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https://www.courtlistener.com/api/rest/v3/opinions/1326251/ | 248 S.C. 251 (1966)
149 S.E.2d 606
Charles E. NEWTON, Betty R. Pregnall, C.F. Myers, Jr., Rosina Marie Kennerty, Joan Snowden Kennerty and Joseph K. Harris, taxpayers and property owners of St. Andrews Parish, Charleston County, South Carolina, Individually and representing all other persons similarly situate, Appellants,
v.
J.J. HANLON, Chairman, Henry A. Kennedy, Dr. C.T. Hamrick, Jr., W.C. Kennerty and Simpson M. Parker, constituting the St. Andrews Public Service Commission, and Daniel R. McLeod, Attorney General of the State of South Carolina, Respondents.
18546
Supreme Court of South Carolina.
August 2, 1966.
*252 *253 *254 Messrs. Philip Garfinkle, Stanley Waldman, Nathaniel L. Barnwell, Jack P. Brickman, Harvey Spar and Jack White, all of Charleston, for Appellants.
Messrs. William Ackerman and Sinkler, Gibbs & Simons, of Charleston, and Daniel R. McLeod, Attorney General, of Columbia, for Respondents.
*255 August 2, 1966.
LIONEL K. LEGGE, Acting Associate Justice.
Act No. 535 of 1965 (54 Stat. at L. 1064) authorizes St. Andrews Public Service Commission, the governing body of St. Andrews Public Service District in Charleston *256 County, to issue $5,000,000.00 of general obligation bonds of the district for the purpose of constructing improvements to and extensions of the district's present sewer system, provided the Commission agree that it will, to such extent as it shall deem fair and equitable, impose assessments against properties abutting on sewer laterals constructed from the proceeds of the bonds so issued, in aid of debt service of such bonds.
Act No. 397 of 1965 (54 Stat. at L. 718) is a general statute purporting to empower all special purpose districts exercising power to construct and operate sewer facilities: (a) to establish and enforce a schedule of charges for sewage collection service; (b) to contract with any public or private agency operating a water system for the collection of such charges; (c) to require all property to which sewer service is available to connect to the district's sewage collection facilities; (d) to make regulations with respect to the discharge of sewage and the use of privies, septic tanks and other types of sewage facilities; (e) to impose front foot assessments against properties abutting on sewage collection laterals; and (f) to make sewer service charges a lien against the property served.
The Commission proposes to issue $5,000,000.00 of bonds as authorized by Act No. 535, and to establish pursuant to the authority vested in it under Act No. 397 regulations to provide, by front foot assessments and otherwise, for debt service of said bonds and for maintenance and operation of the district's improved and extended sewer system.
In this action the plaintiffs, representing several categories of property owners in the district: (1) question the constitutionality of Act No. 397 insofar as it purports to authorize frontage assessments; and (2) seek to enjoin, as discriminatory, enforcement of the Commission's regulations before referred to. The Commission having answered, denying the charges of unconstitutionality and discrimination, *257 and there being no factual dispute, the cause was heard on the pleadings before the Honorable Clarence E. Singletary, Judge of the Ninth Judicial Circuit, from whose decree holding the questioned Act constitutional and the challenged regulations valid the plaintiffs have appealed.
St. Andrews Public Service District is a body corporate and politic operating under authority of Act No. 443 of 1949 (46 Stat. at L. 1015) that created it, and amendments thereto. Among the powers thus vested in it is that of acquiring, constructing, maintaining and operating within its area sewer systems, including extensions of the system existing at the time of its creation. From time to time the district has acquired or constructed sewage collection and treatment facilities. For the most part the present facilities were constructed from the proceeds of sale of general obligation bonds, for the retirement of which an ad valorem tax has been, and is, assessed against all taxable properties within the district, including those of each of the appellants.
The district's present sewer collection lines serve only a small portion of its area and about twenty-five per cent of its residents. The Commission, after investigation, has determined that the public health of the district requires that its existing sewer system be improved and extended. Upon the recommendation of its engineers it now proposes to extend the sewer lines so that they will serve practically all residents of the district, and to construct sewage treatment and disposal plants so that raw sewage will no longer be dumped into the waters of Charleston harbor. The estimated cost of these extensions and improvements is approximately $5,000,000.00, exclusive of possible Federal aid.
The Commission's present plan for raising revenue for debt service of the proposed bonds and for maintenance and operation of the improved and extended system is as follows:
1. A district wide ad valorem tax levy of five mills;
*258 2. A sewer service charge of Two Dollars ($2.00) per month against all properties making use of the existing or extended system; and
3. An assessment of Four Dollars ($4.00) per front foot, payable over a ten-year period, against properties abutting on the proposed sewer collection laterals.
The proceeds of the ad valorem levy are to be applied to debt service of bonds issued for construction and installation of trunk lines and treatment and disposal facilities. The proceeds of the frontage assessments are to be applied to debt service of bonds issued for construction and installation of the sewer collection laterals on which the assessed properties abut. The proceeds of the service charge will be used for maintenance and operation, and any surplus will be applied to debt service of outstanding bonds. The ad valorem levy, the frontage assessments, and the service charge will be liens against the properties to which they are applicable respectively.
The appellant Newton owns improved property now served by the district's existing sewage collection system. His property, therefore, will not be subject to the proposed front foot assessments but will be served by the sewage treatment and disposal facilities to be constructed from a portion of the proceeds of the bond issue.
The property of the appellant Pregnall is not now served by the district's existing sewage collection facilities. It will be on one of the proposed sewage collection lines; and she will be required to connect with it although her property is now adequately served by a septic tank which she has installed and which meets the requirements of the State and County health departments.
The appellant Myers owns undeveloped property not now served by any sewage collection facility, but which will abut on one of the proposed sewage collection lines. He has no plans to develop or build on this property at this time; and it is admitted for the purposes of this action that said property *259 will come within the exemption provided in the Commission's proposed regulations for properties not being devoted to commercial or residential purposes or platted or otherwise developed at the time of the proposed frontage assessment.
The appellant Harris owns an unimproved vacant lot in a subdivision. It will abut on a proposed sewage collection line. He does not plan to build on this property in the foreseeable future; but since it has been platted as part of a residential subdivision it is admitted for the purposes of this action that it will not qualify for the exemption before mentioned.
The appellant Rosina Marie Kennerty owns improved property which is adequately served by a properly inttalled and operating septic tank, and which will not be on any proposed sewage collection line.
The appellant Joan Snowden Kennerty likewise owns improved property which will not be on any proposed sewage collection line, and which is presently served by a septic tank; but it is admitted that due to the nature of the soil this septic tank does not operate effectively, and that it constitutes a health menace.
Appellants contend that the provision in Act No. 397 authorizing the imposition of frontage assessments is arbitrary, constitutes a taking of their property without just compensation, and deprives them of their rights under the due process and equal protection clauses of the State and Federal Constitutions.
It has long been recognized that the legislature has inherent power to authorize assessment of property within a special taxing district for the purpose of defraying in whole or in part the cost of constructing local improvements. Evans v. Beattie, 137 S.C. 496, 135 S.E. 538; Rutledge v. Greater Greenville Sewer District, 139 S.C. 188, 137 S.E. 597; Distin v. Bolding, 240 S.C. 545, *260 126 S.E. (2d) 649. In Evans and Rutledge the challenged assessment was in the form of an ad valorem tax; in Distin it was a sewer service charge in addition to the ad valorem assessment. In our opinion the frontage assessment here challenged involves no different principle and presents no violation of the constitutional provisions which the appellants invoke. For, as pointed out in the circuit court's decree, the particular basis to be employed in apportioning a special assessment is a matter for determination by the legislature and is immune from attack on constitutional grounds unless it is palpably arbitrary. The general rule, as stated in 48 Am. Jur., Special or Local Assessments, Section 67, page 622, is that "the front footage of property on a street on or in which a public improvement is constructed may be made the basis of apportionment of a special or local assessment to finance such improvement without constituting a taking of property for a public use without compensation, a deprivation of property without due process of law, or in any other respect a violation of the Fourteenth Amendment or of any other part of the Federal Constitution."
"Apportionment according to front footage unquestionably results in many situations in substantial or at least rough approximation to apportionment according to special benefit, and constitutes as close an approximation thereto as could any other mode of apportionment, and such a degree of distribution of the burden according to benefit is all that generally is deemed to be constitutionally requisite to the validity of an apportionment of a special or local assessment." 48 Am. Jur., Special or Local Assessments, Section 68, Page 624.
Act No. 397 expressly limits the frontage assessment to the cost of construction of sewer laterals and extensions thereof. It requires that upon completion of the construction of such laterals and their extensions the Commission "shall compute and ascertain the total cost thereof and shall thereupon make an assessment of such total *261 cost or so much thereof as it deems appropriate." It requires that the assessment be made upon the lots or parcels of land abutting directly on such laterals, according to the extent of the respective frontage thereon, by an equal rate per foot of such frontage. It is thus apparent that the front foot assessments bear a direct relationship to the benefit conferred upon each property assessed. From the record before us it does not appear that they will, in respect to any particular property owner, be so disproportionate to benefits as to violate the constitutional requirements of due process or of equal protection. We note also that the Act and the Commission's proposed regulations accord to each property owner an opportunity to be heard before the Commission prior to the imposition of the frontage assessment against his property, empower the Commission, following such hearing, to make appropriate corrections in the assessment roll, and give to the individual property owner the right of appeal to the circuit court.
Appellants contend that the Act's provision for notice of the frontage assessments to the property owners concerned does not satisfy the requirements of due process. The Act provides: that immediately after completion of the assessment roll the Commission shall cause one copy of it to be deposited in the Commission's office for inspection by interested parties, and shall publish at least once in a newspaper of general circulation within the district a notice of the completion of the assessment roll setting forth a general description of the improvements and the time fixed for a meeting of the Commission to hear objections in respect of such assessments, the meeting to be not less than ten days from the date of such publication; and that as soon as practicable after the completion of the assessment roll and prior to the publication of the notice above mentioned the Commission shall mail to the owner of each lot against which a frontage assessment is to be levied, at his address, if any, appearing on the records of the county treasurer, a notice stating, inter alia, the nature of the improvement, its *262 total cost, the amount of the particular assessment and the frontage upon which it is based, and the time and place fixed for the Commission's meeting to hear objections. Appellants argue that this requires that the notice be mailed to whatever address may appear on the county treasurer's books, even though such address be incorrect or incomplete, and makes no provision for notice in the event that no address should appear on those books. Such interpretation is, in our opinion, too rigid; a more reasonable one would seem to be that for the purpose of mailing the notice the Commission is to resort to the county treasurer's records of the taxpayer's addresses, so far as such records are available and useful. But even though the language of the Act be viewed as inadequately providing for notice, such deficiency may be, and in our opinion has been, remedied by the Commission's proposed regulation, which provides that "in the event no address appears on the records of the County Treasurer for a particular property owner, or in the event the Commission has reason to believe that such address is inaccurate, the Commission shall make every reasonable effort to determine the correct address of such property owner to the end that he shall receive written notice of the assessment to be made against his property if it is possible with reasonable efforts to determine his location and address." Thus implemented, the provisions of the Act regarding mailing of notice would appear to meet fully the requirements of due process. Hancock v. City of Muskogee, 250 U.S. 454, 39 S. Ct. 528, 63 L. Ed. 1081. Cf. Bradley v. City Council of City of Greenville, 212 S.C. 389, 46 S.E. (2d) 291.
We find no merit in the suggestion that the General Assembly may not lawfully empower the district to impose frontage assessments and sewer service charges as well as an ad valorem tax for the purpose of defraying the cost of constructing the improvements to and extension of its sewer system. Appellants argue that since in Rutledge v. Greater Greenville Sewer District, supra, a *263 district-wide ad valorem tax was upheld as a reasonable method of distributing the burden of such construction, that method must now be held to be exclusive. No such conclusion is required or warranted from that decision. We note incidentally that the Act under challenge there (34 Stat. at L. 1537) limited the Commission's expenditures to the construction of trunk lines and disposal plants and required that the cost of construction of laterals be borne by the owners of properties directly served by such laterals, an arrangement not unlike that now under consideration.
As before noted, the cost of construction, maintenance and operation of the district's enlarged sewer system is to be financed as follows:
1. Construction of trunk lines and treatment and disposal plants, to be paid for by the proceeds of the district-wide ad valorem tax;
2. Construction of sewage collection laterals, to be paid for by frontage assessment of abutting properties, supplemented by surplus of sewer service charges over cost of maintenance and operation; and
3. Maintenance and operation, to be paid for by the monthly service charge.
We perceive no valid ground of objection to this method of distributing the burden of the proposed improvements. It would appear more equitable that a district-wide assessment that would impose upon all properties within the district, including those to which the sewer collection facilities will not be available, the cost of constructing not only the trunk lines and treatment and disposal plants, but also the sewer collection laterals. Cf. Distin v. Bolding, supra, where two separate assessments, one a sewer service charge and the other a district-wide ad valorem levy, were held to be proper.
Assessments for local improvements must be fairly and justly apportioned among those charged with their payment. A method of apportionment, whether by statute or by regulation, that is manifestly arbitrary or *264 discriminatory does not fulfill the constitutional requirements of due process and equal protection. But there never has been and probably never can be a perfectly equitable distribution of the tax burden; and statutes or regulations for the apportionment of assessments for local improvements are not to be stricken down merely because they fail to attain the unattainable. All that is required of them by constitutional law is that they apportion the burden of assessments with approximate equality, upon a reasonable basis of classification, and with due regard to the benefits to the individual property owners and the requirements of the public health, safety or welfare. In the light of these principles and of the fact that considerations of individual convenience must often yield to the paramount requirements of the public health, the complaints of the several appellants here with regard to alleged discrimination require no extended discussion.
Act No. 397 exempts from frontage assessments property not in commercial or residential use and unimproved property not platted or otherwise developed as part of a subdivision devoted to residential or commercial purposes. Such exemption, which by the terms of the Act will be moved if and when the exempted property is converted to commercial or residential use or platted or otherwise developed, is in our opinion based upon a reasonable classification and therefore within the legislative power. 48 Am. Jur., Special or Local Assessments, Section 78, page 635. Nor have the appellants any standing to question it, there being no showing that any right of theirs has been invaded or affected thereby. Hampton v. Dodson, 240 S.C. 532, 126 S.E. (2d) 564. For like reasons the provision in the Act that no individual parcel of land may be assessed on the basis of more than two hundred fifty feet of frontage is unobjectionable.
As before noted, the Act empowers the Commission to provide for assessment of lots abutting directly on the sewage collection laterals according to the extent of the respective frontage thereon, by an equal rate per foot *265 of such frontage. It further provides that "the Commission may, in its discretion, provide, in the instance of corner lots, for an assessment deemed to be equitable." In its proposed regulations, the Commission declares that "in the case of corner lots, the front foot assessment will be based on the longer of the boundary lines abutting onto such sewage collection lines." Since such lots abut on two streets and therefore have "frontage" on both, they may be assessed for sewers in both streets. 14 McQuillin, Municipal Corporations, Section 38.68, page 192; 48 Am. Jur., Special or Local Assessments, Section 74, page 630. But assessment on the basis of such double frontage would appear to be inequitable and disproportionate to benefits received, except in instances, probably rare in suburban communities such as the district here, where the property is actually served by the sewer facilities installed in both streets. The Commission's determination to limit the assessment against corner lots to the longer of the two frontages was within its discretionary power and is therefore not subject to review unless shown to be arbitrary or obviously unreasonable. No such showing is made here. Likewise the Commission can properly assess, in the district-wide tax, the cost of sewer lines at intersections, and on which no property abuts.
There is no merit in the contention that the owner of a vacant lot who does not plan to build on it should not be subjected to the frontage assessment for a sewage collection line in the street upon which his lot abuts. It cannot be doubted that the construction of such facilities will enhance the value of the lot; and we do not think it mere speculation to assume that a building will be erected thereon within the foreseeable future although the owner has no present plans in that regard. It is not essential that the benefits of a local improvement be direct or immediate. Evans v. Beattie, supra.
In the construction and operation of the improvements and extensions of the district's sewer system, the Commission acts, under its police power, for the *266 protection of the public health. In the exercise of that power it may require one whose property is adequately served by a septic tank to connect with the extended system. Ruggles v. Padgett, 240 S.C. 494, 126 S.E. (2d) 553.
The property of one of the appellants will not be on any line included in the proposed sewer facilities. It is inadequately served by a septic tank because of the nature of the soil. She wishes to have the Commission required to include this property within the proposed sewer system, and argues that this should be done because she will have to pay the ad valorem assessment for its construction. But her liability for the assessment is not dependent upon the availability of the sewer service to her property. For although extension of the system to serve every piece of property within the district may not be feasible at this time, its purpose is to safeguard the public health not only within the area of the properties directly served, but throughout the entire district; and its construction and operation will therefore benefit all properties within the district, including those which cannot presently connect with it. Mills Mill v. Hawkins, 232 S.C. 515, 103 S.E. (2d) 14. For like reason there is no merit in the contention of the appellant Charles E. Newton that he should not be required to contribute, by ad valorem assessment and by payment of the sewer service charge, to the cost of construction, maintenance and operation of the extended system.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and BRAILSFORD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326253/ | 222 Ga. 127 (1966)
149 S.E.2d 81
BENNETT
v.
GEORGIA INDUSTRIAL CATERING COMPANY.
23418.
Supreme Court of Georgia.
Argued April 12, 1966.
Decided May 5, 1966.
*128 Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Harold E. Abrams, G. Kimbrough Taylor, Jr., for appellant.
Noah J. Stone, Hugh W. Stone, Stone & Stone, for appellee.
MOBLEY, Justice.
This appeal is from a judgment denying a motion by defendant, Fred Bennett, Jr., to vacate a temporary restraining order and his motion to dismiss the petition, and a judgment overruling his general demurrer to a petition for injunctive relief filed by the Georgia Industrial Catering Company, appellee, against Bennett to enjoin him, under a restrictive covenant in an employment contract between the parties, from serving any of the customers on a retail lunch route, whose patronage had been developed by petitioner as well as any customers on the route obtained by Bennett as petitioner's employee.
1. This court has held many times that "a restrictive covenant in a contract of employment whereby a persons agrees not to engage in an occupational activity of a particular kind which is reasonably limited as to time and territory, is valid and enforceable so long as it is not unreasonable in other respects." Williams v. Rio Grande Fence Co., 221 Ga. 633 (1) (146 SE2d 630); Dixie Bearings, Inc. v. Walker, 219 Ga. 353 (133 SE2d 338); Burdine v. Brooks, 206 Ga. 12 (55 SE2d 605); Artistic Ornamental Iron Works Co. v. Wilkes, 213 Ga. 654 (100 SE2d 731); Stein Steel & Supply Co. v. Tucker, 219 Ga. 844 (136 SE2d 355); WAKE Broadcasters, Inc. v. Crawford, 215 Ga. 862 (114 SE2d 26). The restraint must be "reasonably necessary to protect the interest of the party in whose favor it is imposed ..." Rakestraw v. Lanier, 104 Ga. 188, 194 (30 S.E. 735); Stein Steel & Supply Co. v. Tucker, supra. The territorial limitation in the present covenant is reasonable, being "Fulton County." Georgia, in which petitioner alleges it has developed a valuable business through the solicitation and development of customers. Turner v. Robinson, 214 Ga. 729 (107 SE2d 648); Thomas v. Coastal Industrial Services, Inc., 214 Ga. 832 (108 SE2d 328); Bennett v. Kimsey, 218 Ga. 470 (128 SE2d 506).
The limitation as to time is stated in the contract as being "... for a period of not less than one year from date of *129 termination ..." The trial court properly construed this to mean for one year, as the provision required that it be for one year, but did not provide that it should be for more than one year. Therefore, it was for one year. A limitation of one year is well within the bounds of reasonableness. Brittain v. Reid, 220 Ga. 794 (141 SE2d 903); Insurance Center v. Hamilton, 218 Ga. 597 (129 SE2d 801); Thomas v. Coastal Industrial Services, Inc., supra.
2. Appellant, Bennett, contends that, aside from the time and territorial limitations, the contract is "otherwise unreasonable" in that it is indefinite and vague with respect to the nature, kind, and character of the activity that the employee is prohibited from engaging in, relying upon the decisions in Dixie Bearings, Inc. v. Walker, 219 Ga. 353, supra; Stein Steel & Supply Co. v. Tucker, 219 Ga. 844, supra; and Friedman v. Friedman, 209 Ga. 653 (74 SE2d 860); and, that it would be difficult, if not impossible, for him to know whether or not he is violating the terms of the contract because it fails to sufficiently define and specify the customers to whom he may not sell, relying upon the decision in WAKE Broadcasters, Inc. v. Crawford, 215 Ga. 862, supra.
The contract provides that appellant "will not solicit or receive or attempt to solicit or receive, directly or indirectly for the benefit of himself, or others ... the continued patronage from employer's customers on said lunch route or any new customers thereon whose patronage has been developed by employee (Bennett), but at date of said termination comprises part of said route ..."
Contemporaneously with the execution of the contract, and forming a part thereof. a list of customers or "stops" was delivered to Bennett by the appellee. This list identifies the "stops" which constituted the retail food route and, according to the contract, provides information as to the "tastes, peculiarities, and requirements of individuals at such stops ..." Thus, the prohibited customers are the "stops" on the route, and any newly developed customers or "stops" on the route at the date of termination of the employment contract; and, the prohibition would extend to all individuals at such stops during the one-year *130 limitation, and, whether or not they had previously bought from appellant.
For this reason we hold that the contract identifies with sufficient clarity the prohibited customers to enable appellant to determine whether he was selling to any customer in violation of the contract.
The provision that appellant shall not solicit, receive or attempt to solicit or receive "... the continued patronage from employer's customers on said lunch route ..." together with provisions to the effect that the business of the employer is the operation of a retail lunch route are sufficient to identify the nature of the business or activity appellant is prohibited from engaging in under the contract. The "continued patronage" of the customers can only mean that patronage connected with the retail lunch route. It cannot be taken to mean patronage of said customers in the selling of brushed or items unrelated to appellee's business since this would be an entirely new patronage. The contract is not unreasonable on this ground, which is without merit.
For the foregoing reasons, the contract is not unreasonable and is capable of enforcement. The trial court properly overruled the general demurrer, the motion to vacate the restraining order based on grounds similar to those in the demurrer, and defendant's oral motion to dismiss the petition.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326252/ | 382 S.C. 406 (2009)
675 S.E.2d 788
Janet C. ROBARGE, an individual, and Parker Sewer and Fire Subdistrict, a corporation, Appellants,
v.
The CITY OF GREENVILLE, Knox H. White, Lillian Brock Flemming, C. Diane Smock, Michelle R. Shain, Debra M. Sofield, Chandra E. Dillard, and J. David Sudduth, Respondents.
No. 4512.
Court of Appeals of South Carolina.
Heard December 3, 2008.
Decided February 27, 2009.
Rehearing Denied May 5, 2009.
*408 Robert Mills Ariail, Jr., of Greenville, for Appellants.
Ronald W. McKinney, of Greenville, for Respondents.
GEATHERS, J.:
Appellants, Janet Robarge (Robarge) and the Parker Sewer and Fire Subdistrict, formerly known as the Parker Water and Sewer Subdistrict (the District), brought this declaratory judgment action challenging the validity of a requirement for the execution of an annexation covenant as a condition for receiving water service from the Greenville Commission of Public Works (Greenville Water System).[1] Appellants sought a declaratory judgment that the condition violates an agreement that requires the Greenville Water System to provide water service to the District's properties. The circuit court denied Appellants' summary judgment motion and granted the City's summary judgment motion. Appellants now seek review of these rulings. We affirm.
*409 FACTS/PROCEDURAL HISTORY
The District is a special purpose district in Greenville County that was originally authorized to operate water and sewer systems in its service area. See Act No. 1087, § 3, 1934 S.C. Acts 1997, 2000; Act No. 443, § 6, 1929 S.C. Acts 864, 866. In 1961, the General Assembly enacted legislation authorizing special purpose districts in Greenville County to sell their water distribution systems to the City of Greenville. Act No. 559, 1961 S.C. Acts 1114. Notably, the Act authorized special purpose districts to impose terms and conditions on the sale, including covenants to supply water to district properties. Act No. 559, § 2, 1961 Acts 1114-15. In 1971, the District entered into an agreement with the City and the Greenville Water System for the sale of the District's water distribution system. It is undisputed that the Greenville Water System actually provided water service to the District's properties both before and after the execution of the 1971 agreement.
In 2002, the Greenville Water System adopted a policy requiring owners of real property within a one-mile radius of the City to execute a covenant consenting to annexation as a condition of receiving any new connection (tap) to the water system's lines.[2] The annexation covenant requirement does not apply to new accounts relating to an existing tap or to owner-occupied residential property.
After the Greenville Water System adopted the annexation policy, Robarge sought a new tap to the water system for a strip shopping mall within the District's service area. The Greenville Water System refused to allow the new tap because Robarge would not sign an annexation covenant. Likewise, the Greenville Water System denied water service to the District for a sewer pump station within the District's service area because the District's representatives refused to sign an annexation covenant.
Appellants brought a declaratory judgment action against the City and the members of City Council, seeking a declaration that the annexation covenant requirement violated the 1971 agreement for the sale of the District's water distribution *410 system. Appellants argued that the 1971 agreement required the Greenville Water System to provide water service to the District's properties and did not authorize the imposition of an annexation covenant requirement as a condition for receiving service. Appellants also argued that the annexation covenant requirement violated provisions of the agreement that require equal treatment of customers located outside the city limits.
The circuit court concluded that the 1971 agreement implicitly authorized the imposition of the annexation covenant requirement on requests for new taps. The circuit court also concluded that the annexation covenant requirement did not run afoul of the equal treatment provisions of the 1971 agreement or of the Equal Protection clauses of the United States Constitution and the South Carolina Constitution. Based on these conclusions, the circuit court granted the City's summary judgment motion and denied Appellants' summary judgment motion. This appeal followed.
ISSUES ON APPEAL
1. Does the 1971 agreement authorize the imposition of the annexation covenant requirement on requests for new taps to the water system?
2. Does the annexation covenant requirement unlawfully discriminate between different classes of owners of District properties?
STANDARD OF REVIEW
On appeal from the grant of a summary judgment motion, this Court applies the same standard as that required for the trial court under Rule 56(c), SCRCP. Brockbank v. Best Capital Corp., 341 S.C. 372, 379, 534 S.E.2d 688, 692 (2000). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Adamson v. Richland County Sch. Dist. One, 332 S.C. 121, 124, 503 S.E.2d 752, 753 (Ct.App.1998). To determine if any genuine issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Sauner v. Pub. Serv. Auth. of South Carolina, 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003).
*411 LAW/ANALYSIS
I. Contractual Authorization to Impose Conditions on Water Service
Appellants assert that the 1971 agreement imposed an unconditional obligation on the Greenville Water System to provide water service to properties located in the District. Appellants argue that the annexation covenant requirement places a condition on the provision of water service that was not authorized by the agreement. We disagree.
"The construction of a clear and unambiguous contract is a question of law for the court." Hawkins v. Greenwood Dev. Corp., 328 S.C. 585, 592, 493 S.E.2d 875, 878 (Ct.App.1997) (internal citations omitted). "The purpose of all rules of contract construction is to ascertain the intention of the parties[,] and that intention must be gathered from the entire agreement and not from any one particular phrase. . . ." Reyhani v. Stone Creek Cove Condo. II Horizontal Prop. Regime, 329 S.C. 206, 212, 494 S.E.2d 465, 468 (Ct.App.1997).
The 1971 agreement as a whole imposes on the Greenville Water System an obligation to provide water service to those taps that were in existence at the time of the agreement's execution. However, as to taps added after the date of the agreement, the Greenville Water System's obligation to provide water service is conditional. Paragraph IX of the agreement provides, in pertinent part, as follows:
[F]rom the date of this agreement and thereafter any additions, changes, or modifications of the water system within the District shall be subject to the prevailing rules, regulations, policies and approval of the Commission.
This language authorizes the Greenville Water System to impose reasonable conditions on the provision of water service for any additions made to the water system after the date of the agreement. Similarly, paragraph VI(c) specifically subjects new water lines to the "then prevailing Commission policy" concerning the acceptance of new lines:
The Commission shall have no duty or obligation to install water lines in undeveloped areas or prospective subdivisions in the District, but ... if such lines are installed therein by private developers in accordance with the specifications, *412 policies, rules, and regulations of the Commission, such lines will be accepted in accordance with the then prevailing Commission policy concerning such.
Therefore, contrary to Appellants' assertion, this agreement is distinguishable from the agreement in Touchberry v. City of Florence, 295 S.C. 47, 367 S.E.2d 149 (1988). In Touchberry, the South Carolina Supreme Court held that a property owner who had applied to receive water service from the City of Florence was a third-party beneficiary of a franchise agreement between the Florence County Council and the City of Florence. Id. at 48-49, 367 S.E.2d at 150. The agreement granted the City of Florence the exclusive right to provide water service in a municipal service area (MSA) in which the plaintiff's property was located. The agreement required the City of Florence to provide water service in the MSA whenever individually requested, conditioned only upon it being physically and economically feasible to do so. It was uncontested that it was feasible for the City to provide the service to the plaintiff. Therefore, the Court reversed the circuit court's finding that the plaintiff's property had to be annexed in order to receive service under the City's agreement with Florence County Council. Id. at 48-49, 367 S.E.2d at 149-50.
In a later opinion, Sloan v. City of Conway, 347 S.C. 324, 555 S.E.2d 684 (2001), the Court expounded on its analysis in Touchberry and noted that there is nothing in the Touchberry opinion holding generally that a city cannot require annexation as a contractual condition for water service. Sloan, 347 S.C. at 333, 555 S.E.2d at 688. The Court explained that, in Touchberry, the City of Florence could not require annexation as a condition for providing water service because the customers were already entitled to municipal water service as third-party beneficiaries of the agreement between the City and the service authority in the disputed area. Id. at 332, 555 S.E.2d at 688.
Here, the unconditional obligation to provide water service applies only to those taps in existence at the time of the agreement's execution. As to any additions made to the system after the agreement's execution, the agreement expressly conditions the obligation to provide service based on the prevailing rules, regulations, policies, and approval of the *413 Greenville Water System. A new tap qualifies as an addition to the water system even if it is connected to a water line that was in existence at the time of the agreement's execution. See Merriam-Webster's Collegiate Dictionary 14 (11th ed. 2003) (defining "addition" as "a part added (as to a building or residential section)"). When the Greenville Water System adopted the annexation policy in 2002, that policy became part of the prevailing policies to which future additions to the water system would be subjected. Therefore, the 1971 agreement authorizes the imposition of the annexation covenant requirement on new tap requests submitted after the requirement's adoption.
II. Unlawful Discrimination
Appellants also argue that the annexation covenant requirement unlawfully discriminates between owners of District properties within the one-mile radius of the City and owners of District properties outside of the one-mile radius. We disagree.
Paragraphs VI(d), VII, and IX of the agreement require the Greenville Water System to treat District customers the same as customers in other areas outside the City. Further, paragraph VI(d) arguably requires equal treatment of all customers within the District with regard to the rates charged for water service. However, nothing in the agreement prohibits different classifications within the District's service area for purposes of rules or policies other than ratemaking.
Additionally, the Equal Protection clauses of the United States Constitution and the South Carolina Constitution allow for disparate treatment of different classes as long as the classification is a reasonable one and is rationally related to a legitimate purpose. See Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 480, 636 S.E.2d 598, 613 (2006); State v. Solomon, 245 S.C. 550, 572, 141 S.E.2d 818, 830 (1965); Town of Iva ex rel. Zoning Adm'r v. Holley, 374 S.C. 537, 541, 649 S.E.2d 108, 110-11 (Ct.App.2007). The City's use of a one-mile radius as a determining factor for potential annexation is rationally related to the City's goal of managed growth. Therefore, the annexation covenant requirement does not *414 unlawfully discriminate between different classes of owners of District properties.
CONCLUSION
The circuit court properly granted summary judgment to the City. There is no genuine issue as to any material fact, and the Greenville Water System is entitled to judgment as a matter of law concerning the application of the provisions of the 1971 agreement to the annexation covenant requirement.
Accordingly, the circuit court's order is
AFFIRMED.
WILLIAMS, J., and PIEPER, J., concur.
NOTES
[1] Appellants named the City of Greenville (City) and the members of Greenville's City Council as defendants. The Greenville Water System is a municipal entity separately constituted from Greenville's City Council.
[2] The covenant authorizes annexation of the subject property whenever it otherwise qualifies for annexation under state law, subject to City Council's approval. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631101/ | 164 P.3d 982 (2007)
2007-NMCA-094
Jose PINCHEIRA and Olivia Pincheira, Plaintiffs-Appellees,
v.
ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
No. 26,044.
Court of Appeals of New Mexico.
June 13, 2007.
Certiorari Granted July 27, 2007.
*984 Berardinelli Law Firm, David J. Berardinelli, LLC, Santa Fe, NM, for Appellees.
Modrall, Sperling, Roehl, Harris & Sisk, P.A., Lisa Mann, Jennifer A. Noya, Albuquerque, NM, Steptoe & Johnson LLP, Bennett Evan Cooper, Jon T. Neumann, Phoenix, AZ, for Appellant.
Certiorari Granted, No. 30,490, July 27, 2007.
OPINION
CASTILLO, Judge.
{1} In this case, we are presented with a question of first impression: What is the procedure to be followed by a New Mexico trial court in evaluating the protection, if any, to be given to an alleged trade secret during discovery? This question comes to us on the entry of a default judgment on liability *985 against Defendant, Allstate Insurance Company, which holds Defendant in contempt for failure to comply with the trial court's orders requiring full production of documents requested by Plaintiffs, Jose and Olivia Pincheira, (McKinsey documents). Defendant challenges the entry of the default judgment as a contempt sanction and raises the following issues on appeal: (1) whether the trial court abused its discretion in requiring Defendant to produce the McKinsey documents without a protective order or without an evidentiary hearing and (2) whether the trial court abused its discretion in entering a default judgment as a sanction for Defendant's technical contempt. We reverse and remand on the first issue. For that reason, we do not reach the merits of the second issue in this case.
I. BACKGROUND
{2} Although the question on appeal is limited to the disposition of a discovery request, we provide context for our analysis by first setting out a detailed history of the events leading up to the appeal.
A. Preliminary Case
{3} This case began almost ten years ago, when Plaintiffs were injured by an uninsured motorist in an accident that occurred on December 2, 1997. Plaintiffs made a claim for uninsured motorist (UM) coverage, but based on Plaintiffs' written rejection of UM coverage when they purchased their insurance policy, Defendant denied the claim. Plaintiffs filed a declaratory relief action against Defendant and its agent, the Yount Agency. Trial was held on the question of coverage. The trial court determined that the rejection of UM coverage was invalid because it had been based on poor and erroneous agent information and, further, because the rejection had occurred in a manner that violated public policy, applicable case law, and the insurance statutes, rules, and regulations of New Mexico. Based on this determination, the trial court concluded that the Plaintiffs had UM coverage, and the court therefore granted declaratory judgment against Defendant and the Yount Agency. Ultimately, Plaintiffs recovered $30,000 in UM coverage for the accident, plus attorney fees.
B. Case on Appeal
{4} We now turn to the case on appeal. Following the declaratory judgment, a complaint (Complaint) was filed by Plaintiffs and other parties, who have since been dismissed from the case and are not part of this appeal. The Complaint named Defendant and members of the Yount Agency as defendants and sought damages for fraud, constructive fraud, civil conspiracy to defraud or violate statute, violation of fiduciary duty, professional negligence by an insurance agent, failure of the agent to procure insurance, insurance bad faith, bad faith claims practices, violations of insurance code, and unfair trade practices. Plaintiffs' basic position is that Defendant and its agents, as directed through their training process, routinely provide false or misleading information concerning the benefits and advantages of UM coverage in order to induce retirees like Plaintiffs to reject UM coverage when purchasing their automobile insurance.
{5} The record in this appeal consists of several volumes related to the vigorous litigation of Plaintiffs' claims. Plaintiffs and Defendant filed discovery requests, objections, and motions to compel and requested hearings on their motions. Orders were entered. The parties also filed numerous non-discovery-related motions that were acted upon by the trial court. The issues on appeal are limited to Plaintiffs' second request for production of documents, specifically the McKinsey documents. Because the request was made to Defendant only, there are no further references in this opinion to the members of the Yount Agency who are the remaining defendants in the case. We turn to the discovery process related to the McKinsey documents.
C. Request for Production of the McKinsey Documents
{6} On July 17, 2001, Plaintiffs served Defendant with their second request for production of documents. In late August 2001, Defendant timely responded to the request and made numerous objections to the documents *986 requested. Because the objection to this request and the pleadings emanating from the objection form the basis for the parties' arguments on appeal, we set out the contents of the applicable pleadings.
{7} The dispute on appeal relates exclusively to Plaintiffs' Request for Production No. 5 (Request No. 5), which reads as follows:
Please produce a true and correct copy of the CCPR implementation manual together with each and every amendment or supplement thereto issued or published or created from 1994 to the present; in connection therewith please also produce each and every report, blue book, paper or document in hard copy or digital form produced by or contributed to by McKinsey & Company which refers to or discusses the creation of CCPR for [Defendant], the intent of CCPR, the goals of CCPR or the implementation of CCPR, and which was generated at any time between 1990 and 1996.
{8} Defendant objected to Request No. 5, based "on the grounds that it seeks confidential or proprietary information or information, some of which is protected by contractual licensing agreements, and [that] Plaintiffs have previously refused to enter into an appropriate protective order in this case." Defendant also objected on the grounds that the request was "overly broad, unduly burdensome, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence, insofar as it requests information having nothing to do with rejection of uninsured motorist coverage, so the information sought has nothing to do with the allegations of Plaintiffs' Complaint."
{9} In early September 2001, Plaintiffs filed a motion to compel, followed by a memorandum brief in support of the motion. In the memorandum, Plaintiffs acknowledged that Defendant's objections to Request No. 5 were based on Defendant's contention that the McKinsey documents were trade secrets and that their production would be burdensome, but Plaintiffs nevertheless argued that disclosure would be appropriate in these circumstances.
{10} In late September 2001, Defendant responded by filing its memorandum in opposition to Plaintiffs' motion to compel. In this motion, Defendant generally opposed production of the McKinsey documents on a number of grounds but requested that if the court did order production of these particular documents, it also enter an order to protect their confidentiality as trade secrets. The opening paragraph summarizes Defendant's position:
As discussed more fully below, Plaintiffs' Second Requests are irrelevant and overly broad, unduly burdensome, expensive and exceed the scope of permissible discovery under SCRA 1-026. Plaintiffs' Second Motion to Compel should, therefore, be denied in its entirety. Alternatively, in the event this Court orders production of any documents responsive to Plaintiffs' Second Request No. 5, those documents are to be produced only subject to conditions of strict confidentiality and non[ ]disclosure, because they contain trade secrets and proprietary information.
{11} Part IV of Defendant's memorandum response discusses Defendant's objections to Request No. 5, in relative detail, including citation of case law and attachment of the affidavit of Christine Sullivan, Assistant Vice President in the Property-Casualty Claim Service Organization at Defendant's home office. The memorandum response argues that the McKinsey documents specifically qualify as trade secrets under New Mexico's Uniform Trade Secrets Act (TSA), NMSA 1978, §§ 57-3A-1 to -7 (1989). In addition, the memorandum cites the common law factors used in determining whether a party possesses a trade secret entitled to protection as set forth in the Restatement (First) of Torts § 757 cmt. b, at 6 (1939). Sullivan, in her affidavit, asserts that the McKinsey documents "are confidential, proprietary, and trade secrets [sic] and are treated as such by [Defendant]." Sullivan states that
[Defendant] believes its procedures for investigating, handling, adjusting, and evaluating casualty claims give [Defendant] an advantage in attracting and keeping policy-holders which competitors do not share.
. . . .
*987 [Defendant] believes these procedures give it a competitive edge with respect to procedures used by other insurance companies with which it competes, and provides a significant benefit to its shareholders and policyholders. This benefit, and the investment that created it, would be lost if these materials were obtained or disclosed to . . . competitors.
{12} The affidavit also details the measures Defendant uses to maintain the confidentiality of the information requested, including strict limiting of access, printing confidentiality notices on the documents, entering into agreements of non-dissemination with employees, and keeping the materials in secure locations. In the conclusion of the response memorandum, Defendant requested that the trial court deny the second motion to compel or, alternatively, in accordance with Rule 1-026(C)(7) NMRA and Rule 11-508 NMRA, subject any produced documents to conditions of strict confidentiality and nondisclosure because they contain trade secrets and proprietary information. Plaintiffs filed no reply to Defendant's response memorandum or to the Sullivan affidavit.
D. Hearings and Order
{13} As we explained above, the parties had filed a number of motions before Plaintiffs filed their second request for production. The trial court set hearing dates of October 25 and 30, 2001, to consider Defendant's pending motions, which included Defendant's discovery motions and other motions not pertinent to this appeal.
{14} Plaintiffs' motion to compel production of the McKinsey documents was not listed as an item to be considered on those hearing dates. At the hearing on October 30, 2001, the parties agreed to address Plaintiffs' motion to compel production of the McKinsey documents. Plaintiffs challenged Defendant's position that the McKinsey documents were entitled to protection as trade secrets. Plaintiffs presented documentary evidence and live testimony. Defendant objected to introduction of that evidence. Defendant's objections were overruled.
{15} Given that Plaintiffs had not challenged the Sullivan affidavit prior to the hearing, Defendant requested the opportunity to present its own evidence and asked the trial court to reconvene the hearing at a later date for that purpose. Alternatively, Defendant requested that the trial court allow production of the documents, subject to conditions of confidentiality and use only in this case. Ruling that the Sullivan affidavit was too general and conclusory to support a protective order under the "good cause" standard established in Krahling v. Executive Life Insurance Co., 1998-NMCA-071, ¶¶ 14-17, 125 N.M. 228, 959 P.2d 562, the trial court orally ordered Defendant to produce the McKinsey documents without protection.
{16} On November 9, 2001, the parties filed a number of motions. Plaintiffs filed notice that on November 13, 2001, presentment of a form order compelling production of the McKinsey documents would take place. Defendant filed an expedited motion for evidentiary hearing, a motion for reconsideration of Plaintiffs' second motion to compel unprotected production of the McKinsey documents, and a motion for stay or interim protective order, pending production after the evidentiary hearing. In its memorandum in support of these motions, Defendant distinguished Krahling and requested that an evidentiary hearing be set on the merits of whether the McKinsey documents were entitled to a protective order. Defendant attached an offer of proof.
{17} At the presentment hearing, the trial court signed Plaintiffs' form of order. This order required full production of the McKinsey documents by December 31, 2001, without protection (November 2001 Order). In addition, the trial court set two hearings: one to be held December 7, 2001, on Defendant's motion to reconsider and a full-day evidentiary hearing to be held December 28, 2001.
{18} After the presentment hearing, the parties filed additional pleadings, relating to the issues to be heard during the December hearings. Only the first hearing was held, and this resulted in an order filed on December 18, 2001, which denied Defendant's motion for reconsideration as "not well taken" *988 and canceled the evidentiary hearing set for December 28, 2001.
E. Interim Protective Order and Appeals
{19} Also on December 18, 2001, Defendant requested a stay to maintain the status quo, pending appellate review by petition for writ of error to this Court from the November 2001 Order. Alternatively, Defendant argued for an order to produce the McKinsey documents, subject to an interim protective order. Plaintiffs objected.
{20} A hearing on the motion for stay was held on December 27, 2001, after which, on January 7, 2002, the trial court ordered Defendant to produce the McKinsey documents, subject to an interim protective order, which allowed Plaintiffs to utilize these documents for purposes of this litigation but precluded dissemination of the documents to any parties outside the litigation (Interim Protective Order). It further stated that the Interim Protective Order "shall remain in effect until fourteen days following the completion of appellate review of the questions presented in [Defendant]'s Petition for Writ of Error." Defendant produced the McKinsey documents on January 2, 2002, with a confidentiality overlay.
{21} On January 25, 2002, this Court granted the petition for writ of error and assigned the case to the general calendar. The writ was quashed in a formal opinion filed on January 30, 2004, Pincheira v. Allstate Insurance Co. (Pincheira I), 2004-NMCA-030, ¶ 7, 135 N.M. 220, 86 P.3d 645, wherein this Court determined that the petition for writ of error was untimely filed. On the same day, this Court also filed King v. Allstate Insurance Co., 2004-NMCA-031, ¶¶ 13, 16-18, 135 N.M. 206, 86 P.3d 631, holding that orders compelling discovery cannot be reviewed by writ of error under Rule 12-503 NMRA. King also held that an order compelling discovery can only be appealed as an interlocutory appeal under Rule 12-203 NMRA or as an appeal as of right from a civil or criminal contempt sanction imposed for refusing to comply with a discovery order. King, 2004-NMCA-031, ¶ 19, 135 N.M. 206, 86 P.3d 631.
{22} The Interim Protective Order expired fourteen days after the March 5, 2004, denial of certiorari in Pincheira I. Pincheira v. Allstate Ins. Co., 2004-NMCERT-003, 135 N.M. 319, 88 P.3d 261. On March 11, 2004, within fourteen days of denial of the petition for certiorari, Defendant moved for trial court clarification or extension of the Interim Protective Order so that Defendant could obtain an appeal of the November 2001 Order. In accordance with the procedure recognized in King, Defendant requested entry of an order holding it in contempt under NMSA 1978, § 39-3-15(A) (1966), for respectfully refusing to comply with Judge Encinias's discovery order.
{23} Plaintiffs' counsel returned to Defendant's counsel the McKinsey documents, which had been marked "confidential" and produced on January 2, 2002, under the Interim Protective Order. Plaintiffs' counsel also filed a notice of return of documents, stating that "Plaintiffs have returned these [previously produced] documents and demanded production of clean, legible copies without the confidentiality overlay." Plaintiffs also filed a petition for an order to show cause why default judgment under Rule 1-037 NMRA should not be entered against Defendant for its "contumacious" and sanctionable use of the contempt method specified in King.
{24} On June 4, 2004, the trial court entered an order requiring Defendant to produce an unprotected set of the McKinsey documents; the order stated that if Defendant refused, the trial court would enter default judgment on liability (June 2004 Order). Defendant declined to produce the unprotected documents for the express purpose of obtaining a contempt sanction and thereby securing appellate review. On July 8, 2004, the trial court entered default judgment on liability and reserved all damages issues for trial. Defendant filed a notice of appeal from the default judgment.
{25} In this Court, we dismissed the appeal because the default judgment on liability was a nonfinal order, since the damages issues remained. The Supreme Court granted Defendant's petition for writ of certiorari, and after full briefing and oral argument, the *989 Supreme Court remanded the case to the trial court on May 20, 2005, for the purpose of determining "whether its default judgment on liability, issued July 8, 2004, was intended as an order of contempt within the meaning of King []." On remand, after full briefing and hearing on July 15, 2005, the trial court entered an order clarifying that its default judgment on liability was a contempt sanction intended to permit Defendant to take an appeal as provided in King. On August 11, 2005, Defendant timely filed its notice of appeal from this ruling.
II. DISCUSSION
A. Scope of Review
{26} Plaintiffs requested production of the McKinsey documents in their Request No. 5, served on Defendant on July 17, 2001. The trial court resolved the parties' disputes about production when it ordered Defendant to produce the McKinsey documents without protection in the November 2001 Order and again in subsequent orders dated December 18, 2001, January 7, 2002, and June 4, 2004. Because the subsequent orders relate to the same subject matter production of the McKinsey documents without protection review of the November 2001 Order will necessarily resolve the issues related to the subsequent orders.
B. Standard of Review
{27} The standard of review for discovery orders is abuse of discretion. Piña v. Espinoza, 2001-NMCA-055, ¶ 12, 130 N.M. 661, 29 P.3d 1062; see also Pub. Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166. To the extent a trial court's discretionary decision is premised on the construction of a privilege, however, review of that decision presents a question of law, subject to de novo review. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166; see also N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶¶ 6-8, 127 N.M. 654, 986 P.2d 450.
C. Discovery Rules and the Trade Secret Privilege
{28} Defendant's position is that the McKinsey documents are protected by privilege because they are trade secrets and that the trial court should have subjected their production to a protective order. We begin by reviewing the rules and statutes that inform our decision in this case. Rule 1-026(B)(1) sets out the test for what information is discoverable: "to be discoverable, information must be (1) relevant to the subject matter involved in the pending action and (2) not privileged." Piña, 2001-NMCA-055, ¶ 14, 130 N.M. 661, 29 P.3d 1062 (internal quotation marks and citation omitted). If the information requested is privileged, it is not subject to discovery, except as allowed by the privilege. "The rules with respect to privileges apply at all stages of all actions, cases and proceedings." Rule 11-1101(C) NMRA.
{29} Privileges in New Mexico are limited to those recognized by the Constitution, the Rules of Evidence, or other rules of the Supreme Court. See Estate of Romero v. City of Santa Fe, 2006-NMSC-028, ¶ 8, 139 N.M. 671, 137 P.3d 611 (noting the differences between privileges under the Federal Rules of Evidence and the New Mexico Rules of Evidence); see also Ammerman v. Hubbard Broad., Inc., 89 N.M. 307, 312, 551 P.2d 1354, 1359 (1976) (holding that as reflected in Rule 11-501 NMRA, privileges are limited to those required by the state constitution and the rules promulgated by the New Mexico Supreme Court). While the New Mexico Rules of Evidence generally follow the Federal Rules of Evidence, "New Mexico's approach to privileges is a special product of our state law jurisprudence." Lyons, 2000-NMCA-077, ¶ 12, 129 N.M. 487, 10 P.3d 166.
{30} New Mexico has a specific rule of evidence that establishes the trade secret privilege:
11-508. Trade secrets.
A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent others from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the court shall *990 take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
Rule 11-508. The language of Rule 11-508 is almost identical to Supreme Court Standard 508, a proposed rule of evidence that was promulgated by the United States Supreme Court. 26 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Rejected Rule 508, at 282, & § 5641, at 284 (1992). However, this rule was never adopted by Congress and is not part of the Federal Rules of Evidence. In re Cont'l Gen. Tire, Inc., 979 S.W.2d 609, 611 (Tex.1998) ("Congress did not adopt Standard 508 as a federal rule of evidence[.]").
{31} Now we turn to trade secrets. The Restatement (First) of Torts § 757 provides one definition of "trade secret." In relevant portion, Section 757 provides the following:
A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.
Restatement (First) of Torts § 757 cmt. b, at 5. The Restatement also lists the following six factors, which can be used to determine whether certain information constitutes a trade secret:
(1) the extent to which the information is known outside of [the] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken by [the owner] to guard the secrecy of the information; (4) the value of the information to [the business] and to [its] competitors; (5) the amount of effort or money expended . . . in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Restatement (First) of Torts § 757 cmt. b, at 6.
{32} In 1989, the New Mexico Legislature recognized the need to protect trade secrets and enacted the TSA. Under the TSA, "trade secret" is defined as
information, including a formula, pattern, compilation, program, device, method, technique or process, that:
(1) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Section 57-3A-2(D).
{33} In trade secret litigation, a court's role in protecting trade secrets is found in Section 57-3A-6. While no specific method of protection is mandated, the TSA directs a court to "preserve the secrecy of an alleged trade secret by reasonable means" and lists several methods by which this can be accomplished: "granting protective orders in connection with discovery proceedings, holding in camera hearings, sealing the records of the action and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval." Id.
{34} Further, we observe that trade secrets are protected from disclosure under the Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2005). "Every person has a right to inspect public records of this state except . . . trade secrets[.]" Section 14-2-1(A)(6). While we recognize that this case does not deal with the inspection of public records, this exception is another example of the strong public policy in New Mexico supporting the confidentiality of trade secrets.
D. Privilege and Policy in Favor of Liberal Discovery
{35} With this as a background, we evaluate the trade secret privilege in light of the long-recognized policy in favor of liberal and open discovery. See, e.g., Salitan v. Carrillo, 69 N.M. 476, 480-81, 368 P.2d 149, *991 152 (1961) (stating that the purposes of the rules of discovery are "[t]o clarify the basic issues between parties[] and to ascertain the facts or information as to the existence or whereabouts of facts relative to those issues"). Relevant information that is "not privileged" is discoverable. Rule 1-026(B)(1). Rule 11-508 specifically recognizes the trade secret privilege and the right of a trade secret's owner, an agent, or an employee to refuse to disclose and prevent others from disclosing the trade secret. Rule 1-026(C)(7) recognizes that a protective order may be entered to protect a trade secret, as well as other confidential information, from disclosure or to permit disclosure in a designated way. Our case law has long recognized that liberal discovery procedures are to be construed consistent with recognized privileges. See, e.g., Salitan, 69 N.M. at 481, 368 P.2d at 152 ("The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial." (emphasis added)). With these rules and statutes and this case law as our background, we now address the issues in this case.
E. New Mexico Rule 11-508, the Trade Secret Privilege
{36} New Mexico courts have not previously had occasion to address the application of Rule 11-508 or its interplay with Rule 1-026(C)(7). We begin with the language of Rule 11-508. As explained above, this language was rejected by Congress and therefore is not included in the Federal Rules of Evidence. It was adopted, however, in some version by several states including New Mexico. In re Cont'l, 979 S.W.2d at 611 (citing to twenty states that have adopted some version of the rejected Rule 508); see 26 Wright & Graham, supra, § 5641, at 284-286 (discussing the states that have adopted a form of the rejected Rule 508).
{37} We observe that in federal court, a trade secret is not privileged, and therefore the party resisting discovery has no other option except to file a motion for protection under Federal Rule of Civil Procedure 26(c), which requires that the movant show "good cause" for the motion. Under New Mexico law, however, trade secrets are granted a privilege; therefore, according to the language of Rule 1-026(C), the party resisting discovery may object to the discovery request by asserting the protection of the privilege without having to file a motion for protective order. See 26 Wright & Graham, supra, § 5642, at 290 ("[I]f the trade secret doctrine is now a `privilege,' the owner need not move for a protective order under Civil Rule 26(c)(7)[.]"). This does not preclude the filing of a motion for protective order, but rather provides an additional option to a party who does not want to disclose a trade secret.
{38} We first look to other jurisdictions with trade secret privileges similar to New Mexico's for cases that have considered the scope of the rule. We begin with Bridgestone/Firestone, Inc. v. Superior Court, 7 Cal. App. 4th 1384, 9 Cal. Rptr. 2d 709 (1992). Under the California Rules of Evidence, "the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice." Cal. Evid.Code § 1060 (West, Westlaw through Ch. 1 of 2007 Reg. Sess. urgency legislation). This language is similar to the language in Rule 11-508, the New Mexico trade secret privilege. The California privilege protects a "trade secret" as defined in part of California's Uniform Trade Secrets Act, Cal. Civ.Code § 3426.1(d) (West, Westlaw through Ch. 1 of 2007 Reg. Sess. urgency legislation). This is the same definition of "trade secret" as that found in New Mexico's TSA. Section 57-3A-2(D). In both states, the allowance of the privilegethe refusal to disclosemust not "tend to conceal fraud or otherwise work injustice." Rule 11-508; Cal. Evid.Code § 1060. See generally State Farm Fire & Cas. Co. v. Superior Ct., 54 Cal. App. 4th 625, 62 Cal. Rptr. 2d 834, 851-52 (1997) (allowing disclosure of a trade secret because the facts supported disclosure under the fraud or injustice exception and because the information was so minimal that there was no danger it could be used by another to obtain economic value in competition with the insurance company).
*992 {39} As explained in Bridgestone, the party claiming the privilege has the initial burden of establishing its existence, i.e., that the information is a trade secret. 9 Cal. Rptr. 2d at 713. Thereafter, the party seeking disclosure "must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element" of the case. Id. The California appellate court looked to the phrase "`work injustice'" to determine the burden to be met by the requesting party; proof that the trade secret is "generally relevant" to the subject matter of the action or helpful in preparation of a party's case is insufficient. See id. at 712. Rather, allowance of the privilege may be deemed to "`work an injustice'" only if it appears the information sought is directly relevant to a material element of the cause of action (or defense) and necessary because the party opposing the claim of privilege would be unfairly disadvantaged in proving its case, absent access to the trade secret. Id. at 713. It must be reasonable to conclude under the circumstances that the information sought is essential to a fair resolution of the lawsuit. Id. Once the party requesting disclosure establishes relevance and necessity, the burden then shifts back to the party claiming the privilege to demonstrate why a protective order would not suffice (e.g., permitting restricted disclosure to specified persons and solely for purposes of the lawsuit). Id. Less intrusive alternatives to disclosure may be proposed by either party, but the party claiming the privilege has the burden of demonstrating "that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure." Id. at 713-14.
{40} Florida, which also has a trade secret privilege with language similar to the New Mexico privilege, considered the scope of the privilege in Rare Coin-It, Inc. v. I.J.E., Inc., 625 So. 2d 1277 (Fla.Dist.Ct.App.1993) (per curiam). Compare Fla. Stat. § 90.506 (West, Westlaw through Ch. 1(End) of the 2007 Special `A' Session of the Twentieth Legislature) with Rule 11-508. Florida applies a test similar to the California test: when, based on the assertion of a trade secret privilege, a party resists production, the trial court must first determine whether the requested production constitutes a trade secret; if so, the burden shifts to the party seeking production to show reasonable necessity for the requested materials. Rare Coin-It, 625 So.2d at 1278. In Rare Coin-It, the parties agreed that the source code requested was a trade secret, but the party requesting the discovery failed to show reasonable necessity for its production; therefore, the Florida appellate court quashed the order granting discovery of the source code. Id. at 1279.
{41} Texas, too, has a trade secret privilege similar to that of New Mexico. Compare Tex.R. Evid. 507 with Rule 11-508. The Texas Supreme Court considered the scope of the privilege in In re Continental. Relying on Bridgestone and Rare Coin-It, the court in In re Continental provided the following analysis:
First, the party resisting discovery must establish that the information is a trade secret. The burden then shifts to the requesting party to establish that the information is necessary for a fair adjudication of its claims. If the requesting party meets this burden, the trial court should ordinarily compel disclosure of the information, subject to an appropriate protective order. In each circumstance, the trial court must weigh the degree of the requesting party's need for the information with the potential harm of disclosure to the resisting party.
In re Cont'l, 979 S.W.2d at 613 (footnote omitted); see also In re Bass, 113 S.W.3d 735, 737 (Tex.2003) (relying on the test of shifting burdens first enunciated in In re Continental); John Paul Mitchell Sys. v. Randalls Food Mkts., Inc., 17 S.W.3d 721, 737 (Tex.App.2000) ("The trial court is to apply a balancing test that employs shifting burdens. The party resisting discovery must first establish that the information is a trade secret. The burden then shifts to the requesting party to show that the information is necessary for a fair adjudication of its claims." (internal quotation marks and citation omitted)).
