A pre-offense statement which does not admit guilt of a crime or intent to commit one does not in any way implicate the essential rationale of the corpus delicti rule, which is simply to preclude the admission of an extrajudicial confession of a crime that never occurred. Thus, even if the ultimate source of the March S, 1950, birth date was appellant himself, its use would not contravene the purpose of the corpus delicti rule. (Cf. People v. Jennings, supra, 53 Cal.3d at p. 368, 279 Cal.Rptr. 780, 807 P.2d 1009.)
[1] All statutory references are to the Penal Code unless otherwise indicated.
[2] Contrary to the suggestion in the majority opinion that the Florida statute at issue in Grumet v. State requires a willful "refusal" to support a violation (maj. opn. ante, p. 815, fn. 10), neither the term "willful" nor "refusal" appears in the Florida statute, which simply makes the failure to comply with the registration requirement a felony. (Fla. Stat. §§ 943.0435, 944.607; see Grumet v. State, supra, 771 So.2d at pp. 42-43.) The Florida court imposed the requirement of willfulness even though not stated explicitly in the Florida statute, whereas this court refuses to recognize that an inadvertent failure to comply is not willful even though willfulness is explicitly required by the California statute.
[3] As amended, subdivision (f) then read as follows: "Any person required to register under the provisions of this section who shall violate any of the provisions thereof is guilty of a misdemeanor. Any person who has been convicted of assault with intent to commit rape, oral copulation or sodomy, or of any violation of Section 286, 288, 288a, 289 or subdivision 2 or 3 of Section 261, and who is required to register under the provisions of this section who shall willfully violate any of the provisions thereof is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days nor more than one year in the county jail. In no event does the court have the power to absolve a person who willfully violates this section from the obligation of spending at least 90 days of confinement in the county jail and of completing probation of at least one year."
[4] Subdivision (g)(2) of section 290 also applies to one who has a prior conviction or juvenile adjudication for failing to register "and who subsequently and willfully violates any requirement of this section." Subdivision (g)(3) likewise provides that one determined to be a mentally disordered sex offender, or one found not guilty by reason of insanity of a sex crime, "who willfully violates any requirement of this section" is guilty of a misdemeanor for the first offense and is guilty of a felony for "any second or subsequent willful violation of any requirement of this section." Subdivision (g)(8) provides that "[a]ny person who is required to register under this section who willfully violates any requirement of this section is guilty of a continuing offense."
[5] In contrast, under subdivision (g)(6) of section 290, except as provided in subdivision (g)(5) one who "willfully fails to update his or her registration" every 60 days as required in some circumstances is guilty of a misdemeanor punishable by imprisonment for not more than six months.
[6] Section 7, subdivision 1 continues with the following additional sentence: "It does not require any intent to violate law, or to injure another, or to acquire any advantage." However, the court concluded that it was error to have instructed the jury that ignorance of the law is no excuse, and that "[i]n the registration act context, the jury must find actual knowledge of the act's legal requirements." (25 Cal.4th at p. 754, 107 Cal.Rptr.2d 355, 23 P.3d 590.)
I agree fully with the majority that the decision in Garcia is consistent with section 7. (Maj. opn. ante, pp. 809-810, fn. 4.) However, the majority's comments in footnote 4 underscore its failure to distinguish between the need to establish a purposeful failure to register as required by section 290 subdivision (a)(1)(D) (consistent with the first sentence of section 7) and the absence of any need to establish that the defendant knew that failure to register would render him subject to the criminal penalties imposed by section 290 subdivision (g)(2), or intended to violate subdivision (g)(2) (consistent with the second sentence of section 7). See the discussion at pages 809-810, post.
[7] The Supreme Court observed in Garcia that "the meaning of the term `willfully' varies depending on the statutory context" (25 Cal.4th at p. 753, 107 Cal.Rptr.2d 355, 23 P.3d 590) and the ambiguous nature of this term has been repeatedly recognized (see, e.g. . United States v. Bishop (1973) 412 U.S. 346, 352, 351, 93 S.Ct. 2008, 36 L.Ed.2d 941 [willful "is a word of many meanings, its construction often being influenced by its context"; "the word `willfully' has a meaning in tax felony statutes that is more stringent than its meaning in tax misdemeanor statutes"]; Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 182, 28 Cal.Rptr.2d 371 [the concept of willfulness "is not one easily captured in a single, uniformly applicable formula"]; Jeremy M. Miller, Mens Rea Quagmire: The Conscience or Consciousness of the Criminal Law? (2001) 29 W.St.U. L.Rev. 21). All definitions of the term, however, include either an intent to do or fail to do a particular act or bring about a particular result or at least a reckless indifference as to whether the result occurs. The grey area often centers around the sufficiency of reckless conduct. (Compare United States v. Bengimina (8th Cir.1974) 499 F.2d 117, 119 ["Willful cannot fairly be equated with careless or reckless. The denotation of willful is deliberate and intentional"] with Williams v. Carr (1968) 68 Cal.2d 579, 583-584, 68 Cal. Rptr. 305, 440 P.2d 505 [for purposes of automobile guest statute, "willful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences"].) Under any definition, there is no doubt that unintentional acts or omissions are beyond the pale of what may be considered willful. There must be some element of conscious decision-making, which is not present when one has simply forgotten.
[8] This is precisely the analysis required by the California Supreme Court's decision in People v. Hagen (1998) 19 Cal.4th 652, 80 Cal. Rptr.2d 24, 967 P.2d 563 (Hagen), which the majority unsuccessfully struggles to distinguish. (Maj. opn. ante, pp. 816-817, fn. 11.) In Hagen, the Court pointed out that ignorance of nonpenal provisions of the tax law constitutes a defense to the willful filing of a tax return that the individual does not believe to be correct, whereas ignorance of the fact that filing a false return is punishable under a separate penal provision provides no such defense. (19 Cal.4th at pp. 660-661, fn. 4, 80 Cal.Rptr.2d 24, 967 P.2d 563.) Similarly, un-awareness that it is time to re-register as required by subdivision (a)(1)(D) essentially a mistake of fact rather than a mistake of law negates willfulness of a failure to register, while ignorance that section 290 subdivision (g)(2) makes the willful failure a felony provides no such defense. The Supreme Court carefully distinguished between awareness of what is required and awareness of the penal consequences of a failure to comply. The majority here fails to make this vital distinction. In Garcia, the Supreme Court held explicitly that ignorance of the registration requirements in section 290 is a defense. (Garcia, supra, 25 Cal.4th at p. 754, 107 Cal. Rptr.2d 355, 23 P.3d 590.)
[9] The majority's attempt to avoid the force of this analogy (maj. opn. ante, p. 816) instead reinforces its applicability. Contrary to the majority's unsupported assertion that forgetfulness does not provide a defense to a charge of perjury (maj. opn. ante, p. 816), the crime is not made out if one incorrectly testifies, for example, that he did not write a particular letter, having forgotten that he had in fact written the letter. (See People v. Sagehorn (1956) 140 Cal.App.2d 138, 149, 294 P.2d 1062; Smith v. Thomas (1898) 121 Cal. 533, 536, 54 P. 71.) While it is perjurious for a person aware of his uncertainty to testify positively that he did not write the letter, the fact is that people do forget entirely, and it is not perjurious to deny writing it if one is not conscious of uncertainty but is simply wrong because he has forgotten. Moreover, unlike failing to register, perjury requires the affirmative act of false swearing. Since affirmatively testifying falsely about a fact one has forgotten is not willful, it follows a fortiori that failing to perform an act one has forgotten is not willful. (See Garcia, supra, 25 Cal.4th at p. 752, 107 Cal.Rptr.2d 355, 23 P.3d 590.)
[10] Ohio Revised Code Annotated section 2950.05 provides in relevant part: "(E)(1) No person who is required to notify a sheriff of a change of address pursuant to division (A) of this section shall fail to notify the appropriate sheriff in accordance with that division, [¶] (2) No person who is required to register a new residence address with a sheriff or with an official of another state pursuant to divisions (B) and (C) of this section shall fail to register with the appropriate sheriff or official of the other state in accordance with those divisions." New York Correction Law section 168-t provides in relevant part: "Any sex offender required to register or to verify pursuant to the provisions of this article who fails to register or verify in the manner and within the time periods provided for herein shall be guilty of a class A misdemeanor upon conviction for the first offense, and upon conviction for a second or subsequent offense shall be guilty of a class D felony."
[11] See generally, Earl-Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter of the 1990s (1996) 90 Nw.U. L.Rev. 788.
[12] Revenue and Taxation Code section 19701 provides in part: "Any person who does any of the following is liable for a penalty of not more than five thousand dollars ($5,000): (a) With or without intent to evade any requirement of Part 10 (commencing with Section 17001), Part 11 (commencing with Section 23001), or this part or any lawful requirement of the Franchise Tax Board, fails to file any return or to supply any information required, or who, with or without that intent, makes, renders, signs, or verifies any false or fraudulent return or statement, or supplies any false or fraudulent information."
[13] Revenue and Taxation Code section 19706 provides that "Any person or any officer or employee of any corporation who, within the time required by or under the provisions of this part, willfully fails to file any return or to supply any information with intent to evade any tax imposed by Part 10 (commencing with Section 17001) or Part 11 (commencing with Section 23001), or who, willfully and with like intent, makes, renders, signs, or verifies any false or fraudulent return or statement or supplies any false or fraudulent information, is punishable by imprisonment in the county jail not to exceed one year, or in the state prison, or by fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment, at the discretion of the court, together with the costs of investigation and prosecution."
[14] As to the majority's reliance on footnote 4 in Hagen, supra, 19 Cal.4th at pages 660-661, 80 Cal.Rptr.2d 24, 967 P.2d 563, see footnote 8, ante.
[15] Title 8 United States Code section 1302, subdivision (a) reads: "It shall be the duty of every alien now or hereafter in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted under section 1201(b) of this title or section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, to apply for registration and to be fingerprinted before the expiration of such thirty days."
[16] Title 8 United States Code section 1305 requires aliens to provide written notice of any change of address to the Attorney General within 10 days of the change.
[17] See, e.g., Government Code former section 27495, section 27500 (jurors and witnesses ordered to appear at coroner's inquest are guilty of a misdemeanor only if they "willfully and without reasonable excuse fail[ ] to attend,") section 1320.5 (person charged with or convicted of a felony and released on bail is guilty of additional felony only if the person willfully fails to appear as required in order to evade the process of the court).
[18] As indicated above (ante, p. 826), no "painstaking legal and factual analysis of the evidence to ascertain the precise degree of [Barker's] forgetfulness" (maj. opn. ante, p. 812) is necessary, nor would "allowing forgetfulness as a defense place[ ] the burden on the prosecution to prove a negative that the defendant did not forget the knowledge as claimed" (maj. opn. ante, p. 817). As with the prosecution of a violation of any statute penalizing the willful failure to perform a statutory obligation, the prosecution would bear the burden of proving that the defendant purposefully failed to do what the statute required As indicated below (post, pp. 831-832), a defendant's efforts to overcome evidence tending to show that a failure to perform was purposeful are often unavailing.
[19] Indeed, much of the evidence which the majority views as showing that Barker did not forget that it was time to register (maj. opn. ante, p. 811) can just as easily be viewed as supporting his claim that he did. The fact that he had repeatedly registered on time in the past, that he responded immediately when contacted by Officer Baccei, and that he candidly acknowledged having been advised of his registration obligations may well have been considered by the jury to show that on this occasion he had honestly forgotten that it was time to re-register. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262071/ | 618 A.2d 1321 (1992)
Gordon D. OXX, Jr. and Carol P. Oxx
v.
VERMONT DEPARTMENT OF TAXES.
No. 90-176.
Supreme Court of Vermont.
October 23, 1992.
Motion for Reargument Denied November 25, 1992.
*1322 Michael J. Hertz of Hertz and Wesley, Brattleboro, for plaintiffs-appellants.
Jeffrey L. Amestoy, Atty. Gen. and Danforth Cardozo, III, Sp. Asst. Atty. Gen., Montpelier, for defendant-appellee.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
MORSE, Justice.
Gordon and Carol Oxx, Vermont income taxpayers, appeal the superior court's decision affirming the Vermont Commissioner of Taxes' assessment of their personal income tax for 1986, claiming it was $13,404 too high. They challenge the assessment on two grounds: (1) Vermont's personal income tax may not be applied to recapture of federal investment tax credit under 32 V.S.A. § 5822, and (2) if it can be so applied, the commissioner's application of § 5822 in this case violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Chapter I, Article 7 of the Vermont Constitution. We reverse, because the assessment was unconstitutional as applied.
The Oxxes claimed a federal investment tax credit[1] of $6,422 on their 1983 federal income tax return, increasing their refund for that year by $6,422. The Oxxes claimed an investment tax credit of $61,141 on their 1984 federal return. Because their adjusted gross income for 1984 was negative, the credit was carried back to 1982, increasing their 1982 refund by $61,141. Thus, the Oxxes saved a total of $67,563 in federal income taxes over two tax years by applying the federal investment tax credit. Due to several circumstances, however, the federal income tax savings did not translate into state income tax savings.
The Oxxes were residents of Ohio until September 1983, when they became residents of Vermont. They filed Ohio income tax returns through 1983, but because Ohio did not calculate its state income tax as a percentage of the taxpayers' federal tax liability, they did not derive any Ohio income tax benefit from the federal investment tax credit. The Oxxes also filed Vermont income tax returns for 1983 and 1984. Because the Oxxes had deductions available which exceeded their gross income, their income was negative for purposes of both federal and Vermont income taxes for both years. For this reason, in neither year did they derive any benefit from the investment tax credit with regard to their Vermont income taxes, which are figured as a percentage of federal income tax liability, called a "piggyback."
For their 1986 federal income tax return, the Oxxes were subject to recapture of the *1323 investment tax credit[2] in the amount of $50,585 claimed for the years 1983 and 1984. The Oxxes computed their 1986 Vermont income tax liability without including the federal tax on recapture of their investment credit. The Vermont Department of Taxes, however, included the recapture of investment credit in its computation of the Oxxes' 1986 Vermont income tax liability and assessed the Oxxes an additional $13,404 for that year. This figure represents the difference between the tax paid by the Oxxes and the tax claimed by the Department.
I.
The commissioner properly interpreted the applicable law in requiring imposition of Vermont personal income tax on federal recapture of the federal investment tax credit. For the 1986 tax year, 32 V.S.A. § 5822 stated in relevant part:
A tax is imposed for each calendar year ... upon the Vermont income earned or received in that taxable year by every individual.... The amount of this tax shall be measured by 26.5 percent of the federal income tax liability of the taxpayer for the taxable year, reduced by a percentage equal to the percentage of the taxpayer's adjusted gross income for the taxable year which is not Vermont income....
Although the first sentence of § 5822 imposes a tax for each calendar year upon Vermont income earned or received during the calendar year, the second sentence establishes the measurement of Vermont tax liability as a percentage of federal income tax liability. The two sentences are internally inconsistent in that Vermont income earned or received may not include an investment credit recapture, which in part determines the federal income tax liability in a particular year. According to the taxpayers, the first sentence should control and the second sentence should not be followed literally.
When two contemporaneous statutory provisions conflict, the more specific provision is given effect over the more general one. State v. Teachout, 142 Vt. 69, 73, 451 A.2d 819, 820-21 (1982). The first sentence of 32 V.S.A. § 5822, when read in conjunction with that part of the second sentence dealing with non-Vermont income, may be understood as only limiting taxation to Vermont income where the taxpayer's tax burden is allocated between states. The second sentence is more specific than the first because it provides a formula for determining the exact amount of a resident's Vermont income tax burden. Thus, to the extent any inconsistency arises between the two sentences, the second one must be given controlling effect.
Moreover, the commissioner's interpretation of § 5822 is consistent with the goals of the Legislature. See Burlington Electric Department v. Vermont Department of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990) (when construing a statute, the Supreme Court's purpose is to effectuate the intent of the Legislature). One purpose of the Vermont income tax framework, as stated in 32 V.S.A. § 5820(a), is:
to conform the Vermont personal ... income tax[ ] with the United States Internal Revenue Code, except as otherwise expressly provided, in order to simplify the taxpayer's filing of returns, reduce the taxpayer's accounting burdens, and facilitate the collection and administration of these taxes.
The commissioner's interpretation allows § 5822 to mirror the federal tax structure, and thus gives effect to this legislative goal. The "piggybacking" scheme also conforms to the legislative goal to tax Vermont income at a rate that "shall reflect the taxpayer's ability to pay as measured by his adjusted gross income for the taxable year." 32 V.S.A. § 5820(b). Because Vermont's "piggybacking" tax is based on the progressive federal tax model, and the federal model includes a recapture of tax credit under certain conditions, Vermont's scheme should likewise recapture passed-through *1324 state income tax savings, thereby reflecting taxpayers' "ability to pay."
Section 5811(4) defines "federal income tax liability" as "the federal income tax payable" after allowance of certain credits, including "investment credit," but not "the allowance of any other credit against that liability or the addition of any surtax." Plaintiffs argue that recapture of the investment credit is not included in the definition of "federal income tax liability" and, therefore, recapture is not a part of the federal tax liability for Vermont income tax purposes. Relying on the maxim "expressio unius est exclusio alterius" ("the expression of one thing is the exclusion of another"), they claim recapture is excluded. We recently recognized that this maxim is relatively weak among rules of statutory construction. See Clymer v. Webster, 156 Vt. 614, 625, 596 A.2d 905, 912 (1991). We think that had the Legislature intended to exclude the investment tax credit recapture from the definition, it would have expressly done so. The Legislature's overall taxing scheme evidences an intent that the federal investment credit provision not only benefit a Vermont taxpayer, but, taking the federal law "warts and all," that the taxpayer suffer a recapture debit as well.
An application of § 5822 that did not include recapture of the investment tax credit as part of federal income tax liability would result in a windfall for Vermont taxpayers who had derived a state tax benefit from a federal investment credit. For instance, a taxpayer may claim the investment credit in a particular year and enjoy a reduced state income tax liability for that same year. If that taxpayer is not required to pay state tax on the recapture of the credit in a later year, the amount of income represented by the recapture will have permanently escaped state taxation. The taxpayer will have enjoyed a reduced state income tax liability for the year the credit was initially received for no apparent justification.
Similarly, Vermont takes the good with the bad with respect to investment credits. For example, if a taxpayer claims an investment credit, Vermont would apply that credit. The taxpayer would enjoy a reduced state income tax liability for that year even though a later move to another state before recapture arises would foreclose Vermont's opportunity to recoup the lost revenue. Conversely, Vermont is not foreclosed from applying the recapture credit where the taxpayer has enjoyed a reduced state income tax liability in another state as a result of the credit before moving to Vermont. This approach provides symmetry to Vermont's tax law application.
II.
Despite the commissioner's proper interpretation of 32 V.S.A. § 5822, that statute as applied to the specific facts of this case, in our view, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Chapter I, Article 7 (Common Benefits Clause) of the Vermont Constitution. Under the Equal Protection Clause, a classification will be sustained if the Legislature reasonably could have concluded that the challenged classification would promote a legitimate state purpose. Williams v. Vermont, 472 U.S. 14, 22-23, 105 S.Ct. 2465, 2471, 86 L.Ed.2d 11 (1985). Under the Common Benefits Clause, where no fundamental right or suspect class is involved, the test is whether the law is reasonably related to a legitimate public purpose. Town of Sandgate v. Colehamer, 156 Vt. 77, 88, 589 A.2d 1205, 1211 (1990).
A statute is unconstitutional, as applied, if it treats similarly situated persons differently and the different treatment does not rest upon some reasonable consideration of legislative policy. See Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 362, 543 A.2d 703, 704 (1988) (citing Colchester Fire District No. 2 v. Sharrow, 145 Vt. 195, 198-99, 485 A.2d 134, 136-37 (1984) (statute authorizing award of attorney's fees to employee who prevails on appeal in workers' compensation case does not violate equal protection by failing to provide for award of similar fees to prevailing employer). As applied to taxpayers who have derived a state income tax benefit in a prior *1325 year from the investment tax credit, the classification of recapture liability bears a reasonable relation to the Legislature's stated purposes. By "piggybacking" state income tax liability onto federal income tax liability, the statute matches the timing of the tax with the realization of income, and the state recoups the taxpayer's benefit at a time when the taxpayer is presumably better able to pay it. On the other hand, as applied to a federal recapture where the taxpayer has not derived any state income tax benefit whatsoever, § 5822 loses the distinguishing feature that gives the law a reasonable relation to its purpose. Similarly situated taxpayers, those who are subject to federal investment credit recapture, would pay disproportionate state income taxes.
The commissioner required the Oxxes to pay Vermont income tax on federal recapture of investment credit despite the fact that the Oxxes had received no prior benefit from the investment credit from any state taxing authority. The Oxxes were required to pay the same amount of tax as a comparably situated taxpayer, also subject to recapture, who had derived a state income tax benefit in a prior year.
This different treatment does not rest on any rational basis. Not only does it fail to ease the administration of state taxation, see 32 V.S.A. § 5820(a) (purpose of chapter is to simplify and ease the administration of the Vermont income tax), it fails to accurately reflect the taxpayers' ability to pay as measured by their adjusted gross income for the taxable year. See 32 V.S.A. § 5820(b) (rate of income taxation shall reflect taxpayer's ability to pay). It is a simple matter, for the purpose of calculating Vermont income tax, to exclude the recapture of the investment credit from federal tax liability when there is no derived benefit from the investment credit. That is what should have occurred in this case.
Reversed.
NOTES
[1] Federal investment tax credit reduces a taxpayer's federal income tax liability by a designated percentage of certain qualified business expenditures. 26 U.S.C. §§ 38, 46-48 (1986) (amended by Pub.L. No. 101-508 (1990)).
[2] Recapture of federal investment tax credit may come about when property which was subject to investment credit is disposed of prematurely or otherwise ceases to be investment credit property. 26 U.S.C. § 47(a)(5)(A) (1988) (since recodified at 26 U.S.C. § 50(a)(1)(A)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262082/ | 900 F.Supp. 864 (1995)
Fred THIER
v.
LYKES BROS., INC. and Lykes Bros. Steamship Co., Inc.
Civ. A. No. G-94-373.
United States District Court, S.D. Texas, Galveston Division.
September 14, 1995.
*865 Ernest H. Cannon, Ernest Cannon & Associates, Houston, TX, for Fred Thier.
Clayton Davis, Lundy & Dwight, Lake Charles, LA, for Lykes Brothers Incorporated, Lykes Bros. Steamship Co., Inc.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
KENT, District Judge.
I.
PROCEDURAL HISTORY
The instant cause came on for non-jury trial commencing on Thursday, June 1, 1995 and concluding on June 8, 1995, the Honorable Samuel B. Kent presiding. The Court having carefully considered the oral testimony of all witnesses presented live at trial, the deposition transcript of each witness proffered in that format, all exhibits tendered during the course of trial, all pleadings heretofore *866 filed herein particularly including the pretrial order and all relevant attachments, the opening statements of each of the parties, as offered through their respective counsel and the Proposed Findings of Fact and Conclusions of Law submitted by each of the stated parties, and on the basis of a preponderance of the evidence, and pursuant to Rule 52(a) of the Fed.R.Civ.Proc., hereby enters its FINDINGS OF FACT and CONCLUSIONS OF LAW:
II.
FINDINGS OF FACT
1. Plaintiff Fred Thier was injured in a one-automobile crash on June 22, 1993. The crash occurred when Mr. Thier, a Cadet assigned to the Defendants' vessel,[1] the M/V GENEVIEVE LYKES, the Chief Officer of the M/V GENEVIEVE LYKES, Robert Borzi, and Mr. Borzi's girlfriend, Catherine Carlton, were driving to a restaurant for dinner. They had just left dock where the M/V GENEVIEVE LYKES was berthed when Mr. Borzi, who was driving, lost control of the vehicle and crashed. At the time of the crash, Mr. Borzi was legally intoxicated. Mr. Borzi lost his life in the crash. Mr. Thier and Ms. Carlton sustained non-fatal injuries.
2. Plaintiff Fred Thier timely commenced this lawsuit asserting causes of action under the Jones Act and General Maritime Law for personal injuries sustained in the crash. Timely responsive pleadings were thereafter filed by defense interests, and this cause came on for non-jury trial on June 1, 1995. This Court has jurisdiction pursuant to 46 U.S.C.App. § 688, commonly referred to of the "Jones Act", Rule 9(h) of the Fed.R.Civ. Proc., 28 U.S.C. § 1333 which provides original jurisdiction over any admiralty or maritime claims, and the Admiralty Extension Act. 46 U.S.C.App. § 740. The damages sustained by Plaintiff were caused by Defendant's vessel-related negligence, notwithstanding that the damages and injuries were consummated on land. No party filed a jury demand and the cause was tried without a jury pursuant to Rule 9(h) of the Fed.R.Civ. Proc. Venue is proper in this Court because the Defendants are subject to the personal jurisdiction of this Court, Plaintiff Fred Thier lives within the district and division of this Court, and material witnesses and evidence are closely situated to this Court such that convenience factors weigh in favor of trial in this venue.
3. The Defendants have contested Plaintiff's "seaman status" and filed a motion for summary judgment on this issue which the Court denied. After hearing all the evidence at trial and evaluating the credibility of the witnesses testifying in person at trial and carefully evaluating the deposition testimony submitted herein, the Court concludes that Plaintiff Fred Thier was a "Jones Act" seaman in service of and in the course and scope of his employment on the M/V GENEVIEVE LYKES at the time of the subject incident. Mr. Thier had an employment related connection to a vessel in navigation which was substantial in both its duration and nature, and he contributed to the function of the vessel and to the accomplishment of its mission. There was ample evidence that Mr. Thier performed significant job-related functions onboard the M/V GENEVIEVE LYKES. Mr. Thier monitored cargo operations, he presented the ship to foreign inspectors, he assisted in mooring operations, performed anchor watches, prepared the ship for receiving pilots, completed ship's papers, and numerous other tasks performed by ship's officers which are necessary for the proper operation of the ship. Mr. Thier was paid wages by the Defendants and he received all his instructions and employment related direction from employees of the Defendants. All of the tools necessary for the work performed by Mr. Thier were provided to Mr. Thier by the Defendants.
4. The Defendants contend that Mr. Thier's assignment to the vessel in question was transitory and, therefore, Mr. Thier was not an employee of the Defendants for the purposes of this suit. The Court respectfully *867 disagrees. Mr. Thier boarded the ship in Pensacola, Florida and sailed with the ship to New Orleans, Louisiana, South America, Corpus Christi, Texas, and eventually to Lake Charles, Louisiana where the subject incident occurred. This journey spanned six weeks, and except for brief shore leaves, Mr. Thier was onboard the vessel and assigned to the vessel the entire time. Mr. Thier's attachment to the M/V GENEVIEVE LYKES was no more transitory than is the connection between any "relief" seaman working out of the union hall and the vessel owner.
5. Mr. Thier was acting in the course and scope of his employment at the time of the incident. At the time of the crash, Mr. Thier was assigned to the M/V GENEVIEVE LYKES as a cadet. Cadets must receive a formal evaluation from a ship's officer before being discharged from a vessel. He had not yet been discharged from the vessel and he had not yet received his final evaluation. Indeed, he was going to dinner with the Chief Officer who was to evaluate him and he considered the dinner to be "official" and very important to that evaluation. Still assigned to the vessel, Mr. Thier was subject to the direction and orders of the superior officers onboard. During his tenure onboard the M/V GENEVIEVE LYKES, Mr. Thier was assigned work by Chief Officer Robert Borzi. On the night of the incident, Mr. Thier was packing his gear in preparation of departing the vessel the next morning when Chief Officer Borzi entered his room and told Mr. Thier "you are going to dinner with me. Come by my room in a couple of minutes." It was Mr. Thier's understanding that during the evening Mr. Borzi was to give Mr. Thier his evaluation and finalize the requirements for Mr. Thier to depart the vessel. Another purpose for the dinner trip was the recruitment of Cadet Thier for future service in Lykes' fleet. Mr. Thier was regarded onboard the M/V GENEVIEVE LYKES as an excellent cadet and candidate for future employment with Lykes, and Lykes recruited qualified cadets as part of its normal business operations. A seaman's voyage ends when he departs the vessel for home, not when he departs the vessel for dinner and business related evaluation and recruiting the night before going home.
6. Chief Officer Robert Borzi was an employee of the Defendants acting within the course and scope of his employment at all material times. Mr. Borzi's assigned duties included being company liaison for Cadet Thier. The Captain of the M/V GENEVIEVE LYKES testified it was customary for Lykes' crews to entertain cadets for the purpose of promoting good will and recruiting the cadets into Lykes' service. This had the effect of furthering Lykes' business interests. Additionally, to complete his sea duty, Mr. Thier had to receive a final review or critique of his performance onboard the vessel. One of the purposes of Mr. Thier's accompanying Mr. Borzi and Ms. Carlton to the restaurant was so that Mr. Borzi could complete his evaluation of Mr. Thier. Finally, under the regulations applicable to cadets, Lykes was obligated to ensure that the cadets take their meals with the ship's officers. As the ship's mess was closed for the evening, Lykes was obligated to provide Mr. Thier with a meal with an officer and Lykes conveniently was discharging this obligation at the time of the crash. Additionally, pursuant to 46 C.F.R. § 310.60(d) Cadet Thier was required to take his meals with the licensed officers. As the ship's galley was closed for the evening prior to Mr. Borzi's instructions to Mr. Thier to join Mr. Borzi for dinner, Mr. Borzi was carrying out the vessel's obligation to have an officer dine with Cadet Thier at the time of the subject incident.
7. Even if Mr. Borzi was not recruiting Mr. Thier, finalizing Mr. Thier's evaluation, or carrying out the ship's obligation to have the cadets dine with officers, both men still were within the course and scope of their employment for the Defendants at the time of the crash because they were heading for shore leave. The vessel was berthed at a dock which was too far from town to walk and cabs were not readily available in the Lake Charles area. Therefore, the only viable means to leave the vessel for dinner was via a rental car. Mr. Borzi had rented a car earlier the day of the crash for this purpose. There was only one road to and from the port area and at the time of the subject crash, Mr. Borzi, Mr. Thier and Ms. Carlton were leaving the port area on this standard *868 route to leave the ship and go ashore. In sum, even if the subject automobile trip was merely a shore leave for personal relaxation, it still would be within the course and scope of the business of the ship because shore leave is an elemental necessity in the sailing of ships.
8. In the alternative, even if Mr. Borzi were not in the course and scope of his employment at the time of the subject incident, the Defendants still would be liable for any acts or omissions on his part because Mr. Borzi was acting as an agent of the Defendants at the time of the subject automobile crash. Lykes had undertaken an obligation to provide meals to Cadet Thier and on the date of the incident the ship's mess had closed before Mr. Thier could eat. Mr. Borzi was acting as Lykes' agent for the purpose of providing transportation to Mr. Thier for his meal. Additionally, Mr. Borzi determined that Mr. Thier should have a dinner in town on his last night onboard the vessel and this decision was made in Mr. Borzi's capacity as Lykes' liaison with Cadet Thier. In determining that a meal in town was required, Lykes assumed an obligation to provide transportation to Mr. Thier to town since the only readily available means to town was the rent car obtained by Mr. Borzi on the afternoon of the crash. Thus, even if Mr. Borzi technically was not acting within the "course and scope" of his duties as Chief Officer at the time of the crash, he certainly was acting within the scope of his duties as an agent for Lykes for the purpose of providing transportation to town for Mr. Thier.
9. The act of transporting Mr. Thier to town was an operational activity of the vessel M/V GENEVIEVE LYKES.
10. The automobile crash which forms the basis of this suit occurred on June 22, 1993, at 10:05 p.m., on West Sallier Street in Calcasieu Parish, Lake Charles, Louisiana, approximately 237 feet west of Barbe Street. The crash involved only one vehicle, a 1993 Chevrolet Corsica owned by Acadiana Auto & Truck Rental, Inc. and rented to Robert Blaire Borzi. Mr. Borzi was driving the vehicle and his girlfriend, Catherine V. Carlton was riding in the front passenger seat. Plaintiff Fred Thier was in the rear seat behind Catherine Carlton. Immediately upon leaving the dock area, West Sallier Street proceeds straight in an easterly direction with a railroad track to the South. The eastbound lane of West Sallier Street then makes a "lazy curve" to the right, across the railroad track, and then a "lazy curve" back to the left to again run parallel to the railroad track, but this time on the South side of the railroad track. On the straightaway before reaching this "lazy S curve", Robert Borzi accelerated the Corsica greatly in excess of the posted 35 mile an hour speed limit. Passenger Carlton admonished Mr. Borzi to slow down but he refused and continued eastbound at a high rate of speed. When the road curved to the right, Mr. Borzi did not and proceeded into the median where he lost control of the vehicle. The vehicle flipped and became airborne, ejecting Fred Thier from the rear seat. All three occupants of the vehicle sustained serious injuries in the crash and Robert Borzi died from his injuries. No vehicles other than the Corsica were involved in the crash.
11. Fred Thier testified he saw the car's speedometer at 100 m.p.h. before the crash. The police officer who investigated after the crash testified that the physical evidence at the scene was consistent with this excessive speed. Robert Smith testified as both a fact and expert witness in accident investigation and reconstruction. The Court finds him competent to render expert opinions regarding the causes of the crash. Mr. Smith testified at length regarding the facts and dimensions of the crash scene and irrespective of Mr. Smith's opinions regarding cause, the Court concludes that the cause of the crash was excessive use of alcohol by Mr. Borzi and the resulting effect upon his ability to control the speed and direction of the vehicle. This conclusion is consistent with that of the investigating officer.
12. After Mr. Borzi was pronounced dead, he was transported to the Calcasieu Parish Coroner's office where he was examined by a Deputy Coroner, Dr. Terry Welke. Dr. Welke extracted a vitreous sample from Mr. Borzi and sent the sample to the Southwest Institute of Forensic Sciences for a blood-alcohol analysis where it was analyzed *869 by Dr. Elizabeth Todd. Appropriate steps were taken by Dr. Welke and the Calcasieu Parish Coroner's office and by Dr. Todd and the Southwest Institute of Forensic Sciences to ensure the chain of custody was maintained and that an untainted sample of Mr. Borzi's blood was analyzed. Dr. Todd performed a blood-alcohol content analysis on the vitreous solution using appropriate test methods based upon sound medical and scientific principles and the results of her analysis accurately reflect the vitreous alcohol content of Robert Borzi's blood at the time of the subject car crash.
13. Plaintiff presented the expert testimony of Dr. Welke by deposition and he is competent to testify in the field of toxicology related to blood alcohol levels. Dr. Welke testified that at the time of the crash, Mr. Borzi had a vitreous humor alcohol content of 0.147 and this correlates to a blood alcohol level of 0.12. The crash occurred in Louisiana, whose state law prohibits driving with a blood alcohol level of greater than 0.10.[2] To achieve a blood alcohol level of 0.12, Mr. Borzi would have had to consume approximately six (6) beers.
14. Robert Borzi's blood-alcohol content at the time of the crash exceeded the legal limit and Mr. Borzi was legally intoxicated at the time of the crash. Mr. Borzi consumed virtually all of the alcohol which led to his intoxication while aboard the M/V GENEVIEVE LYKES in violation of Lykes' policies and procedures and in violation of 33 C.F.R. § 95. On the afternoon of the crash, Robert Borzi went to pick up two rental cars with the girlfriend of the vessel's Captain, Ms. Gundrun Zimmermann. Robert Borzi and Ms. Zimmermann caught a ride with a Lykes vehicle to the rental car agency where Mr. Borzi rented a car in his name and Ms. Zimmermann rented a car in her name. Mr. Borzi was to use his car for the evening and the vessel's Captain, Mr. Pierson, was to use the other car to take Ms. Zimmermann out on the town. Ms. Zimmermann was to follow Mr. Borzi back to the vessel. On the way back to the vessel, Mr. Borzi stopped at a local bar where he had one drink. Mr. Borzi and Ms. Zimmermann also stopped at a store where Mr. Borzi purchased items unknown to Ms. Zimmermann, but which were brought back to the vessel in a paper bag. Mr. Borzi and Ms. Zimmermann returned to the vessel sometime before 6:00 p.m. on the day of the incident and at the time of their return to the vessel, Mr. Borzi was not intoxicated. There was no evidence that Mr. Borzi ever left the vessel before departing for the restaurant and there was ample evidence from the testimony of Mr. Thier and Ms. Carlton that Mr. Borzi was drinking on the vessel before leaving for the restaurant. While on the vessel between 6:00 p.m. and 10:00 p.m. on June 22, 1993, Mr. Borzi consumed the alcohol which caused his intoxication which resulted in the crash.
15. The Defendants had clearly posted policies and procedures which prohibited any crew member, including the vessel's Captain and other officers, from bringing alcohol onboard the vessel. Moreover, the Shipping Articles for the subject voyage signed by each crew member and officer clearly prohibited the vessel's crew, including its Captain and officers, from bringing alcoholic beverages onboard the ship. United States Coast Guard regulations also govern the use of alcohol onboard a commercial vessel. The M/V GENEVIEVE LYKES was a commercial vessel within the meaning of subchapter F of 33 C.F.R., 33 C.F.R. § 95.001-055. The M/V GENEVIEVE LYKES was a vessel inspected or subject to inspection under chapter 33 of Title 46 of the United States Code and Robert Borzi was a crew member of the vessel. Coast Guard regulations prohibit a crew member onboard the M/V GENEVIEVE LYKES from being intoxicated at any time. 33 C.F.R. § 95.045. The Coast Guard regulations also require the marine employer to exercise due diligence to ensure compliance with the applicable provisions of subchapter F.
16. Robert Borzi violated 33 C.F.R. § 95.045 because he was intoxicated onboard the M/V GENEVIEVE LYKES prior to departing for the automobile trip which resulted in his death. Immediately before departing for the automobile trip, Mr. Borzi was *870 operating a vessel while intoxicated within the terms of 33 C.F.R. § 95.015 and § 95.020. The Defendants violated 33 C.F.R. § 95.050 by failing to exercise due diligence to ensure that no member of the crew violated 33 C.F.R. § 95.045 and § 95.020. These statutes and regulations are safety regulations designed to protect persons in Plaintiff's class from the very type of incident which injured Plaintiff.
17. Not only did the Defendants fail to exercise due diligence to prohibit drinking onboard the vessel, the Defendants essentially operated a "floating dram shop" in violation of the Coast Guard regulations and their own policies. The Defendants' corporate representative unequivocally testified on behalf of the corporation that Lykes does not purchase alcohol for crew, although such beverages are provided for the passengers. The Plaintiff introduced numerous supply requisitions indicating that ample party supplies were purchased for the M/V GENEVIEVE LYKES and delivered to the M/V GENEVIEVE LYKES including:
a. on June 14, 1995, two fifths of Jim Beam, two fifths of Scotch, two fifths of Vodka, three cases of Budweiser, six bottles of champagne and assorted sodas and party snacks;
b. on October 20, 1993, two fifths of Jim Beam, two fifths of Vodka, three cases of Budweiser, six bottles of champagne and again various sodas and party snacks; and,
c. this same list of alcohol was purchased for the vessel again on April 28, 1993, March 8, 1993 (except that only two bottles of champagne were ordered this time), December 3, 1992 (except that the order was cut down to one bottle of Jim Beam, one bottle of Vodka and three bottles of champagne) and October 14, 1992.
Additionally, despite denials by Captain Pierson, the master of the M/V GENEVIEVE LYKES, the credible evidence established that drinking took place onboard the vessel while it was at port at Corpus Christi, Texas on the port call immediately prior to the port call at Lake Charles where the crash occurred, including both passengers and crew. The captain himself even maintained a liquor cabinet onboard the vessel out of which he had secured drinks for himself and his girlfriend while the Captain was on duty at Corpus Christi, Texas on the previous port call.
18. Robert Borzi was negligent in consuming excessive amounts of alcohol while operating a commercial vessel in violation of 33 C.F.R. subchapter F. Robert Borzi was negligent in operating a motor vehicle in excess of the posted speed limit of 35 miles per hour. Robert Borzi was negligent in operating a motor vehicle while intoxicated. Robert Borzi was negligent in failing to maintain proper control of his vehicle when attempting to negotiate a shallow right-hand turn. All these acts and omissions were producing and proximate causes of the injuries and damages sustained by Plaintiff Fred Thier as found hereinbelow, and the Defendants are liable for these acts and omissions on the part of Mr. Borzi.
19. The Defendants were negligent in failing to enforce their own policies and procedures regarding the bringing of alcohol onboard the M/V GENEVIEVE LYKES, the consumption of alcohol onboard the M/V GENEVIEVE LYKES, and the operation of the vessel by persons who are intoxicated. The Defendants were negligent in failing to use due diligence to ensure no intoxicated crew members were onboard the vessel in violation of subchapter F of 33 C.F.R. The Defendants were negligent in operating a "floating dram shop" and allowing a party atmosphere to prevail onboard wherein ship's officers frequently had girlfriends and guests onboard together with a regularly stocked store of party supplies including alcoholic beverages.
The Defendants were negligent in failing to take proper steps to ensure intoxicated employees did not drive automobiles and they were negligent in entrusting Mr. Thier to Mr. Borzi, while he operated a rental car in an intoxicated condition. These acts and omissions on the part of the Defendants were producing and proximate causes of the damages sustained by Plaintiff Fred Thier as found hereinbelow.
*871 20. Plaintiff Fred Thier was not contributorily negligent and no act or omission on his part caused or contributed to any of his damages. Plaintiff Fred Thier has adequately mitigated all of his damages.
21. No fault on the part of the Port of Lake Charles and the City of Lake Charles based upon improper design and signage of the roadway in question was a proximate or producing cause of Plaintiff's damages. The floating dram shop, M/V GENEVIEVE LYKES, was not necessarily unseaworthy because of the consumption of alcohol onboard. It could have been rendered reasonably fit for its intended purposes through the use of reasonable care by the Defendants. No unseaworthiness on the part of the vessel was a cause of Plaintiff's damages.
22. Following the crash, Plaintiff Fred Thier was found outside the vehicle in a sitting position in the middle of the roadway. He was in a state of shock and only semiconscious. Mr. Thier immediately was taken to the Lake Charles Memorial Hospital where he received emergency care. Mr. Thier was diagnosed with a basilar skull fracture which resulted in a pneumocephalus, air leaking into his brain. Mr. Thier also sustained a laforte 2 facial fracture which essentially means that the bones holding his face in place were crushed, breaking his face plate free. This had to be surgically repaired and involved the insertion of steel plates under Mr. Thier's eyes to hold his face in place. Upon release from the Lake Charles Memorial Hospital, Mr. Thier received follow-up care at John Sealy Hospital in Galveston, Texas. Mr. Thier continued to complain of pain, and of soreness in his back and shoulder. These complaints essentially have resolved, although Mr. Thier still experiences soreness from time to time.
23. Mr. Thier's most serious injuries related to the crash stem from the closed head injury he sustained. Mr. Thier was examined and subjected to neuropsychological testing by Dr. Nancy Leslie. This testing revealed that Mr. Thier's performance I.Q. is 125 which is in the superior range, but his verbal I.Q. is now 94. Absent some major trauma, verbal and performance I.Q. scores should roughly be equal. Dr. Leslie testified that the difference between the performance and verbal I.Q. scores, based upon reasonable medical probability, was caused by the injuries sustained in the crash. Dr. Leslie testified that Mr. Thier's overall I.Q. was decreased by approximately 15 points as a result of the subject incident.
24. Mr. Thier was also examined by Catherine Bontke, a specialist in physical medicine and by Dr. Thomas A. Blackwell, and their opinions were consistent with Dr. Leslie's in that the head injuries sustained by Mr. Thier caused his 30 point differential between performance I.Q. and verbal I.Q., and an overall I.Q. loss of approximately 15 points.
25. Also as a result of his head injury, Mr. Thier sustained damage to the part of the brain which controls his visual field on the right of his gaze. Accordingly, Mr. Thier has an uncorrectable "hole" or dark spot in the right field of his vision. Mr. Thier was examined by Dr. Thomas Blackwell, a specialist in emergency medicine and internal medicine who testified that the left side of the brain controls the vision for the right side of a person's gaze and that the left side of the brain also controls one's speech. Accordingly, Mr. Thier's reports of loss of memory shortly after the crash, right visual field deficit, and his loss in verbal I.Q. all are consistent with a left-sided brain injury.
26. The Defendants presented testimony through their referral expert, Dr. John Cassidy. Dr. Cassidy disagreed with the evaluations of Dr. Leslie, Dr. Bontke and Dr. Blackwell regarding Mr. Thier's loss of I.Q. as a result of the head injuries sustained in the crash. Dr. Cassidy readily acknowledges that Mr. Thier sustained a mild traumatic brain injury in the crash, but he hotly disputes the conclusions of Drs. Leslie, Bontke and Blackwell that Mr. Thier sustained a focal left hemispheric brain injury resulting in any disfunction. The testimony of Dr. Cassidy is of dubious credibility and the Court accepts the testimony of Drs. Leslie, Bontke and Blackwell regarding Mr. Thier's injuries and damages sustained in this crash. Dr. Cassidy testified that he saw 3000 patients last year and this Court is unable to fathom how any physician could provide *872 meaningful treatment to any individuals in such a crowd. Dr. Cassidy's evaluation of Mr. Thier was based upon a brief examination of Mr. Thier and a review of medical records which quite obviously were so focused against Mr. Thier's positions in this lawsuit that Dr. Cassidy appeared more as an advocate than as an independent evaluator. Dr. Cassidy has no explanation for Mr. Thier's vision difficulties and Dr. Cassidy focused upon one SAT test taken by Mr. Thier prior to the subject incident in determining that Mr. Thier sustained no decrease in verbal I.Q. as a result of the incident. Dr. Cassidy completely ignored a subsequent SAT test, also taken before the subject crash, which indicated Mr. Thier's verbal I.Q. could be in a range consistent with his performance I.Q. In summary, the Court respectfully rejects the testimony of Dr. John W. Cassidy regarding the injuries and damages sustained by Mr. Thier in its entirety, and accepts the testimony of Drs. Nancy Leslie, Catherine Bontke, and Thomas A. Blackwell.
27. Based upon the credible medical testimony and medical records, Mr. Thier sustained a closed head injury and a loss in his overall I.Q. which has diminished his ability to communicate and his ability to understand and follow instructions. This decrease in I.Q. also has made it much more difficult for Mr. Thier to perform higher level cognitive functions and he now is required to expend substantially more effort to perform tasks which previously required less effort. Mr. Thier will be able to graduate from the Merchant Marine Academy at Kingspoint but he will have to expend substantially more effort to do so.
28. Mr. Thier comes from a maritime family and has been working his entire life toward a career as a blue water marine officer. Prior to the subject incident, Mr. Thier was evaluated by Lykes as an excellent cadet and apparently was able to perform all his required functions well. Mr. Thier's evaluations for shipboard training after the subject crash reflect his difficulty in understanding and carrying out orders consistent with his impaired verbal I.Q. as a result of the subject incident. The maritime industry is competitive and only approximately 4% of the Merchant Marine Academy graduates go on to officer's duties in the Merchant Marine. If Mr. Thier had not sustained the head injuries in the subject incident, more likely than not, he would have gone on to a career as a blue water ship's officer. Due to his head injuries and attendant I.Q. deficit and vision problems, more likely than not, Mr. Thier will not be able to graduate to a career as a ship's officer in the Merchant Marine.
29. The Court found Mr. Thier to be a pleasant, honest, straightforward and credible witness. He is exceedingly polite and deferential to authority and he was honest and diligent in attempting to respond to questions by counsel and the Court. The Court notes, however, that Mr. Thier has a great deal of difficulty orally expressing himself and focusing his attention sufficiently to respond even to simply worded straight forward questions. Through extra effort and sheer force of will, Mr. Thier now can slowly work through problems which prior to the subject incident he could quickly and easily resolve. The realities of today's marine environment will not permit Mr. Thier the additional time he requires to perform the higher level mental functions necessary to run a ship. Today's ship's officer must handle complicated navigational equipment, communications equipment, weather gathering equipment, cargo planning equipment, and numerous other sophisticated tools which demand precision and accuracy the first time. Errors in their operation may result in a shipping disaster on the magnitude of the Exxon Valdez or the Amoco Cadiz. Based upon this Court's observations of Mr. Thier and the testimony of his physicians, the Court concludes that Mr. Thier will not be able to sustain a career as a ship's officer in the Merchant Marine.
30. The Court concludes, however, that Mr. Thier is certainly employable and that he will be able to maintain relatively steady employment throughout the remainder of his life. The economic value of this alternative employment is difficult to evaluate with precision. Were Mr. Thier relegated to relatively menial unskilled labor, his residual earning capacity would be at the current minimum wage of $4.25 per hour. The Defendants *873 presented testimony through their expert economist, Mr. Ken McCoin, that the average hourly wage of all workers in America is approximately $12.00 per hour. This figure takes into account multi-millionaire entrepreneurs, highly educated Ph.D.'s and professionals, as well as all manual laborers. Mr. Thier's chosen profession was that of a ship's officer and he now will have to perform outside his area of training. More likely than not, Mr. Thier will not keep up with the nation's average in earnings, but he will be able to earn more than minimum wage. The Court finds Mr. Thier's residual earning capacity to be $7.00 per hour.
31. Plaintiff presented at trial Dr. Thomas Mayor as his economist. Dr. Mayor received his Ph.D. from the University of Maryland in 1965 in economics and has been employed the last twenty years as a professor of economics at the University of Houston. Dr. Mayor examined the Plaintiff's employment records, income tax return, social security administration earnings' records, school records, wage rates of ship's officers employed by Lykes, expert testimony of Plaintiff's testifying liability expert, Joe Grace (a former Lykes vessel captain), and other relevant information and arrived at an estimate of Mr. Thier's economic losses.
32. The calculation of economic damages generally begins with examination of a claimant's earnings history, but that is not possible in this case since Mr. Thier still was completing his education to enable him to embark on a career in the marine industry and his past earnings are not an accurate, reliable, or realistic basis for determining his true pre-crash earning capacity. A more reasonable starting point would be the estimated career earnings of a competent Merchant Marine officer, which the Court finds Mr. Thier would have been had the subject crash not occurred. The Plaintiff introduced evidence of wages for sea officers employed by the Defendants from 1990 through 1994, and the Court accepts these wages as standard in the industry for persons working their way up the command chain from Third Mate to Second Mate to Chief Mate to Captain. The inquiry does not end there, however, because the evidence introduced only provides daily wage rates for the various officers. Plaintiff introduced evidence of the number of days worked by the average maritime worker through Plaintiff's expert, Joe Grace. Captain Grace is a former Lykes Master and he based his testimony in this area upon conversations he had with representatives of the union which services officers in the Merchant Marine. Based upon Captain Grace's estimates of the numbers of days worked and the economic projections of Dr. Mayor discussed below, Dr. Mayor estimated a total earning capacity to retirement age 58.8 years in the amount of $3,701,254.00. Captain Grace's estimates of the numbers of days worked for ships officers in the current climate are reasonable and supported by credible evidence. Nevertheless, the Court concludes that these figures present a "best case scenario" and given the uncertainties about Mr. Thier's probable career, the Court concludes it is not reasonable to base Mr. Thier's economic loss determination upon this best case scenario. Therefore, the Court asked the economists to assume lower numbers for number of days worked based upon ships officers who work only one-half of the year or less and that the time to rise through the ranks to Captain would be much longer than the time estimated by Captain Grace. The economists accordingly performed the calculations based upon the following projected career path for Mr. Thier:
1. Upon graduation from Kingspoint Merchant Marine Academy and obtaining employment as a ship's officer beginning January 1, 1996, Mr. Thier would work three years as a relief Third Officer at $123.20 per day working 120 days per year;
2. Mr. Thier then would have been promoted to full-time Third Officer for four years at $123.20 per day working 180 days per year;
3. Mr. Thier then would have been promoted to Second Officer for five years at $137.10 per day working 180 days per year;
4. Mr. Thier then would have been promoted to Chief Officer for eight years working at $150.99 per day, 180 days per year;
*874 5. Mr. Thier then would have been promoted to relief Captain for two years at $338.93 per day working 120 days per year; and,
6. The remainder of Mr. Thier's work life would have been as a full-time Captain at $338.93 per day working 180 days per year.
33. These projected wage rates are in today's dollars and Dr. Mayor testified that the growth rate of these earnings would be approximately 1.25% per year based upon historic growth rates. The Court finds this growth rate assumption to be reasonable and adopts it.
34. The Court finds the career projections in the second to last paragraph above to be reasonable and supported by the evidence. The evidence submitted by Plaintiff supports a higher average number of days per year worked and a more aggressive career promotion path and the Court concludes that the evidence submitted by Plaintiff is credible and sufficient to support total lost future earnings capacity in the amount of $3,701,254.00. Nevertheless, given the uncertainties associated with anyone's career, the Court adopts the lower career estimates indicated in the second to last paragraph above. The Defendants presented as their expert economist, Dr. Kenneth McCoin, who is well known to and highly respected by this Court and frequently testifies regarding economic issues in civil litigation. Dr. McCoin obtained his Ph.D. from The University of Houston where he studied economics under the Plaintiff's economist, Dr. Thomas Mayor. The Court questioned Dr. McCoin regarding the reasonableness of the career assumptions described above and Dr. McCoin, the Defendants' economist, agreed that the estimates are reasonable and supported by the realities in the industry and Dr. McCoin even expressed surprise at how close these estimates were to the estimates Dr. McCoin himself intended to utilize based upon his own experience and expertise. Accordingly, the Court adopts the foregoing career projections as a reasonable and credible basis to evaluate Mr. Thier's economic damages.
35. Mr. Thier's date of birth is February 25, 1972. The Plaintiff contends that Mr. Thier's work life should be projected to age 65 given the Social Security retirement age and given Mr. Thier's professed life long desire to sail as a ship's officer. The Plaintiff's economist, utilizing government tables, testified that the median retirement age for one similarly situated to Mr. Thier would be at age 62.7, and that the mean retirement age based upon government work life tables would be to age 58.8. Again, utilizing the lower of these estimates, the Court finds that Mr. Thier would have retired at age 58.8 and so bases its economic calculations.
36. The income streams generated by the foregoing income projections must be discounted in accordance with Culver II. In accordance with Culver II, the Court must adopt a pre-tax after inflation discount rate at which the income stream should be discounted to arrive at the present value of the economic losses. Dr. Mayor testified that utilizing a forty year history, (1947-1993), inflation rates and interest rates on safe investments, a pre-tax discount rate of 1.0% per year would be appropriate. Utilizing a shorter period of twenty years, (1970-1993), to evaluate these same indicators, Dr. Mayor testified an appropriate discount rate would be 1.5% per year. The Court finds that a mid-point of the two periods is an appropriate discount rate which is supported by the evidence and, accordingly, adopts a pre-tax discount rate of 1.25% to determine the present value of Mr. Thier's economic losses. In accordance with Culver II, this pre-tax rate must be adjusted for the effects of taxes and Dr. Mayor testified that after adjusting for the effects of income taxes, the appropriate after-tax discount rate is 0.75%. The Court recognizes that the United States Court of Appeals for the Fifth Circuit, in the Culver II decision, specified that this Court must identify a pre-tax discount rate and that if the rate is between 1% and 3% it will be accorded "great deference" so long as it is explained. This Court therefore respectfully adopts a pre-tax discount rate of 1.25% per year in accordance with Culver II for the reasons set forth above.
37. The Plaintiff's expert, Captain Joe Grace, testified that ship's officers typically receive overtime and vacation pay in addition *875 to their normal pay. The Plaintiff's economist estimates the value of this overtime and vacation pay to be an additional 40% above the pay obtained for actual days worked. The Court accepts this testimony as credible and supported by the evidence and accordingly increases the income streams by an additional 40% to allow for overtime and vacation pay.
38. In addition to pay, overtime, and vacations, Mr. Thier would have been entitled to fringe benefits which included a maritime pension and a medical benefits plan. The Court finds that the value of the maritime pension would be approximately 15% of gross wages and the value of the medical plan would be approximately $100.00 per month. The Court finds that these are valid components of Mr. Thier's economic losses and they are supported by the evidence and, accordingly, adopts them.
39. In addition to the other benefits associated with employment, Mr. Thier would have received room and board during the time he was working on the vessels. Dr. Mayor estimated the value of this room and board at $9.00 per day. The Court finds this estimation to be somewhat low, but supported by the evidence, and accepts it.
40. The foregoing income streams must be reduced to account for the effect of taxes and job expenses. Plaintiff's economist Mayor testified that expenses associated with employment would average approximately $1,000.00 per year and the Court finds this estimate to be acceptable, and supported by the evidence. Mr. Thier's gross wages also must be reduced for the effects of payroll taxes and federal income taxes and the Court finds these deductions were appropriately made by Dr. Mayor in arriving at his lost earning capacity estimates. The payroll tax deduction from gross wages ranged from $1,583.00 for a Third Officer working 120 days per year, to $5,146.00 for a Captain working 180 days per year. The federal income tax deduction from gross wages ranged from $2,164.00 for a Third Mate working 120 days per year, to $19,134.00 for a ship's Captain working 180 days per year. These taxes were calculated by Dr. Mayor utilizing current tax tables and standard deductions with a single exemption. The Court finds these deductions appropriate and accepts them.
41. Based upon the foregoing assumptions, Dr. Mayor testified that the discounted present value of Mr. Thier's projected after tax income stream would be $1,929,546.00. The Court finds the foregoing assumptions to be supported by the evidence and credible and the Court finds that Dr. Mayor's calculations were properly performed and accepts this calculation as an appropriate estimate of Mr. Thier's economic earning capacity had he not been injured.
42. The Court finds that Mr. Thier's injury will prevent him from completing the career path indicated in the foregoing assumptions. The Court finds that Mr. Thier is not totally disabled, however, and that he will hold gainful employment for the remainder of his life. The Court has found that Mr. Thier's residual earning capacity is $7.00 per hour. Plaintiff's economist, Dr. Mayor, testified that assuming Mr. Thier worked 40 hours per week, 52 weeks per year at $7.00 per hour, and further assuming that this $7.00 per hour would have fringe benefits worth 16.6% of gross wages (this 16.6% figure is derived from the assumptions used by the Defendants' economist, Dr. McCoin), Mr. Thier's residual earning capacity discounted to present value utilizing the same assumptions adopted above would be $508,116.00. The Court finds these assumptions to be supported by the evidence and appropriate and accordingly accepts them.
43. Subtracting the Plaintiff's residual earning capacity from his pre-injury earning capacity, the Court finds Mr. Thier can clearly and fairly argue sustained economic damages in the amount of $1,421,430.00. However, to be scrupulously fair, the Court notes its apprehension about accurately projecting a life-time of earnings and benefits for someone of tender age and indeed still in school. It is entirely possible that Mr. Thier might have left marine employment at some time, or that his career track would be slower than that of others. Therefore, taking into consideration the broad range of loss arguable by both sides, the Court finds Plaintiff's total future economic loss to be $710,715.00, or *876 one-half the loss he actually proved through credible witnesses and evidence in the trial of this case.
44. Mr. Thier has incurred past medical expenses in the amount of $26,142.01, which are reasonable and made necessary as a result of the subject crash, and he is entitled to recover this amount from the Defendants.
45. Mr. Thier was examined by an internal medicine specialist, Dr. Thomas Blackwell, who testified that future medical expenses in the range of $3,000-$5,000 for surgery would be incurred to remove the steel plates which were installed to hold his face in place. The Court concludes that the midrange of these figures is an appropriate estimate of Mr. Thier's future medical expenses and finds that such expenses will be $4,000. Additionally, Dr. Bontke testified that Mr. Thier will need psychological counseling and driving therapy which, over Mr. Thier's lifetime will cost $24,560. Dr. Bontke also testified that Mr. Thier should expect costs of $1,500.00 for future cosmetic surgery and that $50,000.00 should be set aside to cover future medical expenses resulting from the crash, including further facial or brain surgery. The Court accepts these future medical expenses as reasonable and necessary as a result of the crash and finds that Mr. Thier should receive a total of $80,060.00 for reasonable and necessary future medical expenses as a result of the crash.
46. Finally, the Court addresses the Plaintiff's subjective losses. Plaintiff was involved in a horrible automobile crash which resulted in the death of his friend and co-worker, major facial and head trauma to the Plaintiff, a significant loss in verbal IQ, serious and obvious scarring to Plaintiff's face under his eyes, air seeping into Plaintiff's brain, reduction in visual field, and other difficulties involving Plaintiff's eyes, serious psychological problems dealing with his injuries, and intellectual difficulties, and problems dealing with larger questions of why his friend died while he lives. The Court observed Mr. Thier at trial and noted his obviously depressed and exceedingly serious demeanor. The Court observed first hand the scarring to Mr. Thier's face which the Court finds particularly significant to a young man of Plaintiff's age and station in life. Mr. Thier faces a future surgery to remove the steel currently imbedded in his facial bones and this logically will not help the scarring to Mr. Thier's face. The psychological and intellectual injuries sustained by Mr. Thier will continue for the remainder of his life and the disfigurement likewise will continue for the remainder of Plaintiff's life. On the totality of the evidence offered in this case, and after careful consideration of the relevant testimony of each of the presented witnesses, and the records produced at trial, the Court finds that a fair and reasonable amount to compensate the Plaintiff's past pain and suffering, mental anguish, physical infirmity and disfigurement, equals $300,000.00. The Court also finds that an amount of $200,000.00 is fair and reasonable to compensate the subjective losses the Plaintiff will suffer throughout the remainder of his natural life. Consequently, the Court finds that Plaintiff's combined past and future subjective losses should be compensated in the total amount of $500,000.00.
47. The Court finds that Plaintiff is entitled to pre-judgment interest, at a rate of 5.88% per annum, relative to the subjective losses and actual losses he has sustained to date. Totaling Plaintiff's past subjective losses of $300,000.00 and his past medical expenses of $26,142.01 from the date of crash to the date of Judgment, September 14, 1995, the Court finds that the interest due and owing on such amount equals $42,189.73. The Court finds that the Plaintiff shall also have post-judgment interest on the full amount of the judgment, until the payment in full of such outstanding judgment, also at the rate of 5.88% per annum.
48. In consequence of all the foregoing, the Court finds that Plaintiff has sustained total damages of:
a. Future economic losses $ 710,715.00
b. Past subjective losses $ 300,000.00
c. Future subjective losses $ 200,000.00
d. Past medical expenses $ 26,142.01
e. Future medical expenses $ 80,060.00
f. Pre-judgment interest $ 42,189.73
Total Damages $ 1,359,106.74
Defendants are jointly and severally one hundred percent (100%) negligent in this case and this negligence was a legal cause of Plaintiff's damages, and the Court finds no *877 negligence on the part of the Plaintiff. Consequently, the Court finds the Plaintiff is entitled to and shall have and recover of and from the Defendants the stated amount of $1,359,106.74, together with interest thereon at the rate of 5.88% per annum, from the date of Judgment, until the satisfaction thereof, as well as taxable costs of court, as provided by law.
CONCLUSIONS OF LAW
1. At the time of his injury on June 22, 1993, Plaintiff Fred Thier was a "seaman" as that term is defined in law. 46 U.S.C.App. § 688. During Mr. Thier's entire employment with Lykes, he was assigned to the Lykes vessel, M/V GENEVIEVE LYKES, and Mr. Thier worked as a crew member performing numerous officer's duties for the benefit of the vessel and he contributed to the mission of the vessel. Mr. Thier was paid by the Defendants for his services and his pay was reasonable given his experience and responsibilities. Prior to his assignment to the M/V GENEVIEVE LYKES, Mr. Thier was not an "employee" of anyone. Even if he were considered to be an employee of the United States government while studying at Kingspoint Merchant Marine, his work assignment clearly changed when he was hired by Lykes as a cadet and assigned to the M/V GENEVIEVE LYKES. Without question, Mr. Thier would not be considered a "seaman" and entitled to the protection of the Jones Act if he were injured while walking the hallways of the Kingspoint Marine Academy during the course of his regular semester studies there. Nevertheless, "[w]hen a maritime worker's basic assignment changes, his seamen's status changes as well." Chandris, Inc. v. Latsis, ___ U.S. ___, ___ - ___, 115 S.Ct. 2172, 2191-92, 132 L.Ed.2d 314 (1995). As the U.S. Supreme Court recently recognized in this decision:
[W]e can imagine situations in which someone who had worked for years in an employer's shoreside headquarters is then reassigned to a ship in a classic seaman's job that involves a regular and continuous, rather than intermittent commitment of the worker's labor to the function of a vessel. Such a person should not be denied seaman's status if injured shortly after the reassignment, just as someone actually transferred to a desk job in the company's office and injured in the hallway should not be entitled to claim seaman's status on the basis of prior service at sea. If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new position.
After carefully considering the facts presented at trial and thorough review of the documents filed with the Court, the Court concludes that at the time of the subject incident, Mr. Thier's duties contributed to the function of the vessel or to the accomplishment of its mission and that Mr. Thier had a connection to a vessel in navigation that was substantial in both its duration and its nature. Nevertheless, even viewing all the evidence in a light most favorable to the Defendants and construing any disputed evidence in favor of the Defendants' position regarding seaman's status, the Court still concludes that, at minimum, Mr. Thier had received a new work assignment for Lykes in which his essential duties had changed and Mr. Thier is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities while working as a cadet for Lykes onboard the M/V GENEVIEVE LYKES. Whether there was permanent assignment during tenure with Lykes, reassignment to new position, or assignment to traditional seaman's duties for significant duration, Mr. Thier was a seaman and his employer was Lykes. Examining Mr. Thier's vessel-related work in this light, the Court concludes that Mr. Thier was a Jones Act seaman. Chandris, ___ U.S. ___, 115 S.Ct. 2172, 132 L.Ed.2d 314.
2. The driver of the vehicle at the time of the subject crash was Robert Borzi, who was the Chief Officer of the M/V GENEVIEVE LYKES. Mr. Borzi also was a Jones Act seaman on the date of the incident in question. Id.
3. The Court next must determine whether the Plaintiff and Mr. Borzi were acting within the course and scope of their *878 employment at the time of the crash. The Court notes initially that the test for whether an employee is within the "course and scope" of his employment for the purposes of the Jones Act is the same as the test for whether the employee is "in the service of the ship" for the purposes of maintenance and cure. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132-33, 80 S.Ct. 247, 249-50, 4 L.Ed.2d 191 (1959). Accordingly, cases determining whether an employee is in the service of the ship for maintenance and cure purposes are binding precedent on this issue. It cannot be disputed that Mr. Borzi, Mr. Thier, and Mr. Borzi's girlfriend were traveling from the ship to a restaurant in the only means of transportation on the only route available and they had just left the dock area at the time of the crash. Even in the absence of any other vessel related purposes for the trip, the two men were, at minimum, headed for shore leave at the time of the crash. As such, Mr. Thier and Mr. Borzi were within the course and scope of their employment. Aguilar v. Standard Oil Co. of NJ, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943); Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 80 S.Ct. 247, 4 L.Ed.2d 191 (1959); Daughenbaugh v. Bethlehem Steel Corp., 891 F.2d 1199 (6th Cir.1989); Central Gulf Steamship Corp. v. Sambula, 405 F.2d 291 (5th Cir.1968); Allan v. Brown & Root Inc., 491 F.Supp. 398 (S.D.Tex.1980).
4. As noted in this Court's Findings of Fact, however there was substantially more vessel-related activity anticipated on the night of the crash and this was not a typical shore leave for purely recreational purposes. In these circumstances, both Mr. Their and Mr. Borzi were acting within the course and scope of their employment. 46 U.S.C.App. § 688.
5. The Court also concludes that even if Mr. Thier and Mr. Borzi were not acting within the course and scope of their employments as Jones Act seamen at the time of the crash, then Mr. Borzi was acting as Lykes' agent for the purpose of providing transportation to Mr. Thier and, accordingly, Lykes is liable for any negligence on the part of Mr. Borzi under the doctrine of respondeat superior. Lykes was obligated to provide Mr. Thier with meals and the ship's mess had closed. Accordingly, Lykes had to get Mr. Thier to town and taxis were not readily available for this purpose. Lykes utilized Mr. Borzi as its agent to provide transportation to Mr. Thier and is liable for the negligence of its agent. Hopson v. Texaco, 383 U.S. 262, 86 S.Ct. 765, 15 L.Ed.2d 740 (1966).
6. The Court notes that, at least in the Joint Pretrial Order, the Defendants have challenged the subject matter jurisdiction of this Court. The Court rejects this challenge, if any, and finds that it has jurisdiction under Fed.R.Civ.Proc. 9(h), 28 U.S.C. § 1333, and the Admiralty Extension Act, 46 U.S.C.App. § 740. The Admiralty Extension Act provides that "[t]he Admiralty and Maritime jurisdiction ... shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, not withstanding that such damage or injury be done or consummated on land." The Court has concluded that negligence on the part of Lykes and Mr. Borzi occurred onboard the vessel and it cannot be disputed that this vessel negligence caused damage and injury to be done or consummated on land. Accordingly, this Court has subject matter jurisdiction irrespective of whether either the Plaintiff or Mr. Borzi were within the course and scope of their employment and irrespective of whether they were Jones Act seamen. Duluth Superior Excursions, Inc. v. Makela, 623 F.2d 1251 (8th Cir.1980) (passenger on a vessel was injured when struck by an automobile on a street adjoining a dock as a result of the ship's failure to provide a safe means of exit, an Admiralty jurisdiction was found).
7. Mr. Borzi was negligent and his negligence in becoming intoxicated on the vessel was a proximate and producing cause of Plaintiff's damages. The Defendants are liable for the negligence of Mr. Borzi. The Defendants were negligent per se and negligent for violating statutes designed to prevent injuries to persons in Plaintiff's class, they were negligent in operating a floating dram shop with insufficient supervision to prevent Mr. Borzi from becoming intoxicated while on the vessel, and this negligence was a proximate and producing cause of Plaintiff's damages. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140 (1980) (on petition for rehearing). This Court takes judicial notice that Louisiana's traffic laws prohibit driving *879 with a blood alcohol content in excess of 0.10 and, accordingly, Mr. Borzi was legally drunk at the time of the subject crash. Id. at 140, n. 1. Mr. Borzi's negligence in becoming drunk while onboard the vessel and in failing to control the speed of his vehicle was a proximate and producing cause of Plaintiff's damages. The Defendants were negligent in failing to monitor alcohol consumption onboard, fostering a party atmosphere, and failing to prohibit drunk officers from driving and this negligence was a legal and factual cause of Plaintiff's injuries. Consequently, irrespective of whether Mr. Thier, Mr. Borzi, or both of them were Jones Act seamen or in the course and scope of their employment for Defendants at the time of the crash, Defendants are completely liable, jointly and severally, to Plaintiff for his damages sustained as a result of the subject incident, including loss of future earning capacity, reasonable costs of medical and hospital care in the future, physical pain and suffering including physical disability, impairment, inconvenience, the effects of Plaintiff's injuries on the normal pursuits and pleasures of life, and mental anguish, both past and future. See Williams v. Chevron, 875 F.2d 501, 506 (5th Cir.1989). The future losses must be discounted. Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir.1983). Future lost income must also reflect a judgment to net, after tax value. Norfolk and W. Ry. v. Liepelt, 444 U.S. 490, 493-94, 100 S.Ct. 755, 757-58, 62 L.Ed.2d 689 (1980).
8. This was an Admiralty action tried without a jury, pursuant to the Court's admiralty jurisdiction invoked by Fed.R.Civ.Proc. 9(h). Accordingly, an award of interest is proper in the sound discretion of the Court. Marathon Pipe Line Co. v. M/V Sea Level II, 806 F.2d 585, 593 (5th Cir.1986). The Court finds that an award of prejudgment interest is proper in this case at the rate of 5.88% per annum, on Plaintiff's past damages as provided and described in the Court's Findings of Fact.
9. On the basis of the foregoing Findings of Fact, Plaintiff has sustained damages in the amount of $1,359,106.74, inclusive of all past and future losses, prejudgment interest on past losses, together with interest on the entire Judgment, until satisfied, at 5.88% per annum.
10. To the extent any Finding of Fact constitutes a Conclusion of Law, the Court hereby adopts it as such. To the extent any Conclusion of Law constitutes a Finding of Fact, the Court hereby adopts it as such.
IT IS SO ORDERED.
FINAL JUDGMENT
For the reasons set out in the Court's Findings of Fact and Conclusions of Law, entered this date in the instant cause, and pursuant to Rule 58 of the Fed.R.Civ.P., Judgment is hereby rendered in favor of Plaintiff, on his claims of negligence. Pursuant hereto, Plaintiff Fred Thier shall have and recover of and from Defendants Lykes Bros., Inc. and Lykes Bros. Steamship Co., Inc., jointly and severally, the total amount of $1,359,106.74, together with his taxable costs of court, and post-Judgment interest at the rate of 5.88 percent paid per annum, for which let execution issue, if not timely paid.
ALL RELIEF NOT HEREIN EXPRESSLY GRANTED IS DENIED.
THIS IS A FINAL JUDGMENT.
NOTES
[1] Mr. Thier was a United States Merchant Marine Academy cadet, temporarily assigned to the vessel pursuant to 46 C.F.R. § 310.60. He had been on the vessel six weeks. The day of the accident was to be his last on the vessel, before returning to school.
[2] The same prohibition exists under Texas Law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262084/ | 132 Cal.Rptr.2d 198 (2003)
107 Cal.App.4th 606
Bernie CHAVERS, et al., Plaintiffs and Appellants,
v.
GATKE CORPORATION, Defendant and Respondent.
No. A092551.
Court of Appeal, First District, Division Four.
March 28, 2003.
As Modified April 25, 2003.
Review Denied June 11, 2003.
Gilbert Purcell, Brayton, Purcell, Curtis & Geagan, Novato, for Appellants.
Bennett, et al, Frederick D. Baker, Paul J. Riehle, Kirk C. Jenkins, Charles P. Murrin Sedgwick, Detert, Moran & Arnold, San Francisco, for Defendant and Respondent.
*199 SEPULVEDA, J.
This appeal requires us to consider the vitality of the idea of "group" or "collective" legal accountability in the products liability context. For well over a quarter century, courts across the nation have struggled with a variety of novel theories under which manufacturers of a defective product could assertedly be held liable in damages to plaintiffs injured by use of or exposure to it. Litigation involving asbestos, tobacco, and DES are prominent examples. Owing to circumstances, the plaintiffs in such cases often were unable to identify the specific manufacturer of the product that allegedly produced their injuries. The rule at common law, of course, placed tort litigants under an unwaivable requirement of proving not only a compensable injury but also the identity of the offending manufacturer whose acts caused the plaintiffs injury. Proof of causation, in other words, is an essential condition for liability in tort.
In the struggle to adjust traditional notions of tort liability to the changing realities of national business practices, five more or less distinct theories have arisen. Under all of them, product manufacturers can be held collectivelyand jointly and severallyliable in tort without proof of "causation" as conventionally understood in tort law. These doctrines, going under such names as "alternative liability," "industry-wide (or `enterprise') liability," "market share liability," "concert of action" and "conspiracy," have received a mixed reception in American courts. We consider here whether respondent, formerly a manufacturer of friction brake products containing asbestos, can be held liable in tort to plaintiffs husband and wife for injuries caused by asbestos inhalation where, plaintiffs conceded, they possessed no evidence husband had been exposed to products manufactured by defendant. Plaintiffs contend defendant manufacturer was liable to them in strict liability and for negligence on theories of civil conspiracy and concert of action, and that the trial court erred when it refused to instruct the jury on those issues. Having concluded both instructions proffered by plaintiffs were inappropriate as a matter of law and that the trial court thus did not err in declining to give them, we will affirm.
FACTUAL BACKGROUND
With his wife Mary as coplaintiff, Bernie Chavers, who worked for several years as an automobile and truck mechanic repairing friction brakes, filed a complaint for damages for injuries allegedly caused by prolonged inhalation of asbestos-laden particles.[1] Brake work of the type Chavers performed required that brake shoes composed in part of asbestos because it resists the extreme heat generated by stopping a multi-ton vehiclebe sanded with high speed machines, a process that gives off dust particles which, unless the operator wears a mask or other appropriate protection, are inhaled into the lungs. The theory underlying plaintiffs' complaint was that while working around automotive brakes, Mr. Chavers contracted a form of pulmonary cancermesotheliomacaused by the inhalation of asbestos particles. The Chaverses' complaint joined as defendants scores of manufacturers, suppliers, and distributors of friction brake products containing asbestos59 named defendants and 800 "Doe" defendantsasserting, in the fourteenth cause of action, that all were jointly and severally liable for plaintiffs' injuries under two theories of group liability. Prior to trial, *200 plaintiffs reached settlement agreements with all but two of the defendantsrespondent Gatke Corporation (Gatke), a dissolved, bankrupt company that had in the past manufactured automotive brakes and clutches, and Owens-Illinois, Inc.
A jury trial of the Chaverses' tort claims against these two remaining defendants began in January 2000. Before trial commenced, plaintiffs conceded they possessed no evidence establishing that Bernie Chavers had used or worked around brake shoes manufactured by Gatke, that is, plaintiffs admitted they were unable to prove that Gatke-manufactured brake shoes had "caused" Mr. Chavers' injuries. In a liability wrinkle that has produced this appeal, however, the Chaverses' attorneys contended Gatke could be held liable in tort without proof that its friction products played any role in the causal chain that led to Mr. Chavers' illness. Specifically, during the course of the trial, plaintiffs presented testimony from an expert witness, David Egilman, M.D., that beginning around 1936 a number of manufacturers whose products contained asbestos had contributed financing to the Saranac Laboratory, a private research facility at Saranac Lake, New York, for the purpose of investigating the health effects of asbestos on those who used or worked around it. According to plaintiffs' theory of Gatke's tort liability, purportedly supported by Dr. Egilman's trial testimony, a decade passed before the director of the Saranac Laboratory reported to those financing the investigation that findings made by the researchers pointed to asbestos as having seriously harmful effects on the health of those exposed to it, including cancer.
At the behest of some of the members of the consortium funding the Saranac Laboratory research, plaintiffs contended through Dr. Egilman's testimony, all references to cancer were deleted from the report before it was released for publication. Only years later did the public learn what those who financed the Saranac Laboratory research had long knownasbestos can cause serious, even fatal, harm to those exposed to it. To complete the description of plaintiffs' theory of group tort liability, they asserted the suppression of the adverse Saranac Laboratory findings by those manufacturers responsible for funding the research amounted to a tortious failure to warn potential users of asbestos-laden products of their adverse health effects. As a result, thousands of Americans continued to use and work around asbestos for decades to come, unaware of what Gatke and other manufacturers who had supported the Saranac Laboratory research already knewthat exposure to asbestos can cause cancer.
At the instructions conference before the trial judge, plaintiffs' counsel requested the court include in its charge to the jury special instructions embodying two of the theories of group tort liabilitycivil conspiracy and concert of action. Following considerable discussion between the trial judge and counsel for the parties, the court refused to include plaintiffs' special instructions in its charge to the jury. After retiring and deliberating, the jury returned with a verdict in favor of defendant. Specifically, the jury answered "no" to the following questions on the special verdict form:
"Was there in existence at any time [a] conspiracy involving defendant Gatke Corporation committing concealment or intentional misrepresentation as defined in these instructions?" and "Were Gatke Corporation and Owens-Illinois, Inc. in the same conspiracy?"
This timely appeal by plaintiffs from a final judgment in favor of Gatke followed.
*201 ANALYSIS
1. The trial court did not err in declining to give the jury a civil conspiracy instruction on plaintiffs' negligence and strict liability tort claims.
As noted, plaintiffs asked the trial court to read to the jury instructions offered by them permitting a finding of tort liability for negligence or strict liability based on a theory of civil conspiracy. Following discussion with counsel, Judge McBride refused to give the instruction proffered by plaintiffs, giving instead a conspiracy instruction involving concealment and intentional misrepresentation. Plaintiffs contend the trial court's instructional omission constituted reversible error.
Resolution of this issue, we decide, is straightforward. The following statement appears in our high court's Applied Equipment opinion (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514, 28 Cal.Rptr.2d 475, 869 P.2d 454 (Applied Equipment)): "Conspiracy is not an independent tort; it cannot create a duty or abrogate an immunity. It allows tort recovery only against a party who already owes the duty and is not immune from liability based on applicable substantive tort law principles. [Citations.]" The unstated premise for this conclusion, or perhaps a consequence of it, is that an allegation of conspiracy itself does not lay a predicate for substantive civil liability. The Supreme Court's Applied Equipment opinion plainly holds that before one can be held liable for civil conspiracy, he must be capable of being individually liable for the underlying wrong as a matter of substantive tort law. And that requirement, of course, means he must have owed a legal duty of care to the plaintiff, one that was breached to the latter's injury.
In seeking to fix the operative implications of the Applied Equipment holding, it is helpful to go back in time to see what provoked it. That was Justice Sullivan's opinion for the Court of Appeal in Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 35 Cal.Rptr. 652 (Wise). In that case, the court held that one party to a contract could, through use of a civil conspiracy theory, be held liable in tort for interference with contract as a result of the acts of another, a coconspirator and a stranger to the contract. The Wise court termed such a liability outcome consistent with "the principle that all who are involved in a common scheme are jointly and severally responsible for the ensuing wrong" and also "consonant with good morals." (Id. at pp. 71-72, 35 Cal.Rptr. 652.)
As a matter of unqualified logic, it is not difficult to see how the Wise court reached its conclusion. It is the essence of common law conspiracy doctrine that the coconspirators are liable in the same way and to the same extent as the principal who actually commits the harmful or outlawed act. The agreement of all and the overt act of one is sufficient to impose the same liability on all for the act of the one. (See, e.g., Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-678, 262 P. 302 ["the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity"].)
The erosion of the analysis and result in Wise, supra, 223 Cal.App.2d 50, 35 Cal. Rptr. 652which had been followed in a number of published Court of Appeal decisions (see Applied Equipment, supra, 7 Cal.4th at p. 510, 28 Cal.Rptr.2d 475, 869 P.2d 454)began with the Supreme Court's opinion in Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (Gruenberg) a decade later. There, it was alleged the three defendants *202 an insurance adjuster, an attorney, and the plaintiffs insurerconspired to breach the implied contractual covenant of good faith and fair dealing by tortiously fomenting false criminal charges against the plaintiff-insured in order to evade liability under a fire insurance policy. (Id. at pp. 570-572, 108 Cal.Rptr. 480, 510 P.2d 1032.) Relying in part on the established "agent's immunity rule," the Gruenberg court declined to impose tort liability on the defendants. In addition to the agent's immunity rule, however, the Gruenberg court invoked a second principlethat "the non-insurer defendants were not parties to the agreements for insurance; therefore, they are not, as such, subject to an implied duty of good faith and fair dealing." (Id. at p. 576, 108 Cal.Rptr. 480, 510 P.2d 1032.)
The limitation on conspiracy liability announced by the court in Gruenberg was endorsed and its rationale explicated somewhat by the Supreme Court in Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 260 Cal.Rptr. 183, 775 P.2d 508 (Doctors' Co.). There, a third-party claimant, proceeding under the procedure approved in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 153 Cal.Rptr. 842, 592 P.2d 329, filed suit in tort against an insurer, its attorney, and an expert witness, contending the three had conspired to violate an Insurance Code statute making it an unfair business practice for an insurer to refrain from effecting a prompt and fair settlement of pending claims. (Doctors' Co., supra, at pp. 42-43, 260 Cal.Rptr. 183, 775 P.2d 508.) The trial court overruled a demurrer to the conspiracy count; the defendants sought writ relief; the Supreme Court vacated the order overruling the demurrer. Writing for a unanimous court, Justice Kaufman's opinion made it clear that a member of a civil conspiracy is liable in tort only if he was under a legal duty originating in some source other than the conspiracy itself. "A cause of action for civil conspiracy may not arise," he wrote, "if the alleged conspirator, though a participant in the agreement underlying the injury, was not personally bound by the duty violated by the wrongdoing...." (Id. at p. 44, 260 Cal.Rptr. 183, 775 P.2d 508, italics added.)
The Gruenberg-Doctors' Co. line of authority may have reached a zenith of sorts with the high court's opinion in Applied Equipment, supra, 7 Cal.4th 503, 28 Cal. Rptr.2d 475, 869 P.2d 454. There, the plaintiff electronics vendor subcontracted with the defendant Litton Saudi Arabia to procure spare electronics partsincluding custom-made electron tubes manufactured by defendant Varian Associatesfor a military communications and control system Litton was building for the Kingdom of Saudi Arabia. Unhappy with plaintiffs price markup under the subcontract, Litton unilaterally "renegotiated" its purchase order with plaintiff, procuring some of the tubes directly from Varian Associates, Inc. (Varian), at a reduced markup. (Id. at pp. 508-509, 28 Cal.Rptr.2d 475, 869 P.2d 454.) Applied Equipment then filed suit against Litton and Varian pleading, among other causes of action, the formation of a civil conspiracy by the two companies to tortiously interfere with the contract between plaintiff and Litton. After a lengthy trial, the jury returned a damages award for plaintiff on its breach of contract claim against Litton and $2.5 million in damages on the conspiracy-to-interfere-with-contract tort claim against both defendants. (Id. at p. 509, 28 Cal.Rptr.2d 475, 869 P.2d 454.)
Our Supreme Court reversed that judgment. Reviewing the accumulated case law on civil conspiracy, including its own precedents, the court said a plaintiffs invocation of a conspiracy claim "allows tort recovery only against a party who already owes the duty and is not immune from liability based on applicable substantive *203 tort law principles. [Citations.] Because a party to a contract owes no tort duty to refrain from interference with its performance, he ... cannot be bootstrapped into tort liability by the pejorative plea of conspiracy." (Applied Equipment, supra, at p. 514, 28 Cal.Rptr.2d 475, 869 P.2d 454, italics added.) The opinion went on to disapprove the contrary holding reached by the Court of Appeal in Wise, supra, 223 Cal.App.2d 50, 35 Cal.Rptr. 652, and those cases following it. (Applied Equipment, supra, at p. 521, fn. 10, 28 Cal.Rptr.2d 475, 869 P.2d 454.)
As we read Applied Equipment and the antecedent case authorities on which it builds, in California a civil conspiracy to commit tortious acts can, as a matter of law, only be formed by parties who are already under a duty to the plaintiff, the breach of which will support a cause of action against themindividually and not as conspiratorsin tort. (Applied Equipment, supra, 7 Cal.4th at p. 514, 28 Cal.Rptr.2d 475, 869 P.2d 454.) Restated, in cases where the plaintiff alleges the existence of a civil conspiracy among the defendants to commit tortious acts, the source of substantive liability arises out of a preexisting legal duty and its breach; liability cannot arise out of participation in the conspiracy alone. Moreover, according to these authorities, it makes no difference in the analysis whether the underlying duty is imposed by statute (as in Doctors' Co.) or by the common law (as in Applied Equipment). A duty, however, independent of the conspiracy itself, must exist in order for substantive liability to attach. That proposition, we conclude, applies in this case and is dispositive of the point. For on this record, it is clear respondent was under no duty to Mr. Chavers for the simple reason that plaintiffs could not show he was exposed to any of Gatke's products.
We recognize the foregoing proposition may be challenged as lacking an impeccable logic but, as was famously written, the "life of the law has not been logic: it has been experience." (Holmes, The Common Law (1881) p. 1.)[2] And we think it is the distillation of experience that has produced the black-letter principle of Applied Equipment. Moreover, we are obliged to content ourselves with the law as our Supreme Court has fashioned it.[3] (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) That law, as we parse it, includes the principle stated just above. It is for that reason the trial court did not err when it declined to give the jury the civil conspiracy instruction offered by plaintiffs.
2. On this record, the trial court did not err in refusing to give the jury a concert, of action instruction with respect to defendant Gatke.
Plaintiffs also contend the trial court erred when, in charging the jury, it declined *204 to give a "concert of action" instruction proffered by them. We think the trial court stood on solid ground in so acting for the reasons given by Justice Mosk in the well-known case of Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (Sindell) Famous as the decision in which a majority of the California Supreme Court crafted a hybrid group liability theory christened "market share liability," the high court's Sindell opinion also rejected application of the same concert of action theory of collective liability that plaintiffs sought to fasten on Gatke at trial. In a nutshell, as the Sindell opinion described them, the cases in which the concert of action theory of liability has been applied "involve conduct by a small number of individuals whose actions resulted in a tort against a single plaintiff, usually over a short span of time, and the defendant held liable was either a direct participant in the acts which caused damage, or encouraged and assisted the person who directly caused the injuries by participating in a joint activity." (Id. at pp. 605-606, 163 Cal.Rptr. 132, 607 P.2d 924, fns. omitted.)
In a theory of group tort liability that bears several similarities to plaintiffs' concert of action theory in this case, Judith Sindell alleged that while she was in utero, her mother, along with thousands of other pregnant American women between 1941 and 1971, was given a synthetic compound of the female hormone estrogen known as diethylstilbestrol or DES, as a miscarriage preventative. It was later determined that DES could cause cancerous vaginal and cervical growths in women exposed to it before birth if their mothers took the drug during their pregnancies. Plaintiff in time developed a malignancy of the bladder and related afflictions allegedly caused by her mother's ingestion of DES. Asserting DES was produced from a common and mutually agreed upon formula "as a fungible drug interchangeable with other brands of the same product," and that the drug's manufacturers "collaborated in marketing, promoting and testing the drug, relied upon each other's tests, and adhered to an industry-wide safety standard," the plaintiff contended the defendant companies were each jointly and severally liable "because they acted in concert, on the basis of express and implied agreements, and in reliance upon and ratification and exploitation of each other's testing and marketing methods." (Sindell, supra, 26 Cal.3d at pp. 594-595, 163 Cal.Rptr. 132, 607 P.2d 924.)
As indicated, although a majority of the California Supreme Court approved a burden-shifting approach requiring the defendant manufacturers to prove they did not produce the DES the plaintiffs mother had ingested or be liable to the plaintiff in proportion to their shares of the DES market (the so-called "market share" theory), the majority also rejected plaintiffs concert of action theory of liability on the merits in these circumstances. As we explain, we agree with the analysis underlying the Sindell court's rejection of a concert of action theory of liability in the comparable circumstances present here.[4]
*205 The theory of group liability that goes under the name "concert of action" traces its origin in part to Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1, the celebrated case in which the California Supreme Court held that a plaintiff, struck in the eye by birdshot when two hunters each negligently discharged their shotguns in his direction, could recover damages from both. Despite the fact that only one of the defendant hunters could have fired the birdshot that struck the plaintiff, both were negligent wrongdoers and it would be unfair, the court reasoned, to deprive the injured plaintiff of a remedy solely because it could not be determined which of the negligent defendants had fired the birdshot that actually struck the plaintiff. (Id. at p. 86, 199 P.2d 1.) The concert of action theory of tort liability has also been applied in (and was derived from) the "drag race" and like cases, opinions in which courts held the reciprocal "`inciting and encouraging one another to drive at a fast and reckless rate of speed'" furnished the necessary "proximate cause" to support joint and several liability of both racers, including the defendant whose car did not strike the plaintiff. (Agovino v. Kunze (1960) 181 Cal.App.2d 591, 598, 5 Cal.Rptr. 534, quoting People v. Kemp (1957) 150 Cal.App.2d 654, 659, 310 P.2d 680; see also Loeb v. Kimmerle (1932) 215 Cal. 143, 151, 9 P.2d 199 [defendant encouraged confederate to assault plaintiff]; Saisa v. Lilja (1st Cir.1935) 76 F.2d 380 [drag racing]; Oliver v. Miles (1927) 144 Miss. 852, 110 So. 666 [Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1 scenario]; Benson v. Ross (1906) 143 Mich. 452, 106 N.W. 1120 [same].)
The joint liability rules applied in the cases just cited (among others) have been codified in section 876 of the Restatement Second of Torts, titled `Persons Acting in Concert.' The comment to clause b of section 876the only clause imposing liability on an actor who did not personally cause the harm to the plaintiff[5]explains that "[a]dvice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other's act."[6] (Rest.2d, Torts, § 876, com.d.) These black-letter rules, and the case authorities upholding them, support the reasons given by the Sindell opinion for rejecting a concert of action theory of liability there and, by a parity of reasoning, sustain our rejection of it here. Applying a concert of action theory of collective liability in such industry-wide circumstances "would expand the [concert of action] doctrine far beyond its intended scope and would render *206 virtually any manufacturer liable for the defective products of an entire industry, even if it could be demonstrated that the product which caused the injury was not made by the defendant." (Sindell, supra, 26 Cal.3d 588 at p. 605, 163 Cal. Rptr. 132, 607 P.2d 924.)[7] In light of the thrust of Sindell and other group liability precedents we have explored, we decline to hold that the trial court erred here in refusing to read the jury the concert of action special instruction offered by plaintiffs.
Our conclusion that a concert of action jury instruction would have been inappropriate in this case is fortified by an opinion from the federal Court of Appeals for the Third Circuit, declining to apply on First Amendment associational groundsconcert of action principles of tort liability in circumstances analogous to those presented by this record. In In re Asbestos School Litigation (3rd Cir. 1994) 46 F.3d 1284, the panel confronted damage claims by multiple school districts filed against asbestos manufacturers in a nationwide class action. Among other theories of relief, the plaintiffs contended one of the defendant asbestos manufacturers Pfizer, Inc.had joined with other asbestos manufacturers to finance and conduct an industry trade group, the Safe Buildings Alliance, which assertedly was little more than a conspiracy to disseminate false information about asbestos hazards to the public and Congress. (Id. at pp. 1286-1288.) After the district court denied Pfizer's motion for partial summary judgment on plaintiffs' conspiracy and concert of action claims, it sought interlocutory relief.
The Third Circuit granted a writ of mandamus vacating the trial court's ruling. (In re Asbestos School Litigation, supra, 46 F.3d 1284 at pp. 1295-1296.) Relying on NAAGP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (Claiborne), the court held Pfizer's participation in the manufacturers' trade association was constitutionally protected against plaintiffs' conspiracy and concert of action claims. Mere association without more, the court held, cannot support conspiracy liability in tort. Instead, the Claiborne case imposes a heightened burden of proof before civil liability may be imposed for such associational conduct. As the Claiborne court had written, "[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed [tortious] acts." (Claiborne, supra, 458 U.S. at p. 920, 102 S.Ct. 3409.) For "[t]o impose liability without a finding that the [defendant] authorizedeither actually or apparentlyor ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment." (Id. at p. 931, 102 S.Ct. 3409.) It is necessary, the court held, to show that "`the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.'" (In re Asbestos School Litigation, supra, 46 F.3d at p. 1289, quoting Claiborne, supra, 458 U.S. at p. 920, 102 S.Ct. 3409, italics omitted.)
We are skeptical that the record here satisfies such an exacting constitutional standard, requiring as it would evidence that Gatke, a minor player contributing about $250 a year to the Saranac Laboratory *207 research investigations, possessed the specific intent to promote the sale of asbestos products made by its competitors. The testimony that was produced at trial tended to show that Gatke sought access to the Saranac Laboratory report in order to assist its defense of workers compensation claims filed against it in Massachusetts. Like the Third Circuit in In re Asbestos School Litigation, supra, 46 F.3d 1284, we too are concerned that requiring a manufacturer "to stand trial for civil conspiracy and concert of action predicated solely on its exercise of its First Amendment freedoms could generally chill the exercise of the freedom of association by those who wish to contribute to, attend the meetings of, and otherwise associate with trade groups and other organizations that engage in public advocacy and debate." (Id. at pp. 1295-1296.)
CONCLUSION
The judgment of the superior court is affirmed.
We concur: KAY, P.J., and RIVERA, J.
NOTES
[1] The trial record also indicates Mr. Chavers worked around asbestos and was thus exposed to it while serving in the United States Navy from 1958 to 1962.
[2] That illustrious statement continues: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." (Holmes, The Common Law, supra, at p. 1)
[3] In their reply brief, plaintiffs cite and rely on an opinion from the Second District Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581-1582, 47 Cal.Rptr.2d 752for the proposition that Gatke need only have participated in the antecedent conspiracy to suppress the Saranac Laboratory research results for conspiracy liability to attach. Our reading of the line of Supreme Court case authority culminating in Applied Equipment, supra, 7 Cal.4th 503, 28 Cal. Rptr.2d 475, 869 P.2d 454, and the requirement that the defendant must have owed an independent duty of care running to the plaintiff is incompatible with appellants' position. We reject it on that ground.
[4] From our review of the trial record, it appears a genuine Sindell market share theory of liability was abandoned by plaintiffs (and may have been rejected by the trial court) after the defense argued the brake shoes manufactured by Gatke were not fungible with friction products manufactured by other defendants. (Cf. Wheeler v. Raybestos-Manhattan (1992) 8 Cal.App.4th 1152, 11 Cal.Rptr.2d 109 [holding brake products made by five defendants qualified as fungible for Sindell purposes because all were produced with chrysotile asbestos, 40 to 60 percent by weight].) No evidence was produced by plaintiffs, defendant argued, that its friction products contained chrysotile and fell within the range of those handful of defendants in the Wheeler case.
[5] As pertinent here, section 876 of the Restatement Second of Torts provides: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he .... [¶] .... [¶] (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself. ..."
[6] Illustration 6 to clause b of section 876 given by the Restatement Second reporter appears to rely on the facts of Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, as illustrative of the clause's operation: "6. A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, which is negligent toward persons on the road. A hits the animal. B's bullet strikes C, a traveler on the road. A is subject to liability to C." (Rest.2d, Torts, § 876, com. d., illus. 6, at p. 318.)
[7] But cf. Hymowitz v. Eli Lilly & Co. (1989) 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 [holding defendant DES manufacturer liable for plaintiff's injuries on the basis of market share, regardless of whether it could establish its product did not cause the harm to plaintiff]; Hall v. Du Pont de Nemours & Co.. Inc. (E.D.N.Y.1972) 345 F.Supp. 353 [holding all American makers of dynamite blasting capsa total of six defendants could be held collectively liable in tort to the plaintiff on a concert of action or "industry-wide" theory of tort liability]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262095/ | 900 F.Supp. 1567 (1995)
Robin CROUCH, Plaintiff,
v.
Larry WHATLEY, in his individual capacity, and the City of Dadeville, Alabama, Defendants.
No. 94-D-1551-E.
United States District Court, M.D. Alabama, Eastern Division.
September 22, 1995.
*1568 Allen R. Stoner, Montgomery, AL, for plaintiff.
Alex L. Holtsford, Jr., Steven A. Higgins, Montgomery, AL, for defendants.
MEMORANDUM OPINION AND ORDER
DE MENT, District Judge.
Before the court is defendant City of Dadeville's motion for summary judgment filed March 20, 1995, and defendant Larry Whatley's motion for partial summary judgment filed March 20, 1995. The plaintiff responded in opposition to both motions on April 11, 1995, to which the defendant Larry Whatley replied to the plaintiff's response. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendant City of Dadeville's motion is due to be granted and that the defendant Larry Whatley's motion is due to be denied.
JURISDICTION AND VENUE
The plaintiff alleges that the defendants abridged certain of his rights guaranteed by the United States Constitution; therefore, jurisdiction is proper under 28 U.S.C. § 1331.[1] Also pursuant to § 1331, the court may competently assert subject matter jurisdiction over the plaintiff's claim alleging violations of 42 U.S.C. § 1983. The plaintiff also alleges violations of Alabama statutory and common law. These purported violations transpired during the same transactions and occurrences as the alleged constitutional *1569 deprivations and § 1983 violations; therefore, the court may assert supplemental jurisdiction over the plaintiff's state law claims. See 28 U.S.C. § 1367(a).[2] Personal jurisdiction and venue are not contested.
SUMMARY JUDGMENT STANDARD
On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).
The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed. R.Civ.P. 56(e).
In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.
FINDINGS OF FACT
In the early morning hours of October 23, 1993, plaintiff Robin Crouch (hereafter "Mr. Crouch") was the subject of a traffic stop in Dadeville, Alabama, by defendant Officer Larry Whatley (hereafter "Officer Whatley") and Officer Whatley's partner, Officer Mike Borders. Both officers were employed by the City of Dadeville Police Department. *1570 Walter Hartley (hereafter "Mr. Hartley") also was present at the scene, as a passenger in the motor vehicle driven by Mr. Crouch. Mr. Crouch was asked by Officer Whatley to submit to a roadside sobriety test, which consisted of Mr. Crouch blowing into a hand-held alcohol sensor. After reviewing the results of the hand-held alcohol sensor, Officer Whatley decided to let Mr. Crouch leave. Subsequently, Mr. Crouch was informed that he was free to go.
The remaining facts are hotly disputed by the parties.[3] Mr. Crouch alleges that before, during, and after the roadside sobriety test, Officer Whatley's speech directed to Mr. Crouch was loud, abusive, and unprofessional. Pl.'s Ex. C-1 at 87, 89, 90 & 92; Pl.'s Ex. C-2 at 31. At the conclusion of the roadside sobriety test and in response to Officer Whatley's alleged unprofessional behavior, Mr. Crouch asked Officer Whatley why he was talking to him in such a rude way. Pl.'s Ex. C-1 at 92-94; Pl.'s Ex. C-2 at 33. Immediately after Mr. Crouch asked Officer Whatley that question and without any notification that Mr. Crouch was under arrest, Officer Whatley grabbed Mr. Crouch by the back of the pants and the back of the collar and shoved Mr. Crouch face-first into the side of Officer Whatley's patrol car. Pl.'s Ex. C-1 at 94 & 99; Pl.'s Ex. C-2 at 33-35. The right side of Mr. Crouch's face, especially in the area of the right eye, struck the side of the patrol car. Pl.'s Ex. C-1 at 97-98. Officer Whatley then opened the rear driverside door of his patrol car and threw Mr. Crouch into the back seat. See generally Pl.'s Ex. C-1 at 94-102; Pl.'s Ex. C-2 at 33-35. Officer Whatley did not strike Mr. Crouch in any other way. Pl.'s Ex. C-2 at 35.
Mr. Crouch alleges that he never resisted Officer Whatley. Pl.'s Ex. C-1 at 95. He also denies ever being rude, loud or in any way disorderly as alleged by Officer Whatley. Pl.'s Ex. C-1 at 90-91; Pl.'s Ex. C-2 at 33. Further, Mr. Crouch alleges that the actions of Officer Whatley caused him to be scared and to suffer from blurry vision in his right eye. Pl.'s Ex. C-1 at 95 & 102.
Thereafter, out of concern for Mr. Crouch, Mr. Hartley walked up to the driver's side rear door of Officer Whatley's patrol car to check on Mr. Crouch. Mr. Hartley alleges that he was not disorderly and did not interfere with any police business. Pl.'s Ex. C-2 at 36-39. Rather, he was merely talking to Mr. Crouch through the closed window of the patrol car to determine if Mr. Crouch was all right and to inform Mr. Crouch that he would notify Mr. Crouch's mother. Id. at 36-37. Officer Whatley then approached Mr. Hartley and asked him if Mr. Hartley saw someone hit Mr. Crouch. Id. at 38-39. Mr. Hartley responded that he saw Officer Whatley throw Mr. Crouch into the side of the car. Id. Officer Whatley then told Mr. Hartley that he was going to jail. Id. at 38. Subsequently, Mr. Hartley was placed in the rear seat of Officer Whatley's patrol car next to Mr. Crouch. Id.
Mr. Crouch and Mr. Hartley were transported by Officer Whatley to the Tallapoosa County Jail. Mr. Crouch was charged by Officer Whatley with disorderly conduct and resisting arrest. Upon being booked into the Tallapoosa County Jail, Mr. Crouch made a complaint to the booking officer of an injury to his right eye. Pl.'s Ex. C-1 at 125. Mr. Crouch and Mr. Hartley were released from the custody of the Tallapoosa County Jail sometime after 6:00 p.m. on October 23, 1993.
Mr. Crouch was convicted of disorderly conduct and resisting arrest in the Municipal Court of Dadeville, Alabama. An appeal was taken by Mr. Crouch from these two convictions to the Circuit Court of Tallapoosa County. Following a trial by jury, Mr. Crouch was acquitted by the jury of the crimes of disorderly conduct and resisting arrest.
As a result of the foregoing allegations, Mr. Crouch filed this action against Officer Whatley, in his individual capacity, and the *1571 City of Dadeville, Alabama. In his complaint, Mr. Crouch alleges claims under 42 U.S.C. § 1983 against Officer Whatley and the City of Dadeville. Pl.'s Compl. at ¶¶ 7-13. Specifically, Mr. Crouch contends that Officer Whatley's alleged actions constituted an unreasonable seizure in violation of the Fourth Amendment of the United States Constitution. Pl.'s Compl. at ¶¶ 7-9. Mr. Crouch also asserts that the City of Dadeville failed to sufficiently train or supervise its police officers in the use of force; or trained or supervised its police officers in the use of force in a reckless or grossly inadequate manner. Pl.'s Compl. at ¶¶ 10-13. Mr. Crouch contends that this failure to train or supervise police officers in the use of force constituted a policy of deliberate indifference on the part of the City of Dadeville. Id.
Finally, Mr. Crouch also asserts various state law claims against Officer Whatley and the City of Dadeville. First, Mr. Crouch asserts a claim of negligent assault and battery against Officer Whatley. Pl.'s Compl. at ¶¶ 14-16. Second, Mr. Crouch contends that Officer Whatley's alleged conduct was willful, reckless, and wanton. Pl.'s Compl. at ¶¶ 17-18. Third, Mr. Crouch asserts that Officer Whatley's alleged conduct constituted an intentional assault and battery on Mr. Crouch. Pl.'s Compl. at ¶¶ 20-22. Fourth, Mr. Crouch asserts claims of malicious prosecution and false arrest against Officer Whatley. Pl.'s Compl. at ¶¶ 23-29. Last, Mr. Crouch asserts a claim of false imprisonment against both Officer Whatley and the City of Dadeville. Pl.'s Compl. ¶¶ 30-32.
DISCUSSION
A. City of Dadeville
In its motion for summary judgment, the City of Dadeville alleges that it is entitled to summary judgment on the state claims asserted by Mr. Crouch. In support, the City of Dadeville relies on §§ 6-5-338 and XX-XX-XXX of the Alabama Code. The City of Dadeville also contends that it is entitled to summary judgment on Mr. Crouch's constitutional claims of inadequate training, because Mr. Crouch has failed to present substantial evidence of "deliberate indifference" on the part of the city.
In Mr. Crouch's response to the motion, he concedes that the City of Dadeville is entitled to summary judgment on counts II, III, IV, V and VIII. Pl.'s Resp. to Def.'s Mot. for Summ. J. at 2-3. Since no genuine issue exists as to any material fact concerning these claims, the court will not inquire further into these claims against the City of Dadeville, and the City of Dadeville's motion for summary judgment is due to be granted.
B. Larry Whatley
In his motion for summary judgment, Officer Whatley contends that he is entitled to summary judgment on the state law claims asserted by Mr. Crouch.[4] In support, Officer Whatley cites § 6-5-338(a) which states:
Every peace officer, except constables, who is employed or appointed pursuant to the constitutional statutes of this State, whether appointed or employed as such peace officer by the state [or] a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the constitutional laws of this state and authorized by the constitutional laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, including the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment or other lawful process, with violations of, the criminal laws of this state, shall at all time be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.
Ala.Code § 6-5-338(a) (1994). Therefore, this statute confers upon municipal law enforcement officers the same sovereign immunity *1572 enjoyed by State employees. Officer Whatley also relies on § 6-5-338(b) of the Alabama Code which states that § 6-5-338 "is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers."
On the other hand, Mr. Crouch contends that § 6-5-338(a) has no application in this case, because the statute did not become effective until after the claim accrued. Specifically, Mr. Crouch contends that his cause of action accrued on October 23, 1993, and the statute did not become effective until April 26, 1994. However, the court notes that the complaint in this case was not filed until December 8, 1994.
Statutes generally operate prospectively only, in the absence of a clear statement to the contrary by the legislature. Ex parte Burks, 487 So.2d 905, 907 (Ala. 1985). Specifically, the Supreme Court of Alabama has stated:
In Alabama, retrospective application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively. See Kittrell v. Benjamin, 396 So.2d 93, 94 (Ala. 1981) (citing City of Brewton v. White's Auto Store, Inc., 362 So.2d 226 (Ala.1978)). Remedial statutes, however, are not within the domain of retrospective laws, and do operate retroactively, absent clear language to the contrary. Street v. City of Anniston, 381 So.2d 26 (Ala.1980).
Burks, 487 So.2d at 907 (quoting Jones v. Casey, 445 So.2d 873, 875 (Ala.1983)). Section 6-5-338 contains no language which suggests that it will curtail claims which accrued before its enactment. Further, there is no asserted legislative intent that the statute so operate. Therefore, the court finds that the statute may operate retroactively only if it is found to be "remedial."
In Jones v. Casey, the Supreme Court of Alabama reiterated the definition of "remedial statutes" as those "which impair no contract or vested right, and do not disturb past transactions, but preserve and enforce the right and heal defects in existing laws prescribing remedies." 445 So.2d at 875 (quoting Dickson v. Alabama Mach. & Supply Co., 18 Ala.App. 164, 89 So. 843, 844, cert. denied, 206 Ala. 698, 89 So. 922 (1921)); see also Burks, 487 So.2d at 907. Based on the foregoing definition, the court finds that § 6-5-338 is not remedial as it clearly impairs a substantial right by encroaching upon Mr. Crouch's vested rights on his state law claims. Therefore, the court finds that § 6-5-338 does not apply to the state law claims asserted against Officer Whatley, which accrued at the time of the accident even though the case was filed after the statute became effective. As a result, the court concludes that Officer Whatley is not immune from suit as a municipal law enforcement officer under § 6-5-338.
Officer Whatley also asserts that he is entitled to qualified immunity under Alabama law on the claims of false arrest, false imprisonment and malicious prosecution, because these decisions require personal deliberation and judgment. Mr. Crouch, on the other hand, contends that Officer Whatley's conduct was willful, malicious, illegal, fraudulent, in bad faith, beyond his authority, and/or under a mistaken interpretation of the law, and therefore, Officer Whatley is not protected by qualified immunity. Pl.'s Resp. to Def.'s Mot. for Summ. J. at 8.
The Supreme Court of Alabama addressed the scope of immunity available to a state officer or employee in Phillips v. Thomas, 555 So.2d 81 (Ala.1989). Specifically, the court stated:
Qualified or substantive immunity is available to a state officer or employee acting within the general scope of his authority, but only when certain circumstances are present. `[W]hether a particular defendant is engaged in a protected discretionary function and is thereby immune from liability for injuries he causes is a question of law to be decided by the trial court.' Grant v. Davis, 537 So.2d 7, 8 (Ala.1988).
555 So.2d at 84. The court in Thomas goes on to state that the Supreme Court of Alabama has adopted the tort liability rule for public officers found in Restatement (Second) of Torts, which provides as follows:
(1) Except as provided in this Section a public officer is not immune from tort liability.
*1573 (2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.
(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
(a) he is immune because engaged in the exercise of a discretionary function,
(b) he is privileged and does not exceed or abuse the privilege, or
(c) his conduct was not tortious because he was not negligent in the performance of his responsibility.
Id. (emphasis supplied in original) (quoting Restatement, § 895D, "Public Officers" (1977)); see also Barnes v. Dale, 530 So.2d 770, 783 (Ala.1988); DeStafney v. University of Alabama, 413 So.2d 391, 393 (Ala.1981). In determining what is a discretionary function, the Supreme Court of Alabama has set forth certain factors which may be considered, including the following:
[1] the nature and importance of the function that the officer is performing; [2] the extent to which passing judgment on the exercise of discretion will amount necessarily to passing judgment on the conduct of a coordinate branch of government; [3] the extent to which the imposition of liability would impair the free exercise of discretion by the officer; [4] the extent to which the ultimate financial responsibility will fall on the officer; [5] the likelihood that harm will result to members of the public if the action is taken; [6] the nature and seriousness of the type of harm that may be produced; and [7] the availability to the injured party of other remedies and other forms of relief.
Id. (quoting Barnes, 530 So.2d at 784). Most importantly, the Supreme Court of Alabama has stated that qualified immunity does not protect a state officer, employee or other public official from acts that are willful, malicious, illegal, fraudulent, in bad faith, beyond his authority, or under a mistaken interpretation of law. Phillips, 555 So.2d at 83 & 85; see also Lumpkin v. Cofield, 536 So.2d 62, 65 (Ala.1988).
In this case, Mr. Crouch alleges that Officer Whatley's actions causing Mr. Crouch to be injured, incarcerated, and prosecuted were reckless, wanton, willful, malicious, fraudulent, in bad faith, illegal, or intentional. On the other hand, Officer Whatley denies he acted in the manner alleged by Mr. Crouch. However, the court again stresses that at this juncture, the court construes the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Moreover, the court's function at this point is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Therefore, in light of the foregoing standards set forth by the Supreme Court of Alabama, the court finds that sufficient evidence exists to support the allegation that Officer Whatley's conduct is not protected by qualified immunity.
Officer Whatley next contends that he is entitled to summary judgment on the claims of false arrest, false imprisonment and malicious prosecution, because there was probable cause to arrest Mr. Crouch. Def.'s Mot. for Partial Summ. J. at 10. Specifically, Officer Whatley asserts that the key to each of these claims is a lack of probable cause on the part of the arresting officer, and that such probable cause existed in this case.[5]
In his motion for summary judgment, Officer Whatley asserts facts which *1574 clearly lead a reasonable person to believe that Mr. Crouch was guilty of disorderly conduct and resisting arrest. However, Mr. Crouch denies acting disorderly and denies resisting arrest. Pl.'s Ex. C-1 at 90-91 & 95. Mr. Crouch's version of the facts is also corroborated by Mr. Hartley, who witnessed the entire incident. Pl.'s Ex. C-2. Specifically, Mr. Hartley contends that Mr. Crouch did not exceed the speed limit nor cross the center line. Pl.'s Ex. C-2 at 24. Mr. Hartley further denies that Mr. Crouch did anything to entice Officer Whatley's response. Pl.'s Ex. C-2 at 31 & 33. The court also notes that Mr. Crouch was acquitted of the charges in the Circuit Court of Tallapoosa County. Consequently, the court finds that there exist a genuine dispute as to whether probable cause existed to arrest Mr. Crouch.
CONCLUSION
Mr. Crouch concedes that summary judgment should be granted in favor of the City of Dadeville on counts II, III, IV, V and VIII. On the other hand, the court concludes that Mr. Crouch has presented evidence sufficient to survive Officer Whatley's motion for partial summary judgment. While Officer Whatley has asserted reasons for his determination of probable cause, the ultimate determination of whether probable cause existed is an issue for the jury, as the court finds that a genuine issue of material fact exists.
For the foregoing reasons, it is CONSIDERED and ORDERED that defendant City of Dadeville's motion for summary judgment be and the same is hereby GRANTED. It is further CONSIDERED and ORDERED that all costs herein incurred relating to the defendant City of Dadeville's motion for summary judgment be and the same are hereby taxed against the plaintiff, for which let execution issue.
It is further CONSIDERED and ORDERED that defendant Officer Whatley's motion for summary judgment be and the same is hereby DENIED.
NOTES
[1] Section 1331 provides, "[t]he [federal] district courts shall have original jurisdiction of all civil actions arising under the ... laws ... of the United States." 28 U.S.C. § 1331.
[2] Pursuant to § 1367,
... in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a).
[3] At this juncture, the court construes the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Moreover, the court's function at this point is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
[4] These state law claims include: (1) "negligent" assault and battery (Count 3); (2) willfulness, recklessness and wantonness (Count 4); (3) intentional assault and battery (Count 5); (4) malicious prosecution (Count 6); (5) false arrest (Count 7); and (6) false imprisonment (Count 8).
[5] Ala.Code § 6-5-170 defines false imprisonment as follows: "False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." The court notes that both parties have treated false arrest synonymously with false imprisonment, and since Alabama law appears to do the same, the court will treat them synonymously. "An action for malicious prosecution requires the plaintiff to prove that the defendant instigated, without probable cause and with malice, prior judicial proceedings against the plaintiff, that the prior proceeding ended in favor of the plaintiff, and that the plaintiff suffered damages." Lumpkin v. Cofield, 536 So.2d 62, 64 (Ala.1988); Alabama Power Co. v. Neighbors, 402 So.2d 958, 962 (Ala.1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262015/ | 329 Md. 188 (1993)
618 A.2d 744
DEANNA MACK
v.
RONALD E. MACK.
No. 29, September Term, 1992.
Court of Appeals of Maryland.
February 2, 1993.
C. Christopher Brown (Rachel A. Wohl, Brown, Goldstein & Levy, all on brief), Baltimore, for petitioner.
Leslie Fried (Legal Aid Bureau, Silver Spring), Joan O'Sullivan (Legal Aid Bureau, Annapolis), Eileen Franch (Legal Aid Bureau, Baltimore), amicus curiae.
Gary I. Strausberg (Wayne M. Willoughby, Randal D. Getz, Janet & Strausberg, all on brief), Baltimore, Edward J. Gillis (Royston, Mueller, McLean & Reid, both on brief), Towson, for respondent.
Timothy J. Keay (Dept. of Family Medicine, Baltimore), amicus curiae.
Jack Schwartz, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Mary O'Malley Lunden, Asst. Atty. Gen., all on brief), Baltimore, amicus curiae.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, and ROBERT M. BELL, JJ.
RODOWSKY, Judge.
This case involves an application to withhold nutrition and hydration administered through a gastrostomy tube to a previously competent, adult, hospital patient who has been in a persistent vegetative state since June 1983, but who is not terminally ill. Because the evidence was inconclusive concerning any intent that the patient had, or would have, concerning the continuation or withholding of artificial nutrition and hydration under these circumstances, the circuit court concluded that Maryland law did not authorize the withholding of life support. As we explain below, we agree.
The patient is Ronald W. Mack (Ronald), born July 11, 1962. He is a high school graduate. He and the appellant, Deanna Mack (Deanna), were married in November 1980. They have two children who live with their mother. In November 1982, Ronald enlisted in the Army. While stationed in California, in June 1983, he was involved in an automobile accident in which he suffered massive brain injuries. He never regained consciousness after the accident.
Ronald was weaned off of a respirator, but he has remained in a persistent vegetative state. His biological bodily functions continue because his brain stem is intact, but his cerebral hemispheres are so damaged that he is incapable of cognitive activity. The distinguishing feature of a patient in a persistent vegetative state is wakefulness without awareness. These patients commonly make sporadic movements, spontaneously blink their eyes, and have heightened reflex responses, but they cannot voluntarily respond to stimuli.
Ronald was transferred from California in September 1983 to the Fort Howard Veterans' Hospital in Baltimore County to be closer to his family. In addition to his wife and children, Ronald's immediate family includes his father, a widower, the appellee, Ronald E. Mack (Ronald, pere), and Ronald's younger sister, Karen Mack Carson, both of whom live within twenty minutes driving time of the hospital. Ronald has remained at Fort Howard Hospital to date.
Over the years of inactivity, the muscles in Ronald's arms and legs have become moderately spastic. His legs are straight and resist bending, while his arms are flexed, with the hands clenched, and resist straightening. Ronald is incontinent of bowel and bladder. He has a tracheotomy through which his lungs' secretions are periodically suctioned. He is unable to chew or to swallow; therefore, he is fed through the gastrostomy tube.[1] The circuit court found that, in Ronald's case, there is "no medically reasonable expectation of recovery or cognitive movement," and that "Ronald is not experiencing pain."
In May 1984, Deanna was appointed guardian of Ronald's person by the Circuit Court for Baltimore County.
Deanna moved to Florida with the two children in September 1984. She had met another man who moved to Florida with her where they lived together for five to six years. Deanna's third child was born in October 1985 out of that relationship.
Acting on the advice of the Veterans Administration and for its convenience, Deanna, in October 1985, obtained appointment as guardian of Ronald's person by decree of the Circuit Court for Marion County, Florida. She was discharged as guardian under the Maryland appointment by order of the Circuit Court for Baltimore County in December 1985.
After moving to Florida, Deanna has visited Ronald three to four times a year. Ronald's sister testified that she visits him "regularly" at Fort Howard Hospital. Ronald, pere, testified that he visits his son usually once a week, with occasional intervals of two weeks between visits.
Sometime prior to May 11, 1991, Deanna learned through conversation with a registered nurse that it might be possible to have Ronald's gastrostomy tube removed. She consulted counsel in Florida. On May 11, a Saturday, Ronald, pere, and Mrs. Carson, acting pro se, filed with the United States District Court for the District of Maryland a paper that the court treated as a complaint and application for a temporary restraining order against the Veterans Administration. The two complainants alleged that Deanna was seeking to have a state court in Florida order the Veterans Administration to transfer Ronald to a veterans hospital in Florida where she would petition to have the court consider removal of life support from Ronald. The federal court in Maryland granted the requested ex parte order and, after a hearing, entered a preliminary injunction maintaining the status quo, pending determination of whether Deanna was the duly authorized guardian of the person of Ronald.
Ronald, pere, then petitioned the Circuit Court for Baltimore County for appointment as guardian of Ronald's person, and Deanna filed a cross petition seeking either confirmation of her guardianship status, based on the Florida decree, or appointment by the Maryland court. The circuit court promptly held a hearing. Ronald, pere, arguing that his appointment as guardian was in Ronald's best interest, emphasized the proximity of Ronald's father and sister to Fort Howard Hospital. The circuit court ruled that the Florida decree appointing Deanna as guardian was not entitled to full faith and credit because the Florida court had no jurisdiction over Ronald's person. The circuit court also determined to appoint a temporary guardian, naming Edward J. Gilliss, who had served as appointed counsel for Ronald. The permanent guardianship appointment was to be made at a later date, and, according to a prehearing letter sent from the circuit judge to the litigants, would "be based on a number of factors, most notably, the withdrawing of sustenance."
In pretrial memoranda, Deanna argued, inter alia, that the Circuit Court for Baltimore County should order withdrawal of Ronald's feeding tube. That issue was treated as the principal one at the full hearing in this case, although that relief had never been requested in a pleading.
In a written opinion that exhaustively reviewed the authorities, the circuit court concluded that, absent either a living will or a power of attorney for health care, the decision to withhold sustenance should be based on what intent Ronald had, or would have, as determined under a clear and convincing standard of proof. On those aspects of the case, the circuit court concluded:
"The underlying facts, produced through testimony, concerning the life and statements of Ronald W. Mack, prior to the accident, are not that remarkable or unexpected. Through his father and sister, who desire to hold onto his life, there is recollection of a Ronald who loved life, who would hold onto life, and who had thanked his father for attempting to keep his mother alive at a time she had experienced a cerebral hemorrhage, even though that probably would have meant that his mother would have survived only in a vegetative state. From Deanna Mack, there is recollection of an incident, when the couple visited Ronald's infirm grandmother, that he commented he would not want to live if he could not do for himself. He had also expressed to Deanna his gratefulness that a friend had died and did not have to suffer, when that friend had been shot. There was testimony that Ronald hated hospitals, doctors, medicine, and confinement. Deanna points to his love of life and sports as an indication he would not want to live in his present unconscious and confined state.
"The conflicting and non-definitive testimony, recollection and impression from various individuals, eight years ago, does not convince the court, of what intent Ronald W. Mack had or would have if faced with the situation which presently confronts him.
"Accepting the truth of all of the statements made, this court is unable to attribute to any one of them or all of them a probative value dispositive of the issue, one way or the other, by clear and convincing evidence. If anything, the evidence produces a stalemate. Nothing in the content or context of the evidence makes it reliable as an indicator of what Ronald would elect to do were he faced with the plight that now confronts him."
Because Ronald is not in pain, the circuit court would not base a decision on its own view of whether Ronald's interest would be better served by continuing or withholding sustenance, and the court would not base a decision on its view of what reasonable persons generally might think was in Ronald's best interest.
Although recognizing that Deanna, as Ronald's spouse, was accorded a priority for appointment as guardian of Ronald by Md.Code (1974, 1991 Repl.Vol.), ง 13-707(a) of the Estates and Trusts Article (ET), the circuit court appointed Ronald, pere, as guardian. The court explained that this was "because it is the father of the ward who will carry into effect the applicable law of Maryland which requires the disabled's life to be continued through the administration of food and water." Inasmuch as Deanna had stated her intention not to continue artificial nutrition and hydration, "[h]er known and avowed desires are not consistent with the objectives and directives of Maryland law[,] and the court cannot repose its confidence in her by appointing her as Guardian."
Deanna appealed to the Court of Special Appeals. Prior to consideration of the matter by that court, she petitioned this Court for, and we issued, a writ of certiorari.
In addition to briefs on behalf of Deanna and of Ronald, pere, the attorney for Ronald has filed a brief as appellee, supporting the circuit court decision in all respects. Legal Aid Bureau, Inc. has filed an amicus brief urging this Court to adopt guidelines for determining when life support can be withdrawn from a patient in a persistent vegetative state, but no specific guidelines are urged in that brief. Doctor Timothy James Keay, of the University of Maryland School of Medicine, has filed an amicus brief urging Deanna's appointment as guardian and urging the adoption of guidelines. Dr. Keay submits, inter alia, that current medical ethics permit discontinuing feeding Ronald through the gastrostomy tube.
The State, through the Attorney General of Maryland, has also filed an amicus brief. The State advocates the position taken in two opinions of the Attorney General that have addressed the legal questions involved in withholding sustenance both from terminally ill patients and from patients in a persistent vegetative state. 75 Op.Att'y Gen. ___ (1990) [Op. No. 90-044 (Sept. 24, 1990)], reprinted in 17:22 Md. Reg. 2635 (Nov. 2, 1990), and 73 Op. Att'y Gen. 162 (1988). Applying the principles adopted in those opinions, the Attorney General submits that the circuit court's refusal to appoint Deanna as guardian was error, but that the court's use of a clear and convincing standard and its refusal to make a best interest evaluation were correct.
From all of the briefs and arguments, we distill the following four legal issues.
1. Is the order of the Florida court appointing Deanna guardian of the person of Ronald entitled to full faith and credit?
We shall hold that the order is not entitled to full faith and credit.
2. Did the circuit court base its refusal to honor Deanna's statutory priority for appointment as guardian of Ronald on a ground that constituted good cause?
We shall hold that the basis relied upon by the circuit court did not constitute good cause.
3. Did the circuit court err in applying a clear and convincing standard of proof to determine Ronald's intent?
We shall hold that the correct standard was applied.
4. Should the issue of withdrawal of life support be remanded to the circuit court for the determination of Ronald's best interest under guidelines laid down by this Court?
We shall hold that, under the circumstances here, the so-called "best interest" standard for withdrawal of life support involves a quality-of-life judgment which, if it is to be made at all, should be made only under guidelines established by the General Assembly.
I
The mandate of Art. IV, ง 1 of the United States Constitution, requiring courts in each state to accord full faith and credit to judgments of courts in other states, is not absolute. A court, for example, need not give full faith and credit to a judgment that was rendered by a court lacking jurisdiction. Underwriters Nat'l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Assoc., 455 U.S. 691, 704, 102 S.Ct. 1357, 1366, 71 L.Ed.2d 558, 570 (1982); Durfee v. Duke, 375 U.S. 106, 110, 84 S.Ct. 242, 244, 11 L.Ed.2d 186, 190 (1963); Van Wagenberg v. Van Wagenberg, 241 Md. 154, 160, 215 A.2d 812, 815, cert. denied, 385 U.S. 833, 87 S.Ct. 73, 17 L.Ed.2d 68 (1966). It is proper for a forum court to examine the jurisdiction of the deciding court to determine whether the foreign judgment must be accorded full faith and credit. Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278, 282-83 (1940); Van Wagenberg, 241 Md. at 160, 215 A.2d at 815; Coane v. Girard Trust Co., 182 Md. 577, 580, 35 A.2d 449, 451 (1944).
Jurisdiction to appoint a guardian over the person of an incompetent or disabled individual lies with the state where that individual is domiciled or present. Restatement (Second) of Conflict of Laws ง 79 (1971);[2]see E. Scoles & P. Hay, Conflict of Laws ง 22.27, at 881 (1984). Morrissey v. Rodgers, 137 Kan. 626, 21 P.2d 359 (1933), held that Kansas courts would not be required to give full faith and credit to a Nebraska court's guardianship determination if the ward was domiciled in Kansas at the time the Nebraska judgment was rendered. The Nebraska court would have been without jurisdiction to render judgment in the guardianship proceeding. Id. at 632-33, 21 P.2d at 362; see Henry v. Edde, 148 Kan. 70, 73-74, 79 P.2d 888, 891 (1938).
The state in which a ward is domiciled has primary jurisdiction to appoint a guardian because that state's interest in protecting the ward is strong, and because that state is the "most deeply concerned with his welfare." Restatement (Second) of Conflict of Laws ง 79, cmt. a (1971); Scoles & Hay, supra, ง 22.27, at 881. If a ward is physically present within a state, that state has an interest in protecting, and direct access to, the ward, and therefore has jurisdiction over guardianship matters if there is some immediate need to protect the ward. Restatement (Second) of Conflict of Laws ง 79, cmt. a (1971); Scoles & Hay, supra, ง 22.27, at 881.
Although Maryland appellate courts have not spoken on jurisdiction in the guardianship context, cases dealing with jurisdiction in child custody matters are analogous. See M. Paulsen & J. Best, Appointment of a Guardian in the Conflict of Laws, 45 Iowa L.Rev. 212, 212 (1960) ("The jurisdictional principles governing the appointment of a guardian of the person are similar to those employed in deciding whether a state may award the custody of a child." (Footnote omitted)). This Court has said that "a state court has jurisdiction to determine custody of a child only if the domicile of the child is within the state." Miller v. Miller, 247 Md. 358, 362, 231 A.2d 27, 30 (1967); see Naylor v. Naylor, 217 Md. 615, 626-28, 143 A.2d 604, 608-10 (1958) (refusing to give full faith and credit to a custody determination of a Nevada court on lack of jurisdiction grounds because the children were domiciled in Maryland); Zouck v. Zouck, 204 Md. 285, 301-02, 104 A.2d 573, 580-81 (1954). Quoting from Nelson on Divorce ง 15.32, at 287 (2d ed. 1945), Miller stated:
"`A proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res, or the subject matter, being the child's status or his legal relationship to another. If the court does not have jurisdiction of the children it does not have jurisdiction of the subject matter to determine the right to custody....'"
247 Md. at 363, 231 A.2d at 30.
Inasmuch as the state of Ronald's domicile has always been Maryland, under the jurisdictional analysis of this status determination that looks at the problem from the standpoint of an action in rem, Florida did not have jurisdiction.
Deanna's arguments have as their premises in personam jurisdictional analyses. She submits that the Florida court had personal jurisdiction over Ronald based on her consent to Florida's jurisdiction, given while she was court-appointed guardian in Maryland. She also submits that Ronald had sufficient minimum contacts with Florida.
The relationship of guardian to ward is not that of agent to principal. Parker v. Wilson, 99 Ark. 344, 345, 137 S.W. 926, 926 (1911). The guardian's authority is not derived from the ward, but from the appointing court for which the guardian acts as agent, exercising those powers conferred by statute or by the court. Thus, Deanna, simply by virtue of having been named guardian of Ronald by the Maryland court, could not appear in a Florida court and consent, for Ronald, to the exercise by the Florida court of jurisdiction over the person of Ronald.
We described the relationship between court and guardian in Kicherer v. Kicherer, 285 Md. 114, 400 A.2d 1097 (1979): "In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility." Id. at 118, 400 A.2d at 1100. The administration of guardianship affairs remains subject to judicial control by the equity court that appointed the guardian. Id. at 119, 400 A.2d at 1101.
ET ง 13-708 limits the powers of a guardian to those "necessary to provide for the demonstrated need of the disabled person." Here, although it may have been more convenient or advantageous for Deanna or the Veterans Administration to proceed in a Florida court, the Maryland guardianship court did not determine Ronald's "need" to submit to the jurisdiction of the Florida court. Had Deanna sought to change Ronald's place of abode "within [or] without the State [of Maryland]," an order of the Circuit Court for Baltimore County would have been required. ET ง 13-708(b)(2). Thus, Deanna, by her unilateral consent, could not place Ronald's person under the jurisdiction of the court of another state while Ronald remained in Maryland as a ward of a Maryland court.
We shall assume, arguendo, the validity of Deanna's premise that minimum contacts between a ward and a state, sufficient to support in personam jurisdiction over the ward in an action, will also be sufficient for appointment of a guardian of the person. But, Ronald's contacts are insufficient. Ronald never lived in the State of Florida. There is no evidence that he ever intended to live in Florida. Rather, Deanna argues that because she, Ronald's wife, and his children live in Florida and because his veterans benefits checks are mailed to Florida, Florida could exercise personal jurisdiction over him. The minimum contacts test of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945), rests on "`traditional notions of fair play and substantial justice.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), held that, to be subject to a foreign court's jurisdiction, nonresidents must have purposefully availed themselves of the privilege of conducting activity within that state and of the benefits and protection of the laws of that state. This requirement "ensures that a [non-resident] will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts or of the `unilateral activity of another party or a third person.'" Id. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542 (citations omitted).
Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), demonstrates the absence of personal contact or purposeful availment here. The parties in Kulko had entered into a divorce settlement and child custody agreement in New York and procured a divorce in Haiti. The wife moved to California, and the husband and children remained in New York. After the children decided to move to California to live with their mother, she brought suit in a California court to modify custody. Id. at 87-88, 98 S.Ct. at 1694, 56 L.Ed.2d at 138. The husband argued that the California court did not have personal jurisdiction over him. The Supreme Court agreed, concluding that "the mere act of sending a child to California to live with her mother ... connotes no intent to obtain or expectancy of receiving a corresponding benefit in the State that would make fair the assertion of that State's judicial jurisdiction." Id. at 101, 98 S.Ct. at 1701, 56 L.Ed.2d at 147.
Given that Ronald could not consent to their change of abode, the presence of his wife and children in Florida does not give Florida courts jurisdiction over him. Further, the fact that his benefit check arrives in Florida may be grounds for a Florida court to exercise jurisdiction over those funds, see Shaffer v. Heitner, 433 U.S. 186, 207-08, 97 S.Ct. 2569, 2581-82, 53 L.Ed.2d 683, 699-700 (1977), but it does not give the Florida courts jurisdiction over his person. Cf. In re Guardianship of Sall, 59 Wash. 539, 548, 110 P. 32, 36 (1910).
The Florida court judgment appointing Deanna guardian of the person of Ronald is not entitled to full faith and credit.
II
Even if the Florida appointment of Deanna as guardian is not entitled to full faith and credit, Deanna argues that she is entitled to be appointed guardian under the priorities set forth in ET ง 13-707(a) and that there was not good cause for passing over her priority and appointing Ronald, pere, guardian. Section 13-707(a), in relevant part, provides:
"Persons are entitled to appointment as guardian of the person according to the following priorities:
(1) A person ... nominated by the disabled person...;
(2) His spouse;
(3) His parents[.]"
Subsection (c)(1) of ง 13-707 further provides:
"Among persons with equal priority the court shall select the one best qualified of those willing to serve. For good cause, the court may pass over a person with priority and appoint a person with a lower priority."
Kicherer, 285 Md. 114, 400 A.2d 1097, addressed a petition for guardianship of the person of an incompetent adult that was filed after the enactment, by the Acts of 1977, Chapter 768, of ET ง 13-707. We recognized that "consanguinity is a factor that may well be given consideration by the chancellor in the appointment of a guardian because nearest of kin are more likely to treat a ward with kindness and affection," citing, inter alia, ET ง 13-707. Kicherer, 285 Md. at 119, 400 A.2d at 1100-01. Nevertheless, we said that "all the parties here should be reminded that appointment to that position rests solely in the discretion of the equity court." Id., 400 A.2d at 1101. A statutory preference in the appointment of a guardian, although seemingly mandatory and absolute, is always subject to the overriding concern of the best interest of the ward. Marsh v. Hoff, 15 Ark. App. 272, 692 S.W.2d 270, 272 (1985); Monroe v. Dallas, 6 Ark. App. 10, 636 S.W.2d 881, 883 (1982); In re Guardianship and Conservatorship of Ankeney, 360 N.W.2d 733, 736-37 (Iowa 1985); In re Guardianship of T.D.S. and J.L.S., 13 Kan. App.2d 275, 769 P.2d 32, 33-34 (1989); Brown v. Storz, 710 S.W.2d 402, 405 (Mo. App. 1986).
Here, there was no finding whether Deanna could or would fulfill the duties of guardian. There was no finding on Ronald, pere's, contention that his geographical proximity to Ronald weighted the best interest scale in favor of appointing the father as guardian.[3] Rather, the circuit court merged the issue of whether sustenance could be withdrawn into the issue of who should be guardian. Because the court concluded that Maryland law required sustenance to be continued, the court concluded that Deanna's desire to have sustenance withdrawn constituted good cause to pass over Deanna's statutory priority and to appoint Ronald, pere. That assigned reason does not constitute good cause.
Where there is a guardian for a disabled person, it is not within the exclusive power of the guardian to effect withdrawal of sustenance.[4] ET ง 13-708 at the time of the judgment below, in relevant part, provided:
"(a) In general. โ The court may grant to a guardian of a person only those powers necessary to provide for the demonstrated need of the disabled person.
(b) Nonexclusive enumeration of permissible powers. โ Subject to subsection (a) of this section, the rights, duties, and powers which the court may order include, but are not limited to:
....
(8) The power to give necessary consent or approval for:
(i) Medical or other professional care, counsel, treatment, or service;
(ii) Withholding medical or other professional care, counsel, treatment, or service; and
(iii) Withdrawing medical or other professional care, counsel, treatment, or service.
(c) Medical procedures. โ Notwithstanding the powers conferred to a guardian under subsection (b)(8) of this section, where a medical procedure involves, or would involve, a substantial risk to the life of a disabled person, the court must authorize a guardian's consent or approval for:
(1) The medical procedure;
(2) Withholding the medical procedure; or
(3) Withdrawing the medical procedure that involves, or would involve, a substantial risk to the life of the disabled person."
As we shall see in Part IV, infra, court decisions dealing with withdrawing artificially administered nutrition and hydration from a patient who is in a persistent vegetative state analogize the legality of the withdrawal to the cessation of medical treatment for a terminally ill patient. It is beyond dispute that more than a substantial risk to the life of the patient in a persistent vegetative state is involved when the feeding tube is withdrawn. Under those circumstances, the guardian cannot effect withdrawal of the treatment solely by virtue of appointment as guardian.
Maryland law, particularly ET ง 13-708(c), recognizes, however, that a guardian of the person may apply to a court to have medical procedures withheld even if a substantial risk to life is involved.[5] Thus, there is no conflict between Maryland law and Deanna's effort to obtain court approval for the withholding of sustenance. Deanna's views are consistent with the statutory requirement. Her views recognize the need, under the circumstances here, for court approval. Her views are not per se disqualifying from appointment as guardian, although the court may consider them as a factor in an overall determination.[6]
Inasmuch as the circuit court did not address the other arguments advanced by the parties on the issue of who should be guardian, but decided the issue by treating Deanna as disqualified, the order appointing Ronald, pere, as guardian will be vacated, and that issue will be remanded to the Circuit Court for Baltimore County for further proceedings consistent with this opinion.
There remains for decision, however, what is in effect Deanna's application, viewed either as the spouse of Ronald or as a spouse seeking guardianship, for court approval to have artificially administered sustenance withheld from Ronald.
III
The circuit court correctly held that the burden was on Deanna to prove, by clear and convincing evidence, that Ronald's judgment was, or would be, that life-sustaining measures should be withdrawn were he to be in a persistent vegetative state.
States may constitutionally require that proof of the critical facts in cases involving the withholding or withdrawal of life-sustaining medical treatment meet the clear and convincing standard. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 282, 110 S.Ct. 2841, 2854, 111 L.Ed.2d 224, 245-46 (1990). Nancy Cruzan was in a persistent vegetative state. Relying on Missouri's policy of strongly favoring the preservation of life, and concluding that the patient's statements were not sufficiently reliable to indicate clearly and convincingly her desires, the Supreme Court of Missouri had reversed an order permitting the cessation of sustenance. The Supreme Court found no constitutional violation, on the following rationale:
"We think it self-evident that the interests at stake in the instant proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute. But not only does the standard of proof reflect the importance of a particular adjudication, it also serves as `a societal judgment about how the risk of error should be distributed between the litigants.' Santosky [v. Kramer], 455 U.S. [745,] 755, 102 S.Ct. [1388,] 1395[, 71 L.Ed.2d 599, 607 (1982)]; Addington [v. Texas], 441 U.S. [418,] 423, 99 S.Ct. [1804,] 1807-1808[, 60 L.Ed.2d 323, 329 (1979)]. The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction."
Id. at 283, 110 S.Ct. at 2854, 111 L.Ed.2d at 245.
This Court has held that "in any tort case a plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages." Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 469, 601 A.2d 633, 657 (1992). "Any" tort case includes the run-of-the-mine. Under Wentzel v. Montgomery Gen. Hosp., Inc., 293 Md. 685, 703, 447 A.2d 1244, 1253-54 (1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983), the clear and convincing evidence standard applies to proof of facts justifying sterilization of an incompetent ward at the request of the guardian. No lesser standard should be applied to deciding facts that will determine whether to withdraw life-sustaining treatment from a patient.
Further, the overwhelming majority of cases involving requests to withdraw sustenance from a person in a persistent vegetative state have required the proponent of withholding or withdrawing life support to bear the burden of proving by clear and convincing evidence that the ward's decision would have been to forego life support. And we so hold as well. See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 691 (1987); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 553 A.2d 596, 605 (1989); In re Guardianship of Browning, 543 So.2d 258, 273 (Fla. Dist. Ct. App. 1989), aff'd, 568 So.2d 4 (Fla. 1990); In re Estate of Greenspan, 137 Ill.2d 1, 146 Ill.Dec. 860, 868, 558 N.E.2d 1194, 1202 (1990); In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 788, 549 N.E.2d 292, 300 (1989); In re Swan, 569 A.2d 1202, 1206 (Me. 1990); In re Gardner, 534 A.2d 947, 953 (Me. 1987); Cruzan v. Harmon, 760 S.W.2d 408, 425 (Mo. 1988), aff'd sub nom. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); In re Jobes, 108 N.J. 394, 529 A.2d 434, 443 (1987); In re Peter, 108 N.J. 365, 529 A.2d 419, 425 (1987); In re Westchester County Medical Ctr., 72 N.Y.2d 517, 534 N.Y.S.2d 886, 891, 531 N.E.2d 607, 612 (1988); In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 274, 420 N.E.2d 64, 72, cert. denied sub nom. Storar v. Storar, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981); Leach v. Akron Gen. Medical Ctr., 68 Ohio Misc. 1, 22 O.O.3d 49, 426 N.E.2d 809, 815 (Com.Pl. 1980). But see In re Guardianship of Doe, 411 Mass. 512, 583 N.E.2d 1263, 1271, cert. denied sub nom. Doe v. Gross, ___ U.S. ___, 112 S.Ct. 1512, 117 L.Ed.2d 649 (1992) (upholding the following standard: "a preponderance of the evidence with an extra measure of evidentiary protection by reason of specific findings of fact after a careful review of the evidence").
Deanna vigorously argues that the playing field should not, in all cases, be tilted in favor of "life" and against "death," recognizing that "[t]his grim dichotomy seems to leave little room for debate on the issue." Appellant's Brief at 35. Deanna argues that the "issue is whether [Ronald] will have a vegetative existence for the next three or four decades helplessly dependent on others, without any pleasure.... Thus, the quality of his very existence is at stake." Id. at 36. Deanna "submits that this grim, degrading result cannot be one that public policy, however defined, can be deemed to favor," so that "this court should not enhance it by adopting an unusual standard of proof." Id.
Deanna's argument, in essence, would have the standard of proof vary, based on the quality of life of the patient. Whether a court, in the absence of legislative guidelines, should undertake to evaluate the quality of the ward's life is a question which we answer, in the negative, in Part V.
IV
Measured against the developing body of law concerning withdrawing life support from terminally ill patients, or from patients in a persistent vegetative state, the facts in this case are determinative. That conclusion can be demonstrated by an overview of the law on this subject. We shall simply sketch the path of general reasoning from the basic right to the particular application sought here by Deanna.
This Court recognizes the doctrine of informed consent as part of the common law. The doctrine "follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient." Sard v. Hardy, 281 Md. 432, 438-39, 379 A.2d 1014, 1019 (1977). "The fountainhead of the doctrine ... is the patient's right to exercise control over his own body, ... by deciding for himself whether or not to submit to the particular therapy." Id. at 439, 379 A.2d at 1019. A corollary to the doctrine is the patient's right, in general, to refuse treatment and to withdraw consent to treatment once begun.[7]
Some courts have held that a person's right to refuse treatment is based on a federal or state constitutional right of privacy. See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 682 (1987) (federal and state); Bouvia v. Superior Court, 179 Cal. App.3d 1127, 225 Cal. Rptr. 297, 301 (1986) (federal and state); In re Severns, 425 A.2d 156, 158 (Del. Ch. 1980) (federal); In re A.C., 573 A.2d 1235, 1244-47 (D.C. 1990) (federal); In re Guardianship of Browning, 543 So.2d 258, 267 (Fla. Dist. Ct. App. 1989) (state), aff'd, 568 So.2d 4 (Fla. 1990); Brophy, 497 N.E.2d at 633 (federal); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424 (1977) (federal); In re Quinlan, 70 N.J. 10, 355 A.2d 647, 663 (federal and state), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); Leach v. Akron Gen. Medical Ctr., 68 Ohio Misc. 1, 22 O.O.3d 49, 426 N.E.2d 809, 814 (Com.Pl. 1980) (federal); In re Colyer, 99 Wash.2d 114, 660 P.2d 738, 742 (1983) (federal and state). Although the United States Supreme Court's decision in Cruzan, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224, made no holding on the subject, all of the justices, save Justice Scalia, either flatly stated or strongly implied that a liberty interest under the Fourteenth Amendment gives rise to a constitutionally protected right to refuse life saving hydration and nutrition. See id. at 278, 110 S.Ct. at 2851, 111 L.Ed.2d at 241-42; id. at 287, 110 S.Ct. at 2856, 111 L.Ed.2d at 247-48 (O'Connor, J., concurring); id. at 304-05, 110 S.Ct. at 2865, 111 L.Ed.2d at 257 (Brennan, Marshall, and Blackmun, JJ., dissenting); id. at 331, 110 S.Ct. at 2879, 111 L.Ed.2d at 275 (Stevens, J., dissenting).
In the case now before us, there is no issue that turns on whether the right to refuse treatment is a constitutional or common-law right. It is sufficient for present purposes to decide this case under the Maryland common-law right of a competent adult to refuse treatment. For cases in which the court found no need to opine beyond a common-law analysis, see Barber v. Superior Court, 147 Cal. App.3d 1006, 195 Cal. Rptr. 484 (1983); In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 549 N.E.2d 292 (1989); In re Gardner, 534 A.2d 947 (Me. 1987); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987); In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied sub nom. Storar v. Storar, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981); In re Delio, 129 A.D.2d 1, 516 N.Y.S.2d 677 (1987).
Patients who are unable to exercise the right to refuse treatment for themselves, nevertheless still enjoy the right. See Browning, 543 So.2d at 267; Brophy, 497 N.E.2d at 634; Saikewicz, 370 N.E.2d at 427; Peter, 529 A.2d at 423; Conroy, 486 A.2d at 1229; Storar, 438 N.Y.S.2d at 273-74, 420 N.E.2d at 71-72; see also 73 Op.Att'y Gen. 162, 175-78 (1988).
The General Assembly has recognized the continuing nature of the right to refuse treatment. Chapter 709 of the Acts of 1990 expressly provided that the right may be exercised on behalf of a disabled person by that person's guardian and, specifically, "where a medical procedure involves, or would involve, a substantial risk to the life of a disabled person," the right may be exercised by the guardian with court authorization. ET ง 13-708(c). The statute does not, however, supply the standards or guidelines for a court's exercise of the power to grant or withhold authorization.
Even before one reaches the issue of guidelines or standards, the question logically arises whether the withdrawing of artificially administered nutrition and hydration was legislatively intended to be within the "[w]ithdrawing [of] medical or other professional care, counsel, treatment, or service," referred to in ET ง 13-708(b)(8)(iii) and whether that cessation constitutes the "[w]ithdrawing [of] the medical procedure" under ET ง 13-708(c)(3). Although no party or amicus to the present proceedings has raised the issue, it must be addressed because Ronald, as a ward of the court, is entitled to plenary protection of the court. The history of a related enactment, the living will statute, makes clear that care, counsel, treatment, service, and procedure in ง 13-708 include artificial nutrition and hydration.
The living will statute, also called the Life-Sustaining Procedures Act, was enacted by Chapter 620 of the Acts of 1985 "after twelve years of effort." W. Kronmiller, Comment, A Necessary Compromise: The Right to Forego Artificial Nutrition and Hydration Under Maryland's Life-Sustaining Procedures Act, 47 Md.L.Rev. 1188, 1207 (1988). The statute is codified as Md.Code (1982, 1990 Repl.Vol.), งง 5-601 through 5-614 of the Health-General Article (HG). HG ง 5-605 provides, in part, that "[t]he declaration of a qualified patient to withhold or withdraw life-sustaining procedures may not be implemented: (1) [b]y the denial of food, water, or of such medication and medical procedures as are necessary to provide comfort care and to alleviate pain."
In the 1988 opinion, the Attorney General interpreted this provision "to mean that a declaration calling generally for the withholding of life-sustaining procedures may not itself serve as the basis for withholding artificially administered sustenance." 73 Op.Att'y Gen. at 181. That opinion also recognized that foregoing artificially administered sustenance is controversial, in that "[s]ome regard [artificial feeding] as no different in ethical principle than the non-medical means of sustaining life that must always be provided, for to do otherwise would deprive patients of the ordinary care all persons are entitled to receive." Id. at 178. Without joining the ethical or religious doctrine debate, the Attorney General found the legal analysis "clear" and noted that "[e]very appellate court that has addressed the issue has held that there is no difference as a matter of law between artificially administered sustenance and other forms of life-sustaining treatment." Id. at 179.[8] Against the foregoing background, the unqualified language used by the General Assembly in the 1990 amendment of ET ง 13-708(b)(8) and (c) stands in stark contrast. Absent a statutory exclusion of artificially administered sustenance from the medical treatment or procedure referred to in ง 13-708, artificially administered sustenance is included in those terms.[9]
Where court authorization is sought to withdraw from an incompetent person artificially administered sustenance, viewed as a medical treatment, the standard to apply is determined by the right for which judicial protection is sought. The right is one of self-determination, but, if the person who enjoys the right is in a persistent vegetative state, that person cannot make the determination. To protect the right for incompetent persons, and to permit its exercise, courts apply a rule of "substituted judgment."
From the standpoint of initiating a request to withdraw life-sustaining treatment, the judgment of the guardian or applicant for guardianship is truly substituted for that of the ward. But, from the standpoint of whether the treatment is to be withdrawn, the "substituted judgment" label is a misnomer. The judgment of the guardian is not accepted by the court in lieu of the judgment of the ward. Rather, because the right is one of self-determination, the inquiry focuses on whether the ward had determined, or would determine, that treatment should be withdrawn under the circumstances of the case.
In the instant matter, there is no living will that specifically refers to artificially administered sustenance. Cf. 73 Op.Att'y Gen. at 182. Nor did Ronald execute a medical, durable, power of attorney. Cf. id. at 183-84. Accordingly, the inquiry focuses on whether Ronald, while competent, sufficiently had evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald's decision would be under the present circumstances. This inquiry is a particular application of a familiar judicial task, that of determining a person's state of mind, based on the evidence, and relating that state of mind to an applicable legal standard. Here, that standard is akin to informed consent.
The scope of the evidence that may be received in the inquiry is as wide as the concepts of relevance and materiality are to the state of mind issue. Oral, as well as written, statements of the ward, made prior to the ward's incompetency, should be considered. Evidence of this character will include any actual, expressed intent or desire to have artificial sustenance withdrawn, but the evidence is not limited to specific, subjective intent evidence. The patient's "`philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death'" should be explored. Jobes, 529 A.2d at 445 (quoting Newman, Treatment Refusals for the Critically Ill: Proposed Rules for the Family, the Physician and the State, 3 N.Y.L.Sch., Human Rights Annual 45-46 (1985)). These guidelines "should aid in ascertaining [the patient's] desires and in reaching a decision" based upon clear and convincing evidence. Longeway, 549 N.E.2d at 300.
In some cases the evidence will be direct. For example, in McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 553 A.2d 596 (1989), the patient in a persistent vegetative state was a registered nurse whose last nursing positions were as head nurse and manager of the emergency room at a hospital. "She had, in fact, expressly and repeatedly told her family and her co-workers that, in the event of her permanent total incapacity, she did not want to be kept alive by any artificial means, including life-sustaining feeding tubes." 553 A.2d at 599. Even more forceful is the evidence in In re Severns, 425 A.2d 156, in which the patient who was in a persistent vegetative state had not only expressed her intent not to be kept alive under those circumstances, but she had become "an active member of the Delaware Euthanasia Education Council." Id. at 158. In other cases, the court must make its findings as a matter of inference from all of the evidence. That inference must be closely connected to the clear evidence presented. The patient in Brophy, 398 Mass. 417, 497 N.E.2d 626, was a person who, like Ronald, had been a healthy, robust man who enjoyed outdoor activity. Brophy was stricken by the rupture of an aneurysm, which left him in a persistent vegetative state. The Supreme Judicial Court of Massachusetts sustained the finding of the trial judge who had inferred from all of the evidence that "if presently competent, Brophy would choose to forgo artificial nutrition and hydration by means of a [gastrostomy] tube." 497 N.E.2d at 632. The appellate court collected the factors considered by the trial judge and classified them as including:
"(1) Brophy's expressed preferences; (2) his religious convictions and their relation to refusal of treatment; (3) the impact on his family; (4) the probability of adverse side effects; and (5) the prognosis, both with and without treatment. The judge also considered present and future incompetency as an element which Brophy would consider in his decision-making process."
Id. at 631.[10]
In contrast, the evidence in the instant matter is conflicting. The trial judge found that "[i]f anything, the evidence produces a stalemate." The circuit court was "unable to attribute to any one of [the statements made by Ronald] or all of them a probative value dispositive of the issue, one way or the other, by clear and convincing evidence." These fact-findings are not clearly erroneous. This is a case in which we do not know what decision, if any, the patient had made or would make. Deanna has not met the burden of proof, requiring clear and convincing evidence of Ronald's desire to have the feeding tube removed.
V
Deanna submits that the inquiry should not end where the circuit court left it. She turns back against the Attorney General strong statements from that official's amicus brief:
"The Attorney General correctly observes that [Ronald's] condition for the next thirty or so years is `indeed an appalling' one. He is `utterly without the capacity for self-awareness or awareness of the environment.' The only existence he has is as the `subject of bodily intrusions that ... are humiliating and undignified.' Furthermore, he forces others around him to wait on him and perpetuate his condition. He is condemned to life without hope of improvement and without any sensation of positive value."
Reply Brief of Appellant at 6.
Deanna argues that "[w]hen the direct and indirect indicia of a disabled's intent are unclear, the last resort must be to what a reasonable person in [the patient's] situation would want." Id. at 7. The facts here, she asserts, satisfy that criterion. The term, "best interest," is used to describe the legal test that looks at whether the patient's state of existence is such that a court would conclude that no reasonable person would want existence continued.
A best interest test applied to Ronald or to any patient who is in a persistent vegetative state, who is not in pain, and who is not terminally ill, requires this Court to make a quality-of-life judgment under judicially adopted standards, without any legislative guidelines. There are many reasons why it is not appropriate for this Court to do so.
A best interest argument in the subject context presents a complete shift in the substantive legal justification for a court's action. Best interest is not based on the patient's right of self-determination as to whether treatment should be received or rejected, because the absence of any conclusion as to the patient's judgment on that issue is precedent to applying the best interest analysis.
"The problem with the best-interests test is that it lets another make a determination of a patient's quality of life, thereby undermining the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands."
In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 787, 549 N.E.2d 292, 299 (1989). "`One does not exercise another's right of self-determination ... by making a decision which the state, the family, or public opinion would prefer. The surrogate decisionmaker must be confident that he or she can and is voicing the patient's decision.'" In re Guardianship of Browning, 568 So.2d 4, 13 (Fla. 1990) (quoting In re Browning, 543 So.2d 258, 269 (Fla. Dist. Ct. App. 1989)). Contra, see, e.g., In re Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60, 70 (1992). Abandoning the anchorage of the patient's right of self-determination sets courts adrift on a sea of conflicting values and of varying weights to be assigned to those values. Where the values themselves are in a state of flux in society, a legislative body is better equipped to determine, within constitutional limits, whether some lives are not worth living and, if so, how to determine which are the lives that are not worth living.
Nor is this Court prepared to declare, as part of the common law of Maryland, that the feeding of the irreversibly comatose should be stopped, without regard to the patient's desires, on the theory that it is in the best interest of such patients to die. The type of best interest analysis that Deanna urges would require a change in Maryland common law. In Wentzel v. Montgomery Gen. Hosp., Inc., 293 Md. 685, 447 A.2d 1244 (1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983), we considered an application by co-guardians to have a hysterectomy performed on an incompetent minor ward for the purpose of sterilization. The circuit court's refusal to authorize the surgery was affirmed. As part of the rationale, we said that "in considering the best interests of an incompetent minor, the welfare of society or the convenience or peace of mind of the ward's parents or guardian plays no part." 293 Md. at 704-05, 447 A.2d at 1254. From Ronald's individual standpoint, his needs are met, and he may live for decades. The best interest, i.e., reasonable person, standard that Deanna seeks enlarges the concept of best interest beyond the needs of the ward to include consideration of the emotional and financial impact on, and desires of, Ronald's family and of the burden on the limited resources of society. But we are by no means confident that there exists on this quality-of-life question the degree of societal consensus that this Court ordinarily requires before announcing a change in the common law. See State v. Minster, 302 Md. 240, 245, 486 A.2d 1197, 1199 (1985) (refusing to abrogate "year and a day" bar to murder prosecution because of the "great difference of opinion surrounding the appropriate length of the period").
The preamble to the living will statute also gives pause to effecting so substantial a change by judicial proclamation. In that preamble, the General Assembly declared, inter alia, that the act was "intended to ensure that such basic measures as nursing care, nutrition, and hydration will be maintained out of respect for the human dignity of every patient." 1985 Md. Laws at 2945. Although courts and medical ethicists equate the withholding of artificially administered sustenance to the removal of a respirator, the foregoing legislative declaration indicates that at least a substantial segment of society in this State does not accept that nutrition and hydration should be withheld from a living person who has not personally made that judgment. Methods are available to the Legislature, but not to this Court, for determining what society currently accepts in regard to the administration of artificial sustenance to a patient in a persistent vegetative state.
Further, in the 1988 opinion, the Attorney General commented on the best interest test as follows:
"Patients who are permanently unconscious pose a difficult problem for application of the best interest standard. According to medical experts, someone who is permanently unconscious does not experience suffering, either physically or emotionally. Nor is the person capable of experiencing any of life's satisfactions. The balancing of costs and benefits to the patient that a surrogate must undertake for a terminally ill patient cannot be done in the same way for a patient who is permanently unconscious."
73 Op.Att'y Gen. 162, 189-90 (1988); see In re Peter, 108 N.J. 365, 529 A.2d 419, 425 (1987) ("a benefits-burden analysis ... is essentially impossible with patients in a persistent vegetative state"). After reviewing medical authority supporting, as medically ethical, the withholding of artificially administered sustenance from the permanently comatose patient, the Attorney General concluded:
"Still, we are very reluctant to conclude that the best interest standard, properly applied, takes into account anything other than the patient's actual interest alone."
73 Op.Att'y Gen. at 190. Thus, when the General Assembly returned to the subject of withholding or withdrawing life-sustaining treatment by the 1990 amendments to ET ง 13-708(b)(8) and (c), it is unlikely that the Legislature contemplated that the courts would authorize the withdrawal of artificially administered sustenance to a ward in a persistent vegetative state based on a best interest-reasonable person interpretation of the statute.
Were this Court to conclude that it was not in Ronald's best interest to live, we would be doing much more than simply applying to the facts of Ronald's case a general equitable principle governing decisions concerning a ward of a court. Having concluded that Ronald's individual intent is unknown, a conclusion that it is in Ronald's best interest to die would be based on his existence in a persistent vegetative state. That being the precedent, artificially administered sustenance should be withheld from all persons in a persistent vegetative state whose actual desires concerning the administration of such sustenance are unknown. Examination of that precedent would reveal that persons in a persistent vegetative state have no cognition and cannot take care of themselves. As a logical progression from that precedent, cases eventually would be presented submitting that the best interest of the most severely retarded and feebleminded, who require extended care, who have practically no cognition, and who are too disabled to feed themselves, would be to have sustenance withheld.[11] The question of whether to adopt a quality of life-best interest standard concerns our societal values in a most fundamental sense. The answer to that question is quintessentially legislative.
Unless and until current public policy, as we perceive it, is changed by the General Assembly, sustaining Ronald and other persons like him, whose desires concerning the withdrawal of artificial sustenance cannot clearly be determined, is a price paid for the benefit of living in a society that highly values human life.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED IN PART AND VACATED IN PART. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS TO DETERMINE A GUARDIAN OF THE PERSON FOR RONALD W. MACK. FIFTY PERCENT OF THE COSTS OF THE PARTIES TO BE PAID BY THE APPELLANT AND FIFTY PERCENT BY THE APPELLEES.
Dissenting opinion by McAULIFFE, J., in which MURPHY, C.J., joins.
McAULIFFE, Judge, dissenting.
I agree with the holdings of the Court in Parts I, II, III, and V of the opinion, although not with all of the language employed. I dissent because I disagree with Part IV, and with the result.
The Court and the trial judge pay lip service to the concept of "substituted judgment," but then refuse to apply it in any meaningful way. The Court correctly states that "[t]o protect the right [of self-determination] for incompetent persons, and to permit its exercise, courts apply a rule of `substituted judgment.'" Court's opinion at 214. The Court also correctly notes that substituted judgment does not mean simply substituting the judgment of the guardian for that of the ward. Id. The Court errs, however, in defining the inquiry of substituted judgment to be "whether Ronald, while competent, sufficiently had evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald's decision would be under the present circumstances." Id. at 215. That inquiry focuses upon prior statements made by the ward. The substituted judgment approach comes into play when the ward has made no prior statements bearing on the issue, or the statements attributed to the ward do not produce a clear and convincing answer.
The substituted judgment approach that I would apply in this case has been described as "intended to ensure that the surrogate decisionmaker effectuates as much as possible the decision that the incompetent patient would make if he or she were competent." Matter of Jobes, 108 N.J. 394, 529 A.2d 434, 444 (1987). See also Matter of Conroy, 98 N.J. 321, 486 A.2d 1209, 1229 (1985); In re Guardianship of Browning, 568 So.2d 4, 13 (Fla. 1990). The New Jersey Supreme Court explained further:
Under the substituted judgment doctrine, where an incompetent's wishes are not clearly expressed, a surrogate decisionmaker considers the patient's personal value system for guidance. The surrogate considers the patient's prior statements about and reactions to medical issues, and all the facets of the patient's personality that the surrogate is familiar with โ with, of course, particular reference to his or her relevant philosophical, theological, and ethical values โ in order to extrapolate what course of medical treatment the patient would choose.
Matter of Jobes, supra, 529 A.2d at 444 (footnote and citation omitted).
Semantics may be a part of the problem here. "Substituted judgment" is not a particularly apt term โ the very result we wish to avoid is the substitution of someone else's judgment for that of the ward. Rather, the aim is to determine, by reference to all that may be known about the ward, what decision he or she would make if presently competent and possessed of complete information concerning all relevant factors. "Constructed individual judgment" comes to mind as a possibly more appropriate term, but I suspect that combination of words has its own limitations.
Substituted judgment should not be viewed as something separate and distinct from the inquiries concerning the ward's prior statements or formal written declarations evidencing intent. The question in cases such as this is what the ward would wish done under the present circumstances. An explicit written direction, validly made when competent, and not otherwise suspect, may furnish the complete answer. Absent such a document, previous oral declarations may be sufficient to afford clear and convincing evidence of the ward's intentions. When prior statements alone do not provide the requisite evidence of intent, those seeking to ascertain the wishes of the ward should add to the relevant considerations all that is known about the ward and his condition and prognosis, and determine from that full body of information whether the intent of the ward may be ascertained with the necessary level of confidence.
Those who seek to ascertain the wishes of the ward will not necessarily be judges. Decisions of this kind are often made by the immediate members of the patient's family, in conference with attending physicians who act in accordance with the ethical standards of their profession and, where appropriate, in accordance with the standards established by an involved hospital and its designated committee. I agree with the Attorney General's warning that "[t]he Court should be especially cautious about casting a pall of legal uncertainty over established practices in the clinical setting, where doctors and patients' families together often make these excruciatingly difficult decisions about life-sustaining medical treatment." Brief of State of Maryland as Amicus Curiae at 15. In the instant case, however, where family members do not agree, and when the question is presented as the appropriate decision to be made by a court-appointed guardian, court intervention is clearly required. See Maryland Code (1974, 1991 Repl.Vol.) ง 13-708(c) of the Estates and Trusts Article.
A trial judge's inquiry when applying the substituted judgment approach is necessarily broad in scope. As the New Jersey Supreme Court pointed out in Matter of Conroy, supra, 486 A.2d at 1230, "all evidence tending to demonstrate a person's intent with respect to medical treatment should properly be considered...." In the words of the Attorney General of Maryland, "[t]he task is like assembling a mosaic from the tesserae of the person's life." State's Brief at 19. Factors to be considered include, but are not limited to: evidence of the ward's views about life-sustaining medical treatment, in light of the ward's diagnosis and prognosis; the ward's reaction to medical treatment of others; the ward's religious beliefs and personal moral values; the ward's attitudes concerning doctors, hospitals, and nursing homes and any prior experiences with the health care system; and, most broadly, the ward's value system. The question we thereby attempt to answer may be stated in this hypothetical form: If Ronald Mack, complete with his personality, predilections, philosophies, beliefs, and values were given competency for a day, and fully informed concerning what had transpired, the condition and environment to which he would shortly and permanently return, the beliefs and desires of his family members, and the prognosis in his case, what decision would he make concerning the discontinuance of artificially administered nutrition and hydration?
After studying the trial judge's opinion in this case, I am not at all certain that he considered all the factors relevant to a substituted judgment analysis. Perhaps of greater concern to me is the Court's opinion, which affirms the trial judge by not requiring the inquiry which I believe is inherent in the substituted judgment approach, and which should be required here.
According to the well-documented findings of the trial judge, Ronald Mack exists in a persistent vegetative state. He has been in that state for nine years and he will never recover. He is "alive" in the legal sense, because his brain stem is intact and permits vegetative functions. He exists only because of "the advance of medical technology capable of sustaining life well past the point where natural forces would have brought certain death in earlier times...." Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 270, 110 S.Ct. 2841, 2847, 111 L.Ed.2d 224 (1990). He is permanently and irreversibly unconscious. He cannot eat, drink, or cough. He has no cognitive ability โ he cannot see, hear, speak, touch, or think. He has no feeling or sensation of pain or pleasure. He is incapable of experiencing joy, love, hate, or emotion of any kind. He is emaciated, his hands are clenched, and his limbs are bent and rigid. He has a tracheostomy to permit suctioning of lung secretions, and a surgically implanted gastrostomy tube to permit introduction of nutrients directly into the stomach. He has no control of bladder or bowels. He suffers recurrent seizures and skin rashes. He has heightened physical reflexes, without awareness, and on one occasion nearly bit off his bottom lip.
With the quality nursing care that is currently being given Ronald by the Veteran's Administration, life in this form may continue for 30 to 40 years. If the gastrostomy tube is removed and no other artificial feeding is initiated, death will occur, without appreciation of pain or discomfort, in seven to fourteen days.
Ronald's condition is permanent and irreversible. No one has ever recovered after having been in a persistent vegetative state for at least two years. See Cruzan, supra, 497 U.S. at 309, n. 8, 110 S.Ct. at 2868, n. 8 (Brennan, J., dissenting) (citing Snyder, Cranford, Rubens, Bundlie, & Rockswold, Delayed Recovery from Postanoxic Persistent Vegetative State, 14 Annals Neurol. 156 (1983)). There is no reasonable hope of a cure or remission to be brought about by anticipated advances in medical science during Ronald's life expectancy.
Given these facts alone, I believe most reasonable persons would elect to terminate this existence. As Justice Scalia noted in his concurring opinion in Cruzan, society is faced with "the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it."[1] 497 U.S. at 292, 110 S.Ct. at 2859. In the absence of evidence to the contrary, one may certainly infer that Ronald would share that view. There is little, if any, evidence that I see in the record to suggest that he would not. When that common sense consideration is added to the mix of relevant factors, the usual result will be a determination in favor of withdrawing artificial nutrition. If, however, the evidence shows that the ward harbored religious, philosophical, or other beliefs in favor of the preservation of "life" at all costs, no matter how barren and hopeless, the result would be different. And, because the ward, if competent, would surely consider the desires and feelings of his family, those factors would have to be considered, and might produce a contrary result.
Each individual is different. Careful and painstaking consideration must be given to the relevant facts of the ward's life, personality, and condition before any attempt is made to determine what the ward would have decided in those circumstances. I wish to emphasize, however, my strong belief that it is not only permissible, but indeed necessary, to attribute to the ward the inclination or desire of an ordinary, prudent person under the same circumstances, unless and until there is evidence that he or she would not have shared those views, and to give that factor the heavy weight it deserves in a case such as this.
As I read the Court's opinion, a trial judge's inquiry is essentially limited to an attempt to determine the intent the ward may have formed when competent.[2] Thus, even if those members of Ronald's family who now object to the withholding of artificially administered nutrition and hydration had instead joined with the wife in requesting court approval of that action, the trial judge would have been powerless to grant it because of his inability to find clear and convincing evidence of Ronald's prior intent. I strongly disagree. I would vacate the judgment and remand to the trial court for further proceedings employing the substituted judgment approach.
MURPHY, C.J., joins in this opinion.
CHASANOW, Judge, concurring and dissenting opinion.
I. THE GUARDIANSHIP DECISION
I believe the majority's opinion fails to take into consideration some of the factual background that was the basis for the trial judge's guardianship decision. The majority also fails to take into consideration two basic legal principles: 1) when a trial judge sits without a jury, an appellate court will not set aside the trial court's judgment on the evidence unless it was clearly erroneous, Maryland Rule 8-131(c); and 2) a trial judge's choice of guardian of the person will not be reversed absent an abuse of discretion. Kicherer v. Kicherer, 285 Md. 114, 119, 400 A.2d 1097, 1101 (1979). The trial judge, Fader, J., made a carefully considered, very difficult decision. He was not clearly erroneous and did not abuse his discretion.
In reviewing whether a trial court was clearly erroneous in rendering its decision, this Court must view the facts and all reasonable inferences in the light most favorable to the prevailing party. A trial court's decision will not be clearly erroneous where there was substantial evidence on the record to support the trial judge's decision. I.W. Berman Prop. v. Porter Bros., 276 Md. 1, 12, 344 A.2d 65, 72 (1975). To put the trial court's decision in perspective, we must examine the earlier federal litigation that engendered the instant suit.
In 1985, the Veterans Administration (V.A.) contacted Deanna Mack, who was then living in Florida, and inquired whether she wished to have her husband Ronald transferred from Maryland to a V.A. hospital in Florida. She declined to authorize the transfer. In a conversation with a nurse several years later, Deanna learned that by virtue of her Florida "plenary" guardianship, she might be able to order that Ronald's nutrition and hydration tube (the gastrostomy tube) be removed even without court approval if Ronald were hospitalized in Florida. Deanna contacted a Florida attorney who apparently advised her that the preferable course of action would be to have Ronald transferred to Florida and to secure a Florida court order authorizing the V.A. to remove the gastrostomy tube. Deanna, through counsel, filed a petition in Florida to remove the gastrostomy tube and simultaneously filed a request in Maryland that the V.A. release Ronald to her for transfer to a V.A. hospital in Florida.
Apparently, the only way that Ronald's father, Ronald W. Mack (whom, in deference to his seniority, I will refer to as Mr. Mack), could stop the V.A. from releasing Ronald for transfer to Florida, and to his certain death, was to seek an injunction. Mr. Mack filed suit in the United States District Court for the District of Maryland seeking to enjoin Ronald's transfer to Florida. The District Court, Garbis, J., recognized that if Deanna were Ronald's guardian, then the V.A. would have to comply with her request to release Ronald to her for transfer to Florida where she resides. Judge Garbis further recognized that, once Ronald was in Florida, Deanna would proceed with her litigation to have the gastrostomy tube removed. If, however, Mr. Mack were Ronald's guardian, then the V.A. would abide by his wishes regarding whether Florida's or Maryland's V.A. hospital would care for Ronald.
In his Memorandum Decision, Judge Garbis noted that "V.A. counsel acknowledged that there is a question regarding the status of Deanna V. Mack as guardian. Therefore, until her status is clarified to the satisfaction of the V.A., [Ronald] will not be released to her custody. However, if the V.A. were to be satisfied that Deanna V. Mack was, in fact, [Ronald's] guardian, it would comply with her demand." Judge Garbis issued a preliminary injunction enjoining Ronald's transfer to Florida pending a determination in a state court as to "whether Deanna V. Mack is, in fact, the duly authorized guardian of the person of Ronald W. Mack."
Deanna and Mr. Mack filed the instant guardianship petitions in compliance with Judge Garbis' request that the parties expeditiously obtain a state court determination as to who is the guardian of Ronald's person. That determination would then resolve the issue of whether the injunction against Ronald's transfer to Florida would remain in effect or be terminated.
Judge Fader in his carefully crafted opinion noted:
"This case came to the Circuit Court for Baltimore County as a result of a Temporary Injunction issued by The Honorable Marvin J. Garbis, Associate Judge of the United States District Court for Maryland, Civil Action, MJG-91-1314, dated May 30, 1991, forbidding the Fort Howard Veterans Administration Hospital from discharging Ronald W. Mack from that hospital, except upon order of court which temporary injunction, in effect, left it to this court to decide the underlying issue of guardianship.[52] Judge Garbis issued his order, upon the Complaint of Ronald's father and sister, when Deanna V. Mack stated her intention to the Fort Howard Hospital personnel that she wanted to take her husband back to Florida for the purpose of withdrawing his life-sustaining medical treatment, i.e., the administration of artificial nutrition and hydration.
[52] A copy of the decision and temporary injunction issued by Judge Garbis is a part of the court file."
The undisputed testimony from Deanna, as well as the report of the guardian ad litem, established that if Ronald were transferred to Florida, Deanna intended to and would be able to secure a court order to remove Ronald's gastrostomy tube. It was reasonable for Judge Fader to conclude that if Deanna were appointed guardian, the preliminary injunction would probably be lifted and Ronald would be transferred to Florida. The V.A. had already stated that if Deanna were Ronald's guardian it would comply with her demand.[1] Once Ronald was in Florida, Deanna would be able to have his gastrostomy tube removed.
I submit that the trial judge did not abuse his discretion in ultimately appointing Mr. Mack the guardian of Ronald's person. Maryland Code (1974, 1991 Repl.Vol.), Estates and Trusts Article, ง 13-707(a) provides that when a court appoints a guardian, spouses are entitled to a higher priority than parents; however, "for good cause, the court may pass over a person with priority and appoint a person with a lower priority." Estates and Trusts Art., ง 13-707(c)(1). The determination of whether "good cause" exists is purely within the discretion of the court. See Kicherer, 285 Md. at 119, 400 A.2d at 1101. Thus, the standard of review of the Court's determination is whether the court below abused its discretion in finding good cause to bypass Deanna Mack and appoint Mr. Mack as guardian. See id. Even the majority agrees with the trial judge that Deanna's views with regard to removing the gastrostomy tube are "a factor in an overall determination." 329 Md. 188, 206, 618 A.2d 744, 753 (1993). This Court, nevertheless, reverses Judge Fader because it believes he treated Deanna's "views" as the sole factor in awarding guardianship and "decided the issue by treating Deanna as disqualified...." Id. at 206, 618 A.2d at 753. Judge Fader did no such thing; he determined guardianship based primarily on the issue that all parties recognized was the overriding issue in this case. The evidence not only permits, but compels, the conclusion that Deanna was seeking this Maryland guardianship of the person over Ronald for one predominant, if not sole purpose โ to have Ronald's gastrostomy tube removed. The trial judge's decision was not based on Deanna's "views" about removing Ronald's gastrostomy tube โ the decision was based on Deanna's intent to remove Ronald's gastrostomy tube, and her apparent ability to carry out that intent if she were appointed guardian. The trial court as well as this Court have decided Ronald should remain on artificial life support. If Deanna were appointed guardian, it is reasonable to assume the V.A. would transfer Ronald to her home state, Florida, where Deanna's "views" would be Ronald's fate. Judge Fader did not abuse his discretion in addressing this as the predominant reason for denying Deanna's guardianship.
The majority also reverses the trial judge for not addressing the other factors bearing on the issue of guardianship. Specifically, it complains that "there was no finding whether Deanna could or would fulfill the duties of guardian. There was no finding on Ronald, pere's, contention that his geographical proximity to Ronald weighted the best interest scale in favor of appointing the father as guardian." Id. at 204, 618 A.2d at 752 (footnote omitted). I submit these remaining issues did not need to be further addressed by the trial judge because, as a matter of law, they could only favor Mr. Mack, rather than Deanna. In fact and in law, the issue of geographical proximity favors Mr. Mack. Mr. Mack lived close by and visited Ronald approximately once a week. Deanna has moved to Florida, approximately 1,000 miles away from Ronald, and she acknowledges that over the last few years she was only able to visit Ronald once or twice a year. As to geographical proximity, the majority acknowledges that, as a matter of law, "appointment of a resident is preferred." Id. at 204 n. 3, 618 A.2d at 752 n. 3. Indeed, the majority opinion cites two cases for that proposition: Rosin v. United California Bank, 226 Cal. App.2d 166, 37 Cal. Rptr. 830, 833-34 (1964); In re Boutz' Guardianship, 24 Cal. App.2d 644, 76 P.2d 154, 157 (1938). Both of these cases cited by the majority contain the following statement:
"`While in the absence of statutory provisions to the contrary, a nonresident may be appointed guardian, such appointments are not favored, the rule being that a resident should be appointed rather than a nonresident, unless some very strong reason for appointing the latter is made to appear.'"
Rosin, 37 Cal. Rptr. at 833 (quoting Boutz, 76 P.2d at 157).