*993 {42} The court in In re Continental referred to the two competing interests that must be accommodated by application of the trade secret privilege; trade secrets are an important property interest, worthy of protection, but at the same time, the judicial system requires that the parties be allowed to elicit facts necessary for a full and fair adjudication of lawsuits. 979 S.W.2d at 612. To reconcile these two important interests, the court looked to the language of the privilege. We, too, look to the language in New Mexico's Rule 11-508. The privilege is available if its allowance "will not tend to conceal fraud or otherwise work injustice." Id. Fraud is not an issue in our case; therefore, the privilege will be allowed if it will not otherwise work an injustice on the parties. If total nondisclosure could negatively affect the full and fair adjudication of the lawsuit, the language in the second sentence of the privilege acknowledges the need for disclosure, but with protection. "When disclosure is directed, the court shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require." Id. We read this to allow the trial court to evaluate the circumstances of the case and fashion a disclosure order that balances the parties' interests.
{43} Although the court in In re Continental considered the approach taken in California and Florida to be "consistent with the federal courts' treatment of trade secrets," we are not entirely in agreement. See 979 S.W.2d at 612. In re Continental appears to base its conclusion on several earlier federal cases that defined the good cause standard in Rule 26(c) in terms of harm and required the resisting party to show that disclosure of the information might be harmful or create a competitive disadvantage for the resisting party. See Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 325-26 (10th Cir.1981); Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan.1996) (mem. and order). Several of the more recent federal cases, however, have interpreted good cause as requiring the resisting party to show that disclosure of the information will result in "`a clearly defined and serious injury.'" Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.1994) (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984)). This expanded standard is the same standard articulated in Krahling, see 1998-NMCA-071, ¶¶ 14-17, 125 N.M. 228, 959 P.2d 562, the same standard used by the trial court in ordering disclosure, and the same standard Plaintiffs urge us to apply in this appeal.
{44} We need not address the meaning of "clearly defined and serious injury" in the context of trade secrets because we are relying on the language in Rule 11-508, rather than the good cause standard set out in federal Rule 26(c) and in our own Rule 1-026(C). Similarly, we do not deem Krahling to be controlling under these circumstances because it addressed the good cause standard in Rule 1-026(C), not the trade secrets privilege in Rule 11-508. The tests enunciated in Bridgestone, Rare Coin-It, and In re Continental are all based on the language of the privilege itself, which is the approach we adopt in New Mexico. The analysis we adopt today requires the resisting party to establish the existence of a trade secret but does not require that proof of harm be shown as an independent element before the burden shifts. This makes sense to us for several reasons.
{45} Under the federal rules, there is only one method available for protecting trade secrets and that is by filing a motion for good cause shown and requesting a protective order under Rule 26(c). If a party resisting disclosure of trade secrets in New Mexico were required to file for a protective order under Rule 1-026(C) to effect the privilege, the trade secret privilege and the language therein would become meaningless. We decline to adopt such an interpretation. See State v. Johnson, 1998-NMCA-019, ¶ 22, 124 N.M. 647, 954 P.2d 79 (holding that this Court rejects interpretations of statutes that render parts of them meaningless or mere surplusage); see also In re Dominick Q., 113 N.M. 353, 354, 826 P.2d 574, 575 (Ct.App. 1992) (stating that rules of statutory construction apply equally to procedural rules). Trade secrets are protected by the privilege and are treated differently from "other confidential research, development or commercial *994 information," for which Rule 1-026(C) is the only means by which a party can seek protection. Rule 1-026(C)(7). Rule 1-026(C) requires a showing of good cause.
{46} Our reading of Krahling further supports this conclusion. In Krahling, the trial court denied a motion to lift a discovery order imposing confidentiality requirements on approximately 66,000 documents produced by Honeywell during the course of proceedings. 1998-NMCA-071, ¶¶ 4, 17, 125 N.M. 228, 959 P.2d 562. This Court reversed based on Honeywell's failure to make a showing of good cause and held that good cause is established by showing that disclosure will work a "clearly defined and serious injury" on the party seeking disclosure. Id. ¶¶ 15, 21 (internal quotation marks and citations omitted). We made it clear that each of the 66,000 documents had been "uniformly designated as confidential" and, more important, that there had been no assertion of any specific privilege, "including . . . trade secrets." Id. ¶ 17. This is consistent with our holding today that the assertion of the trade secret privilege requires a different analysis from that used for protection of confidential documents under Rule 1-026(C).
{47} While a party asserting trade secret privilege need not show a "clearly defined and serious injury," the party must, in order to establish the existence of the privilege, demonstrate an element of harm. Under the definition in the TSA, a party must show that the information "derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use." Section 57-3A-2(D)(1). If the resisting party establishes that the information sought derives economic value that can be obtained by others if the information is disclosed, then the loss of that value results in harm. Trade secrets are commercially valuable information. Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 654 P.2d 673, 679 (1982) (en banc), aff'd, 467 U.S. 20, 37, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984). If the requesting party shows that the disclosure of the information is necessary for a fair adjudication of the claims, the trial court balances this need with the harm demonstrated by the resisting party.
{48} Additionally, we observe that under the Restatement, two of the factors used to determine if information is a trade secret also relate to the worth of the information: "(4) the value of the information to [the business] and to [its] competitors" and "(5) the amount of effort or money expended . . . in developing the information." Restatement (First) of Torts § 757 cmt. b, at 6. By proving that the information sought is a trade secret, the party resisting discovery automatically provides a basis upon which the trial court can assess harm.
{49} We see a difference between a trade secret and other confidential information. In the case of confidential information, the inquiry is normally limited to the fact that the information sought has been considered and treated as confidential by the party resisting production. The confidentiality of a document does not indicate the harm that might occur if the document is disclosed. Therefore, the Rule 1-026(C) requirement that a protective order be conditioned on a showing of good causewould be applicable in the case of confidential information that does not rise to the level of a trade secret.
F. Remand
{50} Accordingly, we remand this case to the trial court to evaluate production of the McKinsey documents in light of this opinion. As required by Rule 11-508, Defendant must first establish that the information is a trade secret. The burden then shifts to Plaintiffs to establish that the information is necessary for a fair adjudication of their claims. If the parties have met their burdens, the trial court must weigh the degree of Plaintiffs' need for the information with the potential harm of disclosure to Defendant. The language of Rule 11-508 contemplates that if a trial court compels disclosure of the information, the court will ordinarily require that disclosure be subject to appropriate protective measures. Rule 11-508 (directing protective measures to be taken in "the furtherance of justice" when disclosure is directed).
*995 {51} Because this case has a long history, we will attempt to provide some direction to the parties and the trial court on remand. In this case, the trial court appears to have assumed that the McKinsey documents are trade secrets. On this issue, we digress to answer Plaintiffs' contention that this Court has already determined that the documents are not trade secrets because we so noted in our opinion Pincheira I, 2004-NMCA-030, ¶ 9, 135 N.M. 220, 86 P.3d 645. There is language in the opinion indicating that counsel for Defendant characterized documents as trade secrets when the trial court had already determined that they were not trade secrets. Id. It is not clear if we were referring to the McKinsey documents or other documents. In any event, our language characterizing the documents as either trade secrets or non-trade secrets is dictum. In Pincheira I, we did not reach the merits of the underlying appeal because we held that Defendant's petition was untimely and that we thus lacked jurisdiction to entertain it. 2004-NMCA-030, ¶ 7, 135 N.M. 220, 86 P.3d 645. When an appellate court makes statements that are not necessary to its decision, those statements are without the binding force of law. See Ruggles v. Ruggles, 116 N.M. 52, 59 n. 8, 860 P.2d 182, 189 n. 8 (1993); Kent Nowlin Constr. Co. v. Gutierrez, 99 N.M. 389, 390-91, 658 P.2d 1116, 1117-18 (1982).
{52} In this case, it appears that the Sullivan affidavit does provide support for the trial court's assumption that the McKinsey documents are trade secrets. However, there was evidence to the contrary provided by Plaintiffs and additional evidence that Defendant wanted to present. Further, we note that document age is a factor used to determine whether a document is a trade secret, and these documents have aged since the original assertion of the trade secret privilege. Accordingly, we are remanding this issue to the trial court to begin anew in applying the test enunciated in this case and in determining if and to what extent disclosure should be ordered.
{53} As a final matter, we address the manner in which this should be accomplished. We observe that the McKinsey documents have already been produced under the Interim Protective Order. Consequently, there is no doubt as to what documents are the subject of the Rule 11-508 inquiry. In some jurisdictions, an in camera inspection or an evidentiary hearing is required. See Uniroyal Goodrich Tire Co. v. Eddings, 673 So. 2d 131, 132 (Fla.Dist.Ct.App.1996) (per curiam) (remanding to the trial court with instructions to "conduct an in camera hearing and inspection of the manual in question or[,] alternatively[,] an evidentiary hearing to determine whether the manual is a trade secret"). We recognize that in camera inspections can be burdensome. See Piña, 2001-NMCA-055, ¶ 26, 130 N.M. 661, 29 P.3d 1062. An evidentiary hearing could result in disclosure of materials subject to evaluation. Nevertheless, we believe these options are best left to the discretion of the trial court.
{54} Similarly, the trial court may consider appointment of an expert, pursuant to Rule 11-706 NMRA, or a special discovery master, pursuant to Rule 1-053 NMRA. See Piña, 2001-NMCA-055, ¶ 26, 130 N.M. 661, 29 P.3d 1062. We will not set out strict guidelines for the trial court to follow because the methods used are dictated by the circumstances of a particular case and should be administered "`to secure the just, speedy and inexpensive determination of every action.'" Id. ¶ 28 (quoting Rule 1-001 NMRA). Accordingly, decisions regarding the particulars of how this matter should be handled on remand shall be left to the trial court.
{55} We also recognize that Rule 11-508 does not define "trade secret," but there is direction in the definition set out in the TSA. See, e.g., Insure N.M., LLC v. McGonigle, 2000-NMCA-018, ¶¶ 6, 18-20, 128 N.M. 611, 995 P.2d 1053 (discussing the definition of "trade secret" under the TSA and the inquiry to be made by the trial court in determining whether a protectable trade secret exists, including whether the definition of "trade secret" was met, whether a number of factors were satisfied, and whether the trial court balanced the equities and hardships); see also Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, ¶ 33, 121 N.M. 840, 918 P.2d 1340 (providing for financial records, asserted to be trade secrets and/or proprietary *996 commercial information, to first be produced to a certified public accountant (CPA) to determine the extent to which they were privileged or protectable and providing that the parties could serve court-approved interrogatories on the CPA). The trial court may also find it helpful to consider the six factors set out in the Restatement (First) of Torts § 757 cmt. b, at 6, and use the factors as a guide in evaluating the evidence. See In re Bass, 113 S.W.3d at 739-40 (holding that the six factors listed in the Restatement of Torts § 757 may be used as relevant criteria and are weighed in the context of the surrounding circumstances). While the definition in the TSA and the factors in the Restatement of Torts § 757 are not identical, both capture the essential elements of a trade secret: confidentiality and value.
{56} If the McKinsey documents are found to be trade secrets, then the burden shifts to the requesting party to show the necessity for document production. Rule 11-508 premises the assessment on whether prohibiting disclosure will "otherwise work injustice." We agree with the interpretation of this language articulated in Bridgestone. Mere relevance is inadequate. The party requesting production of trade secrets must make a particularized showing that the information sought is relevant and necessary to the proof of a material element of at least one cause of action presented in the case and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. Bridgestone, 9 Cal. Rptr.2d at 713. If Plaintiffs demonstrate necessity, the trial court should balance this need against potential harm to Defendant and consider appropriate protective measures.
{57} If the McKinsey documents are not found to be trade secrets, then the trial court will have to evaluate whether the documents are "other confidential research, development or commercial information," as described in Rule 1-026(C)(7), and what, if any, protection would be appropriate, depending on the evidence presented regarding good cause, as set out in Krahling. See 1998-NMCA-071, ¶¶ 14-17, 125 N.M. 228, 959 P.2d 562. We recognize that Plaintiffs have addressed this possibility and that their argument would have this Court affirm the trial court's November 2001 Order, requiring disclosure. Because we have now clarified the procedure to be used when a party asserts the trade secret privilege, as opposed to the good cause standard, which is to be used when a party is seeking a protective order for other confidential research, development, or commercial information, we believe justice requires that this entire issue be returned to the trial court for resolution. See Grant v. Cumiford, 2005-NMCA-058, ¶ 24, 137 N.M. 485, 112 P.3d 1142 (remanding to the trial court for reexamination of the issue by using the proper test); DeArmond v. Halliburton Energy Servs., Inc., 2003-NMCA-148, ¶ 23, 134 N.M. 630, 81 P.3d 573 (remanding for the trial court to consider the matter in light of the clarification regarding proof of actual knowledge).
{58} We provide one last direction. While findings are not required by rule, we would not be surprised if the trial court's decision on remand is appealed; therefore, in the interest of efficiency, we believe entry of findings based on the evidence presented would be of great help.
III. PLAINTIFFS' ARGUMENTS
A. Discovery Sharing
{59} In Plaintiffs' answer brief, they argue that this case is really about discovery sharing and that Defendant's resistance to disclosure of the McKinsey documents is based on the position that discovery sharing is not a legitimate use of discovery. As we explained above, the issue in this appeal relates to the status of the McKinsey documents and what, if any, protection they should be afforded. Defendant has asserted that the McKinsey documents are protectable trade secrets or confidential information, and based on the analysis set forth in this opinion, we are remanding the case to the trial court to evaluate those contentions. Once the trial court makes this determination, the issue of document sharing could arise. This issue, however, is not before us today. Therefore, discovery sharing, as discussed in Krahling, 1998-NMCA-071, ¶¶ 18-20, 125 N.M. 228, 959 P.2d 562, and John Does I Through III *997 v. Roman Catholic Church of the Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 14, 122 N.M. 307, 924 P.2d 273, is not an issue we need to address. See John Does I Through III, 1996-NMCA-094, ¶ 12, 122 N.M. 307, 924 P.2d 273 ("[C]ourts traditionally do not reach out to decide issues unnecessarily.").
B. Privilege Extinguished by Disclosure
{60} Plaintiffs make five other arguments. The last two press affirmance and contend that the trial court properly denied Defendant's motion for protective order and thus formed the basis for entry of the default judgment against Defendant for failure to produce the McKinsey documents. We have decided these issues contrary to Plaintiffs, as we explained in section II of this opinion. We now consider Plaintiffs' remaining arguments.
{61} Plaintiffs assert that Defendant's trade secret privilege was extinguished. This contention rests on the requirement that the trade secret privilege be based on a showing of document secrecy; according to Plaintiffs, all secrecy in the McKinsey documents was lost when the protection provided by the Interim Protective Order expired by its own terms fourteen days after the writ was denied in our first opinion in this case. We agree that the protection provided by the Interim Protective Order expired by its own terms, but disclosure did not automatically occur. On the contrary, Defendant refused to produce the documents without protection, and that refusal ultimately resulted in the entry of a default judgment. Defendant's claim of privilege was not extinguished by the expiration of the Interim Protective Order.
C. Waiver
{62} In their next argument, Plaintiffs contend that Defendant waived the trade secret privilege by failing "to affirmatively demonstrate an `objectively reasonable basis' for each assertion of privilege" in its original discovery responses. Citing to Piña, Plaintiffs also argue that Defendant was required to provide a privilege log or affidavits in support of the privilege claim at the time the response was filed. There are two parts to this argument.
{63} First, Plaintiffs read Piña to require that a privilege log be submitted in any case. While we agree that Piña contains language directing the use of this procedure, we also observe that this Court recognized the unique nature of privilege claims and that each case should be governed by its own circumstances. We qualified our direction as follows: "The above guidelines are not immutable. They may be modified as required by the circumstances of a particular case and, as always, should be administered `to secure the just, speedy and inexpensive determination of every action.'" Piña, 2001-NMCA-055, ¶ 28, 130 N.M. 661, 29 P.3d 1062 (quoting Rule 1-001). We encourage the parties, subject to court approval, to stipulate to simplified or streamlined procedures for resolving privilege claims.
{64} We look to the circumstances of this case. Defendant, in its discovery response, objected on the basis that the requested documents were "confidential or proprietary information." Although Defendant did not specifically state "trade secret privilege," Plaintiffs immediately recognized that Defendant was asserting that the McKinsey documents were trade secrets. Under the heading titled "Trade Secrecy" in Plaintiffs' memorandum in support of the motion to compel, they specifically addressed Defendant's trade secret claim. Defendant responded to the motion to compel with case law and factual assertions supported by the Sullivan affidavit. The arguments made at the hearing on October 30, 2001, were premised on the understanding that Defendant was asserting the trade secret privilege. Further, this argument was addressed by the trial court, which recognized that while Defendant did not use the term "trade secret" in the response, the court assumed Defendant was asserting a trade secret and evaluated the claim on that basis. Thus, it appears the trial court was not persuaded that the privilege had been waived. There was no gradual unveiling of the basis for the privilege, a practice expressly disapproved of in Piña. 2001-NMCA-055, ¶ 25, 130 N.M. 661, *998 29 P.3d 1062. Based on the above, we see no waiver of the trade secret privilege.
{65} Second, in a related argument, Plaintiffs claim that all information in support of the privilege should be filed by the date the response is due. Plaintiffs contend that Defendant waived the privilege by not filing the motion for protective order containing an evidentiary showing of good cause on or before the date Defendant's discovery responses were due and, in any event, by not filing the motion for protective order until after Plaintiffs filed their motion to compel. We reject this argument because we have established a new framework for cases involving the assertion of trade secret privilege, which does not require the party asserting the privilege to establish good cause. We decline Plaintiffs' invitation to elevate form over substance; our remand to the trial court provides a fresh opportunity to the parties to implement the new framework we announce in this opinion.
IV. DISSENT
{66} The dissent is based on two main grounds: its perception that the majority fails to recognize the contingent nature of a trade secret privilege and its conclusion that the majority holding eliminates the good cause requirement of Rule 1-026(C)(7) in evaluating trade secret discovery. Dissenting Opinion, ¶ 74. We address these points in turn.
{67} The conditional nature of the trade secret privilege as set forth in Rule 11-508 is discussed at length in this majority opinion. In paragraph 50 we explain the process. First, the resisting party, Defendant in this case, must establish that the material requested under the discovery rules is a trade secret. The definitions of trade secret are set out in paragraphs 30-32, and general guidance regarding assessment of the relevant criteria in the context of surrounding circumstances is found at paragraph 55. In order to establish the existence of a trade secret, the resisting party must establish an element of harm. If the resisting party establishes that the discovery requested is a trade secret, there is no automatic bar to discovery. Instead, the inquiry continues. As we explain in paragraphs 50 and 56, the requesting party must show the necessity for document production, and then the trial court evaluates the need for the information and the potential harm of disclosure to the resisting party. Based on weighing these factors, the trial court determines if, to what extent, and how disclosure must be made. Protection is not automatic, but rather is dependent on the trial court's evaluation of the particular facts related to assertion of the privilege.
{68} As to the second basis, we disagree that a party resisting discovery of a trade secret is required to meet the "good cause" standard set out in Rule 1-026(C)(7) as interpreted by Krahling. We also disagree with the dissent's premise that Defendant knew and understood that this "good cause" standard needed to be met to protect a trade secret. Dissenting Opinion, ¶ 87. At the hearing on October 30, 2001, Defendant argued that its burden was to establish that the documents were trade secrets. In the alternative, Defendant argued that if the documents were not found to be trade secrets, then Defendant would have to meet the "good cause" standard under Krahling and that it had met that burden with the Sullivan affidavit. We do not understand this argument to concede that the "good cause" standard under Krahling must be met in order to invoke the trade secret privilege.
{69} The difference between the majority position and that of the dissent relates to how the burden is to be allocated and what standard is to be used. According to the dissent, once the requesting party seeks discovery, and the resisting party has asserted the trade secret privilege, the resisting party would have to meet two burdens. It would have the burden of establishing the existence of a trade secret and then the further burden of demonstrating that there is "good cause" to protect the disclosure of that trade secret as set forth in Krahling. Failure to prove both would result in unprotected disclosure.
{70} We disagree with the requirement of meeting the double burden. As we set forth previously, the resisting party has the initial burden of establishing that the material in question is a trade secret. If this burden is not met, there is no further inquiry under *999 Rule 11-508, and the general provisions of Rule 1-026(C)(7) would govern. If the resisting party meets this burden, then the burden shifts to the requesting party to show necessity; and if necessity is shown, the trial court weighs the need for the information against the potential harm of disclosure to the resisting party and makes its determination regarding disclosure. As we detail in paragraphs 47-48, by proving the existence of a trade secret, the resisting party necessarily addresses the issue of harm. In effect, the dissent would not have the trial court do any weighing unless the resisting party proved that a "clearly defined and serious injury" would result if disclosure were ordered. This is the standard that must be met when protection is requested for confidential material that is not privileged. Once a trade secret becomes the subject of discovery, however, we believe a different process is used. It is up to the trial court to weigh the harm to the resisting party against the need for disclosure and fashion an order based on the facts of a particular case. The dissent's approach would limit the trial court's discretion and essentially eliminate any separate privileged status provided by the Rule 11-508.
{71} We agree with the dissent that the rules of civil procedure and rules of evidence must be read so that they are compatible and complementary. We believe that our reading does just this, given the interplay between Rule 1-026(C)(7) and the privileged status given to trade secrets under Rule 11-508. We also observe that in its court order dated April 26, 1973, adopting the rules of evidence, our Supreme Court ordered that "the Rules of Evidence supersede the Rules of Civil Procedure insofar as they may be in conflict with these rules." This leads us to conclude that to the extent there is any conflict between Rule 1-026(C)(7) and Rule 11-508, the provisions of Rule 11-508 would control.
V. CONCLUSION
{72} Based on the above, we cannot agree with the approach offered by the dissent. We reverse the orders of the trial court requiring unprotected disclosure of the McKinsey documents. As a result of this reversal, we remand this case to the trial court with instructions first, to vacate the default judgment entered on July 8, 2004, and second, to reevaluate Defendant's assertion of the trade secret privilege as to the McKinsey documents in a manner consistent with this opinion.
{73} IT IS SO ORDERED.
I CONCUR: CYNTHIA A. FRY, Judge.
MICHAEL E. VIGIL, Judge (dissenting).
VIGIL, Judge (dissenting).
{74} I dissent from the majority opinion for two reasons: (1) it fails to recognize the contingent nature of a trade secret privilege under our Rules of Evidence; and (2) it mistakenly construes Rule 11-508 of the Rules of Evidence to eliminate the good cause requirement of Rule 1-026(C)(7) of the Rules of Civil Procedure for imposing a protective order in the discovery of trade secrets. Rule 11-508 of the Rules of Evidence and Rule 1-026(C)(7) of the Rules of Civil Procedure are not mutually exclusive as suggested by the majority; they are compatible and complementary.
{75} I agree with the majority that the person asserting a trade secret privilege not to provide discovery has the burden of establishing the privilege. Majority Opinion ¶¶ 39, 41. However, I reject the suggestion made by the majority that it makes any difference whether the burden arises in the context of a motion for protective order or a motion to compel. Majority Opinion ¶ 37. The elements of a trade secret privilege are the same whether within the context of a motion to compel discovery under Rule 1-037(A) or a motion for a protective order under Rule 1-026(C)(7). It happens that in this case the issue arises in the context of Plaintiffs' motion to compel discovery. It was therefore Defendant's burden to establish that it had a trade secret privilege not to disclose the McKinsey documents in response to Plaintiffs' Request for Production No. 5.
*1000 The Trade Secret Privilege
{76} Rule 11-508 of the Rules of Evidence is entitled "Trade Secrets" and provides:
A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent others from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the court shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
{77} The Rule does not define what constitutes a privileged trade secret. Two broad formulas have emerged for determining what constitutes a trade secret. The first was originally promulgated in 1939 by the Restatement (First) of Torts § 757, which addressed general principles of liability for disclosing or using another's trade secret. In adopting the Restatement, the American Law Institute acknowledged, "an exact definition of a trade secret is not possible." Restatement § 757, cmt. b. Instead of attempting to provide a comprehensive definition, it identified factors to be considered in determining the existence of a trade secret:
Some factors to be considered in determining whether given information is one's trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Id.
{78} Section 757 of the Restatement (First) of Torts was omitted from the Restatement (Second) of Torts and incorporated into the Restatement (Third) of Unfair Competition. See generally In re Bass, 113 S.W.3d at 739. However, the six factors from Section 757 are still considered. See Restatement (Third) of Unfair Competition § 39 reporter's n. cmt. d (1995) ("In determining the existence of a trade secret, many cases rely on the factors identified in Restatement of Torts § 757 cmt. b").
{79} Under the Restatement formulation, the six factors are not to be considered in a systematic or mechanical manner for determining whether a trade secret exists because by their very nature, the factors are imprecise. See In re Bass, 113 S.W.3d at 739 (stating that the factors are to be treated as relevant, but not dispositive, criteria because it is not possible to state precise criteria for determining the existence of a trade secret and that the status of information claimed as a trade secret must be ascertained through a comparative evaluation of all the relevant factors); Crum v. Bridgestone/Firestone N. Am. Tire, 2006 PA Super. 230, ¶ 19, 907 A.2d 578 (stating that in weighing the six factors, the crucial indicia for determining whether certain information constitutes a trade secret are substantial secrecy and competitive value to the owner).
{80} The second broad formula for determining the existence of a trade secret is contained in the Uniform Trade Secrets Act which was approved and recommended for enactment by the National Conference of Commissioners on Uniform State Laws in 1979. This Act was adopted in New Mexico in 1989, and is codified at Sections 57-3A-1 to -7. Under the Act, a "trade secret":
[M]eans information, including a formula, pattern, compilation, program, device, method, technique or process, that:
(1) derives independent and economic value, actual or potential, from not being generally known to and not be readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Section 57-3A-2(D).
{81} This statutory definition also requires its various elements to be considered and weighed. See Mediacom Iowa, L.L.C. v. Inc. *1001 City of Spencer, 682 N.W.2d 62, 67 (Iowa 2004) (stating that whether the definition of a trade secret is satisfied under the Uniform Trade Secrets Act is a mixed question of law and fact; that the legal determination is whether the material sought is "information"; and the factual determination is whether the factors described in subsections (1) and (2) are satisfied); Ed Nowogroski Ins., Inc. v. Rucker, 137 Wash.2d 427, 971 P.2d 936, 941 (1999) (en banc) (stating that while the definition of a trade secret is a matter of law under the Uniform Trade Secrets Act, whether specific information in a given case is a trade secret is a factual question). See also Star Scientific, Inc. v. Carter, 204 F.R.D. 410, 414 (S.D.Ind.2001) (noting that the Indiana Uniform Trade Secret Act is identical to the Uniform Trade Secrets Act and that in Indiana a trade secret has four characteristics: "(1) information; (2) which derives independent economic value; (3) is not generally known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (4) the subject of efforts reasonable under the circumstances to maintain its secrecy.") (quoting Ackerman v. Kimball Int'l, Inc., 634 N.E.2d 778, 783 (Ind.Ct.App.1994), vacated in part, adopted in part, 652 N.E.2d 507 (Ind.1995)).
{82} The quintessential elements of a trade secret under either formulation are: (1) that the owner undertakes to keep the information secret; (2) that the information has a competitive or financial value to its owner; and (3) that its unauthorized disclosure will result in damage or harm to its owner. See Crum, 2006 Pa.Super. 230, ¶ 19, 907 A.2d 578.
{83} However, even if a person establishes ownership of a trade secret, the trade secret may not be recognized as a privileged trade secret under Rule 11-508. "[T]here is no absolute privilege for trade secrets and similar confidential information." Fed. Open Market Comm. v. Merrill, 443 U.S. 340, 362, 99 S. Ct. 2800, 61 L. Ed. 2d 587 (1979) (internal quotation marks and citation omitted). Rule 11-508 gives textual recognition to this principle. Unlike other privileges, a trade secret is accorded privileged status under Rule 11-508 only "if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice." Id. When non-disclosure of a trade secret will result in injustice, there is no privilege. Thus, Rule 11-508 only grants a conditional privilege to trade secrets. See Mediacom Iowa, L.L.C., 682 N.W.2d at 66 (stating there is "no true privilege against discovery of trade secrets"); Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 299 (N.D.1995) (construing similarly worded North Dakota rule and stating that the trade secret rule provides for a "limited privilege"; that the instances in which invocation of the privilege is justified are few; and that the rule provides for only a conditional privilege).
{84} The foregoing analysis is applicable to determine in the first instance whether the person asserting a trade secret has established ownership of a privileged trade secret under Rule 11-508. The person making the claim must come forward with evidence relating to the six Restatement factors and the statutory factors of Section 57-3A-2(D) to substantiate his assertion that he owns a trade secret. The trial court must then evaluate and weigh the evidence in context to determine whether a prima showing has been made to ownership of a trade secret. Of necessity, this determination must be left to the discretion of the trial court. If the trial court concludes that the claimant has failed to establish that the information is a trade secret, the inquiry ends. However, if the trial court concludes that a trade secret has been established, the trial court must still determine whether allowing a privilege to attach to the information will result in injustice. Again, this evaluation of all the relevant factors presented requires the trial court to exercise its discretion. Only if the trial court also concludes that allowing a privilege to attach to the information will not result in an injustice, is the information afforded privileged trade secret status under Rule 11-508.
{85} Finally, even when the trial court determines in its discretion that a privileged trade secret exists, the trial court may still order that it be disclosed. The final sentence of Rule 11-508 provides, "When disclosure is *1002 directed, the court shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require." I understand this provision of the rule to allow the trial court in its discretion to order disclosure of a trade secret notwithstanding its determination that the holder has a bona fide trade secret. The exercise of that discretion is guided by three factors: (1) the interests of the holder of the privilege; (2) the interests of the parties to the litigation before the court; and (3) the furtherance of justice. Thus, the trade secret privilege may, in appropriate circumstances, yield to other competing public policy values, such as requiring the courts to operate in the open and not behind a shroud of secrecy, and the right of litigants to full discovery and the subsequent full use of that discovery at trial. See Estate of Romero, 2006-NMSC-028, ¶ 7, 139 N.M. 671, 137 P.3d 611 (stating that a person is generally required to disclose any information he may possess that is relevant to a case pending before a court); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) ("[P]ublic access to civil trials enhances the quality and safeguards the integrity of the factfinding process, fosters an appearance of fairness, and heightens public respect for the judicial process[.]") (internal quotation marks and citations omitted); Bryan v. Eichenwald, 191 F.R.D. 650, 652 (D.Kan.2000) ("[T]he public has an interest in everything that occurs in [a] case, whether at trial or during the discovery stage of litigation.").
{86} To support its assertion that the McKinsey documents contain privileged trade secret information, Defendant submitted the affidavit of Christine Sullivan. Because of its importance to the issues in this case, a copy of the affidavit is attached as an appendix to this dissent. The trial court did not deny Defendant's motion for a protective order because the documents did not contain trade secret information; it denied the motion on the basis that Defendant failed to establish good cause. I therefore assume that the Christine Sullivan affidavit established the necessary requisites to satisfy the trial court that the McKinsey documents contain privileged trade secret information, and consider whether Defendant demonstrated good cause for a protective order.
Good Cause to Justify a Protective Order
{87} Plaintiffs filed a motion to compel production of the McKinsey documents, and argued in part: "[I]n order to sustain its trade secrecy objection, Allstate has the burden to show that disclosure of the pertinent documents would cause a specific, significant harm to its competitive and financial position." (citing Deford v. Schmid Prod. Co., 120 F.R.D. 648 (D.Md.1987)). Deford states:
Where a business is the party seeking protection, it will have to show that disclosure would cause significant harm to its competitive and financial position. That showing requires specific demonstrations of fact, supported where possible by affidavits and concrete examples, rather than broad, conclusory allegations of potential harm.
Id. at 653. In making the foregoing statement, Deford specifically relies upon the "good cause" requirement of Rule 26(c) of the Federal Rules of Civil Procedure to impose a protective order for "a trade secret or other confidential research, development, or commercial information" under Rule 26(c)(7) of the Federal Rules of Civil Procedure. Deford, 120 F.R.D. at 652-53. In response to Plaintiffs' motion, Defendant argued, "Because [the McKinsey documents] are trade secrets, the requested documents should not be required to be produced. If this Court does require their production, they should be produced only subject to a confidentiality order, requiring that the documents be kept confidential, be used only for this litigation, and returned at the conclusion of this case." Defendant then specifically referred to Rule 1-026(C)(7) in support of its argument. Rule 1-026(C)(7) states that "for good cause shown," the trial court may make an order "that a trade secret . . . not be revealed or be revealed only in a designated way." Thus, whether by reference to Plaintiffs' arguments or its own response, Defendant knew and understood that "good cause" was required to justify imposition of a protective order.
*1003 {88} The structure of the New Mexico Rules of Civil Procedure require a finding of "good cause." Rule 1-037 NMRA provides that a party may apply to the trial court for an order compelling discovery. This is what Plaintiffs did by asking the trial court to order Defendant to produce the McKinsey documents. Defendant responded that the motion should be denied because the McKinsey documents contain trade secrets, but if production was ordered, it should be under a protective order. Defendant therefore invoked Rule 1-037(A)(2) and Rule 1-026(C)(7). Rule 1-037(A)(2) provides that when the trial court denies a motion for an order compelling discovery in whole or in part, as requested by Defendant, "it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 1-026." Rule 1-026(C)(7) in turn provides, "Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court . . . may make any order which justice requires . . . including . . . that a trade secret or other confidential research, development or commercial information not be revealed or be revealed only in a designated way." (Emphasis added.)
{89} Existing precedent defines the meaning of "good cause" in this context. In Krahling, the trial court ordered Honeywell to provide discovery but granted its request that the information be kept confidential. 1998-NMCA-071, ¶ 4, 125 N.M. 228, 959 P.2d 562. Honeywell was allowed to designate all of the documents it produced in discovery as "confidential" without any showing of a basis for the designation. Id. ¶ 5. After summary judgment was granted in favor of the party receiving the discovery, it filed a motion to lift the confidentiality order, arguing that because Honeywell did not make a prima facie showing of good cause in support of the confidentiality order, the burden of proof remained upon Honeywell to support continuation of the protective order. Id. ¶ 14. We agreed. Id. Referring to Rule 1-026(C), we said, "An order prohibiting the disclosure of information obtained during discovery proceedings must be supported by a finding of good cause." Krahling, 1998-NMCA-071, ¶ 15, 125 N.M. 228, 959 P.2d 562. We then stated:
Good cause is established [by] showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. . . . In determining whether a party has made a showing of good cause for the issuance of a protective order, courts have generally applied a balancing process.
Id. (internal quotation marks and citations omitted).
{90} In the hearing before the trial court, Plaintiffs argued that the Christine Sullivan affidavit filed by Defendant failed to demonstrate just cause to justify a protective order because it failed to show how a clearly defined serious injury would result if the McKinsey documents were disclosed without a protective order as required by Krahling. In response, Defendant argued, "The burden is to establish a trade secret as that is defined under New Mexico law and if that trade secret is established, then this Court must take such appropriate measures as will protect that trade secret because it is privileged under New Mexico law." Defendant asserted that just cause to impose a protective order is satisfied by simply demonstrating that the McKinsey documents contain trade secrets, and that the Christine Sullivan affidavit satisfied this burden: "We are not saying that burden isn't upon us, we believe that is a burden we have of establishing good cause to believe this information is [a] trade secret. And that is what we have done with the Christine Sullivan affidavit." In response to Defendant's additional argument that Plaintiffs were asserting a standard of good cause which had not been previously recognized under New Mexico law, the trial court said:
I am looking at Krahling. [G]ood cause is established by showing the disclosure will work a clearly defined and serious injury to the parties seeking closure. The injury must be shown with specificity. That looks pretty clear cut to me. It's not like a new standard which I would be adopting.
Defendant then asserted that the Christine Sullivan affidavit satisfied Krahling because it demonstrated that the information was *1004 created at a significant expense, competitors wanted the information, and if it were made publicly available, Defendant would suffer a competitive disadvantage. At the conclusion of the hearing, the trial court announced: "I rely upon the Krahling case which I believe sets forth the appropriate standard for defending disclosure in the face of challenges based on claims of confidentiality. . . . [S]o I find that the declaration of [Christine] Sullivan which is the basis for [Defendant's] claim is simply too general and conclusory to support [its] request for [a] protect[ive] order or protection from disclosure."
{91} The formal order compelling production of the McKinsey documents without a protective order incorporates the trial court's reasoning. In pertinent part the order states:
[Defendant] has resisted production of these documents upon the grounds of trade secret confidentiality and has requested that a protective order be entered based on the Affidavit of Christine Sullivan filed in support of [Defendant's] assertion of trade secret confidentiality; that the Affidavit of Christine Sullivan is too general and conclusory to support a protective order restricting production or dissemination of the [McKinsey documents] under the good cause standard for protective orders established in Krahling.
Defendant was therefore ordered to produce the McKinsey documents, and Defendant's "request for a protective order restricting disclosure of the documents ordered produced herein be, and the same is hereby, denied."
{92} Defendant's response and Rule 1-026(C)(7) required the trial court to consider whether Defendant demonstrated "good cause" to justify imposing a protective order relating to its production of the McKinsey documents. However, the majority states that Defendant was not required to demonstrate "good cause" because Rule 11-508 has no "good cause" requirement. Majority Opinion ¶ 44. This conclusion requires the words "good cause shown" to be deleted from Rule 1-026(C)(7) as it relates to trade secrets. I do not believe this is permissible or necessary. We are required to apply the Rules of Civil Procedure and the Rules of Evidence as adopted by the Supreme Court. Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973). In applying these rules which cover the same subject matter of trade secrets, we are to avoid conflict or inconsistency, and apply them in a harmonious and complementary manner. See State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022 (stating that we are to read different legislative enactments as harmonious instead of contradicting each other); State ex rel. Quintana v. Schnedar, 115 N.M. 573, 575-76, 855 P.2d 562, 564-65 (1993) (directing that two statutes covering the same subject matter should be harmonized and construed together, when possible, in a way that facilitates their operation and the achievement of their goals).
{93} I also disagree with the majority's conclusion that requiring the holder of the privilege to establish just cause for a protective order renders the language of Rule 11-508 and the privilege itself "meaningless." Majority Opinion ¶¶ 45-49. As already discussed, before a trial court directs that a trade secret is to be disclosed under Rule 11-508, it must take into account (1) the interests of the holder of the privilege; (2) the interests of the parties; and (3) the furtherance of justice in fashioning an appropriate protective measure. This obviously requires the sound exercise of discretion in light of the specific circumstances that are before the court. Requiring the holder of the privilege to show "good cause" as required by Rule 1-026(C)(7) is not inconsistent with balancing these interests. In light of the nature of a trade secret, and the almost infinite variety of permutations that a trade secret can assume, it is essential that a trial court be presented with the necessary information so it can determine whether to order disclosure of a trade secret with or without a protective order. See Crum, 2006 Pa.Super. 230, ¶ 20, 907 A.2d 578 (construing the Pennsylvania counterpart to Rule 1-026(C)(7): "The questions of whether disclosure is to be allowed, if protection is to be afforded, and the form of such protection, are matters to be determined according to the discretion of the [trial] court.").
*1005 {94} The majority itself recognizes that even if the existence of a trade secret is established, the information may be so minimal that there is no danger it could be used by another to obtain economic value in competition with the owner. Majority Opinion ¶ 38. Since a trade secret is by its nature secret, only the holder can show the trial court whether, and to what extent, disclosure will cause the holder damage. Further, the holder of the privilege appropriately shoulders the burden of demonstrating what specific damage may result, so that a protective order that shields the holder against that damage can be fashioned, if one is appropriate. See Mediacom Iowa, L.L.C., 682 N.W.2d at 68 (stating that to determine whether there is good cause to impose a protective order for trade secrets, there must be a showing that the harm posed by dissemination of the information is substantial and serious); In re Cont'l Gen. Tire, 979 S.W.2d at 612 (noting that federal courts and the courts in California and Florida require the party resisting discovery to establish that disclosure of the trade secret would be harmful). When these elements are satisfied, the trial court can fashion an appropriate manner in which the information is to be disclosed, while advancing the interests of justice and protecting the rights of the litigants before it to have information they require. This is what I understand the burden of showing "good cause" means in Krahling. The same approach has been required by our Supreme Court when privileges not set forth in the Rules of Evidence have been invoked. See Estate of Romero, 2006-NMSC-028, ¶¶ 19, 21, 139 N.M. 671, 137 P.3d 611 (directing that in order to determine if the Inspection of Public Records Act precludes discovery of law enforcement investigation documents, the party seeking to preclude disclosure has the burden of proving the information is confidential; and if disclosure is ordered, a protective order under Rule 1-026(C) may be considered); Sw. Cmty. Health Servs. v. Smith, 107 N.M. 196, 200-01, 755 P.2d 40, 44-45 (1988) (concluding that the party objecting to discovery of peer review organization records has the burden of establishing that it is confidential under NMSA 1978, § 41-9-5 (1979), and thereafter entrusting the trial court with balancing the need to ensure the confidentiality of peer review against the need of litigants to discover evidence essential to their case, which may nevertheless compel production of the evidence); State ex rel. Attorney Gen. v. First Jud. Dist. Ct., 96 N.M. 254, 258, 629 P.2d 330, 334 (1981) (concluding that when the claim of executive privilege is made as to information requested in discovery, the trial court must first determine whether it has been properly invoked, and then it must balance the public interest in preserving confidentiality to promote intra-governmental candor with the individual's need for disclosure of the particular information sought).
{95} On the merits, the affidavit of Christine Sullivan tendered by Defendant at best only established that the McKinsey documents contain trade secret information. However, Defendant failed to establish that the documents contain privileged trade secret information, because the affidavit failed to establish that allowing the privilege would not result in an injustice in this case. Furthermore, even if the affidavit can be construed as satisfying all the elements of a privileged trade secret, Defendant failed to satisfy its burden of showing "good cause" as required by Krahling to require the trial court to exercise its discretion to determine whether a protective order was necessary in the first place, and if so, what protective measures might be appropriate. Specifically, Defendant failed to show what the "serious" and "clearly defined" injury would be if the McKinsey documents were disclosed without a properly tailored protective order. The trial court has broad discretion in determining whether good cause exists to issue a protective order. John Does I through III, 1996-NMCA-094, ¶ 13, 122 N.M. 307, 924 P.2d 273. Furthermore, "we do not tell the trial court when it is appropriate to issue protective orders under [Rule 1-026] to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense." Estate of Romero, 2006-NMSC-028, ¶ 21, 139 N.M. 671, 137 P.3d 611 (quoting State ex rel. Attorney Gen., 96 N.M. at 261, 629 P.2d at 337). I therefore conclude that no abuse of discretion was committed in ordering that the McKinsey documents be *1006 produced in discovery without a protective order.
The Default Judgment Sanction
{96} Defendant recognized it had an obligation to demonstrate good cause before it was entitled to produce the McKinsey documents under a protective order. Furthermore, well settled, existing New Mexico precedent defined what was required to demonstrate good cause. Notwithstanding its clear understanding and what was plainly required, Defendant failed to establish the requisite good cause.
{97} Since November 13, 2001, Defendant has been ordered to produce the documents without protection. The documents still have not been produced without protection. On June 4, 2004, Defendant was told that if it refused to produce an unprotected set of the McKinsey documents, a default judgment, on liability would be entered. Defendant refused, and the default judgment was filed. In the default judgment, the trial court found that by knowingly refusing to produce the McKinsey documents as ordered, Defendant "has intentionally disobeyed this Court's Order of June 4, 2004, as well as this Court's Orders of November 13, 2001, December 18, 2001, and January 7, 2002[.]" Defendant does not challenge this finding, and it is undisputed that Defendant willfully violated the trial court order compelling discovery.
{98} We review sanctions for discovery violations under an abuse of discretion standard, and while a default judgment is, to be sure, a severe sanction, when a discovery obligation is wilfully violated, a default judgment is within the proper parameters of discretion. Allred v. Bd. of Regents of Univ. of N.M., 1997-NMCA-070, ¶¶ 17, 20-28, 123 N.M. 545, 943 P.2d 579 (collecting and analyzing cases). When the discovery violation is conscious or intentional, it is a willful violation, and no wrongful intent needs to be shown. Id. ¶ 20. Thus, Defendant's assertion that it consciously, intentionally, and thereby willfully violated the trial court order in order to challenge the discovery order in this appeal does not insulate Defendant from a default judgment. Id. ¶¶ 31-32.
{99} I do not agree with the majority that Defendant is entitled to yet another chance to demonstrate good cause to produce the McKinsey documents under a protective order. I am also not persuaded that the trial court abused its discretion by granting a default judgment when Defendant willfully refused to comply with its discovery obligations in this case.
{100} For all the foregoing reasons, I dissent.
Appendix 1
FIRST JUDICIAL DISTRICT COURT
COUNTY OF SANTA FE
STATE OF NEW MEXICO
No. D-0101-CV-2000-2894
JOSE PINCHEIRA, OLIVIA PINCHEIRA,
RUDY VIGIL, MARIA ELISA VIGIL, and
AMY MARQUEZ, Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY,
TOM YOUNT, DAVE YOUNT, and SYLVIA
ENCINIAS, Defendants.
AFFIDAVIT OF CHRISTINE SULLIVAN
I, CHRISTINE SULLIVAN, of lawful age and being first duly sworn upon my oath, depose and state the following:
1. My name is Christine Sullivan. I am an employee of Allstate Insurance Company. My position is Assistant Vice President in the Property-Casualty Claim Service Organization at Allstate Insurance Company's home office in Northbrook, Illinois. I have been an Allstate employee for 28 years and have personal knowledge regarding the statements in this Affidavit.
2. Allstate retained McKinsey & Company to work with Allstate personnel to conduct a top to bottom review of its claim handling practices and procedures. As part of that review, closed claim files were reviewed in many markets, surveys were conducted and other investigation was performed in an effort to improve and bring uniformity to Allstate's claim handling processes and procedures, and address historical overpayment of claims. Once the review was completed, Allstate *1007 and McKinsey redesigned certain claim handling processes and procedures that were then implemented and tested in certain markets. Beginning in 1995, these redesigned claims handling processes and procedures were implemented nationwide in a program called Claim Core Process Redesign ("CCPR"), and Allstate's employees responsible for handling claims and the management and supervision of claims received training in those processes and procedures.
3. The CCPR program and materials, including the documents created by McKinsey & Company personnel during their review of Allstate's claims handling processes, and the resulting claims practices and procedures were developed at a considerable investment of time, manpower and financial resources on the part of Allstate.
4. Allstate's CCPR implementation manual, as well as Allstate's claim manuals, guidelines, management reports, and other records relating to McKinsey & Company's work for Allstate are confidential, proprietary, and trade secrets and are treated as such by Allstate.
5. Allowing access to Allstate's confidential training materials, management reports, statistics, and McKinsey & Company documents will give Allstate's competitors the unfair advantage of obtaining, at no cost, Allstate's valuable business techniques, programs, processes and information that were developed as a result of Allstate's significant investment of time, manpower and financial resources, thereby diluting the effectiveness of Allstate's investment and causing irreparable harm to Allstate's competitive position.
6. Allstate believes its procedures for investigating, handling, adjusting, and evaluating casualty claims give Allstate an advantage in attracting and keeping policyholders which competitors do not share.
7. Allstate has taken reasonable and appropriate precautions to maintain the confidentiality of these records and protect its trade secrets.
8. Allstate has made significant efforts to preserve the secrecy of its claim manuals and related materials. For example, Allstate maintains its claim manuals and related materials as confidential and limits access to these materials to employees and other persons who are under an obligation to keep these materials confidential. The employees and others who have access to these materials are specifically advised that these are confidential materials provided to them with the express or implied understanding that these confidential materials will not be revealed to any third parties. Access to management reports, statistical information and the like is limited to certain management personnel.
9. Notices are printed on the claim manuals referring to the confidential nature of the materials and the prohibition against disclosure to third parties. In many instances, a statement is included in large type on the title page indicating that the materials are "Confidential" and are the property of Allstate and are not intended for distribution to third parties.
10. Allstate keeps these materials in secured locations. Allstate's offices, in general, are locked when they are not open for business and access into Allstate's offices is controlled during business hours. Allstate's Real Estate and Construction Department maintains a set of standard construction specifications for company offices that requires security controls to protect against unauthorized persons entering nonpublic areas of Allstate's premises. Allstate's claim manuals and related materials are physically located in interior offices that require electrical, mechanical, or some other form of controlled access.
11. Allstate management reports, statistical information and the like are kept on computer and all authorized code is required to access the data. Access to the data is recorded on the computer. Print outs of this data are kept in the secured offices referenced above.
12. Allstate has not authorized or given permission to anyone to make copies of or distribute any of the claim manuals, management reports, and McKinsey & Company documents, and related materials. Allstate has not offered any of this information for sale, nor has Allstate made any of it available *1008 for public use. Any distribution of this information has been undertaken in disregard of Allstate's rights to control distribution. of its materials and Allstate is pursuing efforts to curtail the disclosure and/or distribution of these documents.
13. Allstate has resisted the unfettered production and distribution of these materials in other litigation and has always requested, and generally received, confidentiality orders for any such records produced.
14. Allstate's employees expressly agree and/or are expressly required to keep such materials confidential and to not produce such materials to third parties.
15. Allstate's Special Investigation Unit ("Sill") policies and procedures are designed to prevent, or at least deter, suspected fraud. Revelation of Allstate's Sill practices and procedures will harm this effort, perhaps significantly.
16. Allstate's Claim Core Process Redesign is a program of internal policies, methods, and procedures developed by Allstate for handling claims.
17. Allstate does not disseminate information about the Claim Core Process Redesign to the general public or competitors in the insurance industry.
18. Allstate employees are required to maintain confidentiality about the Claim Core Process Redesign. Only a limited number of high-level Allstate employees have access to McKinsey & Company documents, on a need-to-know basis.
19. The Claim Core Process Redesign is valuable, in part, because it is information that is not generally known.
20. The CCPR claims manual contains information considered confidential and proprietary to Allstate concerning the process of adjusting claims. Allstate believes these procedures give it a competitive edge with respect to procedures used by other insurance companies with which it competes, and provides a significant benefit to its shareholders and policyholders. This benefit, and the investment that created it, would be lost if these materials were obtained or disclosed to its competitors.
21. Allstate does not maintain information compiled in defending litigation in one location. Specifically, Allstate maintains no central repository, in which it places information pertaining to expert witnesses hired by opposing parties, like, for example, Gary T. Fye and Linda Brown. In order to obtain prior testimony provided by Mr. Fye and Ms. Brown in litigation against Allstate, it would be necessary to canvass outside counsel retained by Allstate throughout the country, to determine where such materials could be found. This would be a time-consuming and burdensome process.
*1009 | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631103/ | 164 P.3d 516 (2007)
STATE of Washington, Respondent,
v.
Mandi S. RATLIFF, Appellant.
No. 24926-3-III.
Court of Appeals of Washington, Division 3.
June 14, 2007.
Publication Ordered August 7, 2007.
*517 Dennis W. Morgan, Ritzville, WA, for Appellant.
Jeffrey S. Barkdull, Spokane, WA, Ronald Brian Shepherd, Davenport, WA, for Respondent.
KATO, J.[*]
¶ 1 Mandi S. Ratliff was convicted of attempting to elude a police vehicle. She claims the court erred by erroneously defining "reckless manner" in the jury instructions. We affirm.
¶ 2 On June 18, 2005, Reardan Police Chief Leland Varain and officer Michael Walters, both in uniform, saw a brown car skid to a stop and take off. Officer Walters got into his marked police car and followed. The brown car eventually went northbound on State Route (SR) 231. The officer had to drive 100 miles per hour (mph) to catch it. The speed limit on SR 231 is 60 mph.
¶ 3 Officer Walters got within 50 feet of the brown car. At this point, he believed it was traveling 70-75 mph. The officer then activated his lights and siren. As he got to 20-30 feet of the car, it fishtailed, turned around, and passed him. As it did, Officer Walters believed the distance between the car and his vehicle was six to seven inches. After about two miles, the brown car stopped.
¶ 4 The State charged Ms. Ratliff with attempting to elude a pursuing police vehicle. At trial, defense counsel took exception to the instructions defining the elements of the offense. She was convicted as charged. This appeal follows.
¶ 5 Ms. Ratliff was convicted of violating RCW 46.61.024, attempting to elude a police vehicle:
(1) Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.
RCW 46.61.024(1). In 2003, the words "reckless manner" were substituted by the legislature for the phrase "manner indicating a wanton or willful disregard for the lives or property of others." LAWS OF 2003, ch. 101, § 1.
¶ 6 Ms. Ratliff claims the court erroneously defined "reckless manner" in its jury instructions. The court must give jury *518 instructions that accurately state the law, that permit the defendant to argue his theory of the case, and that the evidence supports. State v. Staley, 123 Wash.2d 794, 803, 872 P.2d 502 (1994). We review de novo a court's refusal to give a defendant's proposed jury instruction based on a legal dispute. State v. Walker, 136 Wash.2d 767, 771-72, 966 P.2d 883 (1998).
¶ 7 The court's instructions defined "reckless manner" as "a rash or heedless manner, indifferent to the consequences." Clerk's Papers (CP) at 76. Ms. Ratliff proposed an instruction defining "reckless manner" as "a wanton or willful disregard for the lives or property of others." CP at 39. She defined "willful" as "acting intentionally and purposefully," and "wanton" as "acting intentionally in heedless disregard of the consequences." CP at 40. The court rejected these instructions.
¶ 8 Here, the trial court's definition of "reckless manner" is a correct statement of the law, at least for vehicular homicide and vehicular assault. State v. Roggenkamp, 153 Wash.2d 614, 618, 106 P.3d 196 (2005). Whether this definition of "reckless manner" applies to the felony eluding statute has yet to be determined. We decide it does.
¶ 9 RCW 46.61.024 does not define "reckless manner." In fact, those words are not defined anywhere in the motor vehicle code. Roggenkamp, 153 Wash.2d at 621, 106 P.3d 196. The definition is well settled, however, for vehicular homicide and vehicular assault cases. Id. Prior to 2003, the statute required a showing of willful or wanton disregard for the lives or property of others. But the legislature replaced that language with "reckless manner" in 2003. By doing so, it clearly intended to remove the willful and wanton standard from this statute.
¶ 10 Ms. Ratliff argues that, for purposes of the eluding statute, we should define "reckless manner" in the same way the courts define "reckless driving." As the Roggenkamp court noted, this requires "us to dismember both the term `in a reckless manner' and the term `reckless driving.'" Roggenkamp, 153 Wash.2d at 623, 106 P.3d 196. Doing so would sever "reckless" from its surrounding context and read the word as if it stood alone. Id. This proposed reading violates the rules of statutory construction. Id.
¶ 11 A single word in a statute should not be read in isolation; words may be controlled by those with which they are associated. Id. Courts should consider the meaning that naturally attaches and take into consideration the meaning that attaches from the context. Id.
¶ 12 In RCW 46.61.024, "reckless" is part of the term "in a reckless manner." That term is different from "reckless driving." See Roggenkamp, 153 Wash.2d at 623-24, 106 P.3d 196. "The terms `reckless manner' and `reckless driving' both function as single units of meaning in their respective statutes." Id. at 624, 106 P.3d 196. Both are terms of art unique to the motor vehicle laws that have long been employed by the legislature to describe driving offenses. Id.
¶ 13 "Reckless manner" has been defined as "a rash or heedless manner, with indifference to the consequences." Id. at 622, 106 P.3d 196 (citing State v. Thompson, 90 Wash. App. 41, 47-48, 950 P.2d 977 (1998)). "Reckless driving" involves a person who drives in willful or wanton disregard for the safety of persons or property. RCW 46.61.500(1). The legislature changed the eluding statute to require proof of driving in a "reckless manner" in order to be found guilty of attempting to elude a police vehicle. By deleting the language "willful and wanton disregard," the legislature also evidenced the intent to delete it as a required element of the crime. Moreover, if the legislature had intended to adopt the standard for reckless driving, it would have said so. Roggenkamp, 153 Wash.2d at 625, 106 P.3d 196 (courts are required to assume the legislature meant exactly what it said and apply the statute as written).
¶ 14 Ms. Ratliff argues the pattern instruction for eluding a police vehicle still includes the willful and wanton standard despite the 2003 amendment. Even so, jury instructions must accurately state the law. Staley, 123 Wash.2d at 803, 872 P.2d 502. The pattern instruction does not. The court *519 properly refused to give Ms. Ratliff's proposed instruction.
¶ 15 Affirmed.
WE CONCUR: SWEENEY, C.J., and SCHULTHEIS, J.
NOTES
[*] Judge Kenneth H. Kato is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326358/ | 449 S.E.2d 762 (1994)
Amos A. ESTES, Employee, Plaintiff;
v.
North Carolina STATE UNIVERSITY, Employer; Self-Insured, Defendants.
No. 9410IC40.
Court of Appeals of North Carolina.
November 15, 1994.
*763 Gene Collinson Smith, Raleigh, for plaintiff-appellee.
Michael F. Easley, Atty. Gen., by Elisha H. Bunting, Jr., Sp. Deputy Atty. Gen., Raleigh, for defendant-appellant.
LEWIS, Judge.
The issue before us is whether the Industrial Commission (hereinafter "the Commission") erred in awarding plaintiff attorney's fees pursuant to N.C.G.S. § 97-88 (1991). We note that this appeal is the third appeal of this case to this Court. A brief restatement of the procedural history of the case is necessary for resolution of the issue before us.
Plaintiff was employed by self-insured defendant and was injured in a work-related accident on 21 September 1984. Pursuant to plaintiff's request, the case was heard by a deputy commissioner, who concluded that defendant was required to pay plaintiff workers' compensation disability benefits. The deputy's opinion and award was affirmed by the full Commission. Thereafter, this Court, in Estes v. North Carolina State University, 89 N.C.App. 55, 365 S.E.2d 160 (1988), affirmed the award. The Court, in its discretion, went on to discuss a second issue, not *764 properly raised by defendant. This second issue was defendant's contention that it was entitled to a set-off or credit for certain amounts already paid to plaintiff. The Court remanded the case for a determination of the set-off issue.
On remand, a deputy commissioner concluded that defendant was entitled to a set-off or credit for the amounts already paid to plaintiff, and the full Commission affirmed. Plaintiff appealed to this Court, which reversed the decision of the Commission and remanded for reinstatement of plaintiff's claim for disability benefits. Estes v. North Carolina State Univ., 102 N.C.App. 52, 401 S.E.2d 384 (1991).
Thereafter, on 25 March 1991 plaintiff petitioned the Commission to award him interest and costs, including attorney's fees. The full Commission, by opinion and award filed 23 August 1993, awarded (1) interest, (2) an attorney's fee in the amount of twenty-five percent of the disability benefits, and (3) costs, including attorney's fees of $10,000, under N.C.G.S. § 97-88.
On appeal, defendant argues that the 23 August 1993 opinion and award is void because it was rendered after the term of Commissioner J. Harold Davis had expired. Because the vote was two-to-one, and Davis was in the majority, defendant contends, the opinion and award was not rendered by a majority of the Commission. We agree.