With respect to Deanna's ability to fulfill the duties of guardianship, prior to seeking this reappointment as Maryland guardian Deanna had demonstrated no interest in performing most of the duties usually associated with guardianship of a person. Approximately seven years ago, Deanna, at her own request, was removed as the Maryland guardian of Ronald's person, and Mr. Mack acted as Ronald's caretaker, if not his legal guardian since that time. It was Mr. Mack, not Deanna, who remained close to Ronald. It was Mr. Mack who, after Deanna renounced her prior Maryland guardianship, supervised Ronald's medical treatment, visited regularly, and provided the attention, kindness, and affection that a guardian should provide. Deanna moved away from Ronald and, for over a half-dozen years, lived with and had a child by another man. Seven years ago, she resisted V.A. efforts to have Ronald transferred to the state where she lives. Her contacts with Ronald were minimal over the last few years and her visits dwindled to approximately one per year. The only way Deanna could be in a position to effectively supervise Ronald's care would be if Ronald were moved to Florida, and it was undisputed that if Ronald were moved to Florida, the care and treatment he would get there would be removal of his gastrostomy tube.
In light of the evidence adduced at trial and the trial judge's authority under ง 13-707(c)(1) of the Estates and Trusts Article to reorder the statutory priorities, I do not understand how the majority can hold that the trial judge abused his discretion in appointing Mr. Mack guardian of the person of his son. There is no need to remand the case and no need for Judge Fader to further address the "issues" of geographical proximity and ability to fulfill the duties of guardian.
II. PERSISTENT VEGETATIVE STATE
The majority begins its analysis of when a court may authorize withdrawal of nutrition and hydration in the same manner as most modern cases. There is a common law right, and perhaps a state and federal constitutional right, of both competent as well as incompetent patients to refuse life-sustaining medical treatment. There must be clear and convincing evidence to justify withdrawal of life-sustaining medical treatment. Artificially administered nutrition and hydration is a form of life-sustaining medical treatment and "court decisions dealing with withdrawing artificially administered nutrition and hydration from a patient who is in a persistent vegetative state analogize the legality of the withdrawal to the cessation of medical treatment for a terminally ill patient." 329 Md. at 205, 618 A.2d at 753. I concur in these portions of the majority opinion, assuming the term "persistent vegetative state" includes only those patients who are in an irreversible vegetative state.
The majority then establishes a test for whether Ronald's gastrostomy tube may be removed, stating:
"the inquiry focuses on whether Ronald, while competent, sufficiently had evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald's decision would be under the present circumstances."
329 Md. at 215, 618 A.2d at 757-58. I have two problems with the majority's test. First, I doubt that very many healthy, robust young people, like Ronald was, ever seriously consider that they may someday be in an accident and be reduced to a persistent vegetative state. Even if some did contemplate such a horrible event, how many would have clearly and convincingly formed and evidenced their views that, if in a persistent vegetative state, they would at some point choose to terminate artificial life support or, alternatively, that they would choose to remain in that state until they die of "old age." My second major objection is that, based on the majority's test, infants and other patients who have never been competent and are in a persistent vegetative state may be forever denied court authorization to terminate life-sustaining medical treatment because they did not evidence and could not have evidenced their views not to be indefinitely maintained on life support systems.
The majority states "sustaining Ronald and other persons like him, whose desires concerning the withdrawal of artificial sustenance cannot clearly be determined, is a price paid for the benefit of living in a society that highly values human life." 329 Md. at 222, 618 A.2d at 761. This statement, though evocative, is not cogent since it is doubtful that society "highly values" life in a persistent vegetative state. As one author noted:
"In 1976, the New Jersey Supreme Court held that a parent of Karen Quinlan, a young woman in a permanent vegetative state, could authorize removal of a respirator that was keeping Karen biologically alive. Since then, public opinion polls have revealed an impressive shift of opinion in just one generation from a majority opposed to `pulling the plug' on permanently comatose patients to a large majority โ sometimes nearing 90% โ in favor of such measures." (Footnotes omitted).
S. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 Cal.L.Rev. 857, 860 (1992).
Medical ethics would permit the withholding of life-sustaining medical treatment for patients in a persistent vegetative state. According to Dr. Timothy James Keay in his amicus curiae brief, the textbook Clinical Ethics has been used for the mandatory course in medical ethics at the University of Maryland School of Medicine for the last four years. That textbook states:
"(1) We propose that the state of an irreversible loss of human cognitive and communicative function implies that a `person' no longer exists in any significant sense of the term. This individual is no longer aware of self in relation to surroundings and never will be again. In our terms life has fallen irretrievably below the threshold considered minimal. (2) As a result, no goals of medicine other than support of organic life are being or will be accomplished. We do not believe this goal, in and of itself, is an independent and overriding goal of medicine. (3) Furthermore, it is difficult to know what `benefit' might mean when the patient now, and never will, be able to appreciate what is being done for him or her. (4) No preferences of the patient are expressed or known. The conjunction of these four factors justifies, in our judgment, a decision not to continue medical intervention โ that is, physicians have no ethical obligation to continue treatment. Since it is the duty of physicians to benefit their patients, in the absence of benefit, there is no duty to treat. The same argument does not, in and of itself, justify active euthanasia."
A. Jonsen et al., Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine at 106-07 (2d ed. 1986).
I do not mean to suggest that we ought to presume that people in a persistent vegetative state would choose not to have their existence maintained by artificial nutrition and hydration. I do suggest that, even though the patient did not or could not clearly and convincingly evidence any views on the subject, the patient's family, absent any suggestion of improper motives, should be able to secure court approval to have life support terminated where the family believes that would be what the patient would choose if able to express a choice.
The majority holds that Judge Fader was correct in ruling that Ronald's gastrostomy tube should not be removed. The majority's sole consideration was that Ronald had never clearly and convincingly evidenced his views. I submit that Judge Fader was correct in ruling that Ronald's gastrostomy tube should not be removed because 1) Ronald had never clearly evidenced his views on the subject and 2) the two family members closest to him differed in their sincere beliefs as to what Ronald would have wanted. Therefore, Judge Fader could conclude there was no clear and convincing evidence as to what Ronald would have wanted regarding removal of the gastrostomy tube.
III. COURT INTERVENTION IN THE DECISION TO TERMINATE LIFE SUPPORT
This is a guardianship case. Pursuant to Maryland Code (1974, 1991 Repl.Vol.), Estates and Trusts Art., ง 13-708(c), where there is a guardianship the court must authorize withdrawing medical procedures which would involve a substantial risk to the life of the disabled person. The majority appropriately points out:
"We emphasize that this case does not deal with a terminally ill patient[[2]] who has neither a living will nor a durable power of attorney, who has no guardian, and whose family and health care providers are in agreement about the use or discontinuance of life-sustaining measures." (Footnote added).
329 Md. at 204 n. 4, 618 A.2d at 752 n. 4.
Where an incompetent patient is in a persistent vegetative state or is terminally ill and there is no designated guardian, then those closest to the patient, if unanimous, should be able to make the decision to terminate life support without judicial intervention. The courts are less suited than the patient's loved ones, acting with concurrence of the patient's physicians, to make these decisions. Most authorities agree that there is no need for judicial approval if there is a unanimous decision by those closest to the patient and the patient's health care providers that life support should be terminated. See, e.g., State Justice Institute, Guidelines for State Court Decision Making in Life-Sustaining Medical Treatment Cases Guideline 3, at 36-37 (2d ed. 1992) (trial court should decline jurisdiction unless it finds parties are not in agreement as to patient's actual or probable wishes); American Bar Association, Standards Relating To Trial Courts ง 2.73.5, at 122-23 (1992) ("Disputes regarding a decision to forgo, continue, or withdraw life-sustaining medical treatment (LSMT) preferably should be resolved without court involvement," and the commentary to that standard indicates "[m]ost LSMT decisions are made by the patient or the patient's family and the health care provider without recourse to the courts."); M. Yuen, Comment, Letting Daddy Die: Adopting New Standards for Surrogate Decisionmaking, 39 UCLA L.Rev. 581, 600 (1992) ("Although several courts initially suggested that the judicial system was the appropriate forum to decide whether life-sustaining treatment could be withdrawn from an incompetent patient, courts have more recently declined to require judicial intervention as a prerequisite to [the family and attending physicians] making such decisions." (Footnote omitted)); K. Opperman, Note, Termination of Life-Sustaining Treatment: Who and How to Decide?, 33 N.Y.L.Sch.L.Rev. 469, 479 (1988) ("Most treatment decisions for the incompetent patient are highly private decisions made by family and physicians who follow the termination of life-sustaining treatment guidelines of the institution where they practice. Logically, if all parties are acting in good faith, this is where treatment decisions should remain." (Footnotes omitted.)); see also Conservatorship of Morrison, 206 Cal. App.3d 304, 312, 523 Cal. Rptr. 530, 535 (1988) ("Judicial intervention in `right-to-die' cases should be minimal.... [C]ourts should intervene only if there is disagreement among the conservator and other interested parties and they have exhausted all nonjudicial efforts to resolve the dispute." (Emphasis in original)); Conservatorship of Drabick, 200 Cal. App.3d 185, 198, 245 Cal. Rptr. 840, 847 ("Patients make their own treatment decisions with the advice of their physicians. Family members, and sometimes other persons, participate when the patients cannot. Courts, on the other hand, become involved only when ... there are disagreements."), cert. denied, 488 U.S. 958, 109 S.Ct. 399, 102 L.Ed.2d 387 (1988); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716, 722-23 (1984) (hospital was required to remove life supports from infant in vegetative state per wishes of parent and guardian ad litem); Matter of Lawrance, 579 N.E.2d 32, 41-43 (Ind. 1991) (Parents were permitted, without court approval, to withdraw nutrition and hydration from a never-competent patient in a persistent vegetative state. The court stressed that judicial intervention is not appropriate when physicians and family members are in agreement, and noted that medical ethics and professional regulations provide safeguards against any abuse.); Matter of Jobes, 108 N.J. 394, 529 A.2d 434, 451 ("If a disagreement arises among the patient, family, guardian, or doctors, or if there is evidence of improper motives or malpractice, judicial intervention will be required. We expect, however, that disagreements will be rare and that intervention seldom will be necessary."), stay denied, 483 U.S. 1036, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987). Jobes cites surveys that strongly support the desirability of family members making medical decisions for incompetent persons. It concludes that "[e]very recent survey that we have found indicates that society believes that a patient's family members should function as his or her surrogate decisionmakers." Jobes, 529 A.2d at 446 n. 11.
There is, of course, the danger that uncaring selfish family members will be motivated by a desire to get rid of incompetent relatives who are unwanted and burdensome. The safeguard in this situation will be that health care providers probably will not concur and should require court approval if they believe the family is not really acting in good faith and in accord with the patient's probable views. In addition, Maryland statutes require all hospitals to have Patient Care Advisory Committees, sometimes called "Ethics Committees." Md.Code (1982, 1990 Repl.Vol., 1992 Cum.Supp.), Health-General Art., งง 19-370 to 19-374. The committees have, at a minimum, one physician and one nurse, neither of whom is directly involved with the patient's care, as well as one administrator and one social worker. These committees could review a family's request to withdraw life-sustaining medical treatments for a patient if there is any question about whether the request is appropriate or made in bad faith.
As long as there is no guardian appointed, the great weight of authority holds that there is no need for judicial approval for decisions to terminate life support of an incompetent patient who is terminally ill or in a persistent vegetative state when the family and the health care providers are in agreement on the decision. The obvious reason for permitting those closest to the patient to make this decision is that they are in the best position to determine what the patient would have chosen if the patient were able to make the choice. Since the unanimous opinion of those closest to the patient is almost universally accepted as the basis for a decision to terminate an incompetent patient's treatment when there is no guardian, the same criteria should be used by the court as a basis for a decision to terminate an incompetent patient's treatment where there is a guardian.
IV. SURROGATE JUDGMENT
There should be a hierarchy in the evidence which would clearly and convincingly justify withdrawal of life support: 1) a living will or a durable power of attorney delegating the decision; 2) statements of the patient to other people concerning the patient's views about life support; 3) the opinions of spouses, parents, siblings, other family members, and very close friends as to what the patient's choice would be. These people would be in the best position to assess the patient's views; in fact, these people would probably have molded, shaped, or influenced the patient's views. Any one of the above three types of evidence could constitute clear and convincing evidence. There is also a fourth category which would include the patient's attitude toward medical treatment, ethical, religious, and moral views, life goals, etc. I rather doubt that evidence in the fourth category could alone constitute clear and convincing proof of a patient's choice, but it could support one of the other three.
The majority discusses at some length the type of evidence which could be used to determine whether an incompetent patient had clearly and convincingly evidenced his or her views that treatment should be withdrawn. The kinds of evidence the majority suggests a court might use could include the patient's philosophical, religious, and moral views, life goals and values, attitude toward medical treatment, etc. As indicated, these factors are helpful, but it seems doubtful that, in the absence of express statements by the patient, many judges would hold that a patient's views, attitudes, and goals alone could clearly and convincingly establish the patient's choice about terminating life support. The majority fails to mention what I believe is the most probative and compelling evidence other than express statements by the patient. That evidence is the opinions of those closest to the patient about what the patient would have chosen under the present circumstances.
Ordinarily courts are reluctant to receive opinions on a factual issue; however, the inquiry at issue is not factual. It is an attempt to predict a choice that cannot be made. Ultimately, the decision will turn on the court's own opinion of what the incompetent patient would have chosen if able to choose. The beliefs and opinions of close family members should be of substantial assistance to the court. It is generally recognized that lay opinions ought to be admitted if they would aid the trier of fact. See J.W. Strong et al., McCormick on Evidence ง 11 (4th ed. 1992). In analogous situations, we allow close family members to give lay witness opinions concerning a person's mental capacity to make a valid will or contract. See 6 L. McLain, Maryland Evidence ง 701.3 (1987). Close family members may never remember all the conversations they had with the patient that would be relevant to predicting the patient's choice. They can, however, remember general impressions about the patient's attitudes and beliefs, as well as enough specific information to enable the court to assess the validity of their opinions. If the ultimate determination is to be an opinion about what the incompetent patient would have chosen, a judge who never knew the patient should be guided by the opinions of the patient's loved ones who best knew the patient.
Absent an express prior decision by the now incompetent patient, there should be a surrogate effort to determine and carry out the choice this patient would have made if able to make the choice. Even with infants and people who have never been competent, decisions about what they would have chosen, if competent, can be made based on the opinions of parents and other close family members. It is reasonable to assume that an infant or incompetent child, if capable of rendering a decision, would reflect the values and views of parents and close family members. These people, unless their motives are suspect, ought to be able, as surrogate decision makers, to opine about what decision the patient would make if able to make that decision.
Many courts have held that the decision to terminate life support systems should be based on the opinions of family members, as to what the patient would have chosen. For instance, in Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980), the Supreme Court of Massachusetts approved an order terminating life support for a seventy-nine year old senile incompetent patient with kidney disease. There was no evidence that the patient had, while competent, expressed any views about withdrawal of life support treatment, but the court accepted the opinions of the patient's wife and son that, if competent, the patient would want treatment withdrawn. The court stated that "[t]he wife and son had only the best interests of the ward at heart, and that they were best informed as to his likely attitude." Id., 405 N.E.2d at 122; see also John F. Kennedy Memorial Hosp. v. Bludworth, 452 So.2d 921, 926 (Fla. 1984) ("close family members or legal guardians substitute their judgment for what they believe the terminally ill incompetent persons, if competent, would have done under these circumstances").
In Matter of Jobes, 108 N.J. 394, 529 A.2d 434 (1987), the Supreme Court of New Jersey approved what I would call surrogate judgment, which it described as follows:
"This approach is intended to ensure that the surrogate decisionmaker effectuates as much as possible the decision that the incompetent patient would make if he or she were competent. Under the substituted judgment doctrine, where an incompetent's wishes are not clearly expressed, a surrogate decisionmaker considers the patient's personal value system for guidance. The surrogate considers the patient's prior statements about and reactions to medical issues, and all the facets of the patient's personality that the surrogate is familiar with โ with, of course, particular reference to his or her relevant philosophical, theological, and ethical values โ in order to extrapolate what course of medical treatment the patient would choose.
* * * * * *
Family members are best qualified to make substituted judgments for incompetent patients not only because of their peculiar grasp of the patient's approach to life, but also because of their special bonds with him or her." (Footnotes omitted).
Id., 529 A.2d at 444-45.
Even where the patient has never been competent, courts have held that a determination can still be made, usually relying on the opinions of the patient's family, as to what the patient probably would have chosen. For example, the court in Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 431-32 (1977), determined that where a patient had been severely retarded his entire life, the court could still determine that the patient would choose not to undergo potentially life saving chemotherapy. Courts have also permitted parents to speak on behalf of their infant children, who have never had the opportunity to develop or express their own views. See In re L.H.R., 253 Ga. 439, 321 S.E.2d at 722 (Patient was an infant in a chronic vegetative state. Court held that parents could make the decision to terminate life support and stated: "The right of the parent to speak for the minor child is so imbedded in our tradition and common law that it has been suggested that the constitution requires that the state respect the parent's decision in some areas."); Guardianship of Barry, 445 So.2d 365, 371 (Fla.App. 1984) (Parents petitioned court for approval to terminate life support system for their 10-month-old child who was terminally ill and in a chronic permanent vegetative coma. Court held parents may, even without court approval, make the decision, based on their substituted judgment, to remove child's life support system.); Care & Protection of Beth, 412 Mass. 188, 587 N.E.2d 1377 (1992) (1992) (upheld finding that infant in an irreversible coma would choose to refuse resuscitation).
The bottom line is this: Does the surrogate decision maker believe and have an adequate basis for believing that this patient, if suddenly and miraculously given the ability to express a preference, would choose to terminate life support? The surrogate decision maker should be the patient's family or loved ones who know the patient best, subject to court ratification in a guardianship case or court resolution where there is a dispute among close family members. Where the patient has not clearly and convincingly evidenced, or was unable to evidence, any view, courts should consider the good faith opinions of those closest to the patient about what the patient would have chosen.
There is obvious and well-founded criticism for using surrogate judgment in trying to determine what a person who is incapable of making a decision would have decided if capable of making the decision. See, e.g., L. Harmon, Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 Yale L.J. 1 (1990). I still believe it is better to attempt to replicate the decision the incompetent would have made, if able to decide, by using whatever information we may glean about the incompetent's thought processes and by giving great deference to the opinions of those closest to the incompetent.
The alternative approach suggested by the majority is that the legislature develop objective standards and criteria as to which patients will and which patients will not be continued on life support.[3] Admittedly family members of an incompetent patient who has never been competent may have minimal insight into or means of identifying the patient's wishes and desires, but their insight is still better and more individualized than purely objective criteria established by a legislature or a court. It goes without saying that there is probably wide divergence of opinion among legislators and judges about when it would be more desirable to die than to live. If a decision is to be made, then the patient's probable decision can best be determined by those closest to the patient rather than by a legislature or a judge. Professor Nancy K. Rhoden in her article Litigating Life and Death, 102 Harv.L.Rev. 375 (1988), stated the reasons why the decision to terminate life support should be made by the family.
"Not surprisingly, polls repeatedly show that patients, and members of society in general, believe that family members should function as surrogate decisionmakers. In short, there is a deep-rooted and almost instinctual sense that a close family member should make such decisions. Most readers will understand this if they consider whom they would want to make treatment decisions for themselves โ their families or physicians and hospital administrators.
Moreover, because of the nature of the family as an association, its members are in the best position to reproduce the preferences of an incompetent patient. Numerous courts and commentators have emphasized that family members are best qualified to make these decisions, because of their knowledge of the patient's likely preferences and their special bonds with the patient. Not only are family members most likely to be privy to any relevant statements that patients have made on topics of treatment or its termination, but they also have longstanding knowledge of the patient's character traits. Although evidence of character traits may seem inconclusive to third parties, closely related persons may, quite legitimately, `just know' what the patient would want in a way that transcends purely logical evidence. Longstanding knowledge, love, and intimacy make family members the best candidates for implementing the patient's probable wishes and upholding her values." (Footnotes omitted).
Id. at 437-38.
Another reason why a patient's loved ones are best able to make the decision that the incompetent patient would want made is that the choice most people would want made, should they become incompetent, would be whatever their loved ones would choose on their behalf. For example, a poll published in the National Law Journal found:
"An overwhelming 88 percent of Americans say the family should decide whether to end artificial life support when an individual is in a coma without hope of recovery and has left no instructions on personal wishes. Only 8 percent said doctors should make the decision; 1 percent said the courts should decide, and no one selected the state."
M. Coyle, How Americans View High Court, Nat'l L.J., Feb. 26, 1990, at 1, 36 (citing National Law Journal/Lexis poll of over 800 people which had a statistical margin of error of plus or minus 3.4%).
The decision to terminate life support should ideally be the patient's. If the patient has never made and is not capable of making the decision, there is no easy choice or good alternative, but the better of a poor choice of alternatives seems to be using the legal fiction of attempting to determine what this patient would have desired, relying primarily on the opinions of the patient's loved ones who know the patient best. This is preferable to using objective criteria set by a court or legislature or using only the opinion of a judge who never knew the patient whose life is at issue.
V. LEGISLATION
The majority makes the fitting suggestion that legislative guidelines would be helpful in this difficult area. I do not, however, subscribe to the passive euthanasia implication of the majority's statement that "a legislative body is better equipped to determine, within constitutional limits, whether some lives are not worth living and, if so, how to determine which are the lives that are not worth living." 329 Md. at 219, 618 A.2d at 759-60. I submit an incompetent patient's family rather than the legislature is better able to determine if this patient would rather live or die. If, as the majority suggests, the legislature develops objective criteria, rather than using the opinions of the family, as to whether a patient should live or die, we may have the appalling specter of a patient meeting the legislature's criteria and being taken off life support despite the family's unanimous belief that the patient, though never expressing a view, would have chosen to continue to live. It is doubtful that the legislature is going to accept eagerly the majority's challenge to determine "which are the lives that are not worth living." The need to accommodate diverse religious and ethical views will make any legislative decision extremely difficult. In this era of legislative concern over rising health care costs, any legislative decision might be criticized as either reducing health care costs by sacrificing lives or causing an unwarranted increase in health care costs by unnecessarily prolonging lives. It will probably prove to be almost impossible for the legislature to establish categories of which ill or dying patients should have their lives terminated. There are also troubling implications in any legislative decision. If the patient's family makes an imperfect decision, then one patient may be harmed, but if the legislature establishes imperfect guidelines, then large numbers of patients and/or their families may be harmed. Meanwhile, unless and until the legislature accepts the majority's delegation of decision-making responsibility, incompetent wards in a persistent vegetative state, who have not, while competent, clearly and convincingly evidenced their views, cannot get court approval to terminate life support. The majority has made a decision by not making a decision and may have left a significant group of incompetent patients in limbo.
Even absent legislative guidance I believe the courts have a responsibility, which they should not abdicate, to establish a procedure whereby incompetent patients, who have failed to or have never been able to clearly and convincingly evidence their views on the subject, may still, in appropriate cases, get court authorization to die with dignity. The majority acknowledges "[p]atients who are unable to exercise the right to refuse treatment for themselves, nevertheless still enjoy the right." 329 Md. at 211, 618 A.2d at 756. They then deny court implementation of that right to all incompetent patients except those who, while competent, evidenced their views in a manner that clearly and convincingly proves to a judge that the patient would choose to terminate life support.
It is conceivable that Ronald will continue to physically deteriorate to the degree that Mr. Mack might ultimately join Deanna in the view that, based on Ronald's further deteriorated condition, Ronald would no longer wish to have his life maintained by the gastrostomy tube. Under the majority opinion, because Ronald did not, while competent, clearly and convincingly evidence his views about the termination of life support, his life support system can never be terminated regardless of whether Ronald's family sometime in the future concludes unanimously that, if competent, this is what Ronald now would have wanted.
Even where an incompetent patient has not clearly and convincingly evidenced his or her views on the issue, courts ought to be able to decide, using the beliefs and opinions of those closest to the patient, what the patient's decision would be. We should not abdicate the decision-making responsibility and delegate to the legislature the responsibility for determining how courts should decide these cases.
The majority opinion recognizes that our primary goal must be to ascertain what the patient would prefer. Does the majority really believe that all people in a persistent vegetative state who have not clearly and convincingly evidenced their views about life support would prefer to remain on artificial life support indefinitely? Does the majority also believe that incompetent patients who have not sufficiently evidenced their views about life support would prefer that the legislature or a judge, rather than their loved ones, decide under what circumstances their artificial life support should be terminated?
For the reasons stated above, I would affirm the trial court.
NOTES
[1] Joanne Lynn, M.D., who served as an Assistant Director of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, has described the medical interventions for providing food and fluids. She writes:
"The medical interventions that provide food and fluids are of two basic types. First, liquids can be delivered by a tube that is inserted into a functioning gastrointestinal tract, most commonly through the nose and esophagus into the stomach or through a surgical incision in the abdominal wall and directly into the stomach. The liquids used can be specially prepared solutions of nutrients or a blenderized version of an ordinary diet. The nasogastric tube is cheap; it may lead to pneumonia and often annoys the patient and family, sometimes even requiring that the patient be restrained to prevent its removal.
"Creating a gastrostomy is usually a simple surgical procedure, and, once the wound is healed, care is very simple. Since it is out of sight, it is aesthetically more acceptable and restraints are needed less often. Also, the gastrostomy creates no additional risk of pneumonia. However, while elimination of a nasogastric tube requires only removing the tube, a gastrostomy is fairly permanent, and can be closed only by surgery.
"The second type of medical intervention is intravenous feeding and hydration, which also has two major forms. The ordinary hospital or peripheral IV, in which fluid is delivered directly to the bloodstream through a small needle, is useful only for temporary efforts to improve hydration and electrolyte concentrations. One cannot provide a balanced diet through the veins in the limbs: to do that requires a central line, or a special catheter placed into one of the major veins in the chest. The latter procedure is much more risky and vulnerable to infections and technical errors, and it is much more costly than any of the other procedures. Both forms of intravenous nutrition and hydration commonly require restraining the patient, cause minor infections and other ill effects, and are costly, especially since they ordinarily require the patient to be in a hospital."
J. Lynn & J. Childress, Must Patients Always Be Given Food and Water?, The Hastings Center Report, Oct. 1983, at 17, 18.
[2] The Restatement position also includes, as a third alternative jurisdiction, a state that has jurisdiction over the parties competing for custody. Florida clearly does not fit within the third alternative under the facts of this case.
[3] In the absence of a statute to the contrary, a nonresident may be appointed guardian. See Countryman v. Henderson, 17 Ariz. App. 218, 496 P.2d 861, 864 (1972); Ramirez v. Garcia de Bretado, 547 S.W.2d 717, 718 (Tex.Civ.App. 1977). However, appointment of a resident is preferred. See Rosin v. United Cal. Bank, 226 Cal. App.2d 166, 37 Cal. Rptr. 830, 833-34 (1964); In re Guardianship of Boutz, 24 Cal. App.2d 644, 76 P.2d 154, 157 (1938).
[4] We emphasize that this case does not deal with a terminally ill patient who has neither a living will nor a durable power of attorney, who has no guardian, and whose family and health care providers are in agreement about the use or discontinuance of life-sustaining measures.
[5] In Parts IV and V we set forth the analyses that a court may and may not use in an application to withdraw sustenance under the facts presented in this case. ET ง 13-708(c) also applies to applications by a guardian for court authorization of a medical procedure that would involve a substantial risk to the life of the ward when the object of the procedure is to attempt to save the life of the ward. Under those circumstances, in the case of a comatose ward, the analysis under ET ง 13-708(c) would be different, because of the bias of the law in favor of life. See Part III, infra.
[6] ET ง 13-708(b)(2) provides that a circuit court may include in an order appointing a guardian of the person a provision empowering the guardian "to establish [the ward's] place of abode within and without the State, provided there is court authorization for any change in abode." Thus, another factor for the circuit court's consideration is that, if Deanna were appointed guardian, she could not arrange Ronald's transfer to Florida without the approval of the Circuit Court for Baltimore County. Indeed, the circuit court could include the substance of the above-quoted statutory provision in an order appointing Deanna guardian, should the circuit court choose to exercise its discretion in that fashion.
[7] We qualify this holding by the words, "in general," because the cases uniformly recognize that the right is not absolute. It is subject to
"at least four countervailing State interests: (1) the preservation of life; (2) the protection of interests of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession."
Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626, 634 (1986) (citing numerous cases).
[8] The Attorney General cited Barber, 195 Cal. Rptr. at 490; Corbett v. D'Alessandro, 487 So.2d 368, 371 (Fla. Dist. Ct. App.), review denied, 492 So.2d 1331 (Fla. 1986); Gardner, 534 A.2d at 954; In re Jobes, 108 N.J. 394, 529 A.2d 434, 444 n. 9 (1987); Peter, 529 A.2d at 427; Conroy, 486 A.2d at 1236; Delio, 516 N.Y.S.2d at 689; In re Guardianship of Grant, 109 Wash.2d 545, 747 P.2d 445, 454 (1987). Following an "[a]ccord" signal, the Attorney General cited In re Drabick, 200 Cal. App.3d 185, 245 Cal. Rptr. 840, cert. denied sub nom. Drabick v. Drabick, 488 U.S. 958, 109 S.Ct. 399, 102 L.Ed.2d 387 (1988); Bouvia, 225 Cal. Rptr. at 306; and Brophy, 497 N.E.2d at 637.
For additional cases holding that the provision of artificially administered sustenance is a medical procedure or treatment, see, e.g., Cruzan, 497 U.S. at 288, 110 S.Ct. at 2857, 111 L.Ed.2d at 248 (O'Connor, J., concurring); id. at 307-08, 110 S.Ct. at 2866, 111 L.Ed.2d at 260 (Brennan, Marshall, and Blackmun, JJ., dissenting); Gray v. Romeo, 697 F. Supp. 580, 587 (D.R.I. 1988); In re Guardianship of Browning, 568 So.2d 4, 11-12 (Fla. 1990); In re Estate of Greenspan, 137 Ill.2d 1, 146 Ill.Dec. 860, 867, 558 N.E.2d 1194, 1201 (1990); Longeway, 139 Ill.Dec. at 784, 549 N.E.2d at 296; In re Lawrance, 579 N.E.2d 32, 40-41 (Ind. 1991); In re Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60, 66-67 (1992). But cf. Cruzan v. Harmon, 760 S.W.2d 408, 423-24 (Mo. 1988), aff'd sub nom. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).
[9] In opinion No. 90-044 of September 24, 1990, 75 Op.Att'y Gen. ___, reprinted in 17:22 Md. Reg. 2635 (Nov. 2, 1990), the 1990 amendment to ET ง 13-708(b) and (c) was analyzed as a response to In re Riddlemoser, 317 Md. 496, 564 A.2d 812 (1989). In that case, a circuit court had concluded that it had no power to authorize a "Do Not Resuscitate" order sought by a guardian for an incompetent ward. This Court did not decide that question of interpretation of the pre-1990 version of the statute, because the case had become moot upon the death of the ward. The Attorney General considers the 1990 amendment to ง 13-708 as a response to the questions raised by the circuit court in Riddlemoser. See 75 Op.Att'y Gen. at ___ [No. 90-044 at 41]. We note that in Riddlemoser we commented, in dicta, that "the withdrawal of respiratory life-support or a gastric feeding tube is the termination of already existing medical treatment." 317 Md. at 504 n. 5, 564 A.2d at 816 n. 5.
[10] The precise evidence in Brophy is also instructive. As set forth at 497 N.E.2d at 632 n. 22, the evidence was as follows:
"About ten years ago, discussing Karen Ann Quinlan, Brophy stated to his wife, `I don't ever want to be on a life-support system. No way do I want to live like that; that is not living.' He had a favorite saying: `When your ticket is punched, it is punched.' Approximately five to six years ago, he helped to rescue from a burning truck a man who received extensive burns and who died a few months later. He tossed the commendation he received for bravery in the trash and said, `I should have been five minutes later. It would have been all over for him.' He also said to his brother regarding that incident, `If I'm ever like that, just shoot me, pull the plug.' About one week prior to his illness, in discussing a local teenager who had been put on a life support system he said, `No way, don't ever let that happen to me, no way.' Within twelve hours after being transported to Goddard Hospital following the rupture of the aneurysm, he stated to one of his daughters, `If I can't sit up to kiss one of my beautiful daughters, I may as well be six feet under.'"
[11] The extreme illustration of the "slippery slope" argument is presented in Alexander, Medical Science Under Dictatorship, The New England Journal of Medicine, Vol. 241, No. 2, at 39 (July 14, 1949). The article describes the annihilation of whole segments of the population and the so-called "medical" experiments on live and conscious prisoners under Nazi Germany. Dr. Alexander then summed up with these words:
"Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitude of the physicians. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as life not worthy to be lived. This attitude in its early stages concerned itself merely with the severely and chronically sick. Gradually the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially unwanted and finally all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which this entire trend of mind received its impetus was the attitude toward the nonrehabilitable sick."
Id. at 44 (emphasis added).
[1] Similarly, Dr. Timothy James Keay, Amicus Curiae, states that "advances in medical technology are now capable of sustaining life functions well beyond any purposeful or desired outcome." Brief of Timothy James Keay as Amicus Curiae at 14. Dr. Keay is a medical doctor, and holds a Master of Arts in Theology (Ethics). He is currently Course Master in the required course in medical ethics at the University of Maryland School of Medicine and is Co-Director of the Biomedical Ethics Center of the University of Maryland at Baltimore. He is of the opinion that discontinuance of nutrition and hydration via conduits to a patient who is permanently unconscious is permissible and ethical under certain conditions. In support of his belief, Dr. Keay includes the following quotation from the textbook Clinical Ethics, which he states has been used for the mandatory course in medical ethics at the University of Maryland School of Medicine for the last four years:
(1) We propose that the state of an irreversible loss of human cognitive and communicative function implies that a `person' no longer exists in any significant sense of the term. This individual is no longer aware of self in relation to surroundings and never will be again. In our terms life has fallen irretrievably below the threshold considered minimal. (2) As a result, no goals of medicine other than support of organic life are being or will be accomplished. We do not believe this goal, in and of itself, is an independent and overriding goal of medicine. (3) Furthermore, it is difficult to know what `benefit' might mean when the patient now, and never will, be able to appreciate what is being done for him or her. (4) No preferences of the patient are expressed or known. The conjunction of these four factors justifies, in our judgment, a decision not to continue medical intervention โ that is, physicians have no ethical obligation to continue treatment. Since it is the duty of physicians to benefit their patients, in the absence of benefit, there is no duty to treat. The same argument does not, in and of itself, justify active euthanasia.
Jonsen, Siegler, & Winslade, Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine, 106-07 (2d ed. 1986).
[2] At times, the Court seems to embrace the concept, with which I agree, of requiring a trial judge to consider the broad spectrum of values, beliefs, opinions, experiences, attitudes, personality, and life-style of the ward in reaching its decision. See Court's opinion at 215-217 quoting with approval Matter of Jobes, 108 N.J. 394, 529 A.2d 434, 445 (1987), In re Estate of Longeway, 133 Ill.2d 33, 549 N.E.2d 292, 300 (1989), and Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626, 631-32 (1986). I would like to believe that the Court thereby accepts the true concept of substituted judgment, and would be willing to instruct trial judges that if the patient has not made previous statements concerning his or her desires with respect to the preservation of life under these or similar circumstances, or if the patient's previous statements concerning this issue are inconclusive as to intent, the trial judge can and should consider all aspects of the patient's life, values, etc., including what, if anything, he or she may have previously said concerning the subject, together with all that is known about the patient's condition and prognosis, and thereby attempt to determine what the patient, if now competent for a day and fully informed of all relevant circumstances, would decide. The Court's focus, however, remains on whether there is sufficient evidence that the patient had made a decision while competent. As much as I would like to, I cannot escape the import of the Court's language at 215: "Accordingly, the inquiry focuses on whether Ronald, while competent, sufficiently evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald's decision would be under the present circumstances." This is not the substituted judgment test as I understand it, or as I would apply it in this case.
[1] Even assuming that circuit court approval would be necessary to transfer Ronald to Florida, it would probably be an abuse of discretion to fail to approve transfer of a ward to the state where the guardian resides.
[2] The majority uses the phrase "terminally ill" patients, but I submit this should be read in conjunction with the majority's statement that "court decisions dealing with withdrawing artificially administered nutrition and hydration from a patient who is in a persistent vegetative state analogize the legality of the withdrawal to the cessation of medical treatment for a terminally ill patient." 329 Md. 188, 206, 618 A.2d 744, 753 (1993).
[3] This approach is really a legislatively established "best interests" test. I submit, however, that any best interests test, judicial or legislative, should have limited applicability. The best interests test mandates that the decision to terminate life support be made relying on objective criteria, rather than family members' opinions as to what the patient would have chosen if the patient could choose. Perhaps the best interests test has applicability 1) where there is no available surrogate decision maker who is familiar with the patient; and 2) as a safeguard against bad faith or improper decisions by family members to terminate life support. Where a family's motives are suspect, a court could refuse to effectuate the family's decision to terminate life support if the court finds that decision is contrary to the patient's best interests.
The best interests test may also be helpful where there are conflicting opinions by family members, as occurred in the instant case. Measuring contrasting opinions against the objective criteria of the best interests test may aid the court in resolving the conflict. In the instant case, Judge Fader found that, because Ronald was not in pain, there was no clear best interest for Ronald. The best interests test should not be used in the manner suggested by the majority, i.e., as a separate set of objective criteria which would be applied instead of the opinions of the family. This will be further discussed in part V. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2768264/ | UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CONN, HOFFMAN, and GIFFORD
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 ISMAEL A. VILLANUEVA
United States Army, Appellant
ARMY 20090967
Headquarters, United States Army Infantry Center and Fort Benning
James L. Pohl, Military Judge
Lieutenant Colonel Jeffrey D. Lippert, Deputy Staff Judge Advocate
(pretrial)
Colonel Tracy A. Barnes, Staff Judge Advocate (post-trial)
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M.
Miller, JA; Major Bradley M. Voorhees, JA; CPT Barbara A. Snow-Martone, JA
(on brief).
For Appellee: Colonel Michael E. Mulligan, JA; Major Christopher B.
Burgess, JA; Major Lajohnne A. White, JA; Major Thomas E. Brzozowski, JA
(on brief).
10 February 2011
-----------------------------------
SUMMARY DISPOSITION
-----------------------------------
Per Curiam:
A military judge sitting as a special court-martial convicted
appellant, pursuant to his pleas, of absence without leave in excess of
thirty days and separate specifications of wrongful use of marijuana and
cocaine, in violation of Articles 86 and 112a, Uniform Code of Military
Justice, 10 U.S.C. §§ 886 and 912a [hereinafter UCMJ]. The military judge
sentenced appellant to a bad conduct discharge and confinement for 131
days. The convening authority approved the sentence as adjudged. This
case is before this court on review pursuant to Article 66(c), UCMJ.
On appeal, appellant asserts (in relevant part) in his sole assignment
of error that he was not advised by his trial defense counsel of his right
to submit a request for waiver of automatic forfeitures under Article 58b,
UCMJ. Assuming, without deciding, that appellant's assignment of error has
merit, we find that the facts of appellant's case would militate only a
limited grant of relief. Accordingly, in the interest of judicial economy,
we direct payment of one month's pay at the grade of E1 to appellant’s
dependents at the time of trial.
On consideration of the entire record, including consideration of the
issues personally specified by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), we hold the findings of guilty and
the sentence as approved by the convening authority correct in law and
fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1325143/ | 153 Ga. App. 72 (1980)
264 S.E.2d 552
STOCKS
v.
THE STATE.
58928.
Court of Appeals of Georgia.
Submitted November 6, 1979.
Decided January 11, 1980.
John E. Sawhill, III, for appellant.
F. Larry Salmon, District Attorney, Robert D. Engelhart, Assistant District Attorney, for appellee.
SHULMAN, Judge.
Defendant appeals his conviction on the offense of first degree forgery. Finding no reversible error, we affirm.
*73 1. Appellant complains of the denial of his motion for a directed verdict of acquittal, contending that there was no evidence to support the jury's determination that defendant had acted without authority in withdrawing funds from the account of one William Chubbs.
Although there was conflicting evidence on the issue of whether or not Mr. Chubbs had acquiesced on the withdrawal of funds from his account, Mr. Chubbs himself testified that he had not given defendant permission to use his passbook. Thus, despite the fact that statement of Mr. Chubbs was introduced wherein he stated that he had authorized the defendant to withdraw funds from his account, the evidence supporting the state's contentions that defendant acted without authority (Mr. Chubbs' in-court testimony, along with the bank teller's testimony that defendant did not present himself as an agent for Mr. Chubbs) warranted the denial of defendant's motion for directed verdict. See Smith v. State, 146 Ga. App. 444 (3) (246 SE2d 454). See generally Williams v. State, 143 Ga. App. 177 (237 SE2d 677), citing Johnson v. State, 69 Ga. App. 663 (26 SE2d 482).
2. Even assuming that defendant had timely requested that the principles of Morgan v. State, 77 Ga. App. 164 (48 SE2d 115), be instructed to the jury, since there were no facts in the case at bar to support the assertion that the "`instrument purport[ed] on its face to be executed by [the defendant] as the agent of the principal,'" (id., p. 165), the court properly refused a request to charge not applicable to the facts of the case. See generally Smith v. State, 85 Ga. App. 459 (4) (69 SE2d 281).
3. In his last enumeration of error, appellant asserts that the verdict, which read "We, the Jury, find the Defendant guilty with intent to defraud," was a nullity in that it indicated a finding of a crime not charged. We hold in accordance with the trial court that the words "intent to defraud" were mere surplus age and did not negate or otherwise affect the jury's obvious general verdict of guilty of the offense of forgery in the first degree.
The indictment charged that defendant did "unlawfully with intent to defraud... knowingly possess and utter a certain writing." (Emphasis supplied.) The verdict ("guilty with intent to defraud") construed with *74 the indictment, the charge of the court and the issue tried, means that the jury found the defendant guilty of forgery in the first degree. See, e.g., Cox v. State, 79 Ga. App. 202 (1) (53 SE2d 221). "The verdict was certain and valid, according to a fair construction, before it was cumbered by the addition of useless matter not qualifying the previous meaning [i.e., "with intent to defraud"]; and [these words] being useless matter, can be rejected as surplus age. [Cits.]" Lawson v. State, 52 Ga. App. 181 (1) (182 S.E. 820).
This being so, the verdict was not a nullity, and the court properly entered judgment thereon.
Judgment affirmed. Deen, C. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325199/ | 356 S.E.2d 365 (1987)
Robert HARRINGTON, Employee, Plaintiff;
v.
PAIT LOGGING COMPANY/GEORGIA PACIFIC, Employer;
Self Insurer, (Hewitt Coleman Associates), Defendant.
No. 8610IC906.
Court of Appeals of North Carolina.
June 2, 1987.
*366 Glover & Petersen by James R. Glover, Chapel Hill, for plaintiff-appellant.
Gene Collinson Smith, Raleigh, for defendant-appellee.
EAGLES, Judge.
By his only assignment of error plaintiff argues that he is entitled to compensation for permanent total disability pursuant to G.S. 97-29.
The deputy commissioner made no findings or conclusions with respect to permanent total disability. However he did note, relying on Perry v. Hibriten Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978), that:
If by reason of any compensable injury an employee is unable to work and earn any wages he is totally disabled and entitled to compensation for permanent total disability under 97-29 unless all his injuries are included in the schedule set out in this section [G.S. 97-31]. In that event the injured employee is entitled to compensation exclusively under this section regardless of his ability or inability to earn wages in the same or any other employment; and such compensation is "in lieu of all other compensation, including disfigurement."
On appeal the full Commission stated that:
A reading of the record in this case shows unequivocally that the only disability which plaintiff has relating to his injury is disability to the back and left foot. Admittedly, he has other problems completely unrelated to his accident and a combination of his specific disability and his unrelated problems render him totally disabled.
Further, the full Commission stated that "our courts have held that when all of a plaintiff's disability resulting from an injury are covered by G.S. 97-31 an employee is entitled to no compensation for permanent total disability." The full Commission relied on this Court's decision in Whitley v. Columbia Lumber Mfg. Co., 78 N.C.App. 217, 336 S.E.2d 642 (1985). However, our decision in Whitley was reversed in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336 (1986). There the Supreme Court overruled the interpretation previously given to the "in lieu of" language in G.S. 97-31 by Perry v. Hibriten Furniture Co., supra. The Court held that "the `in lieu of' clause [of G.S. 97-31] does not prevent a worker who qualifies from recovering lifetime benefits under [G.S. 97-29] and Perry, to the extent it holds otherwise, should be overruled." 318 N.C. at 96, 348 S.E.2d at 340. The Court in Whitley reinterpreted the "in lieu of" clause to permit an employee to receive compensation under either G.S. 97-31 or G.S. 97-29 in an appropriate situation but not under both. "Section 29 is an alternate source of compensation for an employee who suffers an injury which is also included under the schedule [under G.S. 97-31]. The injured worker is allowed to select the more favorable remedy, but he cannot recover compensation under both sections because section 31 is `in lieu of all other *367 compensation.'" Id. at 96, 348 S.E.2d at 340.
The finder of fact in a workers' compensation case is the Industrial Commission which has the exclusive duty and authority to find facts related to a disputed claim. Harrell v. Stevens & Co., 54 N.C. App. 582, 284 S.E.2d 343 (1981), disc. rev. denied, 305 N.C. 152, 289 S.E.2d 379 (1982). The jurisdiction of this court is limited to questions of law, whether there is competent evidence to support the Commission's findings and whether the findings justify its legal conclusions. Carpenter v. Tony E. Hawley, Contractors, 53 N.C.App. 715, 281 S.E.2d 783, disc. rev. denied, 304 N.C. 587, 289 S.E.2d 564 (1981). In order to support a conclusion of disability, the Commission must find that after his injury plaintiff was incapable of earning the same wages he earned before his injury in the same or any other employment and that plaintiff's incapacity to earn was caused or significantly contributed to by his injury. See Taylor v. Pardee Hospital, 83 N.C. App. 385, 350 S.E.2d 148 (1986). Total disability means that as a result of his injury, plaintiff is unable to work and earn any wages. Id. Here it is clear that the Commission felt it could not award benefits to the plaintiff under G.S. 97-29. Accordingly, the opinion and award is vacated and the cause remanded for the Commission to determine if plaintiff is entitled to recover benefits for total disability. On remand, if the Commission finds and concludes from the evidence in this record that plaintiff is totally disabled as a result of his compensable injuries, then it must award benefits under G.S. 97-29. Whitley, supra, 318 N.C. 89, 348 S.E.2d 336. We note that the Commission in its opinion and award, previously stated, though without finding, that by the combination of preexisting problems and his compensable injuries, plaintiff had been rendered "totally disabled"; however, the Commission did not comment or make the necessary findings regarding claimant's wage earning capability. Accordingly, the opinion and award is vacated and the cause is remanded for additional findings and conclusions consistent with the Supreme Court's holding in Whitley.
Vacated and remanded.
HEDRICK, C.J., and PARKER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325190/ | 264 S.E.2d 628 (1980)
STATE of West Virginia
v.
Roger WATSON.
No. 14073.
Supreme Court of Appeals of West Virginia.
April 4, 1980.
*629 David M. Finnerin, Parkersburg, for P. E.
*630 Chauncey H. Browning, Jr., Atty. Gen., Joseph C. Cometti, Asst. Atty. Gen., Charleston, W. Va., for D. E.
MILLER, Justice:
Roger Eugene Watson was convicted of unlawful assault under W.Va. Code, 61-2-9. His appeal raises issues of (1) the right of a defendant to require a pretrial identification lineup; (2) ineffective assistance of counsel for failure to raise an available defense; and (3) a number of claims of evidentiary error. We affirm the conviction.
The incident giving rise to the charges against the defendant occurred on July 3, 1976, at the Diamond Supper Club in Parkersburg, Wood County. The defendant testified that upon discovering that his 17-year-old sister was employed at the supper club as a bartender, he became involved in a fight with a patron, a Mr. Pitts. The defendant admits that he struck Mr. Pitts first. Another patron, a Mr. Parker, attempted to intervene, and was knocked to the floor by the defendant. Mr. Henthorn, the victim of the assault, then approached and became involved in the affray.
According to the defendant, the victim either grabbed him or approached him with his fist drawn as if to strike. The defendant then struck the victim with his fist and knocked him to the floor. The defendant states that the victim struck his head on a pool table while falling, thus sustaining a severe head injury. The defendant testified that he then picked up a pool stick that had been knocked to the floor and replaced it on a shelf.
The victim's testimony differs, as he claims he entered the area unaware that an altercation was taking place and was accosted by the defendant without warning. He stated that he was struck by the defendant with his fist and then severely injured by the defendant as a result of a blow with a pool stick.
The State presented four witnesses to the incident. Although the testimony of several of the witnesses was vague as a result of poor memory or of limited opportunity to observe, none of the witnesses contradicted the version of events as related by the victim. One of the witnesses, the defendant's sister, substantially confirmed the victim's testimony.
The jury was instructed on four possible verdicts: malicious assault, unlawful assault, assault and battery, and not guilty. Upon the return of a verdict of unlawful assault, the defendant was sentenced to a prison term of one to five years.
I
Prior to trial, the defendant moved to compel the State to test its witnesses' ability to identify the defendant by means of a pretrial identification lineup. The defendant's first ground for appeal is based upon the trial court's denial of the motion.
Pretrial lineups have received considerable attention by the courts in the context of the fairness of the procedures employed when the State chooses to conduct a lineup on its own initiative.[1] The defendant here raises the issue of whether under any circumstances a defendant may compel the State to conduct a lineup before its witnesses can make an in-court identification of him.
The United States Supreme Court appears to have taken a neutral position without directly deciding the issue. In discussing the need for counsel at any pretrial *631 corporeal identification conducted after the initiation of adversary proceedings, the Court in Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977), stated:
"[C]ounsel could have requested that the hearing be postponed until a lineup could be arranged at which the victim would view petitioner in a less suggestive setting. See, e. g., United States v. Ravich, 421 F.2d 1196, 1202-1203 (CA2), cert. denied, 400 U.S. 834, 91 S. Ct. 69, 27 L. Ed. 2d 66 (1970); Mason v. United States, 134 U.S.App.D.C. 280, 283 n. 19, 414 F.2d 1176, 1179 n. 19 (1969). . . . Such requests ordinarily are addressed to the sound discretion of the court, see United States v. Ravich, supra, at 1203; we express no opinion as to whether the preliminary hearing court would have been required to grant any such requests." [434 U.S. at 230-31 n. 5, 98 S.Ct. at 465-66 n. 5, 54 L.Ed.2d at 435 n. 5].
The California Supreme Court explored the issue in depth in Evans v. Superior Court, 11 Cal. 3d 617, 522 P.2d 681, 114 Cal. Rptr. 121 (1974), and noted that as a matter of criminal discovery, the state is empowered to compel a lineup to be conducted and to utilize the evidence it produces. The California Court further noted that, as a general matter, criminal discovery is required to be a "two-way street," Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). Thus, the court concluded that:
"Because the People are in a position to compel a lineup and utilize what favorable evidence is derived therefrom, fairness requires that the accused be given a reciprocal right to discover and utilize contrary evidence. . . ." [11 Cal.3d at 623, 522 P.2d at 685, 114 Cal.Rptr. at 125].
The court declined, however, to extend the defendant's right to compel an identification lineup to all circumstances as a matter of right, independent of any showing of appropriateness or need. The court afforded the right to a lineup "only when eyewitness identification is shown to be in material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." [11 Cal.3d at 625, 522 P.2d at 686, 114 Cal.Rptr. at 126]. The court further stated:
"The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. (See United States v. MacDonald (9th Cir. 1971) 441 F.2d 259, cert. den. 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74; United States v. Ravich (2d Cir. 1970) 421 F.2d 1196, 1202-1203). We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses." [11 Cal.3d at 625, 522 P.2d at 686, 114 Cal.Rptr. at 126].
The federal and state courts which have ruled upon the issue appear to be in general agreement with the Evans' standard that the granting of a defendant's motion for a pretrial identification lineup lies within the discretion of the trial judge. United States v. Estremera, 531 F.2d 1103 (2d Cir. 1976), cert. denied, 425 U.S. 979, 96 S. Ct. 2184, 48 L. Ed. 2d 804; United States v. King, 461 F.2d 152 (D.C.Cir.1972); United States v. Williams, 436 F.2d 1166 (9th Cir. 1970), cert. denied, 402 U.S. 912, 91 S. Ct. 1392, 28 L. Ed. 2d 654 (1971); United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S. Ct. 69, 27 L. Ed. 2d 66; State v. Ferguson, 120 Ariz. 345, 586 P.2d 190 (1978); Berryman v. United States, 378 A.2d 1317 (D.C.App.1977); State v. Porter, 223 Kan. 114, 574 P.2d 187 (1977); State v. Boettcher, 338 So. 2d 1356 (La.1976).
In United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 *632 S.Ct. 69, 27 L. Ed. 2d 66, the following guidelines for granting a pretrial identification lineup at the request of the defendant were suggested: (1) the length of time between the crime or arrest and the request; (2) the possibility that the defendant may have altered his appearance; (3) the extent of inconvenience to prosecution witnesses; (4) the possibility that revealing the identity of the prosecution witnesses would subject them to intimidation; (5) the propriety of other identification procedures used by the prosecution; and (6) the degree of doubt concerning the identification.
Although the courts which have discussed these standards have not drawn the connection to the standards for admissibility of identification testimony following suggestive procedures, it is clear that the two are closely related. In State v. Pratt, W.Va., 244 S.E.2d 227 (1978), we recognized, as have other courts, that where the defendant claims that an identification witness has based his identification on pretrial identification procedures that are allegedly constitutionally infirm the defendant is entitled to an in camera hearing to challenge identification.
In determining whether pretrial identification was impermissively suggestive, we have adopted the criteria set out in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and reaffirmed in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). In State v. Williams, W.Va., 249 S.E.2d 752 (1978), we confirmed the elements of the Neil test, which we had adopted in our earlier cases of State v. Kennedy, W.Va., 249 S.E.2d 188 (1978), and State v. Casdorph, W.Va., 230 S.E.2d 476 (1976). These elements tend to parallel those set out in United States v. Ravich, supra, and center on the witness' observations at the time of the crime, viz., (1) the opportunity to view the defendant; (2) the witness' degree of attention; (3) the accuracy of his description of the defendant; (4) the witness' level of certainty; and (5) the time between the crime and subsequent confrontation with the defendant.
We decline to adopt the view of the California Court and those that follow it which appear to regard the right to a defendant-compelled lineup as a consideration separate from the normal identification questions. In our view, a more appropriate solution is to follow the in camera hearing requirement of State v. Pratt, where the defendant raises the issue of suggestive identification procedures. The trial court should then apply the identification test set out in State v. Williams, supra. If the trial court finds the test results to be inconclusive such that there is a distinct possibility of misidentification, it may direct that the defendant be accorded a lineup to determine if the State's witness can identify him.[2]
In the present case, the trial court was not confronted with a bona fide identification issue. The defendant's sister, a State witness, was present throughout the altercation and identified the defendant, as did the police officers who arrested him at the club. The fact that the victim was uncertain in his identification does not trigger a bona fide identification issue where the State relies on other competent identification witnesses. The trial court was clearly correct in refusing defendant's motion for independent or lineup identification.
II
The defendant's second ground for appeal is a claim of ineffective assistance of counsel based upon defense counsel's failure to argue the issue of self-defense.
Our standard for determining ineffective assistance of counsel is set out in State v. Thomas, W.Va., 203 S.E.2d 445 (1974), which provides that effectiveness will be measured by whether defense counsel "exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal *633 law." [203 S.E.2d at 461]. In establishing this rule, Thomas qualified its application by holding in Syllabus Point 21 that:
"Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused."
This broad allowance for an attorney's choice of trial strategy has been uniformly applied to his selection of available defenses. E. g., United States v. Blue Thunder, 604 F.2d 550 (8th Cir. 1979); People v. Pope, 23 Cal. 3d 412, 590 P.2d 859, 152 Cal. Rptr. 732 (1979); Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979); State ex rel. Postelwaite v. Bechtold, W.Va., 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909, 96 S. Ct. 1103, 47 L. Ed. 2d 312. See Finer, Ineffective Assistance of Counsel, 58 Cornell L.Rev. 1077, 1100-06 (1973); Note, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review, 13 Colum.J.L. & Soc.Prob. 1, 11, 19-20 (1977); Annot., Modern Status of Rule as to Test in Federal Court of Effective Representation by Counsel, 26 A.L.R.Fed. 218, § 10(a) (1976).
There is no precise formula guiding a determination of when the failure to raise an available defense will constitute ineffective assistance of counsel. The absence of clear standards may be unavoidable, since the strength of an available defense in each particular circumstance may vary as broadly as the factual occurrences that give rise to a criminal prosecution. Thus, a determination of ineffective assistance of counsel for failure to raise an available defense involves a case-by-case examination of the particular facts in order that the issues those facts fairly raise can be compared with the defenses actually presented by counsel. See Annot., Modern Status of Rule as to Test in Federal Court of Effective Representation by Counsel, 26 A.L.R.Fed. 218, § 10(a) (1976).
Applying the trial tactics test set forth in Thomas, supra, ineffective assistance for failure to raise an available defense will be found if "no reasonably qualified defense attorney would have so acted in the defense of an accused." [203 S.E.2d at 461].
An examination of the record in the present case reveals two occurrences where the possibility of self-defense is raised. Both are contained in the defendant's testimony. The first follows the defendant's description of his participation in the altercation at which time he stated that the victim, until then a nonparticipant in the fight, "had come in and he grabbed me and I hit him up by the pool table." The second suggestion of self-defense is in the same narration repeated on cross-examination where the defendant, in response to the question "Did Mr. Henthorn [the victim] try to grab you?" stated: "He started to. That's when he started to hit me and I hit him first."
Counterbalancing these statements was the testimony of all the other witnesses to the incident, including the defendant's sister, that the defendant was the aggressor in all of the fighting that occurred. Ordinarily, self-defense is not available to the aggressor who precipitates an affray without legal justification. Jordan v. Commonwealth, Va., 252 S.E.2d 323 (1979); Dawkins v. Commonwealth, 186 Va. 55, 41 S.E.2d 500 (1947); 6 Am.Jur.2d Assault and Battery § 77 (1963); W. LaFave & A. Scott, Handbook on Criminal Law 394 (1972).
We reject the claim of ineffective assistance of counsel on several grounds. First, it is obvious that the self-defense theory was weak at best, and it was well within the tactical decision of competent counsel not to urge a defense that was of questionable merit and which might have prejudiced his case before the jury. Most experienced trial counsel are aware of the hazards of asserting meritless defenses which may jeopardize other phases or defenses in the case. Jurors essentially believe they are finders of the factual truth of a case and it is risky for any attorney to present to them dubious factual theories.
*634 Moreover, any assertion of ineffective assistance of counsel will be examined not only from the standpoint of the particular error asserted, but from the broader view of counsel's conduct of the entire trial. Here, there is no claim of any other failure on the part of trial counsel. Defense counsel was able to persuade the jury to find the lesser crime of unlawful, as distinguished from malicious, assault not an inconsiderable achievement in light of the strength of the State's case.
Finally, we believe that one of the standards set in Syllabus Point 3 of State v. Sims, W.Va., 248 S.E.2d 834 (1978), bears some analogy in its requirement that "the incompetency must relate to a matter which would have substantially affected the fact-finding process." While Sims dealt with ineffective assistance of counsel on a guilty plea, it is apparent that any charge of ineffectiveness of trial counsel must ultimately relate to a matter which would have affected the jury decision.
III
Defendant claims that a number of evidentiary errors were committed. He urges that the police officer's statement, that when he made the arrest the defendant "didn't offer to say anything," violates the rule in State v. Boyd, W.Va., 233 S.E.2d 710 (1977).
Boyd held that it was constitutionally impermissible to cross-examine the defendant or to comment in regard to the fact that the defendant made no pretrial statement, since he has the constitutional right against self-incrimination. Here, however, Boyd is not applicable, because the defendant was not cross-examined about his pretrial silence. Furthermore, the police officer's remarks were made in the context of describing the physical appearance of the defendant at the time the officer came to the club to arrest him. There was no attempt to convey to the jury the impression that the defendant was exercising his right against self-incrimination.
A second error is claimed on a cross-examination question asked the defendant in which several discrepancies of fact were pointed out between his testimony and that of certain State witnesses. He was asked if their testimony was "incorrect." We recently discussed this cross-examination technique at some length in State v. Atkins, W.Va., 261 S.E.2d 55, 65 (1979), and concluded:
"[I]t is not improper on cross-examination to direct a witness to specific previous testimony of another witness and ask the witness whether he agrees or disagrees with such testimony. We also conclude that it is objectionable on cross-examination to require a witness to state whether another witness' testimony is true or false, since this is the ultimate question that a jury must decide. We do, however, state that the failure to sustain an objection to such improper questioning will not necessarily result in error unless the technique has been used so pervasively and abusively in the cross-examination as to substantially distort the witness' testimony on critical trial issues." [261 S.E.2d at 65].
Here, since the question asked only involved whether the compared facts were correct or incorrect, there is no error. Further, the record reveals no abuse of the technique.
The defendant finally asserts that the State introduced evidence that at the time of the affray he might have been intoxicated. Furthermore, the State's witnesses in describing the affray stated that two other persons were assaulted by the defendant. The contention is made that this testimony represents evidence of other crimes, which is barred by State v. Thomas, W.Va., 203 S.E.2d 445, 455 (1974), and our earlier cases. Here, it was virtually impossible for the State to isolate what occurred immediately before the assault on Mr. Henthorn. In State v. Frasher, W.Va., 265 S.E.2d 43 (1980), we discussed the other crime question and quoted with approval Kugzruk v. State, 436 P.2d 962, 967 (Alaska 1968), which in turn incorporated language from United States v. Wall, 225 F.2d 905, 907 (7th Cir. 1955), cert. denied, *635 350 U.S. 935, 76 S. Ct. 307, 100 L. Ed. 816 (1956):
"However, there are many well established exceptions to this rule [prohibiting evidence of other crimes] . . . to the end that all relevant facts and circumstances tending to establish any of the constituent elements of the crime of which the defendant is accused may be made to appear. Thus, evidence of other criminal acts has been held admissible by this court when they are so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged. Such evidence is admissible if it is . . . so associated that proof of one tends to prove the other. . . ."
In consequence, we do not find any reversible error in connection with the evidentiary points, and finding none in regard to the other assignments, and for the reasons set out above, we affirm the defendant's conviction.
Affirmed.
NOTES
[1] E. g., United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (providing under the Sixth Amendment the right to counsel at a post-indictment lineup); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) (allowing in-court identification subsequent to an improper lineup only if the identification is of independent origin); Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969) (disallowing admission of identification testimony based on lineup conducted at any stage of the investigative process if unduly suggestive under due process standard of examining the totality of the surrounding circumstances); Annot., Admissibility of Evidence of Lineup Identification as Affected by Allegedly Suggestive Lineup Procedures, 39 A.L.R. 3d 487 (1971).
[2] Any such lineup motion should be made sufficiently in advance of trial to enable arrangements for it in the event it is granted. The defendant can waive his right to be present at the in camera hearing on the identification issue prior to the actual lineup procedures. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2601678/ | 228 P.3d 450 (2010)
DUNSMORE
v.
11TH JUD. DIST.
No. OP 09-0662.
Supreme Court of Montana.
January 26, 2010.
Decision Without Published Opinion Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262099/ | 900 F.Supp. 60 (1995)
In the Matter of the Search and Seizure of Billy Ray SHIVERS.
No. 1:92-M-148.
United States District Court, E.D. Texas, Beaumont Division.
August 31, 1995.
*61 Claude Welch, Lufkin, TX, for movant.
Thomas Kiehnhoff, Asst. U.S. Atty., Beaumont, TX, for respondent.
MEMORANDUM OPINION ON MOTIONS FOR "NEW TRIAL"
JOE J. FISHER, District Judge.
Pending are Billy Ray Shivers's motion for "new trial" and supplemental motion for "new trial". The first motion was filed within ten days after issuance of the court's order on June 29, 1995, denying movant's motion for return of property. The supplemental *62 motion was filed forty days after June 29, 1995, and was included in a reply to the government's response.
I. Nature of the Case; Proceedings
This case involves a motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e). The contours of the dispute are described in the report of the magistrate judge entered on the docket May 11, 1995, In re Shivers, No. 92-M-148, 1995 WL 293188 (E.D.Tex. May 8, 1995), and also in a memorandum opinion of the undersigned district judge entered on the docket July 3, 1995.
The property at issue is 50 metal tokens found in the Angelina National Forest by movant, Billy Ray Shivers. Later, the tokens and several other items of personal property were seized under a search warrant. The warrant suggested that movant had violated federal law by removing archaeological resources from the national forest.
Ultimately, the government elected not to pursue prosecution. All items of personal property, except the tokens, were returned voluntarily to movant. The government insisted that movant was not entitled to maintain the tokens in a private collection.
Movant and the government came to an impasse, prompting the Rule 41(e) motion. The motion was heard by a magistrate judge who recommended that the motion be denied. The magistrate judge (a) determined it was Shivers's burden to prove ownership and lawful possession; (b) found the tokens were abandoned property imbedded in the soil before Shivers unearthed them while using a metal detector; and (c) applying common law property rules, concluded that title remained in the government as owner of the soil.
Shivers objected. The undersigned reviewed the objections de novo, and denied them by order and memorandum opinion.
II. The Motions for "New Trial"
Although requesting a "new trial", movant essentially seeks reconsideration of the court's order of June 29, 1995. Movant asserts three grounds: First, movant argues he was not apprised that the case was under review by a district judge, and thus was deprived of fair opportunity to submit additional evidence. Second, movant wishes to present new evidence suggesting that government agents authorized metal detectoring and granted permission for digging tokens from the national forest. Third, movant reurges his argument that under the Archaeological Resources Protection Act,[1] the tokens are not property of the sovereign even if they were originally located on or imbedded in property belonging to the United States of America.
The proposed new evidence consists of movant's own affidavit and a letter from Robert C. Joslin, Regional Forester, United States Department of Agriculture. Movant's affidavit asserts that John Ippolito, archaeologist and United States Forest Service employee, gave movant permission to dig for Aldridge Lumber Company tokens in the Angelina National Forest. Movant argues that Ippolito's conduct estops the government from asserting that movant is not entitled to lawful possession.
The Joslin letter is dated November 10, 1994, and is addressed to movant. It refers to recent closing of the 600 acre Aldridge Mill site to metal detectors. It states that the balance of the Angelina National Forest, over 152,000 acres, remain open to metal detector use. Movant argues that this letter, taken as a whole, clearly indicates that when events which form the basis of this action occurred, the entire Angelina National Forest was open to metal detectoring.
III. Discussion and Analysis
A. Procedural Considerations
There has been no plenary trial. Therefore, movant's request for reconsideration via "new trial" is a misnomer. Further, the Federal Rules of Criminal Procedure contain no formal provision for motions to reconsider. Motions for reconsideration in criminal proceedings are judicial creations *63 not derived from statutes or rules. United States v. Brewer, 60 F.3d 1142 (5th Cir.1995). Jurisprudence regarding motions for reconsideration in criminal matters centers on their tolling effect on the time prescribed for filing appeals. See United States v. Lewis, 921 F.2d 563, 564-65 (5th Cir.1991) (citing United States v. Healy, 376 U.S. 75, 78, 84 S.Ct. 553, 555, 11 L.Ed.2d 527 (1964)); United States v. Cook, 670 F.2d 46, 48 (5th Cir.), cert. denied, 456 U.S. 982, 102 S.Ct. 2255, 72 L.Ed.2d 860 (1982).
Here, no criminal prosecution is pending. Nor is the court concerned with a motion to suppress. Therefore, the motion properly may be construed in a quasi-civil light, and the standard of Federal Rule of Civil Procedure 59(e) applied. See Knox v. United States, 56 F.3d 64, 1995 WL 316744 (6th Cir.1995) (district court was correct to construe request for a "new trial" after the entry of a dispositive pretrial motion as a 59(e) motion to alter or amend judgment); see also generally Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir.1975).
A motion to amend or alter judgment filed pursuant to Federal Rule of Civil Procedure 59(e) allows a party to seek the trial court's reconsideration of an order granting summary judgment if served within ten days of judgment. See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173-74 (5th Cir.1990), cert. denied, ___ U.S. ___, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993). Movant's first motion for reconsideration was filed within ten days, and is timely. The second motion is treated as relating back to and supplementing the first.
B. Substantive Grounds
Movant's substantive grounds will be considered in reverse order:
1. Archaeological Resources Protection Act
The Archaeological Resources Protection Act (ARPA) defines and regulates archaeological resources. ARPA specifies criminal penalties for violations of the act.
Movant has contended throughout that because (a) Aldridge Lumber Company tokens do not meet ARPA's 100-year definition of an archaeological resource, and (b) "coins" are excepted from ARPA's regulatory reach, he could not be prosecuted for an ARPA violation. Since he could not be prosecuted, movant deduces he had a lawful right to enter government land and collect the tokens. As collecting the tokens was not unlawful under ARPA, he has satisfied his FED. R.CRIM.P. 41(e) burden of proving lawful possession.
Both the magistrate judge and the undersigned district judge concluded previously that this argument is both flawed and beside the point. The argument misses the mark because showing that Shivers's conduct was not criminal does not to prove his possession of the tokens was lawful. One may commit the civil tort of property conversion without being guilty of a crime. See Morissette v. United States, 342 U.S. 246, 270-271 & 270 n. 31, 72 S.Ct. 240, 253-54 & 253 n. 31, 96 L.Ed. 288 (1952); Pan E. Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1125 (5th Cir. 1988); United States v. Lester, 541 F.2d 499, 502 n. 4 (5th Cir.1976) (applying Texas law).
The argument is flawed because ARPA conveys no property rights. Regulatory history explains that "ownership interests are not subject to regulation under the Act." Final Uniform Regulations, 49 Fed. Reg. 1016, 1024 (1984). Movant cites no authority to the contrary. Rather, movant persists in a wholly unsupported and self-serving argument that Congress somehow intended to waive sovereign title to all items of personal property imbedded in government land unless (a) defined specifically as an archaeological resource, (b) regulated and (c) protected by criminal sanction. It does not follow, however, that in defining what items constitute "archaeological resources" subject to special protection via regulation, Congress relinquished title to all unregulated items owned by the sovereign.
As the court has noted consistently, movant does not prove lawful possession of Aldridge Lumber Company tokens by showing the tokens are beyond ARPA's regulatory reach. Lawful possession must be determined by resort to fundamental principles of property law.
*64 The common law of property does not impugn the "coin exception" of ARPA.[2] Under common law, finders of abandoned personal property are entitled to lawful possession unless it was imbedded in the land or constructively possessed by the landowner. The "coin exception" mirrors this general rule, and had the tokens at issue been found on the surface, movant might prevail.[3] However, nothing in the legislative history or jurisprudence suggests that the "coin exception" abrogates well-established exceptions to the "finders keepers" rule.
Finally, it is fatuous to speculate that Congress intended to invite the general public, which includes not only hobbyists but also commercial salvors and entrepreneurs, onto government land to excavate for any and all items of unregulated personal property. Congress would not forego so casually the elaborate set of rules it requires for disposition of excess or surplus property.[4]
2. New Evidence
When presented with requests to reopen evidence under FED.R.CIV.P. 59(e), district courts in their discretion may consider new materials in order to render a just decision on the basis of all the facts. Fields v. City of South Houston, Texas, 922 F.2d 1183, 1188 (5th Cir.1991). That discretion is not limitless, however, as it must be exercised while mindful of the competing judicial imperative to bring litigation to an end. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990), cert. denied ___ U.S. ___, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993).
Governing circuit law requires the court to consider at least four factors when deciding whether to reopen evidence under Rule 59(e):
1. Whether the evidence previously was available;
2. Reasons for not offering the evidence before;
3. Importance of the omitted evidence; and
4. Likelihood that the opposing party will suffer unfair prejudice if the case is reopened.
Lavespere, 910 F.2d at 173-174 (footnotes omitted).[5] These four factors will be analyzed separately:
a. Availability
The proposed new evidence was available to movant at the time of the evidentiary hearing, thereafter while the motion was under consideration by the magistrate judge, and when objections to the magistrate judge's report were due. The evidence was not offered. This factor must be determined against reopening.
*65 b. Reasons
No reasons are offered for not presenting the evidence sooner. The government's evidence was placed of record well in advance of the evidentiary hearing before the magistrate judge on January 23, 1995. That evidence clearly reflected the government's position that John Ippolito instructed movant that digging for tokens was prohibited. The magistrate judge carefully inquired as to disputed facts and provided an opportunity for presentation of evidence. The magistrate judge kept the motion under advisement for over three months following the hearing, during which time movant made no request to present additional facts.
In issuing the written report and recommendation, the magistrate judge advised movant of the right to object to proposed findings of fact, and of the consequences for failing to do so.[6] The governing statute,[7] and this circuit's jurisprudence[8] establish clearly that a district judge conducting de novo review of objections to a magistrate judge's findings and conclusions may receive additional evidence. However, the new evidence was not offered either to the magistrate judge or the undersigned district judge during the several months this case has been pending.
From this backdrop, the court infers that the new Shivers affidavit is tendered only now because the court's memorandum of June 29, 1995, speculated "If government agents permitted movant to dig and acquire tokens for private use, movant's claim of entitlement to lawful possession might well prevail." Accordingly movant's only apparent reason is curative. After-the-fact remedying of deficiencies in earlier proof is not a compelling reason to reopen, especially when the matter has been at issue from the outset. Therefore, this factor also weighs against reopening the evidence.
c. Importance
The third factor involves importance of the proposed new evidence. The Joslin letter is of little or no significance other than to beg the question. Whether Angelina National Forest is or was "open" to metal detectors is not instructive as to whether persons with metal detectors could excavate or privately collect tokens.
The Shivers affidavit requires more analysis. If admitted into evidence, it would suffice to establish a genuine issue of fact as to whether a government agent expressly authorized digging for the tokens. The presence of a contested issue of fact precludes summary disposition if the issue is material or determinative. The question then becomes whether this contested issue of fact is material.
Notwithstanding earlier conjecture, the court now concludes that it would reach the same result even if the new Shivers affidavit were allowed and its alleged facts accepted as true. If U.S. Forest Service agent John Ippolito authorized movant to excavate and remove tokens from government land, his conduct was ultra vires as to abandonment or conveyance of government-owned property.[9] Moreover, Ippolito's alleged conduct, though reprehensible, would be insufficient to give rise to an estoppel against the government's assertion of ownership.[10]*66 The rule is harsh, but clearly established that
[A]nyone entering into a relationship with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though ... the agent himself may have been unaware of the limitations upon his authority.
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947).
Upon further reflection, the court concludes that the proposed new evidence is not material. Therefore, this factor also weighs against not reopening the evidence.
d. Prejudice
The last factor involves assessment of prejudice to the opposing party. The government would suffer minor prejudice in that it had witnesses present and prepared to testify before the magistrate judge at the evidentiary hearing convened in January, 1995. To allow the new affidavit into evidence arguably would require a new evidentiary hearing, thus necessitating presentation of the government's witnesses a second time. On balance, however, the court does not view this prejudice as significant. This factor, therefore, is weighed in favor of reopening.
e. Conclusion
Because three of the four analytical factors weigh against reopening the evidence, the court will not consider the proposed new evidence.
3. Notice
Movant's third substantive ground for reconsideration suggests denial of due process. Essentially, movant claims that the proceedings have been unfair because movant was not notified the case was under active review by a district judge. Movant infers that had such notice been provided, he would have presented additional evidence to support his claim.
Movant's arguments are not persuasive. The magistrate judge's written report specified that it was not a ruling, but only a recommendation for disposition by a district judge. It specifically advised movant that objections to proposed findings of fact and recommendations for disposition would receive de novo review.[11] The magistrate judge expressly advised of the timing for objections, cited the statute under which objections would be reviewed, and referred movant to published cases which not only describe the de novo review procedures but also advise of the consequences for noncompliance with statutory procedures.[12]
This was ample notice to movant and able counsel that a district judge would review the matter independently. This matter has been pending before the court now for over a year. The court is satisfied that reasonable notice and opportunity to present evidence and be heard has been afforded.
Conclusion
None of movant's grounds for reconsideration is meritorious. Therefore, the court will deny the motion. An order will be entered separately.
NOTES
[1] 16 U.S.C. § 470aa et seq.; H.R.Rep. No. 311, 96th Cong., 1st Sess., reprinted in 1979 U.S.C.C.A.N. 1709.
[2] See 16 U.S.C. § 470kk(b).
[3] In so speculating, the court assumes, without deciding, that the conflicting 50-year definition of an archeological resource, found in United States Forest Service regulation, 36 C.F.R. § 261.2 could not be enforced. In re Shivers, No. 92-M-148, 1995 WL 293188, at *4 n. 14 (May 8, 1995).
[4] Title 40 U.S.C. § 483 originally was enacted as part of the Federal Property and Administrative Services Act of 1949, ch. 288, 63 Stat. 384. Chapter 10 entitled "Management and Disposal of Government Property" contains Section 483(h) which authorizes the Administrator of General Services to permit abandonment, destruction or donation of personal property only when (1) the property has no commercial value or (2) the estimated cost of continued care and handling exceed the estimated proceeds from sale.
If property is eligible for abandonment, destruction or donation, Part 101-45 of Federal Property Management Regulations specify procedures which almost every government agency and branch, including the United States Forest Service, must follow. See 41 C.F.R. § 101-45.101(a). The written notice of abandonment must include an offer to sell published or posted in a public location. 41 C.F.R. § 101-45.902-1. Items with an original cost of less than $500 may be abandoned without public notice, but the written findings of an authorized official are still necessary. See 41 C.F.R. § 101-45.902-2(b). If, prior to abandonment or destruction, donation becomes feasible, the property must be donated. See 41 C.F.R. § 101-45.901(c). Only governmental agencies and charitable institutions fit the definition of a proper donee. See 41 C.F.R. § 101-44.001-4.
[5] The standard appears similar when applying the judicially created motion for reconsideration in a criminal case. Brewer, 60 F.3d at 1145.
[6] The magistrate judge's report notified movant:
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148, 106 S.Ct. 466, 471, 88 L.Ed.2d 435 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir.1988).
[7] See 28 U.S.C. § 636(b)(1)(C).
[8] United States v. Fortna, 769 F.2d 243 (5th Cir. 1985); Louis v. Blackburn, 630 F.2d 1105 (5th Cir.1980); 12 CHARLES A. WRIGHT, Arthur R. Miller & Frank W. Elliott, FEDERAL PRACTICE AND PROCEDURE § 3076.8 (Supp.1995).
[9] See supra note 4; see also Government's Response at 11-14.
[10] The government cannot be estopped on the same terms as any other litigant. See Heckler v. Community Health Services of Crawford County, 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). Indeed, there are substantial arguments that estoppel may not in any circumstances run against the government. Id. Whatever the circumstances, if any, under which the government may be estopped, cases to date with more compelling grounds for relief have not satisfied the heavy burden. Id. at 60 n. 12, 104 S.Ct. at 2224 n. 12; id. at 67-68, 104 S.Ct. at 2227-28 (Rehnquist, J., concurring).
[11] In re Shivers, 1995 WL 293188, at *1 n. 2.
[12] Id. at *6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262105/ | 900 F.Supp. 670 (1995)
Stanley MOORE, Plaintiff,
v.
Donald SELSKY, et al., Defendants.
No. 93 Civ. 0763 (LAK).
United States District Court, S.D. New York.
October 13, 1995.
*671 Stanley Moore, Pro Se.
Vincent Leong, Assistant Attorney General, New York City, Dennis C. Vacco, Attorney General of the State of New York, Albany, NY, for Defendants.
MEMORANDUM OPINION
KAPLAN, District Judge.
This Section 1983 action is brought by an inmate at the Ogdensburg Correctional Facility, which is operated by the New York State Department of Correctional Services *672 ("DOCS"). The defendants are the warden of the Green Haven Correctional Facility ("Green Haven"), where plaintiff was incarcerated at the time of the events in question, two of his subordinates, and Donald Selsky, director of DOCS' special housing and inmate disciplinary program. The case concerns the manner in which plaintiff was found guilty of and disciplined for violating a DOCS rule prohibiting drug use by inmates.
Facts
On April 30, 1990, plaintiff was ordered to submit to a random urinalysis test. The request for the test indicated that plaintiff had taken medication recently and contained a handwritten note stating "check medical records." (Leong Aff. Ex. 1) According to plaintiff's memorandum, DOCS Directive 4937 provides that inmate medical records "shall" be checked if an inmate reports having taken medication within the past month and the inmate's urine tests positive for drugs. Plaintiff's specimen tested positive for cannabinoids. Plaintiff was charged the following day with the use of drugs.
In conformity with standard DOCS procedure, plaintiff was permitted to select an assistant for the hearing on the misconduct charge and chose Sergeant Shannon, who is among the named defendants in this action. Plaintiff raised with Shannon the issue of access to his medical records, but was told to bring that up at the hearing. (Id. Ex. 8, at 3)
A Tier III disciplinary hearing on the misconduct charge was convened on May 5, 1990 before Lieutenant Ray Sanford. Plaintiff informed Sanford at the outset of the hearing that Shannon had told him to bring the subject of medical records up at the hearing, and Sanford confirmed that this had to be done at the hearing in consequence of a right to privacy law. (Id.) Plaintiff did not in so many words request access to his medical records. Nevertheless, Sanford began to explain the reliability of the test used by DOCS to determine the presence of cannabinoids and read into the record a letter from the manufacturer of the urinalysis test used by DOCS indicating that no known compound, drug or disease can product a false positive test result for cannabinoids or cocaine. (Id. at 5) After further discussion concerning the chain of custody of the urine sample, the calibration of the test instrument, and other matters, Sanford told plaintiff that the test can produce a positive result only if the drug is in the inmate's system. (Id. at 17) The following colloquy then occurred:
"Inmate Moore: Unless uh, there is other medication that can cause
"Lt. Sanford: There is none, I just read you that, when we started in the proceeding as a point of interest, so, if we get into that, so you wouldn't be overwhelmed, and I wouldn't be overwhelmed with trying to explain the principal [sic]. The principal [sic] of the test, on these two items, cocaine and marijuana
"Inmate Moore: Right.
"Lt. Sanford: is this, no matter what else you use, if you have marijuana or cocaine in your blood system or in your urine tract or in your body the machine will pick it up. * * * Now do you have any other questions that you want to ask that pertain to the hearing.
"Inmate Moore: No no." (Id. at 17-18)
Sanford continued his explanation of the reliability of the urine test and concluded by stating, "That's how infallible the machine is." (Id. at 18) Plaintiff responded:
"Inmate Moore: Well based on your statements and your examples, I got to accept what you saying, because like you said, you went to school for it, and you broke it down, so uh, I have no other way of refuting or disputing it. I got to accept that." (Id. at 19)
Sanford then said that he would give plaintiff a day to think about it and reopen the hearing on the following day. (Id.) He indicated that he would not have time to write up a disposition on May 5, but would "be prepared to give [plaintiff] one more shot to ask any questions [he might] want" before giving the disposition at a reconvened hearing on May 6.
Sanford reconvened the hearing on the following day. After some initial discussion concerning a worksheet for the urinalysis *673 test, plaintiff said that it appeared that Sanford already had made up his mind about the charges and had written out the disposition when plaintiff had walked in on May 6. (Id. at 19-20) Sanford responded that plaintiff was correct, but that Sanford had merely done what he had said he would do, i.e., prepare to render a decision at the reconvened hearing. (Id. at 20-23)
At the conclusion of the hearing, Sanford found plaintiff guilty and imposed a penalty of, inter alia, forty five days of keeplock confinement. At no point during the hearing did plaintiff ask for production of his medical records, seek to have any medical witness called, or specify what medication he claimed to have taken.
Plaintiff appealed to Warden Artuz, also a defendant here. The principal focus of the appeal was the failure of the hearing officer to check plaintiff's medical records, which was said to violate a DOCS policy, and the allegedly improper reliance on the hearsay information from the test manufacturer. (Id. Exs. 11-12) The appeal was denied by Artuz on May 21, 1990, who concluded that a check of the medical records had been unnecessary in light of the letter from the test manufacturer. (Id. Ex. 13) Plaintiff appealed again to defendant Selsky, who affirmed the decision below on July 5, 1990. (Id. Ex. 14)
Discussion
Defendants move for summary judgment dismissing the complaint. Plaintiff cross-moves for partial summary judgment determining that Lieutenant Shannon conducted a constitutionally deficient disciplinary hearing and that Warden Artuz and Director Selsky are liable for having affirmed the decision. The motions present two preliminary questions and three principal issues. First, the defendants' contend that the keeplock confinement of the plaintiff was not a deprivation of liberty of the sort that requires due process of law and, even if it were, that plaintiff's failure to insist that his medical records be produced indicates that his rights were not violated. After those threshold issues are dealt with, three principal issues remain: (a) whether Lieutenant Sanford deprived plaintiff of his right to due process of law by relying on the letter from the manufacturer of the drug test without checking plaintiff's medical records (as is apparently required by DOCS policy), (b) whether Lieutenant Sanford violated plaintiff's rights by prejudging the matter, and (c) whether Lieutenant Sanford is entitled to dismissal on the basis of qualified immunity even if he did deprive plaintiff of his rights.
The threshold question is whether the punishment imposed on plaintiff as a result of his conviction on this disciplinary charge deprived him of a liberty interest protected by the Due Process Clause. Following the Supreme Court's decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Second Circuit consistently held that New York law created a protected liberty interest in freedom from punitive keeplock. See, e.g., Soto v. Walker, 44 F.3d 169, 172 (2d Cir.1995); Santana v. Keane, 949 F.2d 584, 585 (2d Cir.1991); Russell v. Coughlin, 910 F.2d 75, 77 (2d Cir.1990); Gittens v. LeFevre, 891 F.2d 38, 39-40 (2d Cir. 1989). In Sandin v. Conner, ___ U.S. ___, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), however, the Supreme Court limited the Hewitt approach. It held that the existence of a liberty interest in the prison disciplinary context depends not only on whether State law narrowly restricts prison officials in imposing such punishments, but also on whether the liberty in question is of "real substance," i.e., on whether it will "inevitably affect the duration of [a] sentence" or impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id., at ___, 115 S.Ct. at 2298, 2300.
The defendants argue that Sandin requires dismissal on the ground that plaintiff lacked a protected liberty interest. Because defendants' motion for summary judgment can be granted on other grounds, however, this Court will not reach the question of Sandin's impact, a question which this Circuit deliberately has left unanswered as of yet. Rodriguez v. Phillips, 66 F.3d 470, 479-80 (2d Cir.1995).
Defendants' next line of defense is their contention that plaintiff never asked that his medical records be produced and never indicated what prescribed drug he claimed may *674 have caused a false positive test result. Moreover, they place substantial weight on the plaintiff's statement, quoted above, that plaintiff "accepted" Sanford's assertion that the test in question was infallible. This argument is unpersuasive.
The hearing transcript demonstrates that plaintiff asked Sergeant Shannon about his medical records even before the hearing, only to be told that he should raise the point again with the hearing officer. Plaintiff did so. While plaintiff was less explicit than counsel would have been, Sanford knew that plaintiff contended that he had not taken illegal drugs. The trier of fact reasonably could conclude that plaintiff's defense, in part, was that the positive test result was a product of other medication he had taken.[1] Indeed, Sanford's lengthy discourse on the supposed infallibility of the test is strong evidence that he understood plaintiff's position. Looking at this question in the light most favorable to the non-moving party, it is therefore necessary to treat plaintiff's statement as a request that his records be checked. In consequence, Sanford's entitlement to summary judgment on the merits of this issue turns not on some waiver by plaintiff but on whether he violated plaintiff's rights either by relying on the manufacturer's letter rather than check the medical records, or by pre-judging the case, and on whether he is nevertheless immune.
Failure to Check Medical Evidence
The gist of plaintiff's claim is that he was denied due process in the prison hearing in two ways: first, he was not allowed to present documentary evidence, his medical records, and second, he was denied an impartial hearing officer because Sanford had concluded from the outset of the hearing that the test could not be inaccurate.
In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), which was reaffirmed in Sandin, the Supreme Court set out the constitutional requisites of prison disciplinary hearings. They "are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. at 556, 94 S.Ct. at 2974. There is no general right to confrontation or cross-examination. Id. at 567-68, 94 S.Ct. at 2980-81. The principal requirement relevant here is that the inmate "be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Id. at 566, 94 S.Ct. at 2979.
The Second Circuit has elaborated in subsequent years on the extent of an inmate's right to present evidence in his or her behalf. A uniform refusal to permit inmates to call other prisoners as witnesses is unjustifiable. McCann v. Coughlin, 698 F.2d 112, 123 (2d Cir.1983). The inmate need not be permitted to call a witness if doing so would be futile or the witness would be unnecessary. Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993); Scott v. Kelly, 962 F.2d 145, 146 (2d Cir.1992). If the inmate is prevented from calling a witness or offering evidence, however, the burden of justifying that action is on the defendants. Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir.1991).