The Commission acts by a majority of the votes of its qualified members at the time the decision is made. Gant v. Crouch, 243 N.C. 604, 607, 91 S.E.2d 705, 707 (1956). Thus, a vote of two members constitutes a majority of the Commission empowered to act for the three-member Commission. Id. In the present case, the Commission consisted of Chairman James J. Booker, J. Harold Davis, and J. Randolph Ward. The opinion and award was signed by Chairman Booker on 4 August 1993 and was filed 23 August. Davis concurred and Ward dissented. However, Davis' term had expired 30 April 1993. Davis attached an affidavit to the opinion and award which stated that his decision had been made as of the date the Commission heard oral argument of the case, 30 September 1992, and that his decision had not changed in the interim. We cannot agree with plaintiff that Davis' vote on 30 September was a final, binding vote. The votes made after oral argument were merely preliminary votes. To say that these preliminary votes could bind the Commission would be to render meaningless the opinion and award signed and filed by the commissioners. In fact, the record in this case indicates that the Commission was still undecided about the issue of attorney's fees as late as 30 June 1993, as evidenced by a letter from Chairman Booker requesting further legal arguments from the parties on the issue. Accordingly, we hold that because Davis' term had expired at the time he signed the August 1993 opinion and award, the opinion and award is void and must be vacated.
Defendant also contends that the Commission exceeded its authority and abused its discretion in awarding attorney's fees as part of costs under N.C.G.S. § 97-88. Under section 97-88, the Commission may award attorney's fees to an injured employee if (1) the insurer has appealed a decision to the full Commission or to any court, and (2) on appeal, the Commission or court has ordered the insurer to make, or continue making, payments of benefits to the employee. § 97-88; Taylor v. J.P. Stevens Co., 307 N.C. 392, 399, 298 S.E.2d 681, 685 (1983). Whether to make such an award is in the discretion of the Commission, as is the question of a reasonable attorney's fee. § 97-88; Taylor, 307 N.C. at 397, 298 S.E.2d at 685.
In the case at hand, defendant appealed the initial award of benefits from the deputy commissioner to the full Commission and then to this Court. Both the full Commission and this Court affirmed the award of benefits. Thus, the requirements of section 97-88 are satisfied, and the Commission may award plaintiff the costs, including attorney's fees, of defending those appeals to the full Commission and to this Court.
As to the second set of appeals, it was plaintiff, and not defendant, who appealed. Therefore, plaintiff is not entitled to costs, including attorney's fees, under section 97-88. However, the Commission may *765 award plaintiff the costs, including attorney's fees, for the current appeal, as it was defendant who appealed to this Court, and we have held that the Commission could have properly awarded attorney's fees for the first set of appeals. See Poplin v. PPG Indus., 108 N.C.App. 55, 57-58, 422 S.E.2d 353, 355 (1992).
For the reasons stated, the opinion and award of the Industrial Commission is vacated and the case is remanded to the Industrial Commission for consideration of the question of attorney's fees.
Vacated and remanded.
JOHNSON and GREENE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262259/ | 421 Pa. Superior Ct. 442 (1992)
618 A.2d 420
COMMONWEALTH of Pennsylvania
v.
Dale BRISON, Appellant.
Superior Court of Pennsylvania.
Submitted October 13, 1992.
Filed December 10, 1992.
*443 Vincent P. DiFabio, Paoli, for appellant.
Terry Heyman, Asst. Dist. Atty., West Chester, for Com., appellee.
Before McEWEN, CIRILLO and BROSKY, JJ.
BROSKY, Judge.
This is an appeal from the judgment of sentence entered following appellant's convictions for one count of rape,[1] kidnapping,[2] aggravated assault[3] and carrying a prohibited offensive *444 weapon,[4] and three counts of involuntary deviate sexual intercourse.[5] Appellant presents the following issues for our review: (1) whether the verdict was against the evidence and/or the weight of the evidence; (2) whether appellant's constitutional right to a fair trial was violated by the Commonwealth's failure to comply with appellant's request for DNA testing; and (3) whether appellant was denied his constitutional right to a fair trial and effective representation by the trial court's failure to grant appellant's request for DNA testing in light of appellant's indigent status. For the reasons set forth below, we vacate the judgment of sentence and remand for further proceedings consistent with the following discussion.
Before proceeding to address the questions raised by appellant, it is necessary to briefly recount the relevant facts of this case. Shortly after midnight on July 14, 1990, the victim[6] left her apartment and proceeded towards Penn Supreme, a late-night convenience store. As she approached the store, the victim observed an individual, whom she later identified as appellant, Dale Brison, standing near a pay telephone. The victim continued walking when appellant suddenly approached her and placed one hand about her throat and the other about her waist. The victim heard a clicking noise, similar to a switchblade knife being opened, and experienced a sharp pain in her left side. The victim then fainted for a brief period of time. When she regained consciousness, she found herself walking on another street with appellant's hands still about her throat and waist. The victim tried to escape from appellant by attempting to sit down near some stone pillars and by grabbing onto a sign. The victim also screamed. The victim's efforts to escape were thwarted by appellant who threatened the victim and instructed her not to scream. Appellant ultimately led the victim into briar bushes located outside of an apartment complex. Appellant removed the victim's raincoat, her left shoe and sock, and the left leg of her jeans. Appellant *445 then forced the victim to perform and/or submit to multiple acts of fellatio and cunnilingus. Appellant also vaginally and anally raped the victim several times. After completing his brutal assault, appellant released the victim at approximately 2:45 a.m.
When the victim arrived at her home, she discovered that she was heavily bleeding from the stab wounds inflicted by appellant. The victim also had abrasions on her neck and hand which were sustained during the incident. The victim contacted the police who transported her to the hospital where she was treated for her injuries. A rape kit was also performed on the victim.[7]
Although the victim had observed appellant in the neighborhood, she did not know his name. The victim accompanied the police on several outings in an attempt to identify her assailant. On the third outing, the victim noticed appellant and mentioned this to the officer after they had walked past a group of individuals with whom appellant was standing. However, appellant had disappeared by the time the victim and the police officer returned for a closer look. Several days later, the victim observed a group of individuals standing outside her apartment building and became visibly upset when she recognized appellant in the crowd. A friend of the victim's, who was driving past, noticed the victim's distraught state and escorted her to the police station. The victim described appellant to her friend, who had also seen appellant. The victim's friend, who knew appellant, informed the police of his identity. Appellant was thereafter arrested and charged with various offenses arising out of this incident.
A jury trial was held in June 1991, following which appellant was convicted of the above crimes. Post-trial motions were filed and denied. Appellant was subsequently sentenced on February 25, 1992 to an aggregate sentence of eighteen (18) to *446 forty-two (42) years' imprisonment.[8] This timely appeal followed.[9]
Appellant first challenges the weight of the evidence presented.[10] Our scope of review regarding claims of this type has been enunciated as follows:
*447 Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge and his decision will not be reversed on appeal unless there has been an abuse of discretion. . . . The test is not whether the court would have decided the case the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.
Commonwealth v. Murray, 408 Pa.Super. 435, 436-437, 597 A.2d 111, 112 (1991) (en banc), allocatur denied, 529 Pa. 668, 605 A.2d 333 (1992), quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). We will evaluate the evidence and appellant's arguments relating thereto in accordance with these principles.
In support of his attacks on the sufficiency and weight of the evidence, appellant claims that the evidence was deficient in that the victim was unable to make a positive identification due to a variety of factors. Appellant further argues that the evidence was inadequate because the physical evidence did not link appellant to the crimes and/or suggested that the victim was attacked by someone else. Finally, appellant contends that the evidence was deficient because he presented an uncontradicted alibi. Notwithstanding appellant's arguments to the contrary, he is not entitled to relief on this basis.
The victim unequivocally and consistently testified that she was able to observe her assailant for a substantial period of time despite the darkened location, rain and diminished lighting conditions. N.T. 6/3/91 at 9, 10, 12, 16, 18, 21, 22 and 77. Moreover, the victim has consistently identified appellant as the perpetrator of the crime. Id. at 26-29. Although the victim did not describe appellant's facial features or distinguishing facial characteristics to the police, the victim's lack of specific details was a matter for the jury to consider in evaluating the victim's credibility and does not render her *448 otherwise positive identification inherently unreliable. With regard to the physical evidence, i.e., appellant's clothing, jewelry and the footprints obtained from the site of the assault, there is no question that these items either were not recovered or failed to conclusively connect appellant to the crime. The absence of such evidence, however, is not fatal to the Commonwealth's case. Again, the absence of such evidence was a factor for the jury to consider in assessing the credibility of the victim.
The same analysis is applicable to appellant's alibi and misidentification defenses. Appellant's alibi was that he was at home watching television with his mother. Contrary to appellant's argument, appellant's alibi evidence was sufficiently rebutted by the victim's testimony and no other additional evidence was required. The jury evidently rejected appellant's alibi and mistaken identity theories and resolved the conflicting versions against appellant. In light of the evidence presented by the Commonwealth, we discern nothing shocking about the jury's verdict which makes the award of a new trial imperative. We likewise conclude that the Commonwealth's evidence was more than sufficient to establish all of the elements of the crimes for which appellant was convicted. Appellant thus is not entitled to either a new trial or an arrest of judgment on this basis.
Appellant next asserts in his second and third allegations of error that he was denied due process because both the Commonwealth and the lower court failed to have DNA testing performed on samples taken from the victim despite appellant's repeated requests and indigent status. As these matters are intertwined, they will be discussed together. Neither of the parties refers us to any relevant authority which is dispositive of appellant's claims. Our own research likewise has not disclosed any apposite Pennsylvania cases. We have nevertheless uncovered several decisions from our sister states which have had the opportunity to address questions similar to that now raised by appellant. These decisions are summarized as follows.
*449 The New York courts first examined this question in the case of In the Matter of Dabbs v. Vergari, 149 Misc.2d 844, 570 N.Y.S.2d 765 (Sup.Ct.Westchester Co.1990). In Dabbs, the defendant was tried and convicted, and his convictions were ultimately affirmed on appeal; DNA testimony was not available at the time of the defendant's trial. The defendant subsequently sought post-conviction discovery relating to DNA testing. In granting the defendant's request, the court reasoned:
it is well established that, notwithstanding the absence of a statutory right to post-conviction discovery, a defendant has a constitutional right to be informed of exculpatory information known to the State[.] [S]ee generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 216 [215] (1963) . . . . A corollary to the duty of disclosure is the duty to preserve exculpatory material[.] . . . By a parity of reasoning, where evidence has been preserved which has high exculpatory potential, that evidence should be discoverable after conviction. Due process is not a technical conception with a fixed content unrelated to time, place and circumstances. It is flexible and calls for such procedural protections as the particular situation demands. Clearly, an advance in technology may constitute such a change in circumstance[.] . . . [I]f [defendant] were to be tried now, he would be entitled to DNA testing of the physical evidence. The need for testing is analogous to that considered in [cases] where the evidence was a controlled substance. [In such cases, a] defendant's guilt or innocence h[a]ng[s] exclusively on the nature and amount of the substance in question. For refutation of the charges against him, there [i]s no acceptable alternative to scientific testing by experts of his choice. Similarly, in this case, while it is unclear what [DNA] testing will ultimately reveal, . . . [i]f DNA testing could exclude semen from the attacker as belonging to [defendant], it would strongly impeach the credibility of the victim's identification of [defendant]. [To] deny [defendant] the opportunity to prove his innocence with such evidence simply to ensure the finality of convictions is untenable.
*450 Id., 149 Misc.2d at 847-850, 570 N.Y.S.2d at 767-769 (citations omitted).
The New York court revisited a similar issue in People v. Callace, 151 Misc.2d 464, 573 N.Y.S.2d 137 (Suffolk Co.Ct. 1991), in which the defendant again requested that post-conviction DNA testing be performed despite the fact that such testing was not available at the time of his trial. Although the court disagreed with the exculpatory evidence analysis applied in Dabbs, it nevertheless granted the defendant's request on the basis that DNA testing of the samples constituted after-discovered evidence. Id., 151 Misc.2d at 464, 573 N.Y.S.2d at 139-140.
The New Jersey Superior Court has likewise considered the question of a defendant's post-conviction entitlement to DNA testing in State v. Thomas, 245 N.J.Super. 428, 586 A.2d 250 (App.Div.1991). In Thomas, DNA tests were not performed at the time of the defendant's trial. Prior to sentencing, the defendant requested that the prosecutor have the test performed at the state's expense, due to the exorbitant cost of the test. The defendant further filed a motion seeking to compel the state to make the rape kit performed on the victim available for testing. On appeal, the court discussed DNA testing as well as its evolution as a diagnostic tool in criminal cases and suggested that the state's failure to submit material for DNA analysis may implicate its obligation to reveal exculpatory evidence, as set forth in Brady v. Maryland. Id., 245 N.J.Super. at 432-434, 586 A.2d at 252-253. In concluding that considerations of fundamental fairness required the DNA testing, the court explained:
Our system fails every time an innocent person is convicted, no matter how meticulously the procedural requirements governing criminal trials are followed. That failure is even more tragic when an innocent person is sentenced to a prison term. . . . We regard it as . . . important to rectify that failure. . . . Victim identification, however sincere, is notoriously unreliable. The other proofs offered here contradicted the reliability of the identifications, which were the sole evidence against defendant. . . . There is a possibility, *451 if not a probability, that DNA testing now can put to rest the question of defendant's guilt. . . . We would rather [permit the testing] than sit by while a [possibly] innocent man . . . languishes in prison while the true offender stalks his next victim. . . . The precedent we create here, if any, is that in a criminal case, when the State's proofs are weak, when the record supports at least a reasonable doubt of guilt, and when there exists a way to establish guilt once and for all, we will not elevate form so highly over substance that fundamental justice is sacrificed.
Id., 245 N.J.Super. at 435-436, 586 A.2d at 254.
The Indiana appellate court has also spoken on this issue. Finding the New York and New Jersey cases persuasive, Indiana has authorized DNA tests to be performed despite the fact that such testing was not available at the time of the defendant's trial. Sewell v. State, 592 N.E.2d 705, 707-708 (Ind.App.Dist. 3 1992). In support of its decision, the court stated:
Advances in technology may yield potential for exculpation where none previously existed. The primary goals of the court when confronted with a request for the use of a particular discovery device are the facilitation of the administration of justice and the promotion of the orderly ascertainment of truth. Moreover, where the State possesses exculpatory evidence, such evidence is discoverable notwithstanding a lack of strict compliance with normal discovery procedures. . . . The potential for exculpation by DNA comparison parallels the potential for accurate identification. Therefore, Brady [v. Maryland] is implicated in post-conviction requests for forensic tests only where a conviction rested largely on identification evidence and advanced technology could definitively establish the accused's innocence.
Id., 592 N.E.2d at 708.
The courts of Minnesota and Connecticut have similarly found DNA testing to implicate the concerns at issue in Brady v. Maryland. See State v. Schwartz, 447 N.W.2d 422, 427 (Minn.1989) (providing that constitutional concerns addressed in Brady encompass information relating to DNA testing *452 because such evidence is material to the issue of guilt and could have an impact on the trial outcome; accordingly, such evidence must be disclosed to the defendant) and State v. Hammond, 221 Conn. 264, 290-296, 604 A.2d 793, 806-808 (1992) (indicating that state's failure to have DNA tests performed on the vaginal swabs taken from the victim where DNA tests previously performed on the victim's clothing exculpated the defendant may have constituted a breach of duty to disclose exculpatory evidence which would have affected the outcome of the case). But see Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S.Ct. 333, 337-338, 102 L.Ed.2d 281, 290 (1988) (providing, in dicta, that the due process clause is not violated when the police fail to use a particular investigatory tool, such as a newer test, on semen samples).
We find the reasoning expressed by the courts of our sister states to be persuasive and compelling. The DNA testing process has been acknowledged by the courts as well as the national scientific community for its extraordinary degree of accuracy in matching cellular material to individuals. See State v. Thomas, 245 N.J.Super. at 433-434, 586 A.2d at 252-253; Commonwealth v. Rodgers, 413 Pa.Super. 498, 511, 605 A.2d 1228, 1235 (1992) and the authorities and literature referenced therein. Since its use in the legal forum, nearly all of the decisions which have considered whether DNA test results are admissible, including Pennsylvania, have permitted such evidence to be admitted.[11]See State v. Montalbo, 73 Haw. 130, 144-145, n. 7, 828 P.2d 1274, 1283 n. 7 (1992); Commonwealth v. Rodgers, supra. And as scientific technology continues to advance, DNA analysis may eventually become as widely accepted as routine and decisive as fingerprint or other types of evidence. State v. Thomas, 245 N.J.Super. at 434, 586 A.2d at 253.
In view of the wide acceptance and admissibility of DNA test results and the ability of such testing to accurately and definitively inculpate or exclude an individual as the perpetrator *453 of the crime, we agree with appellant that DNA tests should have been performed on the samples taken from the victim in this case. The Commonwealth's evidence consisted primarily of the victim's identification testimony. However, the victim's stab wounds in addition to the weather and reduced visibility may well have affected the victim's ability to accurately view her assailant, and thus, she may have been prompted to identify appellant merely because she remembered seeing him in the neighborhood.[12] Moreover, the victim did not specifically describe any of her assailant's facial characteristics to the police. There was also no conclusive physical evidence, aside from a single hair sample which may have been consistent with any male of african-american descent, linking appellant to the crime. Had tests been conducted and found to exculpate or exclude appellant as the perpetrator, admission of the test results and the other evidence may well have provided sufficient reasonable doubt to secure an acquittal. In the alternative, inculpatory results would certainly have strengthened the Commonwealth's case by providing concrete corroboration of the victim's identification. Under these circumstances, principles of justice require us to vacate appellant's conviction and remand to the trial court for the performance of DNA analysis on the samples taken from the victim.[13]
*454 Judgment of sentence vacated. Remanded for further proceedings consistent with the foregoing discussion. Jurisdiction relinquished.
NOTES
[1] 18 Pa.C.S.A. § 3121(1) and (2).
[2] 18 Pa.C.S.A. § 2901(a)(3).
[3] 18 Pa.C.S.A. § 2702(a)(1) and (4).
[4] 18 Pa.C.S.A. § 908(a).
[5] 18 Pa.C.S.A. § 3123(1) and (2).
[6] The female victim was approximately thirty-seven years of age at the time of the incident.
[7] Samples obtained from the rape kit and the victim's undergarments confirmed the fact that the victim had been raped. In addition, tests revealed that a hair sample found on the victim's body was consistent with that of appellant.
[8] Specifically, appellant received a sentence of eight (8) to twenty (20) years for his rape and kidnapping convictions. These were directed to run concurrently with each other. Appellant was further sentenced to four (4) to ten (10) years' imprisonment on his conviction for aggravated assault; this sentence was directed to run consecutively with that imposed on appellant's rape and kidnapping convictions. Appellant was also given a six (6) to twelve (12) year sentence on each of his three convictions for involuntary deviate sexual intercourse. Although these sentences were directed to run concurrently with each other, they were to be served consecutively to appellant's other sentences. Finally, the lower court imposed a sentence of six (6) to twelve (12) months on appellant's conviction for possessing a prohibited offensive weapon; this sentence was directed to run concurrently with all of appellant's other sentences.
[9] In his jurisdictional statement, appellant indicates that we may exercise jurisdiction over this appeal pursuant to Pa.R.A.P., Rule 341, 42 Pa.C.S.A. Appellant is in error. Jurisdiction over this appeal is vested in this court pursuant to § 742 of the Judicial Code, 42 Pa.C.S.A.
[10] Appellant also argues that the verdict was against the evidence. Although this appears to be a reiteration of appellant's assertion that the verdict was against the weight of the evidence, we note that appellant recites the test for evaluating the sufficiency of the evidence with respect to this claim. Appellant's Brief at 10. It thus appears that appellant has confused and commingled his sufficiency and weight of the evidence claims. As explained by this court, these matters should not be confused as they involve discrete inquiries. See Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984) (discussing the distinctions between and different tests for evaluating challenges to the sufficiency and weight of the evidence). In light of appellant's confusion, we will thus treat appellant's claim that the verdict was against the evidence as a challenge to the sufficiency of the evidence. In reviewing matters of this type, the test is:
[w]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979).
[11] DNA evidence has been excluded in a few jurisdictions because of error in performance of the test or inaccurate methods. See State v. Montalbo, 73 Haw. 130, 144-145, n. 7, 828 P.2d 1274, 1283 n. 7 (1992).
[12] The testimony at trial revealed that appellant and the victim lived on the same street within a few blocks of each other. N.T. 6/3/91, Vol. I, at 32 and N.T. 6/4/91, Vol. II, at 218.
[13] Upon receipt of the test results, the trial court must ascertain whether appellant is entitled to a new trial. See Commonwealth v. Brosnick, 530 Pa. 158, 160-62, 607 A.2d 725, 727 (1992) (discussing standard for evaluating whether after-discovered evidence warrants the award of a new trial). In deciding this question, the trial court must necessarily consider whether the test results would be admissible. See id. This determination should be performed in accordance with our decision in Commonwealth v. Rodgers, 413 Pa.Super. at 507-515, 605 A.2d at 1233-1236 (discussing the admissibility of DNA test results). The judgment of sentence should be reinstated in the event that a new trial is not required.
Based on the record currently before us, we do not know whether the specimens taken from the victim are still available for testing. Our holding is thus contingent upon the continued existence of these materials. If the samples have not been preserved by the Commonwealth and there is no hint of bad faith in failing to preserve the evidence, the judgment of sentence must be reinstated. See, e.g., Arizona v. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289 (1988) (holding that absent bad faith on the part of the police, the failure to preserve potentially useful evidence does not constitute a denial of due process of law); Commonwealth v. Tillia, 359 Pa.Super. 302, 310-314, 518 A.2d 1246, 1250-1252 (1986); Commonwealth v. Gamber, 352 Pa.Super. 36, 42-44, 506 A.2d 1324, 1327-1329 (1986) (same). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262280/ | 24 Cal.Rptr.3d 895 (2005)
127 Cal.App.4th 248
Barbara DIECKMEYER, Plaintiff and Respondent,
v.
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH et al., Defendants and Appellants.
No. G031869.
Court of Appeal, Fourth District, Division Three.
February 28, 2005.
*896 Jennifer McGrath, City Attorney, and Scott F. Field, Assistant City Attorney, for Defendants and Appellants.
*897 Craton & Switzer and Curt R. Craton, Long Beach, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
The Redevelopment Agency of the City of Huntington Beach and the City of Huntington Beach (collectively the City unless otherwise stated) appeal from a judgment that directed issuance of a writ of mandate. The writ compelled the City to accept prepayment of Barbara Dieckmeyer's promissory note and reconvey a deed of trust securing the note. The City argues it was entitled to impose additional conditions on repayment, to protect its right to an equity share and ensure compliance with recorded affordable housing restrictions. Alternatively, the City argues the existing deed of trust will survive prepayment and remain as security for these additional obligations.
We conclude partial performance of a secured obligation does not extinguish the lien. Since the deed of trust secures both the note and other promises, payment of the former will not affect the security for the latter. Dieckmeyer can prepay the loan without the City's new conditions, but she is not entitled to reconveyance of the trust deed. We reverse the judgment to correct that error.[1]
* * *
In March 1994, Dieckmeyer purchased a condominium offered under an affordable housing program. Certain restrictions were imposed as part of that program. They are reflected in a "Declaration of Covenants, Conditions, and Restrictions for Affordable Housing" (CC & R's) previously recorded by the developer. The CC & R's are binding on any successor in interest to the property "or any part thereof." They are for the benefit of the City and remain in effect for 30 years (denominated the "affordability period").
The CC & R's set an affordable price for the units. An income limit is set for initial buyers. Occupancy is restricted to lower or moderate income households, as defined. There are two limits on future purchasers and occupants. First, the developer must require all buyers to record a covenant to run with the land and bind successors "that will ensure that all subsequent Buyers and occupants qualify as low, very low or moderate income households." Second, the developer must include in each deed a provision that incorporates the CC & R's and makes them binding on successors and all occupants. There is an exception: "Owner-occupants who were qualified buyers on the date of sale but are no longer qualified by virtue of an elevation of household income since the date of sale will not be subject to this affordability covenant."
The CC & R's further provide that units shall not be sold, leased, or transferred without written approval from the City. Any such act in violation of the CC & R's is declared void. If the City fails to respond *898 to a request for approval within 30 days, it is deemed to consent.
Dieckmeyer's deed includes a clause in which she consents to the CC & R's. She also covenants, for herself, her successors, and assignees, that "all subsequent buyers and occupants of the Unit will qualify as Low, Very Low, or Moderate Income Households as defined in the [CC & R's]."
The City helped Dieckmeyer finance the purchase with a $23,000 loan to cover closing costs, loan fees, and the down payment. The parties executed a loan agreement, note, and deed of trust.
The loan agreement sets out various terms and conditions. Section 1 states that the loan, together with accrued interest and an equity share, are due when Dieckmeyer sells the property to a non-qualified buyer, fails to comply with the terms of the loan agreement, trust deed and rider, CC & R's, or any requirement of the affordable housing program. Section 3 contains an acceleration clause. It provides that the loan, accrued interest, and the equity share "shall be due and payable" upon sale, transfer, or other disposition to anyone except a purchaser approved by the City; refinancing the first mortgage for more than its existing balance or for a longer term; material default under the loan agreement or CC & R's; breach of the note or trust deed; or the borrower's death, subject to certain exceptions.
Section 4 provides the equity share is not due if the property is sold to a low or moderate income buyer approved by the City, and the buyer assumes the loan. It goes on as follows: "If the [City] is unable to verify the Buyer's income .... the Equity Share Amount shall be due and payable concurrent with the repayment of the Note Amount plus interest."
Section 12, entitled "Equity Share," states in part as follows: "In the event that the [note] becomes due and payable prior to the thirtieth anniversary of the date of this Agreement, [Dieckmeyer] shall pay to [City] concurrent with the principal and accrued interest, an amount equal to the `equity share.'" The equity share is a percentage of the profit on the sale. It declines from 50 percent, if the property is sold within 5 years of purchase, to zero if the sale takes place after 30 years.
A further assurances clause requires Dieckmeyer to "execute any further documents consistent with the terms of this Agreement, including documents in recordable form, as the [City] shall from time to time find necessary or appropriate to effectuate its purposes in entering into this Agreement and making the Loan."[2]
The note refers to the loan agreement and CC & R's. It provides the principal and interest are due when the property is sold, or upon the occurrence of various events specified in an acceleration clause that is functionally the same as that in the loan agreement.[3] The note also addresses the equity share if the property is transferred to a buyer qualified to participate in *899 the affordable housing program who is approved by the City, "no equity share amount shall be due." Such a buyer may assume the loan. Prepayment is permitted: "Privilege is reserved to make prepayments of principal on this Note without penalty or fee."
The deed of trust secures repayment of the note, future advances or obligations of the borrower, and "[p]erformance of each and every obligation, covenant, promise or agreement of Trustor contained herein in the Loan Agreement between Beneficiary and Trustor ... and in that certain Affordable Housing Agreement [the CC & R's] currently recorded on the property...."
In 2001, Dieckmeyer asked the City for a loan payoff amount. She explained she was thinking of prepaying the loan or selling the condominium. Later, Dieckmeyer decided to prepay. The City provided the payoff amount. At first, it demanded payment of the equity share. After further correspondence, the City changed its mind and told Dieckmeyer she could prepay the loan without the equity share. But there was a hitch. The City wanted Dieckmeyer to execute a "zero promissory note and second deed of trust." The new trust deed would secure payment of the equity share and performance of the affordable housing restrictions. According to the City, this was necessary to give notice of the restrictions to any subsequent purchaser, and to give notice of any pending sale to the City (presumably because a buyer would have to contact the City regarding the new trust deed).
Dieckmeyer responded with the instant writ petition. After reciting the facts set out in the preceding paragraph, the petition alleges the loan documents do not require Dieckmeyer to execute a zero note or deed of trust as a condition of prepayment. She prays for a peremptory writ of mandate to compel the City to provide a payoff amount, accept payment, cancel the note, and reconvey the deed of trust.
The answer sets out several affirmative defenses. Two are relevant to this appeal. The City asserts Dieckmeyer breached the loan documents (the alleged breach is not specified), and the equity share is due because the note was accelerated under the loan agreement. The City also submitted opposing declarations from two officials, in which they describe the affordable housing program and explain why the City needs the zero note and deed of trust.
The trial court received in evidence the loan documents and correspondence referred to above, and it heard oral argument. In a statement of decision, the court found the loan documents did not require Dieckmeyer to execute the zero note and trust deed as a condition of prepayment. It did not explain why. The court also determined Dieckmeyer was no longer subject to the CC & R's, since she could take refuge under the increased income exception. And the court found the equity share was not due, none of the triggering events having occurred.
Judgment was entered granting the petition. A later order awarded Dieckmeyer attorney fees of $23,405.50, finding reciprocal a provision in the note that the borrower is liable for fees in an action to enforce or construe the note or trust deed.
I
The City appears to argue the equity share is due on prepayment. We say "appears" because there are ambiguous statements in the City's reply brief that first back away from the argument, then return to it. In any event, there is nothing to the point.
Section 12 of the loan agreement requires payment of equity share if the loan "becomes due and payable prior to the *900 thirtieth anniversary of the date of this Agreement." Two provisions bear on when that happens. Section 1 states the loan is payable upon sale to a non-qualified buyer, breach of the loan agreement, deed of trust, CC & R's, "any other law, requirement or condition of the Affordable Housing Program or governmental entity." Section 3, the acceleration clause, provides the loan is also payable on sale, transfer, or other disposition to a purchaser not approved by the City; refinancing the first mortgage for an amount in excess of the then-current balance; default under the loan agreement, CC & R's, note or deed of trust; or death of the borrower unless survived by a household member who is qualified to participate in the affordable housing program.
None of these events has yet occurred so prepayment of the note does not entitle the City to the equity share. Prepayment is not a breach of the loan documents, CC & R's, or any law pointed to by the City, nor is it one of the events listed in the acceleration clause. While the City could have written the loan agreement to make the equity share due upon prepayment of the note, it did not.
The City's arguments to correct this oversight, if such it was, are not persuasive. It contends section 12 of the loan agreement provides the equity share is due if the loan "was paid" prior to its 30th anniversary. But that misstates the record. Section 12 says the equity share is payable if the loan becomes "due and payable" before the 30-year mark. Prepayment does not make the loan due and payable as defined in the loan agreement, so section 12 does not help the City.
Equally wide of the mark is the contention that under section 5 of the loan agreement, the only time the equity share is not due is upon sale to an approved buyer who assumes the loan. That is not so. Section 5 excuses the obligation upon sale to a qualified, assuming buyer. But saying when an obligation is excused cannot create an obligation that does not exist. Other provisions, set out above, state when the equity share is due. That happens only upon certain events, and prepayment is not one of them. So the equity share is not due upon prepayment of the note.
II
The City argues it is entitled to demand the zero note and trust deed under the further assurances clause, and it needs those documents to preserve its equity share and the restrictions in the CC & R's. Alternatively, the City argues the existing deed of trust will survive prepayment of the note and remain as security for performance of the the equity share. On the latter issue, Dieckmeyer responds that prepayment of the note will extinguish the equity share, whereupon she will be entitled to reconveyance of the deed of trust.
We conclude the zero note and deed of trust are unnecessary since the existing deed of trust secures multiple obligations. Prepayment of the note will not relieve Dieckmeyer of the equity share obligation. It will satisfy one secured obligation, the note, but it will not extinguish the security for the others.
A
Dieckmeyer advances several arguments why prepayment of the note extinguishes the equity share. As a corollary, she argues prepayment entitles her to reconveyance of the deed of trust. We consider the first point here, and the second in Part IIB.
Dieckmeyer first contends the loan documents show the equity share is extinguished upon prepayment of the note. *901 The argument goes like this. Sections 4 and 12 of the loan agreement provide the equity share, if due, is to be paid "concurrent" with repayment of the note.[4] Prepayment extinguishes the loan but does not trigger the equity share. Thereafter, the equity share can never be paid concurrent with repayment of the note, so it, too, must be extinguished by prepayment. It is a good argument, but one we cannot agree with.
We do not read the loan agreement as allowing a borrower to both prepay the loan and simultaneously terminate the City's equity share. Prepayment will not affect the equity share, which will remain due upon sale to a buyer who is not of low or moderate income, or upon any of the conditions or breaches specified in the agreement.
The concurrent repayment language of sections 4 and 12, reasonably read, does not indicate the parties intended prepayment to extinguish the equity share. Section 4 states the equity share is due "concurrent with repayment" of the note. Section 12 says it is due "concurrent with the principal and accrued interest." This means no more than the equity share is due at the same time as the note comes due under the loan agreement.
To say use of the word "concurrent" means the equity share cannot be paid later is manifestly unreasonable. It would require us to infer the parties contemplated prepayment and used very obscure language to say prepayment releases the equity share. We find it difficult to believe the parties intended to deal with such an important point in such a back-handed way.
More fundamentally, the argument rests on circular reasoning. The problem arises because the loan agreement does not deal with the impact of prepayment on the equity share, so an interpretation that assumes it was considered does not advance the analysis. And, at bottom, Dieckmeyer's reading conflicts with the purpose for the equity share. The equity share is designed to recapture some of the profit if the unit is sold at market price, outside of the affordable housing program, during the 30-year affordability period when the CC & R's are in effect. That purpose would be undermined if the equity share could be eliminated by the simple expedient of prepaying the City's small down payment/closing costs loan. Reasonably read, the loan documents do not say prepayment extinguishes the equity share.
Next, Dieckmeyer argues the equity share is "not an ongoing form of profit participation mandated by law." There are actually two points here. First, the equity share is unenforceable after prepayment because it cannot survive as either a debt or profit participation share. Second, the City does not need the equity share to carry out its affordable housing program. Both are red herrings.
The loan agreement characterizes the parties' relationship as debtor and creditor, not joint venturers or partners. From this, Dieckmeyer reasons the equity share is unenforceable as a share of the profit from sale of her condominium, and it cannot be enforced as a debt because prepayment of the loan extinguishes the debt. But Dieckmeyer fails to explain why characterization of the obligation affects its validity, or cite any supporting authority, and we remain unconvinced.
The statutory argument is that inclusion of an equity share in the sale of affordable housing is permitted by statute, *902 but not required (Health & Saf.Code, § 33334.3, subd. (f)(1)(B)), and the City does not need the equity share to protect its investment in the Dieckmeyer's property. The argument is legally unsound and presumptuous. Inclusion of an equity share is authorized by law, in the City's discretion, not Dieckmeyer's. It is a means of recovering a portion of the proceeds realized when an affordable housing unit is sold for more than an affordable housing price, and the proceeds received must be deposited in a special Low and Moderate Income Housing Fund to be used for the eponymous purpose. (Health & Saf.Code, § 33334.3, subds. (c), (f)(1)(B).) Dieckmeyer chose to take advantage of the affordable housing program and enter into the loan agreement. If she felt the equity share was an unfair or unwise term, she should not have purchased the property. Having done so, Dieckmeyer cannot now complain about terms she accepted.[5]
Finally, Dieckmeyer argues that imposing the equity share after prepayment violates a legislative intent to expand housing opportunities for people of all economic levels, because it would deny her profits she could use to buy a better home. She is far wide of the mark.
The legislative intent relied upon is found in a statute that deals with the housing elements of the general plan that cities and counties are required to adopt. (Gov.Code, § 65580 et seq.) A preamble declares, inter alia, "the early attainment of decent housing and a suitable living environment for every Californian ... is a priority of the highest order." (Gov.Code, § 65580, subd. (a.).) It also says early attainment of this goal requires government and private cooperation "to expand housing opportunities and accommodate the housing needs of Californians of all economic levels." (Id., subd. (b).)
Nothing in this legislative policy allows Dieckmeyer to avoid the terms of a contract she entered into voluntarily. Dieckmeyer claims that holding her to the equity share denies lower income earners the opportunity to improve their financial condition, stifles housing opportunity because she cannot buy a better home, and would force her to "forfeit the American dream of home ownership if she relocates." Hyperbole aside, what Dieckmeyer is trying to do is get out of a contract in order to make more money. As we have said, if Dieckmeyer did not like the deal, she should not have taken it. Having enjoyed the benefits of owning a home through the affordable housing program, she cannot now reject its obligations.
The bottom line is the equity share will not be extinguished by prepayment of the loan made by the City. We turn to the impact of prepayment on the trust deed.
B
Dieckmeyer argues the property must be reconveyed upon prepayment of the loan pursuant to the reconveyance clause in the trust deed, and because the City previously conceded reconveyance was required. We cannot agree.
*903 A mortgage or deed of trust is security "for the performance of an act." (Civ.Code, § 2920, subd. (a).) While the obligation most often secured is payment of a note, it may also be performance of a contract. (Stub v. Belmont (1942) 20 Cal.2d 208, 213-214, 124 P.2d 826; 4 Miller & Starr, Cal. Real Estate (3d ed.2000) § 10:10, pp. 39-40.) Partial performance of the obligation secured does not extinguish the lien. (Civ.Code, § 2912.)
Here, the existing trust deed secures the note and performance of the obligation of the loan agreement and CC & R's. If the note is paid, that will be part performance of the secured obligation. But such payment does not extinguish the security. The trust deed will remain as security for payment of the equity share, along with Dieckmeyer's other obligations under the CC & R's and the loan agreement.
Dieckmeyer argues the reconveyance clause in the trust deed requires reconveyance upon prepayment of the note. It provides that "upon written request of the Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and said Note or Notes to Trustee for cancellation and retention, ... Trustee shall reconvey, without warranty, the property held hereunder." Dieckmeyer's position is that with prepayment of the note, all sums secured will have been paid because she does not owe the equity share. But the argument against the equity share is no more persuasive here than it was earlier (see Part IIA, above), so the language of the reconveyance clause does not help Dieckmeyer.[6]
Dieckmeyer also points out that prior to oral argument, the City took the position it was required to reconvey the property upon prepayment of the loan. She suggests it cannot now make a different argument, without explaining why or citing any authority. The point is not well taken. A party may raise a new theory on appeal where it involves a purely legal question (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847, 60 Cal.Rptr.2d 780), and the City's supplemental brief argues reconveyance is not required. The failure to raise the argument previously did not waive the issue.
So prepayment of the note does not eliminate the equity share, and the deed of trust will remain as security for that obligation along with performance of the other obligations of the loan agreement and the CC & R's.
III
We address briefly whether Dieckmeyer is released from the obligations of the CC & R's under the increased income exception. She is not.
The exception states that "[o]wner-occupants who were qualified buyers on the date of sale but are no longer qualified by virtue of an elevation of household income since the date of sale will not be subject to this affordability covenant." The term "affordability covenant" is not defined in the CC & R's.
We think the only reasonable interpretation of the exception is that it frees an owner from the occupancy restriction (low/moderate income households), but nothing more. This allows an owner to keep his home despite an increase in income, and it preserves the remaining restrictions. It also accords with the obvious purpose of preserving the condominium *904 project as low/moderate income housing for the 30-year duration of the CC & R's. Nothing suggests the parties intended to undercut the 30-year restrictions by allowing each unit to be sold at market price when the owner's income increases, and we are unwilling to interpret the exception in a way that leads to such an anomalous result. This accords with our duty to interpret a declaration of covenants, conditions and restrictions in a way that is both reasonable and carries out the intended purpose of the contract. (Battram v. Emerald Bay Community Assn. (1984) 157 Cal.App.3d 1184, 1189, 204 Cal.Rptr. 107.)
IV
The City argues the fee award should be reversed because Dieckmeyer sought a writ of mandate rather than commencing an action for breach of contract. We cannot agree.
The City concedes the note and deed of trust contain fee clauses that would be reciprocal had Dieckmeyer sued for breach of contract or declaratory relief. But, it says, Civil Code section 1717 only makes a fee clause reciprocal in an "action on a contract," and this is a special proceeding. Granted there is a distinction between an action and a special proceeding. (Code Civ. Proc., §§ 20-23.) But the City makes no effort to explain the scope of that procedural distinction, why "action" in Civil Code section 1717 should not be read as synonymous with "lawsuit," or what policy would be served by the narrow reading it advocates. While we cannot say how we would decide the issue if appropriately briefed, in this case the appellant has failed to carry its burden of affirmatively demonstrating error in the judgment below.
Alternatively, the City argues that if we reverse in part, the fee award should also be reversed. Its reasoning goes like this: If we hold Dieckmeyer remains subject to the CC & R's and the equity share, it will have won in part, requiring reconsideration of the prevailing party question. But this point was raised for the first time in the City's reply brief, and that is too late. An appellant's failure to raise an argument in its opening brief waives the issue on appeal. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361, 282 Cal.Rptr. 330.) There was no error in the fee award.
In sum, Dieckmeyer can prepay the loan without executing the zero note and deed of trust demanded by the City. But she is not entitled to reconveyance of the deed of trust, since it also secures performance of the loan agreement and CC & R's.
The judgment is reversed. The trial court shall enter a new judgment that directs the issuance of a writ of mandate to compel the City to provide Dieckmeyer with a payoff amount for the note, accept payment, and cancel the note. Dieckmeyer shall not be required to pay the equity share, nor to execute a zero note or new deed of trust. The City shall not be required to reconvey the existing deed of trust upon prepayment of the note. In the interests of justice, each side shall bear its own costs on appeal.
WE CONCUR: SILLS, P.J., and RYLAARSDAM, J.
NOTES
[1] This is the second time we consider this case. Dieckmeyer's petition for review of our prior opinion was granted. The Supreme Court transferred the case to this court with directions to vacate our opinion and determine whether the issue on which the case was decided was fairly encompassed within the parties' briefs. To afford the parties all benefit of the doubt, we invited them to submit supplemental briefs on two questions: (1) assuming the note may be prepaid, would prepayment extinguish the equity share, and if not, when would the equity share be due; (2) assuming prepayment does not extinguish the equity share, would prepayment entitle Dieckmeyer to reconveyance of the deed of trust. Both sides responded. In this opinion, we discuss those issues and reach the same conclusion as before.
[2] Mention should also be made of a rider to the trust deed, which for the most part repeats the provisions of the loan agreement. The CC & R's, the deed to Dieckmeyer, and the deed of trust were all duly recorded. The remaining documents were not.
[3] The acceleration clause provides the note is due upon the following events: (a) sale to a buyer not approved by the City as qualified to participate in the affordable housing program; (b) refinancing of a senior lien for more than its existing balance; (c) the borrower's failure to occupy the unit as a principal residence, breach of the underlying loan agreement, or breach of the CC & R's; (d) the closing of probate following the borrower's death; (e) default on the note; or (f) default on the deed of trust.
[4] Dieckmeyer also cites sections of the rider, but they simply repeat the provisions of the loan agreement and do not add to her arguments.
[5] Dieckmeyer also implies the equity share is an invalid penalty, citing Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970, 73 Cal.Rptr.2d 378, 953 P.2d 484. The reliance is misplaced. Ridgley held a late payment charge of six months' interest on the principal balance of a $2.3 million loan was unenforceable as a liquidated damage clause, since the charge bore no reasonable relationship to the anticipated damages. Here, the equity share is not liquidated damages. Rather, it is a statutorily authorized recovery of a portion of the proceeds in excess of the affordable housing resale price of the property, to be used for additional low and moderate income housing.
[6] Dieckmeyer does not suggest the "all sums secured" language in the reconveyance clause excludes the non-monetary obligations of the loan agreement and the CC & R's, so we have no occasion to consider that issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262284/ | 26 Cal.Rptr.3d 190 (2005)
127 Cal.App.4th 979
The PEOPLE, Plaintiff and Respondent,
v.
David Bruce SAFFOLD, Defendant and Appellant.
No. B174110.
Court of Appeal, Second District, Division Six.
March 24, 2005.
Review Denied June 22, 2005.
*191 Esther R. Sorkin, Ventura, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang, Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Defendant is convicted for disobeying a domestic relations order. (Pen.Code, § 273.6, subd. (a).)[1] As evidence that he was served with notice of the order, the trial court admitted the proof of service.
Here we conclude that the admission of this evidence did not violate his right to confront witnesses under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.
David Bruce Saffold appeals a judgment after conviction of felony elder abuse, misdemeanor false imprisonment, and seven counts of misdemeanor disobeying a domestic relations order. (§§ 368, subd. (b)(1), 236, 237, & 273.6, subd. (a).) We affirm.
FACTS AND PROCEDURAL HISTORY
David Saffold resided with his parents at a home on Kenwood Drive in Santa Barbara.[2] In 1980, David, then a young adult, burned down the family home because his parents no longer would allow him to live there. Following commitments to Atascadero State Hospital and Patton State Hospital, David lived in various places. In 1996, he returned to live in a trailer in the driveway of the family home.
At times, David had behaved violently toward his parents. His father testified that "violence has been a mode of life for [David]." Throughout early 2003, Mr. Saffold insisted that his son vacate the trailer due to problems created by his drug abuse and mental illness.
On August 18, 2003, Mr. Saffold awakened David and demanded that he leave that daythe forewarned "deadline" for moving. David became angry and assaulted his father by grabbing his face and shoulders, and shaking him. Mr. Saffold, then 72 years old, disabled, and physically frail, suffered a facial laceration and bruising on his arm. Mrs. Saffold stopped the assault on her husband by biting David and screaming.
Mr. Saffold left the family home and sought the assistance of Legal Aid. That office summoned police officers and assisted the Saffolds in obtaining a temporary restraining order against David. The August 25, 2003, restraining order that the Saffolds obtained prohibited David from contacting them. Mr. Saffold also obtained an emergency protective order against David.[3]
*192 On August 27, 2003, at 1:20 P.M., Santa Barbara County Deputy Sheriff Elroy Allain served the temporary restraining order and related documents upon David at the Santa Barbara County jail. Allain executed a "Proof of Service" on a Judicial Council form attesting to the details of service upon David. Allain did not testify at trial. The trial court admitted evidence of the proof of service.
During his incarceration in county jail, David repeatedly telephoned his parents and mailed them letters. Counts 8 and 10 of the second amended information concern telephone calls placed by David on September 2, 2003, and September 6, 2003, in violation of the temporary restraining order. County jail officers recorded the telephone calls, and the recordings were received into evidence at trial.
The trial court convicted David of felony elder abuse, misdemeanor false imprisonment, and seven counts of misdemeanor disobeying a domestic relations order. (§§ 368, subd. (b)(1), 236, 237, & 273.6, subd. (a).) The trial court sentenced him to a prison term of three years, including concurrent terms for the misdemeanor convictions.
David appeals and contends that evidence of the proof of service violates his Sixth Amendment constitutional right to confront witnesses. (Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [constitutional principles mandate that the reliability of testimonial hearsay be tested by the adversary process of cross-examination].) The Attorney General responds, and argues in part that David has waived the argument by not raising this constitutional objection in the trial court.
DISCUSSION
David points out that section 273.6, subdivision (a), punishes the "intentional and knowing violation" of a domestic relations order. He asserts that constitutional principles demand that he have actual knowledge of the restraining order. (See People v. Garcia (2001) 25 Cal.4th 744, 752, 107 Cal.Rptr.2d 355, 23 P.3d 590 [actual knowledge satisfies constitutional requirements concerning crime of failure to register as a sex offender].) David argues that evidence of the proof of service denies him the constitutional right to confront witnesses against him because Deputy Allain did not testify at trial and identify him as the person that he served. He contends the error is not harmless beyond a reasonable doubt because the proof of service is the only evidence admitted at trial that tends to establish his knowledge of the temporary restraining order. (People v. Garcia, supra, 25 Cal.4th 744, 752, 107 Cal.Rptr.2d 355, 23 P.3d 590 [trier of fact may infer actual knowledge from proof of service].)
In Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177, the Supreme Court concluded that "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford thus holds that the Sixth Amendment demands that the defendant have had an opportunity for cross-examination of an unavailable witness preceding evidence of "testimonial" hearsay. (Id., at p. 1374.)
Crawford declined to define a "testimonial" statement in detail. (Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177.) The court noted, however, that it included "prior testimony at a preliminary hearing, before a grand jury or at a former trial; and ... police interrogations." (Ibid.; Leavitt v. *193 Arave (9th Cir.2004) 383 F.3d 809, 830, fn. 22.)
The Supreme Court decided Crawford after David had been tried and convicted. At the time of his trial, section 1102 and Code of Civil Procedure section 2009 permitted hearsay evidence of a proof of service to establish service of a summons or notice. (Conservatorship of Forsythe (1987) 192 Cal.App.3d 1406, 1409-1411, 238 Cal.Rptr. 77 [proof of service, although hearsay, is admissible to prove service].) Moreover, Forsythe concluded that because a proof of service concerns only "a peripheral procedural matter," it does not implicate a conservatee's assumed constitutional right to confront witnesses. (Id., at p. 1411, 238 Cal.Rptr. 77.) Under the circumstances here, David did not waive his confrontation claim by not objecting to the proof of service and challenging the holding of Forsythe. Any objection would have been unavailing under pre-Crawford law. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2, 18 Cal.Rptr.3d 230.)
Crawford reasoned that the Sixth Amendment confrontation clause was directed against "the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 1363, 158 L.Ed.2d 177.) Crawford concluded that the "focus" of the confrontation clause concerns a "testimonial" statement. (Id., at p. 1364.) "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Ibid.)
The trial court properly admitted evidence of the proof of service because it is not a testimonial statement within the holding of Crawford. Crawford concerns pretrial statements given to government officers in a preliminary hearing, grand jury, a former trial, or police interrogations, among other settings. (Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177.) Although the Supreme Court declined to define "testimonial" in a comprehensive fashion, it was concerned with the abuses at which the historic confrontation clause was directed. (Id. at pp. 1363, 1374 [confrontation clause principally directed against "the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused"].) Here Deputy Allain was not an accuser making a statement to government officers; he did not give testimony against David by serving the restraining order and completing the proof of service. Allain, an employee of the Civil Division of the Santa Barbara County Sheriff's Department, served David in the routine performance of his duties. (People v. Johnson, supra, 121 Cal.App.4th 1409, 1413, 18 Cal.Rptr.3d 230 [laboratory report of criminalist was "routine documentary evidence," not "testimonial" hearsay].) Allain's testimony would have served primarily to authenticate the proof of service. (Ibid.) "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law...." (Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177.)
The judgment is affirmed.
We concur: YEGAN and PERREN, JJ.
NOTES
[1] All statutory references are to the Penal Code unless stated otherwise.
[2] We shall refer to defendant as "David," and to his parents as "Mr. and Mrs. Saffold," to ease the reader's task.
[3] The Saffolds obtained several temporary restraining orders and emergency protective orders against David. This appeal concerns only the temporary restraining order issued on August 25, 2003. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262287/ | 240 P.3d 63 (2010)
237 Or. App. 508
STATE of Oregon, Plaintiff-Respondent,
v.
David Lee SWANSON, Defendant-Appellant.
071371M; A140575.
Court of Appeals of Oregon.
Argued and Submitted February 24, 2010.
Decided September 29, 2010.
*64 Lindsey K. Detweiler, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
ORTEGA, J.
Defendant appeals a judgment of conviction for criminal reckless driving, ORS 811.140. He assigns error to the trial court's refusal to instruct the jury on the violation of careless driving, ORS 811.135, as a lesser-included offense of the crime of reckless driving. For the reasons that follow, we affirm.
We review jury instructions for errors of law. State v. Rennells, 213 Or.App. 423, 425, 162 P.3d 1006 (2007). In determining whether an instructional error requires reversal, we assess potential prejudice by considering the jury instructions as a whole. Id. at 426, 162 P.3d 1006.
Defendant was charged with reckless driving by way of a uniform criminal citation and complaint. During trial, he submitted a written request for Oregon Uniform Criminal Jury Instructions 1009 and 1010, related to lesser-included offenses, and a special instruction on the violation of careless driving. The court declined to give the requested instructions. Defendant was convicted of the crime of reckless driving.
On appeal, defendant argues that the trial court erred because the violation of careless driving is a lesser-included offense of the crime of reckless driving and, thus, the court should have given the requested instructions pursuant to ORS 136.465, which authorizes a jury to reach a verdict of guilty on a lesser-included offense that is necessarily included in the charge against the defendant. Defendant contends that ORS 136.460, another statute that relates to jury instructions on lesser-included offenses, is not directly applicable in this case, but that it provides context in determining whether a violation is a lesser-included offense.
The state contends that the trial court ruled correctly, because a careless driving violation is not a crime and defendant is not entitled to a jury trial and, by implication, to jury instructions on traffic violations. We agree with the state.
Whether ORS 136.460 and ORS 136.465 encompass a careless driving violation is a question of statutory construction. We interpret statutes by first examining the text and context of the statute, along with any useful legislative history, and, if necessary, by employing other construction aids. State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009).
We begin with the text of ORS 136.460 and ORS 136.465. ORS 136.460 provides, in part:
"(1) Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof."
ORS 136.465 provides:
"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime."
The plain text of both statutes uses the term "crime," not "violation." Although both crimes and violations are considered "offense[s]," they are distinct from one another. See ORS 161.505 (defining "offense"); State v. Dahl, 336 Or. 481, 485, 87 P.3d 650 (2004) (describing a violation as a civil offense as opposed to a criminal offense). The legislature has defined a crime as "an offense for which a sentence of imprisonment is authorized." ORS 161.515. As a result, the commission of a crime must be proved beyond a reasonable doubt. ORS 10.095(6). In contrast, a violation is an offense for which imprisonment is not available as a punishment. ORS 153.008. Thus, commission of a violation need only be proved by a preponderance of the evidence. ORS 153.076(2). *65 In ORS 136.460 and ORS 136.465, the legislature chose to use the term "crime" rather than "offense" or "violation." Thus, the plain text of ORS 136.460 and ORS 136.465 refers only to crimes and does not apply to violations. The statutory text supports the view that defendant was not entitled to a jury instruction on the violation of careless driving.
Consistently with the statutory text, this court has rejected the submission of a traffic infraction to a jury as a lesser-included offense under former ORS 153.575(1) (1983), repealed by Or. Laws 1999, ch. 1051, § 32, which provided that traffic infractions should be tried to the court without a jury. State v. Darlin, 122 Or.App. 172, 179-80, 857 P.2d 859 (1993); State v. Mink, 30 Or.App. 339, 344, 567 P.2d 1033 (1977).
In Mink, we considered whether the infraction of driving under the influence of intoxicants (DUII) was a lesser-included offense of the crime of DUII. We concluded that it was impossible to submit the DUII infraction to a jury as a lesser-included offense of the DUII crime, first, because jury resolution of a traffic infraction would be impermissible under former ORS 484.375(1) (1975), renumbered as ORS 153.575(1) (1981), and second, because "the different standards of proof and other procedural variables would make submission of a DUII infraction to a jury unworkable." 30 Or.App. at 344, 567 P.2d 1033. We adhered to that conclusion in Darlin, where we explained that "submitting a traffic infraction to a jury as a lesser-included offense is forbidden by ORS 153.575(1)." 122 Or.App. at 179, 857 P.2d 859.
Defendant contends that those cases have been superseded by the legislature's 1999 amendments to the criminal code, which streamlined the procedures for infractions and, in so doing, renamed them "violations." Or. Laws 1999, ch. 1051. However, defendant points us to nothing in the text of the amendments that supports his argument. The amendments simply make procedures more efficient and do not modify the application of prior case law.[1] Audio Recording, House Committee on Judiciary, Subcommittee on Civil Law, SB 20, May 24, 1999, at 0:47 (statement of Bradd Swank, State Court Administrator's Office), http://www.leg.state. or.us/listn/ (accessed Sept. 2, 2010).
The change in nomenclature does not affect the analysis or holdings of our prior case law. Violations, like infractions formerly, may not be submitted to a jury as a lesser-included offense of a crime. Under the former and the current statutes, the purported lesser-included offense does not involve a right to a jury trial. Former ORS 153.575(1) ("The trial of any traffic infraction shall be by the court without a jury."); ORS 153.076(1) ("Violation proceedings shall be tried to the court sitting without jury."). The difference in procedure between crimes and violations remains material. In a violation proceeding, a defendant is not entitled to a public defender, and a district attorney or city attorney generally may not appear unless counsel for the defendant appears. ORS 153.076. In contrast, qualifying defendants in a criminal trial may be appointed a public defender, and the state is always represented by an attorney. ORS 151.010; ORS 156.520. Thus, in light of the substantial differences in procedure dictated by statute, submitting a violation to a jury in a criminal trial would remain unworkable, just as submitting an infraction to a jury under the prior statutory scheme was unworkable. Accordingly, the trial court did not err in declining to instruct the jury on the violation of careless driving.
Affirmed.
NOTES
[1] Infractions were first created and used in conjunction with traffic offenses because of their efficiency. Defendants would be charged with an infraction and then would merely post and forfeit their bail to the state. Subsequently, many other agencies modified their procedures for noncriminal offenses after traffic infractions. This led to the creation of many statutes that were similar to each other but did not operate in the same manner. As a result, the 1999 amendments aimed to organize the process for infractions (which were renamed violations), turning the system for posting and forfeiting bail into one requiring the simple payment of a fee. Audio Recording, House Committee on Judiciary, Subcommittee on Civil Law, SB 20, May 24, 1999, at 0:47 (statement of Bradd Swank, State Court Administrator's Office), http://www.leg.state.or. us/listn/ (accessed Sept. 2, 2010). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262295/ | 26 Cal.Rptr.3d 394 (2005)
127 Cal.App.4th 1109
In re JASMINE G., a Person Coming Under the Juvenile Court Law.
Orange County Social Services Agency, Plaintiff and Respondent,
v.
Lisa G., Defendant and Appellant.
No. G033900.
Court of Appeal, Fourth District, Division Three.
March 28, 2005.
*395 Lori A. Fields, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Lori D. Barcelona, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
OPINION
BEDSWORTH, Acting P.J.
Lisa G. appeals from an order that terminated parental rights to her daughter, Jasmine G., pursuant to Welfare and Institutions Code section 366.26.[1] She argues the Orange County Social Services Agency (SSA) failed to give her adequate notice of the selection and implementation *396 hearing, and the evidence does not support a finding of sufficient notice under Indian Child Welfare Act (ICWA) (25 U.S.C. § 1912(a).) We agree on the first point, and so reverse.
In March 2003, Jasmine was born with methamphetamine in her system. She was taken into protective custody shortly thereafter. SSA filed a dependency petition alleging Lisa had a history of substance abuse that impaired her ability to care for the child. (§ 300, subd. (b).) Lisa appeared at the detention hearing and the juvenile court ordered Jasmine detained.
The jurisdiction/disposition hearing was scheduled for May 2003. Lisa attended. SSA reported possible Indian ancestry. Lisa told a social worker she had checked with her mother and "there was no American Indian ancestry in our family." But the social worker's call to the mother revealed ambiguity: "I remember someone talking about Indian ancestry in our family and I don't want to say `no' then `yes' later." Lisa's mother did some checking and called back to say Lisa's grandmother believed "the family ha[d] Blackfeet and Cherokee background." The juvenile court continued the hearing and ordered SSA to notify the named tribes and the Bureau of Indian Affairs (BIA).