Here, the record demonstrates that Sanford spoke to the test manufacturer in the month preceding the plaintiff's hearing. On or about April 23, 1990, two weeks before the hearing, he received a letter from the manufacturer, which was read into the hearing record, stating in substance that no drugs or diseases had been identified "which are capable of producing a positive cocaine or cannabinoid test result without respective drugs presence in the urine sample." (Leong Aff. Ex. 8, at 5)
In these circumstances, reliance on the manufacturer's letter, hearsay though it was,[2] did not violate any of plaintiff's federal *675 constitutional rights. Indeed, the letter quite likely would carry Sanford's burden of justifying, under the Due Process Clause, the failure to review plaintiff's medical records or to call a medical witness. The decision of a prison disciplinary tribunal satisfies the requirements of the Due Process Clause where there is "some evidence" to support the tribunal's finding. Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). In this case the letter from the test manufacturer which was read into the record, answers affirmatively the "relevant question ... whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. Moreover, so long as the requirements of the Due Process Clause are satisfied, the defendants' apparent[3] violation of a DOCS Directive requiring investigation into the medical records of inmates subjected to random drug testing is insufficient to establish violation of plaintiff's right not to be deprived of liberty without due process of law. It is well established that violation of state procedural rules or safeguards does not in itself constitute deprivation of due process, where the process actually provided nevertheless is permissible under the Constitution. Russell v. Selsky, 35 F.3d 55, 60 (2d Cir. 1994); Robinson v. Via, 821 F.2d 913, 923 (2d Cir.1987); Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir.1985) (court must not "confuse the deprivation of a liberty interest with the denial of the constitutional right to procedural safeguards which is implicated by that interest"), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). See also Russell v. Coughlin, 910 F.2d 75, at 78 n. 1 (2d Cir.1990) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540-41, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985)). Thus, failure to comply with the DOCS Directive alone would not violate the plaintiff's right to due process, and Sanford's failure to inspect plaintiff's medical records before reaching a decision to place plaintiff in keep-lock confinement did not violate the Due Process Clause itself, at least in these circumstances, because his decision was adequately supported.
In any event, even if Sanford's refusal to inspect the plaintiff's medical records had violated plaintiff's right to due process, Sanford nevertheless would be immune from liability on this claim. The doctrine of qualified immunity protects government officials from liability for damages "insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The doctrine, moreover, must be applied at a level of factual specificity sufficient to determine whether a reasonable official would understand that what he or she was doing would violate the plaintiff's rights. Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987).
It has been established since Wolff was decided in 1974 that inmates in prison disciplinary proceedings have a right to offer documentary evidence and to call witnesses in their defense, when permitting the inmate "to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 566, 94 S.Ct. at 2979; see also Ponte v. Real, 471 U.S. 491, 497-99, 105 S.Ct. 2192, 2196-97, 85 L.Ed.2d 553 (1985). The limits of that right, which depend in significant measure on the discretion of prison officials, Wolff, 418 U.S. at 566, 94 S.Ct. at 2979, however, are not clear even today. Accordingly, it was objectively reasonable for Sanford, in light of the unequivocal letter from the test manufacturer, to believe that a review of plaintiff's medical record would *676 serve no useful purpose and, in consequence, that the failure to do so would "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
Alleged Prejudgment
As plaintiff contends, an official conducting a prison disciplinary hearing may not decide the case before the hearing. E.g., Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989). But plaintiff's contention that Sanford did so here is unconvincing.
There are only two possible bases for plaintiff's contention. The argument he makes explicitly rests on the colloquy quoted above that Sanford had written up the disposition before the hearing concluded. Implicit, in the Court's view, is a contention that Sanford knew of the manufacturer's assessment of the reliability of the urinalysis test before the hearing began and regarded the test as infallible. Neither, however, warrants the conclusion that plaintiff's rights were violated.
Sanford certainly went into the hearing thinking that the urinalysis test was reliable. But that is not enough to justify a conclusion that plaintiff's due process rights were violated by his serving as the hearing officer.
Prison officials serving as hearing officers need not meet the standards of impartiality applicable to judges. "Because of the special characteristics of the prison environment, it is permissible for the impartiality of such officials to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due process." Francis, 891 F.2d at 46 (citing Cleavinger v. Saxner, 474 U.S. 193, 203-04, 106 S.Ct. 496, 502-03, 88 L.Ed.2d 507 (1985)); accord, Crooks v. Warne, 516 F.2d 837, 839 (2d Cir.1975); see also Main Road v. Aytch, 565 F.2d 54, 58-59 (3d Cir.1977). Thus, while an inmate is entitled to a determination of disciplinary charges in circumstances "in which the result is [not] arbitrarily and adversely predetermined," Francis, 891 F.2d at 46, it would be unreasonable to expect or require that a hearing officer, necessarily drawn from among corrections personnel whose responsibilities include being aware of efforts to suppress illicit drugs in the prison setting, have no a priori view that the test method used by DOCS is at least generally reliable. What is prohibited is only a hearing before an officer who would be unwilling to consider impartially the possibility of error. For example, when a hearing officer states that he will not even consider evidence that a prisoner has introduced because he cannot believe that the prisoner's theory could be true, the hearing officer may be biased. Colon v. Coughlin, 58 F.3d 865, 871 (2d Cir.1995).
Here, there is nothing to suggest that Sanford would not have been amenable to persuasion had plaintiff offered any evidence challenging the reliability of the test or the manufacturer's statement. Absent such evidence, there is no genuine issue of fact material to the determination whether Sanford impermissibly prejudged the reliability question. Unlike the defendant in Colon, Sanford did not flatly refuse to consider plaintiff's contention that the test was inaccurate. He considered the question on the basis of the only evidence introduced, the letter from the manufacturer attesting to the accuracy of the test.
Plaintiff's other argument overlooks the fact that Sanford wrote out his proposed disposition only at the conclusion of the first day of the hearing and only after plaintiff had offered all the evidence that he ultimately offered in the proceeding. The purpose of the second day's session was merely to answer any questions plaintiff might have had and to render the disposition. Even if the second day's session had been more extensive, there is no reason to suppose that Sanford would have been unresponsive to any new evidence or arguments that plaintiff might have offered.
Plaintiff's reliance on Silva v. Sanford, No. 91 Civ. 1776 (KMW)(KAR), 1994 WL 455170, 1994 U.S.Dist. LEXIS 11568 (S.D.N.Y. Aug. 18, 1994), is misplaced. In that case, the evidence unmistakably established that the hearing officer (coincidentally the same Lieutenant Sanford who conducted the hearing at issue in this case) was involved in the investiof *677 the underlying incident and had told someone the punishment that he would impose on the inmate before the hearing began. In this case, there is no such evidence.
The final point warranting brief discussion is plaintiff's claim that Sanford's alleged prejudgment dissuaded him from adducing other evidence on the second day of the hearing. Specifically, he claims in his memorandum before this Court that his wife had told him on the telephone after the May 5 session that certain foods might cause a false positive. But for Sanford's alleged attitude, he claims that he would have called his wife via telephone to establish that point and his brother, also then an inmate, to prove that plaintiff had ingested the foods in question.
To the extent that plaintiff's point is that he was precluded from calling these additional witnesses and that is a point he did not make in the administrative appeals it is without merit. If plaintiff had a basis for claiming that there was another possible cause for the positive test result, he was bound to raise it at the hearing and to make a record even if he thought the hearing officer biased, as indeed he did in other respects.
The point is equally without merit to the extent it is offered in support of the contention that Sanford prejudged the case. Plaintiff's alleged decision not to offer this additional evidence and it is highly doubtful that the thought of doing so even occurred to him prior to this action sheds no light on Sanford's state of mind.
The Other Defendants
Plaintiff has conceded that his claim against Sergeant Shannon must be dismissed. The claims against Warden Artuz and Director Selsky are based solely on their having affirmed Sanford's decision. Plaintiff's claims against them are without merit for the same reasons as his claims against Sanford.
Conclusion
Defendants' motion for summary judgment dismissing the complaint is granted and the action dismissed. Plaintiff's cross-motion for partial summary judgment is denied.
SO ORDERED.
NOTES
[1] Plaintiff's failure to name the prescribed drug or drugs is of no moment, at least on a motion for summary judgment. Many individuals blindly follow physicians' advice and thus take medications without knowing either their names or their precise intended purposes. Indeed, it is not clear that physicians or physicians' assistants in DOCS facilities routinely give this information to their inmate patients.
[2] Plaintiff complains that reliance on hearsay, in the form of the manufacturer's letter, prejudiced him by denying him the opportunity to cross examine the representative of the manufacturer. As noted above, however, prison disciplinary proceedings need not provide an opportunity for confrontation or cross-examination. Wolff v. McDonnell, 418 U.S. 539, 567-68, 94 S.Ct. 2963, 2980-81, 41 L.Ed.2d 935 (1974).
[3] Plaintiff quotes DOCS Directive 4937 ¶ 4(b), at 3, for the procedure prescribed for random drug testing: "... The inmate shall also be asked if he has been taking any medication in the past month, and the inmate's response SHALL be noted on the Request for Urinalysis Test Form. If the inmate's response is YES and the subsequent test results are positive, an inquiry SHALL be made to medical personnel as to what medications the inmate has received in the past month." The Directive itself was not submitted to the Court, but defendants do not dispute plaintiff's quotation of it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262107/ | 900 F.Supp. 51 (1995)
Mary Lucille WHITE
v.
BETHLEHEM STEEL CORP.
No. 1:94-CV-0029.
United States District Court, E.D. Texas, Beaumont Division.
June 28, 1995.
*52 James A. Morris, Jr., Provost & Umphrey, Beaumont, TX, for plaintiff.
Mary Lucille White, Beaumont, TX, pro se.
James W. Hambright, Orgain Bell & Tucker, Beaumont, TX, for defendant.
MEMORANDUM OPINION
COBB, District Judge.
Plaintiff, Mary Lucille White (White), proceeding pro se, filed a charge of racial discrimination with the Equal Opportunity Commission (EEOC) on September 25, 1992. She alleged that her employer, Bethlehem Steel (Defendant), refused to promote her to the position of Senior Buyer due to her race. On February 27, 1993, the EEOC's Houston District Office informed White her claim had been denied and that she had a right to file suit against the defendant in federal district court; it further informed her that if she failed to file suit within 90 days of the receipt of the letter, she would lose her right to sue.
On May 19, 1993, plaintiff filed a motion in federal district court pursuant to 42 U.S.C. § 2000e-5(f)(1).[1] She sought to proceed in this matter without the payment of fees and sought appointment of counsel to represent her in federal court. The application to proceed in forma pauperis and to appoint counsel was referred to Magistrate Judge Wendell Radford by Judge Joe J. Fisher. On November 2, 1993, Judge Radford issued his Report and Recommendation; he recommended denial of plaintiff's motion to proceed in forma pauperis and denied her motion for appointment of counsel. On December 10, 1993, Judge Joe J. Fisher adopted the findings of Judge Radford and granted plaintiff an additional 30 days to file her Title VII action in federal district court.[2]
It is undisputed that plaintiff did not initiate a cause of action in federal district court until 31 days after she received Judge Fisher's order.[3]
Defendant now moves to dismiss plaintiff's cause of action as untimely.
Before analyzing her claim, the court is aware that the district clerk's office maintains printed forms for persons seeking to file discrimination claims based on EEOC appeals. One is a printed form seeking "Affidavit in Support of Motion,[4] Leave to proceed in forma pauperis, and for appointment of counsel," and a printed "Motion." The plaintiff filled in the blank spaces, and the clerk's office routinely filed the same without the pre-payment of filing fees. The second printed form is a printed "Complaint,"[5] with blanks to be filled in and filed pro se, but requires the payment of $120 filing fee.[6]
On May 19, 1993, Mrs. White filed such a motion and affidavit. In the affidavit she stated her monthly wages were $2753, she had $120 in a checking account, owned an automobile she valued at $3500, a three-bedroom house valued at $51,210, and stated she was not unable to pay an attorney to represent her.
At the least, she could have, upon receipt of her next paycheck from Bethlehem, filed a pre-printed pro se suit with the payment of the filing fee. Instead, she sought the appointment of an attorney despite her representation of her monthly $2753 wages, her *53 $51,000 house, and $3500 auto. She was allowed until January 12 or 13, 1994, to file,[7] some seven and one-half months additional time, by filing the motion to proceed in forma pauperis, and awaiting the ruling thereon. The court has wide discretion concerning equitable tolling, but should examine each case on its own facts.
ANALYSIS
In Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that timely filing of an employment discrimination charge with the EEOC is not a jurisdictional prerequisite to a Title VII suit. The court stated in Zipes that the time limit for filing a charge is subject to waiver, estoppel, and equitable tolling. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), the court noted that equitable principles could be applied to toll the running of the 90-day statutory period to commence a Title VII action. The Fifth Circuit, citing Baldwin County, has held that the 90-day requirement is both nonjurisdictional and subject to tolling and waiver. Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1248 n. 1 (5th Cir.1985).
In Baldwin County, the court listed some of the circumstances in which equitable tolling of the 90-day period may be justified: (1) where notice from the EEOC does not adequately inform plaintiff of the requirement that suit be commenced within the statutory period; (2) where a motion for appointment of counsel is pending; (3) where the court itself led plaintiff to believe that she has satisfied all statutory prerequisites to suit; and (4) where the defendant has, through affirmative misconduct, lulled the plaintiff into inaction. Baldwin County, 466 U.S. at 151, 104 S.Ct. at 1725. If the plaintiff fails to act in a diligent manner, however, the 90-day period will not be tolled. Baldwin County, 466 U.S. at 151, 104 S.Ct. at 1725.
Plaintiff fails to make any showing sufficient to invoke equitable tolling under Baldwin. The notices in both the EEOC letter and Judge Fisher's order were clear, straightforward, and easy to understand. The record indicates that plaintiff is an intelligent, educated woman, and easily capable of comprehending the time limits set out in the EEOC letter and Judge Fisher's order. In addition, Judge Fisher granted plaintiff an additional 30 days in which to file her suit. For whatever reason, plaintiff chose to wait 31 days before filing her suit.[8] Simply neglecting to heed a limitations period will not serve to invoke equitable tolling; this is true even when the plaintiff is proceeding pro se. See Houser v. Rice, 151 F.R.D. 291, 295 (W.D.La.1993).
On two occasions (July 7, 1994, and January 6, 1995), the court scheduled management conferences, and the plaintiff dutifully appeared, and requested additional time to employ an attorney. Each request was granted because the plaintiff stated she was unable to pay the substantial retainer fees requested. She is by no means a pauper, but a middle-class, stable working woman. Finally, as a pro bono assignment, a qualified, competent trial lawyer known to the court accepted the assignment without prior knowledge of Judge Radford's recommendations, and the district judge's ruling on her request for extension of time. As stated, the plaintiff is an intelligent and educated person, and has offered no excuse for the delay. Her notification of the 30-day extension was duly received and the last day was neither a Saturday, Sunday, or holiday, but a Wednesday or Thursday.
Finally, the court is not unmindful that the defendant has also filed a Motion for Summary Judgment with appropriate supporting documentation that it has never had a position in its Sabine yard facility of Senior Buyer; and, in fact, has had only one buyer at Sabine Yard for a number of years, which *54 was the plaintiff. Indeed, the EEOC determination by the District Director, stated:
Examination of the evidence indicates that Respondent does not have a Senior Buyer position at the Respondent's Sabine Ship Yard facility. Additionally, evidence shows that the Charging Party did not apply for any other position, consequently, the Charging Party was not considered for promotion to any other position. Based on this analysis, I have determined that the evidence obtained during the investigation does not establish a violation of the statute.
Accordingly, defendant's Motion to Dismiss is GRANTED, and all claims against the defendant are DISMISSED with prejudice.
NOTES
[1] 42 U.S.C. § 2001e-5(f)(1) provides, in relevant part, "[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize commencement of the action without payment of fees, costs, or security."
[2] Absent her application to proceed in forma pauperis, and the report of the magistrate judge and the district judge's 30-day extension which was entered December 10, 1993, plaintiff's 90-day period expired on May 28, 1993.
[3] Plaintiff received Judge Fisher's order on December 14, 1993. She filed her complaint on January 14, 1994.
[4] This printed form is in the clerk's file in this case.
[5] This printed form is also in the file in this case.
[6] 28 U.S.C.A. § 1914(a).
[7] White has represented she received the notice December 14, 1993, but the clerk's docket sheet shows she received it December 13, 1993.
[8] The Fifth Circuit has held that merely filing a motion for appointment of counsel in a Title VII suit does not constitute commencement of the action. Firle v. Mississippi State Dept. of Ed., 762 F.2d 487, 489 (5th Cir.1987). Accordingly, plaintiff did not commence her action, within the meaning of Title VII, until January 14, 1994. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262114/ | 900 F.Supp. 844 (1995)
CANUTILLO INDEPENDENT SCHOOL DISTRICT, et al.
v.
NATIONAL UNION FIRE INSURANCE CO.
No. EP-92-CA-41-DB.
United States District Court, W.D. Texas, El Paso Division.
October 17, 1995.
*845 E. Link Beck, El Paso, TX, for plaintiffs.
Patrick A. Groves, El Paso, TX, for defendant.
MEMORANDUM OPINION AND ORDER
BRIONES, District Judge.
On this day, the Court revisits the above-captioned cause, hopefully for the last time. Pursuant to the Court's Memorandum Opinion of August 22, 1995, Canutillo filed its brief on the duty to indemnify on September 5, 1995. National Union filed its response on September 12, 1995. Canutillo's reply was received September 15, 1995. Having previously determined that National Union had a duty to defend prior to the filing of the Mendoza Plaintiffs' Second Amended Complaint, the Court will now tackle the coverage issue based on that Second Amended Complaint. After due consideration the Court is of the opinion that the cause should be disposed of as set forth below.
Statement of Facts
The facts of the case are set out in the August Memorandum Opinion and will not be reiterated here. For purposes of this opinion it is sufficient to note that the Second Amended Complaint of the Plaintiffs in the Mendoza litigation alleged only a violation of Title IX. Further, the parties in their "Agreement" stipulate that the Second Amended Complaint and the policy itself are the controlling documents before the Court.[1]
*846 Summary Judgment
Summary Judgment is warranted where the pleadings and evidence on file show that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R.CIV.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In the case at bar, both parties and the Court agree that the determination of the duty to indemnify is proper for summary judgment. The Court reviews all the terms of the policy and all the terms of the "Agreement".
Duty to Indemnify
The Court now considers the narrow question of whether National Union has a duty to indemnify Canutillo. In this diversity case, the duty to indemnify is to be determined under Texas law. In contrast to the duty to defend, the duty to indemnify is not based upon the third party's allegations, but upon the actual facts that underlie and result in the liability. American Alliance Ins. Co. v. Frito-Lay, Inc., 788 S.W.2d 152, 153-54 (Tex.App. Dallas 1990, writ dism'd); Cluett v. Medical Protective Co., 829 S.W.2d 822, 828 (Tex.App. Dallas 1992, writ denied). The Mendoza litigation was settled out of court. The liability in this case was not litigated, thus, the actual facts were not ascertained. However the parties have, by agreement stipulated that the facts as alleged in the Second Amended Complaint are those on which the Court should base its determination on this issue.
National Union denies the existence of coverage based on the first three exclusions in the policy. The exclusions state as follows:
This policy does not apply:
a) to any claim involving allegations of fraud, dishonesty or criminal acts or omissions; however, the insured shall be reimbursed for all amounts which would have been collectible under this policy if such allegations are not subsequently proven;
b) to any claims arising out of (1) false arrest, detention or imprisonment; (2) libel, slander or defamation of character; (3) assault or battery; (4) wrongful entry or eviction or invasion of any right of privacy;
c) to any claim arising out of bodily injury to, or sickness, disease or death of any person, or damage to or destruction of any property, including the loss of use thereof;
The Mendoza Plaintiffs' Second Amended Complaint, which was the live pleading at the time of the settlement agreement alleged only a Title IX cause of action. As in the prior opinion, if the Court finds that the cause of action advanced by the Mendoza Plaintiffs was not excluded, or that there was some question as to whether coverage existed through ambiguity in the policy, then National Union had a duty to indemnify.
I.
The Court must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent. National Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). Any intent to exclude coverage must be expressed in clear and unambiguous language. The insurer has the duty to expressly and clearly state the exclusion. Id. Exceptions or limitations on liability are strictly construed against the insurer and in favor of the insured. Id. Thus, the inquiry *847 is whether the construction advanced by Canutillo is a reasonable interpretation.
The policy does not specifically exclude Title IX claims against the school district. The Second Amended Complaint does not state a cause of action for fraud, dishonesty, criminal acts or omissions, false arrest, detention or imprisonment, libel, slander or defamation of character, assault or battery, wrongful entry or eviction or invasion of any right of privacy, bodily injury to, or sickness, disease or death of any person. National Union is correct in that these terms are unambiguous. The Complaint does state a cause of action based on gender discrimination. Thus, National Union's only hope is that the terms "involving" and "arising out of" in the exclusions are of sufficient breadth and particularity that the conduct of Tony Perales can be included within the exclusions. National Union zealously so argues.[2]
A.
The Supreme Court has held that when a teacher sexually harasses or abuses a student because of that student's sex, that teacher intentionally discriminates on the basis of sex. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 73, 112 S.Ct. 1028, 1037, 117 L.Ed.2d 208 (1992). When there is an allegation of sexual misconduct, Title IX, as applied to school districts by this Court, requires that there be two distinct actions or inactions, at least one of which is intentional in nature, on the part of an employee and on the part of the school district. See Rosa H. v. San Elizario Independent School Dist., 887 F.Supp. 140 (W.D.Tex.1995). But, it is the conduct of the school district which gives rise to the cause of action and is at the heart of any Title IX action.
Title IX forbids schools receiving federal funds from discriminating against a student on the basis of gender. A cause of action under Title IX is a suit alleging discrimination. Only the conduct of the school board itself can give rise to Title IX liability.[3] A suit under Title IX alleges that the school district has failed to implement policies or procedures to prevent or discover incidents of sexual discrimination or, as in Rosa H., that once the discrimination has been discovered failed to act in an appropriate manner.[4] In other words, the suit alleges that Canutillo made an error or omission by failing to comply with Title IX. Tony Perales did not violate Title IX. While his conduct was certainly discriminatory, without some action by Canutillo the cause of action under Title IX cannot be sustained.
Admittedly, as this Court and others have noted, there is a genuine dearth of instructive Title IX case law. However, in this Court, Title IX does require proof of negligent, reckless or intentional acts by the school district, independent of the intentional conduct of the employee. This Court believes that to hold otherwise is to place the school district in the untenable position of being liable for conduct which it was, or is unable to remedy or rectify. Simply put, case law does not allow the school district (the insured) to be held liable for the wrongful act of an employee under either Title IX or § 1983.[5] There must be further wrongful conduct by a school district to prove a Title IX case. A Title IX cause of action is not the same as a § 1983 cause of action; such a reading renders Title IX redundant.
This Court interprets Title IX so as to require proof, by a preponderance of the evidence, that the school district was negligent or acted with recklessness or intentionally discriminated. This requirement is a *848 separate and discrete element of a Title IX claim. While Perales' conduct is discriminatory, it is only the conduct of the school district which gives rise to legally cognizable discrimination. The Title IX claim does not "arise out of" the conduct of Tony Perales, it arises out of the inactions of Canutillo, thus the exclusion does not apply. On this basis the Court finds a duty to indemnify.
B.
Tony Perales is an employee of the school district: he is not an insured. Canutillo argues that the exclusion should apply to the insured, that is, the school leaders or in this case the school board.[6] National Union does not contend that any school board member did anything which would run afoul of the exclusions. Had a principal or assistant principal (or any named insured) committed the sexual abuse then the exclusion would arguably apply.
Defendant argues that to interpret the assault and battery exclusion to apply only to claims against the insured who actually commits the assault and battery would "emasculate" the exclusion. The Court strongly disagrees with this statement. To so interpret the exclusions would be to give the words their plain meaning; if one of the listed insured engaged in conduct subject to the exclusion, the policy does not apply, otherwise it does. This interpretation is simple, clear and direct. It does not strip the words of their meaning; rather, it gives them precise meaning.
National Union cites an unpublished opinion which is of no precedential value, which reaches the opposite conclusion regarding this interpretation, without explanation. The Board of Public Education of the School District of Pittsburgh v. National Union Fire Ins. Co. (Ct of Common Pleas, Allegheny Cty., Pa., June 29, 1995). In that case the Court noted that:
"To interpret the assault and battery exclusion here to apply only to claims against the insured who actually commits the assault and battery would emasculate the assault and battery exclusion leaving it subject to the whim and ingenuity of the Plaintiff in finding negligence or other wrongs which might raise liability against the Defendant and more importantly a coverage claim against the insurer. The paries to the policy did not agree to this."
What the parties did or did not agree to is memorialized in the policy. Nothing in any of the exclusions says anything about the exclusion applying to the conduct of a non-insured. Further, the requirements of Title IX are not "whim and ingenuity" but an element of the cause of action. Without evidence of negligence, or recklessness or intentional misconduct by the school district, plaintiffs in Mendoza or any other Title IX case, as applied by this Court, lose. It is the insured whose conduct violates the law under Title IX. It is the insured whose conduct or lack thereof is a necessary element of the cause of action. It is clear to the Court that if a listed insured had committed the acts then the exclusion would apply. It is equally clear that if National Union had intended for the exclusions to apply to the conduct of third parties then National Union would have, and could have, included language similar to that contained in the Policy Agreement 1: "... or of any other person for whose actions the insured is legally responsible. ..." The exclusions include no such language. This Court finds that the plain meaning of the words in the exclusions apply to only the insured.[7] Such a construction is certainly reasonable, which is all that is required by Texas law. Additionally, failure to so hold would be a failure to strictly construe the exception against the insurer as required *849 by Texas law. On this basis, the Court finds a duty to indemnify.
C.
National Union cites a variety of Federal cases for the proposition that the insured's negligence cannot be used as a basis for coverage of a sexual abuse. Commercial Union Ins. Co. v. Roberts, 7 F.3d 86 (5th Cir.1993); Allstate Ins. Co. v. Mauldin, 869 F.Supp. 478, 480 (W.D.Tex.1994). Neither of these cases were brought as discrimination claims under Title IX. Roberts and Mauldin involved abuse by the insured which is clearly not the situation here. These cases only reinforce the Court's opinion that a reasonable construction of the language of the exclusions in the case at bar is that they apply only to the insured. If nothing else, it precludes the argument that such an interpretation is meaningless and superfluous as it is the one relied on by the insurance company in those cases.
In Old Republic Ins. Co. v. Comprehensive Health Care Associates, Inc., 786 F.Supp. 629 (N.D.Tex.1992), aff'd 2 F.3d 105 (5th Cir.1993), the District Court held that the claims of negligence were not severable from the alleged acts of harassment. There the Court eventually found that the reason there was no coverage was that the specific language of the policy excluded the acts based on the commonly-used definition of "occurrence". That is not the situation in the Title IX case which is the basis of this suit.
National Union further cites the Court to a number of Texas and Federal cases which hold that assault and battery exclusions preclude coverage for negligent failure to prevent the attack. Audubon Indemnity Co. v. Patel, 811 F.Supp. 264 (S.D.Tex.1993); Tarrant County Ice Sports, Inc. v. Equitable Gen. Life Ins. Co., 662 S.W.2d 129 (Tex. App. Ft. Worth 1983, writ ref'd n.r.e.); Garrison v. Fielding Reinsurance, Inc., 765 S.W.2d 536 (Tex.App. Dallas 1989, writ denied). None of these cases alleged discrimination under Title IX. The Audubon Court did not discuss the language of the policy exclusions and based its terse opinion on a Motion for Summary Judgment to which the defendant failed to respond. In Tarrant County the provisions of the policy contained the specific language "assault and battery not committed by the assured" and a specific endorsement which overrode any language to the contrary contained within the policy excluding coverage for assault and battery; clearly this is not the case in the policy before the Court. Garrison contained a specific endorsement similar to that in Tarrant County which is not present in the case at bar.
II.
The Court has also given considerable thought to Plaintiff's contention that National Union's interpretation of the policy exclusions would mean that the policy did not cover a single category of potential damages under Texas law. The Court was also unable to identify a set of facts giving rise to a cause of action which would be covered. As this contention has been raised before, the Court is certain that if such a category existed National Union would have brought it to the Court's attention. When directly asked by the Court, National Union's representative was unable to give a specific answer.
School districts and their administrators enjoy immunity from a wide variety of suits in Texas. Section 21.912 of the Texas Education Code provides:
"No professional employee of any school district within the state shall be personally liable for any act incident to or within the scope of his duties of his position of employment, and which acts involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students."
Further, trustees and agents of a school district acting in their official capacity and in good faith enjoy governmental immunity. Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425 (1954). Regarding tort claims, a school district is immune from liability unless that immunity has been specifically waived by the Texas Tort Claims Act. The long and the short of this Act is that unless the injury is *850 caused by the operation of a motor vehicle under the control of a school district employee, the district is immune. See LeLeaux v. Hamshire-Fannett School Dist., 835 S.W.2d 49 (Tex.1992).
In Thomas v. Oldham, 895 S.W.2d 352 (Tex.1995), the Texas Supreme Court determined that a judgment in an action against a governmental unit under the Tort Claims Act bars the simultaneous rendition of a judgment against the employee who gave rise to the claim. Thomas, 895 S.W.2d at 357. Immunity also applies to Federal § 1983 claims where the policy-making official (such as a board member) acted in accordance with established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Further, for almost twenty years, municipalities (school districts) cannot be held liable for the actions of their employees through the doctrine of respondent superior in a § 1983 cause of action. Monell v. Dept of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This is by no means an exhaustive list, but it does give some indication of the broad and necessary limits placed on the potential liability of a school district in Texas. The policy at issue as interpreted by National Union would cover nothing listed above.
A contract is ambiguous "when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning...." Towers of Tex., Inc. v. Sys., Inc., 834 S.W.2d 1, 2 (Tex.1992). Ambiguity is a question of law in this circuit. Thrift v. Hubbard, 44 F.3d 348, 357 (5th Cir.1995) citing Watkins v. Petro-Search, Inc., 689 F.2d 537, 538 (5th Cir.1982). In determining whether a contract is ambiguous, the Court must view the wording of the contract in light of the surrounding circumstances. Thrift, 44 F.3d at 357. The Court agrees with Plaintiff that if under Texas law there is no cause of action against the school district covered by the policy, given the interpretation advanced by National Union, then there is certainly an ambiguity regarding just what, if anything, is covered by the policy. Because of the well-established rule in Texas of construing the policy against the insurer, if there is an ambiguity, then there is a duty to indemnify. Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 349 (Tex. 1976). The Court finds that the policy is ambiguous (at the very least) as to what, if anything, is actually covered, and therefore there is a duty to indemnify.
Conclusion
The Court finds that for the foregoing reasons, each on its own merits, the School Leaders Errors and Omissions Policy Number SCL 431 3759, purchased by Canutillo from National Union covered the claims made against Canutillo in Second Amended Complaint in the case of Mendoza, et al. v. Canutillo I.S.D., et al., EP-91-CA-344-H in the U.S. District Court for the Western District of Texas. National Union has a duty to indemnify.
Accordingly, it is ORDERED that on the issue of duty to indemnify, Plaintiff's Motion for Summary Judgment is hereby GRANTED. Defendant's Motion for Summary Judgment is hereby DENIED.
NOTES
[1] The "Agreement" contained in the settlement states:
If the Court or any Court considering the issue, by final judgment, determines that the causes of action for money damages asserted against CISD in the damage lawsuit (Mendoza) are within the coverage provided by the policy then NATIONAL UNION shall execute and delivery to CISD a release of the JUDGMENT, in a form acceptable to counsel for both NATIONAL UNION and CISD.... This provision shall not be construed to preclude CISD from asserting a claim for recovery of any sums paid by it in satisfaction of the judgment or any recovery under its counterclaim in the Declaratory Judgment Action (the case-at-bar) under other theories. If by final judgment the Court or any other court considering the issue determines that the policy does not insure the causes of action for damages asserted against CISD in the Damage Lawsuit, then NATIONAL UNION shall be entitled to all rights as a judgment creditor and shall be entitled to enforce and/or collect the JUDGMENT; provided that if by final judgment of the Court, CISD recovers a judgment under its counterclaim against NATIONAL UNION then NATIONAL UNION shall have the right to collect from CISD only the amount by which $1,000,000 exceeds any recovery by CISD under its counterclaim.
The "Agreement" continues:
For purposes of this [sic] Declaratory Judgment Action or any other suit to enforce this agreement, the facts set forth in the plaintiffs' Second Amended Complaint and as developed in the discovery conducted in the damage lawsuit shall be deemed to be true for the limited purpose of determining the coverage issue.... This paragraph shall not be construed to deny CISD or National Union the right to seek discovery or to offer evidence on other matters in support of, or in defense of, their respective contentions in the Declaratory Judgment Action or any subsequent litigation between them.
[2] National Union seems to take the position that there is something improper with the Court analyzing the terms of the exclusions although that is, of course, part of the standard which the Court is bound to follow.
[3] The Court is aware of an unpublished Western District opinion which would impose strict liability on a school district when there is sexual abuse of a minor. Leija v. Canutillo I.S.D., 887 F.Supp. 947 (W.D.Tex.1995) (Furgeson, J.). This case has not yet been reviewed by the Fifth Circuit. Rosa H., supra, was decided the next day and yet was not cited by Defendant.
[4] There are, of course, other causes of action for gender discrimination under Title IX. The Court is limiting its discussion to those relevant to the case-at-bar.
[5] See the discussion on coverage below.
[6] Insured as that term is defined in the policy includes:
"[T]he School District ... the Board of Education of the School District and all Trustees, Directors and members of the Board of Education of the School District. Insured shall also mean any employee of the School District who holds a position of Superintendent or Assistant Superintendent, Administrator or Assistant Administrator, Principal or Assistant Principal or any equivalent administrative position."
[7] A construction by which the exclusion applies only to the conduct of a non-insured is a logical extension of National Union's argument, although under the facts of this case, this conclusion is purely dicta. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262118/ | 25 Cal.Rptr.3d 482 (2005)
127 Cal.App.4th 319
STEVEN S., Plaintiff and Respondent,
v.
DEBORAH D., Defendant and Appellant.
No. B175996.
Court of Appeal, Second District, Division Four.
March 3, 2005.
*483 Marjorie G. Fuller, Fullerton, for Defendant and Appellant.
Kenneth R. Nahigian, Woodland Hills, for Plaintiff and Respondent.
HASTINGS, J.
BACKGROUND
This case involves application of Family Code section 7613, subdivision (b), which *484 provides: "The donor of semen provided to a licensed physician and surgeon for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived."[1]
On March 12, 2003, Steven S. filed a verified petition to establish a parental relationship with Trevor, then approximately three years old. Deborah D., Trevor's mother, contested the petition alleging that Trevor was conceived by artificial insemination within the terms of section 7613, subdivision (b), and therefore Steven was not entitled to any rights as a natural father.
The trial court bifurcated the issue of paternity from the remainder of the issues and heard conflicting evidence relating to the conception of Trevor. Summarizing, the evidence establishes that Deborah and Steven, who are not and were not married to each other, agreed Steven would provide semen to a physician to artificially inseminate Deborah; Deborah became pregnant from the artificial insemination but the pregnancy did not last full term; Steven and Deborah then had sexual intercourse over a period of months which did not result in a pregnancy; shortly after terminating the sexual relationship, Deborah again sought to conceived through artificial insemination utilizing sperm Steven had originally provided for that purpose; Deborah again became pregnant, resulting in the birth of Trevor. Steven argued to the court that Trevor was conceived during the time the parties had sexual intercourse, while Deborah argued conception had occurred through the last attempt at artificial insemination.
The trial court made a specific finding that Trevor had been conceived through artificial insemination, not sexual intercourse. Notwithstanding this finding, the trial court concluded public policy required that it not apply section 7613, subdivision (b). Instead the trial court recognized Steven as Trevor's natural father to be accorded all rights attendant thereto, concluding that Deborah was estopped from relying on section 7613, subdivision (b).
Pursuant to California Rules of Court, Special Rules for Trial Courts, rule 5.180, Deborah appealed from the interlocutory ruling of paternity. Given the clear language of section 7613, subdivision (b), and the finding by the trial court that insemination occurred artificially, we conclude the court erred. We reverse the judgment and order judgment entered in favor of Deborah D.
DISCUSSION
Section 7613 is part of the Uniform Parentage Act (UPA), as it was adopted in California, which "`provides a comprehensive scheme for judicial determination of paternity, and was intended to rationalize procedure, to eliminate constitutional infirmities in then existing state law, and to improve state systems of support enforcement.' [Citations.]" (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050, 43 Cal. Rptr.2d 445, 898 P.2d 891.) Under the UPA, only a "natural father" or an adoptive father may have the rights, privileges, duties, and obligations incident to a parent-child relationship. (§ 7601.)
As previously noted, the trial court expressly found that Trevor had been conceived through the second attempt at artificial insemination with semen provided by Steven. The parties had stipulated during trial that Steven had provided the semen to a licensed physician for that purpose. The court made no finding with regard to the parties' marital status, but the undisputed *485 evidence was that Steven was married to another at the time of donating his sperm and that Deborah was divorced, and there was no evidence that the parties were ever married to each other. Thus, each element of section 7613, subdivision (b), was satisfied.
Nevertheless, the trial court ruled that the statute did not preclude a finding of paternity, based on estoppel. Its statement of decision reflects the following reasoning:
"[Deborah] was artificially inseminated a second time on April 8, 1999. [Steven] accompanied [Deborah] to the insemination with [Steven's] sperm and held her hand during the procedure. [Deborah] learned that she was pregnant as a result of that insemination with Trevor shortly thereafter. [Steven] attended Trevor's first ultra-sound with [Deborah], and witnessed Trevor's heartbeat for the first time with [Deborah]. [Steven] attended a joint therapy session with [Deborah] to discuss issues relating to their child.
"It was stipulated that [Deborah] became pregnant with [Steven's] sperm in April 1999, and that the pregnancy resulted in the birth of the child who is the subject of these proceedings. Trevor ... was born on January 5, 2000, at St. John's Hospital in Santa Monica, California.
"[Deborah] called [Steven] on January 5, 2000, and exclaimed `Congratulations! You're a father!' [Steven], who was on location for his employment, yelled out to his co-workers that he had a son. [Steven] came to the hospital the very day that [he] learned Trevor was born.
"Trevor's middle name is [Steven's] last name, and [Steven] and [Deborah] discussed that the child would have [Steven's] last name as part of the child's name prior to the child's birth. In fact, Trevor refers to [Steven] as `Daddy Steve' and [Deborah] has referred to [Steven] as Trevor's father. After Trevor's birth, [Deborah] invited [Steven] to participate in an infant CPR class at [Deborah's] home.
"Family Code section 7613(b) does not preclude a finding of paternity because the doctrine of estoppel prevents [Deborah] from denying [Steven] his rights as a biological father. [Deborah's] conduct clearly reflects that [she] intended [Steven] to be Trevor's father and to be a part of Trevor's life. It is also clear that [Steven] relied on [Deborah's] conduct to form his expectation of ongoing contact and visitation. [Steven] also relied on [Deborah's] conduct in agreeing to father Trevor often traveling thousands of miles to attempt conception with [Deborah], and be part of Trevor's life.
"Other than [Steven], there is no presumed or biological father. [Steven] is the genetic father; to find that [Steven] is not the father would deny to the child the emotional and financial support a second parent can provide. In the case at hand, where the parties actively tried to conceive a child over a period of months, it is inappropriate not to conclude that [Steven] is Trevor's father.
"Furthermore, it is the policy of California to favor a finding of paternity and require a father to assume his support obligations.
"Weighing the aforementioned factors, which include but are not limited to the facts described above, and determining the child's best interests, it is evident that [Deborah] is estopped from denying [Steven's] paternity. Any other result would be contrary to the public policy of this state."
*486 Deborah contends that the relevant public policy is clearly set forth in section 7613, subdivision (b). We agree.
It is apparent that the trial court placed great reliance on the fact that Deborah knew Steven was the donor of the sperm; after the initial impregnation failed, the parties engaged in sexual intercourse in an attempt to impregnate Deborah; that Deborah acknowledged Steven as the father of Trevor; and that she allowed Steven to celebrate in the joy of Trevor's birth. But there is nothing in section 7613, subdivision (b), which precludes its application given these facts.
The Legislature has expressly declared that "[t]here is a compelling state interest in establishing paternity for all children." (§ 7570.) The public policy with regard to the rights of sperm donors has also been established by the Legislature. (Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 397-398, 224 Cal.Rptr. 530.) "Our Legislature has already spoken and has afforded to unmarried women a statutory right to bear children by artificial insemination (as well as a right of men to donate semen) without fear of a paternity claim, through provision of the semen to a licensed physician." (Id. at pp. 397-398, 224 Cal.Rptr. 530.) The Legislature "has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support. Subdivision (b) states only one limitation on its application: the semen must be `provided to a licensed physician.'" (Id. at p. 392, 224 Cal.Rptr. 530.)
Steven contends that we should look beyond the words of the statute to find legislative intent for a public policy favoring a finding of paternity where, as here, the mother was in an intimate relationship with a known donor and also attempted to conceive naturally, albeit unsuccessfully. Steven cites no evidence of such a legislative intent, but suggests that we look to our own perception of public policy, considering the best interests of the child, as he claims the appellate court did in Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 95 Cal.Rptr.2d 864 (Johnson). But that is not our role, given the clear language of section 7613, subdivision (b). Nor did the court in Johnson usurp the role of the Legislature.
There, the court was called upon to determine whether a child born of artificial insemination was entitled to medical information about the donor, despite Cryobank's nondisclosure contract with the donor. In concluding the agreement regarding confidentiality was against public policy, the court was able to discern legislative intent from reference to the language of subdivision (a) of section 7613.[2] (See Johnson, supra, 80 Cal.App.4th at pp. 1066-1067, 95 Cal.Rptr.2d 864.) In doing so, the court relied upon the words of the statute, not upon the justices' own perception of public policy. (See ibid.)
It is for the Legislature, not the courts, to choose between conflicting public policies. (Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 129, 216 P.2d 825.) "The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function. *487 [Citation.]" (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53, 51 Cal.Rptr.2d 837, 913 P.2d 1046.)
The fundamental objective of statutory interpretation is to ascertain and effectuate the intent of the lawmakers. (Kimmel v. Goland (1990) 51 Cal.3d 202, 208, 271 Cal.Rptr. 191, 793 P.2d 524.) We begin (as did the Johnson court) with the words of the enactment, giving effect to its "plain meaning," before resorting to extrinsic aids. (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672; see Johnson, supra, 80 Cal. App.4th at pp. 1066-1067, 95 Cal.Rptr.2d 864.) "Where ... legislative intent is expressed in unambiguous terms, we must treat the statutory language as conclusive; `no resort to extrinsic aids is necessary or proper.' [Citations.]" (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1120, 81 Cal.Rptr.2d 471, 969 P.2d 564.)
The words of section 7613, subdivision (b) are clear. (See Robert B. v. Susan B. (2003) 109 Cal.App.4th 1109, 1113, 135 Cal.Rptr.2d 785.) There can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated semen, so long as it was provided to a licensed physician. (Fam.Code, § 7613, subd. (b).) The statute does not make an exception for known sperm donors, who will be denied a paternity claim so long as the semen was provided to a licensed physician for insemination of an unmarried woman. (See Jhordan C. v. Mary K., supra, 179 Cal.App.3d at pp. 394, 396, 224 Cal.Rptr. 530 [close relationship considered, however, where sperm was not provided through a physician].) "[A] woman who ... wishes to choose her donor can still obtain statutory protection from a donor's paternity claim through the relatively simple expedient of obtaining the semen ... from a chosen donor ... through a licensed physician." (Id. at p. 394, 224 Cal. Rptr. 530.)
And there is no indication that the Legislature intended to establish a public policy against donating sperm for use by a woman who is not the donor's wife, even where there is an intimate relationship. (Cf., Hecht v. Superior Court (1993) 16 Cal.App.4th 836, 853-854, 20 Cal.Rptr.2d 275 [testamentary gift of frozen sperm to decedent's girlfriend upheld].)
Steven contends that the Legislature could not have anticipated that a sperm donor might be the intimate friend and sexual partner of the mother, and he urges us to "fill in the blanks" left by the Legislature. Our authority, however, "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted." (Code Civ. Proc., § 1858.)
The courts are often called upon to construe statutes in factual settings not contemplated by the Legislature, and in doing so, may not disregard the statute and decide the case according to other criteria, such as the court's own "sense of the demands of public policy." (Johnson v. Calvert (1993) 5 Cal.4th 84, 89, 19 Cal. Rptr.2d 494, 851 P.2d 776.) In any event, it is doubtful that the Legislature did not anticipate a close relationship between donor and mother. The first reported artificial insemination took place in 1799, and artificial insemination by donor was practiced widely by the 1930s and 1940s. (See Hill, What Does It Mean to Be a "Parent"? The Claims of Biology As the Basis for Parental Rights (1991) 66 N.Y.U. L.Rev. 353.)
Further, it is presumed that the Legislature knows how to create an exception to the provisions of a statute, and that where it does not create an exception, it is presumed that it did not intend to do so. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, *488 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.) If the Legislature deemed it appropriate to exempt men who donate sperm through a licensed physician for use by their unmarried sexual partners, it would have done so.
Deborah also contends that the court's finding of estoppel is unsupported by substantial evidence, and that there can be no estoppel as a matter of law in a case such as this. As Deborah points out, "courts have refused to recognize or expand the doctrines of `de facto parenthood,' equitable estoppel, in loco parentis, guardianship, or the contractual right to parenthood, to grant custody rights to a nonparent who was otherwise excluded by law from paternity rights. [Citation.]" (Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 192, 98 Cal. Rptr.2d 44 (Dunkin); see also In re Marriage of Lewis & Goetz (1988) 203 Cal. App.3d 514, 519-520, 250 Cal.Rptr. 30.)
But we need not address these arguments. The trial court acted sua sponte in relying on estoppel to reach the result it apparently desired. Estoppel was not an issue presented or relied upon by either party at trial. Steven's claim was based entirely upon his contentions that public policy favored paternity in known donor cases, that conception was accomplished by sexual intercourse, and that Deborah would be unable to prove that it was the result of artificial insemination.
DISPOSITION
The judgment is reversed and the matter is remanded with directions to enter judgment in favor of Deborah. Deborah shall have costs on appeal.
We concur: EPSTEIN, P.J. and CURRY, J.
NOTES
[1] All further statutory references will be to the Family Code, unless otherwise stated.
[2] The court construed the following language: "`All papers and records pertaining to the insemination,'" whether part of the permanent record of a court or of a file held by the supervising physician and surgeon or elsewhere, are subject to inspection only "`upon an order of the court for good cause'" shown. (Johnson, supra, 80 Cal.App.4th at p. 1066, 95 Cal.Rptr.2d 864.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325263/ | 274 S.C. 357 (1980)
264 S.E.2d 601
A. E. CARMICHAEL, Jr., Appellant,
v.
The DAN NANCE CORPORATION, Philip Gray; John H. Nance; Donnie W. Nance, Jr.; Sarah N. Watts; Evelyn Benton; Virginia N. Cooper; Thomas E. Nance; Mamie Nance; Marjorie N. Benton; Ester N. Gray; and Gertrude N. Hayes, Individually and as liquidating trustees of the Dan Nance Corporation, Respondents.
21166
Supreme Court of South Carolina.
March 6, 1980.
*358 James P. Stevens, of Stevens, Stevens & Thomas, Loris, and Benny R. Greer, of Greer & Milling, Darlington, for appellant.
Howell V. Bellamy, Jr., of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for respondents.
March 6, 1980.
LEWIS, Chief Justice:
The basic question in this appeal is whether appellant properly exercised his option to renew a lease of real estate. The lower court held that appellant failed to exercise the option to renew the lease and denied his request for specific performance. Appeal is from that order.
On October 9, 1962, a lease agreement was entered into between Phillips Petroleum Company, as Lessee, and Dan W. Nance and his wife, as Lessors, wherein a lot in Myrtle Beach, South Carolina, was leased for a term of fifteen (15) years, with the option to renew the lease for three (3) successive five-year terms, provided a written notice was given to the lessor by the lessee thirty (30) days before the expiration of any term sought to be extended.
The lease provided that "to exercise any of these options, the Lessee shall give the Lessor notice in writing at least thirty (30) days before the expiration of the primary term or the extended term, as the case may be." The agreement further provided that all notices required or given "shall be considered as properly given if delivered in writing, personally, or sent by certified United States mail, postage prepaid with return receipt requested, addressed to Lessor" at 406 7th Avenue North, Myrtle Beach, South Carolina.
On January 18, 1967, Phillips Petroleum Company, the original Lessee, was notified that the leased property had been sold to the respondent, The Dan Nance Corporation, and that all future correspondence and rental payments should be directed to that corporation at the above address in Myrtle Beach as shown in the lease agreement.
*359 The Phillips Petroleum Company assigned its interest, as Lessee, in the lease to appellant on August 24, 1977; and duly notified the respondent, The Dan Nance Corporation, of the assignment.
Subsequently, appellant sought to renew the lease for an additional five (5) year term and it is conceded that, in order to do so, he was required, by the terms of the lease, to give notice on or before January 30, 1978 of the exercise of the option to renew.
It is further agreed that the only notice relied upon by appellant was the alleged delivery of a written notice to 406 7th Avenue North, Myrtle Beach, South Carolina, the address stated in the lease agreement, and that, as stated at page 25 of the respondents' brief: "..., if Mr. Carmichael [appellant] had delivered to 406 7th Avenue North a written notice on the 30th day of January, this would have been effective to exercise the opinion." Since appellant had a right to give notice of his election to renew the lease by delivering such notice personally to 406 7th Avenue North and he claims to have relied solely on personal delivery of the notice, we need only consider whether notice was properly effected in that manner.
Since this is an equity case, tried by the judge alone, this court has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence and may reverse factual findings by the lower court, when this court is satisfied that such findings are against the preponderance of the evidence.
The sole question for determination then is whether the finding by the trial judge, that renewal of the lease was precluded by the failure of appellant to deliver the required renewal notice to the address set forth in the lease, is supported by the preponderance of the evidence. We think not and, accordingly, reverse.
While the testimony is conflicting, the record supports the reasonable inference that appellant, on January 30, 1978, at *360 approximately 4:30 p.m., went to 406 7th Avenue North, Myrtle Beach, South Carolina, the location designated in the lease for the giving of written notice of renewal, for the purpose of exercising the option to renew the lease for another five (5) year term.
It is undisputed that neither the lessors (respondents) nor any agent or servant were present at the designated address on January 30, 1978, nor had the lessors occupied those premises for several years prior thereto; and no instructions were left at the designated address as to where any representative of respondents could be found. Since no one could be found at the designated address, appellant left at the door of the apartment a copy of written notice to respondents of the intent to renew the lease; and on the following day [January 31st] mailed a copy of the notice to respondents.
It is further inferable from the testimony that appellant had no notice of any other address to which personal delivery of the written renewal notice could have been made.
We think the greater weight of the evidence sustains the conclusion that appellant, on January 30, 1978, went to the place designated for the purpose of giving notice of his election to renew the lease, but was prevented from personal delivery of the notice by the absence of the lessors from the designated place of performance. Since the failure of appellant to give written notice of his election to renew the lease was due to the fault of the lessors (respondents), they will not be permitted to take advantage of appellant's default and declare the lease at an end. Montague Corporation v. Burton Lumber Company, 136 S.C. 40, 134 S.E. 147.
The basic factual issue, to which most of the testimony at the trial was addressed, was whether appellant went to 406 7th Avenue North on January 30, 1978. Appellant testified that he did go to the designated address on that date, while respondents sought to show that appellant actually attempted to exercise his option to renew *361 the lease on January 31st, the day after the time to renew had expired. Significantly, although the trial judge held that appellant failed to deliver a written notice to the agreed address, he did find that appellant "did attempt to locate 406 7th Avenue in Myrtle Beach on the 30th day of January." This latter finding by the trial judge is entirely consistent with appellant's testimony that he was ready, willing and able to comply with the requirements for renewal of the lease and sought to timely do so. Regardless however, it is undisputed that it would have been impossible to give personal notice to the lessors at 406 7th Avenue North for, admittedly, they had not been present at that address for several years. Any attempt to give the lessors timely personal notice, therefore, at the designated address would have been a futile act, which equity does not require. This principle was thus stated in Elliott v. Dew, 264 S.C. 40, 212 S.E. (2d) 421.
Equity will not require the doing of a futile task, nor foreclose the rights of a party from obtaining specific performance for failure to do something which in view of all the facts would have been useless.
Since appellant has shown by the preponderance of the evidence that he effectively complied with the requirements for the renewal of the lease in question, the contrary findings of the lower court are reversed and the case is remanded for the entry of judgment in favor of appellant for specific performance of the lease.
Reversed and remanded.
LITTLEJOHN, NESS and GREGORY, JJ., and JOSEPH R. MOSS, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262120/ | 900 F.Supp. 414 (1995)
BLACKHAWK TENNESSEE, LTD. PARTNERSHIP, a Tennessee Limited Partnership, Plaintiff,
v.
Roger L. WALTEMYER, individually and O'Halloran, Johnson, Waltemyer & Hussey, Defendants.
No. 93-313-CIV-FTM-17D.
United States District Court, M.D. Florida, Fort Myers Division.
April 17, 1995.
*415 *416 Joseph C. Mason, Jr., Anne S. Mason, Mason & Associates, P.A., Clearwater, FL, Frank G. Abernathy, McMackin, Garfinkle, McLemore & Walker, Nashville, TN, for plaintiff.
Paul E. Liles, O'Halloran, Johnson, Waltemyer & Hussey, Ft. Myers, FL, E.E. Edwards, Edwards & Simmons, P.A., Nashville, TN, for Roger L. Waltemyer and O'Halloran, Johnson, Waltemyer & Hussey.
ORDER ON MOTION FOR SUMMARY JUDGMENT
KOVACHEVICH, District Judge.
This cause is before the Court on Defendants' Motion for Summary Judgment and memorandum in support thereof (Dkt. Nos. 37 and 38), and response thereto (Dkt. No. 46).
FACTS AND PROCEDURAL HISTORY
This is an action for fraud and legal malpractice in connection with a commercial real estate closing and the lending of money to a bankrupted debtor. In December of 1991, Hugh Lee Nathurst, III, Debtor, retained Defendant, Roger Waltemyer, to represent him in a bankruptcy filing in the Middle District of Florida. Mr. Waltemyer accepted and undertook such representation, submitting the paperwork, including the schedules signed by Debtor, to the Court to commence a Chapter 11 proceeding. Debtor is the brother of Plaintiff's limited partner.
The bankruptcy schedules filed with the Court list Debtor's fee simple interest in a real estate development called the "Blackhawk" project, as well as a 25% personal property interest in property held in trust known as Lofton's Island.
The Blackhawk development was designed to be a 73 site, single family home project. Debtor experienced difficulty with the development of Blackhawk and was unable to pay the mortgages held by the National Bank of Lee County (NBLC) when they fully matured on December 13, 1990. NBLC held a first mortgage over the Blackhawk property.
Ray C. Nathurst, Davis H. Carr, John M. Stewart, Jr., and Blackhawk-Tennessee, Inc., as general and limited partners, created Blackhawk-Tennessee, Ltd. (Plaintiff) on or about August 16, 1991. The purpose of this limited partnership was to acquire and develop the Blackhawk property. Davis H. Carr withdrew as a limited partner on or about April 3, 1992.
On or about September 6, 1991, Debtor transferred a fee simple interest in Blackhawk to Plaintiff. On October 16, 1991, Plaintiff filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Middle District of Tennessee, Case No. 391-09941, in order to restructure the mortgage on Blackhawk.
The venue of Plaintiff's Tennessee Chapter 11 case was challenged, and the case was transferred to the Middle District of Florida, Case No. 91-16308-9P1. The development was subsequently transferred to Debtor for valid consideration.
On December 10, 1991, Debtor filed a Chapter 11 Bankruptcy Petition in the Middle District of Florida. Defendants handled this bankruptcy action.
NBLC filed a Motion to Dismiss Plaintiff's Chapter 11, which was granted on January 10, 1992. On January 15, 1992, NBLC filed a motion for relief from the automatic stay in Debtor's bankruptcy case seeking permission to foreclose its mortgage on Blackhawk, or be given adequate protection.
Both parties knew that Plaintiff's loan to Debtor required Bankruptcy Court approval. On February 4, 1992, Plaintiff executed a quit-claim deed of the Blackhawk property to Debtor. The mortgage, which indicates Defendant as the preparer and recorder in connection *417 with the closing, contained no condition concerning bankruptcy approval.
At a hearing on February 6, 1992, Defendant, appearing for Debtor, informed the Bankruptcy Court that a loan was being obtained which would allow Debtor to make adequate protection payments and forestall the foreclosure of the mortgage. Debtor orally agreed with counsel for NBLC to adequate protection payment schedule that would stay foreclosure proceedings until July 20, 1992. NBLC required Debtor to pay $35,506.26 for each periodic adequate protection payment. The first payment was due on March 1, the second on March 15, and four subsequent payments were due on the 15th day of April, May, June, and July.
The Bankruptcy Court accepted the agreement and entered an order on February 11, 1992. The order provided that by July 20, 1992, Debtor had to submit a contract for sale of the entire property without meaningful contingencies and which was acceptable to NBLC. If Debtor was unable to comply with the order, then NBLC would be allowed to foreclose.
On February 18, 1992, Plaintiff and Debtor signed a letter of intent that the loan would be at least $600,000.00. Wire instructions for having the adequate protection funds, due on March 1, sent to Debtor for Blackhawk, were sent to Plaintiff on February 28, 1992, at the request of Debtor. Plaintiff provided Debtor with protection payments for March 1 and March 15, although the loan closing was not completed until April 1, 1992.
Plaintiff obtained a loan commitment from the Bank of Nashville which was conditional on the express approval of the Bankruptcy Court enabling Plaintiff to receive super-priority treatment under the Bankruptcy Code. This was also essential to the validity of the Lofton's Island mortgage in Lee County, Florida.
On June 2, 1992, Defendant filed a Motion for Authorization to Obtain Credit for the loan from Plaintiff. At the August 6 hearing, the Bankruptcy Court denied the motion and formally issued its order on August 21, 1992. The case was converted from a Chapter 11 to a Chapter 7 on or about August 10, 1993.
In July 1992, NBLC sought relief from the Bankruptcy stay because Debtor had been unable to comply with the adequate protection order in that he was unable to secure a purchaser for Blackhawk by July 20, 1992. The Court granted relief. Several efforts to hold off foreclosure were considered and attempted, but none was successful. NBLC eventually foreclosed on Blackhawk and extinguished all other interests.
STANDARD OF REVIEW
This Court authorizes summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "At the summary judgment stage the judge's function is not to himself weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-997 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969).
The United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) put to rest any lingering doubts as to the strict requirements of Rule 56, Fed.R.Civ.P. The movant is entitled to entry of a summary judgment only where the other party has failed to articulate evidence as to an essential element of their case. Id. at 322-23, 106 S.Ct. at 2552-53.
*418 DISCUSSION
"Generally, in a claim for legal malpractice, plaintiffs must plead and prove: (1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; (3) the attorney's negligence resulted in and was the proximate cause of loss to the client/plaintiff." Orr v. Black & Furci, P.A., 876 F.Supp. 1270 (M.D.Fla.1995).
Choice of Law
Defendant asserts that the choice of law in this case must be Florida law under the Restatement (Second) Conflict of Laws, and the Florida Supreme Court's adoption of the Restatement's "most significant relationship" analysis. Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980). Since Plaintiff agrees to the resolution of the issues under Florida law, the Court will not address this issue further.
Legal Relationship
Under Florida law, a legal malpractice action requires the plaintiff either to be in privity with the attorney, wherein one party has a legal obligation to another, or alternatively, the plaintiff must be an intended third party beneficiary. Espinosa v. Sparber, Shevin, Shapo, Rosen, and Heilbronner, 612 So.2d 1378 (Fla.1993).
Defendants claim they owed no duty to Plaintiff due to the lack of an attorney-client relationship between the parties. A legal relationship depends on the intent of the "client," not on the actions of the lawyer. Dean v. Dean, 607 So.2d 494 (Fla. 4th DCA 1992).
Section 90.502(1)(b), Florida Evidence Code, defines "client" as any person "who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer." In this instance, a factual dispute exists as to whether Defendants provided Plaintiff with the legal services of: (1) preparing the mortgage documents, (2) recording the mortgage documents after closing, (3) preparing the title work, and (4) forwarding the fully executed title commitment to Plaintiff.
However, Plaintiff's intent that Defendants provide these legal services establishes a sufficient attorney-client relationship between the parties to allow Plaintiffs to pursue a claim for legal malpractice. Defendants' failure to establish that Plaintiff lacked this intent precludes an entry of summary judgment based on an absence of an attorney-client relationship.
Misrepresentation, Fraud, or Negligence
Defendant also claims that the lack of evidence of a fraudulent or misrepresented statement bars summary judgment here. However, Plaintiff asserts that Defendants made several direct and indirect representations upon which Plaintiffs relied to its detriment.
Under Florida law, false statements relied upon to one's detriment are actionable. George Hunt, Inc. v. Wash Bowl, Inc., 348 So.2d 910 (Fla. 2d DCA 1977). Silence can be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading. U.S. v. Prudden, 424 F.2d 1021 (11th Cir.) cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62 (1970).
Defendants' presentation of a signed title commitment absent exclusions for bankruptcy approval and their recording of the unconditional mortgage of the property that was security for the loan induced Plaintiff to believe that bankruptcy approval had been met. All parties indicate their understanding that bankruptcy approval was a requirement for the loan transaction.
However, there remains some dispute as to whether Defendants told Plaintiff that the Bankruptcy Court had approved the loan. The remaining material factual issues in dispute preclude this Court from entering summary judgment for misrepresentations, fraud, and/or negligence.
Proximate Causation to Damages
Finally, Defendants assert that Plaintiff has not sustained any damages as a result of the actions or omissions of Defendants. In response, Plaintiff claims but for Defendants' negligence and misrepresentations regarding the bankruptcy loan approval, *419 they would not have incurred the following damages: (1) Plaintiff is a general unsecured creditor; (2) the validity of Plaintiff's mortgage has been challenged in the bankruptcy case; (3) Plaintiff's insurance for said mortgage has been denied; and (4) Plaintiff has suffered actual damages as a result of Debtor's failure to make payments on its loan. Since proximate causation is normally a factual issue, reasonable minds could differ as to the proximate causation of the damages incurred by Plaintiff.
CONCLUSION
In conclusion, the Court finds that Plaintiff has successfully established: (1) the legal relationship between the parties is at issue; (2) the negligence or fraudulence of Defendants remains in dispute; and (3) the acts or omissions of Defendants proximately caused damage to Plaintiff is in controversy. Accordingly it is
ORDERED that Defendants' Motion for Summary Judgment (Dkt. No. 37) is denied.
DONE and ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262126/ | 26 Cal.Rptr.3d 92 (2005)
127 Cal.App.4th 805
Rocco VERSACI, Petitioner,
v.
The SUPERIOR COURT of San Diego County, Respondent;
Palomar Community College District, Real Party in Interest.
No. D044899.
Court of Appeal, Fourth District, Division One.
March 21, 2005.
Rehearing Denied April 11, 2005.
Review Denied June 8, 2005.
*95 Charles Wolfinger, San Diego, for Petitioner.
No appearance for Respondent.
Currier & Hudson, C. Anne Hudson, El Cajon, Andrea Naested and Ian Garriques for Real Party in Interest.
McCONNELL, P.J.
Rocco Versaci petitions this court for a writ of mandate to compel the San Diego County Superior Court to grant his request for an order requiring the Palomar Community College District (the District) to disclose under the California Public Records Act (the Act) (Gov.Code, § 6250 et seq.)[1] the personal performance goals of its former superintendent, Sherrill Amador, Ed.D., for the 2002-2003 academic year. Versaci contends the trial court erred by finding the goals are not incorporated into the employment contract, which would mandate their disclosure as a matter of law under section 6254.8, and by finding the goals are exempt from disclosure under section 6254, subdivision (c), which applies to personnel files. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2001 the District hired Dr. Amador as its superintendent and President, under a four-year contract beginning the following July, at a starting salary of $162,000. Paragraph No. 4 of the contract provided: "[Dr. Amador] will receive an annual written evaluation by the Governing Board [the Board] no later than May 1 of each year. This evaluation will be based on overall performance and mutually agreed upon goals and objectives established each year prior to July 1 and will also include a mid-term progress meeting. All evaluations will be held in a closed session." The contract also entitled Dr. Amador to a 5 percent raise and a one-year contract extension annually subject to a positive evaluation by the Board.
In a June 2002 closed session Dr. Amador and the Board mutually established her personal performance goals for the 2002-2003 academic year. The District included the goals in her personnel file and maintained their confidentiality. Between January and May 2003 the Board held closed sessions to evaluate Dr. Amador's performance. At a May 13 open session the Board reported that Dr. Amador's overall evaluation was satisfactory, and in light of budgetary constraints she agreed to forgo one-half of the raise to which she was entitled. The Board's minutes also stated: "The Board cannot ignore the current situation that needs to be addressed by [Dr. Amador], with the support of the ... Board. [¶] Accordingly, the Board directs [Dr. Amador] to focus on building relationships and improving morale, with progress to be monitored on an ongoing basis."
At a May 27, 2003 open session the Board voted three to two to extend Dr. Amador's contract through June 2007 and to increase her compensation by 2.5 percent. The dissenting trustees unsuccessfully sought to defer the vote pending further evaluation of her performance in closed session.
In June 2003 Versaci asked the District, under the Act, for "a copy of the eleven annual job goals" of Dr. Amador for the *96 2002-2003 academic year.[2] The District denied the request based on provisions of the Act and Dr. Amador's right of privacy under article I, section 1 of the California Constitution. It also denied Versaci's subsequent request.
In November 2003 Versaci petitioned the superior court for a writ of mandate to compel disclosure of the information under the Act. Versaci argued section 6254.8 mandates disclosure of Dr. Amador's performance goals because they were terms of her employment contract, and alternatively, there is no exemption under the Act allowing the District to withhold the information. Versaci asked the court to conduct an in camera review of the "records of the eleven annual job goals."
In a tentative ruling, the court denied the petition on the grounds the information was not part of the employment contract, and it is exempt from disclosure as a personnel record under section 6254, subdivision (c), and disclosure would invade Dr. Amador's constitutional right of privacy. After oral argument, the court confirmed its tentative ruling and entered a final order denying the petition. The court did not address Versaci's request for an in camera review.
On November 13, 2003, Dr. Amador announced her retirement from the District, effective July 1, 2004.
DISCUSSION
I
Standard of Review
"`Pursuant to section 6259, subdivision (c), an order of the trial court under the [Act], which either directs disclosure of records by a public official or supports the official's refusal to disclose records, is immediately reviewable by petition to the appellate court for issuance of an extraordinary writ.... The standard for review of the order is "an independent review of the trial court's ruling; factual findings made by the trial court will be upheld if based on substantial evidence."' [Citation.] In contrast, the interpretation of the [Act] and its application to undisputed facts present questions of law subject to de novo appellate review." (CBS Broadcasting, Inc. v. Superior Court (2001) 91 Cal.App.4th 892, 905-906, 110 Cal.Rptr.2d 889.)
II
The Governing Statute
California's Constitution contains an explicit right of privacy that operates against private and governmental entities. (Art. I, § 1; Gilbert v. City of San Jose (2003) 114 Cal.App.4th 606, 613, 7 Cal. Rptr.3d 692.) "Constitutional privacy interests are not absolute, however. They must be balanced against other important interests." (Gilbert v. City of San Jose, at p. 613, 7 Cal.Rptr.3d 692.)
The Act provides for the inspection of public records maintained by state and local agencies. (§ 6253, subd. (a).) "The Legislature enacted the [Act] in 1968 to give the public access to information in possession of public agencies in furtherance of the notion that government should be accountable for its actions and, ... to verify accountability, individuals must have *97 access to government files. [Citation.] But `Recognition of the importance of preserving individual privacy is also evident in [the Act]. The [Act] begins with the phrase: "In enacting this chapter, the Legislature [is] mindful of the right of individuals to privacy...." [Citation.]' [Citation.] `Disclosure of public records thus involves two fundamental yet competing interests: (1) prevention of secrecy in government; and (2) protection of individual privacy.'" (Gilbert v. City of San Jose, supra, 114 Cal.App.4th at p. 610, 7 Cal. Rptr.3d 692.)
The Act defines "public record" as "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency." (§ 6252, subd. (e).) "The definition is broad and `"`intended to cover every conceivable kind of record that is involved in the governmental process[.]'"'" (Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006, 131 Cal.Rptr.2d 553.)
"[A]ll public records are subject to disclosure unless the Legislature has expressly provided to the contrary." (Williams v. Superior Court (1993) 5 Cal.4th 337, 346, 19 Cal.Rptr.2d 882, 852 P.2d 377.) Under section 6254 an agency may invoke an exemption for several types of public records from disclosure, including "[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." (§ 6254, subd. (c).) Under section 6255, the "catchall exception" (Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1045, 13 Cal.Rptr.3d 517), an agency may withhold public records even if no express exemption is applicable, if it can demonstrate "that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." (§ 6255, subd. (a).)
Sections 6254, subdivision (c) and 6255, however, are inapplicable in the context of a public employment contract. Section 6254.8 provides: "Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255."
III
The Court Correctly Found Dr. Amador's Personal Performance Goals Are Not Part of the Employment Contract Within the Meaning of Section 6254.8
Versaci contends the court erred by finding Dr. Amador's performance goals are not part of the employment contract subject to disclosure as a matter of law under section 6254.8. His theory is that because paragraph No. 4 of the employment contract refers to goal setting in conjunction with Dr. Amador's yearly performance evaluations, the written goals are "key terms" of the contract that must be disclosed.
The Act does not define "employment contract," and it appears there are only two published opinions discussing Government Code section 6254.8, neither of which concerns the issue here. (See Braun v. City of Taft (1984) 154 Cal.App.3d 332, 201 Cal.Rptr. 654; Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500, 5 Cal.Rptr.3d 847.) Versaci relies on Civil Code section 1642, which applies to contracts generally, and provides that "[s]everal contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together."
"It is a familiar rule ... that where several papers covering the same *98 subject matter are executed by ... the same parties ..., all are to be considered together, and with the same effect as if all had been incorporated in one document." (McAuliff v. McFadden (1919) 42 Cal.App. 505, 511, 183 P. 870, citing Civ.Code, § 1642.) Civil Code section 1642 "is most frequently applied to writings executed contemporaneously, but it is likewise applicable to agreements executed by the parties at different times if the later document is in fact a part of the same transaction." (Body-Steffner Co. v. Flotill Products (1944) 63 Cal.App.2d 555, 560, 147 P.2d 84.) "The contract need not recite that it `incorporates' another document," but "[f]or the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal." (Shaw v. Regents of University of California (1997) 58 Cal. App.4th 44, 54, 67 Cal.Rptr.2d 850.)
Whether a document is incorporated into the contract depends on the parties' intent as it existed at the time of contracting. The parties' intent must, in the first instance, be ascertained objectively from the contract language. (Shaw v. Regents of University of California, supra, 58 Cal.App.4th at p. 54, 67 Cal. Rptr.2d 850.) However, "[t]he use of extrinsic evidence to show [whether] several written instruments were intended to constitute a single contract does not involve a violation of the parol evidence rule." (Meier v. Paul X. Smith Corp. (1962) 205 Cal.App.2d 207, 219, 22 Cal.Rptr. 758.) The applicability of Civil Code section 1642 is a question of fact for the trial court, and the appellate court will affirm the court's resolution if it is supported by substantial evidence. (Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1675, 53 Cal. Rptr.2d 515; Kwikset Locks, Inc. v. Stewart Commissaries (1964) 225 Cal.App.2d 146, 148-149, 37 Cal.Rptr. 248.)
Versaci contends the "annual goals for 2002-2003 were mutually enforceable terms of [Dr. Amador's] employment contract when she and the Board agreed on them in June 2002," because "[i]f the [Board] found her performance satisfactory but refused to grant her a pay raise and contract extension, she clearly has a breach of contract claim based on [its] promise to pay for her performance of the goals." That analysis is faulty, however, because Dr. Amador's evaluations were based on her "overall performance" in addition to the agreed goals. Performance of the goals, standing alone, did not automatically entitle Dr. Amador to increased contract benefits.
Additionally, Versaci submits section 6254.8 is applicable because Dr. Amador's personal goals constitute compensation terms typically included in an employment contract, and she cannot shield them from public scrutiny by placing them in her personnel file. In support, he cites an Attorney General opinion (68 Ops.Cal.Atty. Gen. 73 (1985)), in which a city manager determined the amounts of executive managers' bonuses based on his private evaluation of their performance. The city divulged the number of executives in the program, the salary range for each executive, the total cost of the awards program and the average percentage amount for all the awards, but it withheld the individual amounts of the bonuses and reasons for awarding them.
The city justified its nondisclosure on grounds the executives who received lesser awards may be embarrassed and disclosure may jeopardize the benefits of candid disclosure in the confidential evaluation process. (68 Ops.Cal.Atty.Gen., supra, at p. 73.) The Attorney General, without any analysis of section 6254.8, concluded that "[e]ach bonus constitutes `wages' and forms part of the employment contract," *99 and "any record specifying the amount of the bonus or the exceptional services for which the bonus is paid manifests provisions of the executive's employment contract within the scope of section 6254.8." (68 Ops.Cal.Atty.Gen., supra, at p. 75.)
Here, in contrast, there was no secrecy regarding Dr. Amador's compensation. Rather, the employment contract set forth the amount of her salary and the method for calculating any future salary increases, and the Board announced in open session the result of its evaluations, whether it found her performance satisfactory or granted a pay raise or contract extension. Versaci does not contend the Act mandates disclosure of the evaluations conducted in closed session.
Versaci's reliance on another Attorney General opinion (63 Ops.Cal.Atty.Gen. 215 (1980)) is likewise misplaced. In that opinion, the issue was whether a provision of the Ralph M. Brown Act (the Brown Act) (Gov.Code, § 54950 et seq.) required a hospital board to report at its next public meeting action taken in executive session to set the compensation of an administrator. The Attorney General answered the question in the negative, but went on to say, "that compensation, as an integral part of the hospital administrator's employment contract, would still be a matter of public record under section 6254.8." (63 Ops.Cal.Atty.Gen., supra, at p. 216.) Again, Dr. Amador's yearly compensation was disclosed.
Braun v. City of Taft, supra, 154 Cal. App.3d 332, 201 Cal.Rptr. 654, is also unavailing. In Braun, a city councilman (Braun) was investigating purported irregularities in the city's appointment of a firefighter (Polston) to transit administrator. After the city manager refused to confirm or deny the appointment, Braun reviewed Polston's personnel file and released to the press copies of two letters concerning the appointment and its rescission and the "face sheet" of Polston's salary card, which was modified by whiting out "transit administrator" and writing "firefighter" over it. (Id. at p. 339, 201 Cal. Rptr. 654.) The face sheet also revealed information not germane to Braun's investigation, such as Polston's telephone number, address, Social Security and credit union numbers and birth date.
Polston filed a grievance against Braun for invasion of privacy, which the city council refused to consider in a hearing. The council, however, enacted a resolution censuring Braun for disclosing the letters and salary card. Braun then petitioned the superior court for a writ of mandate commanding the city to set aside its censure. The court ruled the records were not within the personnel file exemption and were subject to disclosure under the Act. (Braun v. City of Taft, supra, 154 Cal.App.3d at p. 340, 201 Cal.Rptr. 654.)
The appellate court upheld the ruling. It held the letters were subject to disclosure under section 6254.8 as they "manifested [Polston's] employment contract." (Braun v. City of Taft, supra, 154 Cal. App.3d at p. 344, 201 Cal.Rptr. 654.) The court concluded that "[b]ecause the letters regarded business transactions and contained no personal information, the [lower] court properly ordered disclosure of the letters." (Ibid.) The court rejected the city's argument the personnel exemption applied because the letters were part of the personnel file and their disclosure would embarrass him. (Id. at pp. 338-339, 341-342, 344, 201 Cal.Rptr. 654.)
The court expressed concern about personal information on the face sheet of Polston's salary card, but stated it was "reluctant to reverse on [that] limited ground." (Braun v. City of Taft, supra, 154 Cal.App.3d at p. 345, 201 Cal.Rptr. 654.) In concluding disclosure did not violate *100 the Act's personnel records exception (§ 6254, subd. (c)), the court explained: "The data listed on the card was not in any way embarrassing. One's telephone number and address, although personal, are seldom secret. There is nothing in the record to show that such information was not available through a city directory or telephone book." (Braun v. City of Taft, supra, 154 Cal.App.3d at p. 345, 201 Cal. Rptr. 654.) The court added that "[f]ew persons would find interest in [the employee's] Social Security and credit union numbers, or birth date." (Ibid.)
Braun does not concern the issue here, whether the employment contract's reference to Dr. Amador's goals constituted an incorporation by reference. Versaci has submitted no authority for the proposition an employee's personal performance goals are ordinarily included in a public employment contract. Further, as noted in Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th 1500, 1512, 5 Cal. Rptr.3d 847, "Braun was decided before the spread of identify theft, and the current widespread and serious concern for the privacy of an individual's financial data. Identity thieves today would have a great deal of interest in an individual's Social Security number and other identifying financial data."
We conclude Dr. Amador's personal performance goals are not part of the contract, and thus section 6254.8 is inapplicable. The mere reference in paragraph No. 4 of the employment contract to future goal setting in conjunction with Dr. Amador's evaluation process does not clearly and unequivocally evidence the parties' intent to incorporate the yet to be determined goals into the contract. Versaci's position that essentially any topic a contract mentions is incorporated therein is unsupported by any authority and would lead to absurd results. Indeed, paragraph No. 4 discusses goals and evaluations, the latter of which Versaci concedes are exempt from disclosure under the Act. He presents no persuasive theory for treating goals and evaluations differently insofar as the incorporation question is concerned.
Moreover, the parties' intent is shown by paragraph No. 14 of the contract, which states it "may be amended by mutual agreement of the parties, memorialized in writing, and executed by Dr. Amador and the ... Board." The District produced evidence the parties never amended the contract to include Dr. Amador's personal performance goals. Further, Dr. Amador submitted a declaration that stated she specifically did not intend to expose her personal performance goals to public scrutiny, and thus we may infer she did not intend that they be incorporated into the contract and subject to disclosure as a matter of law. Versaci produced no extrinsic evidence suggesting the parties did intend to include them as contract terms.
IV
The Court Correctly Found Dr. Amador's Personal Performance Goals Are Exempt From Disclosure Under Section 6254, Subdivision (c)
Versaci also contends the court erred by finding Dr. Amador's performance goals are exempt from disclosure under section 6254, subdivision (c). We are unpersuaded.
The Act was modeled after the federal Freedom of Information Act (FOIA) (5 U.S.C. § 552 et seq.), and thus the "`legislative history and judicial construction of the FOIA ... `serve to illuminate the interpretation of its California counterpart.'" (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338, 283 Cal.Rptr. 893, 813 P.2d 240.)
*101 "[B]oth the FOIA and the Act expressly recognize that the public's right to disclosure of public records is not absolute." (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1017, 88 Cal.Rptr.2d 552.) "`[O]ne does not lose his [or her] right to privacy upon accepting public employment....'" (New York Times Co. v. Superior Court (1997) 52 Cal.App.4th 97, 100, 60 Cal.Rptr.2d 410.) Accordingly, subdivision (c) of section 6254 gives a public agency discretion to withhold "[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." The FOIA's exemption 6 (Exemption 6) is substantively identical. (5 U.S.C. § 552(b)(6).)
Courts apply a three-step analysis in determining whether Exemption 6 applies. As a threshold matter, the court must determine whether the records sought constitute a personnel file, a medical file or other similar file. If so, the court must determine whether disclosure of the information would "compromise substantial privacy interests; if privacy interests in given information are de minimis disclosure would not amount to a `clearly unwarranted invasion of personal privacy,' [citation], in light of FOIA's broad policy favoring disclosure." (Ripskis v. Dept. of Housing and Urban Development (D.C.Cir.1984) 746 F.2d 1, 3 (Ripskis).) Lastly, the court must determine whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure. (Ibid.; see also New York Times Co. v. Superior Court, supra, 52 Cal.App.4th at p. 104, 60 Cal.Rptr.2d 410 ["Section 6254, subdivision (c), allows for a weighing of interests by the trial court"].) "`Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the [FOIA].' [Citations.] The burden is on the agency to persuade the court that the exemption is appropriate." (Ripskis, supra, 746 F.2d at p. 3.) Further, exceptions to the general rule of disclosure are construed narrowly. (New York Times, supra, at p. 104, 60 Cal.Rptr.2d 410.)[3]
The "`primary concern of Congress in drafting Exemption 6 was to provide for the confidentiality of personal matters.'" (United States Dept. of State v. Washington Post Co. (1982) 456 U.S. 595, 599-600, 102 S.Ct. 1957, 72 L.Ed.2d 358 (Washington Post).) To qualify for protection under the exemption, however, the documents sought need not contain "intimate details" or "highly personal" information. Rather, the threshold requirement is minimal and "nonintimate information about a particular individual which happens to be contained in a personnel or medical file can be withheld if its release would constitute a clearly unwarranted invasion of personal privacy." (Id. at p. 601, 102 S.Ct. 1957.) In Washington Post, the court held Congress did not intend "to limit Exemption 6 to a narrow class of files containing only a discrete kind of personal information," and rather, the "`exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual.'" (Id. at p. 602, 102 S.Ct. 1957.)
*102 It is undisputed that employee performance evaluations fall within the ambit of Exemption 6. (Ripskis, supra, 746 F.2d at p. 3; Celmins v. U.S. Dept. of Treasury (D.D.C.1977) 457 F.Supp. 13, 15.) "In discussing the general attributes of a personnel file, the United States Supreme Court has stated that an individual's personnel file generally contains `"vast amounts of personal data,"' including `... results of examinations [and] evaluations of his [or her] work performance.' The court noted that access to personnel files is `drastically limited ... only to supervisory personnel directly involved with the individual....'" (Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th at p. 1515, 5 Cal.Rptr.3d 847, citing Department of the Air Force v. Rose (1976) 425 U.S. 352, 369, 377, 96 S.Ct. 1592, 48 L.Ed.2d 11.)
Versaci concedes Dr. Amador's evaluations are not subject to disclosure, but he asserts her personal performance goals, on which her evaluations were in part based, must be disclosed because the District did not dispute the goals related to her official duties. In Metropolitan Life Ins. Co. v. Usery (D.D.C.1976) 426 F.Supp. 150, 168, however, the court held "personal preferences and goals," as well as evaluations, are "similar" files within the meaning of Exemption 6, even when they do not contain derogatory information, "in that they reflect highly personal details about ... employees." We agree, and conclude Dr. Amador's personal performance goals constitute a personnel file or other "similar" file within the meaning of section 6254, subdivision (c).
Further, we conclude disclosure of Dr. Amador's personal performance goals would "compromise substantial privacy interests." (Ripskis, supra, 746 F.2d at p. 3.) In Metropolitan Life Ins. Co. v. Usery, supra, 426 F.Supp. at page 168, the court explained that the "disclosure of negative comments or information about an employee on these subjects [including personal preferences and goals] could be quite embarrassing and painful to the employee. While many of the comments and much of the information are favorable or neutral, [Exemption 6] was designed to protect individuals from a wide range of embarrassing disclosures, not just the disclosure of derogatory information. Indeed, the disclosure of favorable information could place the employee in a very embarrassing position with other, possibly jealous, employees."[4] (Fn.omitted.)
Turning to the final prong of our analysis, weighing the competing interests, we must determine "the extent to which disclosure of the requested item of information will shed light on the public agency's performance of its duty." (Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal. App.4th at p. 1519, 5 Cal.Rptr.3d 847.) Versaci contends that disclosing Dr. Amador's personal performance goals "allows public review and comment on relevant aspects of [her] performance over the year." As the District points out, however, the public interest in Dr. Amador's performance is moot in light of her retirement *103 effective July 1, 2004.[5]
Versaci also contends disclosure of Dr. Amador's personal performance goals would allow the public to evaluate the trustees' performance in giving her satisfactory evaluations, raises and contract extensions, and her retirement does not render that issue moot. Versaci asks, "How can the public intelligently decide whether to support or oppose the trustees at the next election without knowing what goals they were using?" The public, of course, has a legitimate interest in how the trustees conduct the District's business and manage public revenues. We may consider, however, whether the public interest can be substantially advanced by means other than the requested disclosure. (Ripskis, supra, 746 F.2d at p. 3.)
Under the employment contract, Dr. Amador's evaluations were based on her "overall performance" in addition to her personal performance goals. The District produced evidence that in open session the Board adopted numerous documents under which the District is run, including a "Strategic Plan," "Annual Implementation Plans" and "Board Goals," and the documents are available to the public. Further, as the District's Superintendent, Dr. Amador was "fully accountable to the Board and to the public for achieving the goals" set forth in those documents. Without resorting to her personnel file, a substantial amount of information is available to assist the public in assessing the trustees' conduct vis-à-vis Dr. Amador.
Additionally, we conclude Dr. Amador has a reasonable expectation of privacy in her personal performance goals. (See Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th at p. 1516, 5 Cal. Rptr.3d 847 [reasonable expectation of privacy in salary details contained in employees' personnel files precluded disclosure under the Act].) She submitted a declaration that stated, "[o]ne of my priorities in ... negotiation [of my contract] was to assure that my performance evaluation, to include my personal performance goals and objectives ..., [was] kept confidential and discussed only in closed session meetings of the Boards.... I have never and would never agree to have any component of my performance evaluation released to the public."
It is true that "a mere promise of secrecy cannot always shield a public record from disclosure." (Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal. App.4th at pp. 1513-1514, 5 Cal.Rptr.3d 847.) The District, however, produced evidence that an employee's personal performance goals are customarily kept confidential. Dr. Amador's declaration stated she had been in the education field since 1978 and no school she ever worked for "released to the public any part of an employee's personal performance evaluation." (Italics added.) Dr. Jack Miyamoto, the District's Assistant Superintendent/Vice President of Human Resource Services and Affirmative Action, submitted a declaration that stated "personal goals and objectives sometimes include areas of the specific employee's work performance which require improvement," and, "I have never in my career released to the general public any component of any employee's performance evaluation without consent." "`A "reasonable" expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.'" (Id. at pp. 1515-1516, 5 Cal. Rptr.3d 847.)
Moreover, the Brown Act expressly authorizes a public agency to meet in *104 closed session regarding the consideration of "the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee...." (Gov.Code, § 54957, subd. (b)(1).) The "underlying purposes of the `personnel exception' are to protect the employee from public embarrassment and to permit free and candid discussions of personnel matters by a local governmental body." (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955, 196 Cal.Rptr. 45.) Under the employment contract, Dr. Amador's personal performance goals were an integral part of the confidential evaluation process.
"There is an inherent tension between the public's right to know and the public interest in protecting public servants, as well as protecting private citizens, from unwarranted invasion of privacy. [Citation.] On certain occasions, the public's right to disclosure must yield to the privacy rights of governmental agents." (New York Times Co. v. Superior Court, supra, 52 Cal.App.4th at p. 100, 60 Cal.Rptr.2d 410.) We conclude this is such a case, as Dr. Amador's privacy interest in her entire evaluation processincluding her personal performance goalsoutweighs the public's minimal interest in the matter.[6]
DISPOSITION
The petition is denied. Costs in this proceeding are awarded to the District.
WE CONCUR: HALLER and McDONALD, JJ.
NOTES
[1] Statutory references are to the Government Code unless otherwise specified.
[2] Versaci is the president of the District's faculty union, and the District "has been involved in ongoing and extensive negotiations" with him "over the District's first collective bargaining agreement with the exclusive representative of its faculty bargaining unit members," According to the District's representative in the negotiations, a "major issue for the faculty has been salary increases in a time when public resources are scarce due to the state budget crisis."
[3] At the November 2, 2004 General Election, California voters approved Proposition 59, which amends article I, section 3 of the California Constitution by adding subdivision (b). Subdivision (b)(2) provides in part: "A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access...."
[4] Versaci cites New York Times Co. v. Superior Court, supra, 52 Cal.App.4th 97, 60 Cal. Rptr.2d 410, for the proposition that under the Act "embarrassment is insufficient to prevent disclosure of records." In that case, the court held the public interest in disclosure of the names of police officers who fired shots at citizens outweighed the officers' interest in confidentiality, and "[f]ear of possible opprobrium or embarrassment is insufficient to prevent disclosure." (Id. at p. 104, 60 Cal. Rptr.2d 410.) The case does not concern the requested disclosure of an employee's personal performance goals, and "`cases are not authority for propositions not considered.'" (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388, 53 Cal.Rptr.2d 81, 916 P.2d 476.)
[5] We asked the parties to submit supplemental briefing on the mootness issue. They complied, and we have taken their responses into consideration.
[6] Versaci does not contend the trial court erred by not reviewing Dr. Amador's personal performance goals in camera before ruling they are not subject to disclosure under the Act. Accordingly, we do not consider the issue. Further, given our holding we are not required to reach Versaci's contention that section 6255 is inapplicable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262174/ | 25 Cal.Rptr.3d 642 (2005)
127 Cal.App.4th 480
John GARAMENDI, as Insurance Commissioner, etc., Plaintiff,
v.
GOLDEN EAGLE INSURANCE COMPANY, Defendant and Respondent;
Pauli Systems, Inc., Claimant and Appellant.
Nos. A104076, A104077.
Court of Appeal, First District, Division Three.
March 9, 2005.
Rehearing Denied March 28, 2005.
Review Denied June 15, 2005.[*]
*643 Mannion & Lowe, E. Gerard Mannion, Wesley M. Lowe, Timothy D. Regan, Jr., San Francisco, for Claimant and Appellant.
Stanzler Funderburk & Castellon LLP, San Francisco, Jordan S. Stanzler, Amy Bach, Mill Valley, for United Policyholders as Amicus Curiae on behalf of Claimant and Appellant.
Ault, Davis & Schonfeld, LLP, Richard P. Edwards, Corinne Coleman Bertsche, for Defendant and Respondent Golden Eagle Insurance Company.
POLLAK, J.