The hearing was held in June 2003. Lisa appeared and pleaded no contest, and the juvenile court sustained the petition. SSA filed the notices it had sent to the Blackfeet, three Cherokee tribes, and the BIA, along with proofs of service and certified-mail return receipts for each. One Cherokee tribe responded that Jasmine was not one of its members. The court ordered SSA to renotice the remaining tribes. It declared Jasmine a dependent child, ordered reunification services, and ordered Lisa to return for a six-month review.
Lisa appeared for the six-month review on November 18, 2003. Despite her appearance, SSA filed a search declaration dated November 13, 2003. In it, a social worker recited various addresses to which she had sent notice of the hearing. The social worker also said she had spoken with Lisa the previous day, told her of the hearing, and Lisa provided a new, current address on Morgan Lane, Garden Grove. For reasons that do not appear in the record, the matter was continued.
The hearing was held on December 17, 2003. This time, Lisa did not show up. SSA filed an addendum report, signed on December 10, 2003, that said Lisa's address and telephone were "unknown." A status review report stated Lisa had been discharged from an inpatient drug program for using drugs and had failed to make any progress with her case plan. Lisa had been visiting Jasmine regularly through June, with positive interaction. After that, visitation was sporadic. SSA submitted the second round of notices it had mailed to the remaining Indian tribes and the BIA, along with certified mail return receipts and said no one had responded. The juvenile court terminated reunification services, ordered that a selection and implementation hearing be held, and ordered SSA to attempt to notify Lisa. It found the ICWA inapplicable.
On March 1, 2004, the juvenile court held a notice review hearing. SSA re-filed its prior November 13, 2003 search declaration, and nothing else. That is, it offered no evidence of any attempt to locate Lisa after that date. Lisa's trial attorney stipulated to SSA's due diligence, and on this basis the court found SSA had exercised due diligence in its efforts to locate Lisa. It authorized notice by service on her attorney.
The selection and implementation hearing was held on April 14, 2004. SSA's report for this hearingsigned on April 1, *397 2004 and filed on April 13, 2004reported that a social worker had spoken with Lisa eight times after the setting order, and met with her once. That meeting took place on January 27, 2004, and the last telephone contact was on February 24, 2004.[2] During all of these contacts, no one told Lisa of the upcoming hearing. The report also set forth a new address for Lisa on West Orangethorpe Avenue in Placentia, but did not indicate when it had been obtained. Nothing in the record indicates SSA even tried to notify Lisa at the new address, nor that it advised her trial attorney of that address.[3]
The juvenile court denied a request by Lisa's trial attorney for a continuance to allow him to locate and notify her. SSA reported inconsistent visitation and recommended termination of parental rights. Lisa's trial attorney did not cross-examine, offer evidence, or argue. The juvenile court found Lisa "received notice as required by law," and ordered parental rights terminated and the child placed for adoption.
I
Lisa argues she was denied due process because her parental rights were terminated without notice of the selection and implementation hearing. She is right.
Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. (See, e.g., In re DeJohn B. (2000) 84 Cal.App.4th 100, 106, 100 Cal.Rptr.2d 649.)
Furthermore, notice of a selection and implementation hearing is mandated by statute. SSA is required to give notice of a selection and implementation hearing to the child's parents (among others) by section 294, subdivision (a)(1). When a parent is not present at the setting hearing, notice must be given by one of following means: certified mail, return receipt requested at the last known address, established by a signed receipt; personal service; substituted service at the parent's usual place of residence or business, with a second copy sent to that address by first class mail; or, in certain cases not applicable here, by first class mail. (§ 294, subd. (f)(2)-(6).)
If SSA is unable to serve a parent in this manner, it must file a declaration showing the efforts it has made. (§ 294, subd. (f)(7).) The juvenile court may then permit service on a parent's attorney of record by certified mail, return receipt requested, if it finds SSA exercised "due diligence in attempting to locate and serve the parent" and the case is one where adoption is recommended. (§ 294, subd. (f)(7)(A).) However, "[i]n any case where the residence of the parent becomes known, notice shall immediately be served upon the parent" by one of the means set out above. (§ 294, subd. (f)(7)(C).)
Failure to comply with the statute in this case resulted in a mistake of constitutional dimension. Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, a criminal case, explained that all constitutional errors are not equal. Trial errorsthose which occur *398 during presentation of the case to the trier of factmay be evaluated to see if the error was harmless beyond a reasonable doubt. (Id. at pp. 307-308, 111 S.Ct. 1246.) Structural errors are different and demand automatic reversal. "These are structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards." (Id. at p. 309, 111 S.Ct. 1246.) Structural defects are those "affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. `Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.' [Citation.]" (Id. at p. 310, 111 S.Ct. 1246.)
California courts have applied Fulminante outside the criminal context, including notice failings in juvenile dependency proceedings. Some have found structural error. (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 126 Cal.Rptr.2d 14 [failure to file a status report 10 days before review hearing as required by statute, with result that parent was denied timely notice of charges and witnesses, and adequate opportunity to prepare].) Others have concluded there was only trial error. (In re Daniel S. (2004) 115 Cal.App.4th 903, 9 Cal.Rptr.3d 646 [attempt to notify mother of jurisdiction/disposition hearing but not temporary conservator appointed when mother was placed in mental hospital]; In re Angela C. (2002) 99 Cal.App.4th 389, 120 Cal.Rptr.2d 922 [failure to give parent notice of continued selection and implementation hearing when she did not appear on originally noticed date].)
Our decision in In re DeJohn B, supra, 84 Cal.App.4th 100, 100 Cal.Rptr.2d 649 implied there was structural error where SSA never tried to notify a parent of a six-month review hearing. The result in that case was that reunification services were terminated and a selection and implementation hearing set. We held the lack of notice violated due process, the error was not harmless, and it required reversal of a later order terminating parental rights. As we explained: "Where, as here, the agency has not even attempted to advise a parent of proceedings that affect her fundamental rights as a parent, we will not accept an argument that SSA's failure to give notice was harmless. We reject the contention that we can ignore the lack of notice because the parent was unworthy and, thus, was not prejudiced by lack of notice." (Id. at p. 102, 100 Cal.Rptr.2d 649.) Later, we said: "Where SSA fails even to make an effort to provide mother the procedural safeguard of notice, reversal is mandated." (Id. at p. 110, 100 Cal.Rptr.2d 649.)
We now make explicit what is implicit in DeJohn Bthe failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal. It denies a parent the opportunity to confer with her attorney, prepare her case, or defend against the loss of parental rights. Without this, we cannot say the loss of parental rightsor the hearingis fundamentally fair. The absence of any reasonable attempt to give notice goes well beyond trial error. It is not merely a mistake that hinders a party's ability to present the case effectively, but rather a flaw in the systemic framework that denies that party the opportunity to be heard at all. It goes to the basic fairness of the structural scheme. Since this was structural error, we do not consider whether it was also harmless.
SSA's position in this case is very troubling, as it was in DeJohn B. It concedes only that "the record lacks evidence of attempts to personally serve Lisa." But *399 that is not the full of it. In fact, SSA made no attempt, absolutely none, to even look for Lisa after the six-month review. It simply resubmitted the November 2003 search declaration to show compliance with the later December 2003 order to serve notice of the upcoming hearing. Particularly astonishing is the apparent failure of anyone to even read that declarationwhich gave Lisa's then current telephone number and address (previously unknown to SSA) and identified a friend at one of the known addresses who had delivered prior notices to Lisa.
We are unable to imagine an explanation for failing to tell Lisa about the hearing during eight telephone contacts and one meeting following the setting order. This is such an uncharacteristic failure that we must wonder if something was going on that does not appear in our record. But no one has been able to explain what that was, so we are left wondering, "What were they thinking?" It is equally inexplicable for SSA to have ignored the West Orangethorpe Avenue address listed as Lisa's current residence in its own report for the selection and implementation hearing.
SSA's arguments in deference of notice in this case are unconvincing. It contends Lisa waived the notice issue when her trial lawyer stipulated to due diligence, failed to file a writ petition or an appeal from the due diligence order, or object at the selection and implementation hearing. We disagree completely.
When Lisa's trial lawyer stipulated to due diligence, he was entitled to rely on SSA's representation that it did not know her whereabouts. In essence, he took its word for the proposition that his client was unlocatable even with all the resources of the government brought to bear. Under such circumstances, SSA can hardly be heard to assert there was a knowing waiver of the notice issue.
By resubmitting the November 2003 search declaration, SSA represented it had no more recent information about Lisa's whereabouts. But that was not true. As later revealed in SSA's report for the selection and implementation hearing, a social worker spoke with Lisa by telephone on December 24, 2003, January 14, 20, and 21, 2004, February 4, 10, 11, and 24, 2004, and the social worker met with Lisa on January 27, 2004. Since trial counsel stipulated to due diligence based on misinformation from SSA, and presumably refrained from challenging the due diligence order for the same reason, we cannot accept the argument there was a waiver of the notice issue.[4]
SSA argues any failure of notice was harmless based on two recent decisions. Both are distinguishable. In In re Daniel S., supra, 115 Cal.App.4th 903, 9 Cal.Rptr.3d 646, a social worker tried to notify a parent, detained in a mental hospital, but not her temporary conservator. The court found this was harmless error without considering whether it was a structural error. Here, there was no attempt to give notice, and we believe that makes all the difference.
The other case SSA cites is In re Angela C., supra, 99 Cal.App.4th 389, 120 Cal. *400 Rptr.2d 922. There, a parent had been given proper notice of a selection and implementation hearing but did not appear, and the social services agency failed to give notice of the continued date. The court held this was trial error, and harmless. It said the parent had received notice of the originally scheduled hearing, and the juvenile court could have proceeded without her at that time. Again, we find the failure here qualitatively different. In this case, SSA never even tried to give Lisa notice of the selection and implementation hearing, despite having been in regular contact with her and having a current address. That is the difference between a sound structure which fails due to human error and an unsound structure which can never support a fair process. It is the difference between reversible error and error per se, and in this case it requires reversal.
II
Lisa does not fare as well on the ICWA argument. She asserts the juvenile court cannot properly find the act inapplicable until all tribes sent notice have responded. But that is not the law.
The ICWA provides that where termination of parental rights is sought and a state court has reason to know an Indian child is involved, it must require the party seeking termination to notify the Indian child's tribe of the pending proceedings and the right to intervene. (25 U.S.C. § 1912(a).) Once proper notice is given, "the lack of any response from BIA, and the absence of any communication sent to [the social services agency] by a tribe, were tantamount to determinations that the minor was not an `Indian child' within the meaning of the Act." (In re Levi U. (2000) 78 Cal.App.4th 191, 198, 92 Cal.Rptr.2d 648.)
Here, the relevant tribes and the BIA were given notice by SSA twice, and each time several of them failed to respond. That is sufficient to support the finding that the ICWA does not apply and Jasmine is not an Indian child within the meaning of the act.
Lisa argues a finding of notice is impermissible when a social services agency does not file responses from the tribes, citing In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 6 Cal.Rptr.3d 205. But the case does not go that far. It only holds the actual notices sent must be filed (along with the return receipts) so the juvenile court can determine if they complied with the ICWA. (Id. at p. 178, 6 Cal.Rptr.3d 205.) Lisa does not deny the notices were filed in this case, or challenge their content, so this argument is unavailing.
Since SSA made no attempt to notify Lisa of the selection and implementation hearing, the order terminating parental rights and directing the minor be placed for adoption is reversed. The case is remanded for a new selection and implementation hearing, to be held only after proper notice to Lisa.
WE CONCUR: MOORE and FYBEL, JJ.
NOTES
[1] All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
[2] SSA reported telephone contacts with Lisa on December 24, 2003, January 14, 20, 21, 2004, and February 4, 10, 11, and 24, 2004, and it said a social worker had met Lisa on January 27, 2004, during a visit with Jasmine.
[3] At oral argument, counsel for SSA said it had served the report on Lisa's trial counsel on April 6, 2004, but this does not appear in the record.
[4] The record also suggests SSA had a current address for Lisa by March 1, 2004, the date it refiled the November 2003 search declaration. That address, on West Orangethorpe Avenue, was first revealed in SSA's April 1, 2004 report for the selection and implementation hearing. The report does not say when it was obtained. At oral argument, counsel for SSA said she did not know when it first learned of the address. We believe a reasonable inference is that SSA had to have known the address no later that its last contact with Lisa on February 24, 2004nothing else in the report explains how the information might have been obtained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262312/ | 238 P.3d 793 (2008)
ASDI, LLC
v.
BELAUSTEGUI.
No. 49615.
Supreme Court of Nevada.
February 25, 2008.
Decision Without Published Opinion Dismissed-Voluntary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262318/ | 238 P.3d 851 (2008)
ROONEY
v.
MAKOWIECKI.
No. 51214.
Supreme Court of Nevada.
July 3, 2008.
Decision Without Published Opinion Dismissed-Stipulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326410/ | 215 Ga. App. 3 (1994)
COVIN
v.
THE STATE.
A94A1421.
Court of Appeals of Georgia.
Decided October 20, 1994.
W. McCall Calhoun, Jr., for appellant.
John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellee.
RUFFIN, Judge.
The appellant, Tommy Lee Covin, was convicted of burglary of the Leesburg City Hall. His sole contention on appeal concerns the trial court's denial of his challenge to the State's exercise of its peremptory strikes pursuant to Batson v. Kentucky, 476 U.S. 79 (106 SC 1712, 90 LE2d 69) (1986).
The State exercised four of six peremptory strikes to exclude black jurors. The prosecutor explained that the reasons for striking three of the jurors in question included lack of intelligence, relationship to the appellant, or long-time acquaintance with the appellant. The appellant does not contest the legitimacy of the State's explanations for those three strikes.
However, the appellant attacks the sufficiency of the State's explanation for excluding the fourth juror. The prosecutor's reasons for this strike included (1) the fact that the juror, as the former mayor of a nearby town, was too familiar with city government; (2) the prosecutor did not feel comfortable with the juror; (3) the prosecutor preferred other jurors further down the list, which required striking others in order to reach them; and (4) the sheriff of Lee County recommended striking the juror.
The prosecutor concluded his explanation by stating that "there's something about [the juror] that just I didn't care for. ... All I can say, on the record or anywhere else, it's got nothing to do with race." The trial judge accepted the prosecutor's explanation, but nevertheless expressed lingering concern about the explanation, mindful of Batson (the Batson challenge), and admitted that "I don't feel like I can explain [the prosecutor's] reasons for striking him."
For reasons which follow, we reverse.
We need not concern ourselves with whether the defendant made a prima facie case below. "Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing *4 becomes moot." Hernandez v. New York, 500 U.S. 352, 359 (111 SC 1859, 114 LE2d 395) (1991); Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993). Accordingly, we need only concern ourselves with the sufficiency of the State's proffered reasons for the exercise of the peremptory challenge in question.
As we scrutinize the sufficiency of the State's reasons, we are ever mindful that "[t]he explanation `need not rise to the level justifying exercise of a challenge for cause,' but it must be `neutral,' `related to the case to be tried,' and a `"clear and reasonably specific," explanation of his "legitimate reasons" for exercising the challenges.' [Cit.]" Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). Also, we must be mindful that the trial judge's findings must be accorded great deference, and they cannot be reversed unless clearly erroneous. Lingo v. State, 263 Ga. 664 (1) (b) (437 SE2d 463) (1993). In accommodating these dual concerns, Batson, and to a lesser extent Gamble, remains the compass by which we are guided.
We will examine the State's reasons seriatim. One reason proffered by the State was that [the juror] is a former mayor of a small town in another part of Lee County. While it strains one's credulity why the State would want to strike such a juror in these circumstances, the proffered reason is racially-neutral, although its application is suspect. We defer to the trial judge's finding in this regard, and we find no Batson violation.
The prosecutor also stated that he was "not comfortable" with the excluded juror. We do not deem it appropriate to deal with the prosecutor's level of comfort other than to say that such is too vague, too subjective, is non-specific, is non-case related, and as such fails to meet Batson's requirement of "`clear and reasonably specific.'" Batson, supra at 98, n. 20. See also Gamble, supra at 327-328. Accordingly, we hold that a prosecutor's discomfort, without more, violates the commands of Batson on this record.[1]
The prosecutor also proffered as a reason for exclusion that he wanted to strike the particular juror in order to get to other jurors further down the jury list. Again, while this appears to be racially-neutral, only in the context of application can we determine whether such an explanation is in fact racially-neutral.
As our Supreme Court noted in Gamble, "`rubber stamp' approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson's commitment to ensure that no citizen is disqualified from jury service because of ... race." (Citations and punctuation omitted.) Id. at 327. Moreover, there is a three-way proscription *5 in Batson: "`[A] prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises "solely from the jurors' race," nor may he strike "to exclude ... veniremen from the petit jury on account of their race." [Cit.]' ... [Cit.]" Mincey v. State, 257 Ga. 500, 502-503 (4) (360 SE2d 578) (1987). See also Ford v. State, 257 Ga. 661 (362 SE2d 764) (1987).
Finally, the State, through the prosecutor, offered as a reason that he struck the juror in question because the sheriff suggested it. In this regard, Lewis v. State, supra, is instructive: "Although the prosecuting attorney acts responsibly when he solicits or accepts input from colleagues, prosecuting witnesses, victims, and victims' family members concerning the exercise of peremptory challenges, the State does not fulfill its burden to provide racially-neutral reasons by stating that its peremptory challenges were exercised in deference to the wishes of an individual concerned about the case. In such a situation, the State must set forth a racially-neutral, case-related reason underlying the decision of the person to whom the prosecutor deferred." (Footnote omitted.) Id. at 681. Accordingly, deference to another in the instant case no more meets the commands of Batson than deference to another in Lewis.
Moreover, the record shows that the prosecutor had at least some realization that his striking of the juror was unlawful. He stated: "There is an additional reason for striking that I struck ... [the juror], and if memory serves, there is a case which says that ain't a good enough reason, but I did so also on the recommendation of the High Sheriff of Lee County, ... the Sheriff suggested that ... [the juror] would not make us a good juror. He did not go any farther [sic] than that, and I don't know what the Sheriff's reasons were and didn't inquire into them." (Emphasis supplied.)
Again, in deferring to the sheriff, the prosecutor stated "[the Sheriff] lives here. He knows the voters in his county. He knows the people who live in his county, and if he comes to me and says, `You want to look real carefully at that juror,' I'm going to listen to him. If that's not good enough for the Court of Appeals or the Georgia Supreme Court, well, I'm sorry. They ought to have some experience in these smaller, rural counties." The trial judge stated, "I have to agree with you. I think a number of the people who practice in rural counties agree that the Court of Appeals and [the] Supreme Court on Batson do not take into consideration the realities of trial work. However, that is not for me to determine. It's been determined by the Court of Appeals and I'm bound by it. However, I will allow the Court of Appeals to review this case, and if they want to reverse it, that's fine. ..."
We can understand the trial judge's frustration with a principle *6 of law that is as controversial as Batson. However, irrespective of frustration, disagreement or the like, the commands of Batson are binding on the trial court as well as this court. Accordingly, the trial judge cannot abdicate his responsibility irrespective of his private views, his frustration or his disagreements.
Judgment reversed. Birdsong, P. J., and Blackburn, J., concur.
NOTES
[1] When the prosecutor was asked if he had a problem with "the prima faciability of this, ..." he replied, "Judge, I quite frankly, I have never paid close attention to the Batson issue. I have never agreed with the whole thing. I've always thought it was a little silly. ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326427/ | 561 S.E.2d 823 (2002)
ROBINSON
v.
The STATE.
No. S02A0545.
Supreme Court of Georgia.
March 28, 2002.
Reconsideration Denied April 29, 2002.
*824 Steven Eric Phillips, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., Thurbert E. Baker, Atty. Gen., Madonna M. Heinemeyer, Asst. Atty. Gen., for appellee.
CARLEY, Justice.
A jury found Rico Robinson guilty of malice murder, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The trial court sentenced him to life imprisonment for murder and to consecutive five-year terms on each count of firearm possession. A motion for new trial was denied, and he appeals pursuant to the trial court's subsequent grant of an out-of-time appeal.[1]
1. Construed so as to support the verdict, the evidence shows that the victim went into a house to see Robinson and exited shortly thereafter. According to eyewitness testimony, Robinson subsequently followed, threatened the victim, and fatally shot him seven times in the back and once in the ankle. The jury was authorized to reject Robinson's theory of self-defense and to find beyond a reasonable doubt that he was guilty of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hill v. State, 272 Ga. 805(1), 537 S.E.2d 75 (2000); Wooten v. State, 270 Ga. 425, 426-427, 510 S.E.2d 813 (1999).
2. Relying on Jones v. State, 272 Ga. 900, 903(3), 537 S.E.2d 80 (2000), Robinson contends that the State failed to establish venue in Fulton County beyond a reasonable doubt. An Atlanta police officer testified that he discovered the victim's body in a yard on the edge of Lockwood Drive and that that particular street is in Fulton County. In contrast, the prosecution in Jones offered no evidence of the specific location of the actual crime scene. There, the only evidence regarding venue was the testimony of a neighbor that his home was located on a particular street and that that street is in Fulton County. We held that this testimony constituted some relevant evidence of the location of the neighbor's home, but that it did not prove that the victim's home across the street was in Fulton County. "It is entirely possible that the neighbor's house is located in one county, while the houses located across the street are sited in an adjoining county." Jones, supra at 903-904, 537 S.E.2d 80.
Thus, Jones recognizes that testimony that a certain site is on a specific street and that the street is in a particular county is some *825 proof that the site is in that county. The deficiency in that case was that the only evidence in that regard went to the location of the neighbor's residence rather than that of the victim. The logical import of the officer's testimony here, however, is that the crime scene itself was in Fulton County. Indeed, this is the only reasonable meaning of his testimony that he discovered the body on a street in that county. As Robinson has offered no evidence to the contrary, we conclude that the State met its burden of proving beyond a reasonable doubt that venue of the crimes charged is properly in Fulton County. See Turner v. State, 273 Ga. 340, 343(3), 541 S.E.2d 641 (2001).
3. Robinson also contends that the trial court erred in prohibiting him from introducing evidence of prior difficulties between him and the victim. "[A] defendant's right to introduce evidence of prior acts by the victim against [him] is still contingent upon the defendant making out a prima facie case of justification." Owens v. State, 270 Ga. 199, 202(2), 509 S.E.2d 905 (1998). "To make this prima facie showing, the defendant must show that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly seeking to defend himself. [Cit.]" Peterson v. State, 274 Ga. 165, 167(2), 549 S.E.2d 387 (2001). Robinson relies on his own testimony that the victim made verbal threats, and pulled his hand out of his pants as if he was going to shoot. However, Robinson admitted that he never saw a weapon and that the victim was not advancing on him. Therefore, Robinson's testimony did not establish a prima facie case of justification. Curtis v. State, 241 Ga. 125, 126(1), 243 S.E.2d 859 (1978). See also Graham v. State, 274 Ga. 696(3), 558 S.E.2d 395 (2002); Peterson v. State, supra at 167-168(2), 549 S.E.2d 387; Walden v. State, 267 Ga. 162, 163(2)(a), 476 S.E.2d 259 (1996). Accordingly, the trial court did not err in excluding from evidence prior acts of the victim against Robinson.
4. Robinson seeks a remand for an evidentiary hearing on a claim of ineffective assistance of trial counsel. Although the trial court granted Robinson the right to file an out-of-time appeal, it explicitly prohibited him from filing a motion for new trial. However, "[t]he grant of an out-of-time appeal constitutes permission to pursue the post conviction remedy of a new trial. [Cit.]" Chatman v. State, 265 Ga. 177, 178(2), 453 S.E.2d 694 (1995). The fact that Robinson had previously filed a motion for new trial did not prohibit him from filing another such motion after the grant of an out-of-time appeal. Maxwell v. State, 262 Ga. 541, 542-543(3), 422 S.E.2d 543 (1992). Thus, the ruling of the trial court prevented Robinson from raising his ineffectiveness claim at what would otherwise be the earliest practicable time. See Maxwell v. State, supra at 543(3), 422 S.E.2d 543. As the State itself concedes, under these circumstances, we must remand this appeal to the trial court for an evidentiary hearing on the claim of ineffective assistance of Robinson's trial attorney. Maxwell v. State, supra.
Judgments affirmed and case remanded.
All the Justices concur.
NOTES
[1] The crimes occurred on March 22, 2000. The grand jury returned the indictment on May 30, 2000. The jury found Robinson guilty on January 26, 2001, and the trial court entered the judgments of conviction and sentences on January 29, 2001. Robinson filed a motion for new trial on February 9, 2001, which the trial court denied on March 5, 2001. On October 5, 2001, Robinson filed a motion to allow the filing of an out-of-time motion for new trial. On October 8, 2001, the trial court denied that motion but granted an out-of-time appeal. He filed a notice of appeal on October 30, 2001. The case was docketed in this Court on December 21, 2001 and submitted for decision on February 11, 2002. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326432/ | 449 S.E.2d 233 (1994)
116 N.C. App. 703
Jeffrey K. FISH, Plaintiff,
v.
STEELCASE, INC., Employer,
Wausau Insurance Companies, Carrier, Defendants.
No. 9310IC1074.
Court of Appeals of North Carolina.
November 1, 1994.
*235 Mraz & Dungan by John A. Mraz, Asheville, for plaintiff appellant.
Hedrick, Eatman, Gardner & Kincheloe by Scott M. Stevenson and Jeffrey A. Doyle, Charlotte, for defendants appellees.
COZORT, Judge.
In this case, the Industrial Commission denied workers' compensation benefits to an employee, finding the employee was unable to prove the specific date of the incident which caused plaintiff's back injury. We find the Commission decided the case under a misapprehension of the law, and we remand the case to the Commission for a decision under the proper legal standard. The facts and procedural history follow.
The defendant employer ("Steelcase") is a manufacturer of office equipment. Plaintiff is employed on "final repair," where he is responsible for inspecting desks on the conveyor line. The desks are manually pushed from the rollers of the main conveyor line to the inspection line. There is no power on the rollers, and the employees on final repair must be careful not to push the desks off their pallets. Once on the inspection line, the desks are inspected, "touched-up," and readied for shipping. The inspectors then push the desks back onto the main line.
Plaintiff had no history of back problems. At some time during the month of April 1989, plaintiff was pushing a desk weighing approximately 400-450 pounds from the inspection line to the main line when he felt a "pull" in the lower right side of his back. Plaintiff continued with his duties because he did not think the injury was serious enough for him to stop working. Plaintiff also failed to inform the plant nurse of his condition; however, on the next day, he informed his supervisor, Jerry Logan, that he was experiencing back trouble. Logan informed the plaintiff that he would have to determine himself whether the pain was too great for him to continue working. Logan and another employee stated that plaintiff had informed them of his back injury in mid-April. Neither could specify the exact date that the plaintiff informed them of his condition.
Plaintiff's condition worsened, forcing him to visit his family physician on 24 April 1989. The injury was diagnosed as a back strain, and the doctor placed the plaintiff on medication. Plaintiff returned to work, but by 19 May 1989 the pain was radiating down his right leg. On 22 May and 24 May 1989 plaintiff visited the plant nurse, and he was sent home from work on the 24th. The nurse reported that the plaintiff informed her that the pain had been present for "one plus month." Plaintiff was referred to an orthopedic surgeon on 30 May 1989 who diagnosed a herniated disc which was surgically repaired by a neurosurgeon on 24 August 1989. Plaintiff was released to return to work on 1 November 1989 with a disability rating of 10%. Plaintiff pursued benefits from his medical carrier and signed an indemnification agreement indicating that if he recovered from a workers' compensation claim, the medical carrier would be reimbursed.
The defendant employer's carrier denied liability, and plaintiff requested a hearing before the Industrial Commission. The case was heard by Deputy Commissioner Charles Markham, who filed an opinion dated 17 June 1991 denying plaintiff's claim. The opinion contained the following pertinent findings:
2. At an indeterminate time in mid-April, plaintiff was pushing a desk weighing 400 to 450 pounds when he felt a pull in the lower right side of his back, one to three inches above his belt line. His back had never hurt before, as far as he could remember.
* * * * * *
5. Jeff Laughter, a fellow employee of plaintiff, remembered that on a day in April, 1989 plaintiff came to him and said he pulled his back pushing a unit on the line. Plaintiff also told another employee, Bass (who was ill the day of the hearing). *236 At the hearing, Laughter could not remember the exact date this happened. His memory was refreshed by hearing the date April 17 mentioned at the hearing. He had earlier identified the date as April 17, because this happened on a Tuesday and it was two or three days before plaintiff told him he was seeking a doctor. April 17, 1989 was a Monday. Plaintiff saw his doctor April 24. Laughter's testimony is insufficient to support a finding that the incident occurred on April 17.
* * * * * *
8. Plaintiff visited defendant's plant nurse May 22, 1989 with the same complaints he had mentioned to Dr. Morrison. She noted his back condition had been "present for one plus month", which would be consistent with an onset of pain during the period plaintiff had described to Dr. Morrison.
* * * * * *
15. Plaintiff's Form 18, prepared by his girl friend, dated June 10, 1989, and filed with the Industrial Commission June 15, listed April 17, 1989 as the date of his allegedly compensable injury. This was the first written notice of his claimed injury. He stated his disability began May 24. On the indemnifying agreement on May 31, he stated that his disability began "about a month ago".
16. Dr. Harley's record of examination May 30 stated: "This 28 year old man was working at Steel Case approximately a month ago (i.e., the beginning of May), pushed a desk and developed pain in the lower right back into his right leg".
17. On August 2, 1989, plaintiff told defendant carrier's adjuster that the [sic] after the desk pushing incident, which ruptured a disc, the pain got worse and worse. This was about five or six weeks after he pushed the desk. If May 20 is the date on which the possibility of a disc was first apparent, and the pain got worse, the pushing episode could have occurred between April 8 and April 15.
* * * * * *
19. There is no indication how plaintiff finally established April 17 as the day he pushed the desk, other than talking to Laughter and Bass. Laughter was confused about the date involved.
* * * * * *
21. Plaintiff's accident, if one occurred, came while he was engaged in his normal work routine of pushing desks. It did not involve any departure from his ordinary duties.
22. In view of the variety of reports plaintiff gave, as to the date he pushed the desk with disabling consequences, prior to his decision to claim workers' compensation, his claim and later testimony that April 17, 1989 was the date cannot be accepted as credible. Accordingly he has not sustained his burden of establishing that his injury occurred at a cognizable, i.e., a judicially determinable time.
The Deputy Commissioner concluded:
1. Plaintiff did not sustain an injury by accident arising out of and in the course of his employment, G.S. 97-2(6), as there was no accident involved. To prove that an accident occurred, plaintiff must show that he was affected by unusual and unexpected circumstances constituting a departure from his normal work routine....
2. In the case of a back injury, under G.S. 97-2(6) as amended, plaintiff must show that his injury arose out of a specific traumatic incident, which has been judicially interpreted to mean that the injury must have occurred at a cognizable time, that is, at a judicially determinable time, and did not develop gradually.... Here, by the plaintiff's own contemporaneous accounts, the incident could have occurred at any time between April 8 and the beginning of May, and the onset of his pain was gradual.
3. Plaintiff has satisfied neither of the two alternate requirements needed to support a finding that his back injury occurred by accident. G.S. 97-2(6).
Plaintiff appealed to the Full Commission, which, on 23 July 1993, adopted the opinion of the Deputy Commissioner. Plaintiff timely appealed to this Court. On appeal, plaintiff contends that the Industrial Commission *237 erred in not ruling (1) that his injury arose out of and in the course of employment, and (2) that it was a direct result of a specific traumatic incident of his work. We agree.
For purposes of workers' compensation, N.C.Gen.Stat. § 97-2(6) defines a back injury as one arising "out of and in the course of the employment, and ... the direct result of a specific traumatic incident of the work assigned...." N.C.Gen.Stat. § 97-2(6) (1993 Cum.Supp.). Prior to its amendment in 1983, this statute required that there be some type of unusual circumstance for a back injury to be compensable under the Workers Compensation Act. Bradley v. E.B. Sportswear, Inc., 77 N.C.App. 450, 335 S.E.2d 52 (1985). With the 1983 amendment, the Legislature intended to relax this requirement. Id. at 452, 335 S.E.2d at 53. The amended statute provides two theories on which a back injury claimant can proceed: (1) that claimant was injured by accident; or (2) that the injury arose from a specific traumatic incident. Richards v. Town of Valdese, 92 N.C.App. 222, 224, 374 S.E.2d 116, 118 (1988), disc. review denied, 324 N.C. 337, 378 S.E.2d 799 (1989).
An accident is an "unlooked for and untoward event which is not expected or designed by the person who suffers the injury." Adams v. Burlington Industries Inc., 61 N.C.App. 258, 260, 300 S.E.2d 455, 456 (1983) (quoting Hensley v. Cooperative, 246 N.C. 274, 278, 98 S.E.2d 289, 292 (1957)). Because plaintiff has not alleged that his injury was the result of an accident, the only issue in this case is whether the plaintiff presented sufficient evidence to support a finding of a specific traumatic incident.
While the case law interpreting the specific traumatic incident provision of N.C.Gen.Stat. § 97-2(6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury. As we stated in Richards, the General Assembly did not intend to limit the definition of specific traumatic incident to an instantaneous occurrence. Richards, 92 N.C.App. at 225, 374 S.E.2d at 118-19. Events which occur contemporaneously, during a cognizable time period, and which cause a back injury, fit the definition intended by the legislature. Id. at 225, 374 S.E.2d at 119. To hold otherwise would defeat the purpose of the amendment.
The issue in this case is whether plaintiff presented credible evidence that the injury occurred at a judicially cognizable time. The Full Commission adopted the Deputy Commissioner's conclusions that, as a matter of law, plaintiff sustained a back injury neither as a result of an accident, nor as a result of a specific traumatic injury. The conclusion that plaintiff suffered no injury as a result of a specific traumatic injury is error, and the opinion and award must be reversed and the cause remanded.
The findings of fact by the Industrial Commission are conclusive on appeal, if there is any competent evidence to support them, and even if there is evidence that would support contrary findings. Richards, 92 N.C.App. at 225, 374 S.E.2d at 118. Conclusions of law based on these findings, however, are subject to review by the appellate courts. Id. We find the Commission erred in two respects. First, the Commission appears to have applied the pre-1983 interpretation of N.C.Gen.Stat. § 97-2(6). Finding of Fact # 21 states:
21. Plaintiff's accident, if one occurred, came while he was engaged in his normal work routine of pushing desks. It did not involve any departure from his ordinary duties.
Nothing in N.C.Gen.Stat. § 97-2(6) precludes compensation for a back injury which occurs in the normal work routine. The 1983 amendment allows for coverage when a specific traumatic incident occurs within the normal work routine. The Industrial Commission's interpretation of the statute requiring an unusual occurrence or departure from ordinary duties misapprehends current law.
Second, the Commission erred in finding the injury did not occur at a judicially cognizable time. In the present case, the plaintiff presented evidence that he suffered a specific injury which can be placed in a judicially cognizable time period and that the injury was not the result of a gradual deterioration. The Deputy Commissioner found *238 that the plaintiff identified "mid-April" as the time of injury. Other findings place the incident at some time between 8 April and 1 May. Even though there are a variety of possible dates for the specific traumatic incident, the plaintiff's evidence, if believed, satisfies the judicially cognizable time requirement.
To justify its denial of the plaintiff's claim, the Industrial Commission relied on the plaintiff's inability to name the specific date on which the injury occurred. The final finding of fact states that plaintiff's claim that the injury occurred on 17 April 1989 "cannot be accepted as credible."
This finding is simply a misunderstanding of the burden the plaintiff must meet to prove a back injury. Judicially cognizable does not mean "ascertainable on an exact date." Instead, the term should be read to describe a showing by plaintiff which enables the Industrial Commission to determine when, within a reasonable period, the specific injury occurred. The evidence must show that there was some event that caused the injury, not a gradual deterioration. If the window during which the injury occurred can be narrowed to a judicially cognizable period, then the statute is satisfied.
We therefore hold the Commission erred by applying the incorrect legal standard to the evidence presented. The cause is remanded to the Commission for a determination under the correct legal standard.
Reversed and remanded.
EAGLES and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326424/ | 561 S.E.2d 70 (2002)
274 Ga. 863
HALE
v.
The STATE.
No. S02A0069.
Supreme Court of Georgia.
March 11, 2002.
Robert J. Storms, Decatur, for appellant.
J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Ruth M. Bebko, Asst. Atty. Gen., for appellee.
HUNSTEIN, Justice.
Appellant Daniel Hale was convicted of murder and possession of a firearm by a convicted felon arising out of the murder of Charles Crowe and sentenced to life in prison.[1] He contends that his trial counsel was *71 ineffective and that the trial court erred by not charging the jury on voluntary manslaughter. Finding no reversible error, we affirm.
1. The jury was authorized to find that on the morning of the murder the victim repossessed appellant's car and took it to Atlanta Locators. Appellant went to Atlanta Locators and asked to retrieve his belongings from the car. The owner of Atlanta Locators asked the victim to watch appellant remove his belongings. After appellant carried items from his car and placed them in another vehicle, he retrieved a gun and fatally shot the victim twice in the back of the head and once in the shoulder. Appellant contended at trial that he shot the victim because he believed the victim was about to assault him.
Reviewing the evidence in the light most favorable to the verdict, we conclude that a rationale trier of fact could have found appellant guilty of each crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
2. Appellant contends the trial court erroneously denied his motion for new trial on ineffective assistance grounds. We disagree. To prove ineffective assistance of counsel, appellant must establish that counsel's performance fell below a reasonable standard of reasonableness and that the deficient performance so prejudiced the defense that there is a reasonable likelihood that absent counsel's errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Allen v. State, 271 Ga. 502(2), 521 S.E.2d 190 (1999).
Trial counsel was retained by appellant and testified at the motion for new trial hearing that he met with appellant numerous times to discuss trial strategy and possible defenses and met with appellant's family for the same reason. Although counsel knew that appellant suffered from a heart condition and diabetes, he testified that he saw no reason to question appellant's mental condition. Moreover, we find the record presents no evidence that counsel had information which should have raised doubt in his mind regarding appellant's competency to stand trial or indicated that appellant may have lacked the mental capacity to commit the crimes. Appellant's own expert testified that she found no evidence that appellant was incompetent at the time of his trial and that her evaluation of appellant and his testimony at trial show that he knew the difference between right and wrong at the time of the shooting. Appellant has thus failed to show that counsel's performance was deficient or a substantial likelihood that a psychiatric evaluation would have had any effect on the outcome of the trial. See Barber v. State, 236 Ga.App. 294(4), 512 S.E.2d 48 (1999).
3. The trial court did not err in denying appellant's request to charge the jury on voluntary manslaughter. A charge of voluntary manslaughter is required if "there [is] any evidence, however slight, to support a finding by the jury that the elements of the offense had been proved." (Footnote omitted). Holsey v. State, 271 Ga. 856, 863(10), 524 S.E.2d 473 (1999). Appellant testified that he shot the victim because he feared the victim was about to attack him with a screwdriver and the trial court properly charged the jury regarding self-defense. There was no evidence that appellant shot the victim as the result of passion arising from a serious provocation. Nor was there any evidence that appellant was "so influenced and excited that he reacted passionately rather than simply in an attempt to defend *72 himself." (Footnote omitted.) Worthem v. State, 270 Ga. 469, 471, 509 S.E.2d 922 (1999).
Judgment affirmed.
All the Justices concur.
NOTES
[1] The crimes occurred on December 17, 1999. Hale was indicted by the DeKalb County grand jury on April 27, 2000 for malice murder, two counts of felony murder and possession of a firearm during the commission of a crime. After a jury trial on June 20-23, 2000, he was found guilty on all counts. Hale was sentenced as a recidivist to life without parole on the malice murder count and a consecutive five year sentence on the possession of a firearm count. The trial court vacated the two felony murder convictions by operation of law. OCGA § 16-1-7. Hale filed a motion for new trial on July 14, 2000 and an amended motion for new trial on August 1, 2001. The amended motion for new trial was denied on August 14, 2001. A notice of appeal was filed on September 10, 2001, the appeal was docketed in this Court on September 27, 2001 and submitted for decision on the briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342416/ | 730 A.2d 274 (1999)
126 Md. App. 492
Siamak A. HAMZAVI
v.
Marc BOWEN, et ux.
No. 896, Sept. Term, 1998.
Court of Special Appeals of Maryland.
May 27, 1999.
*275 Raymond D. Burke (David Freishtat and Freishtat & Sandler, on brief), Baltimore, for appellant.
Courtland K. Townsend, Jr., Ocean City (Michael O. Connaughton and Blumenthal, Delavan & Williams, P.A., Annapolis, on brief for receiver), for appellees.
Argued before DAVIS, EYLER and SONNER, JJ.
SONNER, Judge.
This case arises out of a lawsuit filed by the owners of a condominium unit in the Carousel Hotel located in Ocean City, Maryland. The dispute has a tortured history that began in June of 1995, when Dr. Siamak Hamzavi, a cardiac surgeon from Scranton, Pennsylvania, through his wholly owned limited partnership, Four Star Enterprises, bought the Carousel Hotel and many of the condominium units located within the hotel complex. The condominium owners manage the condominium units through the Council of Unit Owners of Carousel Center Condominium, Inc. ("the council"). After purchasing the hotel on September 12, 1996, Dr. Hamzavi used his voting power from ownership of multiple condominium units located in the Carousel Hotel to dismiss the council's preexisting board of directors and substitute one completely controlled by him. Although the named appellant in this appeal is Dr. Hamzavi, the disputes have centered around the activities of not only Dr. Hamzavi, but also the board of directors, which has indisputably been working on his behalf. There have been other related suits involving the Carousel Hotel and the condominium owners that have complicated and affected the management and financial health of the hotel, but relating them is not necessary to the resolution of the issues before this Court.
It is also unnecessary to recite here all the history of the many financial problems *276 that the Carousel Hotel is experiencing that has led to a lapsing of insurance coverage and the imminent threat by the town of Ocean City to close the Carousel Hotel. Suffice it to say that the accumulating financial problems led to the filing of a complaint against the council in the Circuit Court for Worcester County and eventually to this appeal. The allegations of the condominium owners were, in effect, that Dr. Hamzavi, through his control of the council, was operating the Carousel Hotel in violation of the Maryland Condominium Act and in a manner that endangered their investments, was attempting to enforce payment of illegal assessments, had adopted a budget that was not in the interests of the condominium owners, and was conspiring to devalue the price of the condominium units so that he could purchase them below market value. The condominium unit owners were facing a council totally controlled by Dr. Hamzavi, one that filed suit against them to collect dues, and at the same time refused to collect dues or assessments from Dr. Hamzavi.
After several hearings on motions filed in the case, the court below entered a consent order appointing a trustee to protect the interests of the 160 individual condominium owners. For several months, the trustee, a local CPA, attempted to manage the financial affairs of the condominium, but he was repeatedly frustrated by a complete lack of cooperation from Dr. Hamzavi and his agents. The dispute between the unit owners of the condominiums and Dr. Hamzavi reached a critical point when Dr. Hamzavi, without notifying the trustee or anyone else, filed for bankruptcy under Chapter 11 of United States Bankruptcy Code. The bankruptcy court dismissed the case and stated that "[t]he purpose of this filing is not to adjust or reorganize the financial relationships between the debtor and its creditors. Rather, the purpose of this filing is to collect condominium assessments as determined by the debtor, with the debtor in control." The court found further that Dr. Hamzavi was seeking to promote the interests of the hotel in conflict with the interests of the condominium unit owners, and that the best means of bringing order out of the chaos created by Dr. Hamzavi was to "abstain in favor of" the circuit court. Subsequently, the circuit court held a hearing and came to the conclusion that the instrumentality of a trustee was not working, and decided, instead, to appoint a receiver who would assume complete authority over the incorporated council of unit owners of the Carousel Hotel, and who would manage its affairs and operations. It is from that order that this appeal was taken. The issues, as framed by appellant, are:
I. Did the trial court possess the authority to create a receivership?
II. Was the court's appointment of a receiver supported by sufficient evidence?
III. Did the trial court have the authority to strike the appearance of appellant's counsel?
For the reasons discussed below, we find in favor of appellee on all issues.
We first address appellant's contention that the trial court lacked the authority to appoint a receiver. Specifically, appellant argues that Maryland courts do not possess the inherent power to create receiverships; rather, the establishment of a receivership must be made pursuant to a statutory provision, which expressly authorizes the appointment of a receiver.
Generally, a court of law without equity jurisdiction or statutory authority has no power to appoint a receiver. 65 AM.JUR.2D Receivers § 15 (1972). A court of equity, however, by virtue of its chancery jurisdiction, possesses ample authority to create receiverships, independent of statute, provided that the proper grounds and conditions exist for the appointment of a receiver. Id. "[I]t is text-book law `that the appointment of a receiver over a corporation is generally equivalent to a suspension of its corporate functions, and of all authority over its property and effects, and *277 is also equivalent to an injunction restraining its agents and officers from intermeddling with its property.'" Linville v. Hadden & Co., 88 Md. 594, 596, 41 A. 1097 (1898) (quoting High on Receivers, Sec. 290). Section 1-501 of the Maryland Courts and Judicial Proceedings Article establishes unequivocally that Maryland circuit courts exercise full equity jurisdiction. See also Wentzel v. Montgomery General Hospital, Inc., 293 Md. 685, 701, 447 A.2d 1244 (1982). Section 1-501 provides as follows:
The circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the State. Each has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.
MD.CODE ANN., Cts. & Jud. Proc. § 1-501 (1998).
As the highest court of original jurisdiction in Worcester County, the circuit court was empowered with full equity jurisdiction. It is abundantly clear, therefore, that the circuit court possessed ample authority to appoint a receiver to preserve and manage the property at issue.
Having determined that the court had the power to create a receivership, we next address the issue of whether the record contains sufficient evidence to support the court's appointment of a receiver.
The appointment of a receiver "is an extraordinary remedy, which should be granted with great care." First Union Savings & Loan, Inc. v. Bottom, 232 Md. 292, 296, 193 A.2d 49 (1963). Consequently, "if it does not clearly appear that there is fraud, spoliation, or imminent danger of the loss of the property unless immediate possession is taken by the court, a receivership should not be ordered." Brown v. Brown, 204 Md. 197, 211, 103 A.2d 856 (1954). A court should not appoint a receiver on anticipated grounds. 65 AM. JUR.2D, supra, § 27. Rather, there must be an "imminent danger of the property being lost, injured, diminished in value, destroyed, squandered, wasted, or removed from the jurisdiction." Id.
Bearing these legal principles in mind, we turn now to the facts of the dispute before us. The record reveals that Dr. Hamzavi owes millions of dollars in unpaid dues and assessments, and that the council's board of directors, over which he possessed total control, refused to initiate lien proceedings against him to collect the owed funds. As the trial court observed, as long as Dr. Hamzavi and his agents remained in control of the Carousel Hotel, there would never be a lien filed against Dr. Hamzavi for the unpaid dues. To make matters worse, the Carousel Hotel was on the brink of insolvency and in imminent danger of closure by the Town of Ocean City for failing to comply with a consent order to repair various housing violations. In short, Dr. Hamzavi and his hand-picked board had brought the Carousel Hotel to the point of financial and operational gridlock. The circuit court was well within its discretion in appointing a receiver to administer the affairs of the Carousel Hotel.
Dr. Hamzavi next contends that the court exceeded its authority in striking the appearance of the council's attorney. In doing so, according to Dr. Hamzavi, the court effectively deprived the council of its right to legal representation.
Our review of the court's order, however, fails to substantiate Dr. Hamzavi's claims. After striking the appearance of the council's attorney, the court ordered that "... no attorney other than Courtland K. Townsend, Jr., Esquire is authorized to represent the Council of Unit Owners of Carousel Center Condominium, Inc. in any legal proceeding unless first authorized by this Court or any Appellate Court ...." (emphasis added). Hence, it is apparent *278 that the court did not deprive the council of legal representation; rather, it simply held that any attorney chosen by the council would first have to obtain court approval. In light of the court's specific finding that the council's former attorney had breached his fiduciary duty to the council by orchestrating a bankruptcy whose sole purpose was to derail and frustrate the trustee, we hold that the court's order was justified.
JUDGMENT AFFIRMED;
COSTS TO BE PAID BY APPELLANT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2758660/ | Dardzinska v City of New York (2014 NY Slip Op 08574)
Dardzinska v City of New York
2014 NY Slip Op 08574
Decided on December 9, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 9, 2014
Sweeny, J.P., DeGrasse, Manzanet-Daniels, Feinman, Gische, JJ.
13718N 159313/13
[*1] Helen Dardzinska, Petitioner-Respondent,
vCity of New York, et al., Respondents-Appellants.
Rafter & Associates PLLC, New York (Howard K. Fishman of counsel), for appellants.
Bader, Yakaitis & Nonnenmacher, LLP, New York (Robert E. Burke of counsel), for respondent.
Order, Supreme Court, New York County (Kathryn Freed, J.), entered February 14, 2014, which granted petitioner's application for leave to file a late notice of claim upon respondents, unanimously reversed, on the law and the facts, without costs, the application denied, and the petition dismissed.
While no one factor is controlling, here petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (General Municipal § 50-e[5]; Matter of Kelley v New York City Health & Hosps. Corp., 76 AD3d 824 [2010]). Petitioner failed to make an adequate showing, via medical or other evidence, that her claimed injuries prevented her from timely filing a notice of claim (see Matter of Rivera v New York City Hous. Auth., 25 AD3d 450 [1st Dept 2006]). That this is true is underscored by the fact that she was able to file a report with her employer within 90 days of her accident (see Matter of Casale v City of New York, 95 AD3d 744 [1st Dept 2012]).
It is undisputed that respondents did not acquire actual knowledge of the facts and circumstances constituting the claim within the statutory 90-day service period, or a reasonable time thereafter, and there has been no showing that a defense on the merits would not be prejudiced by the late service (id.; Matter of Rivera, 25 AD3d at 451).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 9, 2014
CLERK | 01-03-2023 | 12-09-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2758661/ | OSCN Found Document:IN THE MATTER OF THE REINSTATEMENT OF WYLIE
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IN THE MATTER OF THE REINSTATEMENT OF WYLIE2014 OK 107Case Number: SCBD-6051Decided: 12/08/2014THE SUPREME COURT OF OKLAHOMA
Cite as: 2014 OK 107, __ P.3d __
FOR PUBLICATION IN OBJ ONLY. NOT RELEASED FOR PUBLICATION.
IN THE MATTER OF THE REINSTATEMENT OF: JOHN MARION WYLIE, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS.
ORDER OF REINSTATEMENT TO THE OKLAHOMA BAR ASSOCIATION AND ROLL OF ATTORNEYS
¶1 John M. Wylie (Petitioner) has petitioned for reinstatement to membership in the Oklahoma Bar Association (OBA) and to the Roll of Attorneys pursuant to Rule 11 of the Rules Governing Disciplinary Proceedings, 5 Ohio St. 2001, ch. 1, app. 1-A (RGDP). The OBA, after an investigation, and the Professional Responsibility Tribunal (PRT) after holding a hearing, recommended reinstatement. The OBA has not received any objections to Petitioner's reinstatement.
¶2 Petitioner was admitted to the practice of law in Oklahoma on September 25, 1997. He practiced law until July 2007 when he was voluntarily admitted to Red Rock Crisis Intervention Unit in Norman for inpatient treatment. He has not practiced law since that nine-day stay. In the months following his inpatient treatment, three clients filed written grievances with the Oklahoma Bar Association, all alleging neglect of client matters.
¶3 In July 2008, Petitioner filed with the Court a resignation pending disciplinary proceedings. The Petitioner admitted violations of Rules 1.3 and 5.2 of the Rules Governing Disciplinary Proceedings and Rules 1.3, 1.4 and 1.5 of the Oklahoma Rules of Professional Conduct, as well as his "oath as an attorney." In each of the three client grievances, the Petitioner failed to communicate with his clients in a timely manner. In all three instances, Petitioner refunded fees and no monies were paid on his behalf from the OBA's Client Security Fund.
¶4 Since July 2007, the Petitioner has been consistently treated for bi-polar disorder, the condition which precipitated his actions resulting in client grievances and ultimately his resignation. After his resignation, the Petitioner applied for Social Security Disability benefits for his bipolar disorder. This request was approved and the Social Security Administration classified him as disabled.
¶5 Since resigning from the practice of law, the Petitioner has worked as a convenience store clerk and as a paralegal. He has either refunded or attempted to refund all outstanding unearned fees back to the clients who filed grievances. No monies were spent from the OBA's Client Security Fund on his behalf.
¶6 At Petitioner's request, the Social Security Administration reevaluated his case and determined in March 2014 that he was no longer disabled due to his treatment and improvement with regard to his bipolar disorder.
¶7 Since resigning, Petitioner has been involved with Lawyers Helping Lawyers on a regular and voluntary basis, benefitting both himself and the participants.
¶8 Petitioner has not practiced law and has entered no appearances in any Oklahoma courts since his resignation. He has complied with Rule 9.1, Rules Governing Disciplinary Proceedings.
¶9 The record shows Petitioner is of good moral character. See RGDP at R. 11.5(a). Witnesses testifying at the PRT hearing speak highly of the Petitioner's honesty and integrity. See RGDP at R. 11.4.
¶10 Petitioner has regularly read the Oklahoma Bar Journal and completed 3 hours of CLE, and other non CLE courses or seminars sponsored by the Oklahoma Bar Association. Petitioner has also performed legal research and writing assignments for practicing attorneys, who have characterized his work as exemplary. Petitioner has shown by clear and convincing evidence that he has the competency and learning to qualify for readmission and should not be required to take the Oklahoma Bar Examination as a condition to reinstatement. See RGDP at R. 11.5(c).
¶11 Petitioner has satisfied the procedural requirements for reinstatement. See RGDP at R. 11.1. The Client Security Fund has not expended any money on behalf of Petitioner. See RGDP at R.11.1(b). Petitioner has met his burden to show by clear and convincing evidence the prerequisites to reinstatement found in Rule 11.5 of the RGDP.
¶12 It ordered that Petitioner pay the costs of this proceeding in the amount of $1,728.90. Petitioner's request for lenient repayment terms is granted. Petitioner and OBA are directed to reach a mutually satisfactory agreement for the repayment of costs, with all costs to be paid in full within one year of the effective date of this order.
¶13 It is ordered that Petitioner, John Marion Wylie, be reinstated to membership in the Oklahoma Bar Association and that his name be reinstated to the Roll of Attorneys licensed to practice law in the State of Oklahoma.
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 8th DAY OF DECEMBER, 2014.
/S/CHIEF JUSTICE
ALL JUSTICES CONCUR
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https://www.courtlistener.com/api/rest/v3/opinions/2262331/ | 26 Cal.Rptr.3d 551 (2005)
127 Cal.App.4th 1529
In re CARLOS E., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Carlos E., Defendant and Appellant.
No. F045287.
Court of Appeal, Fifth District.
April 1, 2005.
Review Denied June 22, 2005.[*]
*552 Linda J. Zachritz, Fresno, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and William Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, J.
In this matter of first impression, we determine whether Welfare and Institutions Code section 731 (further references are to this code unless stated otherwise), operative January 1, 2004, alters the method for determining the maximum term of confinement in the California Youth Authority (CYA). We find that, in light of the present language of section 731, the maximum term of a minor's confinement must be discretionarily determined by the juvenile court based on the facts and circumstances placing the minor before the court, not to exceed the maximum time prescribed by adult sentencing law.
PROCEDURAL AND FACTUAL BACKGROUND
Minor Carlos E., the appellant, confronted the victim about a prior altercation. Minor stabbed the victim and then pushed him into a nearby canal. Minor fled.
The juvenile court adjudicated minor a ward of the court pursuant to section 602 after minor admitted a felony violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon. The court committed minor to a juvenile detention center for 180 days and placed him on probation.
Subsequently, minor missed probation appointments, dropped out of school, failed to obey the directives of his guardian, and admitted using drugs. A section 777 supplemental petition alleged violation of probation. Minor admitted the allegations of the supplemental petition. On March 25, 2004, he was committed to CYA. The juvenile court set the maximum term of confinement at four years, based solely on the maximum term an adult would face.
DISCUSSION
Statutory History
The California Supreme Court has provided this historical backdrop:
"Before 1976, both adult and juvenile felons were subject to indeterminate systems which gave courts or administrative agencies broad discretion to set each individual term of confinement on the basis of various factors, including the circumstances of the offense and the offender's progress toward rehabilitation. The Adult Authority was at least obliged to set an adult felon's term within the prescribed range for his offense. [Citation.] On the other hand, juvenile felons, whether convicted in adult court or adjudged wards under the juvenile court law, had no such offense-based limit upon the time in which they might be confined. Once obtained, the juvenile court's wardship jurisdiction ended only when the offender reached 21 or 25 years of age. A CYA commitment, once imposed, could extend until those ages were attained, or a uniform minimum *553 period of confinement was completed, whichever occurred later. (See Welf. & Inst.Code, §§ 607, 1769; People v. Olivas (1976) 17 Cal.3d 236, 240-242, 131 Cal. Rptr. 55, 551 P.2d 375, & fns. 5, 6, 8.)
"In 1976, the Legislature replaced the prior adult sentencing scheme with a comprehensive new law, the DSA [Determinate Sentencing Act]. This new scheme set a limited number of alternative prison terms of definite duration, usually an `upper,' `middle,' and `lower' term, for each category of felony. It further provided for augmentation of a felon's prison term by specified periods if his individual offense involved one or more statutory enhancements.
"At the heart of the DSA were Penal Code sections 1170, subdivision (a)(2) and 1170.1, subdivision (a). Section 1170, subdivision (a)(2) stated the general rule that when sentencing a felon to prison, the court must impose either the upper, middle, or lower term provided for the offense at issue, plus `any other ... additional term' required or permitted by law in the individual case. Section 1170.1, subdivision (a) explained in detail how consecutive sentences for multiple offenses, including specific enhancements, should be computed.
"The year 1976 also produced two related developments in the law pertaining to juvenile offenders. First, in People v. Olivas, supra, 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, [the California Supreme Court] held that one convicted of a misdemeanor committed between the ages of 16 and 21 would be deprived of equal protection if held in CYA confinement for a period longer than the maximum jail term for the same offense. Olivas was narrowly concerned with the unequal treatment of convicted misdemeanants on the sole basis of youth, but it raised concerns that any inequalities between the maximum confinements of youthful and adult offenders might be constitutionally suspect.
"Second, the 1976 Legislature amended Welfare and Institutions Code sections 726 and 731 in a manner which might satisfy such constitutional concerns. (See In re Aaron N. (1977) 70 Cal.App.3d 931, 937, 939, 139 Cal.Rptr. 258.) In deference to the different purposes of the laws governing adult and juvenile offenders, the Legislature did not create a determinate confinement scheme for juvenile wards like that applicable to adult felons through the DSA. However, the 1976 amendments did provide for the first time that any juvenile court order for an offender's physical confinement, or for his commitment to CYA, must expressly be limited in duration to the `maximum term of imprisonment' (italics added) for an adult convicted of the same offense or offenses. (Stats.1976, ch. 1071, § 29, p. 4827; id., § 30, p. 4829.)
"The following year, 1977, the Legislature again amended Welfare and Institutions Code section 726 to define, for juvenile confinement purposes, the phrase `maximum term of [adult] imprisonment.' (Stats.1977, ch. 1238, § 1, p. 4158.) The amendment stated the flat basic rule that the `maximum term of imprisonment' is the `longest of the three time periods [i.e., the upper, middle, and lower DSA terms] set forth in [Penal Code section 1170, subdivision (a)(2)] ... plus enhancements which must be proven if pled.' (Italics added.) Moreover, under the amendment, the `maximum term of imprisonment' applicable to an `aggregate[d]' period of commitment or confinement for multiple offenses must be computed `in accordance with [Penal Code section 1170.1, subdivision (a)].' [S]ection 1170.1, subdivision (a) sets forth the DSA's basic scheme for consecutive adult felony sentences." (In re Jovan B. (1993) 6 Cal.4th 801, 816-818, 25 Cal.Rptr.2d 428, 863 P.2d 673.)
*554 "The obvious purpose of the 1976 and 1977 amendments to Welfare and Institutions Code section 726 was `to treat adult and juvenile offenders on equal footing as far as the [maximum] duration of their incarceration is concerned.' [Citation.]" (In re Jovan B., supra, 6 Cal.4th at p. 819, 25 Cal.Rptr.2d 428, 863 P.2d 673.)
An adult convicted of an offense cannot be committed to prison for the maximum determinate term without a finding of aggravating circumstances. On the other hand, a minor committing an identical offense found true by the juvenile court may be confined for the maximum term without any additional findings by the juvenile court without violating principles of equal protection. This is so because "[a]dults convicted in the criminal courts and sentenced to prison and youths adjudged wards of the juvenile courts and committed to the Youth Authority are not `similarly situated.'" (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549.)
Once committed to CYA, the minor's actual term is governed by CYA guidelines, within the statutory maximum. "Minors most often do not serve their maximum terms, but the statutory maximum may affect both parole eligibility and the extent to which actual confinement may be prolonged for disciplinary reasons." (In re Jovan B., supra, 6 Cal.4th at p. 811, 25 Cal.Rptr.2d 428, 863 P.2d 673.)
Section 726, subdivision (c) provides in pertinent part that "if the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." This subdivision goes on to describe that the maximum term of confinement is to be determined pursuant to Penal Code section 1170, subdivision (a), but without regard to the provisions of subdivision (b) (requiring the consideration of mitigating and aggravating factors), and without regard to time for good behavior, etc. Subdivision (c) of section 726 goes on to define "physical confinement" to mean "placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority."
Section 731 pertains to commitments to CYA. Prior to January 1, 2004, the second paragraph of this section provided: "A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. Nothing in this section limits the power of the Youthful Offender Parole Board to retain the minor on parole status for the period permitted by Section 1769."
Present Statute
Senate Bill No. 459 (2003-2004 Reg. Sess.) amended section 731, operative January 1, 2004. The former two paragraphs were designated as subdivision (a) and subdivision (b). Changes, not pertinent to our discussion, were made to the first paragraph (subdivision (a)). The second paragraph was rewritten and became subdivision (b). What gives rise to the present issue concerns the addition of the second sentence in subdivision (b).
Section 731, subdivision (b), now reads: "A minor committed to the Department of the Youth Authority may not be held in *555 physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769." (§ 731, subd. (b), italics added.)
Minor here claims that the amendment to section 731, while retaining the rule that the maximum term of confinement in CYA may not exceed "the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court," now allows for the juvenile court to set a "maximum term of confinement" in CYA less than the maximum term for an adult based on a consideration of the facts and circumstances of the matter (or matters) that brought the minor before the juvenile court. He argues that the juvenile court failed to exercise this newly authorized power and imposed the adult maximum term of confinement without considering the particulars of the minor and the offense. He further contends that he was committed pursuant to a lack of informed discretion, thereby prejudicing his right to due process under the United States and California Constitutions.
The People argue that the amendment to section 731 merely clarifies existing juvenile court law and does not authorize the trial court to set a maximum term of confinement to CYA that is less than the adult maximum term of imprisonment.
"In construing a statute, our role is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs. [Citation.]" (People v. Lopez (2003) 31 Cal.4th 1051, 1056, 6 Cal.Rptr.3d 432, 79 P.3d 548.)
The People claim that the juvenile court judge has only two areas of discretion in setting the maximum term of confinement: (1) the judge may declare a wobbler offense to be a misdemeanor or a felony (§ 702), and (2) the judge may decide whether to aggregate terms when there are multiple counts or multiple petitions (§ 726, subd. (c)). Relying on the rule of statutory construction that this court should avoid construing one section in a manner that renders another section superfluous or inoperative and the rule that this court should adopt a construction which avoids conflicts between different statutory provisions, the People argue that section 726 requires that the maximum term of confinement must always be the "longest term of imprisonment prescribed by law." The People contend that to allow the court to set a maximum term of confinement that is less than the maximum term of imprisonment for a similarly situated adult would nullify section 726.
We disagree. Section 726 requires that a court may not order that a minor be held *556 in confinement "in excess of the maximum term of imprisonment which could be imposed upon an adult." Section 726 sets the upper limit for a term of confinement in all cases. Allowing a trial court to impose a maximum term of confinement below the "maximum term of imprisonment which could be imposed upon an adult" pursuant to section 731, subdivision (b) does not, as the People suggest, nullify the rule of section 726 because setting a minor's term somewhere below the maximum term of imprisonment for an adult does not violate section 726, subdivision (c), which sets the outer limit for a period of confinement.
We note the People have not offered any reason why the earlier version of section 731 needed clarification in this area, nor have we found any case law or other authorities raising an issue in this area that calls for clarification.
This court is required, to the extent possible, to avoid adopting an interpretation that renders words surplusage. (People v. Loeun (1997) 17 Cal.4th 1, 9, 69 Cal.Rptr.2d 776, 947 P.2d 1313.) We should, if possible, give the words their usual ordinary import and accord significance to every word or phrase in a statute. (Kane v. Hurley (1994) 30 Cal.App.4th 859, 862, 35 Cal.Rptr.2d 809.)
Section 726 directs the juvenile court to determine the maximum term of imprisonment. by choosing the longest period of incarceration applicable to an adult offender without regard to mitigating or aggravating circumstances. (§ 726 subd. (c).) Section 731 retains this requirement but "also" requires the court to particularly set a maximum term of physical confinement in CYA "based upon the facts and circumstance of the matter ... which brought ... the minor under the jurisdiction of the juvenile court." "Facts and circumstances of the matter" have absolutely no bearing on the question of the "maximum term of imprisonment" that is determined pursuant to section 726. Under respondent's interpretation, the juvenile court, although expressly directed to consider the facts and circumstances of the matter, would have no authority to impose anything but the maximum term of imprisonment, which is found without any consideration of individualized facts and circumstances. We find that to adopt respondent's position would be to render the amendment to section 731 surplusage. This is a course we choose not to follow. Thus, the amendment to section 731 clearly sets forth a method based on the facts and circumstances before the court of determining the "maximum period of confinement" in CYA, while retaining the long-standing requirement that the term determined by the court may not exceed the "maximum period of imprisonment" as determined by section 726.
The amendment to section 731 does not nullify the requirements of section 726. As our historical discussion sets forth, the maximum-period-of-imprisonment requirement in section 726 was adopted to avoid equal protection concerns. These concerns remain and require the maximum time limitation rules contained in section 726.
Further evidence that the language added to section 731 is much more than a clarification of earlier law is found in the amendments to section 1766 made as part of the same legislation, Senate Bill No. 459 (2003-2004 Reg. Sess.). Section 1766, dealing with the powers of the Youth Authority Board (formerly the Youthful Offender Parole Board) when a minor has been committed to CYA, was substantially altered by Senate Bill No. 459. Of importance to our discussion is former subdivision *557 (b), now contained in current subdivision (a)(2).
Former section 1766 provided in pertinent part:
"When a person has been committed to the Youth Authority, the Youthful Offender Parole Board may
"(a) Permit him his liberty under supervision and upon such conditions as it believes best designed for the protection of the public.
"(b) Order his or her confinement under such conditions as it believes best designed for the protection of the public, except that a person committed to the Youth Authority pursuant to Sections 731 or 1731.5 may not be held in physical confinement for a total period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought the minor under the jurisdiction of the juvenile court, or which resulted in the commitment of the young adult to the Youth Authority. Nothing in this subdivision limits the power of the board to retain the minor or the young adult on parole status for the period permitted by Sections 1769, 1770, and 1771." (Italics added.)
Section 1766, as amended by Senate Bill No. 459 (2003-2004 Reg. Sess.), provides in pertinent part:
"(a) When a person has been committed to the Department of the Youth Authority, the Youth Authority Board may, according to standardized review and appeal procedures established by the board in policy and regulation and subject to the powers and duties enumerated in subdivision (a) of Section 1719:
"(1) Permit the ward his or her liberty under supervision and upon conditions it believes are best designed for the protection of the public.
"(2) Order his or her confinement under conditions it believes best designed for the protection of the public pursuant to the purposes set forth in Section 1700, except that a person committed to the Youth Authority pursuant to Sections 731 or 1731.5 may not be held in physical confinement for a total period of time in excess of the maximum periods of time set forth in Section 731. Nothing in this subdivision limits the power of the board to retain the minor or the young adult on parole status for the period permitted by Sections 1769, 1770, and 1771." (Italics added.)
A comparison of the language from former section 1766 and current section 1766 illustrates the maximum confinement time in CYA has shifted from the "maximum period of imprisonment which could be imposed upon an adult" to the maximum confinement time set by the juvenile court pursuant to section 731, with the lid remaining consistent with the long-standing policy that minors may not be retained in CYA for a period in excess of the "maximum period of imprisonment which could be imposed upon an adult."
We also find that the People's position runs afoul of the rules regarding specific and general provisions on the same subject matter. "`It is well settled ... that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.'' (San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577, 7 Cal.Rptr.2d 245, 828 P.2d 147.) This rule applies whether the specific statute was passed before or after the general statute. (Warne v. Harkness (1963) 60 Cal.2d 579, 588, 35 Cal.Rptr. 601, 387 P.2d 377.)
*558 Section 726, subdivision (c), deals with the maximum period of time any minor could be required to serve in a "juvenile hall, ranch, camp, forestry camp or secure juvenile home ..., or in any institution operated by the Youth Authority." Section 731, subdivision (b), governs only minors committed to CYA based on a particular set of facts and circumstances. Thus section 731, subdivision (b), is a special statute dealing with the maximum confinement of a specific minor in CYA, whereas section 726, subdivision (c), is a general statute, describing the generalized limitations on the aggregate amount of time one might be required to serve at any of the described placement facilities, including confinement in CYA.
While the presumption that a specific statute governs a general statute may be rebutted by evidence of a contrary intent of the Legislature (Miller v. Superior Court (1999) 21 Cal.4th 883, 896, 89 Cal.Rptr.2d 834, 986 P.2d 170), no such contrary intent appears here.
Because we find section 731 is not ambiguous, we need not resort to legislative history for our decision. We only note the history as confirmation of our conclusion as to the plain language of the statute. The stated rationale for the numerous changes created by Senate Bill No. 459 was, "Almost since the creation of a separate board in 1980, CYA observers have expressed serious concerns about the YOPB [Youthful Offender Parole Board], principally regarding the board's tendency to increase ward length-of-stay beyond the board's own guidelines, and the board's lack of program expertise." (Assem. Com. on Appropriations, Analysis of Sen. Bill No. 459 (2003-2004 Reg. Sess.) p. 3, [as of March 30, 2005].) The Senate Rules Committee analysis states that current law provides that the maximum period of imprisonment is the term a similarly situated adult would receive, but this bill "would additionally provide that a `minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court." (Senate Rules Com., Analysis of Sen. Bill No. 459 (2003-2004 Reg. Sess.) p. 4, [as of Mar. 30, 2005], emphasis added.) According to the author of the bill it contains "important checks and balances that will enhance the relationship between CYA and the counties, which will improve CYA correctional services." (Assem. Pub. Saf. Com., Analysis of Sen. Bill No. 459 (2003-2004 Reg. Sess.) p. 3, [as of Mar. 30, 2005].)
Nor are we persuaded by the People's "the sky is falling" argument that allowing the juvenile court to set a maximum period of confinement for CYA commitments will "require the dismantlement of juvenile court law's indeterminate disposition scheme and alteration of its distinct purposes."
There is nothing in the legislation or its history to suggest the Legislature sought to make sweeping changes in the commitment of a minor to CYA from an indeterminate term to a determinate term, nor is there any provision that the Legislature is restricting the juvenile court to the adult sentencing triad. Proof the juvenile court's decision is not tied directly to the *559 adult system is found in the language utilized; the juvenile court is to consider the facts and circumstances of the matter, rather than being restricted solely to the aggravating or mitigating circumstance scheme for adults. The juvenile court's determination must be tied to the purposes of the juvenile system, which include the protection of the public as well as the rehabilitation of the minor. (§ 202.)
"[I]t is important to keep in mind that the primary goal behind maintaining separate courts and procedures for adults and minors is to ensure that juvenile offenders who have not yet become hardened criminals receive treatment and rehabilitation. `The juvenile court system and the adult criminal courts serve fundamentally different goals. The punishment for serious crimes tried in the criminal courts is imprisonment, and "the purpose of imprisonment for crime is punishment." (Pen.Code, 1170, subd. (a)(1).) ... [ ] In contrast, the juvenile court system seeks not only to protect the public safety, but also the youthful offender.... [E]ven for the most serious offenders those who will be committed to the California Youth Authority "community restoration, victim restoration, and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses."' [Citation.]" (In re Kasaundra D. (2004) 121 Cal.App.4th 533, 539, 16 Cal.Rptr.3d 920.)
Under the changes to section 731, the juvenile court must determine the maximum period of confinement to CYA based on the facts and circumstances, this maximum may not be more than that for a comparable adult, but may be less. The maximum period of confinement set by the court is not a determinate term, it is the ceiling on the amount of time that a minor may be confined in CYA, and recognizes that the committing court has an interest in and particularized knowledge of the minors it commits to CYA. The Youth Authority Board retains the power, subject to the applicable rules and regulations, to determine the actual length of confinement at or below the ceiling set by the juvenile court and to determine the conditions of the minor's confinement. Thus, the indeterminate nature of the system remains in accordance with the distinct purposes of the juvenile system. We again emphasize that this change relates only to commitments to CYA.
To adopt the People's construction of the statute would fail to honor the plain reading of the statute, would involve misapplication of the canons of statutory construction, and would require judicial trespass into the legislative province. We decline to do so.
Although minor couches his argument in terms of a failure of the juvenile court to exercise its discretion, section 731 unmistakably requires the trial court to set a maximum term of physical confinement in CYA based upon the facts and circumstances of the matter. The court must set the term in all cases where it is committing a minor to CYA and it must exercise its discretion in making the determination of what that term will be. The trial court here erred in its failure to set a maximum term of physical confinement in CYA based upon the facts and circumstances of the matter before it.
DISPOSITION
The matter is remanded to the juvenile court for that court to set a maximum term of confinement in CYA based on the facts and circumstances that brought the *560 minor before the juvenile court. In all other respects, the judgment is affirmed.
WE CONCUR: ARDAIZ, P.J., and DIBIASO, J.
NOTES
[*] Baxter, J., did not participate therein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262332/ | 422 Pa. Superior Ct. 15 (1993)
618 A.2d 992
COMMONWEALTH of Pennsylvania
v.
Ricky Lee AIKINS, Appellant.
Superior Court of Pennsylvania.
Argued November 20, 1991.
Filed January 5, 1993.
*16 Robert A. Cinpinski, Kittanning, for appellant.
Frederick L. John, II, Asst. Dist. Atty., Kittanning, for Com., appellee.
Before BECK, TAMILIA and HESTER, JJ.
TAMILIA, Judge:
Appellant, Ricky Lee Aikins, takes this appeal from judgment of sentence imposed February 26, 1991. The issue in this case is whether a conviction for burglary is precluded by a prior conviction on an indirect criminal contempt charge, arising out of violation of a Protection From Abuse (PFA) Order, when the burglary was committed on the premises protected by the PFA Order.
On December 13, 1984, following a hearing on a PFA Act petition filed due to marital difficulties between appellant and his estranged wife, an Order was entered giving Charlene Aikins (wife) exclusive possession of the parties' marital residence. On March 5, 1985, police were summoned to the residence (a mobile home) where they discovered appellant underneath the home attempting to splice into Charlene's telephone wires. Appellant was charged with interception of oral communications, burglary and criminal trespass. Charlene then filed a petition for contempt arising from appellant's *17 violation of the PFA Order. At the hearing on May 17, 1985, appellant was found to be in indirect criminal contempt of the PFA Order and sentenced to serve six (6) months in jail. Prior to trial on the criminal charges, appellant filed a motion to dismiss on double jeopardy grounds. The trial court denied the motion and following trial and conviction, appellant was sentenced on February 26, 1991 to serve nine (9) months to three (3) years imprisonment for burglary. This appeal followed.
In Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985), our Supreme Court held "prosecution on the substantive criminal charge after a finding of contempt in violating the injunction against abuse does not violate double jeopardy." Id. at 514, 486 A.2d at 370. However, the United States Supreme Court recently articulated changes in double jeopardy jurisprudence in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The Grady Court held:
[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charges in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.... The critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct.
Id. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. The test as to whether contempt is civil or criminal turns on whether the person can escape imprisonment by doing some act of compliance to purge the contempt (civil) rather than be sentenced to punish the wrongdoing without redemption (criminal). See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).
We find the rationale recently employed by this Court in Commonwealth v. Warrick, 415 Pa.Super. 385, 609 A.2d 576 (1992) (Warrick II), is equally applicable to this case although the facts are different. There a prisoner, after judgment of sentence was entered, ran from the court room to avoid incarceration. After capture, he was immediately returned to *18 the court, where, in a summary procedure, he was sentenced to a term of six (6) months on the direct criminal contempt. Subsequently, he was charged, convicted and sentenced to imprisonment for escape. Our Court initially reviewed that conviction in Commonwealth v. Warrick, 344 Pa.Super. 611, 497 A.2d 259 (1985) (Warrick I), and held double jeopardy was not implicated and that the contempt did not bar Warrick's subsequent trial for escape. Most recently in Warrick II, the double jeopardy issue was again reviewed by this Court in light of the Grady double jeopardy ruling handed down subsequent to decision in Warrick I. We held in Warrick II that Grady was inapposite to that case because a summary criminal contempt is by its nature a different type of offense than other crimes, e.g. escape, and continued to rely on Allen, supra. Allen rested on the fact that criminal contempt consists of acts tending to lessen the dignity or impede the process of the court, thus criminal contempt proceedings are instituted to vindicate the authority of the court and must be viewed as a necessary tool for deterring abuse of the judiciary. This function demands that a judge not be required to consider the consequences of foreclosing subsequent criminal prosecution when sanctioning a contemnor for his actions. Id.
In Warrick II we pointed out that "Grady [n. 7] explicitly recognizes that an exception to its double jeopardy analysis may exist where the government is unable to proceed on the more serious of two charges for various administrative or procedural reasons." Warrick II, supra at 389, 609 A.2d at 578. Also, the United States Supreme Court has severely limited the scope of Grady by its ruling in United States v. Felix, ___ U.S. ___, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). In Felix, the Supreme Court found no double jeopardy when two separate prosecutions were brought for conspiracy and the conduct upon which the substantive offenses were brought. It held that "a mere overlap in proof between two prosecutions does not establish a double jeopardy violation" Id. at ___, 112 S.Ct. at 1382, 118 L.Ed.2d at 34. The Warrick II Court also found that "[u]ntil either the Pennsylvania Supreme Court or the United States Supreme Court clearly *19 indicates that a conviction of direct criminal contempt triggers double jeopardy protections for additional criminal charges based on the same conduct, we cannot grant the type of relief sought by appellant." Id. at 392, 609 A.2d at 580. Although the case before us involves indirect criminal contempt, we find the Warrick II Court's reasoning apt.
Applying the above principles to this case, it is clear beyond question that Grady does not and was never intended to prevent the effective implementation of the PFA Act in imposing contempt penalties, albeit they are criminal in nature, and involve the same facts as a contemporaneous substantive offense, when the alternative is to deny prosecution of the substantive offense. Grady could not make it more clear, as reaffirmed in Felix, that double jeopardy may not deny the right to prosecute the substantive offense because procedural or administrative exigencies require more expeditious handling of the summary offense. This was correctly interpreted in Warrick II to require the prosecution of the direct criminal contempt faced by the court long before the escape charge could be prosecuted. It applies just as clearly to prosecution of the indirect criminal contempt of a PFA violation before the burglary charges could be prosecuted in this case. PFA legislation was enacted to curb domestic violence which has taken a tremendous toll on women and children, particularly, in our society. This legislation requires that in several areas we apply exigent procedures and measures which are usually violative of due process. These involve matters such as notice, opportunity to be heard, temporary dispossession of one party to marital or entireties property, summary support and emergency custody procedures, and hearings in the domestic relations division rather than criminal division of the criminal contempt proceedings. This has been done, supported by rulings as to its constitutionality, because it is deemed necessary to do so to protect the victims of abuse from serious harm and/or loss of life. In this case, to wait until the usual procedures, which are circumscribed by criminal due process requirements to the fullest, for prosecution for burglary are implemented and the case tried on the contempt with the *20 burglary would mean a delay of one to two years in some judicial districts. By then the victim could be dead, as a burglary charge, with overcrowded prisons would surely result in early release until trial. The contempt violation of the PFA Order, however, can be handled immediately and expeditiously to serve its stated purpose, to protect the life and safety of the victim. The contempt action and proceeding protects not only the dignity and expectation of the court to assure the orderly administration of justice, but also protects the life of the victim, which society has come to recognize requires the extraordinary procedures employed under the PFA Act.
Logic compels the distinction between these cases and the usual case implicated by the double jeopardy rulings. As Allen has stated in analyzing United States v. Mirra, 220 F.Supp. 361, (S.D.N.Y.1963):
`Assume that Mirra's projectile had received more accurate a propulsion and had scored on its intended target the Assistant United States Attorney. And assume further the grisly and morbid fact that the Assistant United States Attorney had sustained an injury which ultimately proved fatal. To sustain Mirra's claim would, in effect, grant a summary contemnor immunity from a homicide prosecution an unconscionable result. Merely to state the case suffices to reveal what must perforce be the answer to Mirra's theory.'
[Mirra] at 366. We hold that the same implied answer, no double jeopardy, is required in this case.
Allen, supra at 514, 486 A.2d at 370, quoting Mirra, supra (emphasis added).
Justice Larsen, in his Concurring Opinion in Allen, addresses the preventive nature of the PFA as follows:
I join the majority opinion. I write separately to emphasize that the contempt provisions of the Protection From Abuse Act are available and intended not only to punish an abusive spouse for past abusive behavior, but are also available and intended to physically restrain (i.e., jail) an abusive spouse in order to prevent future occurences [sic] of *21 abuse. There is much peace of mind in knowing that the abuser cannot reach the object of the abuse.
Id. at 516, 486 A.2d at 371 (footnote omitted). In this case, without the immediate contempt action against the contemnor, exacerbated by the arrest, upon release from jail awaiting the burglary trial, the next trip to the victim's home could have been fatal to her. If ever double jeopardy does not apply, it is in this case or cases involving PFA proceedings in general. Our decision today is in accord with, and guided by, our recent decision in Commonwealth v. Manney, 421 Pa.Super. 244, 617 A.2d 817 (1992), a case with similar facts and the same resolution.
Based on the foregoing, we affirm the trial court's judgment of sentence and hold there is no basis upon which this panel can overrule Allen or Warrick, and that Grady has not worked a fundamental change in the manner we interpret the double jeopardy provisions of the Federal and State Constitutions in relation to PFA contempt actions.
Judgment of sentence affirmed.
BECK, J., files a dissenting opinion.
BECK, Judge, dissenting.
In the instant case appellant Ricky Lee Aikins challenges his convictions for burglary and criminal trespass on the ground that the prosecution was based on the same conduct which underlay a previous conviction for indirect criminal contempt for violating a Protection from Abuse order. Appellant argues that the subsequent burglary and criminal trespass prosecution violated his constitutional guarantee against double jeopardy.[1] Based on the recent United States Supreme Court pronouncement in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which I find to be dispositive, I conclude that the subsequent criminal conviction was barred on double jeopardy grounds. Therefore, I would reverse the judgments of sentence and discharge appellant.
*22 Appellant and his estranged wife, Charlene Aikins, were married in 1979 and separated in 1984. As a result of escalating marital difficulties, Charlene Aikins filed a petition under the Protection from Abuse Act and, following a hearing, an order was entered on December 13, 1984. Pursuant to the court's order, Charlene Aikins was granted exclusive possession of the marital residence, which was a mobile home in Apollo, Pennsylvania.
On March 5, 1985, the police were summoned to Charlene Aikens' trailer where they discovered appellant underneath the mobile home. He was there with the apparent intention of intercepting his wife's telephone calls. Appellant had connected a telephone receiver to his wife's telephone system by splicing wires and attaching the phone to the wires beneath the trailer. The phone, wires and alligator clips were found under the trailer along with appellant when the police arrived. The area entered by appellant was used by the family for storage and was surrounded by skirting which was secured to the trailer by screws.
Appellant was charged with interception of oral communications, burglary and criminal trespass. In addition, Charlene Aikins filed a petition for contempt as a result of appellant's violation of the protection from abuse order. A hearing on the contempt petition was held on May 17, 1985. Appellant was found in indirect criminal contempt of the protection from abuse order and was sentenced to serve six months in jail. Prior to trial on the criminal charges, appellant filed an omnibus pretrial motion seeking dismissal on double jeopardy grounds. The trial court refused and found that "punishment for contempt for violation of a Protection from Abuse Order does not contravene the double jeopardy provisions of the constitution ... so as to prevent a subsequent prosecution for Burglary and Criminal Trespass based on essentially the same facts as the finding of contempt for violation of the Protection from Abuse Order."
Appellant was tried on February 12-13, 1986, and convicted by a jury of burglary, criminal trespass and interception of oral communications. Sentencing occurred on February 26, *23 1991.[2] The court imposed a nine month to three year term of imprisonment for burglary.[3] This appeal followed.
In finding that the criminal prosecution for burglary was not barred by the previous indirect contempt conviction, the trial court relied on the Pennsylvania Supreme Court case, Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985). The Commonwealth, too, in its brief to this court relies on Allen for the argument that a previous conviction for indirect criminal contempt "never bars subsequent criminal charges based wholly or partially on the same conduct". Were it not for significant recent changes in double jeopardy jurisprudence, I would have to agree that Allen would permit the instant burglary prosecution despite the previous contempt conviction. However, in light of the United States Supreme Court's most recent articulation of the standard by which double jeopardy claims must be judged, Grady v. Corbin, supra, I am constrained to find that Allen is not controlling and that appellant's burglary conviction must be reversed.
Allen's fact pattern largely resembles the instant case. The defendant in Allen had been ordered by the court, by means of a protection from abuse order, to refrain from physically abusing, striking or harassing his estranged wife. While the order was in effect the defendant in Allen violated it by forcibly entering his wife's home and assaulting her. As a result of these actions, a criminal complaint against defendant was filed on charges of simple assault and trespass. Wife also petitioned the court to hold defendant in contempt of the protection order. Defendant was arraigned on the contempt charge, failed to post bail and remained in jail for the next *24 nine days, when the contempt hearing was held. After the hearing, defendant was found in contempt of the protection order and fined. Several days later, the defendant in Allen was also charged with raping his wife during the same criminal episode described above. All criminal charges were consolidated. The defendant moved to quash the three criminal informations on the ground that the subsequent prosecution was barred by double jeopardy. The trial court denied the motion. The Superior Court affirmed the trial court on the charges of criminal trespass and rape, and reversed on simple assault finding that double jeopardy barred the prosecution of the latter offense.
The Supreme Court found that the defendant could be tried on all three offenses and that double jeopardy would not be offended. Preliminarily, the Supreme Court rejected the Commonwealth's argument that the contempt proceeding was not criminal in nature and that, therefore, the double jeopardy protection was not implicated. The Supreme Court unequivocally held in Allen that "the finding of contempt involved a proceeding which was criminal in nature, and is thus a proceeding with implications for double jeopardy analysis." Commonwealth v. Allen, 506 Pa. at 511, 486 A.2d at 368.
The analysis that the Supreme Court used to determine whether successive prosecutions violated the double jeopardy guarantee was based on the then-current standard for evaluating double jeopardy claims. Citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court concluded that when the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one for double jeopardy purposes is whether each provision requires proof of a fact which the other does not. Commonwealth v. Allen, 506 Pa. at 510-11, 486 A.2d at 368. Applying this test, the Supreme Court had no trouble finding that "the charges of rape and criminal trespass are not barred by jeopardy because they both involve proof of a fact which the finding of contempt does not." The court concluded that "[r]ape and criminal trespass ... are not *25 merely separate offenses in one particular or other, but are wholly different offenses from indirect criminal contempt." Id. at 511-12, 486 A.2d at 368-369. The Supreme Court found the analysis with respect to the simple assault and contempt more troublesome, presumably because the contempt involved an assault and because the protection order enjoined Allen from engaging in physically abusive conduct. Nevertheless, the Supreme Court found that "the indirect criminal contempt proceeding involves elements not necessary to a finding of simple assault, even though assaultive behavior was involved in the contempt." Id. at 514, 486 A.2d at 370 (footnote omitted). The Allen court concluded:
Defendant could have wilfully violated the court order by any number of actions, many of which would not have involved assault, or even physical contact or presence. Moreover, the contempt order's purpose was protection of the court's dignity and enforcement of its order, not punishment for criminal assault .....
We hold, therefore, that under the Blockburger test, indirect criminal contempt and simple assault do contain the requisite "separate elements" and vindicate different interests. Therefore, prosecution on the substantive criminal charge after a finding of contempt in violating the injunction against abuse does not violate double jeopardy.
Id. (citations omitted) (emphasis added).
In 1990, the United States Supreme Court decided Grady v. Corbin, supra, and altered the approach this court must take toward the resolution of double jeopardy issues. Briefly, the charges in Grady v. Corbin arose from an automobile accident in which the defendant, Thomas Corbin, received two traffic tickets after his car crossed the center line of the highway, striking two oncoming cars. The accident caused the death of one person and serious injuries to another. The traffic citations charged Corbin with driving while intoxicated and failing to keep to the right of the median.
Shortly after the accident the district attorney's office began a grand jury investigation into possible homicide charges against Corbin. Nevertheless, in the meantime, Corbin appeared *26 before a town justice and pled guilty to the traffic offenses. The judge was unaware of the fatality or the pending homicide investigation when he accepted the pleas and imposed sentence which consisted of fines and license revocation. Two months later, the grand jury indicted Corbin on charges of reckless manslaughter, second-degree vehicular homicide, criminally negligent homicide, and third degree reckless assault.
Corbin challenged the indictment on double jeopardy grounds. The New York Court of Appeals found that because the state conceded that the prosecution for homicide and assault would rely upon the prior traffic offenses to establish elements of the greater offenses, double jeopardy barred the subsequent prosecution. The state appealed to the United States Supreme Court, which affirmed.
The Court stressed the dangers inherent in successive prosecutions and concluded that the application of the traditional Blockburger analysis alone would not sufficiently protect a defendant against the burdens of multiple trials. Thus, the Court articulated an expanded, two-prong approach to the resolution of double jeopardy claims. The Court explicitly stated that the "subsequent prosecution must do more than merely survive the Blockburger test." Grady v. Corbin, supra, 495 U.S. at 521, 110 S.Ct. at 2087, 109 L.Ed.2d at 564. The further inquiry mandated after Grady v. Corbin was explained by the Court as follows:
[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.... The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.
Id. (footnote omitted).
It is clear, therefore, that after Grady v. Corbin a new "constitutional mandate" regarding double jeopardy protection is applicable. See Commonwealth v. Labelle, 397 Pa.Super. 179, 191, 579 A.2d 1315, 1321 (1990). See also Commonwealth *27 v. Yingling, 407 Pa.Super. 151, 595 A.2d 169 (1991); Commonwealth v. Adams, 406 Pa.Super. 493, 594 A.2d 727 (1991); Commonwealth v. Butt, 406 Pa.Super. 526, 594 A.2d 743 (1991); Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991). Precedent which resolved double jeopardy challenges based on a Blockburger analysis alone, like Commonwealth v. Allen, can no longer dictate the result when this constitutional challenge is raised.
Before I begin to analyze the instant case under the current double jeopardy standard I first put to rest any argument that because this case involves a contempt proceeding pursuant to the Protection from Abuse statute, an exception to double jeopardy protection somehow exists. This clearly is not the case. It is beyond dispute that indirect criminal contempt is criminal in nature.[4] The sanctions imposed are determinate and unconditional and intended as punishment to vindicate the authority of the court. The term of imprisonment imposed is not dependent upon future compliance with the court's order. The critical question is "not whether the contemnor is physically required to set foot in a jail but whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order." Hicks v. Feiock, 485 U.S. 624, 635 n. 7, 108 S.Ct. 1423, 1431 n. 7, 99 L.Ed.2d 721, 733 n. 7 (1988). See also Vito v. Vito, 380 Pa.Super. 258, 551 A.2d 573 (1988); Colbert v. Gunning, 368 Pa.Super. 28, 533 A.2d 471 (1987). Constitutional protections accompany this criminal proceeding, including the guarantee against double jeopardy. Commonwealth v. Allen, supra; Vito v. Vito, supra.
In fact the United States Supreme Court has stressed:
Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice *28 Holmes: "These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech."
Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical protection of the institutions of our government and enforcement of their mandates.
Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481-82, 20 L.Ed.2d 522, 528 (1968).
It is also important to note, particularly for purposes of double jeopardy analysis, the crucial distinctions between direct and indirect criminal contempt. This is particularly so because a recent decision of this court has explored the applicability of double jeopardy principles in the direct contempt context and found Grady v. Corbin inapplicable. Commonwealth v. Warrick, 344 Pa.Super. 611, 497 A.2d 259 (1985). In part, the Warrick court found an exception to Grady in the direct contempt context due to what it described as "[t]he necessity of providing a court with the immediate means to protect its dignity and its ability to properly conduct judicial proceedings. . . ." I agree that this has long been held to be a distinguishing feature between direct and indirect contempt and has served to place direct contempt out of the double jeopardy context. While the rationale of Warrick excludes double jeopardy considerations in cases of direct criminal contempt, the rationale of the instant case clearly makes double jeopardy considerations necessary in cases of indirect criminal contempt.[5]
*29 As discussed above, indirect criminal contempt occurs outside the presence of the court. Direct contempt is committed in the court's presence. The supreme court has explained the distinction between direct and indirect contempt as follows:
Direct contempt is obstruction by conduct, word or deed in the presence of the court and is a summary offense. It may be sanctioned as civil or criminal contempt depending upon the purposes sought by the court. It is summary because its proofs are evident; the authority and orderly process of the court are directly confronted upon its open record and the evidence is plain and usually self-accusing.
Indirect contempt is obstructive conduct committed beyond the court's presence. Such conduct is not self-evident or self-accusatory as when one refuses to do a thing and proof of its commission is required. Therein lies the main difference between contempt in the court's presence and conduct beyond. When one is charged with indirect contempt those charging such contempt are put to the usual proofs required to convict for any charge, including the right to trial by jury. This is so because the court has no direct, immediate proof of something beyond its immediate view.
Crozer-Chester Medical Center v. Moran, 522 Pa. 124, 130-31, 560 A.2d 133, 136 (1989).
Thus, in cases of direct criminal contempt, because the court is personally possessed of all the facts necessary to conclude that a contempt has occurred in its presence, the court can impose summary punishment. No notice is given, no charges are filed and no trial is held. As I noted above, indirect criminal contempt proceedings are accompanied by the same procedural safeguards normally applicable to criminal trials and are adversarial in nature. Therein lies the critical distinction for fulfilling the purposes of the double jeopardy clause. For these reasons, courts which have been asked to decide *30 whether the imposition of sanctions following a direct contempt has implications for double jeopardy have found that double jeopardy does not bar subsequent prosecutions stemming from the same conduct.
For example, in United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963), the defendant flung the witness chair upon which he had been sitting at the Assistant United States Attorney prosecuting the case. The trial court summarily held Mirra in contempt of court "[f]or committing such a violent outrage upon the dignity and decorum of the court." 220 F.Supp. at 362. Shortly thereafter Mirra was indicted for assaulting a federal officer, based upon the chair-throwing episode. Mirra challenged the indictment, arguing that the intended assault prosecution and the direct contempt were based on the same incident and that he was being prosecuted twice for the same offense. The district court, in a decision which has since served as a guidepost for subsequent resolution of this issue, concluded that the defendant's argument must fail. First, the court stressed the significance, indeed necessity, of the direct contempt power. Without it, "courts would find it most difficult to control the disorderly and the violent who respect neither the laws enacted for the vindication of public and private rights nor the officers charged with the duty of administering them." Id. at 364-365. Accordingly, the district court found it inconceivable that "judges could become ineffectual in restoring judicial decorum for fear that a contempt conviction would raise a constitutional bar to a subsequent prosecution of the same act." Id. at 365-366.
Moreover, and more importantly for purposes of the double jeopardy discussion, the Mirra court found that "a criminal prosecution arising out of and subsequent to summary contempt conviction does not offend the policy underlying the protection against Double Jeopardy." Id. at 366. The double jeopardy protection seeks to avoid harassment of an accused through successive trials and the compelled necessity of having to marshall the resources in his defense more than once for the same criminal act. However, the Mirra court concluded that:
*31 Successive trials are not involved because the effective remedy against a contempt committed in the court's presence is for the court immediately and summarily to punish the contumacious conduct. . . . And since an adversary type proceeding does not precede the swift imposition of a summary contempt conviction, a criminal prosecution on a charge arising out of the contumacious conduct is the first trial-type harassment to which the contemnor is made subject. In the present posture of the law, a rebellious person does not have the option, and wisely so, of having the issue of his alleged contumacy determined by a trial-type hearing. . . . . [T]he summary contemnor is not subjected to the harassment which the Double Jeopardy protection seeks to prevent.
United States v. Mirra, 220 F.Supp. at 366.
Many other courts have adopted a similar approach. For instance, in United States v. Rollerson, 449 F.2d 1000 (D.C.Cir.1971), Chief Judge Bazelon adopted the Mirra analysis and found that a defendant who was summarily punished for direct contempt for throwing a water pitcher at the prosecutor could later be prosecuted for assault as a result of the same act. The court concluded, based on the above-quoted language from Mirra that: "The contempt proceeding did not amount to a separate hearing or proceeding of the kind which invokes the Double Jeopardy Clause." United States v. Rollerson, 449 F.2d at 1004-1005. See also People v. Totten, 118 Ill.2d 124, 113 Ill.Dec. 47, 514 N.E.2d 959 (1987) (prosecution for aggravated battery following and arising out of adjudication for direct criminal contempt when defendant struck the state's attorney at sentencing, did not offend double jeopardy clause); People v. Heard, 208 Ill.App.3d 278, 153 Ill.Dec. 46, 566 N.E.2d 896 (1991) (defendant, who was held in direct criminal contempt for representing himself to be his brother, could subsequently be prosecuted for obstructing justice without violating double jeopardy protection).
Thus, there clearly is precedent and persuasive rationale to conclude that the double jeopardy protection is not brought into play in cases of penalties imposed for direct criminal *32 contempt. The same cannot be said for indirect criminal contempt, particularly in light of Grady and the principles announced therein.
In addition, it cannot be argued successfully that the Protection from Abuse Act reflects the legislature's intention to permit successive prosecutions when criminal charges arise from conduct which also constitutes a violation of a protection order.[6] While I do not dispute the salutary purposes of and genuine need for the measures of the protection from abuse statute, I also stress that the legislature cannot, via statutory enactment, abrogate constitutional double jeopardy protection.
As the foregoing discussion makes plain, in order to survive the double jeopardy test announced in Grady v. Corbin, supra, it is insufficient to conclude, as the trial court did here, that the offenses of indirect criminal contempt and burglary are not the same offense because each requires proof of a fact not required by the other. Instead, the focus must be on the conduct underlying the contempt conviction and whether the Commonwealth necessarily relied on the same conduct to prove the burglary.
In the instant case it is clear that the conduct which constituted the violation of the protection order and was the basis for the contempt conviction, i.e. the knowing and unauthorized entry onto the trailer in the exclusive possession of Charlene Aikens, is the same conduct upon which the Commonwealth depended to prove essential elements of the burglary offense. This fact is undisputed by the trial court and the Commonwealth. Thus, under Grady v. Corbin, supra, I conclude that double jeopardy barred the burglary prosecution because in order to prove the burglary the Commonwealth established conduct which also constituted the previously convicted offense.
*33 Our research has revealed several cases from other jurisdictions which have reached the same conclusion in essentially similar fact patterns. In State v. Magazine, 302 S.C. 55, 393 S.E.2d 385 (1990), the defendant was convicted of aggravated assault after he had been sanctioned for the same conduct by way of a criminal contempt conviction for the violation of a protection order issued by family court. Relying on Corbin, the Supreme Court of South Carolina held that the State proved the same conduct at defendant's assault trial as had been used to prove contempt during the previous proceeding in family court. Therefore, the court concluded that the assault prosecution violated double jeopardy.
Likewise in State v. Kipi, 72 Haw. 164, 811 P.2d 815 (1991), the defendant pled no contest to a criminal contempt charge for violation of a family court protection order which forbid him to enter his ex-girlfriend's house or to threaten her and her roommates. The court sentenced Kipi to five months in jail on the contempt conviction, which was based on the defendant's forcible entry into his ex-girlfriend's house, during which he threatened her and her roommates. Kipi argued that the previous contempt barred the State's effort to prosecute him for burglary and terroristic threats based on the same criminal episode.
The Supreme Court of Hawaii acknowledged that, under the traditional Blockburger test, the State would have to prove facts to establish burglary and threats which are different from and additional to those it used to prove the criminal contempt charge. State v. Kipi, 72 Haw. at 171, 811 P.2d at 819. However, the court in Kipi stressed that in Grady v. Corbin, "the Supreme Court broadened the scope of double jeopardy." Id. Given the Corbin test, the Hawaii court concluded, "Kipi cannot be prosecuted for burglary and terroristic threatening. The conduct that the State would use to prove those crimes is the identical conduct that the family court considered when it accepted Kipi's no contest plea. . . . Kipi's entering of the [the complainant's] house and his threats to her and two of her housemates was the exact conduct that *34 constituted the offense of contempt with respect to the family court's protective order." Id.
Finally, in a carefully reasoned opinion by the en banc District of Columbia Court of Appeals in United States v. Dixon, 598 A.2d 724 (D.C.App.1991) (en banc), cert. granted, ___ U.S. ___, 112 S.Ct. 1759, 118 L.Ed.2d 422 (1992), the court reached the same conclusion relying on Corbin and citing Magazine and Kipi. Dixon involved consolidated appeals presenting the same issue, that is, whether previous contempt adjudications barred subsequent criminal prosecutions based on the same conduct which led to the contempt conviction. The Dixon court held that Grady v. Corbin is "controlling and that it requires us to sustain the claim of double jeopardy in both cases." Dixon, 598 A.2d at 730. The court found that the conduct underlying the contempt convictions in each of the consolidated appeals was indisputedly "the very same conduct for which the government now seeks to try them in the two pending criminal cases." Id. at 731. Therefore, the court concluded that "Grady v. Corbin compels us to hold that those cases cannot be tried, now or ever." Id. Further, the Court of Appeals rejected the argument that jeopardy did not bar the subsequent prosecutions because the contempt proceeding was initiated by private parties, not by the government. The court correctly emphasized that the double jeopardy protection focuses on "the impact of the trial on the defendant", not on the identity of the prosecuting party. Id. at 732.
See also Burge v. Kentucky, (No. 90-CA-002233-MR, Ky. Ct.App. March 27, 1992); State v. Vanselow, 61 Ohio Misc.2d 1, 572 N.E.2d 269 (1991); State v. Mojarro, 169 Ariz. 1, 816 P.2d 260 (Ariz.App.1991), all of which rely on Grady v. Corbin to reach the same conclusion I do today.
Lastly, in part because of this court's opinion in Warrick, discussed above, and in part for purposes of completeness, I address the significance of the recent Supreme Court case of United States v. Felix, ___ U.S. ___, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). In Felix, the Supreme Court limited the reach of Grady in the context of multi-layered, continuing *35 criminal enterprise prosecutions. In Felix, the defendant had been tried and convicted first in Missouri in federal district court for attempting to manufacture methamphetamine. The charge was based upon the defendant's acquisition of the base chemicals necessary for the manufacture which had been delivered to the defendant in Joplin, Missouri. The "deal" which proved the charge in the first trial was orchestrated through the DEA and one of its informants. Subsequently, defendant was charged in federal court in Oklahoma with both substantive and conspiracy counts for operating a plant in Beggs, Oklahoma, at which he made methamphetamine. Two of the nine overt acts alleged to have been accomplished in connection with the conspiracy charges involved defendant's acquisition of the chemicals in Missouri, i.e., the conduct which was used to prove the previous Missouri conviction. The United States Court of Appeals held that the double jeopardy clause barred the prosecution of the defendant for the conspiracy charge because two of the overt acts supporting the conspiracy were based on conduct which formed the basis of the previous Missouri prosecution. The Court of Appeals concluded that this result was dictated by Grady v. Corbin.
The United States Supreme Court reversed. Although the Supreme Court conceded that there was "considerable justification" to read Grady to support the conclusion that the conspiracy prosecution was barred, the Supreme Court refused to expand Grady into the conspiracy context. The Supreme Court concluded Grady did not intend to disturb long-established authority which insisted on the distinction between conspiracy to commit an offense and the offense itself. Similarly, the Court noted that a long line of cases has refused to apply a double jeopardy bar to prosecutions for a continuing criminal enterprise offense after a previous conviction for one of the predicate offenses. Moreover, the Supreme Court cited approvingly the analysis of the dissenting judge on the Court of Appeals who noted that the word "conduct" in Grady was modified by the phrase "that constitutes an offense for which the defendant has already been prosecuted". Therefore although the same "conduct" may have been necessary *36 to prove both the Missouri and Oklahoma offenses, the "conduct" itself did not constitute an offense for which defendant Felix had been previously convicted. See Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169 (1991), for a similar analysis.
In my view, Felix was specifically limited to the context in which it was decided, i.e., a continuing criminal enterprise involving a subsequent conspiracy prosecution. Felix can not be read to have eliminated the Grady standard and reinstituted a double jeopardy analysis based on Blockburger alone. Perhaps, in the future, this will be the course the Supreme Court adopts. I am aware that the United States Supreme Court has agreed to hear the Dixon case, cited above, in order to review the proper scope of the double jeopardy protection in cases involving a prior contempt conviction for conduct which also constitutes violations of other criminal provisions. Until such time, if ever, as the Supreme Court reinstructs on the correct interpretation of the protection against double jeopardy, I conclude that Grady v. Corbin controls the result here. Appellant's trial for burglary violated his fundamental guarantee against double jeopardy.
NOTES
[1] The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides, in relevant part, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb".
[2] The trial court noted the inordinately long time between trial and sentencing and suggested that difficulty in obtaining a transcript and preparing for post-trial motions was to blame.
[3] The trial court found that criminal trespass merged with burglary for sentencing purposes. The court also noted that 18 Pa.C.S. § 3502(d) prohibits conviction for both burglary and the offense which the accused intended to commit therein if the latter is not a felony of the first or second degree. Since the wire interception offense was a third degree felony, the court vacated the sentence it previously had imposed on the interception charge.
[4] Indirect criminal contempt is committed outside the presence of the court and requires a hearing and presentation of evidence which must be accompanied by due process safeguards. See Schnabel Associates, Inc. v. Building and Const. Trades Council of Philadelphia and Vicinity, AFL-CIO, 338 Pa.Super. 376, 487 A.2d 1327 (1985).
[5] The majority opinion correctly notes that a recent decision by this court held that prosecution for indirect criminal contempt does not bar subsequent prosecution for underlying criminal offenses arising out of the same conduct. Commonwealth v. Manney, 421 Pa.Super. 244, 617 A.2d 817 (1992). The Manney opinion does not provide any rationale for extending the Warrick exception to cases of indirect criminal contempt. It merely concludes in a footnote that "the court's resoning [sic] [in Warrick is] plainly applicable to the matter before us." I acknowledge but disagree with the result reached by this court in Manney.
[6] Section 6117 of the Protection from Abuse Act, 23 Pa.C.S. § 6101 et seq., provides:
Unless otherwise indicated in this chapter, a proceeding under this chapter shall be in accordance with applicable general rules and shall be in addition to any other available civil or criminal remedies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262336/ | 26 Cal.Rptr.3d 138 (2005)
127 Cal.App.4th 873
The PEOPLE, Plaintiff and Respondent,
v.
Richard George WHEELER, Defendant and Appellant.
No. C045860.
Court of Appeal, Third District.
March 22, 2005.
Review Denied June 22, 2005.
*139 Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, John G. McLean, Supervising Deputy Attorney General, for Plaintiff and Respondent.
NICHOLSON, J.
Pursuant to a negotiated bargain, defendant Richard George Wheeler entered a plea of guilty to issuing or forging a prescription for a narcotic drug in violation of Health and Safety Code section 11368 (section 11368). He appeals the denial of his request for treatment under Proposition 36 (Pen.Code, § 1210 et seq.), contending the trial court erred in ruling his offense was ineligible for such treatment. We conclude forgery of a prescription in violation of section 11368 does not meet the statutory definition of a "nonviolent drug possession offense" as required for treatment under Proposition 36. (Pen. Code, § 1210, subd. (a).) We affirm the judgment.
BACKGROUND
Identifying himself as "Mark," defendant dropped off a prescription written for "Mark Cooper" by Dr. Tatsuyama for Vicodin with the pharmacy at Longs Drugs.[1] When the pharmacist contacted Dr. Tatsuyama to confirm the authenticity of the prescription, the doctor informed the pharmacist that he did not write the prescription. The pharmacist filled the prescription with calcium pills and reported the incident to law enforcement officers. Defendant picked up the prescription, signing the release log as "Mark Cooper."
When contacted and questioned outside the store by law enforcement officers, defendant initially stated he was picking up the prescription for his friend, Mark Cooper. He admitted signing Cooper's name and claimed Cooper gave him permission to do so. Defendant said he knew Cooper only by name and had no way of contacting him. Cooper always initiated contact.
After he was arrested, defendant admitted he was severely addicted to Vicodin, ingesting up to 90 pills per month, and he "would do almost anything to obtain them (Vicodin pills)." He stated he would obtain pills from several people all over town, including doctors. He said he had an arrangement with Cooper to receive some of the Vicodin pills if he passed Cooper's prescription.
In his statement to the probation department, defendant said "Mark Cooper" was a name he "totally made up." He claimed he first began to take Vicodin 15 years earlier after suffering a lower back injury while working. During this time he also had dental work done for which he was prescribed Vicodin. His addiction led to a significant number of criminal convictions *140 for driving under the influence of drugs, forging prescriptions, and possession of drugs. Just prior to his arrest, defendant was being treated for his back pain by Dr. Tatsuyama. Dr. Tatsuyama prescribed Vicodin, but as defendant continued to ingest Vicodin, his "tolerance went up" and he wanted or needed more of the drug than was prescribed. Defendant used "white out" on one of the prescriptions and made photocopies of the now blank form. He then forged and passed the prescriptions at local pharmacies.
With the exception of outpatient treatment he received while on a grant of drug diversion in 1988, defendant had not received any treatment for his addiction. After his arrest in this case, defendant voluntarily entered outpatient treatment at the Skyway House. Defendant expressed his determination to take control of his life and rid himself of his addiction.
Defendant filed a motion seeking treatment pursuant to Proposition 36, arguing the crime of forging and issuing a prescription in violation of section 11368 is a nonviolent drug possession offense within the meaning of Penal Code section 1210, subdivision (a). The trial court denied defendant's motion, denied defendant probation and sentenced him to state prison for the middle term of two years. Counsel stipulated defendant was addicted or in danger of becoming addicted to controlled substances. The court suspended criminal proceedings and committed defendant to the California Rehabilitation Center.
DISCUSSION
"Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was approved by voters on November 7, 2000. Proposition 36 took effect on July 1, 2001, and is codified at Penal Code sections 1210, 1210.1, 3063.1, and division 10.8 (commencing with § 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).)" (People v. Esparza (2003) 107 Cal.App.4th 691, 693, 132 Cal.Rptr.2d 377, fn. omitted.) It is "an alternative sentencing scheme for those convicted of certain narcotics offenses. In effect, it acts as an exception to the punishment specified in an individual narcotics offense." (In re Varnell (2003) 30 Cal.4th 1132, 1136, 135 Cal.Rptr.2d 619, 70 P.3d 1037.)
Penal Code section 1210, subdivision (a), defines the term "nonviolent drug possession offense" as "the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code." Penal Code section 1210, subdivision (a), excludes from the term "nonviolent drug possession offense" "the possession for sale, production, or manufacturing of any controlled substance...."
In People v. Sharp (2003) 112 Cal. App.4th 1336, 5 Cal.Rptr.3d 771, however, this court considered whether the cultivation of marijuana in violation of Health and Safety Code section 11358 was a nonviolent drug possession offense making the defendant eligible for treatment under Proposition 36. In rejecting the contention, Sharp first looked to the language of the statute and concluded "cultivation of marijuana is not a nonviolent drug possession offense because the ordinary meaning of `cultivation' is not `possession, use, or transportation for personal use,' or `being under the influence' of a controlled substance." *141 (People v. Sharp, supra, at p. 1340, 5 Cal.Rptr.3d 771.) In fact, Sharp found "cultivation" was not only "missing from the statutory definition," but it fell "within the acts specifically excluded." (Ibid.) "Cultivation of marijuana is the production of marijuana." (Ibid.) Sharp held "Proposition 36 does not apply to a conviction for cultivation of marijuana for personal use." (People v. Sharp, supra, at p. 1342, 5 Cal.Rptr.3d 771.)
We start in the same place here, with the language of the statutes, giving the words their ordinary meaning. (People v. Canty (2004) 32 Cal.4th 1266, 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168; People v. Rizo (2000) 22 Cal.4th 681, 685, 94 Cal. Rptr.2d 375, 996 P.2d 27.) Of course, the statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme. (People v. Canty, supra, at p. 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) "The intent of the law prevails over the letter of the law, and `the letter will, if possible, be so read to conform to the spirit of the act. [Citation.]'" (Id. at pp. 1276-1277, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) "When the language is ambiguous, `we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' [Citation.]" (People v. Rizo, supra, at p. 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.)
The crime of violating section 11368 is committed by "[1][e]very person who forges or alters a prescription or [2] who issues or utters an altered prescription, or [3] who issues or utters a prescription bearing a forged or fictitious signature for any narcotic drug, or [4] who obtains any narcotic drug by any forged, fictitious, or altered prescription, or [5] who has in possession any narcotic drug secured by a forged, fictitious, or altered prescription...." Thus, the statute specifies four ways by which a violation may be committed.
In this case the felony complaint charged defendant with a violation of section 11368, alleging he "did unlawfully forge, alter, and issue a prescription bearing a forged and fictitious signature for a narcotic drug, to wit, vicodin." In his written guilty plea defendant admitted he "issued and forged a prescription." By the language of the complaint and defendant's plea, the portions of section 11368 at issue in this case are the first two ways that a violation may be committed. We restrict our scrutiny of the statute to the language relevant to defendant's case.
The principal focus of such portions of the statute is on the forgery of a prescription for drugs. "While cases and statutes throughout American jurisdictions abound in definitions [citation], generally speaking forgery is the false making or material alteration of a writing with intent to defraud. [Citations.] In California, `forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud.' [Citations.]" (People v. Jack (1965) 233 Cal.App.2d 446, 452-453, 43 Cal. Rptr. 566.) Thus, the ordinary meaning given to "forgery" in California is related to the making or use of a counterfeit or fake document, not to the ordinary meaning of "use," "possession," "transportation," or "being under the influence" of a controlled substance. (Pen.Code, § 1210, subd. (a).) Consequently, the forgery of a drug prescription does not facially appear to come within the language used in Penal Code section 1210, subdivision (a) to define the term "nonviolent drug possession offense."[2]
*142 Moreover, nothing in section 11368 establishes the section is limited to offenses committed with the intent to obtain narcotics for personal use. Therefore, section 11368 also does not facially meet the definition of a "nonviolent drug possession offense" for purposes of Proposition 36 because Penal Code section 1210, subdivision (a), expressly limits the term to "personal use," "possession for personal use," "transportation for personal use," or personally "being under the influence."
Defendant argues his specific section 11368 offense comes within the broad range of offenses encompassed by Proposition 36 because, in fact, he committed the offense in order to obtain Vicodin for his personal use and "it is not the means by which defendant obtains the controlled substance that controls under Proposition 36, but it is the purpose for which he possesses it."[3] Although we agree Proposition 36 does not distinguish between offenses based on the means by which the drugs are obtained, we are not persuaded this is pertinent to whether defendant's section 11368 offense comes within Proposition 36.
In passing Proposition 36, "the electorate expressed the purpose and intent to divert nonviolent defendants charged with `simple drug possession and drug use offenses' from incarceration into community-based substance abuse treatment programs, to halt the expenditure of hundreds of millions of dollars to incarcerate and reincarcerate `nonviolent drug users' better served by community-based treatment, to enhance public safety by reducing drug-related crime and reserving jails and prisons for serious and violent offenders, and to improve public health by treatment of drug abuse and dependence through proven and effective drug treatment strategies." (People v. Canty, supra, 32 Cal.4th at pp. 1280-1281, 14 Cal.Rptr.3d 1, 90 P.3d 1168; People v. Ferrando, supra, 115 Cal. App.4th at p. 920, 9 Cal.Rptr.3d 670.)
The ballot argument in favor of Proposition 36 emphasized the measure was "strictly limited" and "only affects simple drug possession." (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26; People v. Canty, supra, 32 Cal.4th at p. 1281, 14 Cal.Rptr.3d 1, 90 P.3d 1168 [in construing § 1210 these "indicia of the voters' intent" may be considered].)
The crime of prescription forgery within the portions of section 11368 at issue is not simple drug possession. Although a person could use a forged prescription, as defendant apparently did, as a method for trying to obtain narcotics for personal use, as we pointed out before, the offense is not so limited. In addition, even when the drugs are for personal use, section 11368 is directed at a greater evil than possession and personal use of the obtained drugs. It is primarily directed at forgery of the indicia of a powerful authority solely reserved to statutorily defined "practitioners." (Health & Saf. Code, §§ 11026, 11153; People v. Gandotra (1992) 11 Cal.App.4th 1355, 1361-1362, 14 Cal.Rptr.2d 896.) Prescriptions are devices by which physicians and other authorized practitioners work to achieve legitimate medical purposes. (Health & *143 Saf.Code, § 11153, subd. (a).) The protection of the health and safety of the public in obtaining medical prescriptions is critical. (See generally, Bus. & Prof.Code, § 4001.1 [protection of the public is "the highest priority" and "paramount" in the exercise by the California State Board of Pharmacy of its licensing, regulatory, and disciplinary functions].) Physicians, pharmacists, and patients must be able to rely on the integrity of the system. Section 11368 is aimed at helping preserve that integrity by prohibiting counterfeiting of a physician's authority to prescribe, deceiving of the pharmacist, corrupting the public's legitimate supply of medicine, and, potentially, defrauding of insurance companies or government programs. Far more is implicated than just an offender's personal involvement with drugs. (See People v. Canty, supra, 32 Cal.4th at p. 1279, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) Even though section 11368 is not necessarily "commercial in nature" (People v. Ferrando, supra, 115 Cal.App.4th at p. 920, 9 Cal.Rptr.3d 670) like the "sale, production, or manufacturing" offenses that are expressly excluded by Penal Code section 1210, subdivision (a), neither is it a simple drug possession or drug use offense.