These are consolidated appeals by Pauli Systems, Inc. (claimant) from identical orders denying applications for orders to show cause in proceedings instituted by claimant against Golden Eagle Insurance Corporation as third party administrator for Golden Eagle Insurance Company (Golden Eagle).[1] The applications challenged Golden Eagle's denial of coverage for claims asserted by two groups of workers for "silica-related injuries and damages." The trial court concluded Golden Eagle properly rejected the tenders of defense based on the pollution exclusion contained in its commercial general liability policy. We agree.
*644 Background
The Underlying Complaints
The two underlying complaints, both filed in circuit courts of Mississippi, contain the same charging allegations.[2] Both allege the plaintiffs "worked in, or were otherwise exposed to, silica at and throughout their employment" and "[f]or many years ... were exposed to silica-containing dust and suffered serious and permanent bodily injuries as a result of their exposure to silica and silica dust." The complaints continue, "During their work life, [p]laintiffs were injured and damaged through the sale of silica-containing products, the use of defective respiratory equipment ..., and the use of sandblasting equipment ... and other devices necessary to carry out what is commonly known as `sandblasting.' [¶] ... During a sandblasting operation, silica-containing dust is created which includes particles that are invisible to the human eye, but which particles are inhaled by workers in a very large area surrounding the sandblasting operation. [¶] ... This silica-containing dust does not fall to the ground but, in fact, is suspended in the air and travels over a large distance, subjecting many workers in the area to an unreasonable risk of harm."
The complaints name 49 defendants, including claimant Pauli Systems, who are collectively alleged to have "designed, tested, evaluated, manufactured, mined, packaged, furnished, supplied and/or sold abrasive blasting products, protective gear and equipment, safety equipment and/or sandblasting-related materials, equipment, products, etc." The complaints further allege the sellers of silica-containing products failed to provide adequate warnings of the health risks that "were reasonably forseeable or scientifically discoverable at the time of the exposure," and that "[d]efendants sold masks and respirators which were wholly inadequate and not approved for blasting operations with silica-containing products" and air-supplied hoods that "were defective by reason of their design, marketing, and their forseeable use or misuse." The complaints contain no allegations describing the nature of claimant's business or its particular activities or operations.
The Golden Eagle Policy
Golden Eagle issued claimant a commercial general liability insurance policy for the time period in question. The policy provides coverage for "those sums that the Insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies." The pollution exclusion appearing as "Exclusion f." in the "Coverages" section of the policy was replaced by a "Total Pollution Exclusion Endorsement." This endorsement provides that the insurance does not apply to "`Bodily injury' or `property damage' which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time." Pollutants are defined in the endorsement as "any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste....."
Tender and Denial of Defense and Filing Suit
Claimant tendered the defense of both complaints to Golden Eagle after the liquidation *645 proceedings had been commenced. Both tenders were rejected with the following explanation: "Plaintiff brings this action for injuries allegedly incurred as a result of exposure to silica and silica dust. We are denying coverage based upon, but not limited to the Total Pollution Exclusion on the Policies. The `bodily injury' that is alleged to have resulted from the exposure to silica and silica dust is specifically precluded from coverage." Claimant thereafter filed two applications pursuant to Insurance Code section 1032[3] for orders to show cause why the claims should not be allowed. Following briefing, the applications were heard and denied on the ground the claims administrator had not abused its discretion in denying coverage. Plaintiffs filed timely notices of appeal.
Discussion
"Because the insurer is in liquidation, the scope of our review of determinations of both the superior court and the liquidation trustees in the resolution of claims by insureds against an insolvent carrier is circumscribed. (See generally, Ins.Code, §§ 1010-1062.) Our high court has long since observed that such conservation proceedings arise under the broad police powers of the state to insure the reorganization or orderly liquidation of insolvent insurers and the protection of their policyholders and the public. [Citation.] A corollary of that broad power is the judiciary's limited scope of inquiry into the liquidation trustees' grounds for rejecting claims for compensation by policyholders. As the Carpenter [v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 329, 74 P.2d 761] court put the ruling standard, `The only restriction on the exercise of this power [to administer liquidation proceedings under the Insurance Code] is that the state's action shall be reasonably related to the public interest and shall not be arbitrary or improperly discriminatory.' (Ibid.) [¶] That seminal formulation has since been glossed repeatedly to mean the measure of judicial review in such proceedings is the familiar `abuse of discretion' standard." (Low v. Golden Eagle Ins. Co. (2002) 104 Cal.App.4th 306, 315-316, 128 Cal.Rptr.2d 423.) Our review of the liquidation court's factual determinations is likewise circumscribed. (Low v. Golden Eagle Ins. Co. (2003) 110 Cal.App.4th 1532, 1544, 2 Cal.Rptr.3d 761.)
In MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 3 Cal.Rptr.3d 228, 73 P.3d 1205 (MacKinnon) our Supreme Court considered at length the derivation and interpretation of a pollution exclusion provision that defined pollution in essentially the same language as contained in claimant's Golden Eagle policy. Recognizing that the policy definition of a "pollutant" as including "any irritant or contaminant," read literally, leads to "absurd results and ignores the familiar connotations of the words used in the exclusion," the court felt it "`far more reasonable that a policyholder would understand [a pollutant] as being limited to irritants and contaminants commonly thought of as pollution and not as applying to every possible irritant or contaminant imaginable.'" (Id. at pp. 652-653, 3 Cal.Rptr.3d 228, 73 P.3d 1205.) The court therefore limited the scope of the pollution exclusion "to injuries arising from events commonly thought of as pollution, i.e., environmental pollution." (Id. at p. 653, 3 Cal.Rptr.3d 228, 73 P.3d 1205.)
*646 Applying this standard, the court in MacKinnon held that a landlord's allegedly negligent use of a pesticide by spraying to eradicate yellow jackets around its apartment building did not come within the scope of the pollution exclusion. The court found it "far from clear MacKinnon's claim ... for injuries arising from the normal, though negligent, residential application of pesticides, would be commonly thought of as pollution. While pesticides may be pollutants under some circumstances, it is unlikely a reasonable policyholder would think of the act of spraying pesticides under these circumstances as an act of pollution.... The normal application of pesticides around an apartment building in order to kill yellow jackets would not comport with the common understanding of the word `pollute.'" (MacKinnon, supra, 31 Cal.4th at p. 654, 3 Cal.Rptr.3d 228, 73 P.3d 1205.)
Claimant suggests silica is not a pollutant within the terms of the policy, since it is not "smoke, vapor, soot, fumes, acid, alkalis, chemicals [or] waste," and it is found in many commonplace materials such as sand, glass, concrete and computer chips. But even if silica is not one of the enumerated items listed in the policy definition of pollutants, that listing is not exclusive and silica dust nonetheless comes within the broad definition of "any solid, liquid, gaseous, or thermal irritant or contaminant." Indeed, federal regulations identify silica dust as an air contaminant. (See 29 C.F.R.1910.1000 (2004).) Claimant is correct that under MacKinnon the mere fact that silica, like almost anything else, may be an irritant or contaminant under some circumstances is not dispositive. But unlike the residential use of a pesticide for the purpose of killing insects, the widespread dissemination of silica dust as an incidental by-product of industrial sand-blasting operations most assuredly is what is "commonly thought of as pollution" and "environmental pollution." (MacKinnon, supra, 31 Cal.4th at pp. 653-654, 3 Cal.Rptr.3d 228, 73 P.3d 1205; cf. Park-Ohio Industries, Inc. v. Home Indem. Co. (6th Cir.1992) 975 F.2d 1215, 1219; Hydro Systems, Inc. v. Continental Ins. Co. (C.D.Cal.1989) 717 F.Supp. 700, 702-703; Madison Construction Co. v. Harleysville Mutual Ins. Co. (1999) 557 Pa. 595, 606-608 [735 A.2d 100, 107].) Contrary to claimant's suggestion, there need not be "wholesale environmental degradation, such as occurred at, for example, Love Canal, or the Stringfellow Acid Pits" to constitute pollution.
Claimant contends there is a possibility of liability falling within the terms of the policy and outside the exclusion because the underlying complaints allege that the defendants are responsible for defective products, such as defective respirators and air-fed hoods, and that they are liable for having failed to properly warn of risks associated with the use of the products sold. Since the complaint refers to the defendants collectively and fails to provide any meaningful indication of the nature of claimant's business, and the record contains no other clue as to whether claimant engages in sandblasting operations or sells equipment used in such operations, we must assume the product liability claims might apply to claimant. Claimant argues that claims based on product defects or failures to warn are not within the scope of the exclusion, relying heavily on a law review article appearing in the Environmental Claims Journal. (Stanzler & Johnson, Product Liability and Completed Operations Coverage: The Pollution Exclusion Does Not Apply (1992) 4 Env. Claims J. 479.)[4] However, although this *647 article argues that products and completed-operations liability are not within the scope of what "some insurance industry commentators have dubbed ... as the `absolute pollution exclusion'" (id. at p. 480), the exclusion that is addressed in the article is not the exclusion in claimant's Golden Eagle policy. To the contrary, the version of the exclusion discussed in the article is a 1985 revision to the standard-form comprehensive general liability policy exclusion (id. at p. 479; see MacKinnon, supra, 31 Cal.4th at p. 644, 3 Cal.Rptr.3d 228, 73 P.3d 1205) that was in all essential respects the same as Exclusion f. in the "Coverages" section of claimant's policy that was replaced by a new endorsement, captioned "Total Pollution Exclusion Endorsement." The contrast between the language of the two versions makes clear that under the operative endorsement in claimant's policy, there is no coverage for any of the claims in the underlying complaints, even if the products liability claims apply to claimant.
Exclusion f. provided that the insurance did not apply to bodily injury arising out of the actual, alleged or threatened discharge or dispersal of pollutants "at or from any premises, site or location" owned, occupied by, rented or loaned to the insured, or used by or for the insured or others for handling or storage of waste, or on which the insured or any contractor on his behalf performed certain operations with pollutants.[5] The exclusion as it then read thus generally applied to pollution occurring at a particular location for which the insured was somehow responsible. (Legarra v. Federated Mutual Ins. Co. (1995) 35 Cal. *648 App.4th 1472, 1480-1481, 42 Cal.Rptr.2d 101.) Under this language, liability arising from the sale of a defective product may have fallen outside the exclusion. However, as indicated above, the language in the applicable version of the exclusion is far broader. It applies to any bodily injury "which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal ... of pollutants at any time." This language shifts the focus to injuries that would not have occurred "but for" the discharge of pollutants. Thus, even on the assumption that claimant's alleged liability is based on the sale of defective products that contributed to personal injuries caused by silica dust, the injuries would not have occurred but for the discharge of the pollutant. Absent some other provision in the policy excepting product liability claims from the exclusion, the exclusion applies. (Cf. Park-Ohio Industries, Inc. v. Home Indemnity Co., supra, 975 F.2d at p. 1223; Madison Construction Co. v. Harleysville Mutual Ins. Co., supra, 557 Pa. at pp. 610-612, 735 A.2d at pp. 109-110.)
Claimant next argues that because claimant's Golden Eagle policy also includes as an additional endorsement a specific exclusion for claims based on exposure to asbestos, another natural product like silica, a reasonable insured would understand that the pollution exclusion does not apply to claims for exposure to silica, for which there is no comparable explicit endorsement. We are not convinced. In light of the widespread asbestos litigation that has been ongoing for approximately a half-century, it is not surprising that an insurer seeking to exclude coverage for asbestos claims would include an explicit provision making that exclusion unmistakably clear. The effect of such prudence, however, is not to restrict the scope of the pollution exclusion. The inclusion of a specific provision concerning asbestos claims cannot reasonably be understood to mean that the pollution exclusion is inapplicable to other pollutants not specifically designated in a separate endorsement.
Claimant contends that even if the underlying complaints disclosed no possible basis for coverage, the "complaints could easily be amended, or discovery propounded, to identify" silica-containing products which may have caused injuries for which it was responsible. However, the complaints are based explicitly on the inhalation of silica dust arising from sandblasting operations. "An insured may not trigger the duty to defend by speculating about extraneous `facts' regarding potential liability or ways in which the third party claimant might amend its complaint at some future date. This approach misconstrues the principle of `potential liability' under an insurance policy." (Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114, 44 Cal.Rptr.2d 272.)
Finally, claimant argues that the trial court abused its discretion in refusing to permit discovery before ruling on the order to show cause. Claimant sought to undertake discovery into the derivation of the terms of the pollution exclusion, and to ascertain whether Golden Eagle used a specific silica exclusion in other policies it issued. Given the marginal value of any such discovery and the expedited nature of proceedings under section 1032, the court did not abuse its discretion in refusing to defer consideration of the order to show cause to permit such discovery.
Disposition
The orders from which these appeals were taken are affirmed.
We concur: McGUINESS, P.J., and CORRIGAN, J.
NOTES
[*] Baxter, J., dissented.
[1] The procedural framework for Golden Eagle's conservation proceedings is described in Low v. Golden Eagle Ins. Co. (2002) 101 Cal.App.4th 1354, 1359, 125 Cal.Rptr.2d 155.
[2] The first action, Glass v. Clark Sand Co. (Jefferson County, No.2002-93), was filed on behalf of 30 plaintiffs. The second, Green v. Clark Sand Company (Claiborne County, No.2002-131), was filed on behalf of 17 plaintiffs. Amended complaints in both cases were filed in June 2002.
[3] Insurance Code section 1032 provides: "When a claim is rejected by the commissioner, written notice of rejection shall be given by mail.... Within thirty days after the mailing of the notice the claimant may apply to the court in which the liquidation proceeding is pending for an order to show cause why the claim should not be allowed."
[4] Golden Eagle objects to consideration of this article, which apparently was not brought to the attention of the superior court. However, we do not regard the content of the article as evidence, but consider it simply for whatever light it may shed on the proper interpretation of the policy language under governing legal principles.
[5] The exclusion also applied to bodily injury arising out of the discharge of pollutants that were transported or handled by or for the insured or by anyone for whom the insured was legally responsible.
The superseded exclusion read in full as follows: "1) `Bodily injury' or `property damage' arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants: [¶] a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any Insured; [¶] b) At or from any premises, site or location which is or was at any time used by or for any Insured or others for the handling, storage, disposal, processing or treatment of waste; [¶] c) Which are or were at any time transported, handled, stored treated, disposed of, or processed as waste by or for any Insured or any person or organization for whom you may be legally responsible; or [¶] d) At or from any premises, site or location on which any Insured or any contractors or subcontractors working directly or indirectly or any Insured's behalf are performing operations: [¶] (i) If the pollutants are brought on or to the premises, site or location in connection with such operations by such Insured, contractor or subcontractor; or [¶] (ii) If the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants. [¶] Subparagraphs a) and d)(i) do not apply to `bodily injury' or `property damage' arising out of heat, smoke or fumes from a hostile fire. [¶] As used in this exclusion, a hostile fire means one which becomes uncontrollable or breaks out from where it was intended to be. [¶] 2) Any loss, cost or expense arising out of any: [¶] a) Request, demand or order that any Insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants; or [¶] b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of pollutants. [¶] Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262349/ | 152 Pa. Commonwealth Ct. 384 (1992)
618 A.2d 1258
Patrick J. McDONOUGH, Appellant,
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee.
Commonwealth Court of Pennsylvania.
Argued October 20, 1992.
Decided December 29, 1992.
*386 Edward G. Shoemaker, for appellant.
Harold H. Cramer, Asst. Chief Counsel for Traffic Safety Law Div., for appellee.
*387 Before COLINS and KELLEY, JJ., and LORD, Senior Judge.
COLINS, Judge.
Patrick J. McDonough (Licensee) appeals an order of the Court of Common Pleas of Allegheny County (trial court) which dismissed his statutory appeal of an order of the Department of Transportation (DOT) which suspended Licensee's driving privileges for one year pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa.C.S. § 1547(b), for refusal to submit to chemical testing.
On March 15, 1991, Licensee was involved in a one car accident; Licensee crashed through a cable and wooden post guardrail and travelled down an embankment. Officer Regis Smith (Officer Smith) of the Shaler Township Police Department was dispatched to the accident scene. Upon arrival at the scene, Officer Smith proceeded to Licensee's vehicle and found Licensee in the driver's seat. Officer Smith asked Licensee if he was injured, and Licensee responded in the negative. At that point, the officer detected a strong odor of alcohol on Licensee's breath and, further, noticed that Licensee's speech was slurred. When questioned by Officer Smith, Licensee was unresponsive and looked at the officer with a blank stare. Officer Smith assisted Licensee in exiting his vehicle and walked him to the police cruiser. Officer Smith administered field sobriety tests to Licensee, which Licensee was unable to perform. Licensee was then placed under arrest for driving under the influence.
Licensee was transported to the police station where he was asked to submit to a breath test. Officer Brian Kelly (Officer Kelly), the intoxilyzer operator, explained to Licensee that he had no right to speak to an attorney or anyone else prior to submitting to chemical testing. Licensee repeatedly requested to speak to his attorney, and Officer Kelly repeatedly explained to the Licensee that he had no right to speak with an attorney prior to taking the test. Ultimately, Licensee was marked as refusing the breath test.
*388 Thereafter, DOT notified Licensee that his operating privilege was suspended for one year pursuant to Section 1547 of the Code, 75 Pa.C.S. § 1547. Licensee filed a timely appeal of this suspension to the trial court. Prior to the hearing, Licensee filed a motion asking the trial court to continue the hearing on the suspension until the criminal trial on Licensee's driving under the influence charge was completed. Licensee argued that the continuance was necessary because he could not testify at the suspension hearing without waiving his privilege under the Fifth Amendment of the United States Constitution against self-incrimination. At the hearing, Licensee orally argued that the hearing should be continued. The trial court denied the continuance and proceeded to conduct the hearing. Licensee refused to testify, and the only testimony of record was of Officers Smith and Kelly. This appeal followed.
Licensee raises two issues for our review: (1) the trial court erred in dismissing his appeal because he had an obvious injury which impaired his ability to make a knowing and conscious refusal of the test; and (2) the trial court erred in refusing to continue the case pending the outcome of the related criminal prosecution, in order to protect his privilege against self-incrimination.
Licensee contends that his refusal was not knowing and voluntary, because the evidence indicates that he was obviously impaired by injuries sustained in the automobile accident. Before deciding the merits of this contention, we must reach a preliminary argument raised by Licensee. He argues that DOT failed to establish a prima facie case showing that he refused to submit to chemical testing in violation of Section 1547(b) of the Code, and, thus, DOT had the burden of proving that he was capable of making a knowing and conscious refusal. If DOT presents a prima facie case against a motorist under Section 1547(b) of the Code, the burden shifts to the motorist to prove that he was unable to take the test or make a knowing and conscious refusal of the test. Department of Transportation, Bureau of Driver Licensing v. Rogers, *389 110 Pa.Commonwealth Ct. 453, 532 A.2d 935 (1987). A prima facie case is established if DOT proves the following:
1) [T]he defendant was placed under arrest upon the charge of driving while intoxicated, and the arresting officer had reasonable grounds to believe the defendant was driving while intoxicated; 2) that he was requested to submit to a breathalyzer test; and 3) he refused to do so.
Ostrander v. Department of Transportation, Bureau of Driver Licensing, 116 Pa.Commonwealth Ct. 243, 246, 541 A.2d 441, 442 (1988).
In the present case, we conclude that DOT did prove a prima facie case that Licensee refused the breath test. The record reveals that Officer Smith had reasonable grounds to believe Licensee was driving under the influence of alcohol: he was involved in an accident; Officer Smith detected alcohol on his breath; and he failed field sobriety tests. Furthermore, it is clear from the record that Licensee was asked to take a breath test and that he refused to consent to the test. Therefore, Licensee had the burden of proving that he could not make a knowing and conscious refusal of the breath test. Rogers.
Licensee asserts that he could not make a knowing and conscious refusal of the breath test because he suffered an obvious mental impairment as a result of the vehicle accident he was involved in prior to his arrest. He argues that the record demonstrates that he violently crashed through a guardrail and drove down an embankment; the record further shows that his mental alertness and physical skills were diminished after the accident. If the inability to make a knowing and conscious refusal is not obvious from the injuries inflicted on a motorist by an accident, the motorist must produce medical evidence to support the allegation that he or she was unable to make a knowing and conscious refusal. Department of Transportation, Bureau of Driver Licensing v. Groscost, 142 Pa.Commonwealth Ct. 36, 596 A.2d 1217 (1991). In the instant case, the record does not show that Licensee sustained any incapacitating injury that caused him to be obviously unable to make a knowing and conscious refusal of *390 the breath test. Licensee did not produce any medical evidence supporting his claim of incapacity. Therefore, we conclude that this contention must fail.
Licensee next contends that the trial court erred when it refused to continue the hearing on his license suspension in order to protect his right against self-incrimination. The decision to grant a continuance is exclusively within the discretion of the trial court, and we will not disturb a trial court's determination in this matter absent an apparent abuse of discretion. Swoyer v. Department of Transportation, 142 Pa.Commonwealth Ct. 1, 599 A.2d 710 (1990), petition for allowance of appeal denied, 527 Pa. 659, 593 A.2d 428, cert. denied, ___ U.S. ___, 112 S.Ct. 332, 116 L.Ed.2d 273 (1991).
The privilege against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and by Article I, Section 9 of the Pennsylvania Constitution. The privilege against self-incrimination protects an individual from being called as a witness against himself or herself in both criminal and civil proceedings, formal or informal, where the answers to questions might incriminate the individual in future criminal proceedings. Caloric Corporation v. Unemployment Compensation Board of Review, 70 Pa.Commonwealth Ct. 182, 452 A.2d 907 (1982).[1] The privilege against self-incrimination can only be asserted when the witness is being asked to testify to self-incriminating facts and only when a witness is asked a question demanding an incriminating answer. Department of Transportation, Bureau of Driver Licensing v. Vogt, 112 Pa.Commonwealth Ct. 515, 535 A.2d 750 (1988). The witness has the burden of demonstrating that he or she has a reasonable ground for asserting the privilege. Id. Our Supreme Court stated in Carrera:
*391 When an individual . . . is called to testify . . . in a judicial proceeding, he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected.
Id. 424 Pa. at 553, 227 A.2d at 629.
Licensee argues that the trial court's refusal to grant him a continuance placed him in a position of either waiving his right to a full and fair hearing or waiving his privilege against self-incrimination; thus, he was improperly forced to surrender his constitutional right to present a defense to the suspension in order to assert his privilege against self-incrimination. He claims that the trial court's refusal to grant a continuance under these circumstances is contrary to the rule articulated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Simmons, a criminal defendant was faced with the Hobson's choice of either testifying in support of a Fourth Amendment claim and, thereby, waiving his Fifth Amendment rights, or waiving his Fourth Amendment claim in order to protect his Fifth Amendment rights. The Simmons Court held that it was intolerable that the defendant should have to surrender one right to protect another and prohibited the defendant's testimony in support of his Fourth Amendment rights from being used against him at trial. In the present case, however, Simmons is inapplicable since the record does not demonstrate that Licensee was ever faced with the dilemma of choosing between his right to a full and fair hearing and protecting his privilege against self-incrimination.
Conducting an administrative hearing prior to the disposition of a criminal case arising from the same matter is not a per se violation of a defendant's privilege against self-incrimination. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Upsey v. Secretary of Revenue, 193 Pa.Superior Ct. 466, 165 A.2d 267 (1960). Licensee, therefore, was required to specifically show to the trial court how his privilege against self-incrimination would have been prejudiced by testifying *392 at the suspension hearing. Here, the record shows that the Licensee never took the witness stand and was never asked an incriminating question. Moreover, Licensee's counsel argued before the trial court as follows:
I'm not saying there are Fifth Amendments here. I don't believe there are. But Mr. McDonough does have a right to a full and fair hearing, which includes a right to testify. But if he does testify, anything he says here can and will be used against him criminally, which would make him in effect waive his Fifth Amendment right in the criminal matter. (Emphasis added.)
In light of the above, Licensee's claim that his privilege against self-incrimination would have been prejudiced was purely speculative. He provided no basis for the trial court to decide whether he had a reasonable ground for asserting the privilege. Also, it is clear that Licensee's counsel was not even convinced that Licensee's testimony would present a Fifth Amendment issue. Therefore, we conclude that Licensee did not meet his burden of proving that he had a reasonable ground to invoke the privilege.
Furthermore, Licensee could have requested the trial court to restrict DOT's questioning of him to issues surrounding his alleged refusal of the breath test. This would have allowed Licensee to testify and protect his Fifth Amendment rights. Moreover, Licensee, without testifying himself, could have presented a defense by introducing evidence and cross-examining DOT's witnesses. Upsey. Hence, we conclude that Licensee was not placed in a situation requiring him to forfeit his right to a full and fair hearing.
Therefore, for all the above reasons, we hold that the trial court did not abuse its discretion in denying Licensee's request for a continuance.[2]
Accordingly, the order of the trial court is affirmed.
*393 ORDER
AND NOW, this 29th day of December, 1992, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.
KELLEY, Judge, dissenting.
I respectfully dissent.
While it is generally conceded that it is discretionary whether or not to grant continuances wherein there is a pending criminal matter, in the present case, the civil and criminal proceedings arise from the same identical factual pattern. I believe this scenario goes to the heart of the constitutional question raised by the licensee in this case. This sentiment has been recognized in Afro-Lecon, Inc. v. The United States, 820 F.2d 1198 (Fed.Cir.1987) wherein it says:
Other than where there is specific evidence of agency bad faith or malicious governmental tactics, the strongest case for deferring civil proceedings until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter.
Afro-Lecon, 820 F.2d at 1203.
The inherent difference of the burdens of proof between the criminal and the civil proceeding is such that, everything that would be offered and available in a civil proceeding would again be available in the criminal proceeding.
The licensee, in order to avail himself of the maximum amount of defense to the suspension of his or her license from the action of the department arising out of the very same underlying facts is, I believe, as a matter of law, entitled to constitutional protection.
*394 Being compelled to testify in the civil proceeding if he or she wishes to avail himself of the maximum defense to the suspension of his or her license would amount to a violation of the constitutional right against self-incrimination.
Accordingly, I would reverse.
NOTES
[1] The privilege against self-incrimination, when invoked in a state proceeding, is governed by federal standards. Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). Further, the privilege embodied in the Pennsylvania Constitution does not expand upon the protection against self-incrimination afforded under the Constitution of the United States. Commonwealth v. Fernandez, 333 Pa.Superior Ct. 279, 482 A.2d 567 (1984).
[2] Licensee argues that the trial court should have granted him a continuance based on the rule in Afro-Lecon, Inc. v. United States, 820 F.2d 1198 (Fed.Cir.1987). Afro-Lecon holds that while the Constitution of the United States does not require a stay of civil proceedings pending the outcome of criminal proceedings, a court may, on a case by case basis, stay civil proceedings in order to protect a defendant's privilege against self-incrimination. This case, however, was decided in the Federal Circuit, and, in the absence of United States Supreme Court precedent or Third Circuit precedent in accord with Afro-Lecon, we decline to follow it. Schreiber v. Republic Intermodal Corporation, 473 Pa. 614, 375 A.2d 1285 (1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325237/ | 356 S.E.2d 357 (1987)
319 N.C. 627
Tony C. HARRIS
v.
DUKE POWER COMPANY, a corporation.
No. 697A86.
Supreme Court of North Carolina.
June 2, 1987.
*358 Russell & Sheely by Michael A. Sheely, Charlotte, and Edelstein & Payne by M. Travis Payne, Raleigh, for plaintiff-appellant.
Mullins & Van Hoy by Philip M. Van Hoy, and Duke Power Co. Legal Dept. by Robert M. Bisanar, Charlotte, for defendant-appellee.
Ogletree, Deakins, Nash, Smoak and Stewart by Stuart M. Vaughan, Jr., Raleigh, for North Carolina Associated Industries, amicus curiae.
MEYER, Justice.
In his complaint, plaintiff alleged that he had been employed as a welder by Duke Power Company at the Catawba Nuclear Power Plant and that he was discharged without cause in November 1984. Plaintiff further alleged that defendant's termination policy, as contained in its management procedure manual on the subject of "Rules of Conduct," was incorporated and became an integral part of his contract of employment. A copy of the management procedure pamphlet was attached to the complaint.
Plaintiff alleged that he was discharged from his employment in violation of the employer's Rules of Conduct as contained in the management procedure manual. He did not allege that he was employed for a fixed term or that he had furnished any special consideration for the incorporation of these rules in his employment contract.
The sole question presented on this appeal is whether the trial court erred in dismissing plaintiff's complaint. We hold that under the facts and circumstances of this case, plaintiff has failed to allege a cause of action sufficient to withstand defendant's motion to dismiss, and we therefore affirm the opinion of the Court of Appeals.
The superior court granted defendant's motion to dismiss, and the Court of Appeals affirmed, based upon plaintiff's status as an employee-at-will. The majority of *359 the panel below held that even if the provisions of the management procedure were made part of plaintiff's contract of employment, plaintiff had no right to relief because the procedure did not contain any promise or representation that defendant would discharge plaintiff only for cause. Judge Phillips dissented, arguing that the plaintiff's complaint raised the issue of whether his employment was subject to conditions set forth in defendant's management procedure manual.
North Carolina courts have repeatedly held that absent some form of contractual agreement between an employer and employee establishing a definite period of employment, the employment is presumed to be an "at-will" employment, terminable at the will of either party, irrespective of the quality of performance by the other party, and the employee states no cause of action for breach of contract by alleging that he has been discharged without just cause. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971).
The "employee-at-will" rule is subject to some well-defined exceptions. First, statutory authority often dictates that an otherwise terminable-at-will employee shall not be discharged in retaliation for certain protected activities, e.g., filing workers' compensation claims, N.C.G.S. § 97-6.1 (1985); engaging in labor union activities, N.C.G.S. § 95-83 (1985); instituting an Occupational Safety and Health Act proceeding, N.C.G.S. § 95-130(8) (1985). Second, if an employee furnishes "additional consideration" or gives something additional of value, such consideration may take the case out of the usual employment-at-will rule. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249 (1964) (setting forth exception, but declining to apply to the facts); Sides v. Duke University Hospital, 74 N.C.App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985) (plaintiff's moving from Michigan to North Carolina to accept position with defendant was additional consideration which took contract out of traditional employment-at-will rule). Cf. Malever v. Jewelry Co., 223 N.C. 148, 25 S.E.2d 436 (1943). See also L. Larson, Unjust Dismissal § 10.34 (1985 and Supp.1987).
Plaintiff does not fall within any of the well-recognized exceptions to the general rule that an employment contract of indefinite duration is terminable at the will of either employer or employee. He contends, however, that this Court should join those jurisdictions in which an employer's personnel policy is incorporated by reference into an employment contract. See Annot., "Right to Discharge Allegedly `At Will' Employee as Affected by Employer's Promulgation of Employment Policies as to Discharge," 33 A.L.R. 4th 120, §§ 3-4 (1984 and Supp.1986); Note, Continued Resistance to Inclusion of Personnel Policies in Contracts of Employment, 62 N.C.L.Rev. 1326 (1984); Note, Employee Handbooks and Employment At Will Contracts, 1985 Duke L.J. 196 (1985); Parker, The Uses of the Past: The Surprising History of Terminable-at-Will Employment in North Carolina, 22 Wake Forest L.Rev. 167 (1987).
Several cases decided by the Court of Appeals, and federal courts applying North Carolina law, hold that an employer's personnel manual is not part of an employee's contract of employment. Walker v. Westinghouse, 77 N.C.App. 253, 335 S.E.2d 79 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986) (handbook not part of employment contract, notwithstanding language that the handbook would "become more than a handbook ... it will become an understanding"); Smith v. Monsanto Corp., 71 N.C.App. 632, 322 S.E.2d 611 (1984) (company policy not incorporated in employment contract); Griffin v. Housing Authority, 62 N.C.App. 556, 303 S.E.2d 200 (1983) (defendant-employer's personnel manual not expressly incorporated into plaintiff's contract of employment); Williams v. Biscuitville, Inc., 40 N.C.App. 405, 253 S.E.2d 18, cert. denied, 297 N.C. 457, 256 S.E.2d 810 (1979) (operations manual unilaterally adopted by employer and could be changed; employer could discharge plaintiff in manner not set forth in manual); Rupinsky v. Miller Brewing Co., 627 F. Supp. 1181 (W.D.Pa.1986) (applying North Carolina law). We have not been *360 persuaded to depart from the rules developed and applied in our prior decisions.
It is noteworthy that in those jurisdictions in which statements in employment handbooks have been treated as binding on the employer, making the traditional rule of employment-at-will inoperative, the handbook, policy manual, or personnel manual contains an express representation that employees will be dismissed only for "just cause." Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880, reh'g denied, 409 Mich. 1101 (1980). Compare Weiner v. McGraw Hill, 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982) (handbook indicated that employer would resort to dismissal for "just and sufficient cause only") with Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 506 N.E.2d 919, 514 N.Y.S.2d 209 (1987) (personnel manual merely suggests standards for dismissal; employee fails to demonstrate express limitation on employer's unfettered right to discharge). See L. Larson, Unjust Dismissal § 8.02 (1985 and Supp.1987).
Plaintiff relies on Trought v. Richardson, 78 N.C.App. 758, 338 S.E.2d 617, disc. rev. denied, 316 N.C. 557, 344 S.E.2d 18 (1986). There, the plaintiff alleged, inter alia, that the hospital's policy manual provided that employees could be discharged only for cause; that when she was hired as a nurse, she was required to sign a statement that she had been read the policy manual; and that she had been discharged without cause. The Court of Appeals held that such allegations were sufficient to defeat defendant's motion to dismiss. While this Court has not addressed the issue presented in Trought and does not do so here, that case is readily distinguished from the case at bar by reason of the specific no-discharge-except-for-cause allegation in Trought. The management procedure in question here, and upon which plaintiff relies, contains no such express representation, and plaintiff does not so allege.
Plaintiff's complaint alleges that he performed a particular weld or "tack" at the request of a fitter. This procedure was investigated by management employees, and plaintiff was then discharged for Class B and Class C violations. Plaintiff alleges that his actions in making the weld were, at most, a Class B (concealing defective work) violation.
On a motion to dismiss pursuant to Rule 12(b)(6), we treat the factual allegations of the complaint as if they were established. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Thus, for the purposes of review, deeming as true plaintiff's allegations that he specifically relied upon the terms of the management procedure in question in entering into employment with Duke, we hold that the trial court properly dismissed the complaint, because plaintiff does not allege, nor does the procedure contain, any promise or representation that employee will be subject to dismissal only for violations of specific Class A, Class B, or Class C offenses.
Plaintiff's complaint also alleges, with respect to defendant's management procedure manual, that defendant represented to him that "as long as he followed said rules he would not be terminated for violating said rules." From our detailed review of the management procedure relied upon by the plaintiff, we conclude that it could not be reasonably interpreted as a manual of rules of conduct to be followed by employees.
The six-page manual or pamphlet in question is labeled "Duke Power Company Management Procedure Number XXXX-XXXX CONS 010; Subject: Rules of Conduct." The entire content of the manual is directed towards management personnel and relates solely to carrying out disciplinary actions against employees. In the prefatory statement, which describes the Construction Department's rules relating to disciplinary action, the procedure states:
The Construction Department's rules are limited to the basic minimums necessary for orderly and efficient operations. They are not intended to be all-inclusive. They serve as examples of the types of offenses that require disciplinary action.
The section labeled "Rules of Conduct" categorizes or classifies disciplinary action *361 offenses as "Class A," "Class B," or "Class C." These classes of offenses are said to "provide a general framework for taking consistent corrective action." Class A offenses are the least serious and will result in discharge after the third offense, if warranted upon review; Class B offenses are more serious and will result in discharge after the second offense, if warranted upon review; Class C offenses are the most serious and will result in discharge after the first offense, if warranted upon review.
As already noted, the pamphlet referred to was labeled a management procedure; it contains no rules by which employees are to conduct themselves; it thus sets forth no manner by which plaintiff could have "followed said rules," without being a management employee charged with carrying out the disciplinary procedures specified therein. Indeed, rather than setting out rules of conduct by which employees are to conduct themselves in their work, it contains descriptions of acts which are prohibited; uses the terms "offenses," "violations," etc.; provides for "warnings"; and instructs the reader as to how to word the warnings and notices of disciplinary action and where to file and how to distribute them. Therefore, even taking plaintiff's allegation as truethat defendant represented that he would not be terminated if he followed the "Rules of Conduct"he fails to state a cause of action, because the "Rules of Conduct," under the most liberal reading, set forth no rules for plaintiff to follow.
For the foregoing reasons, we affirm the judgment of the Court of Appeals.
AFFIRMED.
EXUM, Chief Justice, concurring.
I do not understand the Court to hold that personnel policy manuals distributed, or personnel policies explained, to employees by employers can never be part of the contract of employment binding on the employer. Rather I read the Court's opinion to say that the "Management Procedure" brochure relied on by plaintiff and attached to the complaint cannot in law be a part of plaintiff's employment contract because the brochure makes no promises, express or implied, to defendant's employees. Rather the brochure because of its unambiguous, plain terms is as a matter of law a guide for defendant's managers, creates no benefits for defendant's employees, and imposes no limitations on defendant's power to discharge plaintiff at will. Neither could the plaintiff reasonably rely on the brochure as limiting the circumstances under which he could be discharged. I concur in the Court's legal construction of the brochure and in the result reached on the basis of that construction.
In my view an employer's personnel policies, if couched in language that either expressly or by implication makes promises to employees, may bind the employer to these promises and restrict the employer's power to discharge even if the policies are unilaterally promulgated and are supported by no consideration apart from the employee's acceptance or continuation of employment. See Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. rev. denied, 316 N.C. 557, 344 S.E.2d 18 (1986); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983); Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880, reh'g denied, 409 Mich. 1101 (1980); see generally, Note, Employee Handbooks and Employment at Will Contracts, 1985 Duke L.J. 196 (1985). I do not understand our decision today to hold to the contrary.
MARTIN, J., joins in this concurring opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325261/ | 257 Ga. 187 (1987)
356 S.E.2d 873
BAKER
v.
BAKER.
44552.
Supreme Court of Georgia.
Decided June 19, 1987.
William F. Braziel, Jr., for appellant.
John E. Pirkle, for appellee.
GREGORY, Justice.
Billie Emlott Baker and her former husband, John Riley Baker, were granted a divorce on September 27, 1984. The judgment of divorce incorporated an agreement in which the parties agreed to have *188 the marital estate appraised before distribution. Mrs. Baker brought this declaratory judgment action challenging the results of the appraisals and seeking to have another appraisal performed. The trial court granted defendant summary judgment from which Mrs. Baker appeals. We affirm.
The judgment of divorce provided that the "property accumulated by the parties during the marriage will be appraised at fair market value by an appraiser selected by the parties and mutually agreed upon by both the Husband and Wife and his opinion regarding value of said property shall be final." The agreement further provided that "[u]pon completion of the appraisals but no later than forty-five (45) days from the execution of this agreement unless extended in writing by agreement of the Husband and the Wife, said property will be divided between the Husband and Wife with the Wife receiving 60% of the equity in said properties and the Husband receiving 40% of the equity in said properties." It was stipulated at oral argument that the agreement provided Mrs. Baker would receive the marital home and that the home would be included in the 60%-40% division. On October 12, 1984 the parties selected an experienced real estate appraiser who had been an active appraiser in the Liberty County area since 1975. The appraisals were not completed until June 25, 1985, well beyond the forty-five day limit.
Mrs. Baker challenged the results of the appraisals on the basis that certain parcels of commercial property had been undervalued. The affidavit of an expert real estate appraiser supported her contention. The trial court found that the parties mutually agreed upon the selection of the appraiser and, according to the terms of the agreement, were bound by his findings. Accordingly, the court entered summary judgment for the defendant.
Appellant alleges three enumerations of error: 1) summary judgment should not have been granted because the opposing expert affidavits created a genuine issue of material fact, 2) failure to complete the appraisals within the forty-five day period rendered the appraisals suspect and should allow the appellant to obtain a separate appraisal, and 3) appellant is entitled to a correct appraisal regardless of the agreement. We find no merit in these contentions.
The issue in this case is whether summary judgment should have been entered for the defendant. Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c) (1982).
Given the terms of the agreement voluntarily entered into by the parties, the only issues to be decided on the motion for summary judgment were: 1) whether the parties mutually agreed upon the selected appraiser, and 2) whether the selected appraiser rendered an *189 opinion of the value of the subject properties. Based upon undisputed evidence, the trial court answered these questions in the affirmative and correctly entered summary judgment for the defendant.
Although appellant's expert affidavit created an issue of fact, such issue was not material because the accuracy of the appraisal was not a relevant consideration under the agreement. Furthermore, failure to complete the appraisals within forty-five days was an immaterial issue because the agreement failed to specify the consequences of such a delay.
In support of her third contention, appellant poses interesting hypothetical facts equating this case with a situation in which the appraiser suffers a disabling mental condition prior to performing the appraisal. We need only state that those facts are not present in the instant case.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325288/ | 182 Ga. App. 502 (1987)
356 S.E.2d 222
STOLA
v.
THE STATE.
73107.
Court of Appeals of Georgia.
Decided March 13, 1987.
Rehearing Denied April 3, 1987.
John A. Nuckolls, for appellant.
Lewis R. Slaton, District Attorney, Richard E. Hicks, Joseph J. Drolet, Benjamin H. Oehlert III, D. Chris Jensen, Assistant District Attorneys, for appellee.
POPE, Judge.
Albert Allen Stola appeals his conviction of trafficking in cocaine. After careful review of the record, we affirm.
The record reveals that an anonymous tipster telephoned the DeKalb County Police Department around noon on March 21, 1984 and spoke with an officer who worked in the Special Investigations Division. The tipster stated that he had information that a delivery of approximately eight pounds of cocaine would be made between 7:00 and 8:00 p. m. that evening. A white male named "Rodney" would make the delivery to "Al" at 714 Willow Creek Drive where "Al" lived with "Celeste." The tipster described "Rodney" as having reddish-brown hair, a mustache and a beard, approximately 5'11" tall and weighing 185 pounds. At the time of delivery, "Rodney" would be driving a 1983 or 1984 black Porsche Carrera automobile and would be wearing a green army jacket. He would be carrying a brown leather briefcase and be armed with a.45 caliber pistol. The tipster stated that his motive for making the telephone call was "revenge" based on the murder of his friend.
Subsequently, the officer receiving the call discovered that Willow Creek Drive was in Fulton County. He contacted a G.B.I. agent who agreed to meet him that afternoon to discuss and investigate the information. At approximately 1:50 p. m. the anonymous tipster telephoned a second time and stated that the delivery had been changed from 7:00 p. m. that night to 3:00 p. m. that afternoon. The officer who received the call again telephoned the G.B.I. agent to advise him of the new information. They agreed to meet at the referenced address. The officer also telephoned the Georgia Power Company which later confirmed that "Celeste Hill" was billed for power to 714 Willow Creek Drive.
The officer then drove with his partner to the Willow Creek apartment complex, where they parked in a manner which allowed them to view the parking area as well as the referenced unit. As they watched, appellant drove a red Toyota Corolla automobile into the parking area of the complex. He parked and entered the 714 unit where he remained approximately fifteen minutes before driving away. A radio investigation of the tag on the automobile revealed that it was registered to "Celeste Hill." Subsequently, the officers received information that the anonymous tipster had made a third telephone call to the police station at approximately 4:00 p. m. that afternoon. *503 The tipster had stated that the delivery would be approximately 45 minutes late and would be made in a red Toyota Corolla.
At approximately 5:00 p. m., appellant returned in the red Toyota Corolla. He carried a brown leather briefcase as he left the automobile. At that point, the officers ran toward him and arrested him. Subsequently, one officer entered the automobile and saw the corner of a plastic bag containing a white substance resting in plain view on the console. Another officer opened the brown leather briefcase where he found a bag which also contained a white substance. Both substances were tested and found to be cocaine.
1. Appellant contends that the trial court erred in admitting into evidence contraband seized pursuant to the warrantless arrest and search of his automobile and briefcase. Under Georgia law, an officer may arrest without a warrant "if the offense is committed in his presence or within his immediate knowledge ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant." OCGA § 17-4-20 (a). The constitutional validity of an arrest without a warrant depends "upon whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (85 SC 223, 13 LE2d 142) (1964). See also Durden v. State, 250 Ga. 325 (1) (297 SE2d 237) (1982), holding that the state rule and the federal rule are the same, i.e., "[a]n arrest and search, legal under federal law, are legal under state law." Id. at 327.
In the case sub judice, the information on which the officers based their surveillance indicated that the offense would be committed within a short time of the second and third telephone calls. Further, each telephone call modified the information contained in the former call. An uncorroborated telephone call from an anonymous tipster, standing alone, is insufficient upon which to base probable cause to arrest. See Rohrig v. State, 148 Ga. App. 869 (253 SE2d 253) (1979); Illinois v. Gates, 462 U.S. 213, 227 (103 SC 2317, 76 LE2d 527) (1983). Under the facts sub judice, the police did not have probable cause to believe that appellant was committing a crime until they confirmed by their own investigation various aspects of the tipster's information, i.e., that the delivery would be made in the red Toyota Corolla; that the white male making the delivery would carry a brown briefcase; and that the delivery would occur approximately at the time as stated by the tipster. The point in time at which corroboration of these facts occurred was the point at which the arrest was made. Under these circumstances, it was unnecessary for police to obtain a warrant before arrest. Ellis v. State, 164 Ga. App. 366 (5) (296 *504 SE2d 726) (1982).
The trial court held that "[t]he facts in the present case indicate the information supplied by the tipster possessed an internal coherence which gives weight to a finding that probable cause existed to arrest. The tipster telephoned the officer several times relating changing factual details of the [appellant's] actions. In addition the informant explained that he blamed the [appellant] for the death of a friend of his, thus offering a plausible reason for the unsolicited call." The information given by the tipster was explicit and detailed. Its credence was supported by the tipster's subsequent calls to change details as he apparently witnessed the changes being made. The detailed nature of the information entitled it to more credibility than might otherwise be the case. Further, independent police investigation on the scene verified many facts related by the tipster, as well as information modified by the tipster's subsequent calls. This corroboration provided adequate grounds on which to base the tipster's veracity. See Massachusetts v. Upton, 466 U.S. 727 (104 SC 2085, 80 LE2d 721) (1984); Illinois v. Gates, supra.
"In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175 (69 SC 1302, 93 LE 1879) (1949). Under the "totality of circumstances" test of Illinois v. Gates, supra, we find that the police had probable cause on which to make the arrest. See State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).
The warrantless search of the automobile as an incident to lawful arrest is controlled by New York v. Belton, 453 U.S. 454 (101 SC 2860, 69 LE2d 768) (1981). Therefore, admission into evidence of the cocaine found as the result of the search of the automobile was not error. Also, we find no error in the admission into evidence of the cocaine found within appellant's briefcase. See United States v. Ross, 456 U.S. 798 (102 SC 2157, 72 LE2d 572) (1982); Robinson v. State, 162 Ga. App. 690 (292 SE2d 109) (1982).
2. Appellant's second enumeration cites as error the trial court's denial of his pretrial motion to compel disclosure of wiretap or electronic surveillance. Assuming arguendo that the denial of this motion was erroneous (see OCGA § 16-11-64 (b) (7); Caudill v. State, 157 Ga. App. 415 (1) (277 SE2d 773) (1981); accord State v. Braeunig, 122 N. J. Super. 319 (300 A2d 346) (1973)), any error was harmless in light of the total absence of record of any indication that such surveillance, in fact, occurred in this case.
3. Appellant argues that the trial court erred in denying his pretrial motion seeking to compel certain witnesses to submit to depositions. There is no Georgia statute or common law rule which requires *505 a witness to submit to a deposition in a criminal case. Sears v. State, 182 Ga. App. 480 (9) (356 SE2d 72) (1987).
Judgment affirmed. McMurray, P. J., concurs. Carley, J., concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325297/ | 257 Ga. 236 (1987)
356 S.E.2d 875
WHITE
v.
THE STATE.
44224.
Supreme Court of Georgia.
Decided June 19, 1987.
Reconsideration Denied July 8, 1987.
Smith & Harrington, Will Ed Smith, for appellant.
Beverly B. Hayes, District Attorney, for appellee.
GREGORY, Justice.
Glen McCord was indicted on June 11, 1984 for the murder of Douglas Little. He was found guilty of voluntary manslaughter in a jury verdict rendered August 14, 1984. The appellant, Sandra White, was then indicted on April 22, 1985 for the murder of the same victim by aiding, abetting, encouraging and counselling the commission of the crime. On August 16, 1985 she was found guilty of voluntary manslaughter. In the meantime McCord had appealed his conviction to the Court of Appeals which reversed on the basis of an erroneous charge. McCord v. State, 176 Ga. App. 505 (336 SE2d 371) (1985). Since the same charge was given in White's case the trial court granted her a new trial. On remand the case against McCord was tried again, resulting in a verdict of not guilty on February 7, 1986. White then filed a motion in limine seeking an order permitting the introduction in her trial of a copy of McCord's indictment and verdict of acquittal. The trial court denied the motion but granted a certificate of immediate review. The Court of Appeals affirmed, holding the acquittal irrelevant in White's case. White v. State, 181 Ga. App. 354 (352 SE2d 205) (1986).
As is apparent from the foregoing recitation, the question before us is whether the acquittal of the principal is relevant evidence on the issue of the guilt or innocence of one charged as a party to the crime under OCGA § 16-2-20 (a) and (b) (3), (4)? We hold that it is.
The State relies on OCGA § 16-2-21 which provides: "Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto, although the person claimed to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, or is not amenable to justice or has been acquitted." But this misses the mark. White does not contend the acquittal of McCord bars her own prosecution. (Clearly the Code provides otherwise.) She contends proof of the guilt of the principal is a necessary element in the crime of one who does not directly commit the crime but is charged as an aider, abettor, encourager or counsellor in the commission of the crime. The acquittal of the principal is some evidence she did not aid, abet, etc. We agree. It is relevant. There may be numerous reasons why a defendant is acquitted other than his own innocence, but one reason he might be acquitted is his innocence. We consider the test of relevancy is the question, ". . . does the evidence offered render the desired inference more probable than it would be without the evidence?" McCormick on Evidence, 2nd ed. § 185, p. 437. The desired inference here is that White is not guilty. *237 That inference is more probable in light of evidence of McCord's acquittal than it would be without evidence of McCord's acquittal.
Judgment reversed. All the Justices concur, except Weltner and Hunt, JJ., who dissent.
HUNT, Justice, dissenting.
I respectfully dissent. Under the broad standard cited by the majority, the acquittal of the principal in this case may indeed be "relevant." However, the trial court excluded this evidence not on relevancy grounds but because "to allow into evidence either a conviction or acquittal of [the principal] would be so prejudicial that any curative instructions or a charge of OCGA § 16-2-21 would not be sufficient to overcome same." I agree with the trial court that regardless of the "relevancy" of evidence of an acquittal or conviction of the principal to the trial of an accessory, the evidence should be excluded because the prejudicial effect of a verdict of a separate fact-finding body cannot be overcome. Moreover, the great weight of authority excludes this evidence for considerations of policy because it does not suggest an inference of fact that it is more probable than not that the principal perpetrator is innocent. Rather, an acquittal is a determination of nonliability of the defendant by one set of fact-finders. See State v. Wilson, 483 S2d 23 (Fla. App. 2 Dist., 1986); People v. Paige, 345 NW2d 639 (Mich. App., 1983); People v. Jones, 518 P2d 819 (Colo. 1974); Roberts v. People, 87 P2d 251 (103 Colo. 250, 1938); People v. Beintner, 168 N.Y.S. 945 (1918); see also 22 CJS 295, Criminal Law, § 105. As stated by the Colorado Supreme Court in Roberts v. People, supra at 255, "[i]nnocence is a factual status. Non[-]liability .. . resulting from acquittal is a legal status. The guilt [or] innocence of an accessory after the fact depends as to one element on the factual status of the principal as to guilt or innocence; not on his legal status as regards liability or non-liability to suffer a penalty." (Emphasis supplied.) The foregoing authorities are consistent with the policy of this state to exclude from evidence in one proceeding a determination of liability by a different fact-finding body in any prior proceeding involving the same issue. See, e.g., Smith v. Goodwin, 103 Ga. App. 248 (119 SE2d 35) (1961) (adjudication in traffic court inadmissible in case against defendant in civil suit); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167, 168 (2) (270 SE2d 349) (1980) (verdict of coroner's jury inadmissible in subsequent actions on the issue of the cause of death); OCGA § 22-2-110 (award of special master in condemnation case inadmissible in subsequent jury trial). It is no longer the law that the conviction of a principal perpetrator is a prerequisite to the conviction of an accessory. Now, under OCGA § 16-2-21, an indirect party to a crime may be convicted of the crime even if the direct perpetrator is acquitted. Accordingly, the acquittal or conviction of the *238 principal perpetrator, not being conclusive in a trial of the accessory, has no bearing on the question of whether an accessory is guilty. "If [the jury] could consider the judgment, what weight should they give to it? How could they know upon what proof it was rendered, and, without knowing that, what value would it be as evidence, unless as a matter of law it was held to be conclusive? . . . If it is evidence at all, it must be conclusive; otherwise, it should not be admitted. If a judgment is not res adjudicata [sic] on the questions involved it is nothing. [Cits]." People v. Beintner, supra.
Under the majority's holding, the following would be admissible: the verdicts of guilty of voluntary manslaughter in previous trials of this defendant and the principal perpetrator; the conviction of a principal perpetrator in a trial of an aider-abettor; the indictment against a defendant in his trial for the offense charged; a previous verdict in any case which for any reason must be retried. The relevancy test cited by the majority was not intended to be the standard by which such matters would be included as evidence. In my view, the trial court ruled properly that the principal's acquittal should be excluded because of its overwhelming prejudicial effect.
I am authorized to state that Justice Weltner joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325301/ | 182 Ga. App. 467 (1987)
356 S.E.2d 67
DAVENPORT
v.
KUTNER.
73594.
Court of Appeals of Georgia.
Decided March 17, 1987.
Rehearing Denied April 1, 1987.
Olin Rambo, for appellant.
Sidney F. Wheeler, Stephen H. Sparwath, for appellee.
McMURRAY, Presiding Judge.
Plaintiff Davenport brought this action against defendant Kutner for damages alleging fraud, deceit and misrepresentation in that defendant induced her to submit to unnecessary eye surgery. Plaintiff further alleged that defendant misrepresented the condition of her eye before the surgery. A jury trial was conducted and a verdict was returned in favor of defendant. Plaintiff now appeals. Held:
1. In her first and second enumerations of error plaintiff contends the trial court erred in prohibiting her from introducing evidence of similar transactions committed by defendant. In this regard, the trial court did not allow plaintiff to cross-examine defendant and introduce documents concerning a disciplinary action initiated against defendant by the Composite State Board of Medical Examiners (Composite State Board) wherein defendant was charged, among other things, with performing unnecessary surgeries and entering false information upon a surgical report. (The Composite State Board concluded the disciplinary proceeding by entering a "Consent Order" wherein defendant denied all of the malignant allegations; but, "in the interest of resolving this matter,..." defendant submitted to *468 disciplinary sanctions and monitoring by the Composite State Board.)
At the outset, we must address defendant's contention that this evidence was properly excluded based on OCGA § 31-7-143. This Code section "provides that `[t]he proceedings and records of medical review committees shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee; and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof.'`"(T)he purpose for the enactment of Code Ann. § 88-3204 [OCGA § 31-7-143] is to foster the delivery of quality medical services by preserving the candor necessary for the effective functioning of hospital medical review committees." [Cit.] The statute legislatively approves the view that "(c)onstructive professional criticism cannot occur in an atmosphere of apprehension that one doctor's suggestion will be used as a denunciation of a colleague's conduct in a malpractice suit." [Cit.] "It embraces the goal of medical staff candor at the cost of impairing plaintiffs' access to evidence." [Cit.]' Hollowell v. Jove, 247 Ga. 678, 680 (279 SE2d 430) (1981)." Poulnott v. Surgical Assoc., 179 Ga. App. 138 (2), 139 (345 SE2d 639). In the case sub judice, plaintiff argues the evidence adduced as a result of the disciplinary proceeding against defendant is not subject to the exclusionary rule of OCGA § 31-7-143 because the Composite State Board is not a "medical review committee" as contemplated in the statute.
"`Medical review committee' is defined in OCGA § 31-7-140 (Code Ann. § 88-3201) as `a committee of a state or local professional society or of a medical staff or a licensed hospital, nursing home, medical foundation, or peer review committee, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home, which committee is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.' Thus, in order for the information generated or maintained by a committee exercising review functions to be subject to the provisions of OCGA § 31-7-140 et seq., the committee must meet the qualifications set forth in OCGA § 31-7-140. Hollowell, supra at 683." Poulnott v. Surgical Assoc., 179 Ga. App. 138, 139-140 (2), supra. From our reading of this statute, we find *469 that the Composite State Board does not meet the requirements of OCGA § 31-7-140 inasmuch as it does not fall within the class of "medical review committees" intended to be protected by OCGA § 31-7-143. "The rationale for such statute is apparently to afford hospitals and similar institutions rendering medical care to examine, in the first instance, the propriety of procedures used within their institutions ..." (Emphasis supplied.) Scott v. McDonald, 70 FRD 568, 573 (N.D. Ga. 1976). See Eubanks v. Ferrier, 245 Ga. 763, 765 (3) (267 SE2d 230). With this view in mind, we find the term "medical review committee" to mean a "grass roots" committee formed to make in-house examinations of the adequacy of the treatment afforded its patients. The Composite State Board is not such an "in-house" committee, formed only to regulate a narrowly defined segment of the medical community. It is an administrative body formed by legislative action for the protection of public health by regulating the practice of medicine and osteopathy throughout the State. OCGA § 43-34-21 (d). From this perspective, we find that the goal of promoting candor among the staff of medical care facilities and members of medical professional societies would not be accomplished by applying the exclusionary rule of OCGA § 31-7-143 to the Composite State Board. Consequently, the evidence sought to be introduced by plaintiff in the case sub judice should not have been excluded from evidence at trial based upon the exclusionary rule of OCGA § 31-7-143. See OCGA § 31-7-133.
We turn now to plaintiff's contention that evidence of the disciplinary proceeding was relevant to show defendant's fraudulent intent and "evil purpose" in persuading her to submit to the alleged unnecessary surgery. "Evidence of similar transactions is admissible to show fraudulent intent or motives. Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240 (155 S.E. 1); Wyatt v. State, 16 Ga. App. 817 (81 S.E. 802)." Grainger v. Jackson, 122 Ga. App. 123 (3), 128 (176 SE2d 279). See Ballard v. Turner, 147 Ga. App. 584, 585 (2) (249 SE2d 637). In the case sub judice, since plaintiff contends defendant fraudulently induced her to submit to unnecessary surgery and misstated her medical condition in her medical records before the surgery, evidence of similar acts by defendant should have been allowed as it related to defendant's propensity to perform unnecessary surgeries and his intent in recommending surgery to plaintiff. However, in passing on the admissibility of similar transaction evidence, the trial court must determine whether the act on another and different occasion relates to the issue before the jury. See Johnson v. Myers, 118 Ga. App. 773, 774 (1) (165 SE2d 739). In the case sub judice, the issue before the jury related to the intentional tort of fraud and deceit, not to the negligent performance of a surgical procedure. Consequently, after reviewing the materials contained in the records of the *470 Composite State Board's disciplinary action against defendant, we find that the evidence concerning defendant's false operative reports after surgery and the evidence relating to the excessive surgeries performed by defendant to be admissible. This evidence relates to defendant's propensity to perform such surgeries and his intent in persuading plaintiff to submit to surgery. However, we find the evidence concerning defendant's negligent post-operative treatment of other patients to be irrelevant. See Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199). Further, we find the information contained in the "Consent Order," concerning the details of defendant's disciplinary punishment, to bear little, if any, significance on defendant's propensity to commit fraud by recommending unnecessary surgery. Consequently, the trial court did not err in excluding the "Consent Order" from evidence. However, since the trial court precluded plaintiff from examining defendant concerning other relevant similar transactions, and since this evidence was likely to bear on the outcome of the jury's verdict, the trial court erred in failing to grant plaintiff's motion for new trial in this regard.
2. Other errors alleged in plaintiff's remaining enumerations of error, if harmful at all, are unlikely to occur upon retrial.
Judgment reversed. Carley and Pope, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/763827/ | 176 F.3d 472
Joseph C. Fisher, Robin H. Fisherv.Aetna Life Insurance & Annuity Company
NO. 98-7356
United States Court of Appeals,Third Circuit.
January 28, 1999
1
Appeal From: M.D.Pa.
2
Affirmed. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2417671/ | 509 S.W.2d 637 (1974)
Marvin Eugene HALE, Appellant,
v.
The STATE of Texas, Appellee.
No. 48394.
Court of Criminal Appeals of Texas.
May 22, 1974.
R. Roscoe Haley, Austin, for appellant.
Ned Granger, County Atty. and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for driving while intoxicated. The court assessed punishment at a fine of fifty dollars and six months in jail, probated.
Appellant's sole contention is that the trial court erred in admitting into evidence a blood sample taken from him without his consent while he was unconscious in a hospital emergency room following an automobile accident. Specifically, appellant contends that the blood sample, taken from a "free flowing wound" by two Department of Public Safety patrolmen, was the product of an illegal search and seizure in violation of his Fourth Amendment rights and his right to due process, and was in violation of Article 802f, Vernon's Ann.P.C.
We are unable to reach the merit of this contention because we have not been furnished with a complete record. The record before us contains only certain excerpts from the appellant's pre-trial hearing regarding the procedure used and circumstances surrounding the taking of the blood sample. The record does not disclose whether the sample was ever analyzed or whether there was any expert chemical evidence introduced regarding the results of an analysis and used to incriminate appellant.
Under Article 40.09, Vernon's Ann.C.C.P., it is appellant's responsibility to obtain a transcription of the court reporter's notes. Appellant was apparently represented by retained counsel at all stages of trial and appeal and the record on appeal contains no affidavit of indigency which would entitle him to a complete transcript at no cost. There is no objection to the record on appeal. We are, *638 therefore, bound by the record before this Court. See Stockton v. State, Tex.Cr. App., 487 S.W.2d 69; Martinets v. State, Tex.Cr.App., 493 S.W.2d 923; Goodings v. State, Tex.Cr.App., 500 S.W.2d 173.
We, therefore, hold that, absent a complete statement of facts showing the rulings of the trial court of which appellant complains, nothing is presented for review by this Court.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724428/ | 289 So. 2d 662 (1973)
Richard Joe JOHNSON, alias
v.
STATE.
7 Div. 259.
Court of Criminal Appeals of Alabama.
December 11, 1973.
Rehearing Denied January 2, 1974.
Myron K. Allenstein, Gadsden, for appellant.
William J. Baxley, Atty. Gen., and David Lee Weathers, Asst. Atty. Gen., for the State.
TYSON, Judge.
The appellant was charged by the Grand Jury of Etowah County, Alabama, with the first degree murder of Sylvester A. Whorton by shooting him with a gun or pistol. At arraignment the appellant, accompanied by counsel, entered a plea of not guilty, and the cause was set for trial with regular and special venires being drawn.
On March 1, 1973, the appellant appeared in open court, accompanied by his attorney, and entered a plea of guilty to the offense of murder in the second degree, and at this time was sentenced to thirty years imprisonment.
The appellant gave notice of appeal, and from this judgment prosecutes this appeal.
The record in this cause affirmatively reflects a colloquy between the trial judge, the appellant, and his counsel in accordance with Walcott v. State, 288 Ala. 546, 263 So. 2d 178; and Honeycutt v. State, 47 Ala.App. 640, 259 So. 2d 846, which shows the questions asked and answers given at the time of taking the plea of guilty. This colloquy shows that there were no threats, coercion, intimidation, or inducement, made to obtain the guilty plea, and that such was done by the appellant after full consultation with his counsel, and with full knowledge of its consequences.
At issue is whether or not a full compliance with Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, is here shown.
An examination of the colloquy in this cause shows that the trial judge, before taking the plea in question, in addition to the matters above stated, advised the appellant as to his privilege against compulsory self-incrimination, of his right to a public trial by jury, of his right to confront his accusers, and to have compulsory process to obtain witnesses, and that such witnesses be cross-examined in his presence, Boykin v. Alabama, supra. In addition, the colloquy in question affirmatively reflects that the trial judge did advise the appellant *663 of the minimum punishment and the maximum punishment which might be imposed by the court, Carter v. State, Ala., 277 So. 2d 896; Cooper v. State, 47 Ala.App. 178, 252 So. 2d 104, cert. den. 287 Ala. 728, 252 So. 2d 108; Clark v. State, 48 Ala.App. 108, 262 So. 2d 310, cert. den. 288 Ala. 736, 262 So. 2d 312.
Counsel argues that toward the end of the colloquy, when asked by the court, "Did you do that [referring to the offense in question]," the appellant replied, "Yes, sir, I guess so," to show the appellant did not fully understand. However, the completed colloquy shows the question from the court, "You guess so? Don't you know," to which the appellant replied, "Yes."
We have carefully examined this record and find that such was in full compliance with federal and state standards, and that the judgment in question is therefore due to be and the same is hereby
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2857487/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-136-CV
LARRY BRENT LEE AND DANA LEE,
APPELLANTS
vs.
IRENE C. CUTLER AND WILLIAM CUTLER, SR.,
APPELLEES
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 87-0761, HONORABLE RAYMOND MORMINO, JUDGE PRESIDING
This dispute centers on the effect of an order by a
retired judge in a custody battle between the parents and maternal
grandparents of two children. The parents appeal an order granting
the grandparents unsupervised visitation, asserting, among other
things, that the judge who entered the order was disqualified by
their timely objection to his assignment to the case. We set aside
the order of unsupervised visitation and remand this cause for
further proceedings.
BACKGROUND
The question in this case is whether the parents'
objection to the assignment of the retired judge was timely and
turns on the characterization of a visitation order as "final" or
"temporary."
In 1987, appellees filed a "suit affecting the parent
child relationship" (SAPCR), seeking managing conservatorship of
two of their grandchildren. See Tex. Fam. Code Ann. § 11.03(b)
(Supp. 1991) (providing for SAPCR by grandparents). Appellants,
the children's parents, opposed these efforts. The case was set
before a retired judge who was sitting by assignment.
Pursuant to an agreement between the parties, the judge
signed an order on October 1, 1989, granting the grandparents
semimonthly, supervised visitation with the children. See Tex.
Fam. Code Ann. § 14.03(e) (Supp. 1991) (providing for grandparent
access to grandchildren). The order further states:
It is agreed and ordered that this visitation schedule
shall continue for a period of 90 days. It is agreed and
ordered that at the end of 90 days the parties will
informally review the agreed order to determine permanent
terms and conditions for possession of and access to the
children.
* * * *
It is agreed and ordered that subsequent to the review
meeting[,] grandparental access will be continued. If no
agreement is reached at that meeting, then the Court will
determine the final terms of possession of and access to
the children.
(Emphasis omitted.)
Approximately 90 days after the settlement, the parties
met to review the visitation schedule. They could not, however,
agree on permanent terms. On November 16, 1989, the grandparents
filed a motion asking the court to set "final and permanent terms
of [their] possession of and access to the children."
The November motion was set to be heard by the retired
judge. Before the hearing, the parents for the first time objected
to the judge's assignment to the case. Another judge overruled the
parents' objection. On January 1, 1990, the retired judge rendered
an order on the November motion granting the grandparents
unsupervised visitation with the children.
The parents appeal the January 1990 order by eleven
points of error. The grandparents have not filed a reply brief.
We will address only the parents' contention that their objection
disqualified the retired judge and, therefore, the January 1990
order is void.
DISCUSSION AND HOLDING
The presiding judge of each of Texas' nine administrative
judicial regions may assign judges to hold court when necessary to
dispose of accumulated business in the region. Tex. Gov't Code
Ann. § 74.052 (1988). If a party to a civil case timely objects to
an assignment, the judge shall not hear the case. Id. § 74.053(b)
(Supp. 1991). An objection is timely if it is filed before the
first hearing over which the judge is to preside. Id. § 74.053(c).
(Supp. 1991). A timely objection disqualifies the judge as a
matter of law, and any judgment or order which a disqualified judge
enters is void. Lewis v. Leftwich, 775 S.W.2d 848, 851 (Tex. App.
1989, no writ); Curtis v. State, 762 S.W.2d 958, 960 (Tex. App.
1988, no writ).
In this case, the parents' objection to the assignment of
the retired judge was timely if the October order was a "final
order" which terminated the original SAPCR proceeding. If so, the
November motion commenced a new proceeding, and the parents'
objection to the assignment of the retired judge, coming before the
first hearing in the new proceeding, was timely. The grandparents
contended in the trial court that the language in the October order
regarding visitation prevented it from being final. We disagree.
A judgment is final if it disposes of all parties and
issues before the court. Koepke v. Koepke, 732 S.W.2d 299, 300
(Tex. 1987). On the other hand, a judgment is interlocutory if it
expressly reserves issues for future determination. See Ault v.
Mulanax, 724 S.W.2d 824, 831 (Tex. App. 1986, no writ) (order
expressly reserved issues of child support, visitation, property
division and divorce); Kelley v. Kelley, 583 S.W.2d 671, 673 (Tex.
Civ. App. 1979, writ ref'd n.r.e.) (order expressly reserved issue
of permanent managing conservatorship); Campbell v. Campbell, 550
S.W.2d 164, 166 (Tex. Civ. App. 1977, no writ) (order expressly
reserved issue of child support). However, an order which disposes
of all issues and parties, but which contemplates future action, is
nonetheless final. See Gani v. Gani, 495 S.W.2d 576, 578 (Tex.
1973).
Gani is very similar to this case. The order in Gani
stated:
In the event the Petitioner and Respondent are unable to
agree upon the hours and dates of visitation during
Easter, Christmas, and Thanksgiving, as set out above,
the court will order the exact hour and dates of
visitation.
* * *
In the event the court receives said report detrimental
to the best interests of [the child], the court will
schedule a hearing to give the matter of Petitioner's
visitation with [the child] further consideration.
Concluding that the order was interlocutory, the court of appeals
dismissed an appeal of the order for lack of jurisdiction. Gani v.
Gani, 488 S.W.2d 901 (Tex. Civ. App. 1972). The supreme court
reversed on the ground that the judgment was final. Gani, 495
S.W.2d at 578. In this regard, the supreme court noted that the
judgment did not purport to reserve determination of any aspect of
the case then before the court, but merely "contemplated possible
further action of the court upon a showing of conditions different
from those existing at the time of the judgment." Id.
Similarly, the agreed order in this case, although it
"contemplates possible further action," disposes of all of the
issues and parties in the case. The agreed order expressly states
that "grandparental access will be continued" after the review
meeting. Thus, only the terms of access were subject to future
consideration. Moreover, the order is conditional only because it
contemplates further action if the parties cannot reach an
agreement. Accordingly, we hold that the October order is a final
judgment. See Beaupre v. Beaupre, 700 S.W.2d 353, 355 (Tex. App.
1985, writ dism'd) (court of appeals accepted jurisdiction in
custody case where final order provided for reevaluation of
visitation schedule).
Because the October order was final, it terminated the
original SAPCR proceeding, and the grandparents' November motion
began a new proceeding. See Tex. Fam. Code Ann. § 11.03(e) (1986)
(providing for future action in SAPCR). Therefore, the parents'
objection to the assignment of the retired judge to hear the
November motion was timely, and disqualified the judge as a matter
of law. Consequently, the judge's January 1990 order is void.
We sustain the parents' points of error one through four,
and set aside the January 1990 order as void. Because we resolve
this appeal on these grounds, it is unnecessary for us to consider
the parents' remaining points of error. See Tex. R. App. P. Ann.
90(a) (Pamph. 1990). We remand this cause for further proceedings
on the grandparents' November 16, 1989 motion.
Jimmy Carroll, Chief Justice
[Before Chief Justice Carroll, Justices Jones and B. A. Smith]
Order Set Aside and Cause Remanded
Filed: June 26, 1991
[Do Not Publish] | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2262109/ | 131 N.J. 20 (1993)
618 A.2d 303
DELAWARE TRUCK SALES, INC., PLAINTIFF-APPELLANT,
v.
EDWARD L. WILSON AND JOAN WILSON, A/K/A JOAN E. JABLONSKI WILSON, HIS WIFE, DEFENDANTS-RESPONDENTS, AND DELAWARE REPAIR SERVICES, INC. AND R.H. MACY COMPANY (BAMBERGERS DIVISION), DEFENDANTS.
The Supreme Court of New Jersey.
Argued January 22, 1992.
Decided January 14, 1993.
*22 Harry A. Horwitz argued the cause for appellant (Davis, Reberkenny & Abramowitz, attorneys; Harry A. Horwitz and Richard A. Barkasy, on the briefs).
Louis G. Rubino argued the cause for respondents (Hoffman, DiMuzio, Hoffman & Marcus, attorneys).
The opinion of the Court was delivered by HANDLER, J.
This case presents issues of commercial law arising from the secured indebtedness of a business corporation and attempts by two creditors to satisfy their respective obligations out of the same collateral security. The controversy arose after the debtor defaulted on both obligations. The debtor surrendered to the second or junior creditor its accounts receivable, which the junior creditor then collected. The senior creditor, a bank, which had obtained a default judgment against the debtor, made a claim against the junior creditor, contending that it had a first priority lien on the accounts receivable. The junior creditor paid the bank a sum approximating the bank's judgment against the debtor in exchange for the bank's judgment together with the underlying debt and all its security. The junior creditor thereafter instituted this action to foreclose on the residential mortgage that the personal guarantors had given to the bank to secure the underlying debt. However, the debtor and guarantors claimed that the debt to the bank had been satisfied when the junior creditor collected the accounts receivable and paid them over to the bank.
The Chancery Division granted the junior creditor's motion for summary judgment. The Appellate Division reversed in an unreported opinion. This Court granted certification. 126 N.J. 340, 598 A.2d 897 (1991).
I
On August 20, 1984, Delaware Repair Service, Inc. (Delaware Repair) entered into a financial agreement with Royal Bank of *23 Pennsylvania (Royal Bank or bank). Royal Bank loaned $75,000 to Delaware Repair evidenced by a demand promissory note. Delaware Repair also secured the loan. It executed a financing statement covering all of its "inventory, equipment, fixtures, machinery, appliances, tools, furniture and furnishings, leasehold interests, accounts receivable, now and hereafter acquired." Royal Bank filed that financing statement with the Camden County Clerk on September 19, 1984, and with the Secretary of State on September 25, 1984. As further security for the loan to Delaware Repair, defendants, Edward Wilson, a principal of Delaware Repair, and his wife, Joan Wilson, personally guaranteed the loan, which in turn was secured by a mortgage on their residence.
Plaintiff, Delaware Truck Service, Inc. (Delaware Truck), a corporation engaged in the cargo-container-repair business, sold its assets to Delaware Repair. According to the sales contract, dated September 6, 1984, the assets transferred included: "the machinery and equipment of the Seller as set forth on Exhibit `A' hereto the business and goodwill of the Seller and including all customer records and files presently in the hands of Seller." Delaware Repair agreed to pay Delaware Truck a total of $300,000, $30,000 in cash, plus a promissory note for $270,000 payable in sixty equal monthly installments. Defendant Edward Wilson and George Fandrick, both former employees of Delaware Truck, personally guaranteed payment on the note. The agreement provided that Delaware Repair would execute "financing statements" that would create a lien in favor of plaintiff covering all assets sold, plus a "secondary lien" on Delaware Repair's accounts receivable, "subject only to a prior lien in favor of Purchaser's institutional lender." Delaware Truck filed a financing statement covering Delaware Repair's "inventory, equipment, fixtures, machinery, appliances, tools, furniture and furnishings, now and hereafter acquired" with the Secretary of State on August 29, 1984 (which predated the signing of the sales agreement), and with the Camden County Clerk on September 13, 1984. It filed a separate financing *24 statement on October 4, 1984, covering Delaware Repair's accounts receivable.
Delaware Repair eventually defaulted on its payments to Delaware Truck and Royal Bank. On May 27, 1988, Delaware Repair entered into an agreement with Delaware Truck whereby Delaware Repair acknowledged its inability to pay the $166,935.58 it owed plaintiff and surrendered to plaintiff all of the assets in which plaintiff held a security interest. According to the "Surrender Agreement," those assets included "inventory, equipment, fixtures, machinery, appliances, tools, furniture and furnishings, now and hereafter acquired," as well as its accounts receivable. The agreement also noted that the accounts receivable were "probably" subject to a "secondary lien * * * in favor of Royal Bank of Pennsylvania * * *." In the months following the surrender of assets, plaintiff collected $98,600 from Delaware Repair's accounts receivable, and applied that money to Delaware Repair's debt.
In December 1988, Royal Bank sued Delaware Repair and the guarantors on the unpaid promissory note and obtained a default judgment against Delaware Repair and the guarantors in the full amount of $62,000. The record does not indicate that any of the defendants interposed any defenses. Thereafter, Royal Bank, apparently having learned that Delaware Truck had obtained and collected the debtor's accounts receivable, sought to recover from Delaware Truck the amounts thus realized. In April 1989, Royal Bank entered into a settlement agreement with Delaware Truck. Delaware Truck paid $59,500 in exchange for an assignment of Royal Bank's judgment against Delaware Repair and the guarantors, its security interests in Delaware Repair's assets, and the Wilsons' personal guaranty secured by the mortgage on the Wilson home. Royal Bank also entered into a subordination agreement with plaintiff whereby Royal Bank acknowledged that "every security interest held by Royal Bank in each and every asset of Delaware Repair Services, Inc. is subordinate to the security interest of Delaware Truck."
*25 In April 1989, Delaware Truck filed suit against Delaware Repair, Edward and Joan Wilson, and George Fandrick seeking to collect on the note made by Delaware Repair in favor of plaintiff, as well as on Royal Bank's judgment.[1] It sued to enforce both the note and personal guaranties. In July 1989, defendant Edward Wilson filed for personal bankruptcy. Plaintiff then filed a motion in bankruptcy court seeking to modify the automatic stay so that it could foreclose the mortgage on the Wilsons' residence, which constituted security for the Wilsons' personal guaranty. The bankruptcy court granted the motion, and plaintiff, as assignee of Royal Bank, filed the complaint in this action seeking to foreclose on the Wilsons' residence.
The trial court granted plaintiff's motion for summary judgment. Defendants argued that because Royal Bank had the first lien on accounts receivable, plaintiff should have applied the proceeds from the accounts receivable to satisfy the mortgage obligation in favor of Royal Bank. The trial court rejected defendants' arguments on two grounds. First, the trial court found that plaintiff had a senior security interest in the accounts receivable because plaintiff had filed a financing statement before Royal Bank. Second, even if plaintiff's security interest was junior to Royal Bank's, the trial court found that plaintiff had obtained the senior security interest through the assignment and subordination agreements. The trial court relied on the language of the guaranty made by the Wilsons to Royal Bank, which stated that the guaranty may be enforced "without first resorting to any security or other property or invoking other available rights or remedy."
*26 The Appellate Division reversed, concluding that plaintiff could not foreclose on the mortgage. The Appellate Division found that Royal Bank was first to file a financing statement covering accounts receivable and therefore had priority over plaintiff's security interest in Delaware Repair's accounts receivable. The Appellate Division, however, further determined that because the moneys collected by plaintiff from Delaware Repair's accounts receivable should have been applied to Royal Bank's debt, the latter's debt had been satisfied and extinguished with the payment to Royal Bank.
II
Plaintiff first argues that it had priority with respect to Delaware Repair's accounts receivable, and therefore its realization of the proceeds from the accounts receivable prior to the assignment of Royal Bank's interests against Delaware Repair could not satisfy Delaware Repair's debt to Royal Bank.
Both creditors, Delaware Truck and Royal Bank, had perfected their respective security interests in Delaware Repair's assets through the execution of financing statements describing the collateral. N.J.S.A. 12A:9-302 and 303. Delaware Repair executed a UCC-1 financing statement in favor of Royal Bank on its demand promissory note covering accounts receivable. Delaware Repair gave plaintiff a financing statement on the debtor's promissory note which created a lien on all or most of its assets, including accounts receivable. Consequently, each secured creditor had a perfected security interest in the same collateral.
N.J.S.A. 12A:9-312 addresses the priority of creditors with respect to collateral. When no special priority rules are in effect, N.J.S.A. 12A:9-312(5)(a) governs the determination of priority between parties with a security interest in the same collateral:
*27 In all cases not governed by other rules in this section * * * priority between conflicting security interests in the same collateral shall be determined according to the following rules:
(a) Conflicting security interests rank according to priority in time of filing or perfection * * *.
Thus, priority to collateral and its proceeds depends on when the parties filed financing statements covering the claimed collateral.
On August 29, 1984, Delaware Truck filed a financing statement covering the debtor's assets with the Secretary of State. That financing statement did not mention Delaware Repair's accounts receivable. However, the sales agreement between these parties, dated September 6, 1984, stated that the lien in favor of plaintiff was only "secondary" with respect to the accounts receivable. Although the agreement by its date was executed after the filing of the financing statement, that the basic understanding embodied therein preceded the filing of Delaware Truck's first financial statement is inferable from its reference to accounts receivable. On September 25, 1984, Royal Bank filed a financing statement that specifically covered the debtor's accounts receivable. Thereafter, on October 4, 1984, plaintiff filed an additional financing statement covering the debtor's accounts receivable.
The trial court found that plaintiff had priority over the accounts receivable interests of Royal Bank. The Appellate Division disagreed. It gave considerable weight to the September 6, 1984 agreement between plaintiff and Delaware Repair, which acknowledged that plaintiff's security interest in the accounts receivable was subject to Royal Bank's prior lien. Plaintiff concededly had filed its financing statement with the appropriate offices, respectively, on August 29 and September 13, 1984. However, that financing statement did not specify accounts receivable among the covered assets. On the other hand, Royal Bank, before the end of September 1984, filed a financing statement that expressly and specifically covered accounts receivable. Only thereafter, on October 4, 1984 did *28 plaintiff file a second financing statement that specifically referred to accounts receivable. By that time, Royal Bank held a priority-lien position with respect to the accounts receivable.
Plaintiff alleges, however, that because it was first to file a financing statement with respect to "inventory," Royal Bank does not have priority over any inventory-generated accounts receivable. See discussion, infra, at 30-31, 618 A.2d at 308-309. Barring this claim, we are thus satisfied that the Appellate Division correctly concluded that Royal Bank's priority interest in the accounts receivable of Delaware Repair was superior to the security interest of plaintiff.
III
After Delaware Repair's defaults, the creditors independently proceeded against the debtor to obtain satisfaction of their respective debts. Delaware Repair turned over all of its assets to Delaware Truck through a surrender agreement, which included its accounts receivable and inventory. Plaintiff realized $98,000 from the proceeds of the accounts receivable. Royal Bank separately obtained a default judgment against Delaware Repair. Royal Bank then made a claim against Delaware Truck, presumably when it learned that Delaware Truck had obtained the accounts receivable and had proceeded to collect them. Royal Bank and Delaware Truck entered into an assignment and subordination agreement whereby Delaware Truck paid Royal Bank $59,500 and Royal Bank assigned to plaintiff its $62,000 default judgment against Delaware Repair, together with the personal guaranties and its secured collateral.
The lower courts held diametrically opposing views of the legal consequences of those transactions. As earlier mentioned, the trial court found that Delaware Truck had properly obtained the senior security interest in defendant's assets because it had filed a financing statement before Royal Bank, and had later received an assignment of Royal Bank's interest. The Appellate Division, however, found that Royal Bank was the *29 first to file a financing statement with specific reference to the accounts receivable, and determined that Royal Bank had the senior security interest in the accounts receivable. We conclude that the evidence of record, consisting only of that produced to support plaintiff's motion for summary judgment, is not sufficient as a matter of law to sustain a judgment for Delaware Truck, the moving party, as found by the trial court, or for defendants, the debtor, Delaware Repair, and the individual guarantors, as determined by the Appellate Division.
According to the Appellate Division, Delaware Truck, as the junior creditor, when it came into possession of the accounts receivable by way of the surrender by Delaware Repair, held those receivables only as a trustee or agent on behalf of Royal Bank because the latter had a senior security interest in the receivables. Hence, plaintiff's collection of Delaware Repair's accounts receivable was deemed to be on behalf of Royal Bank, and its subsequent payment of the proceeds from the receivables to the bank satisfied and extinguished Delaware Repair's debt to Royal Bank. With the disappearance of the debt, the security for the debt likewise evanesced.
It is readily inferable that both Delaware Truck and Royal Bank, in the settlement between them, did not intend to satisfy and thereby discharge the underlying obligations of defendants to Royal Bank. Ordinarily, the intention of the parties determines whether a transfer of money by a third person to a creditor constitutes a discharge or purchase of an underlying debt or note. See Bills and Notes, 10 C.J.S. 451 ("Whether a payment by a stranger was intended in fact to be a payment or a purchase is to be gathered from their acts and declarations and the surrounding circumstances. * * * [I]t is the agreement between the third person [purchaser] and the holder that controls."); see also Mt. Holly State Bank v. Washington Hotel, 220 N.J. Super. 506, 510, 532 A.2d 1125 (App.Div. 1987) (recognizing whether giving of note extinguishes old debt depends on intention of the parties); Payment, 60 *30 Am Jur 2d § 82 ("where a third person pays an obligation of another under agreement with the creditor that it is not to operate as an extinguishment of the debt, it will not have that effect"). This rule may apply to transactions between junior and senior creditors. E.g., Ottenheimer Publishers v. Regal Publishers, 626 S.W.2d 276 (Tenn. Ct. App. 1981) (junior secured creditor did not intend to satisfy underlying debt owed to senior creditor when junior creditor collected debtor's accounts receivable after debtor's insolvency; therefore an assignment to junior creditor of senior's rights against debtor on payment of collected proceeds to senior creditor was not enforceable).
Thus, from the face of the documents evidencing the transaction, it appears that Delaware Truck and Royal Bank mutually intended to transfer, not extinguish, Delaware Repair's underlying debt to Royal Bank. However, regardless of that intent, the Appellate Division may have been correct in concluding that the debt was extinguished as a matter of law. As stated earlier, Royal Bank had priority security interest in Delaware Repair's accounts receivable. That priority interest endured even after plaintiff liquidated the receivables and realized their proceeds. N.J.S.A. 12A:9-306(2) (stating that priority of a creditor holding a perfected security interest continues in proceeds from disposition of collateral); see discussion, supra, at 27-28, 618 A.2d at 307. Consequently, in the absence of countervailing considerations, Royal Bank had a right to require plaintiff to disgorge the proceeds of the accounts receivable to the extent of its priority lien interest. New Hampshire Business Dev. Corp. v. F.R. Lepage Bakery Inc., 832 F.2d 7 (1st Cir.1987). Therefore, despite the contrary intentions of the parties, we cannot discount the force of the Appellate Division's conclusion that plaintiff was acting as a constructive trustee on Royal Bank's behalf.
The hesitancy that we have in affirming that determination is based on the absence in the record of evidence relating to the circumstances surrounding Royal Bank's claim against Delaware *31 Truck and the settlement of that claim. The record does not sufficiently indicate whether Royal Bank knew, expected, or reasonably anticipated that the accounts receivable would be turned over to Delaware Truck and whether the collections of those receivables would be applied first to Delaware Repair's debt of Delaware Truck. Conversely, the record is silent with respect to Delaware Truck's knowledge or expectations in obtaining the accounts receivable and ignoring Royal Bank's priority when it collected the proceeds of those receivables. The record does not inform us whether Delaware Truck had any claim of right to the accounts receivable sufficient to justify its collection and application of some portion of their proceeds to its debt, or whether it had any valid defenses by way of bar or set-off to Royal Bank's later demand that the collected moneys be paid over.
For example, plaintiff alleges that not all of the moneys collected by it on accounts receivable were in fact moneys subject to the superior claim of Royal Bank. The record indicates that plaintiff was first to file a financing statement with respect to "inventory." When a secured party has a security interest in the debtor's inventory that is covered by a properly-filed financing statement, and the debtor sells the inventory on open account creating accounts receivable, the creditor automatically retains a perfected security interest in those accounts receivable. N.J.S.A. 12A:9-306(3). See 2 James J. White & Robert S. Summers, Uniform Commercial Code, 346 (3d ed. 1988). Plaintiff arguably was therefore entitled to collect any inventory-generated accounts receivable and apply the proceeds in satisfaction of the debt owed by Delaware Repair. N.J.S.A. 12A:9-504(1)(b) and N.J.S.A. 12A:9-502.
Because the status of Delaware Truck in collecting the accounts receivable is determinative of its right as assignee to enforce Royal Bank's remedies against the debtors-guarantors, the intentions and expectations of the latter in surrendering the accounts receivable to Delaware Truck may also be relevant. *32 As noted, Royal Bank sued to recover the loan guaranteed by defendants approximately six months after defendants had surrendered the accounts receivable to Delaware Truck and, presumably, after Delaware Truck had begun to collect the receivables. Delaware Repair and the individual guarantors defaulted in that suit. However, the record is silent with respect to whether defendants took the position, as they do now, that Royal Bank's debt had already been satisfied via the surrender of accounts receivable to, and their collection by, Delaware Truck. The defendants' apparent failure to raise that defense, or to claim any set-offs, or to seek to implead Delaware Truck as the holder, constructive trustee, or agent of a fund owed Royal Bank, bear on whether defendants believed Delaware Truck could reduce its own larger claim against defendants without first satisfying the underlying debt of Royal Bank.