In an attempt to argue his offense is still Proposition 36 eligible, defendant claims "Proposition 36 allows for application of its provisions to a broader range of nonviolen[t] drug offenses" than deferred entry of judgment under Penal Code sections 1000-1000.8, which is limited to expressly enumerated offenses, and, therefore, it is significant the Legislature amended the deferred entry of judgment statute in 1983 to add section 11368 as a qualifying offense when the controlled substance is for personal use. (Stats.1983, ch. 1314, § 2.) "A comparison of Penal Code sections 1000 and 1210 shows the two statutory schemes are not identical in scope and the drafters of Proposition 36 did not intend to pattern the initiative after section 1000." (People v. Sharp, supra, 112 Cal.App.4th at p. 1341, 5 Cal.Rptr.3d 771.) The Legislature's amendment of the deferred entry of judgment statutes does not require a conclusion that section 11368 comes within Proposition 36.
Based both on the language and the express intent of Proposition 36, we conclude forgery of a prescription in violation of section 11368, even when intended to obtain drugs thereby entirely for personal use, does not come within the term "nonviolent drug possession offense" as defined by Penal Code section 1210, subdivision (a).
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., and DAVIS, J.
NOTES
[1] Because defendant pled guilty, our statement of facts is taken from the probation officer's report.
[2] We agree it also does not fall within the language used in Penal Code section 1210, subdivision (a), i.e., "possession for sale, production, or manufacturing of any controlled substance," to exclude offenses from term "nonviolent drug possession offense." (Compare People v. Sharp, supra, 112 Cal.App.4th at p. 1340, 5 Cal.Rptr.3d 771; People v. Ferrando (2004) 115 Cal.App.4th 917, 920, 9 Cal.Rptr.3d 670.)
[3] Defendant never actually possessed Vicodin because the pharmacist determined the prescription defendant presented was a forgery and delivered calcium pills. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262337/ | 421 Pa. Superior Ct. 415 (1992)
618 A.2d 406
Susan HYDE, Appellee,
v.
Lloyd HYDE, Appellant.
Superior Court of Pennsylvania.
Submitted May 4, 1992.
Filed November 6, 1992.
Reargument Denied January 15, 1993.
*416 Michael J. Seymour, Bethal Park, for appellant.
John R. DeAngelis, Pittsburgh, for appellee.
Before WIEAND, JOHNSON and MONTGOMERY, JJ.
*417 WIEAND, Judge:
The principal issue in this appeal is the consideration to be given to alimony payments in determining the amount of child support payments to be made by a divorced mother and father, both of whom have independent incomes.
Susan Hyde and Lloyd Hyde were married on August 13, 1970 and parented three children: Rebecca, age 19; Daniel, age 17; and Joshua, age 15.[1] Prior to the entry of a decree in divorce on February 1, 1988, the parties entered a separation and property settlement agreement. Pursuant to the terms thereof, custody of the three children was awarded to Susan. Lloyd, meanwhile, obligated himself to pay child support in the amount of five hundred ($500.00) dollars per month and alimony in the amount of one thousand eight hundred twenty ($1,820.00) dollars per month for a period of seventy-two (72) months. Subsequent to the divorce, the two younger children moved in with their father. Rebecca continues to live with her mother while not in residence at Westminster College, where she matriculates.
In November, 1989, Susan Hyde filed a petition seeking to hold her former husband in contempt of court for failing to comply with the terms of the property settlement agreement, which had been incorporated into the divorce decree. She also filed a petition in which she made an additional claim against her former husband for the educational costs being incurred by Rebecca.[2] On January 2, 1990, an order was entered directing Lloyd to pay four hundred ($400.00) dollars per month on account of Rebecca's college education. In September, 1990, Lloyd Hyde filed a petition for the support of the two children who were now living with him. He also asked the court to vacate the order for Rebecca's educational support. After a hearing in October, 1990, the court found Lloyd Hyde in contempt for failing to make alimony payments in full, determined the amount of alimony in arrears, vacated the order for the support of the two children who were now *418 living with their father, gave credit for child support adjustments, and directed that Lloyd pay Susan the sum of $19,664.06. The court also refused to vacate the order of $400.00 per month toward the cost of a college education for Rebecca and ordered Susan to pay $450.00 per month for the support of the two younger children. Lloyd appealed. He contends that in several respects the trial court abused its discretion.
Lloyd is the owner of a franchise known as "Servpro" which cleans and restores fire damaged buildings and contents. The court found his earnings to be $3500 per month. From this amount, he is required to pay alimony in the amount of $1,820.00 per month and educational support for Rebecca in the amount of four hundred ($400.00) dollars per month.
Susan is a working psychologist and is entered in the Ph.D. program at Indiana University of Pennsylvania. She has income, exclusive of alimony, in the amount of two thousand ($2,000.00) dollars per month. When this is added to the alimony received by Susan, it is clear that she has a cash flow of at least three thousand, eight hundred twenty ($3,820.00) dollars per month.[3] From this amount she contributes the sum of four hundred ($400.00) dollars per month to Rebecca's college education.[4]
It is a simple matter of mathematics to determine that Lloyd, after paying alimony and educational support as ordered by the court,[5] has available monthly the sum of twelve hundred eighty ($1,280.00) dollars for the support of himself and the two children who are living with him. Susan, on the *419 other hand, has available monthly for the support of herself and the two children, after paying four hundred dollars for Rebecca's education, the sum of three thousand, four hundred twenty ($3,420.00) dollars.
In determining Susan's obligation to contribute to the support of her two children, the trial court excluded the monthly alimony which she received and found that her only income was two thousand ($2,000.00) dollars per month. In determining whether Lloyd had a continuing obligation to contribute to Rebecca's college education, however, the trial court considered his monthly income to be thirty-five hundred ($3,500.00) dollars. It is the failure either to reduce Lloyd's income by the amount of alimony which he pays or to increase Susan's income by the amount of alimony which she receives which has created the inequitable disparity between the parental obligations of Lloyd and Susan. Some of this disparity has also been brought about by the terms of the parties' agreement, and if Lloyd were the only victim of the disparate income, we would not be inclined to rescue him from the results of a bad bargain. In fact, however, the real victims are the two children who are presently living with him. Their right to be supported adequately cannot be bargained away by their parents. See: Brown v. Hall, 495 Pa. 635, 643 n. 11, 435 A.2d 859, 863 n. 11 (1981); Travitzky v. Travitzky, 369 Pa.Super. 65, 79 n. 6, 534 A.2d 1081, 1088 n. 6 (1987); Oman v. Oman, 333 Pa.Super. 356, 361, 482 A.2d 606, 609 (1984).
In Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83 (1989), a panel of the Superior Court considered a similar issue. It determined, under the circumstances of that case, that alimony payments should not be considered income to a wife-mother but that the father's available income should be reduced by such payments of alimony. The court was influenced by the fact that the wife-mother was dependent upon the alimony which she received to support herself. It concluded, therefore, that income derived by her from alimony payments should not be a source of support for her children. The Court's ruling, however appropriate to the facts of that case, as the Court realized, cannot be applied automatically to all *420 cases. Thus, the Court said specifically that alimony payments are not "automatically" to be included as income to the wife.
The trial court, in the instant case, failed to follow the teaching of Steinmetz, because it determined that alimony payments should be excluded as income to Susan but should not be excluded from that income to Lloyd which was available for child support. This was error. In fact, of Lloyd's income of $3,500.00 per month, the sum of $1,820.00 per month is immediately earmarked as alimony to Susan. Thus, Lloyd has available for the support of himself and his children only $1,680.00 per month. This is approximately four hundred ($400.00) dollars per week and does not bespeak an ability to contribute to Rebecca's college education without undue hardship to Lloyd and the two children living with him. See: Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989); Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988).
In fact, however, the holding in Steinmetz v. Steinmetz, supra, has been superseded by the Rules of Civil Procedure adopting the Support Guidelines. The monthly net income of mother and father, for purposes of applying the guidelines, is to be determined as set forth in Pa.R.C.P. 1910.16-5(b). It is there provided as follows:
(b) Monthly Net Income. The amount of support to be awarded is based in large part upon the parties' monthly net income. Monthly net income is determined by subtracting only the following items from monthly gross income:
(1) federal, state, and local income taxes;
(2) F.I.C.A. payments and non-voluntary retirement payments;
(3) union dues;
(4) health insurance premiums for the benefit of the other party or the children.
Monthly gross income is ordinarily based upon at least a six-month average of all of a party's income. The term "income" is defined by the support law, 23 Pa.C.S. § 4302,[6]*421 and includes income from any source. The statute lists many types of income including:
(1) wages, salaries, fees and commissions;
(2) income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust; and
(6) social security benefits, temporary and permanent disability benefits, workmen's compensation and unemployment compensation.
From this it is quite clear that alimony payments are not to be subtracted from gross income to determine net income available for child support. Alimony is not one of the items which are deductible from gross income to determine net income. On the other hand, gross income is defined generally as "income from any source" and is broad enough to include alimony payments. Thus, since alimony payments must be accounted for, they are counted as gross income to the receiving spouse.[7]
In the instant case, a fair and equitable result can best be achieved by including the alimony payments as monthly gross income to Susan. In this manner, her ability to contribute to the support of her children can most accurately be determined without depriving her of the benefit of the order requiring Lloyd to pay alimony. By requiring her to contribute to the support of the children who are now residing with Lloyd on *422 the basis of the income which she receives from all sources, she will be able to benefit her children fairly and in keeping with the funds available to her. When she makes these contributions in accordance with the guideline formula, Lloyd should also be able to continue his payment of one-half of Rebecca's monthly expenses at college. In this manner, both parents will continue fully to be a sustaining force in the lives of all of their children. The alimony payments, then, will not be placed beyond the reach of the children's needs but will be available, as circumstances permit, to insure that the children are properly supported.
Appellant also contends that the trial court erred when it required him to pay interest at the rate of 7½ percent per month on unpaid alimony and improperly apportioned his payments between educational expenses for his daughter and alimony for his former wife. However, the terms of the agreement which establish the rate of interest on unpaid alimony are clear,[8] and the record does not demonstrate that they are the result of mutual mistake. Moreover, the record does not disclose that the apportionment of payments by the Collection Department was improper or in violation of specific instructions by appellant. As such, there is no basis for disturbing the hearing court's computation of interest chargeable to appellant on alimony payments not made when due.
Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.
JOHNSON, J., files a dissenting opinion.
JOHNSON, Judge, dissenting.
In this case, Father appeals from an order for child support. I completely agree with the Majority to the extent that it upholds the order of the trial court directing the parties' to equally share the cost of their daughter's college education. However, I am compelled to dissent since I would affirm the order of the trial court in its entirety.
*423 The Majority defines the primary issue in this appeal as whether the trial court erred in excluding alimony payments received by Mother from her income in calculating the amount of her child support payments due to Father. The Majority determines that the trial court erred in its calculation of Mother's monthly income. I disagree.
To include alimony received in Mother's monthly income, the Majority relies upon Rule 1910.16-5(b) of the Pennsylvania Rules of Civil Procedure. Subsection (b) of this Rule states, in its entirety:
(b) Monthly Net Income. The amount of support to be awarded is based in large part upon the parties monthly net income. Monthly net income is determined by subtracting only the following items from monthly gross income:
(1) federal, state, and local income taxes;
(2) F.I.C.A. payments and non-voluntary retirement payments;
(3) union dues;
(4) health insurance premiums for the benefit of the other party or the children.
Monthly gross income is ordinarily based upon at least a six-month average of all of a party's income. The term "income" is defined in support law, 23 Pa.C.S. § 4302, and includes income from any source. The statute lists many types of income including:
(1) wages, salaries, fees and commissions;
(2) income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust; and
(6) social security benefits, temporary and permanent disability benefits, workmen's compensation and unemployment compensation.
From reference to Rule 1910.16-5(b), the Majority correctly states that the Rule does not provide for the deduction of alimony payments from Father's gross income to calculate his net income for child support purposes. The Rule clearly *424 provides only for the deduction of various taxes, retirement contributions, health insurance payments, and union dues.
The Majority then defines gross "income" as a term "broad enough to include alimony payments" in Mother's income for the purpose of calculating child support payments. I must disagree. The term "income" is defined specifically for support law in 23 Pa.C.S. § 4302 as:
"Income." Includes compensation for services, including, but not limited to, wages, salaries, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workmen's compensation and unemployment compensation.
Our legislature does not include alimony in the specific examples used to illustrate what constitutes gross income. This statute specifically provides that "compensation for services" is included in the definition of "income" for support purposes. Rather than serving as compensation to a spouse for services, as contemplated for "income" under 23 Pa.C.S. § 4302, our Court has considered alimony to be rehabilitative. Alimony assures that the needs of the dependent spouse are met until such time as the dependent spouse is able to adjust to life without financial support from the former spouse. McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985). While the term "income", as defined for support purposes, may encompass many types of remuneration, I am unwilling to usurp the legislative function and include alimony in the definition of "income" under 23 Pa.C.S. § 4302. The Majority relies upon the inclusion of alimony in gross income for income tax purposes as support for the proposition that alimony should be included in the calculation of Mother's gross income. Rule 1910.16-5(b), however, specifically refers to "income" *425 only as it is defined by support law, 23 Pa.C.S. § 4302. Absent statutory authority, I will not presume the term "income" to be so all-inclusive that it must necessarily include alimony.
This Court has recently addressed this identical issue in Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83 (1989). There, we stated that monies allocated as alimony should be excluded from the resources available for child support for both supporting and dependent spouses. Id. at 449, 554 A.2d at 86-87. The Majority correctly notes that our holding in Steinmetz was superseded by Pa.R.C.P. 1910.16-5(b) to the extent that money allocated for alimony payments may not be excluded when calculating the payor spouse's net income. Nonetheless, I am unable to agree with the Majority's conclusion that Rule 1910.16(b) invalidates the entire holding of Steinmetz. There, we specifically stated:
Because alimony is specifically designated to assist the dependent spouse in overcoming the economic effects of the dissolution of the marriage and not for the support of the children, the inclusion of the alimony award would create the appearance of an inflated income from which the child support obligation would be drawn and would undermine the purpose for which alimony is awarded.
Steinmetz at 448, 554 A.2d at 86. This statement is the viable standard under which we must assess the actions of the trial court. Nothing contained in Rule 1910.16-5(b) acts to supersede this long-held understanding as to the purpose of alimony.
In the present case, the trial court applied the appropriate standards to arrive at the income available for child support for both parties. The trial court included the money allocated for alimony payments in Father's net income, as statutorily mandated under Rule 1910.16-5(b). The trial court also excluded the amount of alimony payments received from Mother's income for the purposes of calculating the child support which Mother must pay, which is the proper procedure, under Steinmetz.
*426 I am unable to agree with the Majority that it is within the purview of this Court to "rescue" parties from "the results of a bad bargain". Majority opinion, pp. 417-421. Our function, as an appellate court, is not to fashion a more "fair and equitable result." Majority opinion, p. 421. An order for child support must be affirmed unless a clear abuse of discretion on the part of the trial court has been proven by clear and convincing evidence. Oeler by Gross v. Oeler, 527 Pa. 532, 594 A.2d 649 (1991). I am unable to conclude that there has been an abuse of discretion on the part of the trial court, since the order in question complies with the existing law.
The Majority, in footnote 8, p. 422, indicates that it expresses no opinion on whether the interest rate of seven and one-half percent as established in the agreement is usurious. Since the clear implication of the footnote is that such a rate might be usurious, and since material contained in footnotes in one opinion sometimes surface as "law" in a later opinion, I feel compelled to distance myself from any such implication.
The parties, in this case, were represented by counsel and clearly provided for a specific rate of interest to be paid by Father in the event of a default in the payment of alimony. Property Settlement Agreement, January 21, 1988 at 14. Where contract provisions anticipate non-payment of money due, and provide for a specific rate of interest, they will be upheld. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 36, 473 A.2d 584, 595 (1984). Only where parties fail to provide for the rate of interest, in the event of breach of contract, will the "legal rate" of interest be applied by the courts. Daset Mining Corp. at 39, 473 A.2d at 597; Restatement (Second) of Contracts § 354, comment a.
In the present case, the parties, on the advice of counsel, agreed that if Father were to breach his duty to pay alimony, interest of seven and one-half percent per month would be paid to Mother on all unpaid amounts of alimony. Father does not contend that the rate of interest as provided in the property settlement agreement is usurious or illegal. This issue was not raised in the trial court. The Majority raises this issue sua sponte, albeit by way of footnote. But see *427 Pa.R.A.P. 302(a). This Court could not consider the issue posed in the Majority's footnote 8 simply because it is outside the scope of proper appellate review. Estep v. Estep, 508 Pa. 623, 626-627, 500 A.2d 418, 419 (1985) citing Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975).
On this appeal, Father asserts that he misunderstood the interest provision which appears in the property settlement agreement and that the trial court should have considered Father's understanding of the interest term in the agreement. Father also contends that the delinquent payments for alimony and the educational support for his daughter should have been designated solely as payments due for educational support. In that way, no interest could be assessed under the property settlement agreement. I find no merit in these arguments. I am at a loss in understanding the purpose in the Majority alluding to the possibility of usury arising on these facts.
The trial court, in this case, correctly articulated and applied the law with respect to property settlement agreements. Property settlement agreements will be interpreted in accordance with the same rules of law that apply to the interpretation of contracts in general. VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). When construing agreements with clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties understanding. McMahon v. McMahon, 417 Pa.Super. 592, 598, 612 A.2d 1360, 1363 (1992). Here, the clear and unambiguous language of this property settlement agreement provides for payment of the agreed upon interest rate in the event of default by Father. Father entered into this agreement on advice of counsel and does not claim that the agreement was the product of fraud, duress or coercion. Now that Father has defaulted on his duty to pay alimony and educational expenses, he cannot offer parole evidence to explain how he would interpret the unambiguous interest provision which appears on the face of the agreement. Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340 (1991). Moreover, Father offers no authority, nor do we discern any, for the proposition that *428 he should be permitted to allocate, from the $13,240.00 he owes in arrearages, how much of that sum should be designated as alimony or as educational expense, so that he can avoid paying interest on unpaid alimony. I cannot conclude that the trial court abused its discretion by enforcing the clear and unambiguous contract provisions. I would, therefore, affirm the order of the trial court.
Accordingly, I must respectfully dissent.
NOTES
[1] These were the ages given at the time of the hearing in October, 1990.
[2] The agreement contains no provision for the payment of college expenses for the children by either parent.
[3] It is undisputed that Susan receives payments of six hundred ($600.00) dollars per month from a note assigned to her as part of the parties' property settlement agreement. Husband argues that this is in addition to wife's income of two thousand ($2,000.00) dollars per month. Although this was not the subject of a finding by the hearing court, there is some, albeit not conclusive, support in the record for husband's contention. If this is correct, then wife has an actual cash flow of four thousand, four hundred twenty ($4,420.00) dollars per month.
[4] The parties stipulated that Rebecca's expenses were in the total amount of eight hundred ($800.00) dollars per month.
[5] Lloyd is also required to pay medical expenses for the children and interest at the rate of 7½% per month on overdue payments of alimony.
[6] The provisions of 23 Pa.C.S. § 4302, in pertinent part, are as follows:
"Income." Includes compensation for services, including, but not limited to, wages, salaries, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workmen's compensation and unemployment compensation.
[7] We observe that alimony payments, if paid pursuant to court order, are also deemed income to the receiving spouse for income tax purposes.
[8] Appellant has not argued that the rate of interest established by the agreement is usurious, and with respect thereto we express no opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262338/ | 26 Cal.Rptr.3d 234 (2005)
127 Cal.App.4th 1156
The PEOPLE, Plaintiff and Respondent,
v.
Salvador MARTINEZ, Defendant and Appellant.
No. B170558.
Court of Appeal, Second District, Division Eight.
March 28, 2005.
Review Denied June 29, 2005.
*235 Diana M. Teran, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Marc J. Nolan, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Salvador Martinez appeals from the judgment sentencing him to state prison for violating probation. We affirm.
FACTS AND PROCEDURAL HISTORY
In April 2002, Salvador Martinez pleaded no contest in the San Fernando branch of Los Angeles Superior Court to possession of methamphetamine. (Health & Saf. Code, § 11377.) The court sentenced him under Proposition 36 to three years' probation. (Pen.Code, § 1210 et seq.) In November 2002, he pleaded guilty to a second charge of possession of methamphetamine, and the San Fernando court sentenced him again under Proposition 36 to three years' probation.
In April 2003, Martinez tried to cash at a North Hollywood check cashing store a $492 check to him drawn on the account of "Learning Independence." Nothing on the face of the check suggested anything was amiss. Two years earlier, however, Learning Independence had thrown away a set of blank checks, one of which was the check that Martinez presented. Because the store's cashier thought it odd that Martinez showed his California identification card instead of his driver's license to confirm his identification, she faxed a copy *236 of the check to her company call center. The call center told her the check had been stolen and that the police were on their way. About 15 minutes later, the police arrived and arrested Martinez.
Charged with forgery (Pen.Code, § 470), Martinez was tried in the Van Nuys branch of superior court for violating his probation. The hearing took place on October 6, 2003. He testified he was a commercial truck driver and had received the check for work he did on the side. He explained he had been in downtown Los Angeles when a man named Carlos asked him to deliver supplies to a jobsite Martinez variously described as being at 8th and Main or 3rd and Main. Additionally, Martinez stated at one time or another that the man's name was Carlos, or Juan, or was a group of people whose names he forgot. The court found Martinez did not write the forged check, but did try to cash it, knowing it was fraudulent. The court therefore found Martinez had violated his probation, and sentenced him to two years in state prison. This appeal followed.
DISCUSSION
1. Probation Violation Hearing Properly in Van Nuys
Martinez objected to the Van Nuys court trying his probation violation. He contends the San Fernando court that had accepted his plea bargains and put him on probation should have heard his probation violation. In support, he cites People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal. Rptr. 778, 587 P.2d 220 (Arbuckle), which entitles a plea-bargaining defendant to insist that the same court that accepts his plea also pass sentence. Courts have not, however, extended Arbuckle to probation violations. People v. Beaudrie (1983) 147 Cal.App.3d 686, 195 Cal.Rptr. 289, explained "Arbuckle gave defendants the right to be sentenced ... by the same judge who accepted a plea of guilty.... [But] there is a distinction between a sentencing hearing following a plea of guilty and a sentencing following a revocation hearing. [The defendant in this case] was sentenced by the same judge who accepted his original plea. Sentence was suspended and he was placed on probation. Once that sentence was imposed, Arbuckle no longer applied." (Id. at pp. 693-694, 195 Cal.Rptr. 289; see also People v. Watson (1982) 129 Cal.App.3d 5, 8, 180 Cal.Rptr. 759 [rejected as "absurd" argument that "if probation is revoked years after the bargain is kept and sentence technically imposed for the first time, [the defendant] is entitled to have the same judge who accepted the plea impose the sentence.'"].)
Courts have not extended Arbuckle to probation violation hearings, nor should they. Multi-judge superior courts act as one superior court. (Silverman v. Superior Court (1988) 203 Cal.App.3d 145, 150-151, 249 Cal.Rptr. 724; Cal. Const., art. 6, § 4.) Even if a superior court creates departments for administrative ease and judicial efficiency, the departments ordinarily operate under the presumption that they are jurisdictionally equivalent and fungible. Arbuckle, resting on contract principles, created a limited exception to the fungibility of superior court departments. It did not, however, ground itself in constitutional or statutory mandates, speaking instead of the defendant's expectations and reliance on the plea bargain's implied terms. (Arbuckle, supra, 22 Cal.3d at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220.) Because Arbuckle did not rest on constitutional or statutory law, we may weigh Arbuckle's reasoning against the practical concerns of sentencing outside a plea bargain.
We find those reasons wanting. When a probationer commits a new offense, often many months, or even years, *237 may have passed since the original offense. The remoteness in time between the original offense and the new offense creates a lower expectation thatunlike at the time of the plea bargainthe original sentencing judge will still be available, let alone hearing criminal matters. Practical problems abound. For example, criminal hearings implicate courthouse security. The original sentencing judge may have moved to another assignment in a courtroom not equipped to handle a prisoner in custody. For that judge to hear the new offense, he or she would likely need to relocate to another courtroom, perhaps in another court branch, with his or her staff in tow. The burdens of such a relocation, and its disruption to the rest of the court's calendar, are obvious. And to what end? Oftentimes it will stand to the reoffending defendant's benefit to have one judge handle both the new offense and the probation violation, because it makes a global disposition of the offenses more likely. But if the probation violation is split from the new offense and returned to the original sentencing judge, the defendant's chances of a global settlement may evaporate.
We acknowledge that Arbuckle said that "mere administrative convenience" should not be used to thwart the reasonable expectation of a defendant in having his or her sentence imposed by the judge before whom the plea was entered. (Arbuckle, supra, 22 Cal.3d at p. 757, fn. 5, 150 Cal. Rptr. 778, 587 P.2d 220.) Arbuckle was addressing the relatively minor inconvenience in those situations where the trial judge had been reassigned a few weeks after the plea was taken, and then must be reassigned to impose sentence. That is not the case here, where the probation violation hearing was held 18 months after the plea. Arbuckle did not consider the security and administrative problems encountered when a trial judge long since reassigned out of a criminal courtroom is compelled to sentence dozens or even hundreds of defendants previously placed on probation. We agree with the court in People v. Watson, supra, 129 Cal.App.3d at page 8, 180 Cal.Rptr. 759, that any expectation a defendant might have that the original judge would sentence him in that situation, is unreasonable.
Martinez's reliance on People v. Ellison (2003) 111 Cal.App.4th 1360, 4 Cal.Rptr.3d 713, is unavailing. Ellison involved three judges. The first judge accepted the defendant's plea, but told the defendant he would be unavailable to impose sentence. Accordingly, the defendant waived his Arbuckle rights and agreed to be sentenced by a second judge. (Id. at p. 1363, 4 Cal.Rptr.3d 713.) At the sentencing hearing, the second judge ordered the defendant's immediate release from jail pending a final probation report. The jail did not release the defendant, however, because "someone at the jail" contacted a third judge and asked that judge to put a "hold" on the defendant. (Id. at p. 1364, 4 Cal. Rptr.3d 713.) The defendant's case thereafter returned to the first judge, who withdrew the second judge's release order and ordered the defendant's imprisonment. (Id. at p. 1366, 4 Cal.Rptr.3d 713.) On appeal, the defendant challenged his imprisonment, arguing the first judge had no jurisdiction to countermand the second judge's release order. The Ellison court agreed, holding the first and third judges overstepped their authority by interfering with the second judge's release order. (Id. at p. 1367, 4 Cal.Rptr.3d 713.) The Ellison court explained that each county's superior court sits as one court, even if it is divided into different departments and courtrooms for administrative ease and practical necessity. As the various departments sit as "one court," orders entered in one department are binding on all departments. (Id. at p. 1366, 4 Cal.Rptr.3d 713.) *238 Hence, the first and third judges had no authority to overrule the second judge. Although Ellison's procedural history involved the defendant's Arbuckle rights for without an Arbuckle waiver the second judge would not have obtained jurisdiction the Ellison court's analysis did not involve application of Arbuckle, other than to note the Arbuckle waiver was needed to vest jurisdiction with the second judge. Ellison did not hold, as Martinez contends, that Arbuckle rights extend to probation violation hearings.
2. Sufficiency of the Evidence
Intent to defraud is an element of forgery. (Pen.Code, § 470; CALJIC No. 15.02.) Possession of a forged check is, by itself, some evidence of forgery. Combined with some corroborative evidence, however slight, possession of a forged check is enough to support a conviction for forgery. (People v. Reisdorff (1971) 17 Cal.App.3d 675, 679, 95 Cal.Rptr. 224.)
Martinez contends there was insufficient evidence to conclude he had committed forgery. He notes he did not write or sign the check, and there was nothing suspicious on the face of the check to suggest it was invalid. Moreover, he made no attempt to misrepresent himself or hide his identity, as he presented valid identification when he tried to cash the check.
Preponderance of the evidence, a lower threshold than needed to support a new criminal conviction, is the standard of proof for a probation violation. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-441, 447, 272 Cal.Rptr. 613, 795 P.2d 783.) Against his evidence suggesting innocence weighed Martinez's admission that he had not heard of "Learning Independence," the company on whose account his check was drawn. Moreover, no obvious connection existed between that company and the job-site in downtown Los Angeles. Finally, Martinez made inconsistent statements about who approached him and the job-site's location. Such shifting or inconstant testimony presumably aroused the trial court's suspicion, undercutting Martinez's credibility with the court. Because we cannot second-guess the trial court's credibility findings, we are obligated to assume the court disbelieved Martinez's testimony that he did not know the check was forged. Accordingly, there was sufficient evidence to prove Martinez had violated his probation.
3. Prison Instead of Probation
Proposition 36 ordinarily mandates reinstatement of probation the first two times a defendant violates a drug-related condition of probation. (In re Taylor (2003) 105 Cal.App.4th 1394, 1397, 130 Cal. Rptr.2d 554.) Because his forgery offense was only his second probation violation (the first being his second methamphetamine conviction), Martinez contends the court erred in revoking his probation and sending him to prison.
Martinez's contention is unavailing because it is only if the probation violation is "drug related" that the prohibition against incarceration arises. (In re Taylor, supra, 105 Cal.App.4th at p. 1398, 130 Cal.Rptr.2d 554.) Proposition 36 defines "drug-related condition of probation" as "a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling." (Pen.Code, § 1210.1, subd. (f).) Passing a bad check does not fall within that definition. (Compare In re Taylor, supra, 105 Cal.App.4th 1394, 130 Cal.Rptr.2d 554 [not appearing for drug test is drug-related violation].)
Martinez cites People v. Atwood (2003) 110 Cal.App.4th 805, 2 Cal.Rptr.3d 67, to argue the People must prove his reason *239 for cashing the check was not drug related. Atwood imposes no such burden on the People. In Atwood, the probationer violated probation by missing an appointment with his probation officer. Because the reason for the appointment was unclear, the People could not show the probationer had violated a non-drug-related condition of probation; Atwood noted, for example, that if the appointment had been to take a drug test, the violation would have been drug related. (Id. at pp. 808, 811-812, 2 Cal.Rptr.3d 67, citing In re Taylor, supra, 105 Cal.App.4th 1394, 130 Cal.Rptr.2d 554.) Cashing a check allows for no such possibility here. Even if Martinez had planned to buy drugs with the check proceeds, the offense would not have been drug related as Proposition 36 defines that term. (Pen.Code, § 1210.1, subd. (f) [drug-related condition of probation is a "specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling."]; accord People v. Canty (2004) 32 Cal.4th 1266, 1279-1280, 1285, 14 Cal.Rptr.3d 1, 90 P.3d 1168 [driving under the influence does not satisfy Proposition 36's definition of drug-related misdemeanor even if the intoxicant is a drug].)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P.J., and BOLAND, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262339/ | 238 P.3d 328 (2010)
Tyron L. HARDAWAY, Appellant,
v.
LARNED CORRECTIONAL FACILITY, et al., Appellees.
No. 103,609.
Court of Appeals of Kansas.
September 3, 2010.
*329 Tyron L. Hardaway, appellant pro se.
Jon D. Graves, of Kansas Department of Corrections, for appellees.
Before HILL, P.J., PIERRON and LEBEN, JJ.
LEBEN, J.
Inmate Tyron Hardaway was convicted administratively for taking a cup of soda that apparently belonged to a prison food-service employee and then drinking that soda without permission. A hearing officer ordered that he lose 30 days of good-time credit and serve a 15-day disciplinary segregation, but both sanctions were suspendednot to be imposed at all if he received no further reprimands in the next 120 days. He didn't, and the sanctions weren't imposed.
Hardaway has nonetheless filed a lawsuit under K.S.A. 60-1501, contending that he wasn't given a fair hearingthus denying him due processon the charge of taking and drinking the soda without permission. The district court dismissed his claim on the merits after finding no due-process violation, and Hardaway appealed.
The State argues on appeal that Hardaway has not shown that he has any protected liberty interest giving rise to due-process protections. We agree.
Prison officials don't have to provide due-process hearings for most of the decisions they must make in determining the daily activities of inmates. You couldn't run a prison that way. To gain court review of a prison disciplinary sanction, the inmate's claim under K.S.A. 60-1501 must assert the deprivation of some constitutionally protected interest. Otherwise, the petition may be summarily dismissed. Anderson v. McKune, 23 Kan.App.2d 803, 806-07, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958, 118 S.Ct. 387, 139 L.Ed.2d 302 (1997); see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005). We must begin, then, by determining whether a constitutionally protected interest was implicated in Hardaway's punishment.
A disciplinary segregation doesn't rise to the level of a constitutionally protected interest. The Kansas Supreme Court has held that a prisoner has no protected liberty interest in remaining in the general prison *330 population rather than being separated for a time. Murphy v. Nelson, 260 Kan. 589, Syl. ¶ 9, 921 P.2d 1225 (1996); see also Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Anderson, 23 Kan. App.2d at 807, 937 P.2d 16.
Nor does the good-time-credit sanction against Hardaway implicate a constitutionally protected interest. While a sanction that removes good-time credits already earned does implicate a protected liberty interest, Kesterson v. State, 276 Kan. 732, Syl. ¶ 2, 79 P.3d 1074 (2003), a prisoner has no protected liberty interest in good-time credits not yet earned or awarded. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 8, 24 P.3d 128 (2001). Thus, an inmate has no protected interest when, due to prison rule violations, he or she loses good-time credit that has not yet been earned or awarded. Henry v. McKune, 2009 WL 863354, at *2 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1278 (2009).
Nothing even that substantial has happened here. Under the disciplinary sanctions order, Hardaway hadn't even lost an ability to earn good-time credits during the time period in which he violated this prison rule: he never lost any good-time credit for this violation. The sanctions were suspended, and the State contends that they were never imposed. Hardaway has not provided anything to show that any sanction was ever imposed upon him. Punishments never imposed do not implicate a protected liberty interest. Davis v. Ward, 92 Fed.Appx. 634, 635 (10th Cir.2004) (unpublished opinion).
We acknowledge that one federal court has found a protected liberty interest in a similar situation. See Cochran v. Buss, 381 F.3d 637, 640 (7th Cir.2004) (finding a constitutionally protected interest in the possibility that good-time credits will be taken if suspended disciplinary sentence is later imposed). We find the Davis case more persuasive. Cochran relied upon an analogy to cases broadly interpreting the statutory requirement that a state prisoner be "in custody" to obtain federal habeas relief, a situation in which federal courts have held that "custody" includes, for example, a defendant free on parole but subject to parole revocation. 381 F.3d at 639-40. We do not believe that those statutory-interpretation cases are relevant in determining whether a constitutionally protected interest is at stake. We also do not believe that this is akin to a suspended prison sentence ordered as a court judgment after a conviction. See Cocran, 381 F.3d at 640. In those cases, the not-yet-convicted defendant at trial has much greater constitutional due-process protections than the inmate has in a prison disciplinary case.
But many cases, like this one, have needed to determine whether a constitutionally protected interest was at stake, and those make a closer parallel than the situations that the Cochran court found persuasive. Those cases have looked at the sanctions actually imposed, not ones that could have been but were not. E.g., Sandin, 515 U.S. at 487, 115 S.Ct. 2293 (determining whether inmate had a protected liberty interest based on the "regime to which he was subjected as a result of the misconduct hearing"); Murphy, 260 Kan. at 603, 921 P.2d 1225 (finding no protected interest based on the sanction imposed, which was administrative segregation within the prison); Henry, 2009 WL 863354, at *1 (determining whether protected liberty interest was at stake based on sanctions imposed).
Despite Hardaway's prison-misconduct conviction, he has not suffered any deprivation that would implicate a protected liberty interest. We therefore do not consider whether the prison disciplinary hearing on this charge met all of the normal standards of due process. Davis, 92 Fed.Appx. at 636-37.
The district court's order summarily dismissing Hardaway's K.S.A. 60-1501 petition is therefore affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262343/ | 238 P.3d 223 (2010)
CAPSTAR RADIO OPERATING COMPANY, Plaintiff-Respondent,
v.
Douglas P. LAWRENCE and Brenda J. Lawrence, husband and wife, Defendants-Appellants.
No. 35120.
Supreme Court of Idaho, Coeur d'Alene, April 2010 Term.
August 25, 2010.
*224 Douglas P. Lawrence and Brenda J. Lawrence, Coeur d'Alene, pro se appellants. Douglas Lawrence argued.
James, Vernon & Weeks, P.A., Coeur d'Alene, for respondent. Susan Weeks argued.
HORTON, Justice.
This case involves the question whether Capstar Radio Operating Company (Capstar) holds an easement over the land of Douglas and Brenda Lawrence (the Lawrences) to access a radio transmitter located in Kootenai County. It is related to Tower Asset Sub Inc. v. Lawrence, ___ Idaho ___, ___ P.3d ___ (2010), also before this Court.
The Lawrences appeal from the district court's memorandum decision and order granting Capstar's motion for summary judgment. Because we do not have jurisdiction to decide this case, we dismiss this appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Lawrences and Capstar own parcels of property on Blossom Mountain, south of Post Falls, Idaho. In 2002, Capstar filed this action seeking recognition of an easement over the property owned by the Lawrences to maintain and repair a radio transmitter located on Capstar's property. Tower Asset Sub Inc. (Tower) filed a similar action in 2003. Capstar moved for summary judgment on express, implied, and prescriptive easement theories. After the Lawrences complained that Capstar was being unresponsive to their discovery requests, the district court ruled solely on the express easement theories. It found that an express easement existed based upon an earlier contract between two other parties. The Lawrences appealed and this Court reversed, finding that no express easement over the Lawrence property was retained by Capstar's predecessor in interest. Capstar Radio Operating Co. v. Lawrence, 143 Idaho 704, 708, 152 P.3d 575, 579 (2007).
On remand, Capstar renewed its motion for summary judgment on the remaining theories of an easement by implication from prior use, an easement by necessity, and a prescriptive easement. The Lawrences subsequently filed a motion for disqualification of the district judge. The district judge heard evidence and issued a written decision declining to disqualify himself. On February 6, 2008, the district court issued a combined decision in both the Capstar and the related Tower cases captioned as a "Memorandum Decision and Order Granting Plaintiff's Motion for Summary Judgment, and Order Granting Plaintiff's Motion to Substitute Real Party in Interest" (the Memorandum Decision). The district court found that an easement by implication from prior use or, in the alternative, an easement by necessity or a prescriptive easement had arisen over the Lawrence property. The district court rejected the Lawrences' defenses. There is no judgment in the record. The Lawrences now appeal.
II. STANDARD OF REVIEW
This Court may raise the issue of subject matter jurisdiction at any time on its *225 own initiative. T.J.T., Inc. v. Mori, 148 Idaho 825, 826, 230 P.3d 435, 436 (2010) (citing In re Quesnell Dairy, 143 Idaho 691, 693, 152 P.3d 562, 564 (2007)). Indeed, "this Court is always obligated to ensure its own jurisdiction." State v. Doe, 149 Idaho 353, 356, 233 P.3d 1275, 1278 n. 3 (2010) (citing Highlands Dev. Corp. v. City of Boise, 145 Idaho 958, 960, 188 P.3d 900, 902 (2008)). "Jurisdictional issues are questions of law over which this Court exercises free review." T.J.T., Inc., 148 Idaho at 826, 230 P.3d at 436 (citing Christian v. Mason, 148 Idaho 149, 151, 219 P.3d 473, 475 (2009)).
III. ANALYSIS
The Memorandum Decision concluded with a section entitled "Order" that states, in pertinent part, as follows: "IT IS HEREBY ORDERED that the Renewed Motion for Summary Judgment filed by Capstar v. Lawrence, CV 2002 7671 and Renewed Motion for Summary Judmgnet [sic] filed in Tower Asset Sub, Inc. v. Lawrence, CV 2003 4621, are GRANTED." (capitalization, bold original).
In Camp v. East Fork Ditch Co., 137 Idaho 850, 55 P.3d 304 (2002), this Court attempted to define the court documents that would constitute final judgments for purposes of I.A.R. 11(a)(1).[1] We stated:
Whether an instrument is an appealable order or judgment must be determined by its content and substance, and not by its title. Idah Best, Inc. v. First Security Bank of Idaho, N.A., 99 Idaho 517, 584 P.2d 1242 (1978). As a general rule, a final judgment is an order or judgment that ends the lawsuit, adjudicates the subject matter of the controversy, and represents a final determination of the rights of the parties. Davis v. Peacock, 133 Idaho 637, 991 P.2d 362 (1999). It must be a separate document, Hunting v. Clark County School Dist. No. 161, 129 Idaho 634, 931 P.2d 628 (1997); IDAHO R. CIV. P. 58(a), that on its face states the relief granted or denied.
137 Idaho at 867, 55 P.3d at 321.
Later, in In re Universe Life Insurance Co., this Court reiterated earlier statements that "[a]n order granting summary judgment does not constitute a judgment." 144 Idaho 751, 756, 171 P.3d 242, 247 (2007) (citing Camp; Hunting v. Clark Co. School Dist. No. 161, 129 Idaho 634, 931 P.2d 628 (1997)). More recently, in Spokane Structures, Inc. v. Equitable Inv., LLC, 148 Idaho 616, 619, 226 P.3d 1263, 1266 (2010), this Court explained that "[t]he judgment sought is a final determination of a claim or claims for relief in the lawsuit." The Court continued:
The relief to which a party is entitled is not the granting of a motion for summary judgment. [Rule 54(c), I.R.C.P.] refers to the relief to which the party is ultimately entitled in the lawsuit, or with respect to a claim in the lawsuit. The granting of a motion for summary judgment is simply a procedural step towards the party obtaining that relief.
Id.
Thus, when faced with the situation where the trial court had entered an order granting *226 summary judgment, but no separate judgment was entered, this Court had no alternative but to dismiss the appeal for lack of jurisdiction. T.J.T., Inc., 148 Idaho at 826, 230 P.3d at 436. For the same reason, this appeal must be dismissed.
IV. CONCLUSION
This Court does not have jurisdiction to decide this appeal as no final and appealable judgment was entered below. The appeal is therefore dismissed.
Chief Justice EISMANN and Justices BURDICK, J. JONES and W. JONES concur.
NOTES
[1] In recent months, this Court has repeatedly addressed the question of what constitutes an appealable order or judgment, most notably in Spokane Structures, Inc. v. Equitable Inv., LLC, 148 Idaho 616, 226 P.3d 1263 (2010), Goodman Oil Co. v. Scotty's Duro-Bilt Generator, Inc., 148 Idaho 588, 226 P.3d 530 (2010) and T.J.T., Inc. v. Mori, 148 Idaho 825, 230 P.3d 435 (2010). In an effort to reduce confusion, this Court has adopted significant changes to the governing rules of civil and appellate procedure. Effective July 1, 2010, I.A.R. 11 now provides:
An appeal as a matter of right may be taken to the Supreme Court from the following judgments and orders:
(a) Civil Actions. From the following judgments and orders of a district court in a civil action:
(1) Final judgments, as defined in Rule 54(a) of the Idaho Rules of Civil Procedure, including judgments of the district court granting or denying peremptory writs of mandate and prohibition.
I.R.C.P. 54(a) now defines "judgment" and "final judgment" as follows:
"Judgment" as used in these rules means a separate document entitled Judgment or Decree. A judgment shall state the relief to which a party is entitled on one or more claims for relief in the action. Such relief can include dismissal with or without prejudice. A judgment shall not contain a recital of pleadings, the report of a master, the record of prior proceedings, courts legal reasoning, findings of fact, or conclusions of law. A judgment is final if either it has been certified as final pursuant to subsection (b)(1) of this rule or judgment has been entered on all claims for relief, except costs and fees, asserted by or against all parties in the action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262346/ | 152 Pa. Commonwealth Ct. 318 (1992)
618 A.2d 1224
ROADWAY EXPRESS, INC., Petitioner,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ALLEN), Respondent.
Commonwealth Court of Pennsylvania.
Submitted October 30, 1992.
Decided December 22, 1992.
*319 Michael I. Levin and Michael W. Jones, for petitioner.
*320 No appearance for respondent.
Before PALLADINO and PELLEGRINI, JJ., and NARICK, Senior Judge.
PELLEGRINI, Judge.
Roadway Express, Inc. (Employer) appeals from the Workmen's Compensation Appeal Board (Board) order affirming the Referee's decision modifying benefits for Gerald Allen (Claimant), holding that he was partially disabled beginning on September 27, 1987, because he did not follow through on job referrals in good faith. The Employer contends that disability benefits should be modified as of the date of the first job referral for which Claimant did not follow through in good faith, even though the first referral was four years before the filing of the Petition to Modify Benefits.[1]
Claimant was a dock worker for Employer on January 19, 1983, when he suffered a work-related injury to his low back. From the time of his injury, Claimant was treated by Robert Baran, D.O., his family physician for his back problems. At Employer's request, Claimant was also examined by Sanford Sternlieb, M.D., an orthopedic surgeon, on September 18, 1984, January 20, 1986, and April 13, 1987.
In March, 1988, Employer filed a Petition to Modify Compensation Benefits,[2] requesting a reduction in status from total disability to partial disability. Employer alleged that jobs for which medical clearance had been obtained were made available to Claimant. At the hearing, Employer presented evidence that from November 1984 to March 1988, sixteen jobs classified as light-duty work were referred to Claimant. By deposition, Dr. Baran and Dr. Sternlieb both testified that Claimant's disability had improved so that as of September *321 1984, he was capable of performing light-duty work. (R.R. 5a, 48a). Both doctors also testified that all of the jobs which Employer had referred for Claimant were within his physical capabilities. Claimant did not offer any medical evidence to the contrary, but he testified that he disagreed that the jobs referred to him were within his physical capabilities.[3]
The Referee reduced Claimant to partial disability, with no change in the rate of benefits effective September 27, 1987, holding that Claimant did not apply in good faith for positions made actually available to him. The Referee made the following finding of fact concerning the effective date of the modification:
11. Dr. Sternlieb's most recent examination was in April of 1987, and the defendant's petition was filed on March 8, 1988. Therefore, the eleven positions that were available during the period November 20, 1984, through March 10, 1987, are too far removed in time to be probative and relevant to the within petition; and I will only consider the positions that were available beginning September 18, 1987, for purposes of ascertaining whether the defendant met their burden of proof. . . .
(Referee's decision 10/28/89).
Employer appealed the decision of the Referee to the Board because the Referee refused to consider the first job referrals made available to Claimant, beginning in November 1984, which it contends Claimant failed to pursue in good faith. The Board affirmed the Referee's decision.[4] Employer then filed this appeal.[5]
*322 Employer contends that the Referee erred in refusing to consider any of the jobs that were referred to Claimant prior to September 1987 due to the passage of time, because there is no basis in the law for a statute of limitations on the filing of petitions to modify benefits. The Employer argues that Claimant's status should be modified to partial disability effective on the date of the first job referral for which Claimant did not follow through in good faith.
In Barnes and Tucker Company v. Workmen's Compensation Appeal Board, 39 Pa.Commonwealth Ct. 123, 126, 394 A.2d 1052, 1053 (1978), we held that a modification was effective from the date of the change in disability as shown by the proofs produced and not from the date the modification petition is filed. Similarly, in Associated Plumbing & Heating v. Workmen's Compensation Appeal Board, 126 Pa.Commonwealth Ct. 618, 626, 560 A.2d 865, 869 (1989), where a claimant had been notified of job referrals within his medical capabilities but had not applied for several of the positions, we held that the modification of benefits must be effective as of the date the first job he did not apply for was available.
Where a claimant has not pursued job referrals in good faith, a modification is effective on the date the first job referral, which fits into the category for which claimant has been given medical clearance, is available. Associated Plumbing; Barnes. Neither case set a time limit on the filing of a petition in relation to the time of job referrals. Moreover, there is no time limitation on the filing of modification petitions for partial disability in the Workmen's Compensation Act.
As in other situations where no time limitation is applicable, the doctrine of laches is available in administrative proceedings as an affirmative defense. Weinberg v. State Board of Examiners, 509 Pa. 143, 501 A.2d 239 (1985). The doctrine of laches is invoked not when a definite time period has elapsed, but when the complaining party fails to exercise *323 due diligence in instituting an action. Shah v. State Board of Medicine, 139 Pa.Commonwealth Ct. 94, 589 A.2d 783 (1991), petition for allowance of appeal denied, 600 A.2d 197 (1991). While the failure to exercise due diligence in instituting an action is an element of laches, the other factor that must be established is prejudice to the defending party. Shah.
In respect to modification petitions, the doctrine of laches would be applicable in those situations where an employer delays the filing of a modification petition from the time it knew or should have known that the claimant was not pursuing the job referrals in good faith and that delay results in prejudice to the claimant. Because of the difficulty in preparing a defense on the basis of stale job referrals and the adverse affect on a claimant's income if compensation must be recouped based on the modification, a delay may result in prejudice to the claimant. In this case, Claimant did not raise the affirmative defense of laches or allege any prejudice to himself resulting from the Employer's filing of the petition four years after the first job referrals. Because it was not raised as a defense, the doctrine of laches is not available in this case.
Accordingly, the Referee erred in ignoring job referrals due to the timing of the Petition for Modification, and the Board's order affirming the decision must be vacated. However, the Referee did not make sufficient findings of fact concerning Claimant's good-faith follow through to job referrals before September 1987, so we cannot determine the effective date of the modification and we must remand for those findings. See Koolvent Aluminum Products v. Workmen's Compensation Appeal Board (Allman), 134 Pa.Commonwealth Ct. 505, 578 A.2d 1020 (1990).
ORDER
AND NOW, this 22nd day of December, 1992, the order of the Workmen's Compensation Appeal Board, No. A89-2804, dated March 18, 1992, is vacated, and this case is remanded for findings as to whether Claimant made a good-faith follow *324 through on the job referrals available before September 1987 as listed in the Referee's decision, Finding of Fact No. 9.
Jurisdiction relinquished.
NOTES
[1] Claimant did not appeal the Referee's modification order. Additionally, because respondents failed to file a timely brief, respondents were precluded from filing a brief in this appeal by Order of this Court dated October 19, 1992.
[2] A referee may modify benefits pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
[3] Claimant did not raise to the Referee any issue concerning the timeliness of the job referrals or the Petition for Modification.
[4] The Board held that the refusal to consider early job referrals was based on the rejection of testimony that Claimant was able to do light-duty work at that time. The Board's conclusion is in conflict with the Referee's Finding of Fact No. 6, accepting without restriction the testimony of both doctors who stated that Claimant could do light-duty work as of September 1984, and Finding of Fact No. 10 that all of the job referrals were within Claimant's physical capabilities.
[5] This court should affirm a Board's decision unless it determines there was a violation of constitutional rights, the decision was not in accordance with law, or any necessary finding of fact was not supported by substantial evidence. Administrative Agency Law, 2 Pa.C.S. § 704; Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262348/ | 26 Cal.Rptr.3d 433 (2005)
127 Cal.App.4th 1334
Guy Paul BROWNE, Plaintiff and Appellant,
v.
TURNER CONSTRUCTION COMPANY, et al., Defendants and Respondents.
No. H025934.
Court of Appeal, Sixth District.
March 29, 2005.
Review Denied June 22, 2005.[*]
*435 Law Offices of Daniel U. Smith, Daniel U. Smith, Kentfield, Jones, Clifford, Johnson & Johnson, J. Kevin Morrison, Attorneys for Plaintiff and Appellant Guy Paul Browne.
Stone, Rosenblatt & Cha, Gregg S. Garfinkel, Laurence F. Dunn III, Encino, Attorneys for Defendants and Respondents Turner Construction Company, et al.
*434 RUSHING, P.J.
Defendant Intel Corporation (Intel) hired defendant Turner Construction Company (Turner) to act as general contractor on a construction project. Turner hired Superior Automatic Sprinkler Co. (Superior) to install a fire sprinkler system. Plaintiff Guy Paul Browne, an employee of Superior, was injured in a fall from a ladder while working on the project. He brought this action against Turner and Intel, claiming that they acted negligently in removing from the work area, or causing to be removed, two means by which the fall could have been prevented, i.e., a system of safety lines intended to prevent just such injuries, and some hydraulic lifts (elevated work platforms) that would have permitted plaintiff to do the work without a ladder. The trial court granted summary judgment for defendants on the ground that their conduct did not affirmatively contribute to plaintiff's injuries within the holding of Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker). We hold that this was error; the furnishing and abrupt withdrawal of safety equipment could be found to constitute negligent performance of a voluntary undertaking, affirmatively contributing to plaintiff's injuries and thereby subjecting defendants to liability. Accordingly, we will reverse the judgment.
BACKGROUND
Plaintiff alleged in his complaint that on September 13, 2000, Turner and Intel caused him to fall and suffer injuries by negligently owning, maintaining, operating, and controlling a certain construction site. Intel and Turner jointly answered the complaint, generally denying its allegations and raising affirmative defenses not pertinent here. Defendants propounded interrogatories asking plaintiff to state all facts on which he based his contention that they were liable for his injuries. He responded that while discovery and investigation were continuing, he believed Intel had required to be removed, and Turner had removed, "the hydraulic lifts from the part of the project on which plaintiff was working, thereby requiring him to use a ladder as a work platform." He further asserted that his injuries resulted from each defendant's "negligently retained control of the subject jobsite."
In December 2002, defendants jointly moved for summary judgment. In their statement of undisputed facts they asserted that Turner had been the general contractor on a project for Intel; that plaintiff's employer, Superior, had been hired by Turner to install a fire sprinkler system; that the contract between Turner and Superior placed ultimate responsibility for injury prevention upon Superior; and that plaintiff was injured when he fell about nine feet from a ladder on which he was standing in an attempt to install some overhead sprinkler pipe in an area known as the copper gowning room. Defendants acknowledged, and made no attempt to refute, plaintiff's assertion that they had removed hydraulic lifts from the work area. They asserted various facts intended to show that they did not negligently supervise any relevant aspect of the work.
*436 In opposition to the motion, plaintiff cited his deposition testimony that he had been required to use a ladder at the time of his injury "because Turner had removed the scissor lifts" from the floor he was working on. One of his coworkers testified that Intel and Turner had wanted the lifts out of the room as part of a process by which "as the room was getting cleaner, they kept moving things, equipment and everything, out of there." Plaintiff also referred to a "fall protection system," which defendants had installed, of catenary (suspended) anchoring cables to which workers would secure or "tie off" their safety lanyards. He noted that defendants themselves had a rule requiring all workers to "tie off" when their feet were more than six feet above the ground. Defendants, however, had removed the fall protection system from the copper gowning room two months before he was injured, so that on the date of his fall, "there was nothing for [him] to `tie off' to." Plaintiff asserted that through this conduct, defendants had effectively "determin[ed]" that he would work in violation of the tie-off rule.
Defendants raised numerous evidentiary objections to plaintiff's opposition (see pt. III, post), but made no attempt to refute the propositions that (1) they had originally furnished the catenary anchor system, then discontinued it while overhead work remained to be performed; and (2) they had also removed the scissor lifts, or caused them to be removed, immediately before plaintiff sustained his injuries.
The trial court issued a lengthy order in which it concluded that there was no evidence of any negligence by defendants that "affirmatively contributed" to plaintiff's injuries as required by Hooker, supra, 27 Cal.4th at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081. The court wrote that plaintiff was "unable to point to any affirmative action that defendants took which directly contributed to plaintiff's injury." The court found it "undisputed that defendants retained control over safety conditions, and removed the scissors lift and tie off anchors from the room in which plaintiff was working before he began to work on the day of the accident...." This conduct, however, "did not affirmatively contribute to plaintiff's injury," because there was "no claim that the ladder was defective, or that defendants ordered plaintiff to work without tying off." "There is, at most, evidence that defendants were aware of an unsafe practice, i.e., no tie off anchors available to plaintiff while working more than [six] feet above ground, and failed to exercise the authority they retained to correct it, i.e., put the anchors back in. But there is no evidence that defendants['] exercise of retained control, i.e., the removal of the anchors or the scissors lift, affirmatively contributed to the dangerous practice of climbing a ladder more than [six] feet off the ground without first tying off."
The court entered judgment for defendants. Plaintiff filed this timely appeal.
I. Summary Judgment
Code of Civil Procedure section 437c entitles a defendant to summary judgment upon demonstrating that "one or more elements of [the plaintiff's] cause of action ... cannot be established." (Code Civ. Proc., § 437c, subd. (p)(2); see id., subd. (o)(1).) Courts have recognized two ways in which a defendant may make such a showing. The first, which might be called "positive refutation," consists of "present[ing] evidence that," in the absence of conflicting evidence from the plaintiff, "preclude[s] a reasonable trier of fact from finding" a fact necessary to the plaintiff's cause of action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003, 4 Cal.Rptr.3d 103, *437 75 P.3d 30, italics added (Kahn).) In other words, the defendant comes forward with evidence concerning the actual events at issue, and establishing a version of those events that is incompatible with the plaintiff's claims. Alternatively, the moving defendant may show by competent proofs (typically derived from discovery) that the plaintiff lacks the evidence to prove a necessary fact. In this method, which might be called "evidentiary negation," the defendant need not affirmatively prove anything about what actually occurred; it is enough to show that there is insufficient evidence of what occurred, or insufficient evidence favorable to the plaintiff, to establish a necessary element of the cause of action. Either way, if the defendant presents evidence sufficient to meet this threshold burden, the burden shifts to the plaintiff "to show that a triable issue of one or more material facts exists as to that cause of action...." (Code Civ. Proc., § 437c, subd. (p)(2).) However, "[t]he burden of persuasion remains" with the defendant as moving party. (Kahn, supra, 31 Cal.4th at p. 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30.) An appellate court "review[s] the record and the determination of the trial court de novo. [Citation.]" (Ibid.)
Defendants' motion was premised upon plaintiff's claimed inability to prove an indispensable part of his cause of action, i.e., that their conduct "affirmatively contributed to [his] injuries, or to the allegedly-hazardous condition which precipitated his fall...." Thus the pivotal question, as framed by defendants and filtered through the principles just noted, is whether defendants presented evidence "preclud[ing]" a finding that they "affirmatively contributed" to his injuries, or affirmatively demonstrating that plaintiff "lacks the evidence to prove" such affirmative contribution. We review de novo the trial court's affirmative answer to that question.
II. Affirmative Contribution
Over the past 11 years the California Supreme Court has rendered a line of decisions limiting the liability of a hirer of an independent contractor for injuries to one of the contractor's employees. Prior to these cases it was widely held that the hirer could be liable to such workers for breach of a duty, often referred to as "nondelegable," to protect workers from harm arising from a "peculiar risk" inherent in the work. (See Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 254, 66 Cal.Rptr. 20, 437 P.2d 508, overruled in Privette v. Superior Court (1993) 5 Cal.4th 689, 696, 702, 21 Cal.Rptr.2d 72, 854 P.2d 721, fn. 4 (Privette); Rest.2d Torts, § 416[1].) If this doctrine were still available, it would clearly apply here, because the work in which plaintiff was engaged inherently involved a clear and distinct risk of falling, against which defendants might have been under a duty to require that precautions be taken.
However, in Privette, supra, 5 Cal.4th at pages 696, 698-702, 21 Cal.Rptr.2d 72, 854 P.2d 721, the court held that imposing liability on such a basis was inconsistent with the policies underlying the workers' compensation laws, which "automatically" afford the injured worker a remedy against his employer, but exempt the employer from liability in tort. In Toland v. Sunland Housing Group (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 (Toland), the court reaffirmed that holding and extended it to a variation on peculiar risk theory, in which liability is predicated not on the hirer's failure to require the *438 contractor to take precautions (see § 416), but on the hirer's own failure to take "special precautions" against the risk in question (see § 413). The court noted that liability under section 416 had sometimes been characterized as "vicarious" while liability under section 413 had been called "direct." (Toland, supra, 18 Cal.4th at p. 264, 74 Cal.Rptr.2d 878, 955 P.2d 504; see id. at p. 259, 74 Cal.Rptr.2d 878, 955 P.2d 504.) However, it declared this distinction "misleading" because "liability under these sections is neither purely direct nor purely vicarious." (Id. at p. 264, 74 Cal.Rptr.2d 878, 955 P.2d 504.) Under both sections, it held, "the hiring person's liability is cast in the form of the hiring person's breach of a duty to see to it that special precautions are taken to prevent injuries to others; in that sense, the liability is `direct.' Yet, peculiar risk liability is not a traditional theory of direct liability for the risks created by one's own conduct: Liability under both sections is in essence `vicarious' or `derivative' in the sense that it derives from the `act or omission' of the hired contractor, because it is the hired contractor who has caused the injury by failing to use reasonable care in performing the work." (Id. at p. 265, 74 Cal.Rptr.2d 878, 955 P.2d 504, italics added.) Responding to Justice Werdegar's partial dissent, Justice Kennard noted for the majority that it is always possible to characterize liability as "`direct'" by "concocting a duty in a particular situation to prevent another from acting negligently ...." (Id. at p. 265, fn. 3, 74 Cal.Rptr.2d 878, 955 P.2d 504, italics added.) The dissent, she wrote, "refuses to acknowledge any distinction between this artificial `direct liability' and the liability imposed on the hiring person for injuries resulting from the hiring person's own conduct, such as, for example, concealing a hidden danger ... or insisting on use of an unsafe method to execute the work." (Ibid.) Under Privette, the court said, the hirer "has no obligation to specify the precautions an independent hired contractor should take for the safety of the contractor's employees." (Id. at p. 267, 74 Cal.Rptr.2d 878, 955 P.2d 504.) It described Privette as holding that "employees of an independent contractor, because of the availability of workers' compensation benefits, cannot seek recovery under section 413 of the Restatement Second of Torts." (Id. at p. 268, 74 Cal.Rptr.2d 878, 955 P.2d 504.) "As we concluded in Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721," Justice Kennard wrote, "it is illogical and unfair that a landowner or other person who hires an independent contractor should have greater liability for the independent contractor's negligence towards the contractor's employees than the independent contractor whose liability is limited to providing workers' compensation coverage." (Id. at p. 270, 74 Cal.Rptr.2d 878, 955 P.2d 504.)
In Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (Camargo), the court extended Toland and Privette to bar a claim that was brought under the theory that the defendant negligently hired the independent contractor who in turn employed the plaintiffs' decedent as a tractor driver. (See § 411.) The court reaffirmed the underlying rationale that "the hirer should not have to pay for injuries caused by the contractor's negligent performance because the workers' compensation system already covers those injuries." (Camargo, supra, 25 Cal.4th at p. 1239, 108 Cal. Rptr.2d 617, 25 P.3d 1096.) The court rejected the negligent hiring theory for the same reasons it rejected the peculiar risk theories at issue in Privette and Toland, i.e., while the proposed liability might be "direct" in some sense, it was essentially vicarious or derivative in that it depended *439 on the negligent conduct of the contractor, and it was unfair to subject the hirer to civil liability while the actor primarily responsible for the injury was subject only to the limited liability imposed by workers' compensation law. (Camargo, supra, 25 Cal.4th at p. 1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)
In Hooker, supra, 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081, the question was whether the hirer could be liable for negligent exercise of a retained power to control the performance of the work. (See § 414.) The court held "that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries." (Hooker, supra, 27 Cal.4th at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081.) The court approved the analysis in a First District case holding that mere failure to exercise a retained power of control cannot, by itself, make the hirer liable, because the hirer (which in that case was the general contractor) "`owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff. Insofar as section 414 might permit the imposition of liability on a general contractor for mere failure to intervene in a subcontractor's working methods or procedures, without evidence that the general contractor affirmatively contributed to the employment of those methods or procedures, that section is inapplicable to claims by subcontractors' employees against the general contractor.' [Citation.]" (Hooker, supra, 27 Cal.4th at p. 209, 115 Cal.Rptr.2d 853, 38 P.3d 1081, quoting Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39, 103 Cal. Rptr.2d 594, italics added.) "[T]he imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee. `We are persuaded that the holdings of Privette and Toland should also apply to employees' claims under section 414 at least where, as here, (1) the sole factual basis for the claim is that the hirer failed to exercise a general supervisory power to require the contractor to correct an unsafe procedure or condition of the contractor's own making, and (2) there is no evidence that the hirer's conduct contributed in any way to the contractor's negligent performance by, e.g., inducing injurious action or inaction through actual direction, reliance on the hirer, or otherwise. The fairness rationale at the core of Privette and Toland applies equally to preclude imposition of liability on a hirer for mere failure to exercise a general supervisory power to prevent the creation or continuation of a hazardous practice, where such liability would exceed that imposed on the injured plaintiff's immediate employer, who created the hazard.' [Citation.]" (Hooker, supra, 27 Cal.4th at pp. 210-211, 115 Cal.Rptr.2d 853, 38 P.3d 1081, quoting Kinney, supra, 87 Cal.App.4th at p. 36, 103 Cal.Rptr.2d 594, some italics added.)
The accident at issue in Hooker occurred when the plaintiff's decedent, while operating a construction crane on a highway project, attempted to swing the boom after neglecting to reextend stabilizing outriggers, which he had retracted to allow other vehicles on the project. (Hooker, supra, 27 Cal.4th at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081.) The plaintiff cited the defendant's *440 own rules requiring its supervisors to recognize, anticipate, and correct unsafe conditions, and deposition testimony by the defendant's senior representative on the project to the effect that he was aware of the retraction of the outriggers, recognized its hazards, and possessed the power to compel safe procedures. (Ibid.) The court noted the similarity of these facts to Kinney, where the plaintiff was injured while engaged in a practice the hirer's representatives acknowledged to be unsafe, and which they had the power to stop. (Id. at p. 211, 115 Cal.Rptr.2d 853, 38 P.3d 1081.) Such facts are insufficient to defeat a motion for summary judgment, however, because "`liability cannot be imposed on the general contractor based upon a mere failure to require the subcontractor to take safety precautions, where the general contractor's failure is not shown to have affirmatively contributed to the creation or persistence of the hazard causing the plaintiff's injuries.'" (Ibid., quoting Kinney, supra, 87 Cal.App.4th at p. 30, 103 Cal.Rptr.2d 594.) However, the imposition of liability is appropriate "when the hirer's conduct has affirmatively contributed to the injuries of the contractor's employee," because "the liability of the hirer in such a case is not "in essence vicarious or derivative in the sense that it derives from the act or omission of the hired contractor," [citation]" but "[t]o the contrary," is "direct in a much stronger sense of that term." (Hooker, supra, at pp. 211-212, 115 Cal.Rptr.2d 853, 38 P.3d 1081, fn. omitted.)
The court noted that to justify liability for negligent exercise of a power of control, the hirers "affirmative contribution need not always be in the form of actively directing a contractor or contractors employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirers negligent failure to do so should result in liability if such negligence leads to an employee injury." (Hooker, supra, 27 Cal.4th at p. 212, fn. 3, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)
In a companion case, McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222, 115 Cal.Rptr.2d 868, 38 P.3d 1094 (McKown), the court affirmed a judgment against a property owner who had asked the plaintiff's employer, an independent contractor, to use the owner's forklifts whenever possible, and who had supplied an unsafe forklift, causing injury to the plaintiff. The court held that "a hirer is liable to an employee of an independent contractor insofar as the hirer's provision of unsafe equipment affirmatively contributes to the employee's injury." (Id. at p. 222, 115 Cal.Rptr.2d 868, 38 P.3d 1094, fn. omitted.) Liability for furnishing defective equipment was appropriate because, under traditional tort principles, it required active participation by the hirer: "`An owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made [citation] or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor. [Citation.] [Citation.]" (Id. at p. 225, 115 Cal.Rptr.2d 868, 38 P.3d 1094, quoting McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788-789, 285 P.2d 902; italics added by McKown.) "`[W]here the hiring party actively contributes to the injury by supplying defective equipment, it is the hiring party's own negligence that renders it liable, not that of the contractor.'" (McKown, supra, 27 Cal.4th at p. 225, 115 Cal.Rptr.2d 868, 38 P.3d 1094, quoting Court of Appeal.) The hirer was not relieved of liability by the fact that it did not insist on, but merely *441 requested, use of the defective equipment: The contractor was "presumably loath to displease" the owner, "the world's largest retailer," with whom the contractor had several contracts. (McKown, supra, 27 Cal.4th at p. 225, 115 Cal.Rptr.2d 868, 38 P.3d 1094.) It was reasonable to suppose that refusal to use the forklift "would have generated ill will" by resulting in additional expense, chargeable to the owner, as well as delaying the project for at least 24 hours. (Id. at p. 226, 115 Cal.Rptr.2d 868, 38 P.3d 1094.)[2] Nor was liability defeated by the jury's attribution of the majority of fault to the contractor: "[T]he hirer's affirmative contribution to the employee's injuries eliminates the unfairness in imposing liability where the contractor is primarily at fault." (McKown, at p. 226, 115 Cal. Rptr.2d 868, 38 P.3d 1094.)
If the principle of these cases can be stated in a sentence, it appears to be that the liability of a hirer of an independent contractor for injuries to an employee of the contractor cannot be predicated on the contractor's negligence; rather the hirer can only be liable where it injures a worker through its own negligence. Of course this formula does not provide an adequate test by itself, because negligence consists of the breach of a duty of care, and each of the theories rejected in the above cases seems at first blush to involve such a breach of such a duty.[3] However, these cases may be understood, and are perhaps best understood, as resting on the principle that the hirer of an independent contractor has no duty to protect an employee of the contractor from the consequences of the contractor's negligence. Insofar as the plaintiff's injuries result from the contractor's negligence, without any affirmative contribution by the hirer, the latter cannot be found to have violated any duty to the plaintiff.
Here, none of these principles however statedwere shown to apply. Defendants made no attempt to demonstrate that plaintiff's own employerthe independent contractorwas negligent, let alone that its negligence was the sole, or even primary, cause of plaintiff's injuries. Even if such negligence had been shown and shown without substantial controversy *442 the evidence fell far short of establishing that defendants did not affirmatively contribute to plaintiff's injuries. It is undisputed that they undertook to arrange and supply the means and methods of work, including safety systems and devices, which they then withdrew before the work was completed, leaving plaintiff with no safe means of completing the work. There was no evidence that this was done in the expectation that plaintiff's employer could, would, or should make substitute arrangements. It is true that the catenary lines had been removed some two months before plaintiff's injury, but there was no evidence that plaintiff's employer had the opportunity, or would have been permitted, to replace those lines. In any event the failure to do so might not have constituted negligence so long as the hydraulic lifts were present. There is evidence, however, that defendants abruptly removed the lifts the day before the injuries, that they wanted the work finished without delay, and that they might not have permitted a lift to be brought back into the copper gowning room even if one had been obtained. In short the evidence raises the strong possibility, at least, that defendants not only actively contributed to plaintiff's injuries, but actually created the situation in which they were likely to occur. Defendants therefore failed to show that the principles and rationale of Privette, Toland, and Hooker operated to bar liability.
It also bears noting that Privette, Toland, Camargo, and Hooker all concerned theories of liability propounded as exceptions to the "general rule" that a hirer is not liable for the negligence of an independent contractor. (§ 409 ["Except as stated in [following sections], the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants"], italics added.) There is no reason to exempt the hirer from liability under circumstances where a complete stranger would be liable. Nothing in these cases suggests that with respect to its own actual (as distinct from imputed or constructive) negligence, the hirer should enjoy any more freedom from liability to workers on its site than would an invitee or passerby. A hirer must be liable on general tort principles if, for example, he causes foreseeable harm by heedlessly shouting at a contractor's employee, distracting him from some hazardous task in which he is obviously engaged. These cases only excuse the hirer from a duty to protect employees from the negligence of their own employer. Where the hirer breaches a duty arising under general tort principles, nothing in these cases suggests that it may not be liable.
The facts here readily suggest that defendants may be liable under general tort principles for breaching a duty of care arising from their own voluntary endeavor to protect plaintiff and others from injury. "`[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to a duty of acting carefully, if he acts at all.' [Citation.]" (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 613, 76 Cal.Rptr.2d 479, 957 P.2d 1313 (Artiglio), quoting Glanzer v. Shepard (1922) 233 N.Y. 236, 239 [135 N.E. 275, 276].) Thus "one `who, having no initial duty to do so, undertakes to come to the aid of anotherthe "good Samaritan"' has `a duty to exercise due care in performance and is liable if (a) his failure to exercise care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.' (Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137 ..., citing Rest.2d Torts, § 323; see, e.g., Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551, 105 Cal.Rptr. 358, 503 P.2d 1366 ...; see also *443 BAJI No. 4.45 [`A person who is under no duty to care for or render service to another but who voluntarily assumes such a duty, is liable to the other for injury caused by a failure to exercise ordinary or reasonable care in the performance of that assumed duty'].)" (Artiglio, supra, 18 Cal.4th at p. 613, 76 Cal.Rptr.2d 479, 957 P.2d 1313, fn. omitted.)
These principles are summarized in sections 323 and 324A, which provide that a person may be liable for negligently performing a voluntary undertaking to render services for the protection of another.[4] It follows that one may assume a duty of reasonable care by endeavoring to provide safety equipment to another, and may be liable for breach of that duty.[5] Whether such a duty actually arose here, and if so whether it was breached by defendants, need not and cannot be determined on the present record. "[W]hile `[t]he "precise nature and extent" of [an alleged section 324A] duty "is a question of law ... [] it depends on the nature and extent of the act undertaken, a question of fact."' [Citation.] Thus, if the record can support competing inferences [citation], or if the facts are not yet sufficiently developed [citation], `"an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits"' [citation], and summary judgment is precluded. [Citations.]" (Artiglio, supra, 18 Cal.4th at p. 615, 76 Cal.Rptr.2d 479, 957 P.2d 1313.)
Here plaintiff asserted without dispute that defendants provided two systems, at least one of which was manifestly intended for, and both of which had the effect of, protecting plaintiff and other workers from injuries due to falling. Whether defendants furnished these systems gratuitously or out of obligation, once they did so they assumed a duty not to increase the risk of harm to plaintiff either by acting negligently or by inducing reliance which increased the harm.
To be sure, a duty thus voluntarily undertaken is not limitless. A Good Samaritan does not enslave himself eternally to the beneficiary of his undertaking merely *444 by once rendering aid. (See Artiglio, supra, 18 Cal.4th at p. 615, 76 Cal.Rptr.2d 479, 957 P.2d 1313, and cases cited.) Here, however, defendants made no attempt to show that they had disengaged from their undertaking without worsening plaintiff's position or otherwise affirmatively contributing to his injuries. So far as this record shows, there were only two human causes for the injuries at issue: defendants' decision to remove safety devices, and plaintiff's decision to perform his assigned work despite defendants' having rendered it inescapably unsafe to do so. As McKown makes clear, a plaintiff's (or his employer's) negligence does not categorically insulate the employer's hirer from liability where its own negligence affirmatively contributes to the harm. Accordingly, even if the plaintiff's decision to perform the work was negligenta point defendants have failed to establishthe facts before us would afford no basis for summary judgment.
III. Admissible Evidence
Defendants contend that some of the evidence on which plaintiff relies (and the foregoing analysis rests) should not be considered because meritorious objections to it were lodged by them in the trial court.[6] As pertinent here, however, the objections were not meritorious. The only objection bearing on defendants' removal of hydraulic lifts was that certain deposition testimony was "hearsay" insofar as it asserted that defendants "wanted" the lifts removed. This testimony may have lacked a foundation in personal knowledge. (See Evid.Code, § 702.)[7] But it is not hearsay, i.e., "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid.Code, § 1200, subd. (a), italics added.) None of the challenged testimony purported to recount "a statement," let alone to prove what was "stated." If the witnesses had testified to an extrajudicial statement concerning what Turner or Intel "wanted," the testimony might well have come within the hearsay exception for a "statement of the declarant's then existing state of mind [or] emotion ... (including a statement of intent, plan, motive, design, [or] mental feeling ...)...." (Evid.Code, § 1250, subd. (a).) There is no occasion to consider hearsay exceptions, however, because the evidence is simply not hearsay.
Nor is there merit in defendants' argument that any reference to the removal of the catenary anchoring system must *445 be disregarded because plaintiff failed to mention that conduct in his discovery responses. This argument presupposes that a party opposing summary judgment may be precluded from relying on facts that could have been but were not mentioned in response to interrogatories. This premise in turn rests on the "urban legend" that "a responding party has an affirmative duty to supplement responses to interrogatories if and when new information comes into that party's possession...." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1318-1319, 22 Cal.Rptr.3d 282.) There is no statutory duty in California to supplement interrogatory responses. (Id. at p. 1328, 22 Cal.Rptr.3d 282.) Even if plaintiff had violated a duty to supplement his responses it would not ordinarily justify the exclusion of evidence in the absence of a willful violation of an order for disclosure. (Id. at p. 1327, 22 Cal.Rptr.3d 282.) In short, without a demonstration of "discovery abuse," there is no general prohibition against "introducing previously undisclosed evidence in opposition to a summary judgment motion." (Id. at p. 1329, 22 Cal.Rptr.3d 282, fn. omitted.)
Seeking some more solid basis to exclude evidence of the catenary lines, defendants characterized plaintiff's declaration below as "contradictory" of prior testimony insofar as it referred to such lines, and thus barred by a kind of judicial estoppel under Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613, 286 Cal. Rptr. 402. This point is implicitly reiterated on appeal by citation to Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App.4th 935, 961, 62 Cal.Rptr.2d 142, which applied substantially the same principle. But the argument fails of an essential premise, i.e., that plaintiff's declaration contradicted his discovery responses. It disclosed matters not mentioned in those responses, but it was in no sense logically inconsistent with them. The cases cited by defendants prevent parties from avoiding summary judgment by contradicting their earlier, unequivocal admissions, i.e., affirmative statements concerning the events at issue. Here plaintiff made no such earlier affirmative admission.
DISPOSITION
The judgment is reversed.
WE CONCUR: PREMO and ELIA, JJ.
NOTES
[*] Baxter and Chin, JJ., did not participate therein.
[1] All section references are to the Restatement Second of Torts unless otherwise indicated.
[2] It is somewhat difficult to reconcile this conclusion with the majority's final point in Hooker, where it held that liability in that case could not be predicated on the fact that the defendant permitted traffic to use an overpass on which the decedents crane was working, a practice that required retraction of the stabilizing outriggers and led, seemingly directly, to the decedents death. (Hooker, supra, 27 Cal.4th at p. 215, 115 Cal.Rptr.2d 853, 38 P.3d 1081; see id. at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081.) The court concluded that this was not an affirmative contribution to the plaintiffs injuries because the defendant "did not direct the crane operator to retract his outriggers to permit traffic to pass." (Id. at p. 215, 115 Cal.Rptr.2d 853, 38 P.3d 1081.) Under McKown (and, it seems, general tort principles), the question is not whether the defendant commands a certain result but whether he or she foreseeably causes itin this context, whether he or she contributes to it by something more than a failure to intervene in the contractors practices.
[3] Insofar as the duties in question are "nondelegable," they may actually be said to involve a kind of liability without faultor liability based on a kind of constructive fault. It is true that liability for breach of such duties has been distinguished from strict liability. (See Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475, 1482, fn. 9, 2 Cal.Rptr.3d 835, citing Maloney v. Rath (1968) 69 Cal.2d 442, 446, 71 Cal.Rptr. 897, 445 P.2d 513.) The fact remains that under these theories the defendant may be held responsible notwithstanding the absence of any actual heedlessness on his or her part, and indeed after doing everything that could reasonably be expected to avoid the injury. (E.g., Maloney v. Rath, supra, 69 Cal.2d 442, 71 Cal.Rptr. 897, 445 P.2d 513 [the defendant was liable for brake failure despite having just had brakes serviced].)
[4] Section 323 provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if [¶] (a) his failure to exercise such care increases the risk of such harm, or [¶] (b) the harm is suffered because of the other's reliance upon the undertaking."
Section 324A provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if [¶] (a) his failure to exercise reasonable care increases the risk of such harm, or [¶] (b) he has undertaken to perform a duty owed by the other to the third person, or [¶] (c) the harm is suffered because of reliance of the other or the third person upon the undertaking."
These sections state subtly different rules depending on whether the protective undertaking is directed to the injured party or to a third person. (§§ 323, 324A.) Given the procedural posture of this case it scarcely matters which rule is applied, since the evidence fails to conclusively negate the applicability of either.
[5] The term "undertaking" is potentially somewhat ambiguous, since it may refer either to a promise that one will do a thing, or to an actual endeavor or setting-out to do the thing. Both kinds of undertaking can give rise to liability, and both are arguably implicated here. Because defendants plainly embarked on an actual attempt to render services for plaintiff's protection, however, we need not consider whether liability could be predicated on a purely contractual undertaking between an injured plaintiff's employer and the landowner or other person hiring that employer.
[6] Citing Biljac Assoc. v. First Interstate Bank of Oregon (1990) 218 Cal.App.3d 1410, 1419, 267 Cal.Rptr. 819, the trial court expressly "decline[d] to render formal rulings on evidentiary objections," stating that it had "disregarded all inadmissible and incompetent evidence in ruling, as well as immaterial facts and the evidence supporting them." Such an approach is indeed sanctioned by Biljac, but at least two subsequent cases have taken issue with it, suggesting instead that where the trial court fails to expressly rule on objections, all evidence before it must be viewed on appeal as though it had been admitted without objection. (Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 623, 124 Cal.Rptr.2d 556, disapproved on another point in Zamos v. Stroud (2004) 32 Cal.4th 958, 973, 12 Cal. Rptr.3d 54, 87 P.3d 802; see Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236, 114 Cal.Rptr.2d 151.) We need not now address this conflict because the trial court accepted the challenged evidence at face value, implicitly overruling defendants' objections, and because we likewise find the objections meritless.
[7] The testimony might reflect an admissible lay opinion (Evid.Code, § 800), or it might rest on statements by Intel supervisors that would themselves be admissible as vicarious statements by a party opponent (Evid.Code, § 1222). In the absence of a foundational objection there was no occasion to identify the factual basis for the testimony. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326698/ | 154 Ga. App. 272 (1980)
267 S.E.2d 891
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
v.
POSS; and vice versa.
59401, 59402.
Court of Appeals of Georgia.
Argued February 6, 1980.
Decided April 8, 1980.
Daryll Love, Anthony L. Cochran, for appellant.
W. LaRue Boyce, Terence G. Kelly, Douglas N. Campbell, for appellee.
BIRDSONG, Judge.
Contract of insurance. The insured employee, Virgil Poss, was employed by Armour and Company as a truck delivery driver delivering cuts of frozen and/or fresh meat to various customers. Poss' responsibilities included the loading of his truck, the delivery of the meat products to the customers' place of business, and off-loading the meat into the customers' place of business. He was required to drive intrastate and interstate distances, often remaining overnight. The cuts of meat ran in weight from packaged small cuts weighing 20 to 30 pounds a package to sides of beef weighing 160 to 180 pounds. On one of his deliveries, Poss was carrying a side of beef weighing 160 pounds or more into the premises of the customer. While trying to carry the side up some steps onto a loading platform, the weight became overwhelming and Poss fell back approximately two steps. He experienced pain in his back at the time of the fall. The customer then came out and helped Poss carry the meat into the store. Poss continued to experience pain and reported the incident to his employer. Ultimately, Poss was examined by a surgeon who performed a laminectomy. After the operation, Poss remained under the doctor's care and at the time of trial, Poss still had not been released for any kind of income producing work. Armour had called Poss on a couple of occasions and offered him lighter duties, but Poss had not been released by the doctor. The doctor by deposition testified that Poss was permanently disabled to the extent of about 25% and could never return to his work as a truck driver and deliverer of meat products weighing up to 150 pounds and more. However, the doctor stated that when Poss was released back to gainful employment, Poss would be able to perform an appropriate type of lighter labor. A witness called by the insurer, John Hancock Mutual Life Insurance Co., testified as to many different types of occupations that Poss could follow, many of which with additional education or training could earn him more than the approximately $18,000 annual income Poss enjoyed as a driver-deliverer for Armour. Poss as an insured made demand upon the insurer, John Hancock, for disability payments as provided in the contract of insurance. John Hancock, denying liability, refused payment. Poss brought this suit seeking the coverage furnished by the policy, penalties and attorney fees. The trial court refused to direct a verdict for liability in favor of John Hancock but granted a directed verdict to John Hancock on the issue of bad faith penalty, punitive damages and *273 attorney fees. The issue of disability was submitted to the jury upon a series of charges which John Hancock asserts misstated the applicable principles of law. The jury returned a verdict in favor of Poss in the amount of the policy coverage, to wit: $6,000, which was made the judgment of the court. John Hancock then unsuccessfully moved to have the trial court set aside the judgment on liability and grant a partial new trial on the issue of total and permanent disability and alternatively renewed its motion for directed verdict made at the close of the evidence. The trial court denied all these motions. John Hancock brings the main appeal enumerating as error the denial of the motions and portions of the charge of the court. Poss brings a cross appeal complaining of the directed verdict in favor of John Hancock as to bad faith penalties, punitive damages, and attorney fees. Held:
1. As to the main appeal (Case No. 59401), the issue to be considered is not to be confused with collection of workers' compensation. Rather, the issue concerns disability compensation provided by an employer in addition to workers' compensation. The amount of the permanent disability coverage provided for $6,000 payable in twelve or twenty-four installments with the amount dependent upon the period of compensation. The coverage provided was described as follows: "Any Employee who shall furnish the Insurance Company with due proof that he has become totally disabled by bodily injury or disease, and has been continuously prevented thereby from performing any and every duty pertaining to his occupation and presumably will during his lifetime be prevented from pursuing any occupation for wages or profit shall be deemed to be totally and permanently disabled and the insurance hereunder will become available, provided such disability or loss has been sustained before attaining the age of 60."
John Hancock urges that the evidence showing that Poss was only 25% disabled and that he would be able to perform work for wages in the future, established conclusively that Poss had not been permanently and completely disabled as contemplated by the terms of the insurance coverage. In support of its position John Hancock relies upon the case of Mutual Life Ins. Co. v. Barron, 198 Ga. 1 (30 SE2d 879). The trial court in apparent reliance upon the case of Cato v. Aetna Life Ins. Co., 164 Ga. 392 (138 S.E. 787), held that a jury question was presented as to whether Poss was permanently and completely disabled. It is John Hancock's argument that the Supreme Court effectively overruled the Cato case in its decision in Barron. We disagree with the contention that the basic holding in Cato was overruled. A fair reading of Barron shows that Cato was clarified and then ratified as clarified.
*274 In Cato, the policy of insurance contained the following language: "`If total disability of any employee entitled to insurance under the schedule of insurance contained in this policy begins before the age of 60, and if due proof be furnished the company after such disability has existed for a period of six months, and if such disability presumably will during lifetime prevent such employee from pursuing any occupation for wages or profit, such employee shall be deemed to be totally and permanently disabled within the meaning of this policy.'" (P. 393) The policy was implemented by a statement of the employer to the employees by the explanation: "`The policy also provides for the amount of full insurance, subject to the terms of the policy in the event a permanent total disability occurs before the age of sixty. By permanent total disability is meant permanent and total inability to pursue any gainful occupation.'" (P. 394) Cato suffered from tuberculosis and was employed as a weaver in a cotton mill. As the disease became progressively worse, Cato was unable to perform full time work as a weaver. However, up until his final disabling illness, Cato worked at his normal duties as a weaver but at piece work wages and he earned a percentage of his full time salary.
The Supreme Court in discussing "total disability" utilized the following language: "Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he must depend for a living. Total disability is the antithesis of partial disability. One is the opposite of the other. [Cits.] It follows as a necessary consequence that the insurer is not liable as for a total disability when the accident or disease has merely prevented the insured from doing as much in a day's work as before. Such lessened earning capacity may be a case of partial disability, but not a case of total disability. [Cit.] But when the insured is incapacitated from performing any substantial part of his ordinary duties, a case of total disability is presented, although he is still able to perform some parts of his work ... Total disability does not mean absolute physical inability to work at one's occupation, or to pursue any occupation for wages or gain, but it exists if the injury or disease of the insured is such that common care and prudence required him to desist and he did in fact desist from transacting his business." Cato, supra, pp. 398-399. The Cato case was decided in 1927. In 1930, this court in Marchant v. New York Life Ins. Co., 42 Ga. App. 11 (155 S.E. 221) commented further on the inability to pursue "any" vocation. "Common knowledge of the occupations in the lives of men and women teach us that there is scarcely any kind of disability that prevents them from following some vocation or other, except in cases of complete mental inertia. *275 We have examples of persons without hearing, and without sight, following a vocation; some without feet, and some without hands, engaged in business. The achievements of disabled persons are seemingly marvelous. Under defendant's theory, the plaintiff might embark in the peanut trade, or follow the business of selling shoestrings or lead pencils, or follow some similar calling, in which instances, under the rule invoked, there would be no disability within the meaning of the policy. In our opinion, such was not within the contemplation of the parties. In order to carry out the intent of the parties, it is our duty to disregard the broad language used, which would have the effect to defeat the purpose of the contract and render it a nullity." (P. 22)
In 1934, the Supreme Court again addressed the problems presented by a contract of insurance containing this "total disability" coverage. In Prudential Ins. Co. v. South, 179 Ga. 653 (177 S.E. 499) at p. 658, it was stated (and we conform the language to the instant facts): "This being a group policy covering employees of a [meat packer], the insurer necessarily knew that the plaintiff was a [meat packer] employee; and ... it presumably knew that his own particular work was that of [driving a truck interstate and intrastate, requiring the hefting and carrying of cuts of meat ranging in weight from 20 to 180 pounds]. From common knowledge it may also be inferred that the premium rates were based upon the risk assumed. The language of the disability clause shows that it was an abstract or blanket form designed to apply to any person who might take a policy containing such form ... [T]he ... words [lost] their broad expanse and generality when the form became a contract between these parties. The expressions `any occupation' and `any work' were thus converted into words of concrete signification, and should be construed to mean the ordinary employment of the particular person insured, or such other employment, if any, approximating the same livelihood, as the insured might fairly be expected to follow, in view of his station, circumstances, and physical and mental capabilities. [Cits.] If the insured is so incapacitated that substantially all of the material activities of any such employment are reasonably close to him, he is totally disabled within the meaning of the policy." In 1942, the Supreme Court once again examined the interplay of the interpretations of "total disability" contained in Cato and South. In Metropolitan Ins. Co. v. Johnson, 194 Ga. 138 (20 SE2d 761) at p. 141, it was said: "The clear and unmistakable meaning of the rule just quoted is that if any substantially material activities of the employment remain open to the insured, he is not totally disabled within the meaning of the policy, although he is at the same time *276 unable to perform some or even many of the substantial material activities of his employment." Finally in the case relied upon by the appellant John Hancock, the Supreme Court, in 1944 in Mutual Life Ins. Co. v. Barron, supra, when discussing the ruling made in South, supra, at p. 8, stated: "The excerpt ... would clearly imply that, before the insurer would be justified in refusing to continue total-disability payments, it should be made to appear that the insured had regained substantially his entire former earning capacity, whereas under a proper construction of the contract, it would be necessary to show only that he had regained so much thereof as would enable him to perform some substantial part of the duties of his profession or of such other work, if any, approximating the same livelihood, as he might be fairly expected to follow in view of his station, circumstances, and physical and mental capabilities." The Supreme Court continued, at p. 9: "Suffice it to say, however, that both this court and the Court of Appeals have generally sought to avoid the unreasonable and absurd results which would necessarily follow if the language of policies like this one should be given a strict and literal, instead of a practical and reasonable, interpretation. This is what was meant and all that was meant by the statement in the South case, `this court is committed to the more liberal doctrine.'" Finally, the court in Barron, supra, held at p. 12, "The clause under consideration was intended primarily as insurance against loss of earning capacity, and was not necessarily a provision against loss of income."
Applying the above interpretations of contracts involving the same or similar "total disability" provisions, we conclude that the trial court did not err in denying John Hancock's motion for directed verdict on the issue of liability nor in denying the motions for new trial or to set aside the verdict on liability. In this case Poss testified that he had limited education and had worked for all his adult life for Armour. He had trained for a while in the plant but for the several years preceding his injury, his only duties were to load his truck based upon orders given by customers, drive his truck both intrastate and interstate to the business locations of the customers and off-load the meat into the customers' establishments. These packages often weighed up to 180 pounds. As a result of his injury, Poss furnished medical testimony that he could no longer drive a truck, he could not load his truck and could not deliver to his customers' establishments or place the orders in the customers' establishments. All he could do was to handle items that did not weigh more than 20-30 pounds. The testimony offered by John Hancock showed that Poss could be retrained and that after such retraining he could probably enter a vocation that would earn him *277 as much or more than the $18,000 Poss earned as a route man. As we understand John Hancock's argument, it contends that the policy in effect is a protection against a loss of income. Thus, if Poss can be retrained so as to earn as much or more money, he is certainly not totally disabled. But as we read the cases above discussed, the policy was designed to cover Poss' income earned in the occupation as a truck route man. The policy was issued when he was so employed and was designed to insure that his income earned while in that capacity was protected. Perhaps if there had been evidence that Poss substantially performed other duties consistent with driving a truck, and carrying loads up to 180 pounds, and considering his mental, physical and experiential capabilities, then even if Poss could not perform all such duties but could perform substantially those duties, he would not be permanently, totally disabled. However, all that the evidence presented for the jury's consideration established, was that Poss was still unable to work in any capacity as of the time of the suit. And that in the future he would be able to function in some capacity not involving long driving or carrying heavy loads, the occupation he was fulfilling at the time he became insured. All the vocations offered by the expert witness called by John Hancock involved different and unrelated types of work, i. e., dental lab technician, telephone sales, a security officer, cashier, etc. There is no dispute that Poss did desist from his duties as a driver with an extended route involving heavy manual labor and that he cannot resume those duties. The duties of a route man and the suggested retrainable vocations are so dissimilar that it cannot be said that they bear any material relationship, one to another (Metropolitan Life Ins. Co. v. Johnson, supra, p. 143), and therefore, have no relevance to Poss' insurability as a truck driver with the duties described. It follows that the evidence offered by John Hancock was insufficient to raise the issue of nonliability because of partial ability to perform the insured earning capacity. Likewise, it follows that the trial court did not err in failing to direct a partial verdict or in refusing a new trial on that basis.
2. John Hancock enumerates as error four charges of the trial court that in essence informed the jury that total disability means an inability to follow one's usual occupation in a customary and usual manner; that total disability when once shown to exist does not necessarily contemplate that the total disability must continue for the remainder of a person's life; that "permanent" must be construed in the light of the contractual undertaking; and that the words "permanent" and "continuously" though seeming to indicate a lasting condition, when taken in context with other language in the contract of insurance, the fair construction of those words is that *278 the total disability need not last or exist forever. We do not conclude that the charges of the court in these regards were erroneous. As discussed above, total disability is properly considered within the context of the insured's customary and usual vocation. Moreover, the contract did not provide for continuous payments throughout the remainder of the insured's life. Once total disability had been established and continued, the payments were scheduled for a period of twelve or twenty-four months. John Hancock does not contend that if an insured is totally disabled, without question, for more than 24 months and files proper application, it would decline to pay benefits so long as the insured lived so as to ascertain whether at some future time the insured might recover. Likewise, there is no contention that should payments be made and sometime thereafter the insured recover his earning capacity, John Hancock would be entitled to recover the payments because the insured obviously was not permanently and totally disabled. The question of "total and permanent disability" is a question for the jury. Prudential Ins. Co. v. South, supra, p. 659. The charge of the trial court was adjusted to the law and the facts and was not error.
John Hancock also complains that the trial court improperly refused to charge the jury that considering Poss' station, circumstances, and physical and mental capabilities, he could be educated or trained to pursue another occupation for wages that approximated his livelihood from his former occupation as a truck driver; and that if such was shown, that Poss was for that reason not permanently disabled; and that if other occupations approximating Poss' occupation as a truck driver remained open and available to him, then Poss would not be permanently disabled. As indicated in our earlier discussion in Division 1 of this opinion, these requested instructions were not supported by the law and were not adjusted to the evidence as to Poss' actual condition. The trial court did not err in refusing these charges. Seaboard C. L. R. Co. v. Thomas, 229 Ga. 301 (190 SE2d 898); Reynolds v. Reynolds, 217 Ga. 234, 269 (123 SE2d 115); Spain v. Spain, 203 Ga. 411 (2) (47 SE2d 279).
3. In his cross appeal (Case No. 59402), Poss argues that the trial court erred in denying him statutory penalties, punitive damages and attorney fees. As becomes readily apparent to the careful reader of the cases cited in this opinion, there is great difficulty in reconciling the case law as to the issue of liability. Our examination convinces us that the retraining or re-education as contemplated in those cases refers to enabling the insured to return substantially to the occupation (or one similar) and earning capacity he occupied at the time the insured became insured, and not to some unrelated occupation that supplies merely the same or *279 substantially the same income. The judgment of the trial court that there was a significant jury issue as to liability fully supports the conclusion by the trial court that there was no bad faith. As to the recovery of penalties, damages, and attorney fees, a refusal to pay in bad faith means a frivolous and unfounded denial of liability. If there is any reasonable grounds for an insurer to contest the claim, there is no bad faith. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 316 (127 SE2d 454); Ford Motor Credit Co. v. Milline, 137 Ga. App. 585, 591 (224 SE2d 437). There is no merit to this contention by Poss.
Judgments affirmed. Deen, C. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326718/ | 160 Ga. App. 707 (1981)
288 S.E.2d 39
FORD
v.
THE STATE.
63032.
Court of Appeals of Georgia.
Decided November 19, 1981.
Thomas L. Murphy, for appellant.
Robert E. Wilson, District Attorney, Ann P. Mitchell, Assistant District Attorney, for appellee.
QUILLIAN, Chief Judge.
Defendant appeals his conviction for violation of the Georgia Controlled Substances Act by selling cocaine. The facts are set forth in the companion case of Gaither v. State, 160 Ga. App. 705. Held:
1. During the presentation of its evidence the state was permitted to play a tape recording of a telephone conversation between a confidential informant and defendant setting up the alleged sale of drugs. The evidence was presented over objections that one of the speakers was not identified and that there was no showing *708 that the conversation was made freely and voluntarily by both parties. Defendant enumerates as error the playing of the recording and the subsequent refusal of the trial court to admit into evidence the tape itself for submission to the jury.
There was no error in permitting the tape to be played as the evidence shows that the foundation required by Solomon, Inc. v. Edgar, 92 Ga. App. 207 (88 SE2d 167), was met.
Defendant's argument that the tape should not have been played to the jury because no warrant had been obtained in accordance with Code Ann. § 26-3004 is without merit as these objections were not raised at trial. Alleged grounds for the exclusion of evidence cannot be raised for the first time on appeal. King v. State, 139 Ga. App. 246 (2) (228 SE2d 172); Collins v. State, 146 Ga. App. 138 (1) (245 SE2d 488). Moreover, where, as in this case, one party to a telephone conversation directly in furtherance of a crime, consents to the recording of the conversation, no warrant is required. Code Ann. § 26-3006 (Ga. L. 1968, pp. 1249, 1333); Cross v. State, 128 Ga. App. 837 (2) (198 SE2d 338); Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509).
Also without merit is defendant's enumeration that the court erred in not admitting the tape itself after the recording was played to the jury. The tape was excluded on defendant's objection and its admission would have added nothing as the contents of it were already before the jury.
2. The trial court did not err in failing to require the disclosure of the identity of the confidential informant. The defendant testified that he knew who the informant was, had known him for 17 years, and stated his name several times. "We find no error under these circumstances, as defendant was well aware at trial of the identity of the person he now complains he was prevented from discovering. [Cit.]" Moore v. State, 158 Ga. App. 342 (280 SE2d 170).
3. The trial court's failure to charge on the defense of entrapment was not error. The charge was not requested nor was entrapment in issue, as defendant denied the commission of the offense. See Sullivan v. State, 139 Ga. App. 640 (1) (229 SE2d 119).
The contention that the trial court erred in not requiring a hearing to disclose the identity of the informant so that defendant and his counsel could decide whether to use the defense of entrapment has no merit. The defendant knew who the informant was, and defendant's testimony denying the commission of the crime forecloses consideration of any such contention.
4. The fourth enumeration asserts error because defendant's character was improperly placed in issue by the testimony of two police witnesses and a comment made by the district attorney. *709 Pretermitting whether defendant's character was placed in issue, there is no merit in this enumeration as no objection was made on this basis at trial. Such objections not raised at trial cannot be raised on appeal. See cases cited in the first division of this opinion.
5. Defendant claims error because no transcript was made of the district attorney's alleged prejudicial closing argument. Code Ann. § 27-2401 does not require that such a transcript be made, and there is nothing in the record to show that defendant requested that one be made. Code Ann. § 6-805 (f); Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779). Therefore, there is nothing for us to rule on. Montgomery v. State, 140 Ga. App. 286 (2) (231 SE2d 108).
6. There was no error in the trial court failing to sever defendant's trial from that of the co-defendant, as the record shows that no request or motion for severance was made by defendant. A motion for severance was made by the co-defendant but defendant has no standing to raise it on appeal. Ingram v. State, 137 Ga. App. 412 (2) (224 SE2d 527).
7. The remaining enumeration claims that defendant was denied effective assistance of counsel because his counsel did not elect to investigate or raise the defense of entrapment. There is nothing in the record to support this assertion. To the contrary, defendant's testimony denying his commission or presence at the scene of the offense left his counsel with no evidence upon which to base such a defense. See Third Division, supra. We find no merit in this enumeration.
Judgment affirmed. McMurray, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326710/ | 275 S.C. 100 (1980)
267 S.E.2d 536
Leland T. AKERS and Mae H. Akers, Appellants,
v.
Bobby Dean HARD, a minor of the age of three (3) years and South Carolina Department of Social Services, Respondents.
21252
Supreme Court of South Carolina.
June 18, 1980.
Edward J. Dennis, IV, of Dennis, Dennis & Watson, Moncks Corner, and Randall M. Chastain, Columbia, for appellants.
Jane A. McFaddin, Columbia, for respondents.
June 18, 1980.
HARWELL, Justice:
Appellants Leland T. and Mae H. Akers appeal from an order granting a demurrer to their petition for adoption. We affirm.
*101 Appellants were notified by the respondent South Carolina Department of Social Services in May of 1978 that they had been approved generally as adoptive parents but not as adoptive parents for Bobby Dean Hard for whom they were then foster parents. To qualify as foster parents, the appellants signed a contract with respondent agreeing that the child assigned could be removed on sufficient notice whenever either party determined the child's best interests so required.
The parental rights of Bobby's natural parents were terminated on July 21, 1978, and the respondent Department acquired custody and authority to consent to adoption. On July 28, 1978, respondent sent notice to the appellants that Bobby was to be removed from their home on August 5, 1978. Appellants then began this action by obtaining an ex parte rule to show cause and temporary restraining order. At the show cause hearing the court took all matters under advisement and continued the temporary order until a hearing on the merits of the petition could be held. Succinctly put, the petition asks the court to issue its decree of adoption. Among the allegations contained in the petition is one stating that the respondent has unreasonably and arbitarily withheld consent to adoption in derogation of the best interest of the child.[1] Prior to any further action, respondent filed its demurrer. The court granted the demurrer and dissolved the temporary order.
This court stated in Sease v. City of Spartanburg, 242 S.C. 520, 131 S.E. (2d) 683 (1963) that:
*102 "It is elementary that in passing upon a demurrer, the Court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. A demurrer admits the facts well pleaded in the complaint but does not admit the inferences drawn by the plaintiff from such facts. Costas v. Florence Printing Co., 237 S.C. 655, 118 S.E. (2d) 696. A demurrer to a complaint does not admit conclusions of law pleaded therein. Gainey v. Coker's Pedigreed Seed Co., 227 S.C. 200, 87 S.E. (2d) 486."
See also, Red Oak Lands, Inc. v. Lane, 268 S.C. 631, 235 S.E. (2d) 718 (1977); Greneker v. Sprouse, 263 S.C. 571, 211 S.E. (2d) 879 (1975).
Appellants' bare assertion that respondent agency has arbitrarily and unreasonably withheld consent is not a factual allegation but is merely a conclusion of law. The appellants have not stated facts from which even an inference can be drawn that the discretionary decision of the respondent agency amounted to unreasonableness or arbitrariness. It is axiomatic that no cause of action is stated absent sufficient allegations of facts. The granting of the demurrer by the trial judge was therefore proper.
Affirmed.
LITTLEJOHN and NESS, JJ., concur.
LEWIS, C.J., and GREGORY, J., dissent.
LEWIS, Chief Justice (dissenting):
As postured by the majority, the sole question is whether or not appellants' petition states a cause of action. The demurrer is upheld on the ground that the complaint states only conclusions of law. I think that the majority opinion disregards material factual allegations of the petition, which, when considered, clearly state a cause of action. I, therefore, dissent.
*103 The petition alleged that the infant involved, now about six years of age, had been in their custody as his foster parents for a period of eighteen (18) months; that appellants had been approved by the respondent as eligible adoptive parents and they had applied for the adoption of the child; and that although respondent had the authority to consent to the child's adoption, respondent had failed to grant such consent and now seeks to take custody from appellants. It is further alleged that the best interests of the child would be served by granting the relief sought. The action of respondent, in withholding consent to the adoption by appellants, is described as unreasonable and arbitrary.
Despite the contention of the majority otherwise, the allegations, that appellants have had custody and care of the infant for eighteen (18) months, that respondent had approved them as adoptive parents, and that the actions of respondent in now attempting to take custody from them is not in the best interest of the child, are factual and are adequate to withstand demurrer.
Furthermore, even assuming the petition contained only a conclusion of law as claimed by the majority, its defect should not have been remedied by the granting of a demurrer. We have a long-standing principle, to which I would adhere, that:
Generally, pleadings are demurrable where conclusions of law are set forth therein in lieu of pleadable facts; and denials based thereon are insufficient to tender an issue. Yet, where a pleading is defective in this respect, and such defect can be reached by a motion to make it more specific, the objection cannot be taken by demurrer. Athanas v. City of Spartanburg, 196 S.C. 19, 12 S.E. (2d) 39. (Emphasis added.)
Although the majority does not address the issue of standing, I would hold that these foster parents who have custody of the child have standing to bring this action.
I respectfully dissent.
GREGORY, J., concurs.
NOTES
[1] Adoptions in South Carolina are purely statutory; the process by which an adoption takes place is determined by the General Assembly. When an agency acquires custody of a child with the right to consent to adoption, statutory law provides that there can be no adoption without the consent. Section 15-45-70 S.C. Code Ann. (1976) in pertinent part states:
"An adoption of a child may be decreed when there have been filed written consents to adoption executed by:
(d) The executive head of an agency ... if the rights of the parents have been judicially terminated and custody of the child had been legally vested in such agency with authority to consent to adoption of the child; or ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326715/ | 154 Ga. App. 54 (1980)
267 S.E.2d 495
BROOKS
v.
DOUGLAS et al. DEERE & COMPANY
v.
BROOKS et al. DOUGLAS
v.
BROOKS et al.
58866, 58867, 58868.
Court of Appeals of Georgia.
Argued October 30, 1979.
Decided March 19, 1980.
Jesse G. Bowles, III, L. Earl Jones, for appellant (Case No. 58866).
Edmund A. Landau, Jr., Frank S. Twitty, Sr., Joseph W. Crooks, for appellees.
Joseph W. Crooks, Edmund A. Landau, Jr., for appellant (Case No. 58867).
Jesse G. Bowles, III, L. Earl Jones, Frank S. Twitty, Sr., for appellees.
Frank S. Twitty, Sr., for appellant (Case No. 58868).
Jesse G. Bowles, III, L. Earl Jones, Edmund A. Landau, Jr., for appellees.
SOGNIER, Judge.
These companion cases arose out of the same case below and can be decided in one opinion. On March 5, 1973 the plaintiff, O. R. *55 Brooks, sustained injuries to himself and his van when he was involved in a collision with a tractor operated by the defendant, Gurry Douglas, and manufactured by the defendant, Deere & Company. Plaintiff originally filed an action alleging negligence by the defendants in Baker County on April 18, 1974 but voluntarily dismissed that action on March 3, 1975. Plaintiff filed a second action in DeKalb County on March 3, 1975, naming F. N. McNair, the owner of the tractor, Gurry Douglas, the driver of the tractor and an employee of McNair, Deere & Company, and John Deere Company, manufacturers of the tractor, as joint tortfeasors. John Deere Company was the only resident of DeKalb County. The action in DeKalb County was involuntarily dismissed on the merits as to John Deere Company on April 26, 1977 and dismissed as to the other defendants on July 28, 1977 because of lack of jurisdiction of the nonresident defendants. A third suit was filed on September 2, 1977 against Douglas and Deere & Company in Baker County. Both Douglas and Deere & Company filed motions for summary judgment based on their claims that (1) the statute of limitation had run on both the personal injury claim and the property damage claim and (2) the evidence showed no genuine issue as to any material fact. The trial court denied defendants' motion for summary judgment based on the statute of limitation, but granted the motion based on the merits of the case. Defendants appealed the former while plaintiff appealed the latter. We affirm the trial court's judgment as to the statute of limitation, but reverse the grant of summary judgment on the merits.
1. The issue raised by defendants Douglas and Deere & Company on cross appeal is whether the plaintiff's suit is barred by the statute of limitation. Code Ann. § 3-808, the Renewal Statute, controls. It provides: "If a plaintiff shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section." This section applies to involuntary as well as voluntary dismissals, so long as the grounds for dismissal do not adjudicate the merits. Clark v. Newsome, 180 Ga. 97 (178 S.E. 386) (1934); Chance v. Planters Rural Tel. Cooperative, 219 Ga. 1, 4 (131 SE2d 541) (1963); Moore v. Tootle, 134 Ga. App. 232, 234 (214 SE2d 184) (1975).
Code § 3-808 is meant to apply to save a case from the statute of limitation when it attaches pending the suit. Rudolph v. Underwood, 88 Ga. 664, 672 (16 S.E. 55) (1981). There is no limitation as to the number of times a suit may be brought and *56 dismissed, so long as the statute of limitation does not attach. Williford v. State, 56 Ga. App. 840, 849 (194 S.E. 384) (1937); Whalen v. Certain-Teed Products Corp., 108 Ga. App. 686, 687 (134 SE2d 528) (1963); Moore v. Tootle, supra, 233. The trial court properly applied Code § 3-808 to this case since the first suit was brought and dismissed in Baker County before the statute had run, the second suit was brought in DeKalb County before the statute had run, and the third suit was brought in Baker County within the statutory six months after dismissal.
On cross appeal, the defendants contend that the suit brought in Baker County following the dismissal of the defendants from the DeKalb County suit was barred by the statute of limitation because the DeKalb County suit was void ab initio as to defendants Douglas and Deere & Company and therefore did not toll the statute. We cannot agree with this contention.
The suit in DeKalb County was brought against Douglas, McNair, Deere & Company and John Deere Company as joint tortfeasors. The Georgia Constitution provides that suits against joint tortfeasors residing in different counties may be tried in either county. Art. VI, Sec. XIV, Par. IV, Ga. Const., Code Ann. § 2-4304. It is not essential that the joint tortfeasors owed the same duty or should be guilty of the same act of negligence. It is sufficient if each owed a separate and distinct duty to the person injured, provided only that the separate acts of negligence concurred in proximately causing the injury. Lansky v. Goldstein, 136 Ga. App. 607, 608 (222 SE2d 62) (1975); Albany Coca-Cola Bottling Co. v. Shiver, 63 Ga. App. 755, 758 (12 SE2d 114) (1940). It is undisputed that the DeKalb County trial court dismissed the suit as to Douglas, McNair, and Deere & Company after entering judgment only as to John Deere & Company the resident defendant and alleged joint tortfeasor, on the merits of the case. There is nothing in the record to indicate that the trial court in DeKalb County lacked jurisdiction over the resident defendant, John Deere & Company, and therefore, over the nonresident defendants. Davis v. Waycross Coca-Cola Bottling Co., 60 Ga. App. 390, 394 (3 SE2d 863) (1939). Once the suit was adjudicated in favor of the defendant John Deere & Company, the DeKalb County trial court lost jurisdiction over the nonresident defendants. Steding Pile Driving Corp. v. John H. Cunningham & Assoc., 137 Ga. App. 165, 166 (223 SE2d 217) (1976); Thornhill v. Bullock, 118 Ga. App. 186 (162 SE2d 886) (1968); Henry v. Mann, 134 Ga. App. 522 (215 SE2d 286) (1975). In such a case, the suit in DeKalb County cannot be regarded as void ab initio. The filing of the suit tolled the statute of limitation for the purposes of Code Ann. *57 § 3-808. Atlanta, Knoxville &c. Co. v. Wilson, 119 Ga. 781, 786 (47 S.E. 366) (1904). The statute did not begin to run again until the nonresident defendants were dismissed. Plaintiff could then properly renew his action in Baker County under Code Ann. § 3-808 within six months from the dismissal of the suit in DeKalb County. Moore v. Tootle, supra; Covil v. Stansell, 113 Ga. App. 179 (147 SE2d 479) (1966).
2. After ruling that the case was not barred by the statute of limitation, the trial court granted summary judgment in favor of the defendants on the merits of the case. Brooks appeals from that judgment.
Brooks alleged negligence on the part of the defendants in the operation, design and manufacture of the tractor involved in the collision. He stated that he was blinded by bright white lights on the tractor operated by defendant Douglas, but that he (Brooks) immediately slowed down and pulled over to the right side of the road. The defendants contend that the sole proximate cause of the collision was Brooks' failure to exercise ordinary care when he ran into the tractor. The trial court found, as a matter of law, that Brooks was guilty of gross negligence in the operation of his vehicle. However, negligence is a question of fact, to be determined by a jury.
The trial court relied on Davis v. Akridge, 199 Ga. 867, 868 (36 SE2d 102) (1945), which held: "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. [Cits.] And he is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him." However, Davis was not decided on a motion for summary judgment, but after a trial of the case, and thus, is not applicable here.
Where a party to a case, upon whom the burden of proof upon the trial of the case does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, is construed most strongly against the movant. Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552 (181 SE2d 866) (1971). See also Lansky v. Goldstein, supra; Colonial Stores, Inc. v. Turner, 117 Ga. App. 331 (160 SE2d 672) (1968); Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). But where a party is intentionally or deliberately self-contradictory, the court may be justified in taking against him that version of his testimony which is most unfavorable to him. Chambers v. Citizens &c. Nat. Bank, 242 Ga. 498, 502 (249 SE2d 214) (1978).
*58 The record does not disclose an intentional or deliberate attempt by the plaintiff to confuse or mislead the court. Upon consideration of the record and the order of the trial court, it appears that the plaintiff offered inconsistent testimony in his affidavits and depositions. Such inconsistencies may weaken plaintiff's case at trial but do not, as a matter of law, entitle defendant to summary judgment. The Supreme Court in Chambers, supra, applied the strict rule regarding intentional or deliberate self-contradictions and resolved the conflicts in the plaintiff's testimony against him, where the plaintiff deliberately testified to his insolvency during a stated period of time on one occasion, and later testified that he was not insolvent during that same period. The fact of his insolvency was verified by other evidence so it was clear the plaintiff was deliberately contradicting his former testimony and no genuine issue of material fact remained.
In the instant case the plaintiff's testimony as to what he did prior to colliding with the tractor is not wholly consistent on every occasion. However, the inconsistencies in his testimony, even if resolved against him, do not eliminate all factual issues in the case. Several issues of material fact remain, such as whether the action taken by plaintiff when "blinded" by the bright lights was reasonable under the circumstances; whether the defendant Douglas negligently operated the tractor with the bright lights on; whether the defendant Deere & Company negligently manufactured the tractor with said lights. The trial court foreclosed any deliberation by the jury on these issues in its decision.
Questions of negligence, including the related issues of assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence, are not ordinarily susceptible of summary adjudication whether for or against the plaintiff or the defendant; but must be resolved by a jury. Shuman Supply of Savannah v. Skinner, 128 Ga. App. 431, 433 (197 SE2d 152) (1973); Hanchey v. Hart, 120 Ga. App. 677, 680 (171 SE2d 918) (1969); Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (174 SE2d 178) (1970).
One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care. In plain and palpable cases, it will be so held as a matter of law; otherwise, questions as to such negligence as well as other questions of negligence by the parties, and as to the proximate cause of the injury, present issues for the jury. North DeKalb Little League v. Holland, 119 Ga. App. 439, 440 (168 SE2d 169) (1969); Carroll Elec. Membership Corp. v. Simpson, *59 106 Ga. App. 29 (126 SE2d 310) (1962); Laseter v. Clark, 54 Ga. App. 669, 670 (189 S.E. 265) (1936). In order for the court to rule as a matter of law that plaintiff's alleged contributory negligence is the proximate cause of the collision, the observed approaching danger must be so near or rapid in approach as to render the act of the plaintiff a manifestly foolhardy act, such as would not be undertaken by an ordinarily prudent person. Laster, supra, 670. It cannot be said that the acts of the plaintiff in slowing down and moving on to the shoulder of the road when "blinded" by what appeared to be a vehicle approaching him from the other direction was a manifestly foolhardy act. This is not a plain or palpable case of negligence on the part of the plaintiff. This issue, as well as other issues of negligence in the case should have been left to the jury.