An additional circumstance that bears on the understanding and expectation of defendants with respect to whether the disposition of the accounts receivable served to extinguish Royal Bank's debt is the nature and purpose of the guaranty defendants gave Royal Bank and the understanding of defendants in providing that guaranty. The guaranty on its face gives broad rights to Royal Bank. It states that it is "a continuing, absolute and unconditional guaranty" and may be enforced "without first resorting to any security or other property or invoking other available rights or remedies." Thus, under the guaranty Royal Bank had virtually uncontrolled discretion to deal with the collateral, including the right to assign it. See Lenape State Bank v. Winslow Corp., 216 N.J. Super. 115, 127-28, 523 A.2d 223 (App.Div. 1985) (unconditional guaranty grants lender full power, in its uncontrolled discretion and without notice to debtor, to deal in any manner with debtor's liabilities and collateral). Arguably, those rights included the right to foreclose on the guarantors' mortgage and forego its other security interests. N.J.S.A. 12A:9-501(4); see also Lenape State Bank, supra, 216 N.J. Super. at 130, 523 *33 A.2d 223 (secured party can either proceed against personal property under U.C.C. and real property pursuant to New Jersey real-property law or proceed against both real and personal property under New Jersey real-property law). Thus, on Delaware Repair's default, Royal Bank was free to seek recourse directly against the guarantors and to enforce any of its security interests to satisfy its debt. Id. at 126, 523 A.2d 223 (unconditional guaranty permits creditor to move against guarantor without first acting against either collateral or principal debtor).
Moreover, under the doctrine of marshalling assets in an action against defendants, Royal Bank might have had an obligation under the personal guaranties to proceed against the real-estate mortgage in order to enable plaintiff to achieve a recovery out of the accounts receivable. See Meyer v. United States, 375 U.S. 233, 84 S.Ct. 318, 11 L.Ed.2d 293 (1963) (recognizing that court may compel senior creditor who can elect to satisfy claim from one of two available funds belonging to debtor to resort first to the fund unavailable to junior creditor). Hence, in the context of this case, it would also be relevant to determine whether the guarantors, the Wilsons, when signing the guaranty and mortgage, knew or should have known that the bank could, in effect, forego its priority in the receivables, or, indeed, whether in the face of the Wilsons' imminent or actual bankruptcy, the bank would be required or expected to defer to Delaware Truck as the junior creditor with respect to the accounts receivable. Despite the broad range of remedial rights under the guaranty, the record is devoid of any evidence that would tend to show that Royal Bank reasonably would have pursued any particular remedy under the guaranty to the exclusion of another, or whether in its settlement with Delaware Truck it intended to select among the remedies provided by the guaranty.
Finally, it seems clear that defendants' claim that the personal guaranties were discharged because the collateral held *34 by Royal Bank had been impaired through its liquidation is not sustainable. Guarantors may waive their rights to claim impairment of collateral as a defense in the guaranty agreement. Such a waiver, however, must be unequivocal before it will effectively preclude a guarantor from asserting the defense. Langeveld v. L.R.Z.H. Corporation, 74 N.J. 45, 376 A.2d 931 (1977).
These several considerations appear material to whether plaintiff, Delaware Truck, improperly enhanced its position by paying itself $98,000 due Royal Bank and later by taking an assignment of the subject mortgage; and whether Royal Bank, though well within its rights to assign its default judgment and security interests, including defendants' personal guaranty secured by their residential mortgage, merely received a sum that was equivalent to the amount of the bank's judgment against defendants. Additional evidence should inform the determination of whether plaintiff and Royal Bank entered into a valid settlement permitting plaintiff to foreclose on defendants' residence.
III
We do not purport to resolve any of the factual issues that appear germane to proper determination of the claims in this case, or to intimate the weight, if any, to be ascribed to any facts that are found. While we cannot on this record indicate that any particular determination of these issues would dictate a resolution in favor of either party, the relevance of these issues forestalls a motion for summary judgment based on the current record.
In conclusion, we reverse the judgment of the Appellate Division, and remand this matter to the trial court for further proceedings consistent with this opinion.
POLLOCK, J., concurring.
I concur in the judgment of remand, and write separately with the hope of providing further guidance to the trial court. *35 My concern is that without further explanation, the court might misconstrue the rights and duties of the parties and reach a result that is both contrary to law and inequitable. That possibility involves more than theoretical nuances. At stake is the home of defendants Edward L. Wilson and Joan Wilson, his wife (the Wilsons).
This appeal arises from the motion of plaintiff, Delaware Truck Sales, Inc. (Delaware Truck), for summary judgment to foreclose a mortgage given by the Wilsons to secure their guaranty of a promissory note executed by Mr. Wilson's corporation, Delaware Repair Services, Inc. (Delaware Repair), in favor of Royal Bank of Pennsylvania (Royal Bank or bank). Although the record is sparse, the following facts emerge. Edward Wilson formerly worked for Delaware Truck, which was in the business of repairing cargo containers. Together with another former employee, he incorporated Delaware Repair to purchase the assets of Delaware Truck. Mr. Wilson arranged on August 20, 1984, with Royal Bank for a $75,000 line of credit evidenced by a promissory note signed by Delaware Repair. To secure the loan, Delaware Repair executed a financing statement covering various assets, including inventory and accounts receivable. Royal Bank filed the financing statement with the Camden County Clerk on September 19, 1984, and with the Secretary of State on September 25, 1984. As further security, the Wilsons executed a personal guaranty, secured by the subject mortgage on their residence, which Mrs. Wilson had inherited from her mother.
In the interim, on September 6, 1984, Delaware Repair signed a contract to purchase the assets of Delaware Truck. The purchase price of $300,000 was paid by a $270,000 promissory note and a $30,000 cash payment. Mr. Wilson and the co-employee guaranteed payment of the note. Mrs. Wilson, however, assumed no personal liability to Delaware Truck. Nor did the Wilsons execute a mortgage on their home in favor of Delaware Truck. The agreement contemplated that Delaware Repair would execute "financing statements" that would include *36 a "secondary lien" on Delaware Repair's accounts receivable, "subject only to a prior lien in favor of Purchaser's institutional lender." On October 4, 1984, fifteen days after Royal Bank had filed financing statements covering Delaware Repair's receivables, Delaware Truck filed a financing statement covering those receivables. Thus, as the majority finds, "Royal Bank's priority interest in the accounts receivable of Delaware Repair was superior to the security interest of plaintiff." Ante at 28, 618 A.2d at 307. That finding, in my opinion, governs the rights and duties of the parties and controls the outcome of this case.
Like the Appellate Division and the majority, I believe that Royal Bank had a senior lien on non-inventory-generated accounts receivable. I disagree, however, with the majority's statement that Delaware Truck "arguably was * * * entitled to collect any inventory-generated accounts receivable and apply the proceeds in satisfaction of the debt owed [to it] by Delaware Repair." Ante at 31, 618 A.2d at 309. I do not dwell on this disagreement because, as the Appellate Division found, the inventory "sounds like a minor incidental part of the business and its proceeds." Thus, even if Delaware Truck had a valid lien on proceeds traceable to inventory, it was obligated to surrender the bulk of the proceeds to Royal Bank because the bank's lien covered most, if not all, of the proceeds.
Delaware Repair defaulted on its payments to Delaware Truck and Royal Bank. On May 27, 1988, Delaware Repair signed a "Surrender Agreement" with Delaware Truck, in which Delaware Repair acknowledged that it owed $166,935.58, and surrendered to Delaware Truck all assets in which Delaware Truck held a security interest, including inventory and accounts receivable of $140,000. Without notifying Royal Bank, Delaware Truck collected $98,600 on those receivables. Notwithstanding Royal Bank's prior security interest, Delaware Truck applied the proceeds to reduce the debt secured by its subordinate security interest in the accounts receivable.
*37 In December 1988, Royal Bank obtained a default judgment against Delaware Repair and the Wilsons for $62,000 $36,600 less than the amount recovered by Delaware Truck on Delaware Repair's receivables. If Delaware Truck had honored Royal Bank's senior security interest, the Wilsons' debt to the bank would have been satisfied and Royal Bank would have cancelled both their guaranty and their mortgage, with the result that it would not have obtained its judgment against them.
On learning that Delaware Truck had applied the proceeds to reduce the amount owed on its note rather than that of Royal Bank, the bank threatened to sue Delaware Truck. The two creditors settled their dispute, apparently without the knowledge or consent of the Wilsons.
Under the settlement, Delaware Truck paid Royal Bank $59,500, only $2,500 less than the amount of the bank's judgment against defendants. The record does not indicate whether the $59,500 derived from the $98,600 that Delaware Truck had misappropriated from the proceeds of Delaware Repair's receivables. If so, that would compound the wrongfulness of Delaware Truck's misuse of the proceeds. In exchange for the $59,500, Royal Bank assigned its judgment to Delaware Truck, together with the Wilsons' personal guaranty secured by the mortgage on their home. Royal Bank signed a subordination agreement prepared by Delaware Truck's attorney, in which Royal Bank acknowledged that "every security interest held by Royal Bank in each and every asset of Delaware Repair Services, Inc. is subordinate to the security interest of Delaware Truck."
To the extent that the agreement indicates that Royal Bank's security interest in Delaware Repair's accounts receivable was subordinate to that of Delaware Truck, the agreement, as the majority implicitly recognizes, is incorrect. If the purpose of the provision was to reflect Royal Bank's intent to subordinate its security interest, that provision should not bind the Wilsons. *38 Under the agreement, Royal Bank's loan was satisfied; the bank would not care if its security interest was subordinate to that of Delaware Truck. The two creditors could not bargain away the debtors' expectation that the bank loan, which was secured by the subject mortgage, would be satisfied from the proceeds of accounts receivable in favor of their obligation to Delaware Truck.
The majority correctly concludes that notwithstanding the "intentions of the parties, we cannot discount the force of the Appellate Division's conclusion that [Delaware Truck] was acting as a constructive trustee on Royal Bank's behalf." Ante at 30, 618 A.2d at 308. In support of that conclusion, the majority relies on the silence of the record concerning the knowledge or expectations of the two creditors. Also relevant, as the majority acknowledges, ante at 31, 618 A.2d at 308-09, are the guarantors' expectations. If the Wilsons had agreed with Royal Bank that the bank enjoyed a senior security interest in the proceeds, the two creditors by themselves could not defeat that expectation.
A fair reading of the record suggests that by applying the proceeds of the receivables to its own claim, Delaware Truck deprived Royal Bank of money to which it was entitled, forced the bank to threaten suit, and then resolved the dispute by paying the bank virtually all the money due on the bank's loan. Thus, Delaware Truck enhanced its position, first by paying itself $98,600 due Royal Bank and later by taking an assignment of the subject mortgage. If Delaware Truck had paid the bank $62,000 from the proceeds of the receivables, the bank's loan would have been satisfied and Royal Bank would have cancelled the mortgage. By misappropriating the proceeds of the receivables, Delaware Truck prevented the payment of Royal Bank's loan and facilitated the assignment of the subject mortgage, all to its benefit and the Wilsons' detriment. Having brought the bank to the bargaining table by not honoring the bank's senior security interest in the receivables, Delaware Truck improved its position to the prejudice of the Wilsons. *39 Until it acquired Mrs. Wilson's guaranty and the subject mortgage, Delaware Truck had no claim against her or her family home. If it had paid Royal Bank from the proceeds of the receivables, Delaware Truck never would have acquired the mortgage from the bank. Only by misusing the proceeds was Delaware Truck able to acquire the mortgage that it now seeks to foreclose.
In April 1989, Delaware Truck sued Delaware Repair and the Wilsons on both the note signed by Delaware Repair in favor of Delaware Truck and on Royal Bank's judgment. That action apparently drove Edward Wilson into bankruptcy and induced Delaware Truck to bring the present action to foreclose on the Wilsons' home.
Throughout these proceedings, the cornerstone of Delaware Truck's position has been its claim that it was entitled to the proceeds of the accounts receivable because its security interest was senior to that of Royal Bank. The trial court accepted that claim, but both the Appellate Division and this Court have correctly rejected it.
The trial court also adopted Delaware Truck's alternative argument that through the subordination agreement and assignments from Royal Bank, Delaware Truck had obtained a senior security interest in the receivables. In adopting that argument, the court relied on the Wilsons' guaranty, which stated that it could be enforced "without first resorting to any security or other property or invoking other available rights or remedy."
The Appellate Division, however, concluded that because Delaware Repair should have applied the proceeds to Royal Bank's debt, that debt should be deemed satisfied. It relied on N.J.S.A. 12A:9-312(5), which grants priority to the first creditor to perfect a security interest by filing. The court reasoned that Delaware Truck should have honored Royal Bank's senior security interest and paid the amount needed to satisfy the Wilsons' debt to the bank. Like the bank, the Wilsons had a right to *40 expect that Delaware Truck would pay the bank before paying itself. Only by violating its duty under the Uniform Commercial Code was Delaware Truck able to bring the bank to the bargaining table and obtain the bank's consent to the agreement. From Royal Bank's perspective, once its loan was satisfied, it had no financial interest in the legal relationship between Delaware Truck and the Wilsons. Neither Delaware Truck nor Royal Bank inquired whether their agreement defeated the Wilsons' expectations.
The majority finds "readily inferable that both Delaware Truck and Royal Bank, in the settlement between them, did not intend to satisfy and thereby discharge the underlying obligations of defendants to Royal Bank." Ante at 29, 618 A.2d at 308. The record may support, but hardly compels such a finding. Hence, I would not leap to the conclusion that "from the face of the documents evidencing the transaction, it appears that Delaware Truck and Royal Bank mutually intended to transfer, not extinguish, Delaware Repair's underlying debt to Royal Bank." Id. at 30, 618 A.2d at 308. My difference with the majority ordinarily might not amount to anything more than a quibble. Here, the difference requires further explanation.
I agree with the Appellate Division that the Wilsons' debt to Delaware Truck was extinguished as a matter of law. The majority, however, goes no further than to concede that "the Appellate Division may have been correct in concluding that the debt was extinguished as a matter of law." Id. at 30, 618 A.2d at 308. That equivocation reflects a misperception of the relationship between the Wilsons and Royal Bank and of that between Royal Bank and Delaware Truck. The misperception causes the majority's "hesitancy * * * in affirming [the judgment of the Appellate Division] based on the absence in the record of evidence relating to the circumstances surrounding Royal Bank's claim against Delaware Truck and the settlement of that claim." Ibid.
*41 More important than the relationship between Royal Bank and Delaware Truck, I believe, is that between the bank and the Wilsons. Like the bank, the Wilsons, as guarantors of Delaware Repair's debt to Royal Bank, had the right to expect that Delaware Truck would respect the seniority of the bank's security interest. Delaware Truck and Royal Bank could not deprive the Wilsons of that right without the Wilsons' consent. See Ottenheimer Publishers v. Regal Publishers, 626 S.W.2d 276, 280 (Tenn. App. 1981) (stating that debtor "does at least have the right to have the collateral disposed of in a manner which will satisfy the debt for which it was offered as security"). Hence, I disagree with the majority's suggestion that the Wilsons' expectations may be relevant because "the status of Delaware Truck in collecting the accounts receivable is determinative of its right as assignee to enforce Royal Bank's remedies against the debtors-guarantors * * *." Ante at 31-32, 618 A.2d at 309. The Wilsons' expectations are relevant not because Delaware Truck's status is determinative, but because their expectations limit the extent to which Royal Bank and Delaware Truck may deal with the proceeds of Delaware Repair's receivables.
Similar reasoning leads me to conclude that the majority has unduly emphasized the position taken by the Wilsons in the action by Royal Bank. The Wilsons' rights should be determined by their original agreement with the bank, rather than by their position in subsequent litigation. Any failure of the Wilsons to contest vigorously Royal Bank's claim need not reflect their belief that "Delaware Truck could reduce its own larger claim against defendants without first satisfying the underlying debt of Royal Bank." Ante at 32, 618 A.2d at 309.
I also believe that the majority misperceives the significance of the Wilsons' guaranty. By its terms, the guaranty was absolute, unconditional, and assignable. Under the circumstances of this case, however, Delaware Truck should not be allowed to avail itself of the guaranty or of its self-serving *42 agreement with Royal Bank, an agreement that apparently was drafted by Delaware Truck's attorney without the knowledge or consent of the Wilsons. The reason is that the guaranty is subject to the Wilsons' expectation that Delaware Truck would pay Royal Bank from the proceeds of the receivables. Thus, the point is not that "Royal Bank might have had an obligation under the personal guaranties to proceed against the real-estate mortgage in order to enable plaintiff to achieve a recovery out of the accounts receivable." Ante at 33, 618 A.2d at 310. Rather, the point is that Delaware Truck and Royal Bank's agreement alone could not deprive the Wilsons of their rights, notwithstanding the terms of the guaranty. A contrary result could lead to a circuity of action: the Wilsons could recover from Royal Bank for its failure to apply the proceeds to the loan secured by their guaranty, and the bank could then recover from Delaware Truck for the misapplication of the proceeds.
Royal Bank recognized that its primary obligor was Delaware Truck. On discovering that Delaware Repair had misapplied the accounts receivable, the bank did not seek to foreclose on the Wilsons' home, but threatened to sue Delaware Truck. Had the Wilsons paid Royal Bank under their guaranty of Delaware Repair's loan, they would have been subrogated to the bank's rights against Delaware Truck for misappropriation of the proceeds of the receivables. See Langeveld v. L.R.Z.H. Corp., 74 N.J. 45, 51, 376 A.2d 931 (1977) ("Upon paying the debt, the surety is, as a matter of law, subrogated to all the creditor's rights against the principal debtor and is entitled to all benefits derivable from any security of the principal debtor that may be in the creditor's hands."); see also Ottenheimer Publishers, supra, 626 S.W.2d at 281 ("Generally, a surety or guarantor, by payment of the debt of his principal * * * acquires an immediate right to be subrogated * * * to all rights, remedies and securities which were available to the creditor * * *."). In effect, the parties would have landed in their present position with the Wilsons entitled to credit against Delaware Truck for the misuse of the proceeds of Delaware *43 Repair's receivables. Thus, I believe the majority goes too far in stating that "it seems clear that defendants' claim that the personal guaranties were discharged because the collateral held by Royal Bank had been impaired through its liquidation is not sustainable." Ante at 34, 618 A.2d at 310. For, as we have held, "The rule forbidding impairment of collateral has as its chief aim the protection of [the] potential benefits made available through subrogation." Langeveld, supra, 74 N.J. at 51, 376 A.2d 931.
The majority should not rely on the possibility that Royal Bank may have had an equitable obligation to marshall its assets in favor of Delaware Truck. As previously indicated, the critical relationship is not that between Royal Bank and Delaware Truck, except insofar as N.J.S.A. 12A:9-312(5) obligates Delaware Truck to honor the bank's senior security interest. The focus should be on the relationship between Delaware Truck and the Wilsons.
N.J.S.A. 12A:9-504 generally authorizes creditors to dispose of collateral to satisfy a defaulted loan. An earlier section, N.J.S.A. 12A:9-306(2), provides that a security interest continues in the proceeds from the disposition of collateral. No one disputes that the security interest of a creditor continues in the proceeds from the collection of accounts receivable. N.J.S.A. 12A:9-306, comments 2 & 3; 9 Ronald A. Anderson, U.C.C. § 9-306:11, at 142 (1985); 9 William D. Hawkland, Uniform Commercial Code Series § 9-306:03 (1986). The priority of a creditor with a perfected security interest in the receivables continues in the proceeds. 3 Theodore Eisenberg, Debtor-Creditor Law ¶ 15.05[B], at 15-85 (1989). A creditor with a security interest in accounts receivable need not take possession of the receivables to perfect its lien. Id. at 15-89. A secured creditor who disposes of proceeds in violation of article 9 "is liable to the debtor and other secured parties for any loss caused by his failure to comply." Id. ¶ 15.09[H], at 15-149.
*44 I do not read Professors White and Summers's text to the contrary. In their text, they state that they do not believe that a senior secured party "may seek to assert a prior claim to the proceeds of the sale conducted by the junior secured party." 2 James J. White & Robert S. Summers, U.C.C. § 27-9, at 593 (3d ed. 1988). That statement appears in a discussion of the relative rights of creditors in the context of a foreclosure sale of collateral under section 9-504(4) of the Uniform Commercial Code, adopted in New Jersey as N.J.S.A. 12A:9-504(4). Their criticism is that if the senior creditor "wants such priority, he should have to run the foreclosure sale. And if he does not, his interest is protected anyway." 2 White & Summers, supra, § 27-9, at 593. Taken in context, that statement should not apply to the collection of accounts receivable by a junior creditor in possession.
The First Circuit reached the same result in a similar case, New Hampshire Business Development Corp. v. F.R. Lepage Bakery, 832 F.2d 7 (1987). There, New Hampshire Business Development Corp. (NHBDC) had a $50,000 senior security interest in accounts receivable of one Cross. F.R. Lepage Bakery (Lepage) held a junior security interest in the same receivables. Lepage collected the proceeds of the receivables. The issue was whether Lepage was obliged to account to NHBDC to the extent of its $50,000 security interest. The court ruled that
[t]he rights of the secured parties in the collateral after a debtor's default are the essence of a security transaction. It is the relationship between a senior secured creditor and a junior secured creditor that defines their obligations. Although not extensive, the case law indicates that it is the obligation of the junior creditor to account for and pay over to the senior creditor the sums collected.
[Id. at 10 (citations omitted).]
I agree.
The court also found that
[t]he relationship of the parties and the circumstances of the case also give rise to the remedial device of a constructive trust. The junior creditor (Lepage) holds the right to payment from the common debtor (Cross) as a constructive *45 trustee for the senior creditor (NHBDC) after the default of the common debtor.
[Id. at 11 (citations omitted).]
That case involved the imposition of a constructive trust on a junior creditor in favor of a senior creditor. The present matter concerns the relationship between a misappropriating junior creditor and the debtor and the debtor's guarantors, but the distinction should not make any difference.
"[A] constructive trust, unlike an express trust, is a remedial and not a substantive institution." Austin W. Scott, Constructive Trusts, 71 L.Q.Rev. 39, 41 (1955) (citing Roscoe Pound, The Progress of the Law Equity, 33 Harv.L.Rev. 420, 421 (1920)). In Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378, 380 (1919), Judge Cardozo defined a constructive trust as "the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee." See also Restatement of the Law of Restitution § 160 (1937); 5 Austin W. Scott & William F. Fratcher, The Law of Trusts § 452, at 304 (4th ed. 1989) ("A constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it."); 4A Richard R. Powell, The Law of Real Property § 594, at 48-3 to -4 (same); 4 John N. Pomeroy, Equity Jurisprudence § 1044, at 93 (1941) ("They arise when the legal title to property is sustained by a person in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to his beneficial rights of ownership."); accord D'Ippolito v. Castoro, 51 N.J. 584, 588-89, 242 A.2d 617 (1968); Stewart v. Harris Structural Steel Co., Inc., 198 N.J. Super. 255, 265-66, 486 A.2d 1265 (App.Div. 1984); Massa v. Laing, 160 N.J. Super. 443, 446, 390 A.2d 624 (App.Div. 1977), aff'd o.b., 77 N.J. 227, 390 A.2d 547 (1978); Callahan v. Callahan, 142 N.J. Super. 325, *46 329, 361 A.2d 561 (App.Div. 1976); Hirsch v. Travelers Ins. Co., 134 N.J. Super. 466, 470, 341 A.2d 691 (App.Div. 1975).
By not turning over the proceeds to Royal Bank, Delaware Truck unjustly enriched itself and became a constructive trustee for the benefit of the Wilsons. See 5 Scott & Fratcher, supra, § 462.2, at 313-14 (stating that unjust enrichment may arise out of wrongful acquisition or retention of property). The subordination agreement between Delaware Truck and Royal Bank is irrelevant; the constructive trust arises to prevent the unjust enrichment of Delaware Truck at the expense of the Wilsons. See id. § 462, at 311. Royal Bank was entitled to an equitable lien on the proceeds. 4 Scott & Fratcher, supra, § 291.4, at 82; id. § 508.2, at 569.
On remand, I believe the trial court should focus on the Wilsons' right to expect Delaware Trust to turn over the proceeds to Royal Bank for application against Delaware Repair's $75,000 bank loan, which was secured by the subject mortgage.
POLLOCK and STEIN, JJ., concurring in the result.
For reversal and remandment Chief Justice WILENTZ, and CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 7.
For affirmance None.
NOTES
[1] Timothy Realty Corporation, the owner of the property on which Delaware Repair's operations were being conducted, was also a plaintiff. The debtor apparently had defaulted on its rental obligations to Timothy Realty in 1985. The record does not disclose the dispositions relating to this plaintiff or defendant George Fandrick. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262132/ | 900 F.Supp. 1378 (1995)
Donald E. HANEY, Plaintiff,
v.
TIMESAVERS, INC., et al., Defendants.
Civ. Nos. 93-151-FR, 92-270-FR, 93-703-FR and 94-804-FR.
United States District Court, D. Oregon.
October 19, 1995.
*1379 David A. Fanning, Peter E. Heuser, M.H. Hartwell, Kolisch, Hartwell, Dickinson, McCormack & Heuser, Portland, OR, for Plaintiff.
James Campbell, Garth A. Winn, Klarquist, Sparkman, Campbell, Leigh & Whinston, Portland, OR, for Defendants.
OPINION
FRYE, District Judge:
The matters before the court are 1) Haney's motion for partial summary judgment concerning enforceability, invalidity under 35 U.S.C. § 112, and infringement of claim 14 (# 229); and 2) Timesavers' cross-motion for summary judgment on claim 14 of the '913 patent (# 239).
BACKGROUND
The plaintiff, Donald E. Haney, owns patent 5,081,794 (the '794 patent); patent 5,181,342 (the '342 patent); and patent 5,321,913 (the '913 patent) covering various orbital sanders. Haney has alleged in these consolidated actions that defendant Timesavers, Inc. (Timesavers) infringes his patents by making, using and selling sanders covered by claim 20 of the '794 patent, claims 2-6, 8-12, 14, 17-19, 21-24 and 26 of the '342 patent, and claims 3 and 14 of the '913 patent.
*1380 CONTENTIONS OF HANEY
Haney contends that he is entitled to an order of summary judgment in his favor with respect to the affirmative defenses alleged by Timesavers that the '794 patent, the '342 patent, and the '913 patent are unenforceable because of inequitable conduct and laches.
Haney further contends that he is entitled to summary judgment in his favor with respect to the affirmative defenses alleged by Timesavers that the '913 patent is invalid because of enablement, overbreadth, indefiniteness, inoperability and concealment of the best mode.
Finally, Haney renews his motion for summary judgment that Timesavers infringes claim 14 of the '913 patent, which motion was denied by the Honorable Ancer L. Haggerty, United States District Court Judge on April 26, 1995.
CONTENTIONS OF TIMESAVERS
Timesavers contends that it is entitled to summary judgment in its favor with respect to its affirmative defenses of enablement, overbreadth and indefiniteness to claim 14 of the '913 patent.
Timesavers further contends that Haney is not entitled to summary judgment in its favor with respect to Timesavers' affirmative defenses of inequitable conduct and laches as to the '794 patent, the '342 patent, and the '913 patent, and with respect to Timesavers' affirmative defenses of inoperability and concealment of the best mode of claim 14 of the '913 patent on the grounds that there are genuine issues of material fact to be resolved.
Finally, Timesavers contends that summary judgment in favor of Haney with respect to infringement of claim 14 of the '913 patent is not appropriate because the court has heretofore found that there are genuine issues of fact precluding a grant of summary judgment.
APPLICABLE STANDARD
Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact.
Once the initial burden of the moving party is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of material fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The non-moving party must make a sufficient showing on all essential elements of the case with respect to which the non-moving party has the burden of proof. Id.
The decision faced by the court is essentially the same decision faced by a court on a motion for a directed verdict that is, whether the evidence on the motion for summary judgment presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If reasonable minds could differ as to the conclusions drawn from the evidence in the record, the motion for summary judgment should be denied. Id.
ANALYSIS
1. Inequitable Conduct
A. Contentions of the Parties
Timesavers has alleged in its pleadings that Haney's '794 patent, '342 patent, and '913 patent are unenforceable because of the inequitable conduct of Haney during the prosecution of those applications before the Patent and Trademark Office (Patent Office). See Defendants' Answer to the First Amended Complaint for Patent Infringement, Civil No. 94-804-FR, pp. 8-11.
Timesavers contends that Haney committed inequitable conduct in the prosecution of his third patent, the '913 patent, through the following actions:
withholding material information concerning the ongoing litigation with respect to the earlier patents, such as the discussions of the prior art in the Court's summary judgment decisions and the experts' declarations;
burying material prior art within other, less relevant references;
*1381 deleting certain language concerning the prior art from the specification; and
attempting to add new matter.
Timesavers' Memorandum in Response to Haney's Motion for Partial Summary Judgment, pp. 14-15.
Timesavers contends that the court should allow its defense of inequitable conduct on the part of Haney to go forward because Haney did not submit to the Patent Office the opinions of the court from prior litigation concerning infringement of the '794 patent and the '342 patent; Haney did not disclose to the Patent Office the declarations of Timesavers' experts, Paul Petersen and Richard Seed, from the prior litigation who explained the materiality of the prior art to Haney's sander; and Haney buried the references to the Meyer patent and the Peyches patent among a group of ninety-one other, mostly far less relevant, references.
Haney contends that there is no evidence of inequitable conduct on his part as to the prosecution of the '794 patent and the '342 patent. Haney further contends that Timesavers' charges of inequitable conduct during the prosecution of the '913 patent are factually incorrect and/or inadequate as a matter of law to support such a claim in this case.
Haney argues that the Patent Office was notified by the Clerk of the United States District Court for the District of Oregon as to the pending litigation involving the '794 patent and the '342 patent, and that Haney disclosed all relevant prior art, including the Meyer patent and the Peyches patent, to the Patent Office during the prosecution of the '913 patent in accordance with the applicable regulations. Haney argues that there is no evidence of any intent on his part to mislead the Patent Office by withholding material information.
B. Applicable Law
The duty of an applicant to disclose material information is set forth in 37 C.F.R. § 1.56(a), which states, in part:
Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section.
In FMC Corp. v. Manitowoc Co., 835 F.2d 1411 (Fed.Cir.1987), the United States Court of Appeals for the Federal Circuit explained:
"Inequitable conduct" is not, or should not be, a magic incantation to be asserted against every patentee. Nor is that allegation established upon a mere showing that art or information having some degree of materiality was not disclosed. To be guilty of inequitable conduct, one must have intended to act inequitably. Thus, one who alleges a "failure to disclose" form of inequitable conduct must offer clear and convincing proof of: (1) prior art or information that is material; (2) knowledge chargeable to applicant of that prior art or information and of its materiality; and (3) failure of the applicant to disclose the art or information resulting from an intent to mislead the [Patent and Trademark Office].
Id. at 1415 (footnote omitted).
C. Ruling of the Court
Timesavers has not come forth with any evidence to support its claim of inequitable conduct on the part of Haney during the prosecution of the '794 patent and the '342 patent. The remaining issue is whether Haney is entitled to summary judgment in his favor with respect to its alleged inequitable conduct during the prosecution of the '913 patent.
The evidence in this case establishes that Haney disclosed to the Patent Office the Meyer and Peyches references relied upon by Timesavers. On April 26, 1993, the Patent Office received from Haney a form on which Haney identified the Peyches patents. List of Prior Art Cited by Applicant, Prosecution History of Patent 5,312,913 (attached as Exhibit 3 to Timesavers' Memorandum in Response to Haney's Motion for Partial Summary Judgment). This notice of prior art was in accordance with the regulations of the Patent Office. There is no evidence that Haney breached any duty of disclosure as to prior art during the prosecution of the '913 patent.
*1382 Timesavers further contends that Haney engaged in inequitable conduct by not informing the Patent Examiner about material information from the prior litigation involving the '794 patent and the '342 patent. The Patent Office was notified, however, by this court of the existence of this litigation pursuant to the requirements of 35 U.S.C. § 290.
The Patent Office knew of the prior litigation and the prior art. Timesavers' complaints as to how this information was conveyed to the Patent Office cannot form the basis for a claim of inequitable conduct. The court cannot infer an intent to deceive on the part of Haney from the manner in which the information was conveyed to the Patent Office when the information was, in fact, conveyed. The court finds that there is insufficient evidence in this case to support Timesavers' claim of inequitable conduct on the part of Haney. Haney is entitled to summary judgment in his favor on claims by Timesavers that the '794 patent, the '342 patent, and the '913 patent are unenforceable because of the inequitable conduct of Haney during the prosecution of those applications.
2. Laches
A. Contentions of the Parties
Timesavers contends that Haney has delayed in filing continuation applications for the purpose of obtaining patents on broader or different claims involving the same subject matter as claimed in the original patent application. Timesavers contends that this delay by Haney renders the '342 patent and the '913 patent unenforceable on the grounds of laches.
Haney contends that Timesavers' asserted defense of laches is really an objection to Haney obtaining additional patents after he was awarded his first patent and has no merit.
B. Applicable Law
In order to invoke the defense of laches, a defendant has the burden to prove two factors: 1) the plaintiff has delayed for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant; and 2) the delay operated to the prejudice or injury of the defendant. A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1032 (Fed.Cir. 1992).
C. Ruling of the Court
The '794 patent was issued January 21, 1992, and Haney filed his action on March 6, 1992; the '342 patent was issued January 26, 1993, and Haney filed his action on February 5, 1993; and the '913 patent was issued June 21, 1994, and Haney filed his action on July 6, 1994. There is no delay in this case between the issuance of the patent and the initiation of the action. Timesavers instead asserts that the '342 patent and the '913 patent are unenforceable because Haney knew all of the aspects of his invention in 1990 when he filed his first application, but has filed continuing applications in subsequent years in an attempt to stretch his originally filed application to cover other sanders in the marketplace.
35 U.S.C. § 120 expressly permits Haney to file additional applications to obtain additional claims. Furthermore, it is not "`improper to amend or insert claims intended to cover a competitor's product the applicant's attorney has learned about during the prosecution of a patent application.'" Texas Instruments Inc. v. United States Int'l Trade Comm'n, 871 F.2d 1054, 1065 (Fed.Cir.1989) (quoting Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 874 (Fed. Cir.1988), cert. denied, 490 U.S. 1067, 109 S.Ct. 2068, 104 L.Ed.2d 633 (1989)).
In summary, there are no facts or law to support Timesavers' claim that Haney's '342 patent and '913 patent are unenforceable because Haney continued to file additional applications. Haney is entitled to summary judgment on Timesavers' affirmative defense of laches.
3. Infringement of Claim 14 of the '913 Patent
On April 26, 1995, Judge Haggerty entered an order denying the motion of Haney for partial summary judgment of infringement. In the opinion that he filed on that same day, Judge Haggerty concluded that Haney had failed to prove that every *1383 limitation of claim 14 of Haney's '913 patent is found in Timesavers' accused sander.
Claim 14 of Haney's '913 patent reads as follows:
14. An orbital sander comprising:
a frame,
a first motor mounted on the frame,
a moveable brace supported by the frame,
a first shaft rotatable by the first motor and linked to the moveable brace and configured to move the brace when the shaft is rotated by the first motor,
a second motor mounted on the brace, first and second bearings mounted on the brace,
a moveable, elongate platen having a flat bottom surface with side edges and an upper region,
third and fourth bearings mounted on the platen's upper region,
second and third shafts rotatable by the second motor, held by the first and third and second and fourth bearings, respectively, so that the shafts support the platen, and where the shafts are configured to move the platen in a translational orbit when the shafts are rotated by the second motor,
a pad held on the platen's flat bottom surface,
a fastener associated with the platen,
a sheet of sandpaper secured by the fastener to the platen's flat bottom surface over the side edges and over the pad so that the sandpaper moves when the platen moves, and
a conveyor supported by the frame and positioned beneath the platen's flat bottom surface.
United States Patent No. 5,321,913, col. 8, Ins. 27-53 (attached as Exhibit 6 to Timesavers' Memorandum in Response to Haney's Motion for Partial Summary Judgment).
The dispute between Haney and Timesavers continues to be over the following claim limitation from claim 14:
a first shaft rotatable by the first motor and linked to the moveable brace and configured to move the brace when the shaft is rotated by the first motor,
In the opinion that he filed on April 26, 1995, Judge Haggerty explained:
Timesavers contends that this claim limitation must be interpreted to mean that two shafts, as opposed to a single shaft, must be linked to the moveable brace. Timesavers further contends that because the accused sander uses a crank-and-slider mechanism with a single shaft to perform the function of the limitation, it does not literally infringe claim 14.
Opinion, pp. 14-15.
Haney argued that the claim limitation of a "first shaft" should not be interpreted to mean "two shafts," because to do so would read a limitation from the patent specification into the claim.
Judge Haggerty noted that Timesavers had presented the testimony of an expert witness who stated that the sander described by claim 14 would be inoperable if it was constructed with a single shaft. In addition, Judge Haggerty stated that the specifications for the '913 patent describe only a device which uses a dual-shaft mechanism to move the attached brace, but he noted that limitations appearing exclusively in the specification should not be read into the patent claims.
Judge Haggerty concluded:
This court recognizes that all of the drawings of the preferred embodiment of Haney's claimed invention contained within the '913 patent, as well as the commercial embodiment of the invention show a device having two shafts linked to the moveable brace. This court is not attempting to compare the accused sander to the commercial embodiment or to any of the specific drawings in the patent. Instead, these notable absences further evidence that the sander defined in claim 14 may not function using a single shaft.
The issue is not that this court is incapable of reasonably construing claim 14 so as to define an operable device. The record reflects that Haney's sander has achieved commercial success which is compelling evidence that the claimed invention is operable. Haney, however, offers an interpretation of this claim 14 limitation which might be violative of the rule that claims are to be interpreted in a manner sustaining validity. This court cannot, based upon the *1384 record before it, determine whether this rule would be transgressed if it adopted Haney's interpretation.
Although Haney has presented no evidence that the sander defined in claim 14 could operate with only a single shaft linked to the moveable brace[,] Timesavers has, similarly, failed to present sufficient evidence to convince this court that a single-shafted sander containing each of the limitations found in claim 14 is functionally inconceivable. This court therefore concludes that genuine issues of material fact exist as to whether the device defined by claim 14 could operate using a single shaft to move the brace. Even if the claim limitation at issue could be interpreted to include the crank-and-slider mechanism employed in the accused sander, genuine issues of material fact would exist concerning whether that interpretation improperly covers prior art.
Opinion, pp. 17-18 (citations omitted).
Haney contends that Judge Haggerty improperly relied upon the testimony of Timesavers' expert witness regarding the operability of the sander with one shaft. Haney argues that this testimony is irrelevant to the issues of claim interpretation and infringement, and that the court should now interpret the remaining limitation of claim 14.
Haney argues that the language "a first shaft rotatable by the first motor and linked to the moveable brace and configured to move the brace when the shaft is rotated by the first motor" should be interpreted to refer to exactly what it says, and that nothing in the '913 patent or its prosecution history suggests that this limitation should be given a specialized or different meaning. Haney contends that when this claim language is given its plain meaning, it is clear that Timesavers' O/B sanders include the limitation.
Timesavers contends that it was proper for Judge Haggerty to accept the testimony of Timesavers' expert witness regarding operability; that it was appropriate for Judge Haggerty to examine the operability of the sander described in claim 14 as interpreted by Haney in order to determine whether claim 14 was valid under Haney's interpretation; and that if the court found the sander inoperable under Haney's interpretation of claim 14, then the court could determine whether it would construe the claim in a different way so as to uphold its validity.
The arguments of the parties in this case reflect the tension between two general principles of patent law. On the one hand, "[i]t is well established that a properly construed patent claim which defines an inoperable device renders that claim invalid. It is also well established that patent claims must be construed, where possible, in a manner as to sustain their validity." Haggerty Opinion, p. 15 (citation omitted).
On the other hand, "limitations appearing exclusively in the specification should not be read into the patent claims. However, this court must read and construe claim 14 in light of the specification." Id. at 16-17.
The interpretation and construction of patent claims, which define the scope of the patentee's rights under the patent, are matters of law for the court. Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed.Cir.1995). "[T]he words of a claim are generally given their ordinary and accustomed meaning, unless it appears from the specification or the file history that they were used differently by the inventor." Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1577 (Fed.Cir.1993). "`To ascertain the meaning of claims, we consider three sources: The claims, the specification, and the prosecution history.'" Markman, 52 F.3d at 979 (quoting Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1561 (Fed.Cir.1991)).
While the claims must be read in view of the specifications, of which they are a part, the court cannot use the specifications to enlarge, diminish or vary the claims. See Markman, 52 F.3d at 979-80.
In this case, the limitation in claim 14 of the '913 patent states "a first shaft rotatable by the first motor and linked to the moveable brace and configured to move the brace when the shaft is rotated by the first motor." The specification of the '913 patent describes only a device which uses a dual-shaft mechanism to move the attached brace. These facts cannot be reconciled by interpreting the language of the claim "first shaft" to mean "two *1385 shafts" or "dual shafts." This would vary the claim language and would read limitations into the claim language which appear exclusively in the specification. If the invention described in claim 14 of the '913 patent is inoperable unless the term "first shaft" means "two shafts," then the patent is invalid and this court cannot save the patent by varying the claim language.
This court adheres to Judge Haggerty's conclusion:
that genuine issues of material fact exist as to whether the device defined by claim 14 could operate using a single shaft to move the brace. Even if the claim limitation at issue could be interpreted to include the crank-and-slider mechanism employed in the accused sander, genuine issues of material fact would exist concerning whether that interpretation improperly covers prior art,
Opinion at 18, and to the prior order denying summary judgment in favor of Haney. Haney must first prove that his '913 patent is valid and that Timesavers' sander infringes his '913 patent.
4. Lack of Enablement, Overbreadth, Indefiniteness and Inoperability
A. Contentions of the Parties
Timesavers asserts in its pleadings that Haney's '913 patent is invalid due to a lack of enablement, overbreadth, and indefiniteness.
Haney contends that he is entitled to summary judgment as to this defense because his patents include detailed drawings and an extensive text describing his invention.
Timesavers contends that Haney has failed to provide a written description of the sander recited in claim 14 of the '913 patent and a written statement of the "manner and process of ... using" that sander. Timesavers argues that the drawings and the text relied upon by Haney enable the building of a sander with two shafts, but not the sander described in claim 14, which has only a "first shaft." Because no other description exists for the sander in claim 14 with only a "first shaft," Timesavers argues that claim 14 fails for lack of enablement and is therefore invalid.
B. Applicable Law
35 U.S.C. § 112, paragraph 1, requires that:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same....
Section 112, paragraph 2, requires that each patent include claims "particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." A claim is indefinite where one skilled in the art cannot "understand what is claimed when the claim is read in light of the specification." Morton Int'l, Inc. v. Cardinal Chem. Co., 5 F.3d 1464, 1470 (Fed.Cir.1993).
C. Ruling of the Court
The court concludes that a genuine issue of material fact exists as to whether the specifications in the '913 patent, which describe only a device that uses a dual-shaft mechanism to move the attached brace, are adequate to sustain the validity of claim 14 as stated in the '913 patent, which requires "a first shaft rotatable by the first motor and linked to the moveable brace and configured to move the brace when the shaft is rotated by the first motor."
The court concludes that neither Haney nor Timesavers is entitled to summary judgment on the defenses asserted by Timesavers of lack of enablement, overbreadth, indefiniteness and inoperability.
5. Best Mode of Carrying Out an Invention
Timesavers alleges as a defense that Haney's '913 patent is invalid under 35 U.S.C. § 112 because it fails to set forth the best mode contemplated by Haney of carrying out his invention. Timesavers argues that whether Haney "knew of but concealed the preferred mode of practicing the claimed invention from the public" (Timesavers' Memorandum in Response to Haney's Motion *1386 for Partial Summary Judgment, p. 20) is a question of fact. Timesavers explains:
As part of his first patent application in August 1990, Haney disclosed an orbit having 5/8" diameter in the specification. Yet Haney has testified that in August 1990, the Finale sander the commercial embodiment used a smaller orbit with a 5/16" diameter. Haney continued to file the original specification in the subsequent continuation applications instead of filing a continuation-in-part application with the correct dimension as soon as Haney realized the dimension was incorrect. Thus, Haney did not disclose the best mode the smaller orbit diameter used on the actual sander to the public.
Id. at 21.
Haney responds that Timesavers has failed to identify any evidence that one dimension is any better than the other dimension and that Haney has concealed such information if it exists.
The court finds that Haney is entitled to summary judgment on this defense. Timesavers has failed to come forward with evidence to support this defense.
CONCLUSION
The court rules as follows:
(1) Haney's motion for partial summary judgment concerning enforceability, invalidity under 35 U.S.C. § 112, and infringement of claim 14 (# 229) is granted as to the affirmative defenses of inequitable conduct, laches, and best mode and is denied as to all other matters raised; and
(2) Timesavers' cross-motion for summary judgment on claim 14 of the '913 patent (# 239) is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325565/ | 203 S.E.2d 328 (1974)
21 N.C. App. 61
Charles BURNS
v.
Willie French TURNER and Willie Earl Turner.
No. 7416SC33.
Court of Appeals of North Carolina.
March 6, 1974.
*329 Johnson, Hedgpeth, Biggs & Campbell, by John Wishart Campbell, Lumberton, for plaintiff appellant.
Page, Floyd & Britt, by W. Earl Britt, Lumberton, for defendant appellees.
BALEY, Judge.
This appeal involves a single issue: whether the trial court erred in granting defendants' motion for a directed verdict.
When the defendant moves for a directed verdict, the evidence must be considered in the light most favorable to the plaintiff. All contradictions and inconsistencies must be resolved in plaintiff's favor. Summey v. Cauthen, 283 N.C. 640, 197 S. E.2d 549; Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47; Waycaster v. Sparks, 267 N.C. 87, 147 S.E.2d 535. But even when viewed in this favorable perspective, plaintiff's evidence does not show that defendants were in any way negligent.
The only evidence offered by the plaintiff concerning the accident was the testimony of the defendant Willie Earl Turner (hereinafter referred to as Turner), who was called as a witness for plaintiff, and the testimony of plaintiff's son, Philip Burns, and his companion, Steven Boyette. Turner testified that on 30 May 1970 he was driving west on N. C. Highway 211 between Lumberton and Red Springs. He was traveling at a speed of 42 miles per hour in a 45-mile zone. He saw an automobile approaching in the eastbound lane, and at about the same time he saw a child playing near the north shoulder of the highway. He did not see any child *330 on the south side of the road. When the eastbound car passed by, Turner suddenly saw Philip Burns directly in front of him, about thirty feet away, running across the highway from south to north. Turner applied his brakes and swerved to the right, but he was unable to avoid striking Philip.
Philip Burns testified that on May 30 he was hunting crickets with Steven Boyette, an older boy who lived next door. They were on the north side of Highway 211. Philip crossed over to the south side of the highway, chasing his dogs, and then turned around to return to the north side. He waited for a car to pass by in the eastbound lane, and then he started across the highway. At that point Philip said: "When it [eastbound car] passed, I ran across and got hit. . . . It was in the lane of traffic nearest to where I was standing. . . . When it passed is when I went out. . . . Just after the car passed me I started to run across the road. . . . "While he was crossing, Turner's car hit him.
Steven Boyette corroborated the testimony of Philip. He said he saw Philip standing on the south shoulder waiting to cross over to the north side again, but Steven did not actually see the collision occur.
All of this evidence indicates that the injuries to Philip Burns were not caused by the negligence of Turner. When Philip started to cross Highway 211, Turner could not see him, because the approaching eastbound car hid him from view. When the eastbound car passed and Philip became visible, Turner did not have sufficient time to avoid a collision.
A motorist who sees children playing near the highway must drive carefully, keeping in mind that a child may suddenly run out into the road, but he is not an insurer of the safety of children near the highway. Winters v. Burch, 284 N.C. 205, 200 S.E.2d 55. In this case the evidence shows that after Turner saw Steven Boyette playing near the north shoulder of Highway 211, he continued to drive in a careful and prudent manner. He proceeded at a lawful rate of speed in his proper lane of the highway, and as soon as he saw Philip he unsuccessfully attempted to prevent a collision by swerving and applying the brakes. In a number of cases the courts have held that a driver is not negligent when he strikes a pedestrian who suddenly darts out into the highway. Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610; Brinson v. Mabry, 251 N.C. 435, 111 S.E. 2d 540; Westbrook v. Robinson, 11 N.C. App. 315, 181 S.E.2d 231.
Since there is no evidence that Turner drove in a negligent manner, defendants' motion for a directed verdict was properly granted. The judgment of the Superior Court is affirmed.
Affirmed.
CAMPBELL and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262155/ | 900 F.Supp. 1097 (1995)
BELOIT BEVERAGE CO., Plaintiff,
v.
WINTERBROOK CORP, Defendants.
No. 93-C-477.
United States District Court, E.D. Wisconsin.
September 22, 1995.
*1098 *1099 James R. Sommers, Hunter & Sommers, Waukesha, WI, for Plaintiff.
Richard J. Sankovitz, Whyte, Hirschboeck & Dudek, Milwaukee, WI, for Defendant.
DECISION AND ORDER
RANDA, District Judge.
This matter previously came before the Court on defendant's objections to the Recommendation of Magistrate Judge Aaron E. Goodstein granting plaintiff's motion for a preliminary injunction. At that time, the Court sustained defendant's objection, declined to follow the Magistrate's Recommendation and denied plaintiff's request for an injunction. The matter now comes before the Court on the parties' cross-motions for summary judgment. Both motions rely, in large part, on the same factual premises and legal arguments raised in their prior motions, although some additional facts and authorities are cited and argued to the Court. After considering the same, the Court does not think plaintiff's position has improved on summary judgment. For the following reasons, the Court grants defendant's motion for summary judgment and denies plaintiff's motion, thereby dismissing the case.
FACTS
The following facts are undisputed. Some are drawn from the Court's prior opinion, some are drawn from the stipulated facts submitted by the parties, and some are drawn from additional affidavits and deposition testimony submitted on summary judgment:
Beloit Beverage Co. ("Beloit") is a wholesale beverage distributor with operations in southeastern Wisconsin. (Decision and Order Dated June 17, 1994 ("Dec'n") at 1.) It is a substantial enterprise. (Id. at 1-2.) Beloit had $43 million in sales in 1992, yielding $11.2 million in gross profits. (Stip'n at ¶¶ 7, 9.) It employs over 100 workers. (Dec'n at 2.) Beloit distributes 200 different brands of alcoholic and non-alcoholic beverages out of five warehouses located across southeastern Wisconsin and northern Illinois. (Id.) It is one of the largest beer distributors in Wisconsin. (Id.) It is the largest distributor of Coors beer in the state. (Id.) It is one of the largest distributors of Stroh's in the state. (Id.) It is also one of the largest distributors of Pabst beer in the country. (Id.)
Beloit has been a distributor for the G. Heileman Brewing Co. ("Heileman") since 1961. (Id.) Beloit is one of the top five distributors of Heileman products in the Midwest and perhaps in the country. (Id.) This dispute involves the distribution of "La Croix" mineral water, a former Heileman product. When Heileman introduced the La Croix brand in 1982, Heileman assigned various Wisconsin distributors as exclusive wholesale suppliers of the product for specific territories within Wisconsin. (Id.) Beloit was appointed the exclusive wholesale supplier of La Croix in Rock and Walworth counties. (Id.) The appointment was memorialized in a "Specialty Product Assignment" ("SPA") issued by Heileman. (Id.) A company by the name of Federl Distributing Company, Inc. ("Federl"), another beer and non-alcoholic beverage distributor, was appointed the exclusive wholesale supplier of *1100 La Croix in Milwaukee and Waukesha counties.
In 1989, Federl received the benefit of a distribution change by Heileman. (Id.) The record shows that various chain food stores (specifically, Kohl's Food Stores, Sentry and Pick n' Save) are supplied by central chain warehouses (respectively, Kohl's, Godfrey Company and Roundy's). (Id. at 2-3.) These warehouses were located within Federl's territory, but the stores they supplied were located throughout Wisconsin. (Id. at 3.) Prior to 1989, sales of La Croix to these various chain stores were the exclusive right of the distributor assigned to the territory within which the stores themselves were located. (Id.) The decision whether to purchase La Croix was made by each store independently. (Id.) In 1989, Heileman changed this process by allowing Federl to sell directly to the warehouses, thereby selling La Croix to all of the stores belonging to the three chains, even though a large majority of those stores were located outside of Federl's territory. (Id.) Heileman also agreed to compensate the other distributors who, as a consequence, lost business from the chain stores located within their territories. (Id.) Prior to this change, Heileman presumably sold La Croix to only some of the chain stores, because each store made its own purchase decision and not every store purchased. (Id.) By selling to the three warehouses, Heileman in effect sold to all of the chain stores, because these stores must buy or stock whatever the warehouse buys. (Id.) The warehouses became Federl customers because they were located within Milwaukee and Waukesha counties. (Id.)
In April of 1990, Beloit purchased substantially all of the assets of Federl for approximately $5 million. (Id.; Stip'n at ¶ 21.) These assets included selected equipment and distributor agreements. (Stip'n at ¶ 21.) One of the distributor agreements Beloit purchased was Federl's SPA with Heileman for distributing the La Croix product in Milwaukee and Waukesha counties, which by definition included Federl's business with the chain store warehouses. (Id.) Heileman immediately consented to the purchase.[1] (Id.) Beloit recouped the "purchase price" of the Federl investment within two years by virtue of the additional cash flow created by the investment. (Morello 5/14/93 Dep. at 75-76.)
After purchasing Federl, 66% of Beloit's subsequent La Croix business consisted of sales to the chain store warehouses. (Dec'n at 4.) This accounts for the undisputed fact that Beloit's profit margins on the sale of La Croix are higher than on other products. (Id.) That is, making a large, one-time sale to a central warehouse imposes less costs on a distributor than an equally large combination of sales to stores spread throughout a territory. (Id.) The latter inherently entails higher solicitation and delivery costs in terms of the number of salesmen, trucks and fuel necessary to obtain and consummate the sales. (Id.) The parties continue to dispute, however, the extent of the difference in profit margins and the extent of La Croix's contribution to Beloit's bottom line.
No one disputes, however, the following facts and figures: In 1992, Beloit's total net sales were $43,001,115. (Stip'n at ¶ 7.) Its net sales of La Croix were $1,937,000, meaning La Croix accounted for 4.5% of Beloit's total net sales in 1992. (Id. at ¶¶ 8, 11.) That same year, Beloit's total gross profit was $11,276,109. (Id. at ¶ 9.) Its gross profit on sales of La Croix was $658,000, meaning that La Croix accounted for 5.8% of Beloit's gross profits in 1992. (Id. at ¶¶ 10-11.) In 1993, Beloit's total net sales were $40,423,486. (Id. at ¶ 7.) Its net sales of La Croix were $1,802,378, meaning that La Croix again accounted for 4.5% of Beloit's total net sales in 1993. (Id. at ¶¶ 8, 12.) That same year, Beloit's total gross profit was $10,230,596. (Id. at ¶ 9.) Its gross profit on sales of *1101 La Croix was $538,000, meaning that La Croix accounted for 5.3% of Beloit's gross profits in 1993. (Id. at ¶¶ 10, 12.) In terms of volume, La Croix accounted for 9.32% of Beloit's total sales in 1991, 8.25% in 1992, and 8.78% for the first 4 2/3 months of 1993. (Beloit Brief in Support at 16.)
In 1992 and 1993, Beloit employed over 100 workers. (Stip'n at ¶ 15.) In 1992, 14 Beloit employees devoted an estimated 13,208 hours of time to promoting, selling and distributing La Croix. (Id.) This time constitutes the full-time equivalent of between 6 and 7 employees, or 6-7% of Beloit's work force. (Id.) In 1992, Beloit expended $71,498.00 in advertisements, promotion and special events relating to the La Croix line. (Id. at ¶ 26.) In 1991 and 1992, Beloit also expended roughly $18,000 in "slotting fees" to the chain store warehouses to reserve shelf space for the La Croix product. (Id. at ¶ 24; Dec'n at 16.) In 1993, Beloit displayed the La Croix logo on two of its 100 delivery trucks and not the current trademark, but one that was four years out of date at the time. (Id. at ¶ 17.) The La Croix logo was not displayed on Beloit's letterhead nor on its warehouses. (Id.) The logo is displayed on some of Beloit's employee uniforms. (Id.)
Beloit leases one warehouse that is primarily used to store La Croix. (Id. at ¶ 18.) This warehouse is located on Teutonia Avenue in Milwaukee. (Id.) The lease on this warehouse runs from year to year, and is terminable every year upon 60 days notice. (Id.) Beloit uses approximately 40% of the space in this warehouse to store La Croix, and uses the remaining space to store loaded delivery trucks overnight, and for truck maintenance operations. (Id.) Beloit leases another warehouse from a partnership, in which Beloit is one of three equal partners. (Id. at ¶ 19.) This warehouse is located on Bradley Road in Milwaukee. (Id.) This warehouse contains 15,000 square feet of office space which is used as the headquarters for all of Beloit's operations. (Id.) The warehouse contains 25,000 square feet of truck storage space. (Id.) The warehouse contains 50,000 square feet of warehouse space, of which approximately 10,000 square feet is dedicated to the storage and handling of La Croix. (Id.) The partnership that owns the warehouse is ready, willing and able to sell the warehouse if an offer of $3 million is made for its purchase. (Id.) None of the warehouse space which Beloit uses to store La Croix is use-specific to La Croix. (Id. at ¶ 20.) If La Croix is not stored there, another product can be. (Id.).
In December, 1992, the defendant, WinterBrook Corporation ("WinterBrook"), purchased the La Croix brand from Heileman. (Dec'n at 5.) WinterBrook sells three lines of sparkling water (La Croix, WinterBrook and Cascadia) from its headquarters in Bellevue, Washington. (Id.) As part of WinterBrook's purchase of La Croix, the SPA between Heileman and Beloit was fully assigned to WinterBrook and WinterBrook expressly assumed Heileman's obligations thereunder. (Id.; Stip'n at ¶ 4.) The agreement also provided that:
Notwithstanding the terms of Section 11.17 of the Agreement or of the agreements referred to in this Exhibit A, (A) the franchise laws of certain states may restrict the ability of Seller to terminate agreements with distributors or other customers doing business in such states on thirty (30) days' written notice, and (b) the Wisconsin Fair Dealership Law, Chapter 135, Wisconsin Statutes, may impose similar restrictions.
(Stip'n at ¶ 5.)
Within a matter of months (specifically, on April 29, 1993), WinterBrook notified Beloit that, as of May 31, 1993, it was terminating their relationship in accordance with the thirty-day notice period provided in the SPA. (Dec'n at 5; Stip'n at ¶ 6.) Beloit brought this suit in Waukesha County Circuit Court for violation of the Wisconsin Fair Dealership Law ("WFDL"), seeking preliminary and permanent injunctive relief. (Dec'n at 5.) WinterBrook removed the matter to federal court.
LEGAL ANALYSIS
I. SUMMARY JUDGMENT STANDARDS
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers *1102 to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Summary judgment is no longer a disfavored remedy. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Id., at 327, 106 S.Ct. at 2555. It "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." United Food and Commercial Workers Union Local No. 88 v. Middendorf Meat Co., 794 F.Supp. 328, 330 (E.D.Mo.1992). Thus, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). While a material fact is one that is "outcome determinative under the governing law", Whetstine v. Gates Rubber Co., 895 F.2d 388, 392 (7th Cir.1990), a genuine issue as to that material fact is raised only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
The question whether a material issue of fact is genuine necessarily requires "some quantitative determination of sufficiency of the evidence." Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183, 186 (1987). "Of course, a court still cannot resolve factual disputes that could go to a jury at trial, ... [b]ut no longer need the trial court leave every sufficiency issue for trial or a later directed verdict motion." Id. Rather, the standard for summary judgment is now the same as that for a directed verdict: "[W]hether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12. "A district judge faced with [a summary judgment motion] must decide, subject of course to plenary appellate review, whether the state of the evidence is such that, if the case were tried tomorrow, the plaintiff would have a fair chance of obtaining a verdict. If not, the motion should be granted and the case dismissed." Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572-73 (7th Cir.1989) (citations omitted). Thus, a party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). "[A] party must produce `specific facts showing that there remains a genuine issue for trial' and evidence `significantly probative' as to any [material] fact claimed to be disputed." Branson v. Price River Coal Company, 853 F.2d 768, 771-72 (10th Cir.1988). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Thus, "[a] party to a lawsuit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture. `Supporting and opposing affidavits shall be made on personal knowledge,....'" Palucki, 879 F.2d at 1572. Such principles insure that summary judgment is utilized "when it can be shown that a trial would serve no useful purpose." Windham v. Wyeth Laboratories, Inc., 786 F.Supp. 607, 610 (S.D.Miss.1992).
II. THE WFDL
The central issue in this dispute is whether Beloit qualifies as a La Croix dealership. *1103 In order to be a "dealership" under the WFDL, three requirements must be met:
1. a contract or agreement between two or more persons;
2. by which a person is granted:
a. the right to sell goods or services;
b. the right to distribute goods or services; or
c. the right to use a trade name, trade-mark, service mark, logotype, advertising or other commercial symbol; and
3. in which there is a community of interest in the business of:
a. offering goods or services;
b. selling goods or services; or
c. distributing goods or services at wholesale, retail by lease, agreement or otherwise.
(Dec'n at 7.)
There is no dispute that the first two elements of a dealership are satisfied. (Id.) The parties strongly contest, however, the existence of a "community of interest" between Beloit and WinterBrook. This is no surprise. "Community of interest is the criteria that most distinguishes dealerships from the other forms of business agreements." C.L. Thompson Co. v. Festo Corp., 708 F.Supp. 221, 224 (E.D.Wis.1989). The WFDL defines "community of interest" as "a continuing financial interest between the grantor and grantee in either the operation of the dealership business or the marketing of such goods or services." Wis.Stat. § 135.02(1). The Wisconsin Supreme Court has described this definition as "troublesome" insofar as it "has been difficult to delimit with any precision." Ziegler Co. v. Rexnord, Inc., 139 Wis.2d 593, 407 N.W.2d 873, 877 (1987). The 7th Circuit has been less subtle in its criticism. "We have in the past disparaged this definition as vague and unhelpful, ... for it permits no ready way in which to differentiate a dealership from any ordinary vendor/vendee relationship." Frieburg Farm Equipment, Inc. v. Van Dale, Inc., 978 F.2d 395, 398 (7th Cir.1992) (citations omitted). Perhaps in response to such criticism, "[t]he Wisconsin Supreme Court recently illuminated matters somewhat by establishing two `guideposts' that serve to distinguish communities of interest." Id. "The first guidepost is the dealer's and grantor's `continuing financial interest' in their business relationship; a dealer can manifest such an interest by, among other things, investing in grantor-specific inventory and facilities." Id., citing and quoting Ziegler, 407 N.W.2d at 880. "The second guidepost is `interdependence', which the Court described as `shared goals and a cooperative effort more significant than in the typical vendor-vendee relationship.'" Id., citing and quoting Ziegler, 407 N.W.2d at 879. To further define the issue, Ziegler also set out a list of ten factors which courts should consider in determining whether a dealership exists:
1. The length of the parties relationship.
2. The extent and nature of the obligations imposed by the parties' contract or agreement.
3. The percentage of time or revenue the grantee devotes to the grantor's products or services.
4. The percentage of the grantee's gross proceeds or profits that the grantee derives from the grantor's products or services.
5. The extent and nature of the grantor's grant of territory to the grantee.
6. The extent and nature of the grantee's uses of the grantor's commercial symbols.
7. The extent and nature of the grantee's financial investment in the inventory, facilities, or goodwill of the alleged dealership.
8. The personnel devoted to the alleged dealership by the grantee.
9. The extent of the grantee's expenditures on advertising or promotion for the grantor's products or services.
10. The extent and nature of any supplementary services provided by the grantee to consumers of the grantor's products and services.
Kayser Ford, Inc. v. Northern Rebuilders, Inc., 760 F.Supp. 749, 752 (W.D.Wis.1991).
The problem with a "totality of the circumstances" approach involving so many *1104 factors is that it becomes easy to miss the main thrust of the statute. Perhaps for that reason, the 7th Circuit has "distilled the principles underlying the Wisconsin cases" so as to "provide that a community of interest may exist under one of two circumstances: first, when a large proportion of an alleged dealer's revenues are derived from the dealership, and, second, when the alleged dealer has made sizable investments ... specialized in some way to the grantor's goods or services, and hence not fully recoverable upon termination." Frieburg, 978 F.2d at 399. This approach focuses the Court's attention upon the principles underlying the WFDL. "The [WFDL] is primarily intended to protect businesses whose economic livelihood would be imperiled by the termination of the dealership and not businesses whose economic livelihood is not exclusively dependent on any one manufacturer." C.L. Thompson, 708 F.Supp. at 226, emphasis supplied; see also, Kusel Equipment Co. v. Eclipse Packaging Equipment Ltd., 647 F.Supp. 80, 81-82 (E.D.Wis.1986) ("[t]he law was an attempt to equalize the economic positions of grantors and dealers and to protect dealers from the devastation which would result from being terminated by a grantor whose products were a significant part of the dealer's business"). The statute was intended to prevent "unscrupulous grantor[s]" from engaging in "opportunistic behavior" by "exploit[ing] the fear of termination that naturally attends a dealer's investment in grantor-specific assets." Frieburg, 978 F.2d at 399. Such a fear can be exploited only if termination has a "significant economic impact" upon, or poses "severe economic consequences" for, the alleged dealer. Id.; see also, Ziegler, 407 N.W.2d at 879. While courts are not to look for some "fixed percentage of ... business revenues" in order to determine whether a dealership exists, "[a] low percentage is strong evidence, evidence that might ultimately be determinative in many cases, that there is no continuing financial interest between the parties in the operation of the business and thus no community of interest." Ziegler, 407 N.W.2d at 878, 880. Thus, while the ten factors listed in Ziegler serve to "structure any inquiry into these matters", Frieburg, 978 F.2d at 399, they should not be applied in a way that effectively redefines the scope and intent of the statute.
III. APPLICATION
As indicated earlier, the facts and arguments presented on summary judgment remain largely unchanged from those presented to the Court on the prior motion for preliminary injunction. The additional facts or arguments raised relate primarily to the two factors emphasized by the 7th Circuit in Frieburg, i.e., the proportion of Beloit's revenues derived from the sales of La Croix and the existence of sizable investments, specialized in some way to the sale of La Croix, and hence not recoverable by Beloit.
A. Proportion of Revenues.
The nature of the parties' arguments on this issue have not changed, although some of the evidence marshalled in support thereof has. First, there is no dispute that, from a "gross profits" analysis (where the question is how much revenue a particular product generates for purposes of offsetting all of the expenses of running the business), La Croix accounted for only 5.8% of Beloit's gross profits in 1992 and only 5.3% of Beloit's gross profits in 1993. There is no argument, and under the circumstances could be none, that these numbers, taken alone, are indicative of a dealership. Indeed, for a business as large and diversified as Beloit's, such percentages are strong evidence that a dealership does not exist. Ziegler, 407 N.W.2d at 878, 880. Rather, Beloit argues that a "net operating income" or "incremental profits" analysis (where the question is how much revenue a particular product generates for purposes of offsetting only those expenses directly related to the selling of that product) is the more appropriate analysis for this case. The basic thrust of Beloit's argument is that, because of the low costs involved in selling large volumes of La Croix to the chain store warehouses, the profit margins for the La Croix product are much higher than Beloit's other products. Beloit argues that, while sales of La Croix represent only 5% of Beloit's gross profits, they represent in excess of 20% of Beloit's "net operating income", and thus are substantial enough to *1105 qualify as a dealership. There are several reasons to reject Beloit's analysis.
First, most or all of the Wisconsin cases have analyzed this issue from a "gross profits" perspective. In Ziegler, for example, the Wisconsin Supreme Court phrased the issue as "what percentage of the gross proceeds or profits of the alleged dealer derives from the alleged grantor's products or services". Ziegler, 407 N.W.2d at 879. Moreover, the 7th Circuit has expressly rejected Beloit's "incremental" approach:
He suggested instead that the loss of less than 6% of its sales would deprive Kenosha Liquor of some 35% of its profits. Barsby arrived at this conclusion by subtracting from Kenosha Liquor's sales of Jose Cuervo tequila in 1987 ($174,636) the price it paid Heublein ($144,728), and dividing the difference ($29,908), less a few direct costs such as salesmen's commissions, by Kenosha Liquor's stated net profits ($67,586). The effect depends on assuming that the brand in question is not responsible for the rent, salaries, and other variable costs variable, at least, in the not-so-long run. Barsby did not suggest that the same method applied to any other 6% of Kenosha Liquor's sales would not produce the same appearance. Accounting profits in a closely held corporation such as Kenosha Liquor are not necessarily useful figures; the investors' returns will be paid out as salaries to reduce the corporate tax. At all events, any method that attributes 40% of the profits to 6% of the sales any 6% and every 6% is unhelpful in identifying a dealer.
Kenosha Liquor Co. v. Heublein, Inc., 895 F.2d 418, 420 (7th Cir.1990) (emphasis supplied).
Second, Beloit's own expert witness, in a case where he apparently testified on behalf of the party arguing against the existence of a dealership, maintained in strong terms that the "incremental" or "net operating income" approach is not appropriate for determining the percentage of business attributable to a particular product line for purposes of the WFDL:
3. I am aware of the Ziegler case and the factors set forth by the court for purposes of determining dealership status.
4. There is no ambiguity with the concept of "gross profits". It is my opinion to a reasonable degree of marketing and economic certainty that the phrase "gross profits" is a term of art with only one recognized meaning. "Gross profits" is calculated as follows:
Sales Revenues
Cost of Goods Sold
Gross Profits
The "gross profits" result is the amount of money available for contribution to the costs of operation of the business.
5. I have reviewed the affidavit of Robert E. DeYoung submitted on behalf of the plaintiff. I am familiar with the economic analysis employed by Mr. DeYoung. A net profit analysis is an appropriate mechanism in certain situations for determining damages that a company has incurred.... However, a net profit analysis does not address the question of how much money can be contributed by a particular product line for purposes of offsetting the company's operating expenses. For that reason, the appropriate analysis is that used by the Ziegler Court when it indicated that gross profits are to be considered as one of ten factors to be used for considering the community of interest element in the dealership analysis.
6. If the task is to determine the percentage of Johnson Cheese's business that each of its product lines contributes, ... the gross profit analysis is the appropriate means. Each of the product lines will have a gross profit dollar amount that, when totaled, will equal 100% of the company's gross profit dollars. Those gross profits can then be used to offset operating costs and yield a final net profit or loss, as the case may be. If Mr. DeYoung's percentage of business analysis were used, the total of each product line's gross profits reduced only by variable costs directly attributed to sales of that product line would vastly exceed 100% of the company's net profits. For a percentage of business analysis, it is inappropriate to use a analysis *1106 that will yield a result where the total of the gross profits less variable costs for each product line calculated as a percentage of total net profits of the business far exceeds 100% of the total net profits for the business. It is for that reason that the gross profit analysis is appropriate for the percentage of business component of the Ziegler analysis, even if Mr. DeYoung's analysis of reducing gross profits by variable expenses may be an appropriate damage calculation.
(Joint App., Tab 13 at ¶¶ 3-6; emphasis supplied.)
Third, although Beloit suggests that its 20% figure takes into account those general expenses unrelated to the specific task of selling La Croix, it fails to present sufficient evidence in this regard to raise a genuine dispute of fact. Beloit's evidentiary support for this position is the prior affidavit of its vice-president, Ralph Morello, submitted at the preliminary injunction stage. In that affidavit, Morello simply states that the "Direct Operating Expenses" line contained in the audit from which Beloit draws its figures includes these indirect costs. Morello does not provide, however, a specific breakdown, item-by-item, of how this figure was achieved. He does not tell us, for example, what indirect costs he refers to or what amounts were allocated to these costs. He does not tell us whether a portion of all of the indirect costs associated with running Beloit's business were factored into this calculation. He does not "do the math" and demonstrate to the Court that a proportional percentage of Beloit's indirect operating expenses were allocated to, and charged against, the income derived from the sales of La Croix before reaching the "net operating income" figures Beloit relies upon. Absent such evidence, the Court cannot give any significant weight to the self-serving statements contained in Morello's affidavit, especially where as here the Court warned Beloit that it needed to produce such evidence if it wished to prevail on this issue:
This Court disagrees. WinterBrook produced a document prepared and submitted by Beloit which itemized the expenses which were used to reach the $251,000 figure. (WinterBrook Reply at Ex. 2.) As WinterBrook argues, the indirect expenses referenced above are not included within that document. (Id.; WinterBrook Reply at 2-5.) Beloit does not dispute that such costs should be taken into account as a charge against La Croix revenues on a percentage basis. Rather, Beloit simply asserts that they were taken into account, without any documentation or itemization other than the financial statement. Obviously, this is a dispute of material fact that is difficult to resolve, but resolving it is not our ultimate task. At this stage, we look to the likelihood of success on the issue and, on the record described here, WinterBrook has the advantage. The Court does not think there is a substantial basis in the record for a percentage close to 15% of all net profits. The record at this point supports a figure much lower and, in any event, a figure insufficient for purposes of the injunctive relief sought here.
(Dec'n at 14-15.)
B. Sunk Investments.
As Beloit admits in its briefing, this case really turns upon the issue of "sunk investments", and this because of Beloit's purchase of Federl's assets. Beloit argues that "[w]hat makes this case unique and requires that Beloit receive the protection of the Wisconsin Fair Dealership Law is the investment Beloit made when it purchased the La Croix distribution rights as part of the assets it bought from Federl...." (Beloit Rebuttal at 1.) As stated earlier, Beloit spent almost $5 million of its own money to acquire Federl's assets. One of those assets was the SPA Federl had with Heileman to distribute La Croix in Waukesha and Milwaukee counties. The parties focus much of their dispute on how much of the purchase price, if any, should be allocated to this asset. However, the Court believes one must first answer whether Beloit's investment in this regard is truly "sunk".
As the Court indicated in its prior decision, treating Beloit's purchase of Federl's assets as a "sunk investment" giving rise to a dealership is problematic insofar as it could allow distributors to unilaterally create a dealership where none previously existed:
*1107 There is an even more fundamental problem with Beloit's position, however. The "sunk investments" issue deals with monies which an alleged dealer expended (1) in reliance upon his continued relationship with the grantor; (2) upon assets which are product-specific to grantor's goods; and (3) in a specific attempt to expand the market for the grantor's goods, either by investing in certain fixed assets to expand his own capacity to store and sell the goods (i.e., warehouses, trucks, etc.) or by investing in certain intangible assets to increase product demand or refine his sales efforts (i.e., advertising, training, etc.). For example, the purchase of warehouse facilities or delivery trucks used solely for the La Croix line expands the market for La Croix because it expands Beloit's capacity, i.e., the new warehouses and trucks will store and deliver cases of La Croix that WinterBrook did not sell to Beloit, or anybody else, prior thereto. The purchase of Federl's assets was not this type of investment because it did not expand the market for La Croix; it simply transferred Federl's market to Beloit. It expanded Beloit's share of the market for La Croix, but it did not expand the market itself. The distinction is important because without it an arms-length transaction between two distributors, which had little to do with the alleged grantor, could give rise to a dealership in a situation where no dealership previously existed. For example, it appears clear that, without the issues raised by virtue of the Federl transaction, Beloit would not have an arguable claim for dealer status. Presumably neither would Federl, assuming the two businesses were similar in nature. Yet, accepting Beloit's argument, these two non-dealers could become one big dealer simply by a cash transaction requiring little more than the grantor's "ratification".
(Dec'n at 17-18.) In other words, prior to Beloit's purchase of Federl, Federl had an SPA with Heileman which presumably did not qualify as a La Croix dealership. That SPA was also terminable upon 30-days notice. When Beloit bought that SPA, it seems logical to conclude that Beloit simply stepped into Federl's shoes and therefore acquired no greater status or contractual rights, vis-a-vis Heileman, than Federl had prior to the purchase. Put another way, one can view that portion of the purchase price which is (at least theoretically) allocated to the purchase of Federl's SPA with Heileman as compensating or reimbursing Federl for the value of that asset, which value would typically include or reflect the time and money Federl expended in acquiring and developing that asset. If Federl's initial costs, in terms of the time and money expended in acquiring and developing that asset, did not create a dealership, how can a subsequent transfer of those costs from Federl to Beloit, through Beloit's payment of the purchase price, create a dealership. The transfer ought to simply put Beloit in the position that Federl was in prior to the sale, i.e., a distributor without a dealership and terminable upon 30-days notice.
Beloit submits evidence, however, that the transfer was actually Heileman's idea, that it initiated and monitored the parties negotiations, and that it eventually induced and persuaded the parties to effect the transfer. Beloit also submits the case of Bush v. National School Studios, Inc., 407 N.W.2d 883 (Wis.1987), where the Wisconsin Supreme Court treated monies the plaintiff expended in purchasing "territory rights" from another distributor as a "substantial financial investment" indicative of a dealership. Beloit relies upon the foregoing to argue that, on the facts presented here, it would be inequitable to allow Heileman to actively induce and encourage Beloit to purchase Federl's distribution rights at a substantial expense and then terminate Beloit (through WinterBrook), causing it to lose the money it invested. But this argument reveals an even more fundamental problem with Beloit's position: Beloit has not, and will not, lose any of the money it invested in Federl. Beloit admits that it recouped the value of its investment in Federl within two years after the purchase by virtue of the additional cash flow the investment created. If Beloit loses its right to distribute La Croix today, it will not be in any worse position than it would have been in *1108 had it never purchased Federl's assets in the first place.
The Court believes the foregoing admission is devastating to Beloit's case. As outlined earlier, the cases look for investments that are "grantor-specific" in the sense that they are "sunk" or "not fully recoverable upon termination."[2]Frieburg, 978 F.2d at 399. The emphasis is upon recoverability because the purpose of the WFDL, as discussed earlier, is to prevent "unscrupulous grantor[s]" from engaging in "opportunistic behavior" by "exploit[ing] the fear of termination that naturally attends a dealer's investment in grantor-specific assets." Frieburg, 978 F.2d at 399. That is, where a dealer has expended substantial funds that cannot be recovered upon termination, he is naturally more vulnerable to a grantor's unreasonable demands, because the failure to yield to those demands could result in termination and the loss of the funds at issue. Beloit itself concedes that "recoverability" is the key consideration:
First, [WinterBrook] misses the point of what is required of an investment by a dealer for it to be proof of a "community of interest." What's required is that the investment be "not fully recoverable upon termination." Frieburg, supra, p. 399.... The cases recognize that a grantor has even more leverage over the dealer when the dealer has made a sizable nonrecoverable investment such that the grantor can exploit the dealer's fear of termination to wring out unfair concessions. The key requirement of the investment is that it be nonrecoverable on termination.
(Beloit Rebuttal at 2.) Thus, where a sizable investment is not fully recoverable, the WFDL tries to remedy the resulting disparities in bargaining position by removing the grantor's threat of arbitrary termination. Where, as here, the dealer has already recovered the value of the investment or funds at issue, there is no resulting disparity. There is no risk of losing the initial investment and therefore no fear to be exploited. The investment, regardless of its size, no longer affects the parties' respective bargaining positions. In short, there is no imbalance for the WFDL to remedy, at least no imbalance created by the investment at issue. In such situations, any basis for invoking the protections of the WFDL must lie elsewhere.
C. The Remaining Ziegler Factors.
Given the Court's earlier discussion on the "proportion of revenues" issue, and Beloit's own admission that it was the Federl investment which made its case unique and triggered the protections of the WFDL, it is unlikely that consideration of the remaining Ziegler factors will yield any basis for invoking the protections of the WFDL. The Court nonetheless considers those remaining factors. Much of the Court's discussion, however, simply repeats the discussion contained in the Court's prior decision denying Beloit's motion for a preliminary injunction.
1. The length of the parties' relationship.
WinterBrook had only been doing business with Beloit for a matter of months at the time of termination. The Court tacks on Beloit's relationship with Heileman, however, because WinterBrook expressly assumed Heileman's obligations under the SPA with Beloit. The result is that, at the time of termination, Beloit had sold La Croix for 13 years in Walworth and Rock counties, but only for 3 years in Ozaukee, Washington, Milwaukee and Waukesha counties (including the chain warehouses). The length of the relationship, at least with respect to Walworth and Rock counties, is significant.
2. Extent and nature of the parties' contractual obligations.
No one disputes that the SPA imposed substantial obligations upon Beloit to buy, sell and promote the La Croix line. These obligations are clearly listed by Beloit in its briefing herein. (See, Beloit Brief in Support at 15-16.) Merely listing the obligations imposed, however, does not tell us the extent *1109 of the burden they placed upon Beloit. Such obligations become more or less significant depending upon the percentage of time a dealer devotes to satisfying them. As indicated in the next section, that percentage is not very high.
3. The percentage of time or revenue the grantee devotes to the grantor's products or services.
Beloit expends approximately 13,208 labor hours on the La Croix line, or the equivalent of 6-7 full-time employees. Beloit employs over 100 workers. Thus, only 6-7% of Beloit's time and efforts are directed to the La Croix line and the obligations imposed by the SPA. For a company as large and diversified as Beloit, this figure is not indicative of a dealership.
4. Percentage of gross proceeds or profits.
This factor is discussed and rejected in Section III-A, supra.
5. Extent and nature of grant of territory.
Beloit's territory is extensive, especially since it purchased Federl's assets in 1990. Within that territory, Beloit's rights are also exclusive. An extensive and exclusive territory certainly weighs in favor of a dealership, as does the 13-year relationship attributed to the parties. But these are the only factors that weigh in Beloit's favor, and they are not enough.
6. Use of trademarks and logos.
Beloit's use of the La Croix trademark and logo is relatively insignificant. Only 2 delivery trucks out of 100 bear the logo. A few of the employee uniforms bear the logo. The logo does not appear on Beloit's letterhead, nor on its warehouses. This is not indicative of a dealership.
7. Financial investment.
This factor has already been discussed and rejected with respect to the Federl investment. (See, Section III-B, supra.) However, Beloit continues to rely upon certain other "investments" which the Court previously stated were not sufficient to create a dealership: (1) Certain "slotting fees" paid to the warehouses to reserve shelf space in the chain stores for La Croix products; (2) the 20-25% of Beloit's warehouse space devoted to La Croix products; and (3) $86,000 in "start-up" costs for a non-alcohol division created to promote the La Croix brand. The Court remains convinced that these "investments" do not trigger the protections of the WFDL.
First, Beloit paid roughly $18,000 in certain "slotting fees" over a relevant two-year period.[3] These fees ensured that La Croix products received preferred shelf space in the chain stores. However, such fees are hardly a substantial investment for a $2 million dollar line of business. More importantly, it is difficult to characterize these fees as "sunk" insofar as Beloit acknowledges that some of the fees were recouped by the corresponding increase in sales. (Dec'n at 16.)
Second, La Croix products take up as much as 25% of Beloit's available warehouse space. As Beloit admits, however, there is nothing about this warehouse space that is use-specific to storing La Croix products. There is nothing in the record indicating that Beloit could not use this space to store other products. Moreover, the record indicates that the vast majority of the warehouse space at issue is leased, not owned, so the related expenses cannot be considered "sunk". They are better described as a simple cost of doing business. Such "investments" can be recouped (i.e., such costs can be avoided) by terminating or assigning the leases.[4]
*1110 Third, Beloit claims it expended $86,000 in start-up costs establishing a non-alcohol division designed specifically to promote La Croix products. At the preliminary injunction stage, the Court noted that this figure of $86,000 was not itemized or documented in any way. (Dec'n at 19-20.) Beloit stated generally that it was comprised of "labor costs and associated overhead expense", but did not describe or explain what was specifically included therein. (Id.) It was also unclear how many other non-alcoholic products were included within the division and whether the $86,000 figure would have to be apportioned among them. In short, the Court concluded that "there is not enough specific evidence regarding this alleged investment to give it any considerable weight." (Id.) The record has not changed on summary judgment and neither has the Court's conclusion. To put it in language appropriate to summary judgment, Beloit fails to submit enough evidence on this issue to create a genuine dispute of material fact.
8. Personnel.
The record indicates that 14 Beloit workers devote some portion of their time to the La Croix line but that, as referenced earlier, the hours they devote are equivalent to only 6-7 full-time workers out of the 100-plus workers that Beloit employs. Again, 6-7% of the work force is not a substantial figure under the circumstances.
9. Promotional expenses.
Beloit spent $70,000 in advertising and promotional expenses for the La Croix line in 1992. This figure is relatively insignificant in the context of a $2 million line of business and a $43 million company. It is not indicative of a dealership.
10. Supplemental services.
Beloit submits some evidence that it cooperated with WinterBrook in the context of specific promotions of the La Croix product. The evidence submitted, however, does not strike the Court as sufficient to create a dealership.
NOW THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
1. Beloit's motion for summary judgment is denied; and
2. WinterBrook's motion for summary judgment is granted and the case dismissed.
SO ORDERED.
NOTES
[1] Beloit maintains that Heileman representatives actually conceived the idea of the transaction, made the initial contact with Beloit, organized and attended numerous meetings between Beloit and Federl, told Beloit representatives they wanted Beloit to purchase Federl, monitored and commented upon the actual proposals exchanged between the parties, and provided financial incentives to both sides to complete the deal. (Morello Third Aff. at ¶ 9.) Whether or not these allegations are true is immaterial in light of the fact that Beloit now admits that it has already recouped its entire investment in the Federl business through the additional cash flow the investment created. (See discussion at Section III-B, infra.)
[2] Even in Bush, the Wisconsin Supreme Court noted that the monies expended to purchase the "territory rights" at issue were "completely lost" at the time of termination. Bush, 407 N.W.2d at 893. There was no evidence, or perhaps no argument, that the dealer had recovered the value of his investment by the time he was terminated.
[3] At the preliminary injunction stage, Beloit suggested that the shelving rights conferred by the slotting fees are now worth roughly $144,000 and that this figure reflects the amount of Beloit's investment. This Court disagrees. The inquiry here is the amount that Beloit is out-of-pocket, not the amount any one of its assets might have appreciated.
[4] Beloit does own a one-third interest in one of the warehouses, but the Court's conclusion is not altered thereby. There is still nothing preventing the portion of that warehouse currently devoted to La Croix products from being used to store other products. Moreover, the warehouse at issue is currently for sale, presumably at a profit, and hence the investment is certainly recoverable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262161/ | 900 F.Supp. 1547 (1995)
DAVID C., et al., Plaintiffs,
v.
Michael LEAVITT, et al., Defendants.
Civ. No. 93-C-206W.
United States District Court, D. Utah, Central Division.
July 3, 1995.
*1548 *1549 *1550 D. James Morgan, Daniel A. Kaplan, Michael P. O'Brien, Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT, William L. Grimm, Elizabeth Steyer, Patrice McElroy, and Martha Matthews, National Center for Youth Law, San Francisco, CA, Richard M. Pearl, Law Offices of Richard M. Pearl, San Francisco, CA, for Plaintiffs.
L.A. Dever, Utah Attorney General's Office, Salt Lake City, UT, Craig L. Barlow, Linda Luinstra-Baldwin, Salt Lake City, UT, Philip C. Pugsley, Salt Lake City, UT, for Defendants.
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS
WINDER, Chief Judge.
This matter is before the court on Plaintiffs David C., et al.'s ("Plaintiffs") motion for attorneys' fees and costs pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. Defendants Michael Leavitt, et al. ("Defendants") responded to Plaintiffs' motion, conceding some items in Plaintiffs' fee petition, but vigorously opposing numerous others.
The court heard oral argument on February 8, 1995. William L. Grimm, Michael P. O'Brien, and Richard M. Pearl appeared on behalf of Plaintiffs. Carol Clawson, Linda Luinstra-Baldwin, and Philip C. Pugsley represented Defendants. Before the hearing, the court considered carefully the lengthy memoranda, numerous declarations, and voluminous materials submitted by the Parties, and also read certain of the authorities cited. Following oral argument, and since taking the matter under advisement, the court has further considered the arguments of counsel, read and considered the memoranda and accompanying declarations, studied the cited authority, and done such additional research as the court deemed prudent. Now being fully advised, and good cause appearing, the court enters the following Memorandum Decision and Order.
I. BACKGROUND
On October 26, 1994, Plaintiffs filed a petition for attorney's fees and costs in the amount of $1,117,454.12.[1] In response, Defendants filed a memorandum on December 19, 1994 proposing that the court limit any fee award to $241,122. In view of the vast disparity between these figures, the issue now before the court is the amount of attorney's *1551 fees and costs to which Plaintiffs are entitled.
The action on which this motion is based involved a class action suit seeking declaratory and injunctive relief and alleging that Defendants[2] had violated, and continued to violate, the federal constitutional and statutory rights of those Utah children who were, or would be, in foster care in the custody of the Utah Department of Human Services ("DHS") or the Division of Family Services ("DFS").[3]See Complaint at p. 2, Case No. 93-C-206W (Feb. 25, 1993). Among other things, Plaintiffs' Complaint alleged that Defendants had failed to: "investigate complaints of child abuse promptly or properly, make reasonable efforts to keep families together, provide appropriate placements and proper care to children in their custody, properly evaluate foster homes and train foster parents, and provide foster homes to children."[4]See Order of Preliminary Approval of Settlement Agreement at p. 1, Case No. 93-C-206W (June 3, 1994). Before filing the Complaint, Plaintiffs had spent approximately fifteen months in pre-filing investigation.[5] During the pre-filing period, Plaintiffs met with Defendants in May, June, and August of 1992, and again in early February of *1552 1993 to discuss their concerns about the Utah child welfare system.[6]See Luinstra Aff. at ¶¶ 3-4. Plaintiffs also met with Attorney-General-elect Jan Graham, Governor-elect Michael Leavitt, and Governor Leavitt's new director of Human Services, Michael Stewart.[7]See William L. Grimm Declaration at ¶ 24 (Oct. 26, 1994).
On March 16, 1993, Plaintiffs filed to certify the suit as a class action, which Defendants opposed in part. After a hearing, the Honorable Samuel Alba, United States Magistrate Judge, granted Plaintiffs' motion on May 7, 1993. Defendants later objected to Judge Alba's order.[8]
Prior to certification, Defendants filed a motion to extend the time to respond to Plaintiffs' certification motion. See Memorandum in Support of Defendants' Motion for Extension, Case No. 93-C-206W (Apr. 5, 1993). One of the stated reasons for requesting the extension was that "Defendants plan to file a Motion to Dismiss addressing many of the claims alleged in the Complaint." Id. at p. 2.
Also prior to certification, Defendants had filed a motion for a protective order:
requiring plaintiffs and their counsel to conduct discovery in this action under the Federal Rules of Civil Procedure and further providing that the State does not have to respond to any pending or future Government Records Access and Management Act (GRAMA) ... requests concerning the subject of this action during its pendency. See State's Motion for Protective Order at p. 1, Case No. 93-C-206W (Apr. 13, 1993). Later, the Parties entered into a series of stipulations regarding contacts with class members, foster parents, and state employees.
Although Defendants' time to respond was extended several times, the Complaint was never answered. Instead, beginning in late April of 1993 and continuing to May of 1994, the Parties entered into settlement negotiations.[9] As a result of those negotiations, a Settlement Agreement ("Agreement") was entered into by the Parties. On August 29, 1994, this court entered an Order providing that the Order and the Agreement "shall apply to and be binding upon the Parties to this action, and upon their employees, heirs, successors-in-interest, and assigns." See Order at p. 2, Case No. 93-C-206W (Aug. 29, 1994).
The Agreement sets forth general operating standards and directs Defendants to ensure that the Utah DHS and the DFS child welfare system comply with the Agreement. Defendants are to maintain full operating authority over DHS and DFS and are to have discretion as noted in the Agreement to devise means by which to achieve compliance with the Agreement. The Agreement also creates a Monitoring Panel and establishes a mechanism for monitoring and oversight of the Agreement's provisions. Id. at p. 2. The Agreement further provides that this court is to retain jurisdiction over this matter. Id. at p. 3. As Defendants readily *1553 admit, "[t]he Settlement Agreement, signed by the parties in May 1994 resolved all of the claims brought by the Plaintiffs in this action." Defendants' Response at p. 41.
Reserved in the Order was the issue of entitlement to and the amount of attorney's fees and costs incident to the action. Instead, the Parties agreed to meet in good faith in an attempt to reach a settlement of that issue. The Parties were unable to reach agreement, however, and this motion ensued.
Defendants oppose the fee petition on numerous grounds, which center generally around the arguments that Plaintiffs should not be compensated for out-of-area rates, for "activities not related to the lawsuit," and that "Plaintiffs are only entitled to fees for work related to those portions of the Settlement Agreement that include relief that would have otherwise been required by federal law." See Defendants' Response at p. 37.
II. ANALYSIS
Title 42 U.S.C. § 1988 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." "[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). "[T]he extent of a plaintiff's success is a crucial factor that the district courts should consider carefully in determining the amount of fees to be awarded." Id. at 438 n. 14, 103 S.Ct. at 1942 n. 14. When considering fee petitions, the district court should be mindful of the Supreme Court's instruction that "[a] request for attorney's fees should not result in a second major litigation." Id. at 437, 103 S.Ct. at 1941.
Typically, the district court must address several broad issues in order to arrive at a reasonable fee award. First, as a preliminary matter, a plaintiff[10] must be found to be "prevailing" in order to cross the statutory threshold and become a candidate for a § 1988 fee award. Id. at 433, 103 S.Ct. at 1939. Second, once it is determined that a plaintiff is prevailing, "[i]t remains for the district court to determine what fee is `reasonable.'" Id. This is done by arriving at a "lodestar" figure calculating "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id.; see also Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984). Third, the district court may then adjust the lodestar upward or downward, most often in consideration of the results obtained by the plaintiff. See Hensley, 461 U.S. at 434, 103 S.Ct. at 1940. Finally, the court must determine to what extent a plaintiff will be compensated for time spent preparing the fee petition itself.
A. Prevailing Party
As a threshold determination, the court finds that Plaintiffs are the prevailing party in this litigation.[11] The formulation for what comprises a prevailing party is a generous one. Farrar v. Hobby, 506 U.S. 103, ___, 113 S.Ct. 566, 572, 121 L.Ed.2d 494 (1992).[12] Plaintiffs typically are considered prevailing parties for attorney's fees purposes "`if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" *1554 Hensley, 461 U.S. at 433, 103 S.Ct. at 1939 (emphasis added) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). The "touchstone" to, and precondition of, prevailing party status is the "`material alteration of the legal relationship of the parties.'" Beard v. Teska, 31 F.3d 942, 950 (10th Cir.1994) (citing to Farrar and Texas State Teachers Ass'n v. Garland Independent Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 1493-94, 103 L.Ed.2d 866 (1989)). Once a plaintiff becomes entitled to enforce a settlement against a defendant, a material alteration of the legal relationship between the parties occurs. Farrar, 506 U.S. at ___, 113 S.Ct. at 574.
In the absence of a decision on the merits as in the Agreement here the Tenth Circuit has adopted the Nadeau test for determining whether a plaintiff is prevailing. See, e.g., J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1475 (10th Cir.1985) (adopting Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978)). To meet that test, a plaintiff must show two things: "(1) that [the] lawsuit is causally linked to securing the relief obtained, and (2) that the defendant's conduct in response to the lawsuit was required by law." Foremaster v. City of St. George, 882 F.2d 1485, 1488 (10th Cir.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990) (citations and internal quotations omitted). This test can be characterized thusly:
A party may also be deemed to have prevailed sufficiently to warrant the award of attorneys' fees under a two part "catalyst test." Under this test a plaintiff must have been a "significant catalyst" causing a defendant to change position, and the defendant's change in position must have been required under law.[13]
City of Chanute, KS v. Williams Natural Gas Co., 31 F.3d 1041, 1048 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995) (citations omitted). A typical situation in which the catalyst test applies occurs when "the parties reach a settlement agreement resulting in dismissal of the suit with no further court action." Id. at 1049.
The Plaintiffs here are a prevailing party because this litigation meets both prongs of the Nadeau test. First, it is clear to the court that this lawsuit was a "substantial factor or significant catalyst" in Defendants' response. See Foremaster, 882 F.2d at 1488; Supre v. Ricketts, 792 F.2d 958, 962 (10th Cir.1986). It need not have been the sole reason[14] for Defendants' response. Foremaster, 882 F.2d at 1488. Furthermore, Defendants virtually concede this prong. See Defendants' Response at p. 52 (admitting that Plaintiffs' suit "helped along" part of the "reform effort"). Second, Defendants also admit that part of the Agreement was required by law: "Giving credit where credit is due, the Defendants acknowledge that the Plaintiffs are entitled to be awarded a fee for that portion of the reform effort that was `required by law' and could be considered to have been helped along by their suit." Defendants' Response at p. 52. Specifically, Defendants concede that two of the six causes of action assert claims on which this court could grant relief, and that twelve of the subparagraphs of the Agreement are required by law. Id. at pp. 40-41.[15] In view of Farrar's generous formulation of "prevailing," *1555 this is sufficient to meet the second prong of the Nadeau test.
B. Reasonableness of Fee
Since the court finds that Plaintiff's are a prevailing party, it now confronts the task of determining what fee is reasonable. "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended ... multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. "There is a strong presumption that the lodestar represents the reasonable fee to which counsel is entitled." Utah Int'l, Inc. v. Department of the Interior, 643 F.Supp. 810, 828 (D.Utah 1986) (citing Blum 465 U.S. at 897, 104 S.Ct. at 1548). Plaintiffs bear the burden "to prove and establish the reasonableness of each dollar, each hour, above zero." Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir.1986).
1. Reasonable Hourly Rates
"The establishment of hourly rates in awarding attorneys' fees is within the discretion of the trial judge who is familiar with the case and the prevailing rates in the area." Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir.1987) (citing Gurule v. Wilson, 635 F.2d 782, 794 (10th Cir.1980)). "The first step in setting a rate of compensation for the hours reasonably expended is to determine what lawyers of comparable skill and experience practicing in the area in which the litigation occurs would charge for their time." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983). "[T]he burden is on the fee applicant to produce satisfactory evidence in addition to the attorney's own affidavits that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Beard, 31 F.3d at 956 n. 11. As a general rule, local fee rates should be applied unless the case involved is most unusual or requires such special skills that a reasonably competent local trial attorney could not handle it. See Ramos, 713 F.2d at 555. The attorney's years of experience is an important factor in fixing rates. Jane L. v. Bangerter, 828 F.Supp. 1544, 1552 (D.Utah 1993) (citing to In re WICAT Sec. Lit., 671 F.Supp. 726, 732 (D.Utah 1987)).
Defendants do not object to the hourly rates requested by the Jones & Waldo attorneys. However, although acknowledging that the NCYL attorneys are experts in the field of child welfare litigation, Defendants take exception to the hourly rates requested by the NCYL attorneys and law clerks.[16] NCYL attorney's rates range from $310 per hour for Richard Pearl,[17] who prepared Plaintiffs' fee application, to $155 per hour for Elizabeth Steyer.[18] Defendants argue that "considerable expertise is available in the Utah market without paying premium rates" and that the case was not so complex that it warranted out-of-area fees.
Plaintiffs counter that no Utah law firm possessed the resources, willingness, or expertise to have: (1) conducted a "comprehensive and thorough pre-filing investigation," (2) found and consulted with leading experts in various fields, (3) anticipated the "problems that had developed in similar cases," and (4) negotiated and prepared "a settlement that completely reshaped and restructured the State's entire child welfare system." Plaintiffs' Reply at p. 5. Plaintiffs point to Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 663 F.Supp. 1360 (D.Kan. 1987), aff'd, 899 F.2d 951 (10th Cir.), cert. denied, 110 S.Ct. 3241 (1990), as illustrative of the reasons that out-of-area fees are warranted.
Although the court recognizes the quality of work that Plaintiffs' attorneys have performed, there is insufficient evidence in the record to overcome the strong presumption that local area rates should apply. Our research indicates that the general rule is overcome *1556 only in exceptional and rare cases, such as in Reazin, which was a complex antitrust case, and in National Wildlife Federation v. Hanson, 859 F.2d 313 (4th Cir.1988), a complex environmental case, wherein the plaintiff provided explicit and uncontroverted evidence of the need for out-of-area counsel. See id. at 317-18. Moreover, the court's knowledge of this case and the issues involved therein do not persuade us that it rises to the level of Reazin, nor is it that very "unusual" case involving "such special skills" that is referred to in Ramos v. Lamm. In particular, the court is cognizant that Ramos does not provide for an exception to the general rule any time out-of-area attorneys might have handled a case "better," but only if local attorneys could not have handled it "reasonably competently."
Therefore, based on each NCYL attorney's qualifications, on local-rates affidavits[19] submitted by the Parties,[20] and the court's knowledge of prevailing rates, the following hourly rates will apply:
Jones & Waldo
M. O'Brien $125
L. Jones $100
D.J. Morgan $90
D. Kaplan $80
R. Alston $80
National Center for Youth Law
W. Grimm $190
M. Matthews $130
P. McElroy $160
E. Steyer $105
R. Pearl $190
Law clerks $55
2. Reasonable Hours Expended
The district court must exclude from the lodestar calculation "hours that were not reasonably `expended'" on the litigation. Hensley, 461 U.S. at 434, 103 S.Ct. at 1940 (citing to S.Rep. No. 94-1011, p. 6 (1976) U.S.C.C.A.N.1976, pp. 5908, 5913.). "When scrutinizing the actual hours reported, the district court should distinguish `raw' time from `hard' or `billable' time to determine the number of hours reasonably expended." Ramos, 713 F.2d at 553. Ramos suggests that the trial court ask general questions in making this assessment: (1) Was overall billing judgment exercised? (2) Was the time spent on each task reasonable? (3) Would the tasks be billed to a paying client? (4) Was non-productive time deleted? (5) Was duplicative time deleted? See id. at 553-55. Plaintiffs have the burden to show that hours were reasonably expended. Mares, 801 F.2d at 1210.
Preliminary, it is evident that Plaintiffs' attorneys have made an effort to comply with Ramos. For example, they have testified that they kept contemporaneous records, exercised billing judgment at the time of a notation as well as on review, declined to bill for various intra-staff communications, have not requested compensation for approximately $2000 in photocopying expenses, and have not billed for some law clerk hours.
Defendants, however, have objected to nearly every category of time expended by Plaintiffs. The court will address these objections in turn.
a. Pre-Filing Work
Defendants ask the court to find that a substantial percentage of the hours expended by Plaintiffs prior to filing the Complaint are noncompensable. Generally, they argue that no private attorney would spend so much time, that the number of hours expended go well beyond Rule 11 requirements, that time was spent on claims "not required by law," and that if Plaintiffs had filed the Complaint earlier Defendants could have attempted to control the costs.
The court disagrees. The purpose of the extensive investigation was to determine if Plaintiffs' rights truly had been violated, to attempt to settle the claims without litigation, and to discover facts to support Plaintiffs' claims once litigation began. In this regard, the court notes that investigation was difficult because the class is large, widespread, and comprised of children who often cannot speak for themselves. In addition, there is persuasive evidence that Plaintiffs' *1557 ability to gather information pre-filing may well have been easier and less expensive that it would have been post-filing. Moreover, because of the serious and controversial allegations involved in this case, Plaintiffs cannot be faulted for their efforts to abide by Rule 11 requirements and to thoroughly investigate the facts and law before making those allegations a matter of public record.[21]
b. Post-Filing Investigation
Defendants also ask the court to deny compensation for time spent on the development of factual allegations of the Complaint after Defendants had indicated that the facts alleged in the Complaint would not be contested for the purposes of settlement.
This argument is without merit. Defendants' willingness to discuss settlement of a case is irrelevant to the matter of fees. As stated in Cooper v. State of Utah, 894 F.2d 1169 (10th Cir.1990), a "court's downward adjustment of fees based on settlement negotiations is not well-founded. Rule 68 Fed. R.Civ.P. provides a practical tool by which parties may protect against costs." Id. at 1172 (pointing out that defendants did not avail themselves of an offer of judgment). If this were not enough, the evidence before the court is persuasive that it was not unreasonable for Plaintiffs to be concerned about whether the case would settle or whether any settlement would be approved.
c. Time Spent With Individual Plaintiffs
The court declines to adopt Defendants' position that, because the class is the prevailing party, time spent working with individual plaintiffs is noncompensable. Indeed, because of the variety of factual allegations involved in this case, contact with individual class members was generally both indispensable and inescapable. The class members each of whom this court has jurisdiction over as class members were potential witnesses and had individual federal and constitutional rights. Thus, working with individual class members was inextricably intertwined with the development of the litigation and with class relief, and is therefore compensable. See Beard, 31 F.3d at 954-55 (finding that work on a charge leveled at an individual class member accrued to the benefit of the class).
d. Public Relations, Legislative, Executive Matters
Defendants argue that time spent by Plaintiffs on public relations work via the media, with Utah legislators and auditors, on the Child Welfare Reform Bill, and on "executive" matters, is noncompensable. Plaintiffs disagree, asserting that work that is directly related to the furthering of its goals in litigation is compensable.
i. Media Time
In Utah International, this court found that "hours spent on the public relations aspect of [a] case, i.e., time spent by counsel communicating with the press and other news media" was noncompensable. Utah International, 643 F.Supp. at 831 n. 41; accord, Jane L., 828 F.Supp. at 1550 ("Time spent by attorneys in public relations is noncompensable."); Ramos v. Lamm, 632 F.Supp. 376, 381 (D.Colo.1986), on remand from, Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983) ("[T]ime spent attending speeches and press conferences must be deducted since it is not necessary to the litigation of the case.").
However, despite the broad rule expressed in Utah International, the court recognizes that communications directed to the class via the media, and that were directly related to this litigation, could be important given the difficulty of communicating with such a widely-spread group. In this regard, Keyes v. School District No. 1, Denver, Colorado, 439 F.Supp. 393 (D.Colo.1977), a class action, school desegregation lawsuit, is instructive.[22]*1558 Although noting the difficulty that counsel had in reaching some components of the class, the Keyes court found that the only media time that was compensable was "those discussions with the press that contributed to communication with the class in a meaningful way and were necessary for the prosecution of the suit." Id. at 408.
This court agrees. Although communications were difficult here because the class is spread throughout the entire state, any compensation must be reserved for meaningful communications necessary to the prosecution of the suit. Therefore, the following "media" hours[23] are noncompensable and must be deleted from the award request:
W. Grimm 30.8 hours
M. Matthews 2.9 hours
P. McElroy 8.2 hours
E. Steyer 12.4 hours
ii. Legislative Matters
Defendants object to the inclusion of hours spent with members of the Utah legislature, legislative auditors, or for work on the Child Welfare Reform Bill ("Bill"). Plaintiffs counter that work performed in these areas was not political, but was designed to secure the relief sought in litigation. As support, Plaintiffs cite to several cases which generally are distinguishable[24] and also argue that obtaining increased funding was critical to the suit's success.
Although Plaintiffs' interest in the legislative audit and in the Bill is understandable, the court nevertheless does not find that all attorney hours expended in those areas are compensable. See, e.g., Jane L., 828 F.Supp. at 1550 (finding that "lobbying efforts at the legislative level" are noncompensable); Davis, 976 F.2d at 1545, 1558 (ordering trial court to strike public relations/lobbying hours unless they involve work which only an attorney would properly do). For example, the court does not agree that lobbying is part of the litigation process. Therefore, numerous meetings and telephone conversations with legislators were more properly performed by public relations persons. In addition, there was some duplication of effort and an excessive number of hours were sometimes expended. Most important, the relief that Plaintiffs sought through the use of attorneys was litigation or settlement of the case, not the legislative audit or the Bill per se. Therefore, the court finds that the only compensable hours are those involving nonduplicative, non-excessive work related to the litigation which only an attorney would properly do, and accordingly will deduct the following hours from the requested award:
W. Grimm 24.7 hours
M. Matthews 44.5 hours
P. McElroy 28.2 hours
E. Steyer 13.8 hours
D. Kaplan 1.1 hours
M. O'Brien 2.0 hours
K. Compton 6.0 hours
iii. Executive Matters
Defendants also object to time spent on executive matters, which they characterize as those which generally deal with personnel decisions regarding the DHS and DFS. After consideration, Plaintiffs have deducted all *1559 time spent on personnel matters. See Plaintiffs' Reply at 45; Supplemental Affidavit of William L. Grimm at ¶ 108 (Jan. 23, 1995).
An examination of the remaining time in this category shows that it reasonably deals with the litigation and is therefore compensable.
e. Meetings With Local Child Advocates
Defendants ask the court to refuse compensation for time spent with local child advocates. However, this argument is unpersuasive for several reasons. First, advocates were sources of information about the child welfare system and past studies or audits regarding the problems in Utah. In addition, many advocates were doctors with class members as patients, teachers with class members as students, or individuals with class members living in their homes. Most important, Defendants themselves recognized the importance of these groups, specifically agreeing that "[b]efore each [negotiation] meeting ... [t]he parties will also seek input from children's advocacy groups and other concerned Utah organizations." See Defendants' Response at Ex. 22A, p. 3.
There is, however, some excess and duplication in this area. For example, the court declines to compensate for meetings attended by two or more attorneys when one would suffice.[25] Another small example is the excessive amount of time spent on communications regarding scheduling. The following hours will therefore be deducted:
W. Grimm 13.6 hours
M. Matthews 16.1 hours
P. McElroy 26.9 hours
E. Steyer 40.2 hours
f. Time Spent With Foster Parents
Defendants also object to compensating Plaintiffs for time spent with foster parents, arguing that foster parents are not plaintiffs, that any relief provided to them was not the result of this suit, and that any relief was not required by federal law or the constitution.
Defendants' arguments are unpersuasive. As noted previously, the class here is unique. If Plaintiffs desired to obtain and disperse information about the class and class members, they usually had to speak to and through foster parents. Foster parents were also important in confirming that reported abuses were not simply isolated incidents, and in that regard would have been valuable witnesses had the case ever proceeded to trial. In addition, during settlement negotiations, foster parents were knowledgeable about the Utah system and what remedies would be most effective.
Again, however, the challenged hours include some excess, duplication, and irrelevance. One example is that Plaintiffs have failed to meet the Ramos requirement of justifying the presence of more than one attorney at depositions. See Ramos, 713 F.2d at 554 n. 4. Also, time spent by law clerks to prepare memoranda is sometimes excessive. Accordingly, the following hours are disallowed:
W. Grimm .5 hours
M. Matthews 5.9 hours
P. McElroy 2.5 hours
E. Steyer 18.5 hours
D. Kaplan 6.5 hours
A. Culbreath 2.4 hours
g. Guardian Ad Litem Issues
Next, Defendants challenge time spent by Plaintiffs on issues related to the Guardian Ad Litem Program ("GAL"). They assert that GAL is not a defendant here and that the Agreement does not address GAL's responsibilities. In reply, Plaintiffs have agreed to delete hours which might have related to a potential "companion" suit, but assert that all other GAL time is compensable because the individuals involved in GAL were sources of information about systemic problems in the child welfare system. They also assert that this time was essential in coordinating Plaintiffs' suit with legislative efforts to improve the GAL system.
Because GAL is inextricably intertwined with the issues in this case and because those individuals associated with GAL were an important source of information, the court finds that non-lobbying GAL time which can be categorized as informal discovery and investigation is compensable. After adjusting for duplication and excess and for hours which *1560 Plaintiffs have voluntarily deleted,[26] the following is excluded:
W. Grimm 19.3 hours
M. Matthews 7.3 hours
P. McElroy 19.5 hours
E. Steyer 22.1 hours
h. Juvenile Court Matters
Defendants also object to the comparatively minuscule amount of time spent on "juvenile court matters."
This argument is rejected. Plaintiffs' uncontroverted testimony is that these hours represent time that they spent responding to Defendants' motion for a protective order that would have barred Plaintiffs' counsel from visiting their clients. This time is compensable.
i. Damage Cases
Next, Defendants contend that time spent on what they term "damage" cases is noncompensable. However, the court has examined the records and finds, for example, that time recorded in this area was reasonably expended obtaining information on DFS practices in order to prepare the Complaint.
j. Time Spent With Experts
In addition, Defendants object to time Plaintiffs spent working with experts. Time spent with an expert who does not testify at trial is compensable, however, so long as the time was reasonably expended in litigation of the plaintiff's case. See Whalen v. Unit Rig., Inc., 974 F.2d 1248, 1254 (10th Cir.1992) (allowing compensation for statistical expert who did not testify at trial).
The court has examined the records and finds that the time spent consulting experts as to such matters as statistical issues and mental health issues was reasonably expended. Therefore, only the following duplicative time is deducted:
M. Matthews 1.4 hours
P. McElroy 1.4 hours
k. Duplication of Time/Efforts at Negotiations
Also at issue is Defendants' assertion that Plaintiffs were over-represented at settlement negotiations. Specifically, Defendants ask the court to delete all hours other than those recorded by Mr. Grimm, Ms. Matthews, and Mr. O'Brien.
In Ramos, the court of appeals specifically declined to "require an automatic reduction of reported hours to adjust for multiple representation or potential duplication." Ramos, 713 F.2d at 554. This refusal was prompted by the court's recognition that "utilizing more than one lawyer may be reasonable in some situations, such as during settlement conferences or during trial." Id. On remand, the trial court allowed compensation for multiple representation, stating that when attorneys work on different aspects of a case, "efficiency derives from organization and coordination rather than lawyers operating independently." Ramos, 632 F.Supp. at 383.
In this case, each side was represented by a team of attorneys and professionals. Defendants have not denied that they were represented at each meeting by three attorneys and three DHS officials. See Plaintiffs' Reply at p. 34; see also, Defendants' Response at p. 9 ("Defendants were at all times represented by two assistant attorneys general and the Solicitor General."). Plaintiffs were represented at each meeting by three to six attorneys.[27]
*1561 The court has carefully examined the course of this litigation and the apparent interplay of work assignments, and is persuaded that five of Plaintiffs' counsel formed a core negotiating team, each having specific expertise and responsibilities. Each of these individuals was a major player and appears to have worked on a different aspect of the case. As such, each of the five was reasonably necessary to achieve what Defendants concede was an excellent agreement which resolved all claims. Moreover, it is uncontroverted that Ms. McElroy was responsible for and drafted four sections of the Agreement.
However, Plaintiffs have not made it clear why the presence of Mr. Kaplan on January 7, 1993 and Mr. Morgan on April 25, 1994 were reasonably necessary to the negotiations. Ramos instructs that "[n]o fees should be awarded for hours reported by lawyers ... who are present at depositions, hearings, or trial for the purpose of being trained and who do not participate in or contribute to the proceedings." Ramos, 713 F.2d at 554 n. 4. Therefore, the following hours are deducted:
D. Kaplan 3.6
D.J. Morgan 2.5
l. Travel Time & Expenses
Preliminarily, because the court has found that there is insufficient evidence in the record to support the need for out-of-area counsel, Plaintiffs' airline expenses for travel between Utah and Oakland/San Francisco ("California") will not be compensated. See Ramos, 713 F.2d at 559 (stating that when out-of-area counsel is unnecessary, "travel expenses for such counsel between their offices and the city in which the litigation is conducted should [not] be reimbursed").
In addition, Defendants argue that travel time in which Plaintiffs' records fail to indicate that work is being performed is noncompensable. This includes at least 1.5 hours of the 3 hours that Plaintiffs generally recorded as travel time between California and Utah. Furthermore, the issue arises as to whether airplane travel time in which counsel was working is compensable and to what degree. Similarly, if an attorney found it necessary to drive to an outlying area of Utah for something related to this litigation, is that time fully compensable?
"[U]nless it is demonstrated that work was performed during time spent traveling, that time is generally not compensable." Ramos, 632 F.Supp. at 381. If it can be shown that work on the case was performed while traveling, the hours are properly included. Id. at 384. However, as noted in Jane L., travel time is essentially unproductive and should be compensated at a reduced hourly rate. Jane L., 828 F.Supp. at 1549; accord, Keyes, 439 F.Supp. at 409 (compensating at below the normal rate in consideration of "lessened legal efficiency"). In Keyes, for example, the trial court compensated at 50% of normal rate for work done while in flight. Id. Likewise, in Smith v. Freeman, 921 F.2d 1120 (10th Cir.1990), the court found "no abuse of discretion in the trial court's determination that an attorney's driving time, while necessary, is essentially unproductive and, therefore, compensable at a reduced hourly rate." Id. at 1122 (allowing compensation at 25% of normal rate for driving time).
Because the court has declined to compensate at out-of-area-rates, it finds that all nonworking hours recorded between California and Utah are noncompensable. Furthermore, the court finds that work performed during travel results in "lessened legal efficiency" and should be compensated at a reduced hourly rate. Therefore, in the exercise of its discretion, when records indicate that attorneys were working during these "unnecessary" airplane flights, compensation will be 50% of normal. Necessary time spent driving within Utah will also be compensated at 50% of the normal rate. The following deductions are therefore made:[28]
Travel Hours
W. Grimm 163.45 hours
M. Matthews 67.75 hours
P. McElroy 193.35 hours
E. Steyer 134.30 hours
Travel Expenses
$41,461.65
*1562 m. Miscellaneous Deductions
Finally, Defendants take issue with "miscellaneous" time and expenses. These expenditures have been reviewed and it is apparent that the bulk of the time and expenses claimed were expended on the litigation and are not excessive or duplicative. Only the following hours are deducted as being excessive or not reasonably expended on the litigation:[29]
W. Grimm .5
E. Steyer .6
K. Stark 31.0
A. Culbreath 5.0
C. Adjustments to the Lodestar
Apparently premised on the Nadeau prevailing party test, Defendants also devote a major portion of their Response to an argument requesting a reduction[30] in attorney's fees because:
Plaintiffs are only entitled to fees for work related to those portions of the Settlement Agreement that include relief that would have otherwise been required by federal law. In other words, not only must a Plaintiff be a prevailing party to recover attorney's fees under Section 1988, but a Plaintiff must also prevail on issues which are required by law. Even though the Settlement Agreement encompasses important reforms in child welfare, a significant portion of the action taken by the State in response to the lawsuit was not required by law.
Defendants' Response at pp. 37-38 (emphasis deleted). As support, Defendants cite to Nadeau, J & J Anderson, Supre, and Griffin. However, these cases neither make nor support this argument, and the court has been unable to locate a case that does.
Defendants apparently misapprehend the Nadeau test and the cases which have applied it.[31]See supra, Part II(A) (discussing Nadeau test). That test is one to determine, in the absence of a judicial determination on the merits, whether a party is prevailing. The "required by law"[32] prong of the test is merely the second step in determining whether a plaintiff is prevailing so as to be eligible for a § 1988 fee award. Once a *1563 party is found to be prevailing, by whatever degree, the threshold requirement has been met and the next issue is what amount of award is reasonable. The "required by law" prong and language serve no other purpose.[33]
For example, J & J Anderson consists primarily of an examination of each claim asserted to determine if any one of them might meet the required by law prong of the Nadeau test so as to allow plaintiff to become a prevailing party. See J & J Anderson, 767 F.2d at 1474-78. Similarly, the sole issue in Supre was whether the plaintiff was a prevailing party under the Nadeau test. See Supre, 792 F.2d at 962-63 (concluding that plaintiff was not a prevailing party because she could not meet the required by law prong).
It is true, however, that once a plaintiff meets the required by law prong and becomes a prevailing party, the trial court may make adjustments to the lodestar for results obtained. "This factor is particularly crucial where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief."[34]Hensley, 461 U.S. at 434, 103 S.Ct. at 1940. When this occurs, two questions are asked: "First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" Id. In applying this test, when there is a common core of facts and results have been excellent, "no reduction should be made because plaintiff failed to prevail on every contention." Ramos, 713 F.2d at 556.
Hensley states several rules. First, when a prevailing party does not succeed on all claims, and the unsuccessful claims are based on different facts and different legal theories, work on the unsuccessful claims "cannot be deemed to have been `expended in pursuit of the ultimate result achieved.'" Hensley, 461 U.S. at 435, 103 S.Ct. at 1940 (citations omitted). Therefore, no award will be made for the unsuccessful claim. Id. Second, when a prevailing party does not succeed on all claims, but the unsuccessful claims are based on a common core of facts or related legal theories, the focus should be "on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. Thus,
[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.... In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.
Id. (citations omitted). Third, even though unsuccessful claims are related and raised in good faith, if the prevailing plaintiff has achieved only limited success, a reduction is in order. Id. at 436, 103 S.Ct. at 1941.
Applying Hensley to this case reveals several problems. First, Plaintiffs have not achieved mere "limited success on the merits." Defendants readily agree that the Agreement "resolved all of the claims brought by Plaintiffs in this action." Defendants' Response at p. 41. Second, even if Plaintiffs had been unsuccessful on some claims, Defendants make no argument that these would not have involved related legal theories or a common core of facts. Third, the admittedly excellent level of success *1564 strongly suggests that the hours that Plaintiffs expended are a satisfactory basis for making this fee award.
In short, the court cannot reconcile Defendants' argument with the purpose of the "required by law" test, with the facts, with the Settlement, and with Hensley. Accordingly, no reduction in the lodestar based on Defendants' "required by law" argument will be made.
D. Fee Application
Finally, Defendants ask the court to reduce by 25% the amount which Plaintiffs request for preparation of the fee petition.[35] As support, they point to Griffin, in which the court ordered a 50% reduction in that area. See Griffin, 827 F.Supp. at 687.
This court has previously found that "hours reasonably spent in establishing an entitlement to fees are compensable." Utah International, 643 F.Supp. at 831 (citing Hernandez v. George, 793 F.2d 264, 269 (10th Cir.1986)). There is an exception to this:
Where petitioners, however, are successful in recovering only a fraction of the fee award originally sought, we do not believe they are entitled to an award for all of the time spent prosecuting the fee petition. Any award for time spent in pursuing motions for fees must not be excessive in relation to the award obtained.... We ... will calculate petitioners' fee awards ... by allowing them the percentage of their [fee award] request that correlates with the percentage of the total fee request ultimately awarded on the other phases.
Id.
This exception does not apply here. A close reading of Utah International shows that reductions in the fee petition area were reflective of the fact that there was only a limited portion of the case in which petitioners were both successful as plaintiffs, not as defendants, and not aligned with the United States government.[36]Id. at 827 (emphasis deleted). Similarly, the 50% reduction in Griffin is consistent with the court's 50% decrease in the lodestar to reflect plaintiff's limited overall success in the litigation. See Griffin, 827 F.Supp. at 688.
In contrast, this court has declined to make downward adjustments to the lodestar based on Defendants' "required by law" argument. There is therefore no justification for an arbitrary 25% reduction and Plaintiffs will be fully compensated for time spent preparing the fee application.
E. Costs and Expenses
Plaintiffs also request reimbursement for "out-of-pocket" expenses incurred in this litigation. Defendants have made no explicit, specific objection to these. Whether these are proper is dependent on "whether they are properly characterized as fees awarded pursuant to section 1988, or whether they are costs governed by 28 U.S.C. § 1920 (1988) and Fed.R.Civ.P. 54(d)." Bee v. Greaves, 910 F.2d 686, 690 (10th Cir.1990).
1. Costs
"[C]osts shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d). The following items may be taxed as costs: (1) fees of the clerk and marshal; (2) court reporter fees for any part of the stenographic transcript "necessarily obtained for use in the case"; (3) "[f]ees and disbursements for printing and witnesses"; (4) "[f]ees for exemplification and copies of papers necessarily obtained for use in the case"; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court appointed experts, interpreters, and "salaries, fees, expenses and costs for special interpretation services" under 28 U.S.C. § 1828. See 28 U.S.C. § 1920.
An examination of the Jones & Waldo part of the petition shows a request of $25.50 associated with a transcript, and request of $15 for a filing fee. These are properly recoverable.
2. Expenses
Expenses, on the other hand, are "[i]tems that are normally itemized and billed in addition to the hourly rate." Ramos, 713 *1565 F.2d at 559. These "should be included in fee allowances in civil rights cases if reasonable in amount." Id. However, "these kinds of expenses should be allowed as fees only if such expenses are usually charged separately in the area." Id.
Jones & Waldo has requested $7323.65 for expenses related to such items as postage, photocopying, courier service, computer research, telephone tolls, and office supplies. There is uncontroverted testimony that it is the practice in Salt Lake City to charge separately for these items. After examination, the court finds that the requested amount is reasonable and compensable.
An examination has also been made of the expenses claimed by the NCYL. The sum of $2000 which has been requested as reimbursement for a transcript of the proceedings in the jury trial State v. Blaine R. & Mary MacKay will be disallowed. There is insufficient evidence in the record as to why this transcript was necessary to this litigation.
Other expenses claimed by the NCYL are those for such typical expense items as fax costs, federal express service, and telephone tolls.[37] These are compensable.
In sum, the court finds that the following expenses are reimbursable:
Jones & Waldo
$7323.65
NCYL
Federal Express Messenger
or Fax $2287.65
Telephone $7896.30
Miscellaneous $206.73
Law Offices of Richard Pearl $256.62
Total NCYL $10,647.30
Total Reimbursable Expenses $17,970.95
III. ORDER
For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as follows:
Pursuant to 42 U.S.C § 1988, and in the exercise of this court's discretion, Plaintiffs are entitled to an award of $624,044.20 for attorney's fees, expenses, and costs associated with this action.[38]
*1566 APPENDIX
SUMMARY OF ATTORNEY'S FEES AWARD
LAW FIRM/ATTORNEY HOURS RATE AWARD
Jones, Waldo, Holbrook & McDonough
Michael P. O'Brien 286.70 $125 $ 35,837.50
Lisa A. Jones 12.57 100 1,257.00
D. James Morgan 42.30 90 3,807.00
Daniel A. Kaplan 186.30 80 14,904.00
Rob M. Alston 20.50 80 1,640.00
National Center for Youth Law
William Grimm 991.95 $190 $188,470.50
Martha Matthews 544.75 130 70,817.50
Patrice McElroy 1193.45 160 190,952.00
E.B. Steyer 503.10 105 52,825.50
Law Clerks:
Adam Culbreath 151.50 $ 55 $ 8,332.50
Karen Stark 164.05 55 9,022.75
Karen Compton 48.00 55 2,640.00
Law Offices of Richard M. Pearl
Richard M. Pearl 134.35 190 $ 25,526.50
TOTAL FEES INCURRED $606,032.75
COSTS AND EXPENSES
Jones, Waldo, Holbrook & McDonough
Costs $ 40.50
Expenses 7,323.65
National Center for Youth Law
Travel 0
Federal Express Messenger and/or FAX $ 2,287.65
Telephone 7,896.30
Miscellaneous 206.73
Law Offices of Richard Pearl
Expenses $ 256.62
TOTAL COSTS AND EXPENSES $ 18,011.45
TOTAL AWARD $624,044.20
NOTES
[1] After conceding a number of Defendants' objections and making downward adjustments, and after increasing hours to reflect the time spent in replying to Defendants' Response, the revised amount which Plaintiffs presently seek is $1,158,243.48. The attorney's/clerk's fees portion of this figure reflects a 5% across the board reduction that Plaintiffs have voluntarily made to compensate for time that may have been "unproductive, unnecessarily duplicative, recorded or added in error, or otherwise not reasonably related to the attainment of the goals" of the litigation. Without the 5% reduction, the requested figure would be $1,210,680.60. See Plaintiffs' Reply Memorandum at App. A, Case No. 93-C-206W (Jan. 26, 1995) [hereinafter "Plaintiffs' Reply"].
[2] At the time of the February 25, 1993 filing of this suit, the Defendants were Michael Leavitt, in his official capacity as Governor of Utah; Michael Stewart, in his official capacity as Director of the Department of Human Services; Ronald Stromberg, in his official capacity as Director of the Office of Social Services; and Barbara Thompson, in her official capacity as Director of the Division of Family Services.
[3] Plaintiffs assert that this action was initiated when Donna Brown, former Court Appointed Special Advocate volunteer in the juvenile court for Salt Lake City, Utah, contacted the National Center for Youth Law ("NCYL"), based in San Francisco, California, in November of 1991. See Plaintiffs' Memorandum in Support of Award of Reasonable Attorneys' Fees and Costs at p. 4, Case No. 93-C-206W (Oct. 26, 1994) [hereinafter "Plaintiffs' Memorandum"]. Plaintiffs state that Ms. Brown informed the NCYL that she had been unable to find someone in Utah willing to file a lawsuit on behalf of Utah foster children and child abuse and neglect victims, and asked the NCYL to file a lawsuit on these children's behalf. Id. at p. 5. The NCYL agreed to do so "only if she could convince them that the abuses she recounted were not isolated incidents." Id.
After extensive pre-filing investigation and several meetings with Defendants, the NCYL sought association with local counsel. Id. at p. 9. After several refusals, "either because of the time commitment required for such litigation or for other reasons," Jones, Waldo, Holbrook & McDonough ("Jones & Waldo"), a Salt Lake City law firm with substantial experience in litigation and civil rights matters, agreed to act as co-counsel in September 1992. Id.
[4] Specifically, the Complaint set forth the following causes of action:
(1) Violation of Fourteenth Amendment Due Process alleging that foster children were deprived of necessary medical treatment. See Complaint at ¶ 317.
(2) Violation of Fourteenth Amendment Due Process and 42 U.S.C. § 1983 alleging that foster children were deprived of constitutional rights to safe conditions, personal security and bodily integrity, and to have care and treatment decisions made for them and provided to them in accordance with professional judgment. See id. ¶ 318.
(3) Violation of Fourteenth Amendment Due Process alleging the State deprived foster children of rights and entitlements created by state law without due process. See id. ¶ 319.
(4) Violation of Fourteenth Amendment Equal Protection alleging that foster children have federal and state-created rights to investigations and protective measures, but that victims of child abuse receive disparate protections based solely on the region of the state in which they reside. See id. ¶ 320.
(5) Violation of certain rights under the federal Adoption Assistance and Child Welfare Act of 1980 i.e., (a) a written case plan, (b) foster placement in the least restrictive setting in close proximity to parents, and to assist parents to improve conditions in the home, or to achieve an alternative permanent placement, (c) right to periodic review of their cases, (5) right to placement in foster homes that conform to nationally recommended standards, and (6) right to procedural safeguards when removed from parental home, change in placement occurs, or there is an alternation in the parent-child visitation plan. See id. ¶ 321.
(6) Violation of federal Child Abuse Prevention and Treatment Act alleging violations of foster children's rights to prompt investigation of abuse and neglect reports, immediate steps to protect children's health and welfare in the face of those reports, and rights to administrative procedures, trained personnel, and facilities necessary to ensure their safety. See id. ¶ 322.
[5] Defendants were aware by late 1991 that NCYL attorneys were traveling to Utah to investigate the child welfare system. See Affidavit of Linda Luinstra at ¶ 2 (Dec. 16, 1994) [hereinafter "Luinstra Aff."].
[6] Defendants point out that Plaintiffs' pre-filing investigation "coincided with administrative and legislative efforts by the State of Utah to assess and reform the State's child welfare system." Defendants' Response to Motion for Award of Attorneys' Fees and Costs at p. 6, Case No. 93-C-206W (Dec. 19, 1994) [hereinafter "Defendants' Response"]. The successful efforts included passage of Senate Bill 74, establishing the Termination of Parental Rights Act, which "provides a judicial process for voluntary and involuntary severance of the parent-child relationship." See Utah Code Ann. §§ 78-3a-401 to -414 (Supp. 1994) (effective July 1, 1992). They also included a legislative audit of the DFS and the child welfare system. The results of that audit were not released until January 14, 1994. In addition, the Child Welfare Reform Act was passed by the Utah legislature in the 1994 General Session and took effect July 1, 1994. See Defendants' Response at pp. 6-7.
[7] Plaintiffs contend that the lawsuit was filed only after these meetings"only after defendants would not agree to a list of basic reforms." Grimm Dec. at ¶ 24.
[8] Defendants asserted that the certification order was improper in that Judge Alba had not set out his findings of fact and recommendations "in the form required by 28 U.S.C. § 636." See Defendants' Objection to Order Re: Class Certification at p. 3, Case No. 93-C-206W (May 12, 1993).
[9] Negotiations were conducted on April 27, May 18, June 9, July 8, and November 19 of 1993, and January 7, March 22, April 1, and April 25 of 1994. Pamela J. Atkinson, Vice President of Mission Services for Intermountain Health Care, acted as a neutral third party to mediate the negotiations.
[10] "A prevailing defendant may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant." Hensley, 461 U.S. at 429 n. 2, 103 S.Ct. at 1937 n. 2 (citing H.R.Rep. No. 94-1558, p. 7 (1976)).
[11] For reasons which will become evident in Part C infra, the court makes this assessment even though Defendants have not specifically argued that Plaintiffs are not a prevailing party.
[12] Farrar exemplifies just how generous the formulation for "prevailing" party can be. There, the Court held that a plaintiff who had spent ten years litigating a seventeen million dollar suit against six defendants, but who ultimately received just one dollar from one defendant at trial, was nevertheless a "prevailing" party for § 1988 award purposes. See Farrar, 506 U.S. at ___, 113 S.Ct. at 570 (holding that plaintiff who wins nominal damages is prevailing party). However, the Court affirmed the court of appeal's denial of any award, finding that an award would not be "reasonable." Id., 113 S.Ct. at 574-75 (finding that the degree of a prevailing party's "overall success" determines the reasonableness of an award).
[13] Although not in the prevailing party argument context, Defendants have asserted that "the Plaintiff has not shown that the Action taken by the State of Utah in passing the Child Reform Act or in entering the Settlement Agreement was required by law." Defendants' Response at p. 39. However, it is clear that what is important is a "change in position" by Defendants, not that Plaintiffs could not have, by reason of law, specifically required the State to pass the Act or enter into the Agreement.
[14] Defendants have argued that the types of child welfare reforms in which the Agreement resulted were already under consideration by the State. See supra note 6 and accompanying text. However, because Plaintiffs' action need not have been the sole cause of Defendants' change in position, this is not determinative.
[15] Defendants concede that Plaintiffs could have prevailed on the first two causes of action. See Defendants' Response at p. 40; see also supra note 4 and accompanying text (listing the six causes of action). Defendants also concede that the following portions of the Agreement were required by law: (1) 3 of the 12 subparagraphs of Section IV Quality and Safety of Out-of-Home Care; (2) part of the provisions dealing with adequate health and mental care; and (3) case plans and case reviews. Defendants' Response at p. 41-42.
[16] NCYL requests $90 per hour compensation for law clerks.
[17] Mr. Pearl was first admitted to a Bar in 1970 and is an expert in preparing fee applications.
[18] Ms. Steyer was first admitted to a Bar in 1991.
[19] Based on affidavits submitted, prevailing rates for excellent trial counsel experienced in civil rights litigation range from about $120 to $190 per hour. Local rates for attorneys with less experience range from about $80 to $130 per hour.
[20] Plaintiffs have provided affidavits testifying to San Francisco prevailing rates, but have submitted very few affidavits as to local area rates for experienced civil rights litigators.
[21] The court has examined the pre-filing itemizations prepared by Defendants and made deductions for excess and duplication. These deductions are contained in other areas discussed infra. To cite just a few examples, the following have been deleted: (1) meetings with Elder Pinegar, (2) meetings to discuss Utah gubernatorial candidates, and (3) research on Utah state and local judges.
[22] The Keyes court found 17 of 46 hours expended in public relations compensable those spent in lengthy community service programming which clearly and fully explained the complex issues to the class. Keyes, 439 F.Supp. at 408. It refused to allow 27 hours for attendance at school board meetings, finding that this was not necessary to the proper progression of the lawsuit. Id. It allowed 85 of 92 proposed hours for attendance at community meetings which concerned desegregation plans and the nature of the lawsuit. Id. at 409.
[23] The court has found that hours designated as "media hours" in Defendants' Response are often not well-categorized as such.
Also, deductions include both pre-filing and post-filing media time. This rule also applies to the other categories of expenses discussed infra.
[24] For example, in Jenkins v. Missouri, 862 F.2d 677 (8th Cir.1988), although the court allowed fees incurred for activities in a school district tax levy election, it pointed out that this could not be considered "political activity." Id. at 678-79. Indeed, the school district had submitted the levy increases to the voters in order to comply with a court requirement that levy increases be submitted first to the voters before the court could order a tax levy to fund desegregation. Id.
Also, Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir.1992), does not completely support Plaintiffs' position. It is true that the court counseled deference to the trial court's determination that lobbying the San Francisco Board of Supervisors "`was as vital to the consent decree as were the negotiations with the City's administrative officials.'" Id. at 1545 (citing to trial court's opinion). However, in conclusion, the court of appeals remanded the case to the district court with instructions that "fees for public relations work should be stricken unless each item can be documented as something only a lawyer appropriately should do." Id. at 1558.
[25] When attendance by only one of Plaintiffs' attorneys has been allowed, compensation has been approved for the attorney with the highest hourly rate.
[26] There is some ambiguity as to exactly which hours Plaintiffs have voluntarily deleted. See Supplemental Declaration of Martha Matthews, Ex. 6 (Jan. 20, 1995) (compare pp. 62-63 with p. 61). Therefore, Plaintiffs must assume the risk that the court has deducted for some items which Plaintiffs have already withdrawn.
[27] Time records indicate that Plaintiffs' counsel at each meeting was as follows:
Apr. 27, 1993 ...... Grimm, Matthews, McElroy,
O'Brien
May 18, 1993 ....... Grimm, Matthews, McElroy,
O'Brien
June 9, 1993 ....... Grimm, Matthews, McElroy,
O'Brien
July 8, 1993 ....... Grimm, Matthews, McElroy,
O'Brien
Nov. 19, 1993 ...... Grimm, Matthews, Steyer,
O'Brien
Jan. 7, 1994 ...... Grimm, Matthews, McElroy,
Steyer, O'Brien,
Kaplan
Mar. 22, 1994 ..... Grimm, Matthews, McElroy,
Steyer, O'Brien
Apr. 1, 1994 ...... Matthews, McElroy, Morgan
Apr. 25, 1994 ..... Grimm, Matthews, McElroy,
Steyer, O'Brien,
Morgan
[28] Hours have been adjusted to reflect percentage deductions.
[29] Deductions for Mr. Grimm's travel time between the District of Columbia and Salt Lake City on 7-6-93 and 7-9-93 are included in subpart 1 supra.
[30] It is unclear to the court what type of reduction Defendants suggest. Presumably, it would be a percentage deduction based on Defendants' argument that only two of the six causes of action were "required by law."
It is also unclear whether Defendants intend this to be an argument subsumed under "prevailing party," "reasonable hours," or "adjustment to lodestar." Because it appears that this is more properly an "adjustment to lodestar" argument, it will be treated as such.
[31] Griffin is not discussed because it does not examine whether a defendant's conduct was required by law and does not rely on the Nadeau "required by law" prevailing party test. Moreover, the 50% reduction in the lodestar in Griffin was due to plaintiffs' failure to prevail on all claims and because, even though these claims were sufficiently related to successful claims, the level of success achieved did not make the hours expended reasonable. See Griffin, 827 F.Supp. at 688 (relying on Hensley test discussed infra).
[32] Plaintiffs argue that the second, "required by law," prong of this test does not require, as Defendants assert, that Plaintiffs must prove that they would have prevailed on a motion to dismiss. See Plaintiffs' Reply at p. 53-54; see also Defendants' Response at p. 39. Plaintiffs contend that to satisfy this prong, Plaintiffs need only show that "the defendant's agreement to settle was not a `wholly gratuitous response' to a `frivolous or groundless' claim." Plaintiffs' Reply at p. 53 (emphasis omitted) (stating second prong test as "the defendant's conduct was required by law, i.e., not a wholly gratuitous response to an action that in itself was frivolous or groundless.'") (quoting Beard, 31 F.3d at 952 (citing J & J Anderson, 767 F.2d at 1475)).
Although Plaintiffs' argument is not relevant to the court's analysis here, the Tenth Circuit has recently addressed whatever tension that might exist between the "required by law" and "wholly gratuitous response" language. See Kansas Health Care Ass'n, Inc. v. Kansas Dep't of Social and Rehab. Servs., 31 F.3d 1052 (10th Cir.1994). Referring to the "frivolous and groundless" language, the court stated that:
the plaintiffs conclude that the "required by law" prong of the catalyst test is, in essence, a showing that the defendants' response was necessarily to an action that in itself was frivolous or groundless. We disagree with the plaintiffs' reading.... The essential part of that language is "that the defendants' conduct was required by law." The court's reference to "a wholly gratuitous response to an action that in itself was frivolous or groundless" is obviously intended as only one example of the type of conduct referred to by the court.
Id. at 1055 (citing to Supre, 792 F.2d at 964 (quoting J & J Anderson, 767 F.2d at 1475)).
[33] If this court were to apply the standard Defendants suggest, it would be necessary to examine each separate claim in each case, determine whether Defendants' response was required by law so that Plaintiffs were a prevailing party on that one claim, and then award attorney's fees on that claim. This is clearly at odds with the Supreme Court's admonition that "[a] request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. It is also at odds with Hensley's lesson: even though a party does not prevail on all claims, so long as results are excellent and those claims rest on related legal theories or a common core of facts, there should be full compensation. Id. at 435, 103 S.Ct. at 1940. In other words, "[t]he result is what matters." Id.
[34] This appears to be similar to what Defendants are arguing, i.e., that lodestar adjustments should be made to reflect the fact that Defendants chose to give Plaintiffs more in the Agreement than they might have received in an adjudication on the merits.
[35] Defendants also objected to Mr. Pearl's hourly rate of $310. However, Mr. Pearl's rate has previously been reduced to $190, and that issue will not be discussed.
[36] Even if the United States "prevails," it cannot recover a fee award. See 42 U.S.C. § 1988.
[37] The court realizes that its allowance of telephone toll expenses may seem inconsistent with its finding that travel expenses between California and Utah are noncompensable. Nevertheless, it cannot reasonably be said that these calls were unnecessary.
[38] See Appendix for a summary of costs and expenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262162/ | 261 N.J. Super. 309 (1993)
618 A.2d 902
JAMES BAIJNATH, PETITIONER-RESPONDENT, CROSS-APPELLANT,
v.
EAGLE PLYWOOD & DOOR MANUFACTURERS, INC., RESPONDENT-APPELLANT, CROSS-RESPONDENT, AND COILMET CORPORATION (IMPLEADED AS COIL METAL CORPORATION), RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued December 15, 1992.
Decided January 12, 1993.
*310 Before BILDER, BAIME and WALLACE, JJ.
Paula C. Bryant argued the cause for appellant, cross-respondent Eagle Plywood & Door Manufacturers, Inc. (Psak & Parker, attorneys; Ms. Bryant, on the brief).
Jack N. Frost argued the cause for respondent, cross-appellant James Baijnath (Frost & Rhodes, attorneys; Frank D. DeVito, on the letter brief).
Francis T. Giuliano argued the cause for respondent Coilmet Corporation.
The opinion of the court was delivered by BILDER, J.A.D.
This is an appeal by an impleaded respondent employer, Eagle Plywood & Door Manufacturers Inc., from a judgment of the Division of Workers' Compensation awarding the petitioner employee, James Baijnath, 10% partial permanent disability for a lumbosacral sprain and strain and 25% partial permanent disability for post traumatic stress disorder manifested by depression. On appeal, Eagle contends that the award against *311 it is barred by N.J.S.A. 34:15-41 because petitioner did not file a claim within two years of the alleged accident and that the Compensation Judge's findings were not supported by the evidence. The petitioner cross-appeals, contending the attorney's fees awarded to him were inadequate.
Petitioner sustained a compensable accident on July 8, 1983 when, as an employee of respondent Coil Metal Corporation[1], he fell injuring his back, left shoulder and back of his head. His medical bills were paid and he received temporary disability benefits. Thereafter, he obtained a $250,000 award in a third party action and the medical and disability benefit liens were satisfied. This appeal arises from the subsequent trial of petitioner's permanent disability claim.
Petitioner remained out of work a little over three months, returning to light duty on October 24, 1983. In December, he again left, returning in February 1984. When he was unable to work, his employment at Coil Metal was terminated. He then went to Eagle Plywood by whom he was employed from February 21, 1984 until September 6, 1984. Eagle Plywood was impleaded by Coil Metal as a subsequent employer. Prior to the first hearing with respect to petitioner's claim of a permanent disability arising from the July 8, 1983 accident, there was no suggestion that there had been any subsequent accident nor had any claim of aggravation been asserted.[2]
On January 18, 1990 while testifying on direct examination, petitioner made it known that an accident had occurred while he was working at Eagle Plywood.
*312 The last day [September 6, 1984] I worked [at Eagle] there was a shocking pain in my back. In the lower back there was a severe burning like blazing on the back, and then my left leg was actually numb. I couldn't stand up any longer.
* * * * * * * *
[Just before I felt the pain] I helped move some doors. Those doors was like about 135 pounds. Four of us lift them.
When he felt the pain he rested and then left work.
I went to the men's room and I stand up there for about 20 minutes to see if I could get over the pain, and it didn't go away. I started to perspire and I went to the supervisor and I said, "Sir, I can't work any more. I'm going to the hospital."
He then went to the Plainfield Health Center and saw Dr. Walsh, the doctor who was still treating him for the 1983 accident.
Dr. Walsh gave me tablets, and she gave me heat treatment and massage, and she recommended bed rest.
As we have already noted, no notice of the 1984 accident was given to Eagle; no claim was filed. Subsequent evidence at the hearing showed that, although petitioner continued to make complaints and receive treatment with respect to the injuries from the 1983 accident, with a single exception, he never reported the 1984 accident to any of the myriad doctors who treated him after that date. The single exception was Dr. Miriam Borton, a psychiatrist who saw petitioner for the first time in the Emergency Room at Muhlenberg Hospital on November 15, 1985.
Petitioner was referred to Dr. Borton by Dr. Walsh because of a diagnosis of depression and suicidal ideation. In connection with that referral and while hospitalized, petitioner received a neurological consultation which led to a diagnosis of post-traumatic syndrome with left sciatic nerve disk pain. At the request of the neurologist, to rule out a L4-L5 disk herniation, a CAT scan was taken which disclosed no herniation but a bulging at L5-S1. There was damage in the form of a bulging of the disk. In expressing her opinion as to the relationship between petitioner's psychiatric difficulties and the trauma he *313 received at work, Dr. Borton made reference to a history, received from petitioner, of the 1984 accident.
After this original injury, he then attempted to go back to work again. And this obsessive compulsive personality, who didn't just want to lie around the house and not take care of his family, he went back to work and sustained another injury by lifting something. He lifted something and he stopped working at that time due to the severe pain that he experienced. And then that's when he started to get depressed. He started to drink because, at that time, it became clear to him as an individual subjectively, because this is his feeling that he was impotent as a man. He is no longer a man in all the sense of the word.
Following the hearings which took eleven separate days and included expert testimony from three doctors specializing in neuropsychiatry and two doctors specializing in orthopedics as well as a treating psychiatrist, the compensation judge found that petitioner has a lumbosacral sprain and strain that is giving him some pain and some flexion difficulties, all of which he found to total 10% of partial permanent disability; that an intervening and subsequent accident had occurred on September 6, 1984 at Eagle Plywood; that he could not apportion the disability between the two accidents; that the 10% of partial permanent disability was therefore the responsibility of Eagle; that petitioner is suffering from a post-traumatic stress disorder manifested by depression due to his sexual problems because of back pain, which he found to be a psychiatric disability of 25% of partial permanent disability; and that this disability is related to the 1984 accident and is the responsibility of Eagle. In his oral decision of October 2, 1991, he summarized it thusly:
Overall, I did find that the petitioner has 10 percent of orthopedic and neurologic disability and 25 percent of psychiatric disability. I do not find that the orthopedic and psychiatric, together, have rendered the petitioner totally and permanently disabled. The respondent Eagle Plywood is liable for the permanent disability since I do find that the September 1984 accident was a separate incident and an intervening subsequent accident to the accident of July 8th, 1983.
On appeal our scope of review limits us to determining "`whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering `the proofs as a whole,' with due regard to the *314 opportunity of the one who heard the witnesses to judge of their credibility [citation omitted] and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor." Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965) (quoting State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964)); see De Angelo v. Alsan Masons Inc., 122 N.J. Super. 88, 89-90, 299 A.2d 90 (App.Div. 1973), aff'd o.b., 62 N.J. 581, 303 A.2d 883 (1973). After a review of the record, we are persuaded that the decision of the judge of compensation with respect to petitioner's disability and his finding that there was a subsequent accident during petitioner's employment with Eagle Plywood were based on sufficient credible evidence in the record and must be upheld.
Our conclusion as to the compensation judge's factual findings necessarily results in a legal conclusion that the final judgment must be reversed and set aside. The findings would seem to exonerate Coil Metal. Because petitioner never filed a claim with respect to the Eagle Plywood accident, the claim against it is now barred by N.J.S.A. 34:15-41. Filing within time is jurisdictional and cannot be waived. See Riccioni v. American Cyanamid Co., 23 N.J. Super. 465, 470-471, 93 A.2d 60 (Co.Ct. 1952), aff'd, 26 N.J. Super. 1, 96 A.2d 765 (App.Div. 1953), certif. den., 13 N.J. 289, 99 A.2d 450 (1953); Bocchino v. Best Foods, Inc., 16 N.J. Super. 154, 157, 84 A.2d 40 (Co.Ct. 1951).
The apparent injustice of a result which bars petitioner not only from recovery for the results of an unclaimed accident but also from the results of an acknowledged compensable accident, indeed one for which temporary benefits and medical expenses were paid, leads us inexorably to an examination of the correctness of the compensation judge's conclusion that the absence of evidence which permits an allocation of the injuries as between the two successive compensable injuries, requires the allocation of the full liability to Eagle. See R. 2:10-2.
Where, as here, two successive compensable traumatic injuries combine to produce permanent injury, there should be *315 apportionment among the employers to the degree that each contributes to the total result. See Quinn v. Automatic Sprinkler Co., 50 N.J. Super. 468, 477, 142 A.2d 655 (App.Div. 1958). Here, unfortunately, it would seem that no evidence was presented which permits such an apportionment. None of the doctors who treated petitioner following the first accident but before the second accident testified. This was undoubtedly caused by petitioner's failure to call attention to the second accident. As noted, he filed no claim with Eagle and, with the exception of Dr. Borton, never related it to the doctors who treated him after the second accident. Nonetheless, it is apparent, both from the petitioner's inter-accident history and the temporary disability benefit award he received, that the first accident contributed in some substantial manner to the final result. In such a case, i.e., where the proofs show that each compensable accident contributed substantially to the ultimate disability but proof is lacking as to the contribution of each to the ultimate result, the liability should be apportioned on some equitable basis. In Quinn, the court apportioned the liability equally. Id. at 479-481, 142 A.2d 655; also Kozinsky v. Edison Products Co., 222 N.J. Super. 530, 536, 537 A.2d 737 (App.Div. 1988); Hodgdon v. Project Packaging, Inc., 214 N.J. Super. 352, 362, 519 A.2d 881 (App.Div. 1986). The compensation judge's conclusion that an inability to "break down disability between the two accidents" should lead to total responsibility on the part of the last employer was error.
The rule as to occupational injuries is significantly different. See Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308, 311, 200 A.2d 322 (1964). Occupational injuries have an insidious etiology. They can exist for a protracted period without objective manifestation. An effort to apportion the result among the relevant historical employers and/or insurance carriers would be totally speculative. Ibid. Traumatic injuries are quite different. Their incidence is fixed and determinable. The allocation of responsibility may be difficult; the proofs may not *316 permit of certainty. However, there are distinct harms and some reasonable basis in the facts for allocation, see Dafler v. Raymark Industries, Inc., 259 N.J. Super. 17, 28, 611 A.2d 136 (App.Div. 1992); Restatement (Second) of Torts § 433A (1965), and mere lack of certainty is not a bar to a damage award, see Tessmar v. Grosner, 23 N.J. 193, 203, 128 A.2d 467 (1957). Moreover, an understanding of the need to present better allocation proofs may obviate the theoretical difficulties in traumatic injury situations. In this very case the difficulty stems from a failure to produce doctors who treated petitioner before as well as after the second accident.
To summarize, the trial judge's findings as to disability are supported by substantial evidence in the record and are affirmed; because no claim was filed, the claim against Eagle must be dismissed; the liability must be apportioned on some factual or equitable basis (in the absence of any other basis equally as in Quinn); the existing judgment must be vacated and a judgment representing the appropriate allocation entered against Coil Metal. The vacation of the judgment makes petitioner's cross-appeal moot.
The matter is remanded for further proceedings in accordance with our opinion. We do not retain jurisdiction.
NOTES
[1] Apparently the correct name is Coilmet Corporation. We retain the name used below.
[2] In its affidavit in support of its motion to implead Eagle, Coil Metal merely stated that petitioner had worked for Eagle from March 1984 until September 6, 1984; that he left Eagle "after advising them he was leaving for another position that paid more money"; and "that upon information and belief, all or part of the Petitioner's present disability is causally related to his employment with [Eagle]". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262171/ | 421 Pa. Superior Ct. 595 (1992)
618 A.2d 969
COMMONWEALTH of Pennsylvania, Appellant,
v.
Dominic EVOLA.
Superior Court of Pennsylvania.
Argued October 20, 1992.
Filed November 18, 1992.
Reargument Denied January 29, 1993.
Norman Gross, Asst. Dist. Atty., Philadelphia, for the Com., appellant.
Joseph C. Santaguida, Philadelphia, for appellee.
Before CIRILLO, MONTEMURO and TAMILIA, JJ.
*596 TAMILIA, Judge:
The Commonwealth takes this appeal from the orders granting defendant/appellee Dominic Evola's petition for early parole. The factual and procedural history of this case are as follows.
On February 14, 1991, [the trial court] found the defendant guilty of two counts of Involuntary Manslaughter (Bills 2934 & 2989) and of Driving Under the Influence (Bill 2983) for causing the deaths of Jason Gammuto and Mark Mulhern through his reckless operation of a motor vehicle with noticeably balding tires at a high rate of speed. On May 1, [the trial court] sentenced Evola to a term of eight to twenty-three months on each count of Involuntary Manslaughter to run consecutively and to forty-eight hours on DUI to run concurrently. [The trial court] specified on the record that Evola was to be confined at a Philadelphia County prison facility. (N.T. 5/1/91, p. 50) and permitted the defendant to surrender on May 13th.
On October 8, 1991, after receiving approval from [the trial court], defense counsel, Joseph Santaguida, Esquire, filed a Petition for Early Parole/Work Release. [The trial court] set a hearing on this petition for October 21, 1991. Before the hearing could be held, the Philadelphia County Prison System submitted an Earned Time/Good Time Parole Petition on behalf of Evola1. Evola had earned a total of fifty-two days. [The trial court] then granted the petition which the Philadelphia County Prison System Population Management Unit correctly calculated to reduce the defendant's minimum date of release on the first count of Involuntary Manslaughter, Bill No. 2984, from January 13, 1992 to November 22, 1992.2 The original Petition for Early Parole had therefore been mooted.
On November 22, 1991, [the trial court] permitted defense counsel to file a new Petition for Early Parole on the second charge. [The trial court] set a hearing on this petition for November 26th. On that day, [the trial court] granted the defendant's petition and placed Evola on parole for the *597 remainder of this sentence on the second court [sic] of Involuntary Manslaughter, Bill No. 2989.
On December 5th, [the trial court] received the Commonwealth's Petition to Modify and/or Vacate [the trial court's] order granting the defendant's early parole.
[The trial court] denied the petition without a hearing. On December 26, the Commonwealth filed a Notice of Appeal. Pursuant to such notice, [the trial court] ordered the District Attorney of Philadelphia County to file a concise Statement of Matters Complained of on appeal in accordance with Pa.R.A.P. 1925(b). The Commonwealth filed the statement on January 22, 1992.
1. Earned Time/Good Time is a program which allows county prisoners to earn time off their sentences in return for good behavior and/or working in the prison pursuant to Joing [sic] Regulation No. 90-7.
2. See attached Exhibit 1 which is a copy of the petition and Order submitted by Philadelphia Prison Population management Unit effectuating Mr. Evola's release on parole on bill # 2984 Involuntary Manslaughter.
(Slip Op., Richette, J., 6/8/92, pp. 1-3.)[1]
It is abundantly clear under Pennsylvania law that the authority to parole convicted offenders lies with both the common pleas courts and the Pennsylvania Board of Probation and Parole. "When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant and revoke parole is vested in the Parole Board." Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239 (1988); see also 61 Pa.S. §§ 331.17, 331.26.
*598 In the present case, appellee was serving consecutive sentences of eight (8) to twenty-three (23) months. At first blush, then, this case would appear to involve the trial court's authority rather than that of the Parole Board. Pertinent statutory law, however, provides:
Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed.
42 Pa.C.S. § 9757 (emphasis added). "Our Commonwealth Court has interpreted [section 9757] to mandate automatic aggregation of sentences once the trial court imposes a consecutive sentence. Gillespie v. Commonwealth Department of Corrections, 106 Pa.Commw. 500, 508, 527 A.2d 1061, 1065 (1987)." Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 284, 590 A.2d 782, 783 (1991). This Court in Ford-Bey adopted the rationale of Gillespie, and we continue to follow Ford-Bey today.
Nevertheless, the trial court discounts the holdings of Gillespie and Ford-Bey, relying instead on a discussion of state versus county incarceration. The issues of state and county incarceration, and of consecutive and aggregate sentences, operate independently of each other, and are relevant only to the extent that they indicate where the trial court diverted from its intention to its result. We do not dispute that the decision requiring a sentence to be served in a state as opposed to a county institution "is purely within the discretion of the trial judge limited only by statutes or Department of Correction regulations as to where a sentence, of particular duration . . ., may be served." Commonwealth v. Morrison, 391 Pa.Super. 449, 457, 571 A.2d 453, 457 (1990).
The trial court, however, states:
Even where a consecutive sentence is imposed, unless the Court specifically orders aggregation, the county sentence *599 prevails. The Webster definition of aggregation is "to collect or gather into a mass or whole, to total."
The adjective "consecutive," on the other hand, means "following one after the other in order," "successive."
(Slip Op. at 4-5.) It appears the trial court sought to have appellee serve his sentence in a county institution rather than a state one, and believed that unless it "specifically order[ed] aggregation, the county sentence prevail[ed]." The decision to confine appellee in a county institution is always within the trial court's discretion, where the sentence was more than two years but less than five years. 42 Pa.C.S. § 9762(2); Allegheny County v. Commonwealth, 518 Pa. 556, 544 A.2d 1305 (1988). However, aggregation of consecutive sentences was not within the trial court's discretion, but occurred by operation of law under section 9757.[2]
Therefore, as the trial court's parole Orders are contrary to the clear statutory provisions concerning the imposition of consecutive sentences, as well as the appellate decisions thereon, they are hereby vacated, and we order appellee to surrender to the custody of the Superintendent of the Philadelphia Department of Prisons for completion of each of his two eight-month minimum sentences as aggregated.[3]
Orders vacated; case remanded for proceedings consistent with this Opinion.
Jurisdiction relinquished.
Decision rendered prior to MONTEMURO, J. leaving the bench.
NOTES
[1] We note with some concern that a copy of the Philadelphia County Prison System Population Management Unit ("PPMU") parole petition filed in appellee's behalf is contained nowhere in the Quarter Session file for this case, nor is there any indication in the file that the petition was filed with the Clerk of Quarter Sessions, let alone properly served on the district attorney, as required. 61 Pa.S. § 314; Pa.R.Crim.P. 9023(b). Indeed, the only indication that the PPMU petition was filed is the trial court's statement in its Opinion that this occurred. Further, although the trial court in footnote 2 of its Opinion states the PPMU petition is attached thereto as Exhibit 1, such was not appended.
[2] We note with some sympathy the able trial court's position that legislation and prosecutorial discretion have increasingly limited the ability of trial courts to use their discretion in evaluating appropriate sentencing of offenders. However, we too have diminished discretion as appellate judges to consider individualized findings and are constrained by legislation and case law to follow the legislative intent.
[3] In light of our finding that the aggregate sentence is one which comes under the exclusive jurisdiction of the Parole Board, it necessarily follows that the good time provisions under the Philadelphia County Prison Regulations do not apply and release is governed by Parole Regulations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262182/ | 618 A.2d 664 (1992)
Joyce A. McMILLAN, Appellant,
v.
CHOICE HEALTHCARE PLAN, INC., Appellee.
No. 90-CV-613.
District of Columbia Court of Appeals.
Argued December 12, 1990.
Decided December 30, 1992.
*665 Brian D. Geno, Silver Springs, MD, for appellant.
Elliott B. Adler, Rockville, MD, for appellee.
Before TERRY, FARRELL and WAGNER, Associate Judges.
WAGNER, Associate Judge:
Appellant, Joyce A. McMillan, appeals from an order of the trial court denying her motion to vacate, pursuant to Super.Ct.Civ.R. 60(b), a prior order granting summary judgment in favor of appellee, Choice Healthcare Plan, Inc. (CHOICE).[1] Persuaded that the trial court did not abuse its discretion under the circumstances presented, we affirm.
I.
Appellant filed a complaint for damages for breach of contract against appellee for its refusal to pay medical expenses she claimed under a health care plan provided by her employer, Howard University Hospital. Appellee, the administrator of the plan, was responsible for the payment of benefits. Appellant alleged that she required emergency treatment, including hospitalization, and that appellee denied coverage. Appellee contended that appellant's medical expenses were not covered under the terms of the plan because appellant's hospitalization was not: (1) an emergency admission; (2) pre-authorized by appellee as required by the contract; and (3) for services rendered at a contracted or plan hospital. Non-emergency hospitalization and medical services were not covered by the plan unless authorized in advance by the Plan Medical Director.[2] Emergency hospitalization and medical care as defined in the plan is covered. The plan defines a medical emergency as follows:
a traumatic injury or medical condition which occurs suddenly and unexpectedly and requires immediate diagnosis and treatment. Heart attacks, severe chest pains, cerebral vascular accidents ("strokes"), loss of consciousness, convulsions, heavy or uncontrollable bleeding, and poisonings are examples of medical emergencies. Other similarly acute conditions may be determined to be a medical emergency by a Plan Physician[3] or the Plan Medical Director.
When emergency care is not pre-authorized, the Plan provides that the determination of whether an emergency existed will be based on "an objective determination by CHOICE that an emergency existed and will not be based solely on the advice of an attending physician." It is undisputed that appellant's hospitalization was not pre-authorized by the Plan Medical Director.
Appellant first saw her physician, Dr. John Niles, on October 13, 1986, for the condition for which she had surgery in December of that year. Dr. Niles was her gynecologist and personal care physician, but he was not a "referred care specialist" authorized to approve in-patient medical care at non-designated hospitals. The physician ordered certain tests for appellant, and he received the results on November 6th. The test results revealed that appellant *666 required surgery which Dr. Niles scheduled initially for late November. Appellant rescheduled the operation for December 13th because of financial reasons and to arrange for child care. Appellant's physician admitted that although the surgery was an emergency in his opinion, it was not an emergency as defined in the CHOICE plan. The surgery was scheduled and performed at a non-plan medical facility. Appellant sought payment of her hospital expenses and doctors' bills,[4] which CHOICE denied. CHOICE reconsidered appellant's claims two times after she initially submitted them, but CHOICE ultimately denied the claims. Appellee's decision was based on a review of the medical records by its Medical Director and the conclusion of a board certified specialist in obstetrics and gynecology. Appellant filed a complaint in Superior Court seeking payment of these expenses.
Appellee filed a motion for summary judgment on December 7, 1989 which it served personally on appellant's counsel the same day. Appellant did not respond within the time required by Super.Ct.Civ.R. 12-I(e),[5] and on January 11, 1990, the trial court granted the motion. The court's order was docketed on January 23, 1990. On January 29, 1990, appellant filed a motion to vacate the order pursuant to Super.Ct.Civ.R. 60(b)[6] and about the same time filed an opposition to the motion for summary judgment.[7] Counsel gave as his reason for failure to file the opposition timely that he had "inadvertently and mistakenly thought" that the opposition had been timely filed. Appellant did not attach to her opposition to the motion for summary judgment any affidavits or exhibits, although she referenced in support of it some of appellee's exhibits to its motion for summary judgment.[8] Appellant did not note an appeal from the order granting summary judgment.
Appellee's motion for summary judgment was based on the grounds that (1) appellant's common law claim was preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461 (1985), which according to appellee, is the exclusive remedy for an assertion of improper processing of claims for the benefits in issue;[9] (2) there *667 is no proof that CHOICE's decision to deny benefits was arbitrary, capricious or in bad faith as required to establish a claim under ERISA; and (3) appellant is precluded from recovery of two medical bills because the underlying claims involved are barred by the statute of limitations. In her tendered opposition, appellant simply denied that ERISA covered her claim and contended that appellee's refusal to pay was arbitrary, capricious, and in bad faith.[10] Appellant also asserted that she followed the advice of her private physician who is a "Choice Referral Specialist" and that he diagnosed her illness as an emergency, and that she followed his instructions to enter the out-of-plan hospital.
II.
Appellant did not appeal from the trial court's order granting summary judgment. Thus, the sole issue on appeal is whether the trial court abused its discretion in denying appellant's motion for relief from judgment under Super.Ct.Civ.R. 60(b). See Joyce v. Walker, 593 A.2d 199, 200 (D.C.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 645, 116 L.Ed.2d 662 (1991); see also Launay v. Launay, Inc., 497 A.2d 443, 454 (D.C.1985). In determining whether the trial court abused its discretion, we evaluate each case in light of its peculiar facts and consider particularly whether the moving party
(1) had actual notice of the proceedings; (2) acted in good faith; (3) took prompt action; and (4) presented an adequate defense.
Starling, supra note 9, 495 A.2d at 1159. Since trials on the merits are favored, "even a slight abuse of discretion in refusing to set aside a judgment may justify reversal." Id.
The rule under which appellant apparently filed her motion, Rule 60(b)(1), allows for relief from judgment because of "mistake, inadvertence, surprise, or excusable neglect." This provision of the rule is designed to provide relief for a mistake which could not have been avoided through due diligence of counsel; thus, mistakes of fact are accorded greater consideration than mistakes of law. Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 518 (D.C.1985). If there are exceptional circumstances which warrant relief from judgment, counsel must present them. See Launay, supra, 497 A.2d at 455. An attorney's failure to comply with court rules is a mistake of law which will rarely suffice to support the grant of relief under Rule 60(b)(1). Id. (citations omitted). Therefore, generally it is the client, rather than the adversary or the court, who must bear the consequences of retaining counsel who does not understand or who fails to comply with court rules. See Lynch, 491 A.2d at 520. We examine the facts in light of the foregoing principles.
Appellant's counsel was personally served with a copy of the motion for summary judgment. Having had actual notice of the motion, appellant failed to respond within the time required by the rule. Thus, the first factor extracted from Starling for deciding whether the trial court abused its discretion weighs against appellant. See Starling, supra, 495 A.2d at 1159. Appellant fares no better on the second major factor, whether the movant acted in good faith. Appellant proffered no more than a mere assertion that counsel mistakenly and inadvertently believed he had filed an opposition to the motion. Absent from appellant's motion to vacate, and even from the brief on appeal, is any explanation about the circumstances which led counsel to his mistaken belief. It is the *668 moving party's responsibility to present exceptional circumstances, if they exist, surrounding a claim of mistake which renders the trial court's denial of relief an abuse of discretion. Launay, supra, 497 A.2d at 455. Appellant did not do so here. Moreover, the record reveals that on January 11, 1990, the day the trial court granted summary judgment, the court also granted appellee's request for sanctions against appellant for failing to comply with certain discovery rules. The record also shows that appellant waited almost a year to file interrogatories, suggesting prior dilatory action. Thus, in the exercise of its discretion, the trial court could properly reject appellant's undetailed explanation and weigh the "good faith" consideration against her. See Starling, supra, 495 A.2d at 1159.
Appellant did take prompt action in moving for relief from judgment. See id. However, appellant's late-filed opposition to appellee's motion for summary judgment did not include any opposing affidavits or other supporting documents, as required by Super.Ct.Civ.R. 56(e), demonstrating material issues of fact in dispute which would preclude summary judgment. It is also pertinent to our consideration that the trial court entered summary judgment on the merits of the dispute. Even absent an opposition, the trial court is obliged to review the pleadings and other documents of record to determine whether the moving party is entitled to judgment as a matter of law before granting summary judgment. Kurth v. Dobricky, 487 A.2d 220, 224 (D.C. 1985). We have no reason to conclude that the trial court did not do so in this case.[11] At the same time, under Rule 56(e), the court is permitted "to accept the moving party's verified version of the facts if it is not countered with specificity in a timely fashion." Lynch, supra, 491 A.2d at 521. The trial court's determination of appellant's claim on the merits is significant in our analysis because "[t]raditionally, Rule 60(b) has been applied most liberally to judgments in default since the litigant in such cases has not had an opportunity to adequately present the merits of his case to the [trial] court." Smith v. Alumax Extrusions, Inc., 868 F.2d 1469, 1472 (5th Cir.1989).[12] Here, appellant did have such an opportunity, including an opportunity to appeal from the judgment.
In summary, we cannot say that the trial court abused its discretion in denying relief under Rule 60(b) where the failure to timely file an opposition to the motion for summary judgment could have been avoided by due diligence, see Lynch, supra, 491 A.2d at 518, no exceptional circumstances have been cited for the omission, see Launay, supra, 497 A.2d at 455, and appellant has had the benefit of an adjudication on the merits of her claim from which she failed to note an appeal. See Plotkin, supra note 12, 688 F.2d at 1293. Moreover, only one of the four major factors considered in deciding such motions weighs in appellant's favor. See Joyce, supra, 593 A.2d at 200. We have also recognized the general principle that a failure to comply with the rules *669 of court is a mistake of law which will seldom warrant relief under Rule 60(b)(1). Launay, supra, 497 A.2d at 455; Lynch, supra, 491 A.2d at 518. Under the circumstances, we find no abuse of discretion in the trial court's order denying relief under Rule 60(b).
Therefore, the trial court's order denying appellant's motion to vacate the order granting summary judgment hereby is
Affirmed.
NOTES
[1] Appellant did not specify the subsection of Rule 60(b) under which she sought relief. From the reason stated in the motion, it appears that appellant relied on subsection (b)(1), mistake, inadvertence, surprise, or excusable neglect. We would reach no different result under subsection (b)(6) of the rule (any other reason justifying relief from judgment).
[2] "Plan Medical Director" is defined as a physician, approved by CHOICE, with "on-site responsibility for the direction of medical care arranged for by the Plan."
[3] A "plan physician" is defined as a plan referral physician (i.e., one who has signed or is covered by a Plan Agreement), or a personal care physician (i.e., a physician designated by the enrollee in the manner prescribed by CHOICE for personal care services under the plan).
[4] Dr. Niles' bill is not part of appellant's claim in this action.
[5] Super.Ct.Civ.R. 12-I(e) provides in pertinent part that a "statement of opposing points and authorities shall be filed and served within 10 days or such further time as the court may grant."
[6] Super.Ct.Civ.R. 60(b) reads in pertinent part as follows:
(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.
[7] The docket entry shows the opposition was filed on January 29, 1990, and appellant's certificate of service of the motion by mail reflects January 23, 1990.
[8] Appellant cited exhibit 8, her own letter to appellee in which she contended that she obtained appellee's authorization for admission to the hospital, and portions of the deposition of her physician.
[9] The statutory provision appellant cites which took effect January 1, 1975, provides in pertinent part that the statute "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title." 29 U.S.C. § 1144.
ERISA comprehensively regulates, among other things, employee welfare benefit plans that, "through the purchase of insurance or otherwise," provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death. [ ] 29 U.S.C. § 1002(1).
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 1551, 95 L.Ed.2d 39 (1987). ERISA sets forth a comprehensive civil enforcement scheme for the prompt and fair settlement of claims under benefit plans subject to the Act, 29 U.S.C. § 1132 (1985); see also Pilot Life, 481 U.S. at 54, 107 S.Ct. at 1556. Appellant did not argue below, nor does she raise on appeal, whether ERISA governs the disposition of her claim. For these reasons, and because appellant did not appeal from the order granting summary judgment, we do not consider or decide the issue. Our focus is upon whether the trial court abused its discretion in denying relief under Rule 60(b). To the extent required by Rule 60(b), we consider whether appellant proffered an adequate defense. See Starling v. Jephunneh Lawrence & Assoc., 495 A.2d 1157, 1159 (D.C.1985).
[10] Appellee contends that the standard of review under ERISA is whether the decision of the administrator of the plan was arbitrary and capricious. See, e.g., Holt v. Winpisinger, 258 U.S.App.D.C. 343, 346-47, 811 F.2d 1532, 1535-36 (1987); Miles v. New York State Teamsters Conference Pension & Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 599 (2d Cir.1983), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983); Robinson v. United Mine Workers of America Health & Retirement Funds, 205 U.S.App. D.C. 330, 334, 640 F.2d 416, 420 (1981), rev'd on other grounds, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982).
[11] This case differs from Lynch where the trial court merely recited as a basis for its order granting summary judgment that there was no opposition filed. Lynch, supra, 491 A.2d at 520. Therefore, in Lynch we considered the merits of the summary judgment motion before concluding that the trial court did not abuse its discretion in denying a motion under Rule 60(b)(1). Here the order notes the lack of opposition and specifies that the court is "fully apprised of the circumstances." Thereafter, having considered appellant's motion for reconsideration of the denial of the motion to vacate in which appellant asserted a legal defense to the merits of the motion for summary judgment, and appellee's opposition which addressed same, the trial court concluded that the motion should be denied. Although the orders were entered without any significant elaboration, it contained sufficient language to indicate that the trial court had considered, as it was required to do, whether summary judgment was appropriate. See Kurth, supra, 487 A.2d at 224. An appeal from the order denying summary judgment, which appellant declined to take, is the appropriate vehicle to test the trial court's legal ruling on the merits.
[12] We note again that appellant could have appealed timely the order granting summary judgment and thereby obtained a review of the propriety of the court's ruling on the merits. Appellant failed to do so. Where a deliberate choice not to appeal from the underlying order is made, relief under Rule 60(b) may be withheld. Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262211/ | 238 P.3d 848 (2008)
REEVES
v.
REEVES.
No. 50349.
Supreme Court of Nevada.
July 18, 2008.
Decision Without Published Opinion Dismissed-Stipulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262230/ | 236 P.3d 193 (2010)
LITTLE MOUNTAIN ESTATES TENANTS ASSOCIATION, a Washington nonprofit corporation, as assignee; Jerry Jewett, Virginia Haldeman, Marie McCutchin, and Wes Walton, on behalf of themselves and classes of similarly situated persons, Respondents,
v.
LITTLE MOUNTAIN ESTATES MHC LLC, a limited liability company; Peregrine Holdings, LLC; and Kevin A. Ware and Kari M. Ware, husband and wife and the marital community composed thereof, Petitioners.
No. 82574-2.
Supreme Court of Washington, En Banc.
Argued March 16, 2010.
Decided July 22, 2010.
Sidney Charlotte Tribe, Talmadge Fitzpatrick PLLC, Tukwila, WA, Walter Hartvig Olsen Jr., Olsen Law Firm PLLC, Puyallup, WA, for Petitioners.
Philip James Buri, Buri Funston Mumford PLLC, Bellingham, WA, for Respondents.
SANDERS, J.
¶ 1 We are asked to decide under the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA), chapter 59.20 RCW, whether a landlord and tenant can lawfully *194 agree to a 25-year lease that will convert to a one-year lease if the tenant assigns it. Because the MHLTA expressly preserves the right of a landlord and tenant to negotiate and agree to the term of a rental agreement, this agreed-to provision does not violate the MHLTA.
FACTS
¶ 2 Petitioner Little Mountain Estates MHC LLC operates a manufactured home community intended for the elderly. To entice new residents the owner offered individuals a 25-year lease with rent increases tied to the Consumer Price Index. According to the rental agreement this 25-year term was only available to the original tenant; if the tenant assigned the lease to another party, the assigned lease would be for one or two years.[1] When formulating the offer, the owner determined that a 25-year lease with a fixed rent increase would not be profitable when a resident stayed for the entire length of the lease, but that loss would be offset by those who assigned their leases before the 25-year term expired. This trade-off balanced financial security for the tenants by having fixed rent for 25 years and profit for the park owners because the financial security attracted more tenants and the full 25-year term would not be exercised in its entirety in most cases.
¶ 3 Every tenant had the opportunity to read the rental agreement prior to signing; every tenant signed it; and no tenant objected to the assignment provision at that time. Later, some tenants assigned their leases and Little Mountain Estates Tenants Association brought suit claiming the assignment provision violated the MHLTA and the Consumer Protection Act (CPA), chapter 19.86 RCW.
¶ 4 The trial court held the lease did not violate the MHLTA or the CPA and the tenants were bound by the terms of the leases they voluntarily signed. The Court of Appeals reversed the trial court's determination that the MHLTA was not violated. Little Mountain Estates Tenants Ass'n v. Little Mountain Estates MHC LLC, 146 Wash. App. 546, 561, 192 P.3d 378 (2008) (Little Mountain).
STANDARD OF REVIEW
¶ 5 The court reviews statutory interpretation de novo. State v. Williams, 158 Wash.2d 904, 908, 148 P.3d 993 (2006) (citing Am. Cont'l Ins. Co. v. Steen, 151 Wash.2d 512, 518, 91 P.3d 864 (2004)). Where the plain language of the statute is unambiguous, the statute's plain meaning should be enforced. State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007) (citing State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003)).
ANALYSIS
¶ 6 The issue is whether under the MHLTA a landlord and tenant can agree to a 25-year rental term with fixed rent increases that becomes a one- or two-year term if the tenant assigns the rental agreement. The MHLTA expressly permits a landlord and tenant to negotiate the term of their rental agreement. RCW 59.20.090(1) provides: "Unless otherwise agreed rental agreements shall be for a term of one year." (Emphasis added.) Here, the landlord and tenants agreed to a varying term based upon whether the rental agreement was assigned. Nothing in the MHLTA precludes the term of the rental agreement from being determined by a formula or linked to the tenant's decision to assign the lease. Cf. Vance v. Villa Park Mobilehome Estates, 36 Cal. App.4th 698, 708, 42 Cal.Rptr.2d 723 (1995) (The California Court of Appeals held, because the Mobilehome Residency Law allowed the landlord and tenant to determine the rental rate, the parties were permitted to determine the rent by any formula to which they agreed, including a formula increasing rent upon assignment.).
¶ 7 The tenants argue the assignment provision requires tenants to waive their right to assign their 25-year leases and thus is unenforceable. The MHLTA protects a tenant's right to assign his or her rental agreement *195 and renders unenforceable any contract provision that waives that right. See RCW 59.20.060(2)(d), .073(1). However, the tenants' position mischaracterizes the rental agreement. The MHLTA permits parties to agree to the term of the rental agreement, RCW 59.20.090(1), and the parties here did agree to a term of 25 years for the original tenant and one or two years if assigned. Tenants are precluded from assigning a 25-year term because their rental agreements never provided an assignable 25-year term.[2] However, they are not prevented from assigning, nor did they waive their right to assign, the rental agreement.[3]
¶ 8 Respondents also argue that upholding the assignment provision contradicts the legislative intent statements of the MHLTA. However, statements of legislative intent are irrelevant to a court's analysis when the statutory language is unambiguous. See Armendariz, 160 Wash.2d at 110, 156 P.3d 201 (citing J.P., 149 Wash.2d at 450, 69 P.3d 318). Unambiguous statutory language is enforced as written. Id. RCW 59.20.090(1) unambiguously preserves the right of a landlord and tenant to negotiate and agree to the term of the rental agreement.
¶ 9 Even if this court were to look to statements of legislative intent as the Court of Appeals erroneously did, see Little Mountain, 146 Wash.App. at 560, 192 P.3d 378, those statements do not support voiding the assignment provision here. RCW 59.22.010(2) sets forth the multiple legislative purposes of the MHLTA. The first is to maintain low-cost housing to benefit the elderly. Here, an initial 25-year term with fixed increases in rent provides secured housing and financial stability to the elderly who live there, and the assignment provision makes that 25-year term economically feasible for the manufactured home park. The legislature also sought "to obtain a high level of private financing for mobile home park conversions" and "to help establish acceptance for resident-owned mobile home parks in the private market." Id. Permitting a park owner to offer contractual terms that provide attractive yet profitable features to prospective residents encourages additional private financing and market growth.
¶ 10 Respondents ask this court to deem unenforceable any provision that alters the contract upon assignment. However, this contract does not alter an assignment; it provides in the original contract what would happen in that eventuality. Nothing in the MHLTA imposes a wholesome prohibition on such assignment provisions. The MHLTA does not prevent landlords from offering special *196 terms to the tenants who first move into a new mobile or manufactured home park.[4] Such a practice is not uncommon when a landlord is attempting to populate a new rental community.
¶ 11 Ultimately, the core of respondents' argument is that the rental agreement here was misleading, that labeling the contract as a "25 Year Lease Agreement" but including a provision that converted the term to one or two years upon assignment was deceptive or unfair. That claim is one under the CPA, not the MHLTA. Respondent's CPA claim is not before this court on review; the Court of Appeals remanded the CPA claim for further factual findings to determine whether the tenants could prove a CPA violation. See Little Mountain, 146 Wash.App. at 563, 192 P.3d 378.
CONCLUSION
¶ 12 We hold the assignment provision does not violate the MHLTA and the MHLTA does not render it unenforceable. The Court of Appeals decision is reversed to the extent it is inconsistent with this holding. Respondents' remaining claim under the CPA is remanded to the trial court as is the claim for an award of reasonable attorney fees under RCW 59.20.110.
WE CONCUR: SUSAN OWENS, MARY E. FAIRHURST, JAMES M. JOHNSON, and DEBRA L. STEPHENS, Justices.
ALEXANDER, J. (dissenting).
¶ 13 I disagree with the result the majority reaches because, in my view, the provision in the lease in question, which reduces the length of the lease from 25 years to 1 year upon assignment, is unenforceable. Its unenforceability is due to unambiguous provisions in the Manufactured/Mobile Home Landlord-Tenant Act (MHLTA), chapter 59.20 RCW, that state that "[a]ny rental agreement shall be assignable by the tenant" (RCW 59.20.073(1)) and that rental agreements shall not contain provisions that "waive or for[]go" the right of assignment or any other remedy under the MHLTA (RCW 59.20.060(2)(d)).
¶ 14 The majority asserts that the assignment right is modified by RCW 59.20.090(1), which provides: "Unless otherwise agreed rental agreements shall be for a term of one year." I disagree. Such a reading would be inconsistent with RCW 59.20.073(1) and RCW 59.20.060(2)(d). The better interpretation, in my judgment, is that RCW 59.20.090(1) merely permits a landlord and tenant to negotiate the term of the rental agreement within the bounds set forth by the MHLTA. Once such term is agreed upon, pursuant to RCW 59.20.073(1), the tenant has the statutory right to assign the full remaining term of his or her leasehold.
¶ 15 This interpretation is also consistent with plain meaning of "assignment." Webster's Third International Dictionary defines "assignment" as "the transfer to another of one's legal interest or right." Webster's Third International Dictionary 132 (2002). Under Washington law, an "assignment" is generally understood to be the transfer of the tenant's whole interest in the leasehold. Morrison v. Nelson, 38 Wash.2d 649, 657, 231 P.2d 335 (1951) (citing McDuffie v. Noonan, 176 Wash. 436, 29 P.2d 684 (1934)); Shannon v. Grindstaff, 11 Wash. 536, 539-40, 40 P. 123 (1895). Critically, "[c]ontract rights are assignable unless forbidden by statute or otherwise violative of public policy." Old Nat'l Bank v. Arneson, 54 Wash.App. 717, 723, 776 P.2d 145 (1989). Under the plain meaning of the statutes I have cited at the outset of this opinion, mobile home park tenants have the statutory right to assign the full remaining term of their leases. Because the mobile park owner and the tenants agreed here to a 25-year term, the tenants have the right under the MHLTA to assign the remainder of their leaseholds in full. To preclude them from doing so would violate RCW 59.20.060(2)(d) in that the tenants would *197 waive or forgo their right to assign the remainder of their leaseholds in full.
¶ 16 In a case that bears some similarity to the instant case, the Court of Appeals held that a rental agreement that required a mobile home tenant to expressly request an extension of the one-year rental term violated the MHLTA, which provides that "`[u]nless otherwise agreed[,] rental agreements... shall be automatically renewed.'" Holiday Resort Cmty. Ass'n v. Echo Lake Assocs., LLC, 134 Wash.App. 210, 223, 135 P.3d 499 (2006) (quoting RCW 59.20.090(1)). The court properly rejected the argument that the lease provision did not violate the MHLTA on the basis that the act allows the tenant to agree to a different term. Id. at 223-24, 135 P.3d 499. It further determined that the provision at issue was inconsistent with the statutory provisions that require a tenant to waive the right to the one-year rental term in writing (RCW 59.20.050(1)) and prohibit a tenant from waiving rights under the act (RCW 59.20.060(2)(d)). Id. at 225, 135 P.3d 499. Like the provision in Holiday Resort, the assignment provision at issue is directly at odds with the language of the MHLTA.
¶ 17 In sum, the aforementioned provision in the lease flies in the face of the statutory right of assignment and should not be enforced. I, therefore, respectfully dissent from the majority opinion.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, and TOM CHAMBERS, Justices.
NOTES
[1] Some of the leases provided an assignee a one-year term; other leases provided a two-year term. The distinction is immaterial to the ultimate legal issue here.
[2] This does not open the gates for a landlord to surreptitiously circumvent a tenant's right under the MHLTA to assign his or her rental agreement by adding an assignment provision that essentially extinguishes the lease. Here we address an assignment provision that affects the term of the rental agreement; the MHLTA specifically provides that the parties can agree upon the term of the lease. Furthermore, the assignment provision provides for, at minimum, a one-year term. A one-year term is the default term set forth in the MHLTA. See RCW 59.20.090(1); see also, RCW 59.20.050(1). We have no occasion here to determine whether a shorter term might run afoul of the MHLTA or raise issues of unconscionability.
[3] The Court of Appeals reasoned that any limitation imposed on the scope of an assignment violated the MHLTA because the court defined an assignment as the transfer of the identical contractual rights from the assignor to the assignee. See Little Mountain, 146 Wash.App. at 560, 192 P.3d 378. But this overstates the common law and the cases relied upon by the Court of Appeals. Puget Sound National Bank v. Department of Revenue, 123 Wash.2d 284, 287, 868 P.2d 127 (1994), addressed whether a sales tax refund for worthless debt passed upon assignment to a bank. Estate of Jordan v. Hartford Accident and Indemnity Co., 120 Wash.2d 490, 495, 844 P.2d 403 (1993), addressed whether the assignee of a bond had standing to sue. Neither of those cases addressed contract provisions that altered the terms of the contracts upon assignment.
Conversely, the common law preserves citizens' freedom to contract. See, e.g., Clements v. Olsen, 46 Wash.2d 445, 448, 282 P.2d 266 (1955) ("Courts do not have the power, under the guise of interpretation, to rewrite contracts which the parties have deliberately made for themselves."); Torgerson v. One Lincoln Tower, LLC, 166 Wash.2d 510, 517, 210 P.3d 318 (2009) ("It is black letter law of contracts that the parties to a contract shall be bound by its terms." (quoting Adler v. Fred Lind Manor, 153 Wash.2d 331, 344, 103 P.3d 773 (2004))). Here, common law supports, and RCW 59.20.090(1) expressly preserves, the parties' freedom to negotiate the term of the rental agreement.
[4] Respondents characterize the operation of the rental agreement as taking the 25-year term from the tenants upon assignment, while petitioners view it as giving the first tenants a 25-year term. Burden or benefit, artful rhetoric does not change the operation of the assignment provision nor does it affect the application of the MHLTA. RCW 59.20.090(1) permits parties to agree to their own rental term, which the parties did here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325509/ | 130 Ga. App. 489 (1973)
203 S.E.2d 762
HOPKINS
v.
HARRIS.
48777.
Court of Appeals of Georgia.
Argued November 5, 1973.
Decided November 26, 1973.
Rehearing Denied December 18, 1973.
Newton, Hopkins & Ormsby, John A. Poindexter, for appellant.
Cotton, Katz & White, J. Timothy White, for appellee.
DEEN, Judge.
1. The plaintiff Harris and the defendant Hopkins were guarantors on the note of a corporation apparently insolvent at the time the obligation became due. Harris filed a petition alleging that he had been forced to pay the entire note, and sought contribution against Hopkins for his one third, another guarantor having paid his pro rata liability. This petition was served on Hopkins on January 15, 1973, thus requiring a responsive pleading on or before February 14, the thirtieth day. No answer was ever filed. A motion to dismiss for failure to state a claim, filed by the defendant, was overruled on July 17, 1973, and a judgment granting plaintiff's motion for judgment by default was entered the same day. Code Ann. § 81A-112 (b) lists seven defenses which may be made by motion, of which a motion to dismiss for failure to state a claim is one. It follows that the motion for judgment by default could not properly be made until this was disposed of; thereafter, in the absence of responsive pleadings, its grant was proper. Code Ann. § 81A-155.
2. The defendant, however, filed three motions for summary judgment while the case was pending; the first on February 15, 1973, and the last on July 9. He contends that his defenses to the petition are set up in these motions and the affidavits in support of them and serve the function of an answer, and are at least a responsive pleading in such guise that he could not be adjudged in default prior to the entry of an order thereon. The trial court thereupon passed a nunc pro tunc order stating that he had intended to rule on the motions, denying them, at the time he denied the motion to dismiss, and now did so nunc pro tunc. We agree with the appellant that this was error. It is not the function of a nunc pro tunc order to correct a deficiency caused by nonaction on the part of the court. Baxter v. Long, 122 Ga. App. 500 (4) (177 SE2d 712). However, their pendency did not keep the case from being in default, for the first of the motions was filed 31 days after service of the petition, and the others some seven months later. This was too late. See Code Ann. §§ 81A-105 (d), 81A-112 (a). Federal rules 12 and 55 are sufficiently similar to *490 the respective answer and default judgment sections of the Civil Practice Act to form the basis of analogy, and it is noted that in Provident Security Life Ins. Co. v. Gorsuch, 323 F2d 839 it was held that the trial court abused its discretion in denying a motion to set aside a default judgment where the defendant, although failing to file an answer, had filed a motion for summary judgment within the time limited for answer, under the belief that this was sufficient; the motion set out substantive defenses which, if proved, would entitle him to judgment, and the plaintiff was not harmed, since all of this added up to "good cause" and "excusable neglect." In 49 CJS 355, Judgments, § 199, it is held that where the rule obtains that a default judgment cannot be entered while there is a motion undisposed of, this only applies where the motion has been filed within the time to plead (see Register v. Pringle Bros., 50 S. 584; Dunbar v. Baker, 104 Mass. 211). We do not understand Sing Recording Co. v. LeFevre Sound Studios, Inc., 122 Ga. App. 327 (176 SE2d 657) as holding to the contrary. That case holds simply that, there being a statute applying to the court in question that one demanding a jury trial was entitled thereto unless the demand was withdrawn, the defendant was entitled to a jury even though in default, and a judgment entered by the court without a jury was error. Here, none of the motions for summary judgment can be considered as responses since not filed within the time required for filing an answer.
3. The fact that the plaintiff had filed various papers such as requests for admission does not estop him from insisting on the default.
Judgment affirmed. Quillian, J., concurs. Bell, C. J., concurs specially.
ON MOTION FOR REHEARING.
Under the provisions of Code Ann. § 81A-105 (d) the filing of the pleading must take place within the time allowed for service, and filing means filing with the clerk of court. Code Ann. § 81A-105 (d). Code Ann. § 81A-112 (a) states: "A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute."
*491 This clearly fixes the time for filing the answer with the clerk of court as 30 days after the complaint has been served on the defendant.
We are, however, asked to rule that Code Ann. § 81A-105 (b) relating to serving papers on an opposing party or his attorney may alter the 30 day rule for filing pleadings with the clerk. This statute specifically provides that "Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of court" and "Service by mail is complete upon mailing."
We do not apprehend that this enlarges upon the time allowed for filing papers with the clerk. There is no provision for filing by mail. The record in the trial court and its exemplification in this court show only the date on which the clerk receives the papers and marks them filed. This is required under Code Ann. § 24-2715 which states: "(2). Every clerk of the superior or city courts must record immediately in his book of final records every part of the pleadings in every case... and such record shall be a part of the final record of the papers required by law to be made, or all of such record, as the case may be." The transcript of this record is the one sent to the appellate court. Code Ann. § 24-2715 (15). The clerk is not required to keep records of mailing dates on papers sent to his office by others, and indeed in many cases this would be impossible. There is no way of computing the 30 days allowed for answer except by the clerk's filing record. Had the legislature intended to say filing by mail was permissible and should date from the date of mailing rather than the date of "filing in the clerk's office" it would have so provided.
We therefore adhere to our judgment that the pleading in question, which was not filed in the clerk's office within the 30 day period set by statute, was not timely.
BELL, Chief Judge. Addendum. While I have concurred in Judge Deen's opinion, I have done so with the understanding that the case does not hold that the filing of a motion for summary judgment can be accepted as an answer. That discussion in the case I consider to be obiter. Personally, I do not feel that motions are responsive pleadings and I would dissent to any holding that they were. See CPA § 7 (a) (Code Ann. § 81A-107 (a)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325526/ | 182 Ga. App. 595 (1987)
356 S.E.2d 686
UNIVERSAL UNDERWRITERS INSURANCE COMPANY
v.
GEORGIA AUTOMOBILE DEALERS' ASSOCIATION GROUP SELF-INSURERS' FUND et al.
74233.
Court of Appeals of Georgia.
Decided April 9, 1987.
Charles A. Wiley, Jr., Thomas E. Brennan, for appellant.
Thomas C. Holcomb, for appellees.
DEEN, Presiding Judge.
Appellee Georgia Automobile Dealers' Association Group Workers' *596 Compensation Self-Insurers' Fund (GADA) was the workers' compensation insurance carrier for appellee Jay & Gene's Chrysler-Plymouth-Dodge, Inc. (Jay & Gene's), employer of appellees Gaylor and Hamm. See OCGA § 34-9-150. Appellant Universal Underwriters Insurance Company was the liability insurance carrier for incidents not subject to the Workers' Compensation Act, OCGA Title 34, Ch. 9. While awaiting the arrival of potential customers, Gaylor and Hamm engaged in a "finger-wrestling" contest which resulted in a broken finger for Gaylor. Gaylor filed a workers' compensation claim, and GADA assumed the responsibility for Jay & Gene's defense. An administrative law judge (ALJ) found that the incident was not covered by workers' compensation insurance because the incident did not fulfill the statutory requirement of arising out of and in the course of Gaylor's employment. OCGA § 34-9-1 (4). The full Board of Workers' Compensation affirmed the ALJ's decision.
Gaylor filed a complaint against Hamm and Jay & Gene's in the Muscogee County State Court, seeking damages for personal injury. Two months later appellant Universal filed a declaratory judgment action in the Muscogee County Superior Court, stating that it was uncertain as to its status and seeking a determination of whether or not it had a duty to defend Jay & Gene's in the state court action. Defendants GADA and Jay & Gene's filed separate motions for summary judgment, asserting that under the language of the Universal insurance policy there was no uncertainty as to Universal's obligations, and declaratory relief was therefore inappropriate. Universal subsequently moved for summary judgment, alleging that Gaylor and Hamm were within the scope and course of employment at the time of the incident and therefore were not covered under the Universal policy. After oral argument the trial court entered an order declaring that Universal had a duty to defend Jay & Gene's in the state court action, granting GADA's motion for summary judgment, and dismissing both GADA and Jay & Gene's from the declaratory judgment action.
Universal appealed from this order, asserting that the trial court erred in granting summary judgment to GADA because (1) Universal had not been a party to the workers' compensation proceeding and therefore should not be bound by the determination therein; and because (2) the trial court allegedly considered only the Universal insurance policy and not the insuring agreement between GADA and Jay & Gene's. Held:
1. The purpose of the Workers' Compensation Act is to protect a worker against unexpected personal injuries arising out of, and in the course of, his employment. OCGA § 34-9-1 (4); Scott v. Travelers Ins. Co., 49 Ga. App. 157 (174 S.E. 629) (1934). Workers' compensation does not cover accidents sustained by an employee outside the scope *597 of his employment. Carroll v. Hartford Accident &c. Co., 73 Ga. App. 799 (38 SE2d 185) (1946). The claimant has the burden of demonstrating that his claim falls within the Act's coverage. Ladson Motor Co. v. Croft, 212 Ga. 275 (92 SE2d 103) (1956). Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82 (290 SE2d 192) (1982). He must prove that the injury for which he seeks workers' compensation benefits arose out of, and in the course of, his employment; an injury that occurred in the course of his employment but did not also arise out of the employment does not come within the Act. Davis v. Houston Gen. Ins. Co., 141 Ga. App. 385 (233 SE2d 479) (1977).
Although the Act, being remedial in nature, is to be construed liberally in the claimant's favor, McElreath v. McElreath, 155 Ga. App. 826 (273 SE2d 205) (1980), the requirement that the injury "arise out of" the employment implies a causal connection between the working conditions and the injury. American Hardware Mut. Ins. Co. v. Burt, 103 Ga. App. 811 (120 SE2d 797) (1961). Ordinarily, whether or not the occurrence arose out of and in the course of employment is a question of fact, and the Board's award, if supported by any evidence, is conclusive. Utz v. Powell, 160 Ga. App. 888 (288 SE2d 601) (1982); Employers Mut. Liab. Ins. Co. v. Carlan, 104 Ga. App. 170 (121 SE2d 316) (1961). Georgia courts have consistently held that injury to a covered employee resulting from "horseplay" in which the claimant was the instigator or a participant did not "arise out of" the employment, within the legislative purpose of the Act. Street v. Douglas County Rd. Dept., 160 Ga. App. 559 (287 SE2d 586) (1981); Givens v. Travelers Ins. Co., 71 Ga. App. 50 (30 SE2d 115) (1944); Maddox v. Travelers Ins. Co., 39 Ga. App. 690 (148 S.E. 307) (1929).
In the instance involving appellees Gaylor and Hamm, the record makes it clear that there was ample evidence to cause the Board to make a determination of no coverage. Not having been appealed by either party, that decision stands. Thus finding himself excluded from workers' compensation coverage, appellee Gaylor, if he wished to pursue his claim and possibly recover for his injury, had no choice but to resort to his common-law tort remedy. He therefore filed an action for personal injuries in the appropriate legal tribunal, and the named defendants, in order to avoid a default judgment, had no choice but to enter defensive pleadings, Jay & Gene's called upon Universal to conduct its defense, and the issue thus arose as to whether Universal had a duty to defend its insured, Jay & Gene's under the contract of insurance between them. It was at this point that Universal, stating that it was in uncertainty as to its "rights, status, and other legal relations," OCGA § 9-4-1, filed the action below, seeking a declaratory judgment.
Scrutiny of the record persuades us that, as appellees contend, no *598 declaratory judgment is required to inform Universal of its "status and other legal relations" with regard to a duty to defend vel non in the state court action. OCGA §§ 9-4-1; 9-4-2; Fourth St. Baptist Church v. Bd. of Registrars, 253 Ga. 368 (320 SE2d 543) (1984). By their respective terms, the GADA insuring agreement extended coverage only for injuries within the purview of the Workers' Compensation Act, while the Universal policy excluded occurrences within the parameters of that Act. Despite appellant's representation to the contrary, the language of Universal's policy expressly affords coverage for situations in which an employee of Jay & Gene's brings a personal injury action against a fellow employee. By defending in the workers' compensation proceedings, GADA discharged its obligation under its agreement with Jay & Gene's; and by the terms of the insurance policy issued by Universal to Jay & Gene's, the responsibility for defense of the tort action devolves upon appellant Universal.
2. As to Universal's contention that the trial court did not "consider" the GADA insuring agreement, we hold that it would have been both unnecessary and improper for it to do so. Universal was not in privity with GADA and had no fiduciary, contractual, or other relationship with GADA. The two insuring documents were totally separate and unrelated contracts. Having argued that it is not bound by the determination of the Board of Workers' Compensation because it was not a party to the prior proceedings before that body, Universal, in coming to this court for relief, finds itself, if not actually hoist by its own petard, at least in the ironic position of seeking to benefit from the very proceeding whose result it has vehemently disavowed.
We find no merit in either of appellant's enumerations of error.
Judgment affirmed. Birdsong, C. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325528/ | 130 Ga. App. 492 (1973)
203 S.E.2d 710
BLACKMON
v.
ATLANTIC STEEL COMPANY.
48168.
Court of Appeals of Georgia.
Argued June 29, 1973.
Decided December 5, 1973.
Rehearing Denied December 19, 1973.
Arthur K. Bolton, Attorney General, Richard L. Chambers, Timothy J. Sweeney, Gary B. Andrews, Assistant Attorneys General, for appellant.
Jones, Bird & Howell, Trammell E. Vickery, Edward R. Kane, for appellee.
EBERHARDT, Presiding Judge.
John A. Blackmon, as State Revenue Commissioner, appellant, on July 27, 1971, made an assessment for sales and use tax deficiencies against Atlantic Steel Company, appellee, for the taxable period from July, 1967, through December 31, 1970, for tax, penalty and interest. The taxpayer entered its appeal to the Superior Court of Fulton County where, upon stipulated facts, the case was submitted to the trial judge for decision. The trial judge decided in favor of the taxpayer and the commissioner appealed. The assessment of the commissioner was based upon his finding that certain molds, stools, and electrodes, used by the taxpayer were taxable. The stipulated facts, in brief, follow.
Atlantic Steel is engaged in the business of making and selling steel and steel products. It makes steel in electric-arc furnaces. Charge materials, consisting of scrap metal and other ingredients, are placed into the melting vessels, and a powerful charge of electricity is transmitted through graphite (crystallized carbon) electrodes in such a manner that an electric-arc is formed between the electrodes and the scrap metal in the vessel. The arc creates tremendous heat, causing the scrap metal and other ingredients in the vessel to turn into molten metal. Undesirable elements are drawn off the molten metal and other elements are added as needed to produce the desired grade of steel. The molten metal is then poured into formed receptacles, called "molds" and "stools," where the metal hardens into the form of a steel ingot. After the steel ingot is hardened in the mold, the ingot is punched out of the *493 mold for further processing. The carbon content of steel produced by taxpayer, depending on the customer's particular order and other factors relating to the process itself, varies from .05 percent to an excess of 1 percent, but less than 2 percent of the total metal produced in the melting vessel. Each process with respect to one vessel of raw materials produces approximately 85 tons of steel. Metal containing an excess of 2 percent carbon is generally designated as iron.
Electrodes are cylindrical in shape, approximately five feet in length, with a threaded tip at one end and a threaded hole at the other, and, except as hereinafter stated, are used to conduct electricity. Several electrodes fitted together are placed in and attached to an electrode holder, or clamp, which permits continuous lowering of the electrodes as they are consumed. Three series of electrodes are employed by taxpayer for each operating process with respect to a vessel. Electrodes weigh approximately 13,000 pounds each and are composed solely of graphite (crystallized carbon) which serves as a conductor of electricity.
In Atlantic Steel's process, the melting vessel is filled with various types of scrap metal and placed under the electrode holder. Prior to the melting process, the taxpayer estimates the carbon content of scrap metal employed, and includes in the charge materials placed in the vessel metals with high carbon content, including cracked molds and stools and retrieved but unsalvageable broken electrodes, to bring the estimated carbon content of the mixture within the desired range. The tips of the electrodes are lowered to within four to six inches of the surface of the scrap metal and electricity is discharged through the electrodes so that an arc forms between the tip of the electrode and the scrap metal. The heat thus produced melts the scrap metal.
After the charge is melted, the resulting molten bath is tested for carbon content. If excess carbon is detected, oxygen is blown into the bath to remove the excess carbon by forming carbon dioxide gas. If a carbon deficiency is determined, taxpayer adds carbon, using coke if the amount of carbon needed is small, and if the amount of carbon to be added is large, the electrodes are dipped into the bath, this being the only instance where the electrodes are intentionally dipped into the bath. Taxpayer's consumption of electrodes by "dipping" represents approximately six percent of its total consumption of electrodes, which causes the ends of the electrodes to melt into the molten metal and increases the carbon content of the molten metal.
*494 In the course of an operation, a piece of electrode may and does break off and fall into the bath. A large piece which has broken is retrieved by a clamp. A small piece is allowed to remain in the bath to melt therein. If the piece retrieved is of salvageable size, it is rethreaded and employed again as an electrode. If the piece retrieved is not salvageable, it is used as a source of carbon by adding it to the charge material. The consumption of irretrievable or retrieved but unsalvageable broken electrodes as part of the bath is approximately nine to ten percent of taxpayer's consumption of electrodes, and this is done in order to bring the estimated carbon content of the molten metal within the desired range.
Consumption of electrodes results partly from breakage, partly from dipping in the bath, from oxidation (combining with oxygen) or volatilization (changing solid carbon to carbon gas) occurring while the electrode is employed in conducting electricity. Taxpayer estimates that 42 percent of the carbon in the electrodes, after volatilizing into carbon gas, enters temporarily into the bath before re-emerging and being dissipated into the atmosphere. The entry of carbon gas into the bath is caused by the force of the flow of electricity drawing the carbon gas into the bath. The impregnation of carbon into the molten metal is an integral part of the electrochemical process that takes place in the electric furnaces and is indispensable to the steel making operation.
When electrodes are purchased by Atlantic Steel, it is planned and intended by Atlantic Steel that they will be used in the manner described above. If Atlantic Steel did not use electrodes to add carbon to the molten steel in the electric furnaces, it would have to purchase and use other materials for that purpose.
The useful life of an electrode, as an electrode, is approximately 48 hours. During the course of that life, the electrode will be used during approximately 15 operations producing 15 vessels of steel of approximately 85 tons each.
Molds and stools are composed of cast pig iron. A mold is an oblong shaped, hollow form open at both ends. It rests on a stool, which serves the function of capping one end. A stool is a piece of pig iron cast in such shape that it can be fitted onto one end of the mold.
The bath of molten metal is poured from the melting vessel into a ladle and then poured into molds which are fitted with stools. There it is allowed to solidify. Once the steel has solidified, it is punched from the mold for further processing. One vessel of steel *495 fills approximately 16 molds.
A mold or stool may and does crack during the course of its use by taxpayer due to the stress incurred in use. A cracked mold or stool is no longer usable as such and when, but only when, a mold or stool does crack, taxpayer employs it as raw material in the steel making process.
The average useful life of a mold or stool as such is approximately two months. During a two-month period taxpayer produces approximately 780 vessels of steel consisting of approximately 85 tons each.
Taxpayer used molds and stools as raw materials, as described above, during the periods included in the assessment, except that during the calendar year 1970 approximately 28 percent of the cracked molds and stools were sold by it as pig iron.
Atlantic Steel purchases molds and stools with the intention of using them as molds and stools until they are no longer usable as such. It is also taxpayer's intention, when purchasing the molds and stools, to use them as raw materials in the electric furnaces operated by it when they are no longer usable for their original purposes. If the molds and stools were not used as scrap materials after they become unusable as molds and stools, taxpayer would have to purchase other raw materials.
In the present state of the electric arc steel making science, pig iron is, in every sense of the word, the best material for making receptacles for molding molten steel. There is no existing substitute. Taxpayer would use molds and stools made of pig iron even if a secondary use of pig iron as a raw material was not available to it.
Taxpayer purchases electrodes with the intent that such electrodes will be used in the manner set out above. If it did not use the electrodes to add carbon to the bath, as noted above, taxpayer would have to purchase and use other materials to add such carbon.
In the present state of the electric arc steel making science, graphite is, in every sense of the word, the best material for conducting electricity to form the electric arc. There is no existing substitute. Taxpayer would use graphite electrodes even if they could not be used to provide carbon to the bath through dipping and breakage, or otherwise.
Atlantic Steel claimed an exemption from liability based upon Section 3 (c) 2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. L. 1951, p. 360; Code Ann. § 92-3403aC (2)).
*496 1. The portion of the tax statute (Georgia Retailers and Consumers Sales & Use Tax Act, Ga. L. 1951, p. 360 et seq., as amended), which sets forth certain exemptions, being Section 3 (c) 2 of the Act as amended (Code Ann. § 92-3403aC (2)), reads as follows: "The terms `sale at retail,' `use,' `storage,' and `consumption' shall not include the sale, use, storage or consumption of industrial materials for future processing, manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part of the finished product nor shall such terms include industrial materials, other than machinery and machinery repair parts, that are coated upon or impregnated into the product at any stage of its processing, manufacture or conversion, nor shall such terms include materials, containers, labels, sacks or bags used for packaging tangible personal property for shipment or sale. To qualify for the packaging exemption, such items shall be used solely for packaging and shall not be purchased for reuse: Provided, however, the term `industrial materials' shall not include natural or artificial gas, oil, gasoline, electricity, solid fuel, ice or other materials used for heat, light, power or refrigeration in any phase of the manufacturing, processing or converting process." The taxpayer contends that the molds, stools and electrodes are exempt as industrial materials under this portion of the statute.
The exemption applies only to "industrial material." State of Ga. v. Cherokee Brick &c. Co., 89 Ga. App. 235 (79 SE2d 322); Blackmon v. J. D. Jewell, Inc., 126 Ga. App. 679 (191 SE2d 621). We will consider first the questions relating to the molds and stools. These items were bought as molds and stools, not as scrap iron. That the purchaser, at the time of purchase, intended to use these molds and stools as an industrial material when they became unusable for the purpose originally purchased; that is, when because of breakage they became scrap iron instead of molds and stools does not show molds and stools were industrial materials. We are not at this point concerned with a situation where tangible personal property is bought and used partly for two purposes, one of which is as an exempt, industrial material. See in this connection, Michigan Allied Dairy Assn. v. State Board, 302 Mich. 643 (5 NW2d 516); State v. Southern Kraft Corp., 243 Ala. 223 (8 S2d 886); State v. U. S. Steel Corp., 281 Ala. 553 (206 S2d 358); Morley v. Brown & Root, Inc., 219 Ark. 82 (239 S.W.2d 1012); and Dain Manufacturing Co. v. Iowa State Tax Commr., 237 Iowa 531 (22 NW2d 786).
The stools and molds involved in the present case were not *497 industrial materials when purchased, neither were they used as industrial materials in the state or condition in which they were first purchased, nor were they, as a part of the manufacturing process, converted by the taxpayer into industrial materials from the state in which originally purchased. It is only when the molds and stools became broken and unfit for use as molds and stools that they became scrap iron, and industrial material, and a part of the ultimate product manufactured by the taxpayer. If the argument of the taxpayer has validity, then the tax ordinarily paid for the purchase of expensive tools bought at a higher price might be avoided by using the broken tools as "scrap iron" in the process of manufacturing steel.
We hold, therefore, that the trial court erred in its ruling that the sales tax was not applicable to the molds and stools. See Union Portland Cement Co. v. State Tax Commission, 110 Utah 135 (170 P2d 164), which, while not completely on all fours with the present case, its rationale does apply to what has been said above.
2. The question relating to the electrodes involves, in part, a different and somewhat more difficult question. If the decision depended solely upon whether the broken pieces of the electrode put into the metal bath were sufficient to prevent the electrodes from being taxable, the ruling above as to the molds and stools would apply. We have two differences as far as the electrodes are concerned. (a) Carbon gas, created by the intense heat of the electrodes arc, goes into the molten metal, leaving some carbon in it, but is largely dissipated or oxidized. (b) For supplying the proper carbon content of the steel the electrodes are dipped into the molten mass. Sometimes they break off, falling into it, and if tests should indicate that the content is insufficient, broken and used electrodes are added to increase it. If the content is too high, it is removed by oxidation. The electrodes are totally consumed in the steel making process, and are the principal source from which the required carbon content is supplied.
The ruling in Hawes v. Bibb Manufacturing Co., 224 Ga. 141 (160 SE2d 355) that an oil impregnated in a fibre as a necessary part of the manufacturing process and then removed is not taxable has application to the situation here.
The taxing statute, after defining the exempt "industrial materials" then reads: "Provided, however, the term `industrial materials' shall not include natural or artificial gas, oil, gasoline, *498 electricity, solid fuel, ice or other materials used for heat, light, power or refrigeration in any phase of the manufacturing, processing or converting process."
At the hearing before the trial judge, counsel for the commissioner and the taxpayer stipulated that the electrodes do not constitute a fuel within the meaning of this portion of the statute. This we construe to be a stipulation of fact, and hence the parties are bound by it. Consequently, the electrodes, exempt as industrial materials by the portion of the statute preceding the proviso, are not brought back under it as a taxable item by the proviso on the theory that the electrodes are something in the category of "natural or artificial gas, oil, gasoline, electricity, solid fuel," etc.
Our conclusion that the electrodes are exempt is consistent with the administrative rulings made by the commissioner for many years past, enjoying legislative acquiescence, and to which we give great weight in our consideration of the matter. Thompson v. Eastern Air Lines, 200 Ga. 216, 224 (39 SE2d 225); Undercofler v. Eastern Air Lines, 221 Ga. 824, 831 (147 SE2d 436).
The trial court was correct in its ruling that the electrodes are exempt from the sales and use tax.
Judgment affirmed in part; reversed in part. Bell, C. J., Hall, P. J., Deen, Quillian, Evans and Clark, JJ., concur. Pannell and Stolz, JJ., dissent.
PANNELL, Judge, dissenting. I agree with Division 1 of the opinion. I dissent from Division 2 of the opinion holding that the carbon electrodes are industrial materials within the meaning of Section 3 (c) 2 of the Georgia Retailers and Consumers Sales and Use Tax Act, Ga. L. 1951, p. 360 (Code Ann. § 92-3403aC (2)). As I view it, the majority opinion leaves out essential facts, includes in the statement of the written stipulation of fact matters not stipulated, and considers as a "stipulation" statements of counsel for both parties made during arguments, which I construe were nothing but statements of a factual or legal opinion, not binding on the courts. This is what apparently led to what I consider the erroneous conclusion in Division 2 of the majority opinion.
The parties entered into a written stipulation submitting the case to be tried by the court sitting without a jury, which stipulation recited: "It is further stipulated that the following facts shall be taken as true on the trial of this case, subject to the right of either party to introduce other and further evidence not inconsistent with the facts herein stipulated." Stipulation No. 12 *499 reads as follows with material portions thereof underscored which are not included in the majority's statement of the contents of the written stipulation: "Consumption of the electrodes results partly from breakage as noted above, partly from dipping in the bath as noted above, and, except for such breakage and dipping, wholly from oxidation (combining with oxygen) or from volatilization (changing from solid carbon to carbon gas) occurring while the electrode is employed in conducting electricity. Appellant estimates that 42% of the carbon in the electrodes, after volatilizing into carbon gas, enters temporarily into the bath before re-emerging and becoming dissipated into the atmosphere. The entry of carbon gas into the bath is caused by the force of the flow of electricity drawing such carbon gas into the bath. The entry of such carbon gas is not a source of carbon in the steel making process." The underscored portions to this stipulation, which were not included in the majority opinion, are essential to a proper decision of this case, and call for an entirely different result as to the electrodes, and is directly contrary to statements of the majority in Division 2 of the opinion, such as "we have two differences as far as the electrodes are concerned. (a) Carbon gas, created by the intense heat of the electric arc, goes into the molten metal, leaving some carbon in it, but is largely dissipated or oxidized. (b) For supplying the proper carbon content of the steel the electrodes are dipped into the molten mass. Sometimes they break off, falling into it, and if tests should indicate that the content is insufficient, broken and used electrodes are added to increase it. If the content is too high, it is removed by oxidation. The electrodes are totally consumed in the process, and are the principal source from which the required carbon content is supplied."
The underscored words in this statement in the majority opinion, indicating some of the carbon gas remained in the metal bath as a part of the manufactured product, is contrary to the written stipulations, as well as the statement the entire electrode was consumed by dipping the electrode to put carbon in the metal bath and by using broken pieces of electrodes to add carbon to the metal bath. The written stipulation of facts shows that 6% of the electrode is consumed by intentional dipping, 9% to 10% from the addition of broken pieces of the electrode to the metal bath, 42% of the electrode is converted into carbon gas, and 42% of the electrode is dissipated directly into the air by oxidation, neither of the last two (a total of 84% of the electrode) supply any carbon content to *500 the metal.
Immediately after this failure to state all of the contents of stipulation No. 12, the majority opinion gives the following as a part of the written stipulations: "The impregnation of carbon into the molten metal is an integral part of the electro-chemical process that takes place in the electric furnaces and is indispensable to the steel making operation." I can find no such statement or stipulation in the written stipulation of facts. There is a similar statement in appellee's brief filed in this court, but it is not supported by the record. While a witness for the taxpayer testified that the entry of the 42% of the carbon into the molten metal by arc transfer [carbon gas] is an integral part of the electro-chemical process that takes place in the electric furnaces and is indispensable to the steel making operation, this testimony was based upon his concept that tiny particles of carbon gas are impregnated into and remained in the molten metal. This concept is in conflict with the written stipulation that the carbon gas was not a source of carbon in the steel making process. The stipulation clearly shows that the remaining carbon in the electrodes not impregnated into the bath by dipping 6% and putting broken pieces of electrodes therein (9 - 10%) is lost directly into the atmosphere through oxidation (42%), and by dissipation of the carbon gas (42%).
The majority opinion further states that the attorneys for both parties stipulated the electrodes were not a fuel within the meaning of the statute. This so-called stipulation occurred after the evidence was closed and upon arguments to the trial judge to whom the case had been submitted on written stipulations of fact and testimony of witnesses. The trial judge read the statute to the attorneys, which defined industrial materials exempt from tax and also the exceptions to third definition, and posed the question whether the electrodes under the evidence and the statute were within the exception terms of the statute. They both stated views to the negative, the attorney for appellee stating "we don't think it's a fuel." This constituted no stipulation of fact but was a mere expression of a legal opinion or a factual opinion as to what the evidence showed. To permit the parties to determine whether the electrodes are taxable or not taxable, either by an expression of an opinion of law, or the expression of an opinion as to the facts contrary to the uncontradicted proof in the record, is not controlling on this court in applying the law to the facts as they actually exist by written stipulation and uncontradicted testimony *501 of witnesses.
My views of a proper decision on the facts as thus corrected differ sharply from those of the majority, and after adopting the first two sentences of Division 2 of the majority opinion, are as follows: We have two differences as far as the electrodes are concerned. (a) Carbon gas goes into the molten metal but is dissipated and does not increase the carbon content of the metal in the bath, this carbon gas being created by the intense heat of the electric arc between the electrode and the metal. Since this carbon gas diffusion in the metal, which does not remain, is not a necessary part of the process of manufacturing the steel but is something that occurs incidental to that process, the ruling in Hawes v. Bibb Manufacturing Co., 224 Ga. 141 (160 SE2d 355) that an oil impregnated in a fibre as a necessary part of the manufacturing process and then removed is not taxable has no application to the present case. The carbon gas, while an event in, is not a necessary part of, the manufacturing process. (b) The next element is the simultaneous use of the electrodes as a heating element (which use is taxable), (State of Ga. v. Cherokee Brick &c. Co., 89 Ga. App. 235, supra) and for impregnating carbon in the product by the dipping of the electrode into the metal bath, which melts the carbon in the electrode. Under these circumstances, I might be inclined to hold that the electrodes, by being simultaneously used for producing heat, a taxable use, and at the same time for impregnating carbon into the product, would be exempt as an industrial material from the sales tax, inasmuch as no provision is made in the Act as to a partial exemption or partial tax, except for the fact that, in my opinion, the Act expressly provides that the use of the electrodes for heating purposes prevents the electrode from being an "industrial material," as heretofore defined and exempted from tax in the Act. The undisputed testimony of one of the taxpayer's witnesses showed that the electricity created an electric arc between the electrode and the scrap metal, and the electrode produced carbon gas, which, when produced, stabilized and made more effective the heat thus created and used to melt the scrap metal. The taxing statute, after defining the exempted "industrial materials" then reads: "Provided, however, the term `industrial materials' shall not include natural or artificial fuel, ice or other materials used for heat, light, power or refrigeration in any phase of the manufacturing, processing or converting process."
The trial court erred in ruling the electrodes were exempt from tax. While there are indications that a prior Commissioner of *502 Revenue, through administrative ruling, exempted these items from tax as to a particular taxpayer and until this present assessment was issued, did not enforce the tax, it is our opinion that the facts of this case clearly show that the tax is applicable and the prior administrative ruling should not be followed.
I am authorized to state that Judge Stolz concurs in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325546/ | 356 S.E.2d 457 (1987)
FACILITY REVIEW PANEL, et al.
v.
William D. HOLDEN, Sheriff, etc., et al.
No. 17240.
Supreme Court of Appeals of West Virginia.
April 9, 1987.
*458 Mary Downey, Juvenile Justice Comm., Charleston, for appellant.
Lucian R. Sammons, Jr., Pros. Atty., West Union, for appellee.
PER CURIAM:
This original proceeding in mandamus was brought by the Facility Review Panel on behalf of inmates of the Doddridge County Jail, seeking closure of the jail until conditions meet minimal constitutional and statutory standards. The respondents are the sheriff and members of the County Commission of Doddridge County who are statutorily charged with the duty to provide a jail meeting those standards. We issued a rule against the respondents ordering them to appear and show cause why a writ of mandamus directing them to cure deficiencies in the jail should not be awarded.
This is another case in the seemingly steady stream of "penal conditions" cases where the courts are required to mandate that the parties responsible for operating our prisons and jails comply with the United States and West Virginia Constitutions and state law. The standards required have been carefully detailed in previous decisions of the United States District Court for Southern West Virginia in Dawson v. Kendrick, 527 F. Supp. 1252 (S.D.W. Va.1981) and this Court in Crain v. Bordenkircher, ___ W.Va. ___, 342 S.E.2d 422 (1986) and Hickson v. Kellison, ___ W.Va. ___, 296 S.E.2d 855 (1982). Thus, the legal framework for resolving this case is clear.
Respondents appeared and answered the petition by listing certain steps currently being taken to remedy some of the jail conditions cited by relator, as well as plans for future improvements. Respondents did not contest any of the relator's factual representations concerning conditions in the jail. There being no factual dispute, we are solely concerned with deciding whether the conditions violate federal and state constitutional standards or applicable statutory requirements.
The Fourteenth Amendment to the United States Constitution extends to the states the Eighth Amendment prohibition against cruel and unusual punishment for inmates who are serving a sentence and similar protection under the Due Process Clause of the Fifth Amendment for pre-trial detainees.[1]
*459 The court in Dawson, supra, provided a comprehensive critique of conditions at the Mercer County Jail and ordered detailed changes in each area of deficiency. Using the "totality of conditions" analysis, the court reviewed specific violations in the context of an overall jail facility and program which could only be described as "substandard" and "debilitating."[2] The "totality of conditions" review "requires that each thread in the fabric of challenged conditions be isolated, yet judged with an appreciation of its interdependent existence." Dawson, supra at 1285.
"A jail is evaluated by a `totality of circumstances' test to determine if incarceration in that jail is cruel and unusual punishment." Syl. pt. 3, State ex rel. Harper v. Zegeer, ___ W.Va. ___, 296 S.E.2d 873 (1982).
"Certain conditions of ... confinement may be so lacking in the area of adequate food, clothing, shelter, sanitation, medical care and personal safety as to constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution." Syl. pt. 2, Crain v. Bordenkircher, ___ W.Va. ___, 342 S.E.2d 422 (1986).
After reviewing circumstances at the Pocahontas County Jail under the "totality of conditions" analysis, we held in Hickson, supra, that the deficiencies constituted such cruel and unusual punishment, and likewise violated certain minimum statutory provisions for county jails.[3] "Although neither the Eighth Amendment of the United States Constitution nor Article III, Section 5 of the West Virginia Constitution defines acceptable living standards for prison inmates, we must be guided ... by prevailing standards of decency to determine how the State must treat its criminals." Crain, supra at 437.
In the case before us, relator presents a panoply of violations that significantly affect the overall health and safety of inmates at the jail. We find that the great number and severity of the deficiencies require a comprehensive program of improvements and not simply a limited review which might be more appropriate in a facility with generally acceptable conditions.[4] The uncontroverted conditions in the Doddridge County Jail, when reviewed under the totality of conditions analysis, violate the prohibition against cruel and unusual punishment of both the Eighth Amendment and Article III, Section 5 of the West Virginia Constitution.
"Independent of any constitutional considerations there are statutory provisions in our State which reflect a legislative mandate that county jails be operated at certain minimal standards." Syl. pt. 3, Hickson, supra. The statutes applicable to the substandard conditions conceded by the respondents will be cited below in our discussion of the specific circumstances at the jail.
CONDITIONS AT THE JAIL
1. Fire Safety:
The jail has no written evacuation plan for fire or other emergencies, no fire drills, no sprinkler system, and at least one dysfunctional fire alarm. Both doors to the outside staircases are padlocked from the outside. These are the only alternate exits for inmates who are all confined on the second floor. The time needed to reach inmates in the event of an emergency constitutes a clear danger to the inmates' health and welfare.
*460 W.Va.Code, 7-1-5 [1980] provides in relevant part that "[i]t shall be the duty of the county commissioners ... to provide for and have general supervision over the repair and maintenance of the county courthouses, jails...."
W.Va.Code, 7-3-2 [1980] provides in relevant part, "[t]he county commission shall keep the courthouse, jail and other offices in constant and adequate repair...." Finally, W.Va.Code, 7-8-2 [1985], in relevant part, requires the sheriff to "keep the jail in a clean, sanitary and healthful condition."
The inadequate fire detection and evacuation system constitutes a violation of the respondents' statutory duties and a constant and unnecessary threat to the lives and safety of the inmates. In their answer, respondents state only that they are now "considering" the alternative of an electronic door device to replace the padlocked exits but fail to specify any immediate measures that will be taken to alleviate the unsafe conditions. Given the urgency and magnitude of this problem, we find this response to be inadequate.
2. Safety and Security:
The only jail staff are the sheriff, his wife, who prepares the inmates' meals, and a law enforcement deputy who provides back-up assistance. Their duties are all performed on the first floor or outside the jail. No scheduled observations of the inmates on the second floor occur except at mealtimes. Inmates are otherwise left alone to deal with emergencies such as potential suicides, assaults, fire and medical requests. With no electronic or other communication system in the jail, inmates can only contact the staff by shouting, stamping or rattling bars.
Twenty-four hour supervision of inmates, including regular direct observation, is impossible given the limited staff, and therefore assistance to the inmates is irregular and inadequate. If all three staff members are out of the jail, or do not hear or respond promptly to a banging signal from the cells, serious harm or injury to inmates could easily occur.
In Dawson, the court ruled that "the failure to provide staff of adequate number and training results in an unconstitutional risk of harm to the prisoners." Dawson, supra at 1293. We hold that the inadequate staffing constitutes one thread in the cloth under our totality analysis which as a whole renders the conditions unconstitutional and in violation of respondent's statutory duty to provide a safe and healthful jail.[5]
Respondents state that they are "in the process" of "seeking approval" of a camera and intercom system in place of hiring additional staff for daytime cell supervision as requested by relators. It is unclear from whom they are seeking such approval since the sheriff has the duty to operate the jail and the county commission to finance its operation. While acknowledging the lack of supervision, respondents have not agreed to provide 24-hour supervision of inmates with direct surveillance at reasonable intervals around the clock.[6]
3. Medical Care:
At the Doddridge County Jail, inmates are not medically screened upon admission, no medical records are kept, and no regular sick call is held. Medical care is provided by taking inmates to the emergency room of a local medical center when such care is deemed necessary by overworked and untrained jail staff. As relators note, the jail population generally includes high risk individuals who often are in need of psychological or psychiatric services, such as potential suicide diagnosis and prevention, drug and alcohol treatment and counseling.
The court in Dawson held that: "[D]enial of adequate medical screening, classification, record keeping, sick call procedures *461 and timely access to care at the Mercer County Jail constitutes deliberate indifference to the potentially serious medical needs of the pre-trial detainees and convicted prisoners alike in violation of the Eighth Amendment."
Id. at 1308.
Legislative enactments have clearly established respondents' duty to provide for inmates' health needs. "When any prisoner is sick the jailer shall see that he has adequate medical and dental attention and nursing, and so far as possible keep him separate from other prisoners." W.Va. Code, 7-8-2 [1985]. County commissions are also authorized under W.Va.Code, 7-8-7 [1967] to contract annually with physicians to provide medical care for jail inmates.
Respondents have agreed to keep medical records, including medical charts and physician's orders, and hold regular sick call. Respondents also submitted a letter from a local mental health agency offering services to those inmates screened by the jail staff or inmates who request "on-going therapy." However, respondents have not agreed to medically screen new inmates or specify that all diagnosis and treatment will be provided by persons with suitable health care training which as we noted in Hickson, supra at 860 "makes a sick call rather nugatory." Despite the statutory authorization, respondents have failed to bring physicians, dentists, nurses and other health care providers into the jail to attend to inmates' physical and emotional needs.
4. Sanitation, lighting and ventilation:
Relators describe the jail's plumbing as filthy and inoperable and the walls and floors as generally rusty and dirty. Respondents provide in their answer that the sinks and toilets have been re-enamaled and the jail's interior completely re-painted and cleaned. Lighting, both artificial and natural, is generally inadequate, and the only source of ventilation is the few screenless windows on the second floor.
All artificial cell lighting is derived from unprotected incandescent bulbs which inmates use by manually turning the bulbs on and off. The inside stairway to the jail is lighted in the same manner by a bulb which must be turned while straddling the stairwell and reaching overhead. Respondents answer that they are "seeking approval" for new wiring and lighting, but again fail to specify whose approval they are awaiting since respondents are the only officers with the statutory duty and authority to implement such changes.
"The failure to provide security quality lighting fixtures of sufficient illumination to permit detainees and convicted inmates to read without injury to their vision constitutes a danger to the health and security of pre-trial detainees and prisoners alike." Dawson, supra at 1288. The respondent sheriff is required to "keep the jail in a clean, sanitary and healthful condition," W.Va.Code, 7-8-2 [1985], and the respondent commission must keep the jail in "constant and adequate repair, and supplied with the necessary heat, light, furniture, record books, and janitor service," W.Va. Code, 7-3-2 [1980].
5. Diet and Exercise:
Inmates have no outside exercise and indoor recreation is limited to a single set of barbells and the recent addition of a ping pong table by respondents. Relator's proposal that the yard behind the jail and a vacant area on the second floor could easily be converted into recreation areas was not addressed by respondents. It is clear that inmates are now denied any meaningful opportunity to have daily exercise.
The Court in Dawson, supra at 1298 made the following comment regarding the inadequate exercise available at the Mercer County jail:
Undue restrictions on prisoner's opportunities for physical exercise may constitute cruel and unusual punishment in violation of the Eighth Amendment when they pose an unreasonable threat to the prisoner's physical and mental health. See Clay v. Miller, 626 F.2d 345, 347 (4th Cir.1980); Kirby v. Blackledge, 530 F.2d 583, 586 (4th Cir.1976); Rhem v. Malcolm, 507 F.2d 333, 337 (2d Cir.1974), *462 enforced, 377 F. Supp. 995 (S.D.N.Y. 1974), aff'd, 527 F.2d 1041 (2d Cir.1975), enforced, 432 F. Supp. 769 (S.D.N.Y. 1977).
In Hickson, supra, we held that the narrow walkway in front of the cells failed to meet inmates' needs for indoor exercise and noted also that a suitable outdoor recreation area could be provided at minimal cost. This same opportunity to provide low cost outdoor recreation is apparently available to respondents.
W.Va.Code, 7-8-2a [1985] provides that county commissions "shall provide wholesome and sufficient food ... for all prisoners confined in the county jail." The county commission is also required to keep
such other accounts and records as will enable it to show the per capita daily cost of the feeding and care of prisoners in each calendar month.
....
(g) The county commission shall require to be kept a daily record of food served prisoners and, in all counties having a county health officer, said health officer shall, at least once a month, inspect such lists and make such recommendations and suggestions as he may deem proper regarding daily diets and foods regardless of how the feeding sources are provided.
Id.
W.Va.Code, 7-1-5 [1980] states that "[i]t shall be the duty of the county commissioners... to arrange for the feeding and care of the prisoners...."
In Doddridge County no records are kept of menus or cost per capita for food served the inmates nor are menus evaluated by a county health officer to determine the nutritional balance of the jail diet. Respondents have offered only to provide "records of nutrition." It is unclear whether respondent commissioners have thereby agreed to supply all of the information which is statutorily required.
In Dawson, supra, the court ruled that a deprivation of either diet or exercise, if sufficiently severe, may violate both detainees and convicted inmates' right to protection from cruel and unusual punishment. We agree with the Dawson court and also believe that these factors are relevant under our totality of conditions analysis.
6. Visitation:
Currently, all inmates are restricted to one 15-minute visit a week which must occur between 1:00 p.m. and 8:00 p.m. on Tuesday. Conversation between inmate and visitor can only occur by speaking loudly through a metal grill located below a small thick glass window. Conferences between inmates and their attorneys often occur in the same location or in the jail office, insuring a lack of privacy and confidentiality. From their answer, the only improvement so far authorized by respondents has been to allow contact visitation with family members. However, the frequency and length of such visits were not detailed by respondent.
The limited visitation in the Pocahontas County Jail described in Hickson, supra, resembles the conditions at the Doddridge County Jail. In Hickson, we ordered "[a]s to those inmates who pose no substantial security threat, accessible visitation...." Id. at 860. The plan which was later adopted to implement our decision allowed one hour of visitation five times a week with visitation times available at least two hours per day seven days a week including at least two evenings.[7]
Likewise in Dawson, supra, the court found the Mercer County Jail's meager visitation opportunities inadequate. "Requiring prisoners to shout in order to be heard and to strain to see their visitors through barely translucent glass of minimal dimension finds no justification in a legitimate governmental objective." Id. at 1309. The court ordered the defendants to "submit a plan upgrading the visitation facilities and liberalizing the visitation opportunities at the Mercer County Jail," supra at 1309, but declined to find under the totality of conditions test that contact visitation was constitutionally mandated.
*463 7. Access to reading materials, legal books and educational or vocational programs:
The Doddridge County Jail has no library, and inmates have no access to legal books and materials or educational, vocational or work release programs.
Inmates of county jails are guaranteed the same right of meaningful access to courts as other state prisoners under the due process clause of the Fourteenth Amendment. The availability of legal books, writing materials and stamps, telephone access to attorneys, notarial services, and legal assistance in preparing and filing legal papers have been held to be elements necessary to guarantee prisoners reasonable access to the courts. Dawson, supra; Hickson, supra. In State ex rel. McCamic v. McCoy, ___ W.Va. ___, 276 S.E.2d 534, 535 (1981), we stated that:
In West Virginia, we have an explicit provision regarding access to our courts in Article III, Section 17 of our Constitution: `The courts of this State shall be open and every person, for an injury done to him, in his person, property or reputation shall have remedy by due course of law....'
The court in Dawson, supra, while acknowledging the shorter duration of terms in county jails as distinguished from state prisons still ruled that jail inmates must be furnished "diverse periodicals and other reading materials" to combat the "undue risk of physical, mental and social degeneration." Id. at 1316.
In their answer, respondents have addressed only the issue of reading materials by stating that access to the local library for inmates is being investigated.
8. Grievance procedure and written rules of conduct:
Prior to the institution of this suit there were no written rules or regulations governing the conduct of either inmates or jail personnel nor was there a grievance procedure by which inmates could challenge jail decisions. Likewise, no written policies defined inmates' rights and privileges.
In State ex rel. Gillespie v. Kendrick, 164 W.Va. 599, 265 S.E.2d 537 (1980), we commented for the first time on W.Va.Code, 7-8-11 [1986], which provides that all county jail inmates serving a term which exceeds six months shall have five days deducted from their sentences each month for complying with all rules and regulations of the respective jail. "County jail prisoners have the statutory right to good time credits and it is mandatory that they be granted their credits if they `faithfully comply with all rules and regulations.' W.Va.Code, 7-8-11." Syl. pt. 1, State ex rel. Gillespie v. Kendrick, 164 W.Va. 599, 265 S.E.2d 537 (1980).[8] In this case which preceded Dawson, supra, and likewise dealt with the Mercer County jail, we held that the rules and regulations upon which good time credit is conditioned must be published and made available to inmates. "Good time credit is a valuable liberty interest protected by the due process clause, W.Va. Const. art. III § 10." Syl. pt. 2, Gillespie, supra.
Respondents represent that a jail handbook containing both rules and regulations and grievance procedures for inmates is being printed.
Conclusion
Respondents finally state that their ability to correct the acknowledged deficiencies is restricted by the county's lack of funds and request additional time for compliance. Courts have regarded economics as a significant concern for the effective management of jails and prisons, "[b]ut the cost of protecting a constitutional right cannot justify its total denial." Bounds v. Smith, 430 U.S. 817, 825, 97 S. Ct. 1491, 1496, 52 L. Ed. 2d 72 (1977); see, e.g., Dawson, supra. We have also recognized that: "Once a state legitimately deprives a person of his liberty, it is required to shoulder the economic burden necessary to preserve the constitutional rights retained by the person *464 within the walls of the jail or prison." Dawson, supra at 1283. We note that one option respondents may consider, given the costs of needed improvements, is permanently closing the jail and transporting local inmates to other county jails.[9]
Based upon our review of the pleadings and exhibits in this case, we order that the Doddridge County Jail be closed until the facility meets the minimum constitutional and statutory standards. In the meantime, inmates shall be incarcerated at suitable facilities in adjoining counties.[10]
We are hopeful that the parties who have agreed on the nature of the multiple problems discussed above can also reach agreement on expeditious solutions. We therefore issue a moulded writ of mandamus directing respondents within 60 days from the filing of this opinion to submit to relator's counsel a detailed plan of improvements including a timetable for implementation. If an agreed plan cannot be implemented then any matters in dispute between the parties will be heard by the Honorable Jerry W. Cook, who is designated by this Court to sit as a Judge of the Circuit Court of Doddridge County.
Writ granted as moulded.
NOTES
[1] Hickson, supra at 856 provides as follows:
Despite this difference in the particular constitutional right afforded between the sentenced inmate and the pretrial detainee, it does not appear from a practical standpoint that the end result differs substantially. Where conditions of confinement are at issue, it would seem of little moment as to how the inmate's confinement has occurred.
[2] In Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), the United States Supreme Court reviewed certain conditions at a short-term custodial facility under the more limited "discrete adjudication analysis" against the backdrop of a modern center which "represented the architectural embodiment of the best and most progressive penological planning" with inmates being housed in residential units and not barred cell blocks.
[3] The parties filed a plan of implementation with this Court on March 18, 1983, setting forth in detail the corrective action agreed upon in light of the opinion in Hickson.
[4] See n. 2, supra.
[5] W.Va.Code, 7-3-2 and 7-8-2, as amended, supra.
[6] In Dawson, supra, the defendant sheriff jailer and county commission were ordered to increase staffing to provide at least one deputy on each floor where inmates were housed 24 hours a day and direct supervision of each inmate at least once every 30 minutes.
[7] See n. 3, supra.
[8] In 1986, the legislature removed the provision granting inmates sentence reduction for donating blood; otherwise, the statute is unchanged.
[9] See W.Va.Code, 31-20-1, et. seq. [1985], the West Virginia Regional Jail and Prison Authority Act, which provides for the creation of multi-county jails. This type of facility would offer an alternative particularly for the smaller counties with low occupancy rates and insufficient county funds to maintain jails at the required minimum standards.
[10] This does not preclude use of this jail for such purposes as visitation with families and friendly interviews with inmates' attorneys, and as a holding facility during court appearances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262581/ | 306 A.2d 684 (1973)
Raymond H. QUERO d/b/a Dairy Queen
v.
VERMONT STATE TAX DEPARTMENT.
No. 51-71.
Supreme Court of Vermont, Washington.
June 5, 1973.
Reargument Denied July 11, 1973.
*685 Ryan & Ryan, Montpelier, for plaintiff.
Kimberly B. Cheney, Atty. Gen., and James S. Hirsch, Asst. Atty. Gen., for defendant.
Before SHANGRAW, C. J., BARNEY, SMITH and KEYSER, JJ., and MARTIN, Superior Judge.
SHANGRAW, Chief Justice.
This matter originated as an appeal by the plaintiff to the Washington County Court from a decision of the Commissioner of Taxes. The authority for such appeal is contained in 32 V.S.A. § 9275. This appeal was occasioned by reason of the assessment of a claimed meals and rooms tax deficiency against the plaintiff for the taxable period from June 30, 1966 to September 30, 1968, of $1,045.07, which included interest and costs. The Tax Commissioner subsequently agreed to waive the penalty and revised plaintiff's tax liability downward to $920.89.
Findings of fact were made by the trial court based upon an agreed statement of facts submitted to it. A judgment order followed on February 25, 1971, directing that the plaintiff, appellant, pay to the State of Vermont the tax in the sum of $920.89 plus interest from the date of demand. From this order an appeal was duly taken to this Court for review.
The plaintiff operated an establishment at 41 Berlin Street in Montpelier, Vermont, and sold dairy custard products. It is subject to Chapter 222 (now Chapter 225) of Title 32, Vermont Statutes Annotated, as amended, which chapter imposes a "meals and rooms tax". To avoid confusion, and for the purpose of clarification, §§ 9241 and 9242 of Title 32 were formerly designated as §§ 9251 and 9252. Such change of section numbers makes no change in the applicable law.
32 V.S.A. § 9241, at all times pertinent, reads, in part, as follows:
"9241. Imposition of tax
A tax of five per cent of the rent of each occupancy and of one cent for each taxable meal for which the charge is between fourteen and twenty cents inclusive,. . . is hereby levied and imposed and shall be collected by the operator and paid over to the state as herein provided."
Under the provisions of § 9241, the tax to be collected and remitted to the state increases dependent upon the charge made for a meal. Legislative changes from 1959 through 1969 increased the tax rate applicable but made no change in the basic exclusion of charges under fourteen cents (14¢).
*686 The plaintiff, appellant, challenges the Tax Commissioner's construction and application of § 9242 (formerly 9252) of Title 32, V.S.A. This section provides for the "Collection of meals and rooms tax by operator and imposition of gross receipts tax." Subsection (a) thereof reads:
"Each operator shall state the amount of tax to each occupant and each purchaser of a taxable meal and shall charge the tax for each rental or meal, and shall demand and collect the tax from such occupant or purchaser. The occupant or purchaser shall pay the tax to the operator and each operator shall be liable for the collection thereof
Subsection (c) of § 9242 states:
"A tax of five per cent of the gross receipts, exclusive of taxes collected pursuant to subsection (a) of this section, received from occupancy rentals and taxable meals by an operator, is hereby levied and imposed and shall be paid to the state by the operator as herein provided, in lieu of payment of taxes collected pursuant to subsection (a) of this section, and any balance of the tax collected pursuant to subsection (a) of this section remaining in the possession of the operator after payment of the tax imposed by this subsection shall be retained by the operator as compensation for the keeping of prescribed records and the proper account and remitting of taxes by him."
The trial court determined as a fact that in preparing the tax returns in controversy the plaintiff has reported his total receipts, has deducted, before computation, that portion of those receipts reported on sales of less than fourteen cents (14¢) and has computed and paid his tax on the balance.
The limited issue presented is whether or not the purchase of meals for less than fourteen cents (14¢) authorized the Commissioner of Taxes to impose a gross receipts tax thereon under the provisions of 32 V.S.A. § 9242.
The gist of the matter in this case is the interaction between § 9241 and § 9242 of Title 32 V.S.A. Section 9241 imposes the tax on rooms and taxable meals which is collected from the customer by the operator. It is the contention of the defendant that § 9242, supra, deals solely with the payment of the tax by the operator based on gross receipts, including meals sold for less than fourteen cents (14¢). It is urged that this was the intention of the legislature.
Where the meaning of a statute is plain and unambiguous, there is no necessity for construction and the statute must be enforced according to its terms. Leno v. Meunier, 125 Vt. 30, 33, 209 A.2d 485 (1965). It is only where a statute is ambiguous that resort be had to the intent of the legislature. Brattleboro Chalet Motor Lodge v. Thomas, 129 Vt. 405, 407, 279 A. 2d 580 (1971). No such occasion arises here.
By reference to 32 V.S.A. § 9241, it is clear that a "taxable meal" does not include one for which the charge is less than fourteen cents (14¢). Under this section no tax for such a meal for which the charge is less than the above amount is levied and imposed or collected by the operator of the business nor required to be paid to the State. By way of legislative history none of the Acts from 1959 through 1969 imposed any tax on food for which the charge was less than fourteen cents (14¢).
Referring to 32 V.S.A. § 9242, subsections (a) and (c), relating to the collection of meals and rooms tax by an operator and the imposition of a gross receipts tax, the tax authorized thereunder is limited to rentals and "taxable meals".
We find no ambiguity in the statutes now considered. We are not called upon to determine what the legislature intended but rather what the statutes in their commonly accepted use mean. We hold that it was proper for the plaintiff in reporting *687 his total receipts, for the purpose of taxation under § 9242, to deduct from his total receipts that portion thereof on sales of meals for which he charged less than fourteen cents (14¢). Conversely, the assessment by the Commissioner of Taxes of $920.89 on such meals was not authorized.
In view of the result reached in this case, it is unnecessary for us to discuss the remaining points briefed by the parties.
Judgment order reversed. Cause remanded for a new judgment order in favor of the plaintiff, appellant, consistent with the opinion of the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1325569/ | 130 Ga. App. 460 (1973)
203 S.E.2d 575
BUFFINGTON
v.
McCLELLAND.
48421.
Court of Appeals of Georgia.
Submitted September 13, 1973.
Decided November 29, 1973.
Rehearing Denied December 18, 1973.
Glenville Haldi, for appellant.
J. Ralph McClelland, Jr., for appellee.
HALL, Presiding Judge.
Plaintiff-appellee McClelland is an attorney at law who previously represented appellant Buffington in litigation. Buffington refused to pay McClelland's fee; McClelland sued to collect and obtained a jury verdict reversed on appeal in Buffington v. McClelland, 125 Ga. App. 153 (186 SE2d 550). Upon a new trial, McClelland again received a jury verdict, and Buffington again appeals raising 12 enumerations of error.
Having been previously represented by McClelland in other matters, Buffington retained McClelland without a specific fee arrangement to defend him against a claim of one Ebener for a $60,000 recovery plus an accounting said to be due Ebener as his share of the profits of his former partnership with Buffington. The matter was initiated in 1956 and proceedings before an auditor and other matters caused the case to continue over 7 *461 years before it was concluded in 1963 by Buffington's payment of a $7,000 settlement. During this time McClelland sent various bills "on account" and on conclusion sent a final bill which was not paid. The amended complaint sought recovery of an alleged balance due of $2,350. Upon the new trial McClelland amended his complaint to seek a balance due of $12,350, which reflected an increased valuation of services in quantum meruit at $15,000 minus adjustment for sums paid, and which McClelland explained as an amendment to conform the pleading to the evidence adduced at the first trial. The jury rendered a verdict for McClelland for $10,000, and Buffington appeals.
1. Enumerations one, two and four, asserting error in overruling the new trial motion, the motion for judgment n. o. v., and the motion for directed verdict on grounds that McClelland's evidence was not sufficiently specific to support a recovery, all urge the general grounds. Buffington strongly urges that McClelland's records, which never purported to be strictly accurate time records, are insufficient to enable him to recover. A careful review of the trial record, comprising some 400 pages, shows that there was adequate evidence to support the verdict of the jury, and that such evidence was sufficiently specific to allow the award without undue guesswork.
McClelland's showing of his services rendered and his opinion of their bearing on the outcome of the case included the following evidence: McClelland testified that in approaching him Buffington apprised him of his receipt of a demand letter from Ebener claiming to be due as a former partner a percentage of Buffington's profit in the mechanical contracting business and of Buffington's position that nothing whatever was owed Ebener; during about a year through correspondence and conferences with Ebener's attorney to go over the books and records, McClelland negotiated toward a settlement which he then concluded could not be reached; Ebener sued; McClelland filed "answers," "defensive pleadings," and "demurrers"; "hearings ... on the various motions, demurrers and legal contentions of the parties that went on over a period of some several months ..." resulted in McClelland's compelling Ebener to list the individual jobs on which he claimed he was owed a recovery; this list was some 60-100 jobs; in light of the increasing complexity of the suit the trial judge appointed an auditor; the auditor called meetings and conferences over a period of several weeks between McClelland and opposing attorneys to go over the pleadings and *462 make plans; the auditor determined first that they would have evidence on the question whether Ebener was a partner or an employee; seven separate hearings before the auditor were held from August 22, 1959 to October 6, 1961 and the time consumed in each was in evidence; these hearings yielded 514 pages of testimony by witnesses, and also necessitated the taking of depositions of Buffington and three witnesses who could not be present; numbers of conferences were required between Buffington and McClelland, and Buffington's employees and McClelland, plus the effort of going through Buffington's books and records for several years, and discussions and conferences were held with his bond representatives who were interested in the effect of the pending suit on his financial strength; to determine Buffington's true profit margin which became an issue in the case it was necessary to investigate the overhead of his entire office, since records did not allocate it to separate jobs; McClelland was required to gain familiarity with Buffington's methods of accounting, to confer with his bookkeeper and certified public accountant, and with his wife who was carried on the payroll and who was claimed by Ebener to perform no services and not to be a legitimate item of overhead; in connection with the hearings McClelland submitted briefs of law from time to time, and extracted parts of the witnesses' testimony to support his contentions; he filed a motion for nonsuit; the auditor ruled that Ebener and Buffington were partners, and that Ebener was due his percentage of profit on jobs on which he was the estimator even though they might not have been finished until after his departure, so this ruling required investigation into additional jobs that were not completed until 1959; the auditor then found that Buffington owed some $15,000 to Ebener and he reported the same to the trial judge; McClelland filed exceptions of some 30-40 pages as a result of which by "mathematical computation and allocation of the cost" he succeeded in reducing the findings about $4,000 to $11,000, and judgment was entered by the trial judge for that amount; McClelland moved for a jury trial as to the exceptions, requiring briefs of law, argument and further hearings in the court itself and not before the auditor; the motion was overruled; McClelland prepared a bill of exceptions to the Supreme Court, which necessitated review of the entire record, pleadings, evidence, etc.; the other side offered to settle for $7,000; numerous conferences were held between Buffington and *463 McClelland concerning whether settlement or appeal was preferable; to determine their chances on appeal McClelland suggested an evaluation of the record as it would appear to an outsider by an outside attorney; he obtained the services of Merrill Collier, who reviewed the material for a week; three lengthy conferences were held between Collier, Buffington and McClelland, usually at night, and they opted for the $7,000 settlement in preference to the appeal; Buffington required Ebener as part of the settlement to agree to a statement that he had never had any connections with Buffington at all, and McClelland drew a complete and detailed settlement agreement of this unusual kind, plus a dismissal agreement; the settlement figure was paid and the suit dismissed; McClelland by review of his daily calendars over the 7 years involved estimated his time at 214 1/2 hours; his opinion of the value of his services was from $7,500 to $15,000; he acknowledged $2,650 already paid; his claim was based on actual time involved, complexity of the litigation and the results obtained; he testified it was the most complicated suit he had in his 30 years of practice; James Flemister and Merrill Collier, both attorneys, were qualified as expert witnesses and both opined that the value of the services was $15,000; Paul Webb, Ebener's attorney in the suit, testified for McClelland that he (Webb) had not obtained the result in the Ebener suit that he had hoped for; the entire record compiled in the Ebener case was introduced into evidence.
Buffington urges that in fixing McClelland's recovery the jury necessarily had to engage in guesswork and speculation of a type not allowed in the fixing of damages. It is true, as Buffington maintains, that "Where a party sues for specific damages he has the burden of showing the amount of the loss claimed in such a way that the jury may calculate the amount of the loss from the data furnished and will not be placed in a position where an allowance of the loss is based on guesswork." Thomas v. Campbell, 126 Ga. App. 675, 676 (191 SE2d 619), quoting Williams & Templeton v. Brewer, 93 Ga. App. 603 (1) (92 SE2d 586). However, the facts of the cases urged by Buffington do not support the conclusion he seeks, that this rule precludes McClelland's recovery here. Thomas v. Campbell, supra, and Big Builder, Inc. v. Evans, 126 Ga. App. 457 (191 SE2d 290) both dealt with the computation of damages for failure to repair real property. Williams & Templeton v. Brewer, supra, considered computation of damages for trespass and illegal cutting of *464 timber; Andrews v. Commercial Credit Corp., 129 Ga. App. 294 (199 SE2d 383) considered a claim for a percentage "of each deal" said to be owed under a reserve contract; Lansdale Clothers, Inc. v. Wright, 217 Ga. 817 (125 SE2d 502) involved a claim for goods delivered when no value of the goods was shown. Woodruff v. Trost, 73 Ga. App. 608 (37 SE2d 425) does deal with the quantum meruit claim of Trost, an accountant, for his professional services, and in Count 1 this court held the jury verdict for the accountant not authorized by the evidence because "there is no evidence of the work's bearing on the results obtained," id. at 611, where plaintiff had assessed his fee on the basis of work done and results achieved. In the present appeal, however, there is ample evidence that the work done bore directly on the results obtained. Also, on Count 2 of the Woodruff case, this court upheld a jury verdict of $5,000 for the accountant's idea of making an investigation, his writing a few letters, and his obtaining recovery of 1,200 shares of stock worth $190,000 and $6,800 in dividends, even though he proffered no time records to substantiate his claim.
In suits upon quantum meruit, an amount representing the value of professional services is for the jury to determine. Marshall v. Bahnsen, 1 Ga. App. 485 (1) (57 S.E. 1006). The services detailed by McClelland were described with even greater specificity than those in Deutsch v. Haas, 55 Ga. App. 463 (190 S.E. 637), which we held adequate to support the attorney's recovery there. McClelland's evidence was ample to withstand the motion for directed verdict and to authorize the verdict, and the verdict will not be disturbed on appeal.
2. Enumeration three, alleging error in the overruling of the motion to limit McClelland's damages to the amount prayed for in the first trial has been abandoned here because not argued nor supported by authority. Georgia Farm Bureau Mutual Ins. Co. v. Mitchell, 126 Ga. App. 640, 643 (191 SE2d 557); Young v. State, 125 Ga. App. 204 (186 SE2d 805).
3. Enumerations five, six and seven assert error with respect to the testimony of the witness Merrill Collier in three respects: in allowing him to answer an improper hypothetical question concerning the value of McClelland's services; in allowing him to testify over Buffington's claim of an attorney-client privilege; and in refusing to strike his testimony. Buffington points to no fact set forth in the hypothetical question which is unsupported by the evidence, and our review of the question shows none. *465 Accordingly, the enumeration is without merit. With respect to the claimed attorney-client privilege, as will be discussed in a later section of this opinion, Collier testified that he was employed by McClelland to render services to McClelland, and he sent his bill to McClelland, although the evidence showed that Buffington actually paid it at McClelland's request. In any event, the attorney-client privilege recognized in Code Ann. § 38-418 (2) does not encompass matters of which the attorney has or gains knowledge through some source other than the communications of his client in preparation for litigation. If he has knowledge from another source, testimony concerning that is proper. Code § 38-1605; Skellie v. James, 81 Ga. 419 (2) (8 S.E. 607); 2 Encyc. of Ga. L., Attorney and Client, §§ 84, 108, 109. Collier's testimony concerned his evaluation of McClelland's services on the basis of the record which had been made in the case and the pleadings and briefs of parties, which he reviewed at McClelland's request to evaluate an appeal. None of this information was confidential and documents of this type are matters of public record. No privilege is involved and the objection to the testimony on this ground is without merit.
4. Enumerations eight and nine assert error in the court's allowing James Flemister, an attorney, to answer a hypothetical question eliciting his opinion of the value of McClelland's services, and in refusing upon motion to strike his testimony. On the merits the alleged errors are without foundation. Though asserting that the question was based on the evidence, Buffington fails to point to any particular in which the question was unsupported, and our review discloses none. This enumeration is without merit.
5. Enumeration ten claims error in the court's restricting Buffington's cross examination of the witness Collier and excusing him as a witness over objection. Specifically, Buffington urges that he was unable to delve adequately into the question of whether Collier was employed by McClelland or Buffington. Review of this portion of the record shows that before the court terminated this line of questioning, Collier had testified six separate times in response to cross examination that he was employed by McClelland; he had testified numerous times that he rendered his services to McClelland and looked to him for payment. The court asked Buffington's attorney what additional questions he desired to ask, and the attorney enumerated only those to which the witness had already given answers. There was no error in refusing to allow additional cross examination to plow *466 the same ground again.
With respect to the alleged error in excusing Collier as a witness over Buffington's objection, the record shows that the judge excused Collier and terminated the cross examination when Buffington's attorney refused to ask additional questions until the court reporter succeeded in finding a passage of Collier's previous testimony in which the witness made statements concerning his opinion of the relative likelihood that plaintiff or defendant would be in the better position to accomplish a mischievous delay of a lawsuit. Our review of the record shows that such statements were not made in response to a question, but the information to be searched for was a composite of the witness' answers to more than one question, and this testimony appears in the transcript 12 pages prior to the point at which the reporter was instructed to search his notes. In light of the impracticality of the request by Buffington's attorney, his refusal to go on with his questions until the passage was found, and the relative insignificance of the point in the context of the overall evidence, we hold that even if error occurred here, the same was harmless.
6. The eleventh enumeration asserts that the overall conduct of the trial judge was sufficiently unfair to Buffington to have denied him the benefits of a fair trial. We have reviewed the total transcript and the claim is without merit.
7. The twelfth and last enumeration correctly claims error in the court's disallowing the cost of the transcript of proceedings at the first trial as an item of cost of appeal to be recovered by Buffington as a successful appellant on his former appeal of this case. Under this court's decision in Barnett v. Thomas, 129 Ga. App. 583 (200 SE2d 327), Buffington is entitled to recover this amount, and the trial court erred in denying his motion to that effect.
8. McClelland's motion to dismiss the appeal on various grounds is denied. Appellant's failure to include a statement of jurisdiction does not deprive this court of jurisdiction and does not require us to grant a motion to dismiss. Myers v. Johnson, 113 Ga. App. 648 (1) (149 SE2d 378). In order to raise questions on appeal, it is unnecessary first to include them as grounds for a new trial motion. Code Ann. § 6-702. The former rule of Hill v. Willis, 224 Ga. 263 (161 SE2d 281) has been changed by this court's Rule 14 (e): "The enumeration of errors shall be deemed to include and present for review all judgments necessary for a determination *467 of the errors specified." McClelland's motion under Code § 6-1801 for damages for an appeal taken only for delay is denied, as we have reversed that part of the judgment appealed from which denied appellant a portion of his costs on the first appeal.
Judgment affirmed with direction that the cost of the transcript of proceedings taken at the first trial and transmitted to this court as part of the record on the former appeal be cast against McClelland. Evans and Clark, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3347048/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
This is an appeal from a decision awarding unemployment compensation benefits to Roselle Feshler and Joan Benedict (hereinafter "the claimants") and for the payment of such benefits by Hartford Dialysis (hereinafter "the appellant").
The claimants were nurses associated with the appellant and provided dialysis treatment at Hartford Hospital. Claimants severed their association with the appellant after a dispute arose concerning the treatment of AIDS patients which they allegedly refused to service with dialysis treatment. Accordingly, the claimants filed for unemployment compensation benefits. Such benefits are paid through a special tax paid by employers. Appellant asserts that it wasn't the claimants' employer, but rather, that the nurses were independent contractors and that the appellant was simply a conduit for billing and payment purposes.
On October 1, 1986, the Administrator of the Unemployment Compensation Act (hereinafter the Administrator) ruled that the appellant was an employer under General Statutes31-222 et seq. The appellant timely appealed the decision on October 21, 1986 and the Administrator's decision was affirmed by the appeals referee on September 2, 1988. On September 21, 1988, appellant appealed to the Board of Review. The Administrator's decision was again affirmed on December 27, 1988. Pursuant to General Statutes 31-248 (c) and 31-249b, the appellant, on January 25, 1989, appealed these decisions to the Superior Court of the judicial district of Hartford-New Britain.
The Administrator makes the initial determination whether an applicant is qualified to receive benefits. General Statutes 21-235; 31-236; Finkenstein v. Administrator Unemployment Compensation Act, 192 Conn. 104, 108,470 A.2d 1196 (1984). This determination may be appealed to a referee, then to the board of review and ultimately to the superior court. General Statutes 31-242; 31-249; 31-249a; 31-249b.
When surveying the facts, "a court is limited to a review of the record certified and filed by the board of review" United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385 (1988). "The court must not retry the facts nor hear evidence." Id., 385. When reviewing a decision of the board of review, a court cannot substitute its own conclusions for those of the board. Id., 385. CT Page 533
The appellant states that the claimants were not employees because the nurses were not controlled by and did not perform services for Hartford Dialysis
Another claim by the appellant is that the nurses were engaged in an independently established profession. Additionally, in its post-argument memorandum, the appellant asserts that the board of review relied on evidence outside of the record to determine that the appellant trained the claimants.
In opposition, the Attorney General argues that the appellant failed to meet its burden of proof and that the board's decision was logical, reasonable and should be left undisturbed. The Attorney General has not replied to the appellant's post argument memorandum.
Though it is not binding, it has been stated that "[o]rderly procedure requires that the commission be asked to rule upon all claims of fact or law and that they should be clearly raised before him." McMorrow v. Egan, 16 Conn. Super. Ct. 263,267 (Super.Ct. 1949). When a trial court has found that an administrative agency has made invalid or insufficient findings, the matter must be remanded to the agency for further proceedings. Persico v. Maher, 191 Conn. 384, 410,465 A.2d 308 (1983); City of Hartford v. Hartford Electric Light Company, 172 Conn. 71, 73, 372 A.2d 131 (1976).
A court may also remand a case to an agency when it deems that additional evidence is necessary. Coppola v. Personnel Appeal Board, 174 Conn. 271, 275, 386 A.2d 228
(1978); Gervasoni v. McGrath, 36 Conn. Super. Ct. 297, 301,418 A.2d 952 (Sup.Ct. 1980); Helm v. Welfare Commissioner,32 Conn. Super. Ct. 595, 600, 348 A.2d 317 (App. Sess. 1975). "The court may also order the board to remand the case to a referee for any further proceedings deemed necessary by the court." General Statutes 31-249b.
The issue of termination was not raised before the administrator. The administrator should determine if the alleged termination qualified the claimants for unemployment benefits. Therefore, this is remanded to the referee to decide what the effect of the alleged termination was upon the claimants' unemployment eligibility.
The administrator has not made a determination on the circumstances of the claimants' alleged termination.
This case is not ripe. It comes before the court on appeal on the sole issue of whether or not the claimants are employees or not. If they were found to be employees CT Page 534 and in that capacity each or all of the claimants refused to treat patients with AIDS, the question arises, is such conduct a valid basis for termination? Why does this case, with such important questions unanswered, come before the court piecemeal? Judicial economy requires that all issues be closed at each level so that the case climbs the appellate ladder in contexts.
This case is remanded to the referee to make further finding as to all of the relevant issues.
JOHN F. WALSH, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2262110/ | 26 Cal.Rptr.3d 319 (2005)
127 Cal.App.4th 948
Alfred SKISTIMAS, Plaintiff and Appellant,
v.
OLD WORLD OWNERS ASSOCIATION et al., Defendants and Appellants.
No. G032915.
Court of Appeal, Fourth District, Division Three.
February 25, 2005.
Law Offices of Alexandria C. Phillips and Alexandria C. Phillips, Irvine, for Plaintiff and Appellant.
Fiore, Racobs & Powers, Janet L. S. Powers, Irvine, and C. Mark Hopkins, for Defendants and Appellants.
Certified for Partial Publication.[*]
OPINION
SILLS, P.J.
Alfred Skistimas sued the individual members of the board of the Old World Owners Association (the Association) for violating certain provisions of the covenants, conditions and restrictions (CC & Rs), which allegedly had a negative effect on his business. He also claimed the board members slandered him and threatened to force him out of the Old World Village, and he alleged one board member threatened to shoot him. Skistimas also sued the Association, claiming it selectively enforced the CC & Rs, breached its fiduciary duty to him, failed to supervise individual board members, and slandered him.
*320 The trial court summarily adjudicated some causes of action, granted motions for judgment on others (Code Civ. Proc., § 631.8),[1] and ultimately entered judgment against Skistimas on the entire complaint. It awarded attorney fees and costs to the defendants, but denied their request for expert witness fees under section 998. Skistimas appeals from the judgment, and the individual defendants appeal from the denial of expert witness fees. We affirm the judgment but reverse the denial of expert witness fees.
FACTS
Second Amended Complaint[**]
Motions for Summary Judgment[**]
Trial[**]
Motion for Costs
The defendants moved to recover attorney fees as the prevailing party in an action involving the enforcement of CC & Rs. (Civ.Code, § 1354, subd. (f).) The trial court found them to be the prevailing parties and awarded them $57,630. The individual defendants also moved to recover their expert fees because Skistimas refused to accept their offers to settle and failed to achieve a better result at trial (§ 998). The trial court noted only the individual defendants had made settlement offers to Skistimas, not the Association, and it found the offers were not "`token' or `bad faith' offers." But the court denied the motion because none of the defendants paid "out of pocket" for the experts. "My inspection of the CCP 998 offers shows that those offers were expressly made, not by the individuals themselves, but by the community association's insurance carrier on behalf of those individuals."
DISCUSSION
Summary Adjudication[***]
Breach of CC & Rs[***]
Fiduciary Duty[***]
Defamation[***]
Attorney Fees[***]
Expert Witness Fees
The individual defendants contend the trial court erred in denying them an award of expert witness fees pursuant to section 998. The trial court denied the award because the Association's insurer made the offers on behalf of the individuals. "Unless the Association itself offered to settle in a good-faith settlement offer and still had to pay these guys ... I don't see how they can piggyback on the individual defendants. It just doesn't seem fair to me." The individual defendants claim they were entitled to such an award even though the fees were paid by the Association's insurer rather than by the defendants themselves. We agree.
Section 998 provides that a written settlement offer may be made by any party up to 10 days before trial. "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, ... the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably *321 necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant." (§ 998, subd. (c)(1).)
While we are unaware of precedent involving expert witness fees, there is ample case law holding that a litigant may recover attorney fees even though he has not paid for them out of his own pocket. "Modern jurisprudence does not require a litigant seeking an attorney fee award to have actually incurred the fees. [I]n cases involving a variety of statutory fee-shifting provisions, California courts have routinely awarded fees to compensate for legal work performed on behalf of a party pursuant to an attorney-client relationship, although the party did not have a personal obligation to pay for such services out of his or her own assets. (Lolley v. Campbell (2002) 28 Cal.4th 367, 373, 121 Cal.Rptr.2d 571, 48 P.3d 1128.) Moreover, the court noted: The right of a party to seek an award of statutory attorney fees is not equivalent to a right to retain such fees. (Id. at p. 373, fn. 4, 121 Cal.Rptr.2d 571, 48 P.3d 1128.)" (Moran v. Oso Valley Greenbelt Assoc. (2004) 117 Cal.App.4th 1029, 1036, 12 Cal.Rptr.3d 435.)
Skistimas points out section 998 specifically includes the requirement that expert witness fees be "actually incurred," while the statutes allowing the recovery of attorney fees do not. He argues this distinction is dispositive, urging us to interpret the phrase "actually incurred" to mean, "personally incurred." We decline to do so. The statute contains no requirement that any particular person must have incurred the expert witness fees, just that the fees must have been actually incurred. Thus, there is no statutory language to support treating expert witness fees under section 998 differently than attorney fee awards. Whether the individual defendants paid the fees out of their own pockets or their insurer paid the fees on their behalf should not be determinative of their right to recover those fees.
Section 998 provides that the court has the discretion whether to make an award of expert witness fees, but the court here denied the award for an erroneous reason. The record does not reflect that the court exercised its discretion over the propriety of the award, nor did it determine whether the requested amount was reasonable. For these reasons, we remand the matter to the trial court for further determination on the expert witness fee award.
DISPOSITION
The judgment against Skistimas and in favor of the defendants is affirmed. The order denying an award of expert witness fees to the defendants is reversed and the matter is remanded to the trial court for further proceedings. Defendants are entitled to costs on appeal.
WE CONCUR: O'LEARY and MOORE, JJ.
NOTES
[*] This court certifies that the opinion meets the standards for publication set forth in California Rules of Court, rule 976(b) with the exception of the sections entitled "Second Amended Complaint," "Motions for Summary Judgment," and "Trial" under the heading "FACTS"; and the sections entitled "Summary Adjudication," "Breach of CC&CRs," "Fiduciary Duty," "Defamation," and "Attorney Fees" under the heading "DISCUSSION."
[1] All statutory references are to the Code of Civil Procedure unless otherwise specified.
[**] See footnote *, ante.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
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