Judgment reversed in Case No. 58866; affirmed in Cases Nos. 58867 and 58868. Banke, J., concurs. McMurray, P. J., concurs in the judgments only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2206658/ | 319 N.W.2d 414 (1982)
In re the Marriage of Debbie PETERSON, etc., Petitioner, Respondent,
v.
Terry PETERSON, Appellant.
No. 81-943.
Supreme Court of Minnesota.
May 21, 1982.
Chalupsky, Nyberg & Hawkinson, Grand Rapids, for appellant.
Weber & Henrichsen, Grand Rapids, for respondent.
Considered and decided by the court en banc without oral argument.
AMDAHL, Chief Justice.
Terry Peterson appeals from the August 19, 1981, order of the Itasca County District Court relating to his visitation rights and support obligations to the parties' two minor children and to a promissory note executed by the parties.
It is our view that the trial court did not abuse its broad discretion in increasing the appellant's support obligation from $150 per month to $300 per month per child and that, further, there is ample evidentiary support for the determination that $4,000 remained as an unpaid balance under the promissory note. In addition, the district court has fashioned a reasonable method of insuring that the appellant will be able adequately to exercise his visitation rights.
However, included in the provision increasing child support is the imposition by the district court of the additional obligation that the appellant contribute to the minor children's support until each child reaches the age of majority and thereafter until each child enrolled in a postsecondary educational institution either completes the program or reaches the age of 22 years, whichever event occurs first. While the parties to this action could have agreed by stipulation that the father would bear the cost of education of the children beyond the age of majority, the court is not authorized to impose such an obligation. See LaBelle v. LaBelle, 302 Minn. 98, 115, 223 N.W.2d 400, 410 (1974). The parties' stipulation expressed an intention that support only be paid until each child reaches the age of 18. Therefore, to the extent that the order of the trial court imposes such an obligation, it is reversed.
Affirmed in part; reversed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262356/ | 618 A.2d 153 (1992)
DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, Appellant/Cross-Appellee,
v.
Landon G. DOWDEY, Appellee/Cross-Appellant.
Nos. 90-CV-361, 90-CV-514.
District of Columbia Court of Appeals.
Argued December 17, 1990.
Decided December 30, 1992.
*155 Robert Vieth, with whom Stephen Colangelo was on the brief, for appellant/cross-appellee, District of Columbia Redevelopment Land Agency.
Marya C. Young, for appellee/cross-appellant, Landon G. Dowdey.
Before TERRY, STEADMAN, and WAGNER, Associate Judges.
WAGNER, Associate Judge:
The District of Columbia Redevelopment Land Agency (RLA) appeals from a judgment of the trial court holding that RLA deprived appellee, Landon G. Dowdey (Dowdey), of just compensation for his attorney's lien on real property which RLA acquired on behalf of the government by eminent domain, and awarding Dowdey a judgment for $56,601.16 with interest at the rate of six percent per annum from March 29, 1973. Appellee cross-appeals from the denial of his requests for interest at prevailing market rates and attorney's fees.
On appeal, RLA contends that the trial court erred in entering judgment for appellee because: (1) the District of Columbia does not recognize attorney's liens, and the lien, if any, did not attach before RLA took the property; and (2) res judicata and collateral estoppel principles bar appellee's claim against RLA. In his cross-appeal, appellee contends that the trial court erred *156 in applying the statutory interest rate instead of the rates which would provide just and reasonable compensation for his interest. We hold that: (1) appellee acquired an attorney's lien by contract prior to condemnation of his client's property which transferred to the funds deposited by RLA into the registry of the court at the commencement of the condemnation proceeding; (2) although on notice of appellee's claim, RLA failed to join him in the proceeding as required by statute as a result of which appellee was not compensated for his property; (3) appellee/cross-appellant is not entitled to attorney's fees; and (4) appellee/cross-appellant is entitled to a determination of the amount of interest which will compensate him for the property taken. Therefore, we affirm the judgment of the trial court, except for its ruling on the amount of interest awarded and remand for consideration of the question consistent with this opinion.
I.
The events out of which the present controversy arises commenced in early 1972. William C. and Sofrona Baylies (the Baylies) retained Dowdey to resist foreclosure on their real property located at 1711-14th Street, N.W. in the District of Columbia until the anticipated condemnation of the property by RLA. It is undisputed that the Baylies and Dowdey made an oral agreement for attorney's fees under the terms of which the Baylies were to pay appellee one-third of the equity in the 14th Street property which Dowdey either preserved or recovered on their behalf.[1] On April 24, 1972, Dowdey filed an action in the Superior Court of the District of Columbia on behalf of the Baylies to prevent foreclosure on the property.[2] Dowdey's efforts were successful in that foreclosure was delayed until RLA filed suit for condemnation of the property in the United States District Court for the District of Columbia.[3] In accordance with the condemnation statute, RLA deposited into the court registry $290,000 "to the use of the persons entitled" for 1711-14th Street, N.W., representing the estimated fair compensation.[4]
The same day that RLA filed suit, Dowdey filed an action in the United States District Court for the District of Columbia against the Baylies seeking a declaration and enforcement of an attorney's lien against the Baylies' equity in the property.[5] Although RLA knew of Dowdey's claim in the property, it never joined him as a party in the condemnation proceeding.[6] On March 29, 1973, the District Court ordered release of the $290,000 deposited by RLA to Shenandoah Land Title Company (Shenandoah), purportedly the authorized agent for Title Insurance Company of Minnesota (Minnesota Title). The order required Shenandoah to distribute the proceeds for payment and discharge of "all taxes, assessments, *157 liens and encumbrances against the property on the date of taking" and the redemption of any tax sales thereof, with the balance to be paid over to the parties entitled to it. Dowdey did not receive any money for his claim.
Two years later, on April 4, 1975, the district court entered judgment for Dowdey against the Baylies in the amount of $56,601.16, representing the amount of Dowdey's "attorney's lien against the sum deposited in the Registry of the Court in lieu of property condemned ..."[7] The district court (J. Gasch) made the following finding of fact in that action which is pertinent to the arguments on appeal:
[Dowdey] is entitled to an attorney's lien against defendant's equity in premises 1711-14th Street, N.W., in the amount of Fifty-six Thousand and Six Hundred One Dollars and sixteen cents ($56,601.16).
The court also found that the funds deposited by RLA for the property were disbursed without payment to Dowdey, although the defendants had actual notice of Dowdey's claim.[8] The Baylies never paid the judgment, and Dowdey filed other actions in an effort to collect the fee.
On August 3, 1976, Dowdey sued RLA's title insurance company, Minnesota Title, in the United States District Court for the District of Columbia, alleging that Minnesota Title wrongfully disbursed the proceeds of the condemnation funds without paying Dowdey even though it was on notice of Dowdey's suit to declare and enforce an attorney's lien.[9] Following a trial by the court, the district court entered judgment for Minnesota Title in 1980, finding that Dowdey failed to establish that Minnesota Title authorized Shenandoah to disburse the condemnation proceeds from the 14th Street property and that Shenandoah had acted on behalf of the Baylies, rather than Minnesota Title, in making the disbursement. Pertinent to arguments raised on appeal by RLA, the district court in its Memorandum Opinion (J. Parker) also rendered the following interpretation of Judge Gasch's order in Dowdey v. Baylies:
Judge Gasch did not view Dowdey's claim as a charge or encumbrance against the 14th Street property. Rather, he found that a lien attached to the Baylieses' [sic] share of the proceeds in accordance with the parties' agreement and therefore rendered a money judgment against Baylies and his wife.
Dowdey appealed from the judgment in the Minnesota Title litigation. The United States Court of Appeals for the District of Columbia Circuit affirmed the trial court's decision,[10] stating in its unpublished order:
Substantially for reasons stated by the District Court, we agree with the result reached in this case. In particular, we find no solid ground for disturbing the District Court's conclusion that (1) appellant Dowdey's lien attached to the Baylies' share of the condemnation proceeds rather than to the property that was the subject of the condemnation proceedings,...
Thus, Dowdey was unable to recover the amount of his lien from Minnesota Title.[11]
*158 On March 27, 1987, Dowdey filed the complaint in Superior Court against RLA out of which the present appeal arises. The case was tried by the court on stipulated facts. The trial court determined that Dowdey had an equitable lien on the property which was perfected before RLA's condemnation action and that RLA deprived appellee of his property without just compensation by failing to join him in the condemnation proceeding pursuant to Fed.R.Civ.P. 71A(c)(2). The trial judge accepted as the law of the case the ruling of the motions judge on RLA's motion to dismiss and Dowdey's motion for summary judgment, which determined the following:
1) [d]efendant had been under a legal duty to join [p]laintiff in the condemnation;
2) [p]laintiff had an equitable lien on the equity of the real property at issue here under District of Columbia law and accordingly [p]laintiff had a right of recourse against the [d]efendant regardless of his possible recourse against the title company;
3) [p]laintiff's claim was timely filed because the applicable statute of limitations is fifteen years and;[12]
4) [d]efendant could adduce at trial all evidence to support his claimed equitable defenses.
The trial court determined that appellee had a lien on the property which transferred to the fund when deposited into the court registry by RLA. Noting that Baylies' equity was cut off as soon as the funds were deposited, the trial court concluded that neither the decision in Dowdey v. Baylies nor that in the Minnesota Title litigation precluded a suit against RLA for wrongfully cutting off Dowdey's perfected equitable lien on the 14th Street property. Since appellee claimed an interest in the property, the trial court determined that Dowdey should have been joined in the condemnation proceedings pursuant to Fed. R.Civ.P. 71A(c)(2).
II.
Appellant RLA argues that Dowdey cannot prevail on his claim against RLA for compensation because there was no attorney's lien on the property at the time RLA acquired it. The principal reasons advanced by RLA for its position are that: (1) under the law of the District of Columbia, an attorney's lien does not attach to the client's real property for fees for services rendered by the attorney to secure title or protect the client's property; and (2) Dowdey had no interest in the land at the time RLA acquired title. Dowdey contends he did not claim that he acquired a lien on the real property by reason of the mere performance of legal services. Rather, Dowdey argues that his lien for a contingent fee was created by an express agreement with his clients and that such a lien is cognizable under local law. Dowdey contends that the filing of his lawsuit against his former clients to enforce the lien after the condemnation proceeding does not defeat the attachment of the lien upon the land which was created by agreement prior to condemnation and that RLA's deposit of funds into the court registry simply transferred his lien to the fund, which is in equity treated as the land. See Mayor, Etc., of Hagerstown v. Groh, 101 Md. 560, 61 A. 467, 469 (1905). Thus, Dowdey asserts, the trial court properly concluded that RLA was required to join him as a party in the condemnation proceeding when it learned of his claim and to compensate him for it. The trial court agreed and concluded as a matter of law that RLA had a duty to join Dowdey "who[ ]possessed an equitable interest in the fund in lieu of the property" *159 and that "[RLA] deprived him of that interest without due process."
III.
The District of Columbia has no statute providing for attorney's liens; therefore, their creation or existence are governed by common law rules. Elam v. Monarch Life Ins. Co., 598 A.2d 1167, 1168 n. 2 (D.C.1991). Such liens are recognized and enforceable in the District of Columbia. Id. at 1171. If a client "`sufficiently indicates an intention to make some particular property or fund a security for a debt or other obligation', an equitable lien is created `on the property so indicated.'" Id. (quoting DeWinter v. Thomas, 34 App.D.C. 80, 84 (1909), cert. denied, 215 U.S. 609, 30 S.Ct. 411, 54 L.Ed. 347 (1910); see also Pink v. Farrington, 67 App.D.C. 314, 315, 92 F.2d 465, 466 (attorney's lien created on fund not in possession when underlying contractual basis exits, not merely performance of legal services leading to judgment), cert. denied, 302 U.S. 741, 58 S.Ct. 143, 82 L.Ed. 572 (1937)). Where it reasonably appears that the attorney and client by contract looked to a particular fund or source for payment of a contingent fee, this court has recognized an equitable lien against the property as intended by the parties. See Elam, 598 A.2d at 1171; see also Continental Casualty Co. v. Kelly, 70 App.D.C. 320, 322, 106 F.2d 841, 843 (1939). The principle applies whether the particular property involved is real or personal property. Ingersoll v. Coram, 211 U.S. 335, 368, 29 S.Ct. 92, 100, 53 L.Ed. 208 (1908); Walker v. Brown, 165 U.S. 654, 664, 17 S.Ct. 453, 457, 41 L.Ed. 865 (1897).
In Continental Casualty, appellees/attorneys agreed to bring an action in the District of Columbia on behalf of their client to recover an amount owed to the client. In return for their services, the parties agreed the attorneys would be paid a one-third contingent fee out of any judgment obtained. The appellate court followed its earlier decision in Kellogg v. Winchell, 51 App.D.C. 17, 20, 273 F. 745, 748 (1921) in concluding that the contract "gave the attorney an interest in the cause of action," which was "in the nature of an equitable lien." Continental Casualty, 70 App.D.C. at 322, 106 F.2d at 843. The court explained:
[i]t is clear from the agreement that from the time of its making there was a distinct appropriation of the fund by the client and an agreement that the attorneys should be paid out of it. This ... creates rights different from those which arise when the attorney looks to the personal responsibility of the client for payment of the fee.... This right is a contract lien and even if, as has been suggested, the lien is inchoate before judgment, it relates back and takes effect from the time of the commencement of the suit and is, therefore, superior to rights of set off which arise subsequently.
Id.
Principles determinative of the outcome of this case can also be extracted from Barnes v. Alexander, 232 U.S. 117, 34 S.Ct. 276, 58 L.Ed. 530 (1914), upon which the trial court relied to find that Dowdey had an equitable lien on the 14th Street property. In Barnes, an attorney instituted an action for an accounting of property received in a settlement of certain mining suits which Barnes helped to achieve. The client had agreed to pay Barnes one-fourth of the property recovered and, upon settlement, Barnes sued to enforce the agreement. Barnes had retained appellees, also attorneys, to assist with the client's claim, promising them one-third of the one-fourth contingent fee Barnes and his colleagues would receive if the case were concluded successfully. Appellees intervened in Barnes' accounting suit for their one-fourth contingent fee. The Arizona Supreme Court determined that the contract between the attorneys created a lien in the fund in appellees' favor in the amount agreed upon and that intervention in Barnes' suit against the owners of the mining rights was a proper way to enforce the lien. The Supreme Court affirmed, holding that the agreement to pay a contingent fee out of a certain fund constitutes a lien upon the fund the moment the fund is received. 232 U.S. at 121, 34 S.Ct. at 277. *160 The court started with the principle "that an informal business transaction should be construed as adopting whatever form consistent with the facts is most fitted to reach the result seemingly desired." Id. at 120, 34 S.Ct. at 277. The critical point, the court concluded, was not whether the parties used words of contract instead of words of conveyance, but rather the scope of the parties' contract. Id. at 121, 34 S.Ct. at 277.
In this case, RLA challenges whether the oral contract between Dowdey and the Baylies created a lien on the property before it was condemned. While RLA disputes that Dowdey ever had a lien on the real property, it did not dispute the factual underpinnings of the parties' contract which gave rise to the legal conclusion that Dowdey had such a lien. The undisputed facts are that the Baylies hired Dowdey upon an oral contract to preserve the subject property from foreclosure until it could be condemned; that Dowdey was successful in doing so; and that Dowdey was to be paid from the equity recovered or preserved in the property. See note 1 supra. The Baylies' equity in the property was preserved by Dowdey by his filing of an action in April 1972 in the Superior Court of the District of Columbia, thereby forestalling foreclosure until RLA took the property by condemnation, thus avoiding foreclosure permanently. Appellant had performed fully under the contract, and all that remained to be done was for payment to be made from the equity preserved in the property.
The record evidence of the parties' agreement is sufficiently clear to support the finding of an equitable lien on the Baylies' property under these facts and the principles distilled from the cases discussed above. See also Wardman v. Leopold, 66 App.D.C. 111, 115, 85 F.2d 277, 281, cert. denied, 299 U.S. 570, 57 S.Ct. 33, 81 L.Ed. 420 (1936). Once condemnation actually occurred, the attorney's lien attached no later than the time when the property was condemned, and the lien created relates back to the commencement of the action by the attorney which preserved the property for its owners until condemnation. Barnes, supra, 232 U.S. at 121, 34 S.Ct. at 277; see Continental Casualty, supra, 70 App.D.C. at 322, 106 F.2d at 843. Therefore, the trial court properly concluded that Dowdey acquired an equitable lien on the property which transferred to the fund deposited into the court by RLA. See D.C.Code § 16-1366 (money deposited into the court's registry by the condemnor stands in lieu of the property condemned).
IV.
A review of some of the statutory provisions and rules under which RLA acquired the property is helpful to an understanding of appellant's second argument, i.e., that Dowdey had no enforceable lien because he filed suit against his former clients for the fee after RLA acquired title. RLA exercised its authority to condemn the property by eminent domain for redevelopment on behalf of the United States. D.C.Code § 16-1352. When RLA filed its complaint and declaration of taking and paid the estimated compensation specified in the declaration into the court registry, title to the property in fee simple vested absolutely in the government, and the right to just compensation vested in the persons entitled thereto. Id. § 16-1353. The statute provides:
The money so paid into the registry of the court shall be deemed to be vested in the persons owning or interested in the property, according to their respective estates and interest, and the money shall take the place and stand in lieu of the property condemned. The court, upon the application of the plaintiff or any party in interest, may determine and direct who is entitled to receive payment of the money so paid into the registry, and, in its discretion, order a reference to the auditor of the court or a special master to ascertain the facts on which the determination and direction are to be made.
D.C.Code § 16-1366. Thereafter, upon application of the parties in interest, the court may order that the money deposited, or any part of it, be paid forthwith for or on account of the just compensation to be *161 awarded in the proceeding.[13] D.C.Code § 16-1354; Fed.R.Civ.P. 71A(j). "Payment into the registry of the court for the use of the parties entitled of the sum adjudged to be just compensation for the property to be condemned and taken, ... constitutes payment of the compensation." D.C.Code § 16-1366.
RLA argues that it was not put on notice of Dowdey's claim by the doctrine of lis pendens,[14] and that Dowdey never acquired a lien on the property which is enforceable against RLA because Dowdey filed his action against the Baylies to enforce the lien after RLA acquired title. We reject these arguments for several reasons. First, Dowdey's lien attached "the moment the fund was received ... as if made at that moment." Barnes, supra, 232 U.S. at 121, 34 S.Ct. at 278. Moreover, as the court stated in Barnes:
[i]t is not necessary to consider whether the lien attached to what we have called the res, before the fund was received, as a covenant to set apart rents and profits creates a lien upon the land.... It is enough that it attached not later than that moment.
Id. at 122, 34 S.Ct. at 278. Here, Dowdey had an agreement for payment out of the equity of the property, and therefore a lien upon the land which attached by agreement prior to RLA's condemnation suit. Dowdey's lien in the property was "transferred to the fund which in equity is treated as the land." Groh, supra, 61 A. at 469.
Appellee does not challenge that title vested in the government and that all liens, including his attorney's lien, were extinguished when RLA filed the declaration of taking and deposited the funds into the Registry of the Court. See D.C.Code § 16-1353. However, Dowdey's rights were transferred to the fund deposited by RLA to the use of those entitled thereto not only by equitable principles, see Groh, supra, 61 A. at 469, but also by statute. D.C.Code § 16-1353 (1967). While the attorney's lien on the real property might not have been enforceable against a purchaser without notice prior to the purchasing,[15] the rights of lienholders about whom the condemnor learns prior to the hearing on compensation are protected. If it learns of a lienholder or claimant after the initial filing of the condemnation proceeding, the condemnor is obligated to join them as parties. RLA is required to join initially only those persons whose names it knows who have or claim an interest in the property. Rule 71A(c)(2). However, prior to any hearing on compensation, RLA is obligated to add as defendants "all persons having or claiming an interest in [the] property whose names can be ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired, and those whose names have otherwise been learned." Id.; Washington Metropolitan Area Transit Authority v. One Parcel of Land, 169 U.S.App.D.C. 109, 112, 514 F.2d 1350, 1353 (1975). The right to just compensation vests in those entitled to it, and that right is not restricted to lienholders about whom the condemnor has notice on the date of filing the complaint. D.C.Code §§ 16-1353, -1366; see Fulcher v. United States, 632 F.2d 278, 281-82 (4th Cir.1980). Thus, the doctrine of lis pendens and the fact that Dowdey filed suit asserting his claim of a lien after RLA filed its complaint for condemnation, do not result in Dowdey's right to compensation for *162 the lien acquired prior to that date being cut off.
RLA actually learned of Dowdey's claimed interest in the property on or about January 29, 1973, well prior to the release of the proceeds of condemnation. "[I]t is not necessary that a person actually own an interest in the parcel to be properly joined as a defendant in a condemnation action. A person is properly joined if he claims such an interest." United States v. 88.28 Acres of Land, 608 F.2d 708, 712 (7th Cir.1979). Once RLA learned of Dowdey's claim of an interest in the property, it was obligated to join him as a party to the proceeding relating to that property. "There can be no just compensation, as the Constitution requires, if the fund is dispersed [sic] to the wrong persons." Id. at 714. Therefore, "no distribution [of the fund] should be ordered unless and until all persons made defendants by the petition or shown by testimony in the case to be interested in the fund, have been duly notified and are actually or constructively present before the court." United States v. Certain Parcels of Land, 40 F.Supp. 436, 442-43 (D.Md.1941).
Here, Dowdey claimed a lien by filing suit the same day as RLA filed the condemnation complaint. Although on actual notice of that interest, RLA failed to join Dowdey. It is irrelevant under the facts of this case that Dowdey filed his suit to enforce his lien against the Baylies subsequent to the time that RLA filed the condemnation suit and deposited the funds into the Registry of the Court. Under Rule 71A(c)(2), RLA was required to join all those known to claim an interest up to the time of the compensation hearing, which occurred in 1974. RLA's failure to join Dowdey deprived him of his rights to be paid for his attorney's lien.[16] The consequences of a condemnor's failure to join a known interested party can result in double payment. United States v. 88.28 Acres of Land, supra, 608 F.2d at 716. Barring some other viable bar to the claim, Dowdey is entitled to recover from RLA.
V.
Appellant argues that issue preclusion or collateral estoppel principles bar Dowdey's claim that he had a lien on the property. Appellant's argument is based upon the Minnesota Title litigation. In that case, Dowdey sued Minnesota Title on the theory that Minnesota Title's agent, Shenandoah, disbursed the proceeds from the condemnation suit without honoring his lien. The U.S. District Court found that Dowdey had failed to establish that Shenandoah was authorized by Minnesota to disburse the proceeds of condemnation from the 14th Street property. It found that Shenandoah was a policy writing agent for Minnesota and that Shenandoah was authorized only to solicit title insurance business, countersign policies, and collect premiums. The district court also found that Shenandoah's vice-president, Frank Marsalek, a private attorney who handled closings and settlement *163 on real estate transactions, acted in that capacity on behalf of the Baylies, from whom he received compensation, and that he did not act as agent for Minnesota Title. Accordingly, the court found that Dowdey was not entitled to recover the amount claimed for the lien from Minnesota. Appellant also contends that Minnesota Title defended in the trial court and on appeal on the ground that Dowdey had no lien on the property. According to appellant, the United States Court of Appeals rejected Dowdey's lien theory when affirming the decision. Therefore, RLA argues that Dowdey cannot relitigate that question because of issue preclusion principles.
Collateral estoppel may bar relitigation of an issue of fact or law actually litigated and determined by a valid and final judgment in another proceeding, whether on the same or a different claim. Ali Baba Co., Inc. v. WILCO, Inc., 482 A.2d 418, 421 (D.C.1984) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 27); Jackson v. District of Columbia, 412 A.2d 948, 952 (D.C.1980). A question is actually litigated when properly raised by the pleadings and submitted and decided by the court. Ali Baba, 482 A.2d at 422.
A review of the ruling in the Minnesota Title case in context shows that the question of whether Dowdey had a lien on the equity in the property, as distinguished from the proceeds of condemnation, was not actually litigated in the Minnesota Title case.[17] To the extent it was addressed at all, it was only to resolve that Dowdey's attorney's lien attached to the proceeds of the condemnation funds. Although not essential to the court's ruling, in Minnesota Title the trial court purported to paraphrase the ruling in the prior action between Dowdey and the Baylies. In doing so, the court stated that the prior court (J. Gasch) had not viewed "Dowdey's claim as a charge or an encumbrance against the 14th Street property. Rather, [the court] found that a lien attached to the [Baylies'] share of the proceeds in accordance with the parties' agreement and therefore rendered a money judgment against Baylies and his wife." We do not read the decision in Minnesota Title as altering the decision rendered by the court in Dowdey v. Baylies. In the latter case, the court clearly found that Dowdey had a lien on the Baylies' equity which necessarily transferred to the fund when all liens were extinguished by condemnation. See D.C.Code § 16-1366 (1967). Neither the opinion in the Minnesota Title litigation nor the per curiam opinion affirming it resolved again the question of how Dowdey's lien on the proceeds arose, and resolution of the issue was not necessary to decide the case. Therefore, appellant's argument that the decision in Minnesota Title collaterally estopped Dowdey from litigating his claim against RLA in this case must fail.
Appellant also argues that Dowdey's claim against RLA is barred by res judicata because Dowdey has already lost a claim against RLA's title insurer. Under the doctrine of res judicata, the same parties are barred from relitigating the same claim in a later law suit. Gilles v. Ware, 615 A.2d 533, 538 (D.C.1992); Washington Medical Center, Inc. v. Holle, 573 A.2d 1269, 1280-81 (D.C.1990). The doctrine also applies to those in privity with parties to the prior suit. Usher v. 1015 N Street, N.W. Coop. Ass'n, 120 A.2d 921, 922-23 (D.C.1956). Privity has been defined in this context in the following manner:
The term privity denotes a mutual or successive relationship to the same rights of property. Agents and principals do not, as such, have any mutual or successive relationship to rights of property and therefore are not ordinarily in privity with each other. Further, no party is, as a general rule, bound in a subsequent proceeding by a judgment unless the adverse party now seeking to secure the benefit of the former adjudication would be prejudiced by it if it were to be determined the other way.
*164 Id. at 922. Application of the doctrine depends upon the circumstances involved; therefore, the issue must be determined in light of the circumstances in each case. See id. at 923. Where privity exists and the issue to be tried is identical as against both principal and agent, the doctrine of res judicata applies to bar subsequent litigation. Id. at 923.
In this case, Minnesota Title was RLA's title insurer for purposes of insuring title to the property. There was no mutual or successive relationship to the same rights of property between Minnesota Title and RLA. Rather, the company acted as title insurer only, taking no part in disbursing the funds. On the particular facts of this case, we do not find that the requisite circumstances exist to conclude that privity existed. Therefore, res judicata does not apply. Moreover, as noted previously, the Minnesota Title litigation did not dispose of the question of whether Dowdey had an attorney's lien in the equity of the Baylies' real property.
VI.
Dowdey also challenges the trial court's judgment limiting the award of interest to a six percent statutory rate. The trial court relied on D.C.Code § 16-1353(b) (1989) which provides: "the judgment shall include, as part of the just compensation awarded, interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from that date to the date of payment." While the statute appears to set a maximum limit on interest as an element of compensation, such a provision has been interpreted as a floor for sound reasons. Where the government takes property by eminent domain, it is required to pay just compensation under the Fifth Amendment. United States v. 125.2 Acres of Land, 732 F.2d 239, 244 (1st Cir.1984); Miller v. United States, 223 Ct. Cl. 352, 620 F.2d 812, 837 (1980). Even absent a statute, the right to interest attaches automatically to the right of an award of damages arising out of condemnation. Miller, 620 F.2d at 837. The statutory rate may be used if the court determines that it is reasonable and fair. Id. Thus, where statutes set a rate of interest as just compensation for condemnation awards, courts have interpreted it to be a floor. Washington Metropolitan Area Transit Authority v. One Parcel of Land, 706 F.2d 1312, 1323 (4th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 238, 78 L.Ed.2d 229 (1983); United States v. 125.2 Acres of Land, supra, 732 F.2d at 245 (citing United States v. Blankinship, 543 F.2d 1272 (9th Cir.1976)); United States v. 319.46 Acres of Land, 508 F.Supp. 288 (W.D.Okla.1981). In keeping with the constitutional requirement of just compensation, it is the only reasonable approach.
Apparently viewing itself to be bound by the amount specified in the statute, the trial court rejected appellee's request for interest at higher rates. A determination of the proper rate of interest is a question of fact and its ultimate determination requires an exercise of discretion. Miller, supra, 620 F.2d at 837. Since the trial court deemed itself to be restricted to a six percent rate in making the award, we must reverse that aspect of its ruling for consideration in light of this opinion.
VII.
Finally, Dowdey contends that he is entitled to recover attorney's fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 42 U.S.C. §§ 4601-4655 (1983). He argues that the act provides reasonable attorney's fees in inverse condemnation cases. See id. § 4654(c). It has been recognized that "recovery of litigation expenses under the Uniform Relocation Act is appropriate only in inverse condemnation cases and is not appropriate in condemnation cases or in cases where property is legislatively taken." Miller, supra, 620 F.2d at 840 n. 29 (emphasis in original). Inverse condemnation is the description of a proceeding where "`a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.'" Agins v. Tiburon, 447 U.S. 255, 258, 100 S.Ct. 2138, 2140, *165-169 65 L.Ed.2d 106 (1980) (quoting United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980)). Given this definition, it appears that it is not. The government acquired the property by a condemnation proceeding, but it failed to secure payment to Dowdey by joining him in the original action. In proceeding by condemnation, title vested indefeasibly in the United States pursuant to statute. D.C.Code § 16-1353. When the government acquires title without payment of just compensation, the remedy is an award for same and discharge of the equitable lien. Fulcher, supra, 632 F.2d at 278, 284-85. Therefore, we do not regard this proceeding as strictly one of inverse condemnation. Accordingly, the trial court properly concluded that appellant was not entitled to attorney's fees since there was no statutory basis for same.
For the foregoing reasons, we affirm the decision of the trial court except with respect to the interest question. We remand for consideration of the amount of interest which would constitute compensation consistent with the law as set forth in this opinion.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] Dowdey had similar fee arrangements with the Baylies for legal services relating to other properties. Appellant asserts in its reply brief that there is no record evidence of the contract. At trial, however, RLA's counsel not only stipulated to the facts supporting the existence of the oral agreement, but also that Dowdey was successful in resisting the foreclosure. While appellant does not argue that the statute of frauds bars appellee's claim, we note that it has been held that while "[a] mere oral agreement to mortgage land ... is within the statute of frauds, ... where the obligee has fully performed his part of the agreement by furnishing the consideration for which the mortgage was to be given, that objection does not lie and the promise or contract has effect as an equitable mortgage." 1 SYMONS, POMEROY'S EQUITY JURISPRUDENCE § 1237 at 704 (5th ed. 1941).
[2] See 1711 14th Street, Inc. v. Providence Savings and Loan Assoc., et al., C.A. No. 3059-72.
[3] D.C.R.L.A. v. Two Parcels of Land, C.A. No. 162-73 (January 29, 1973).
[4] See D.C.Code § 16-1353 (1967). Unless otherwise indicated, all citations to the eminent domain statute are to the 1967 edition of the D.C.Code under which the condemnation occurred.
[5] Dowdey v. Baylies, C.A. No. 163-73.
[6] RLA did name Dowdey as a party in the condemnation proceeding in his capacity as trustee for a second property located at 1719-14th Street, N.W., which was also the subject of the action. RLA conceded at trial below that it should have joined Dowdey as a defendant in the action with respect to the condemnation of the 1711-14th Street, N.W. property.
[7] See Dowdey v. Baylies, supra note 5. The parties have stipulated that the balance due on Dowdey's fee claim is $53,532.40. On remand, the trial court should amend the principal amount it ordered appellant to pay to comply with this stipulation.
[8] The defendants in Dowdey v. Baylies, et al., were William C. and Sofrona Baylies, Kennon Bryan, who was sued as co-trustee to satisfy certain technical requirements, and Seventeen-Eleven Fourteenth Street, Inc., a corporation controlled by the Baylies in which the property was titled.
[9] Dowdey v. Title Insurance Company of Minnesota, et al., C.A. No. 76-1441.
[10] Dowdey v. Title Insurance Company of Minnesota, 672 F.2d 893 (D.C.Cir.1981).
[11] Appellee filed three motions in the U.S. District Court to compel restoration of the funds into the registry. The first motion, which was filed on July 24, 1974 against the Baylies, their corporation, Shenandoah's president, and Minnesota Title, was denied without prejudice to the filing of a subsequent motion after the amount, if any, of the lien was determined in Dowdey v. Baylies. The second motion, filed on October 2, 1975, sought to compel Seventeen-Eleven Fourteenth Street, Inc., Minnesota Title, Shenandoah, and their agents to pay Dowdey. The court denied the motion without prejudice to refiling after disposition of pending appeals (apparently the appeal in Dowdey v. Baylies). Dowdey filed a supplemental motion to compel payment on March 10, 1976, but the court dismissed it, agreeing with defendants that Dowdey should pursue an independent action to satisfy his alleged lien. Dowdey appealed from the ruling, but he voluntarily dismissed the appeal.
[12] The motions judge found that Dowdey's suit was based on an equitable lien on the real property under District of Columbia law. Therefore, the court held that the fifteen year statute of limitations applied and Dowdey's claim was not barred. See D.C.Code § 12-301(1) (1989). Appellant does not challenge on appeal the trial court's ruling on the statute of limitations question.
[13] Within the meaning of the Fifth Amendment, "just compensation" means the "full and perfect equivalent in money of the property value." United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336 (1943).
[14] Lis pendens is a common law doctrine which has the effect of constructive notice. First Md. Fin. Servs. Corp. v. District-Realty Title Ins. Corp., 548 A.2d 787, 791 (D.C.1988). Under the doctrine, "`nothing relating to the subject matter of the suit could be changed while it was pending and one acquiring an interest in the property involved therein from a party thereto took such interest subject to the parties' rights as finally determined[,] and was conclusively bound by the results of the litigation.'" Id. (quoting 8 THOMPSON ON REAL PROPERTY § 4308, at 331 (1963 Repl.)).
[15] Walker v. Brown, supra, 165 U.S. at 664, 17 S.Ct. at 457 (lien on real or personal property created by agreement enforceable against third parties who take with notice of the agreement).
[16] We also reject appellant's argument that Dowdey waived any objection to RLA's failure to join him in the condemnation proceeding because Dowdey's attorney was present at the valuation hearing in March 1974, a year after the funds had been disbursed, and informed the court that he was an observer and had no real interest in it. The attorney also told the court he was there for Dowdey as trustee of another property. We cannot glean from the record whether the attorney was authorized to represent Dowdey with respect to the property involved in this appeal. Appellant has not provided a sufficient transcript for a determination of whether the attorney's comments could or did waive Dowdey's rights. See Cobb v. Standard Drug, 453 A.2d 110, 111 (D.C.1982) (appellant has a duty to present a record sufficient to show error occurred). Appellant does not argue before us any other theory of waiver by Dowdey. Appellant does argue that Dowdey had knowledge of the existence of the condemnation action, apparently suggesting that Dowdey should have intervened in the action despite not having been served. The Federal Rule itself, however, requires that the government shall add as defendants all persons known to claim an interest in the property "prior to any hearing involving the compensation to be paid." There is no record evidence, however, that Dowdey knew of the petition to release the funds nor of the order of the trial court of March 29, 1973 prior to the disbursal of the funds. Moreover, RLA has already conceded that it should have joined Dowdey in the action relating to the 1711-14th Street property. See supra note 6. We perceive no basis to overturn the trial court's rejection of appellant's estoppel defenses against appellee.
[17] In Dowdey v. Baylies, the district court found as fact that Dowdey was entitled to an attorney's lien against the equity in the Baylies' real property and found as a matter of law that in lieu of same, Dowdey was entitled to a lien on the sum on deposit in the court registry. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262361/ | 618 A.2d 128 (1992)
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant,
v.
NELLO L. TEER COMPANY, Appellee.
No. 90-SP-1516.
District of Columbia Court of Appeals.
Argued June 25, 1991.
Decided December 18, 1992.
*129 Roy T. Englert, Jr., with whom Kenneth S. Geller, Toquyen T. Truong, Robert L. Polk, Arnold I. Melnick, and Thomas B. Dorrier, Washington, D.C, were on the brief, for appellant.
Richard G. Mann, Jr., with whom John B. Tieder, Jr., Robert K. Cox, and Julian F. Hoffar, McLean, VA, were on the brief, for appellee.
Before TERRY, FARRELL and WAGNER, Associate Judges.
TERRY, Associate Judge:
This case presents three questions of District of Columbia law which have been certified to us under D.C.Code § 11-723 (1989) by the United States Court of Appeals for the District of Columbia Circuit. Among the issues raised in the appeal to the Circuit is whether there can be an implied contractual duty arising under a 1974 construction contract obligating the Washington Metropolitan Area Transit Authority (WMATA) to avoid unreasonable delays in processing "equitable adjustment" claims, the breach of which entitles an aggrieved contractor to pre-judgment interest on that adjustment. Noting that this was an unresolved issue of local law, the Circuit, following the procedures prescribed by D.C.Code § 11-723(c), issued an opinion setting forth the facts relevant to the questions certified and the nature of the controversy. Nello L. Teer Co. v. WMATA, 287 U.S.App.D.C. 260, 921 F.2d 300 (1990). We conclude, after reviewing pertinent statutes and case law, that any award of pre-judgment interest against WMATA in a case such as this is barred by District of Columbia law.
I
After competitive bidding, WMATA awarded a construction contract on May 7, 1974, to Nello L. Teer Company (Teer). The contract provided for the construction of the Clarendon subway station in Arlington, Virginia, at an estimated contract price of $29,664,702. The contract contained a clause providing for "equitable adjustments" whenever WMATA's modifications of the contract increased or decreased the contractor's performance cost. WMATA also agreed in the contract to obtain the required access easements before construction would begin.
Teer was advised to proceed with construction because all necessary permits and easements had been obtained, although in fact some of the easements had not been obtained by the time Teer was ready to begin work. Because of the easement problems, a design change had to be made, delaying the project by 194 days. All work under the contract was accepted as complete as of August 19, 1977.
Shortly thereafter, Teer sought equitable adjustments for seventeen claims, sixteen of which were eventually resolved. The seventeenth claim asserted that WMATA's delay in obtaining the necessary easements caused Teer to incur more than $8 million in additional costs. This claim was reviewed by a resident engineer, who recommended an adjustment of $592,814, representing costs that he found to be properly attributable to WMATA's delay. WMATA agreed with the recommendation and on November 16, 1979, adjusted the contract price by that amount. On December 4, 1979, Teer appealed this decision to the Board of Contract Appeals of the Army Corps of Engineers (the Board), which in due course held an evidentiary hearing.[1]
On September 30, 1986, five years after the evidentiary hearing and nearly seven years after the filing of the appeal, the Board issued its advisory opinion. By this *130 time Teer's claims had escalated to more than $12 million. The Board rejected the majority of these claims, making numerous findings of fact and concluding that the record demonstrated unmistakably that the delays were caused by events not attributable to WMATA. The Board specifically found incredible the testimony of Teer's consultant regarding the delays. The Board also found that "the Contracting Officer's unilateral adjustment here is at the lower end of the possible range" and therefore increased the equitable adjustment by $138,937. After observing that "[f]or many reasons, none of which can be ascribed to Teer, the disposition of this appeal has consumed an unusually long period of time," the Board awarded Teer an "additional profit" of $58,870. This amount was determined by calculating six percent of $138,937 per annum from the date the appeal was filed (December 4, 1979) until the date of the Board's decision (September 30, 1986). This "additional profit" award is the subject of the instant litigation.
The General Manager of WMATA, who had final decision-making power under the contract, substantially adopted the Board's advisory opinion, allowing the $138,937 increase in the equitable adjustment. She disallowed the "additional profit," however, after finding that the sum represented pre-judgment interest and that WMATA, as "an interstate agency, formed by compact with congressional consent," was immune from such an award unless interest was specifically authorized by statute or by contract. Teer sought review of this decision in the United States District Court for the District of Columbia, challenging both the adequacy of the equitable adjustment and the General Manager's refusal to pay pre-judgment interest on the Board's increase in the adjustment.
The District Court rejected Teer's challenge to the adequacy of the Board's award, but held its ruling on the pre-judgment interest issue in abeyance pending the outcome of WMATA's petition for rehearing en banc in the United States Court of Appeals in a different case in which a Board award of pre-judgment interest had been upheld by the court. In that case, General Railway Signal Co. v. WMATA, 277 U.S.App.D.C. 287, 875 F.2d 320 (1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990) ("GRS II"), the court ruled that an equitable adjustment clause "imports into the contract a doctrine mandating a make-whole remedy that will restore a contractor to the contractor's prechange circumstances." Id. at 294, 875 F.2d at 327. Thus the GRS II court concluded that WMATA had waived its immunity from pre-judgment interest.
Five days after GRS II was decided, but before the District Court issued its decision in the instant case, this court held in yet another case that the term "equitable adjustment" in a 1968 contract to which the District of Columbia was a party was not meant to include the payment of interest for sums withheld for nearly ten years. District of Columbia v. C.J. Langenfelder & Son, Inc., 558 A.2d 1155 (D.C.1989). The District Court, while acknowledging that the Langenfelder court had rejected the analysis of GRS II, nevertheless reversed the General Manager's decision and reinstated The Board's award of $58,870 in pre-judgment interest, on the ground that interest may be awarded when there is an unreasonable delay in payment.
Both parties appealed from the decision of the District Court. After briefing and argument, the United States Court of Appeals for the District of Columbia Circuit found that the appeal "raises an unresolved question of local law" and certified three questions to this court.[2]Nello L. Teer Co. v. WMATA, supra, 287 U.S.App.D.C. at 261, 921 F.2d at 301. The certified questions are:
*131 1. Under the law of the District of Columbia, can there be an implied contractual duty arising under a 1974 construction contract obligating WMATA to avoid unreasonable delays in processing equitable adjustment claims, the breach of which would entitle the contractor to an award of pre-judgment interest?
2. If a delay in processing an equitable adjustment claim does not justify an award of pre-judgment interest under question (1), can D.C.Code § 15-109 furnish an independent basis for such an award?
3. If pre-judgment interest may be awarded pursuant to issue (1) or (2), does the trial court have discretion in limiting an interest award, or must the court as a matter of law either (i) award interest from the time the claim is first submitted to WMATA or (ii) award interest only for the period of the unreasonable delay?
Id. at 265-266, 921 F.2d at 305-306. Because we answer the first two questions in the negative, we do not reach the third.
II
At the outset, we note that Teer's claim against WMATA must be characterized as one which arises under the contract rather than one for breach of contract. Teer is attempting to enforce the contract provision for equitable adjustments. "When the contract makes provision for the equitable adjustment of particular claims, such claims may be regarded as converted from breach of contract claims to claims for relief under the contract." United States v. Utah Construction & Mining Co., 384 U.S. 394, 404 n. 6, 86 S.Ct. 1545, 1552 n. 6, 16 L.Ed.2d 642 (1966); Langenfelder, supra, 558 A.2d at 1159; District of Columbia v. Savoy Construction Co., 515 A.2d 698, 701-702 (D.C.1986). Therefore, the nature and scope of any relief to which Teer may be entitled are controlled by the contract itself. Crown Coat Front Co. v. United States, 386 U.S. 503, 511 (1967); Langenfelder, supra, 558 A.2d at 1159.
Also as a preliminary matter, we note that in this case the award of "additional profit" has been correctly interpreted as an award of pre-judgment interest. The Supreme Court has taught us that changing the terminology does not change the basic nature of an award, and that we must look to the nature of the award, rather than its label, in deciding whether it is allowable. Thus the Court has rejected awards of pre-judgment interest when a government contract required payment of "amount equitably due," Tillson v. United States, 100 U.S. 43, 46, 25 L.Ed. 543 (1879), "just compensation," United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49, 71 S.Ct. 552, 552, 95 L.Ed. 738 (1951); United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 589, 67 S.Ct. 398, 400, 91 L.Ed. 521 (1947),[3] or "costs," Library of Congress v. Shaw, 478 U.S. 310, 321, 106 S.Ct. 2957, 2965, 92 L.Ed.2d 250 (1986).
Thus we are presented with the issue of whether pre-judgment interest can be awarded against WMATA under a 1974 contract, absent a specific contractual or statutory provision for such an award. We hold that it cannot.[4]
*132 III
In Langenfelder, supra, this court was asked to decide whether, under the law of the District of Columbia, a contractor was entitled under a "changes" clause to recover interest for delays in the resolution of contract disputes with the government. The court held that the term "equitable adjustment" in a 1968 contract did not include the payment of interest on sums owed by the District to Langenfelder for costs incurred by Langenfelder in 1969 and 1970 but not paid to Langenfelder until 1980. Tracing the history of the longstanding prohibition against awards of pre-judgment interest against the government, the court observed that it was not until 1978 that Congress passed a statute which removed the former federal bar to claims for such interest.[5] The Langenfelder court concluded that a party "cannot claim the benefit of an albeit enlightened 1978 legislative change and the resulting judicial interpretations for construction of its 1968 contract." 558 A.2d at 1163. While acknowledging that "equity might mandate a different outcome," the court refused to grant interest for "delays in the resolution of contract disputes with the government." Id. at 1159. "This is not an equitable action; it is an action under the contract. Equitable considerations have no bearing upon the validity of the Board's determination [not to award interest]." Id. at 1163.
We conclude that the circumstances surrounding the formation of the Teer-WMATA contract in this case place it squarely within the boundaries of Langenfelder. In holding that a court must honor the intentions of the parties as reflected in the settled usage of the terms they accepted in the contract, the Langenfelder court commented that it was without "roving discretion to reform the contracts of informed and sophisticated parties." Id. at 1163. Here, as in Langenfelder, there is no specific provision in the contract authorizing an award of interest, and the Contract Disputes Act, which eliminated the presumption against pre-judgment interest, had not yet been enacted when Teer and WMATA entered into their contract in 1974. Langenfelder, moreover, specifically rejected the argument that the plaintiff "was entitled to interest because it was deprived of the use of its money while the contract disputes mechanism ran its course" despite a long delay. Id. at 1161. Because "courts and administrative tribunals [in 1974] consistently construed interest claims against the contractor," id. at 1163, we conclude that the term "equitable adjustment" could not have encompassed a claim for interest such as that which Teer now advances. On the facts before us, we find Langenfelder controlling as to this issue.
The Langenfelder court found support for its position in the decisions of several federal courts. Id. at 1160. Federal precedents decisively reject the award of pre-judgment interest on an "unreasonable delay" theory. As WMATA points out, at least two Supreme Court decisions refer specifically to the "unreasonably delayed" status of government payments as an insufficient basis for an award of pre-judgment interest. United States v. New York Rayon Importing Co., 329 U.S. 654, 660, 67 S.Ct. 601, 604, 91 L.Ed. 577 (1947); Tillson v. United States, supra, 100 U.S. at 47. Other courts likewise have refused to award pre-judgment interest based on delay, even lengthy delay, in payment by the government. See United States v. James, 301 F.Supp. 107, 132 (W.D.Tex.1969) ("It is axiomatic that interest on claims against the United States, even where payment has been unreasonably delayed, does not follow automatically upon the allowance of the claim"); accord, Gray v. Dukedom Bank, 216 F.2d 108, 110 (6th Cir.1954); Muenich v. United States, 410 F.Supp. 944, 947 (N.D.Ind.1976). In 1987 the United States Court of Appeals for the Federal Circuit denied interest on an equitable adjustment claim filed twenty years earlier, despite the acknowledged "harshness" resulting from the "time that the current case has been pending." Gevyn Construction Corp. v. United States, 827 F.2d 752, 754 (Fed.Cir. 1987).
*133 We conclude that under the law in effect during the making of a contract of this vintage, pre-judgment interest was unavailable unless a specific contract provision authorized it. The courts cannot circumvent the contractual limits by reading into a contract such as this one an implied promise to pay pre-judgment interest on the basis of "unreasonable administrative delay."
IV
We next consider whether D.C.Code § 15-109 affords an independent basis for an award of pre-judgment interest. Section 15-109 provides:
In an action to recover for breach of contract the judgment shall allow interest on the amount for which it is rendered from the date of the judgment only. This section does not preclude the jury, or the court, if the trial be by the court, from including interest as an element in the damages awarded, if necessary to fully compensate the plaintiff. [Emphasis added.]
By its own terms, this statute is applicable only in breach of contract cases, whereas this case is one arising under the contract. See Utah Construction & Mining Co., supra, 384 U.S. at 404 n. 6, 86 S.Ct. at 1551 n. 6; Langenfelder, supra, 558 A.2d at 1159; District of Columbia v. Savoy Construction Co., supra, 515 A.2d at 701-702. The Supreme Court has rejected the notion that a claim based on the inadequacy of an equitable adjustment would be one for breach of contract. See United States v. Utah Construction & Mining Co., supra, 384 U.S. at 420, 86 S.Ct. at 1559 (labeling the refusal of an equitable adjustment as a breach of contract does not change the nature of the claim); see also Morrison-Knudsen Co. v. United States, 170 Ct.Cl. 757, 763, 345 F.2d 833, 837 (1965) (claim based on inadequacy of an equitable adjustment is not a claim for breach of contract).
Teer suggests that this court "has held in a number of decisions that Section 15-109 applies to actions other than breach of contract actions," citing House of Wines, Inc. v. Sumter, 510 A.2d 492 (D.C.1986), and Edmund J. Flynn Co. v. LaVay, 431 A.2d 543 (D.C.1981). Teer's reliance on those cases is misplaced. They hold only that section 15-109 can apply to breach of contract actions whether the agreement breached is implied or express; they do not address other types of actions. House of Wines, supra, 510 A.2d at 499; Edmund J. Flynn Co., supra, 431 A.2d at 548-550.
Because this is a case arising under the contract rather than an action for breach of contract, we conclude that D.C.Code § 15-109 is inapplicable and therefore cannot provide an independent basis for an award of pre-judgment interest.
V
Finally, we have been asked to determine the period of time during which interest would accrue. Because there is no need to answer this question unless at least one of the first two certified questions is answered in the affirmative, and because we have answered both in the negative, we do not address the third question.
We hold that District of Columbia law will not support an award of pre-judgment interest based on any implied duty to avoid unreasonable delay in making an equitable adjustment to a pre-1978 government contract[6] unless the contract itself permits such an award. Nor, in the absence of a breach of contract, can D.C.Code § 15-109 be read to authorize such an award.
In accordance with D.C.Code § 11-723(g), the Clerk is directed to transmit a copy of this opinion to the United States Court of Appeals for the District of Columbia Circuit and to each of the parties.
It is so ordered.
NOTES
[1] A clause in the contract "provides that contract disputes [must] be heard initially by the Board, which then issues an advisory opinion to the General Manager of WMATA. After reviewing the Board's opinion, the General Manager renders a final decision which is subject to judicial review in the United States district courts and the [state] courts of Maryland and Virginia." Nello L. Teer Co. v. WMATA, supra, 287 U.S.App.D.C. at 261 n. 1, 921 F.2d at 301 n. 1.
[2] As the Circuit noted, it is unclear why District of Columbia law applies, but neither party objected to this choice of law, and the Circuit found no error in the choice made. Nello L. Teer Co. v. WMATA, supra, 287 U.S.App.D.C. at 262 n. 2, 921 F.2d at 302 n. 2. We note, however, that the law of Virginia, another signatory to the compact and the state where the contract was performed, would preclude an award of interest under the circumstances presented here. See, e.g., George Hyman Construction Co. v. WMATA, 259 U.S.App.D.C. 449, 455-456, 816 F.2d 753, 759-760 (1987).
[3] The Court has acknowledged a constitutional requirement for the government to pay interest as part of the just compensation payable for a taking under the Fifth Amendment. Library of Congress v. Shaw, supra, 478 U.S. at 316-317 n. 4, 106 S.Ct. at 2962 n. 4. In this case, however, there has been no "taking" in the constitutional sense.
[4] The District of Columbia Circuit has previously held WMATA to be immune from suit because it was created by Congress, and because the signatories to the creating compact (Maryland, Virginia and the District of Columbia) "validly conferred [on it] the constitutional immunities they possess." Morris v. WMATA, 251 U.S.App.D.C. 42, 46, 781 F.2d 218, 222 (1986); see also Dant v. District of Columbia, 264 U.S.App.D.C. 284, 289, 829 F.2d 69, 74 (1987) (Congress "clothed WMATA with immunity from suit of the type [that] sovereigns enjoy"). Teer argues vigorously that WMATA's immunity has been nullified, or at least diminished, by the decision of the Supreme Court in Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988). Whether Loeffler has any effect on WMATA's immunity is not within the scope of the certified questions, and hence we cannot and do not decide that issue. It is, in any event, an issue of federal rather than local law.
[5] This statute was the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1988).
[6] I.e., a contract entered into before the effective date of the Contract Disputes Act of 1978, supra note 5. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262363/ | 25 Cal.Rptr.3d 911 (2005)
Margie McRAE, Plaintiff and Respondent,
v.
DEPARTMENT OF CORRECTIONS, Defendant and Appellant.
Margie McRae, Plaintiff and Appellant,
v.
Bruce Wiltse et al., Defendants and Respondents.
Nos. A098073, A100745, A104701, A098330, A098910.
Court of Appeal, First District, Division One.
March 18, 2005.
Rehearing Denied April 18, 2005.
Review Granted June 29, 2005.
*914 Carter & Schear, Stephen D. Schear, Jana Carter, Oakland, Counsel for Plaintiff, Appellant, and Respondent Margie McRae.
Bill Lockyer, Attorney General of the State of California, Jacob Applesmith, Senior Assistant Attorney General, Miguel A. Neri, Fiel D. Tigno, Supervising Deputy Attorneys General, Marjorie E. Cox, Lyn Harlan, Deputy Attorneys General, Counsel for Defendant and Appellant, California Department of Corrections; Defendants and Respondents Bruce Wiltse, Joseph Bick, Richard Burkhart, and Donna Wilson.
STEIN, Acting P.J.
Dr. Margie McRae filed suit against her employer, the California Department of Corrections (the Department) and four individual defendants, seeking damages for discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA).
The trial court granted summary judgment to the four individual defendants, and Dr. McRae appeals from an order awarding these defendants their costs. (Case Nos. A098330 & A098910.) The case proceeded to trial against the Department. The jury returned a verdict against Dr. McRae on her claims of discrimination, but awarded her $75,000 on her claim of retaliation. The Department appeals from the judgment entered on the jury's verdict, and from postjudgment orders awarding attorney fees to Dr. McRae. (Case Nos. A098073, A100745, A104701.)
*915 We reverse the judgment. Neither the law, nor the evidence, permits a finding that Dr. McRae suffered the kind of adverse employment action required for a claim of retaliation. And, even if one action taken by the Department transferring Dr. McRae from one facility to another might be deemed an adverse employment action, Dr. McRae did not rebut the Department's evidence that there was a legitimate, nonretaliatory reason for the transfer. We also reverse the orders awarding Dr. McRae her attorney fees. Finally, we affirm the order awarding costs to the individual defendants, and remand the matter to the trial court to award costs to the Department to the extent those costs are not duplicative of those awarded to the individual defendants.[1]
BACKGROUND
Dr. McRae, a board certified surgeon, began working for the Department in 1992, at the California Medical Facility in Vacaville (CMF). For several years there were no complaints about the quality of Dr. McRae's work. To the contrary, she regularly and uniformly received excellent performance evaluations.
In 1995, Dr. McRae applied for a position as Chief Medical Officer (CMO) at the California State Prison in Solano (Solano Prison). On April 25, 1997, after another person was appointed to that position, she filed a complaint with the Department of Fair Employment and Housing (DFEH), claiming that she was denied the appointment because of her race.[2] In Dr. McRae's view, her filing of this complaint triggered a number of retaliatory actions by the Department, three of which provided the basis for her claims of unlawful retaliation.
Dr. McRae alleged that the first retaliatory action was a June 26, 1997 letter of instruction issued by Dr. Raymond Andreasen, the CMO at CMF, following a report that Dr. McRae had left her position in the emergency room unattended. Dr. Andreasen instructed Dr. McRae to read and familiarize herself with regulations and memoranda outlining the obligation of physicians and surgeons to be at their posts during their rotations, and to notify her supervisor about any need to leave the job site or to report in late. On June 20, 1998, Dr. McRae filed a second DFEH complaint, claiming that the letter of instruction had been issued to retaliate against her for filing her first complaint.
Dr. McRae alleged that the second retaliatory action was an internal investigation related to reports that Dr. McRae had failed to follow two of Dr. Andreasen's directives, had refused to provide medical information that would have facilitated a patient's transfer to Hospice, and had delayed the administration of antibiotics to another patient without first examining him. The investigation led to a July 14, 1998 decision by Dr. Susan Steinberg, Deputy Director of Health Care Services Division, to suspend Dr. McRae for 30 *916 days. This decision was never implemented, however, because Dr. McRae was absent on nonindustrial disability leave.[3] Dr. McRae remained unaware of Dr. Steinberg's decision until after she filed her complaint.
Dr. McRae alleged that the third retaliatory action was a change in her work assignment. On July 29, 1998, Dr. McRae was informed that her disability leave would expire on August 15, and was told to report to work at Solano Prison rather than return to CMF. Dr. McRae did not report to work at Solano Prison as directed. On August 18, 1998, she filed a third DFEH complaint, asserting that her transfer from CMF to Solano Prison was retaliatory. When Dr. McRae did return to work, in March 1999, she reported to Solano Prison. She left approximately two and one-half weeks later, and instituted this action.
DISCUSSION
The parties paint two very different pictures of Dr. McRae's experience with the Department. Dr. McRae claimed that there was no valid basis for the letter of instruction or the investigation, concluding that they must have been issued to retaliate against her for filing the grievance concerning her failure to be appointed Chief Medical Officer. Dr. McRae complained that the investigation into her conduct was done by a layperson who reported to the administration. In her opinion, any investigation should have been done through peer review. She asserted that the investigation was done with the intent to discredit her and protect another physician. Dr. McRae believed that Dr. Andreasen's conduct in connection with the confrontation with the two nurses was further evidence of retaliation, which continued when the Department failed to take action against the nurses. When Dr. McRae complained, the Department again retaliated against her by transferring her to a dangerous situation at Solano Prison.
According to the Department, the letter of instruction was intended to remind Dr. McRae that her duties required her to arrive on time and ensure that she, or some other qualified person, was available to handle her duties during her absences. The investigation followed reports that Dr. McRae had been derelict in her duties, and was designed to determine if those reports were true. As the purpose of the investigation was to determine the truth of reports that Dr. McRae had failed to take actions that were part of her job responsibilities, there was no reason to subject the matter to peer review.[4] Dr. McRae was transferred to Solano Prison as a means of removing her from a situation that had become so unpleasant for her that she had *917 taken nonindustrial disability leave for nearly a year, and to make it possible to employ both Dr. McRae and the two nurses.
RETALIATION
General Legal Principles
Government Code section 12940, subdivision (h) makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (See also Lab.Code, § 1102.5, subd. (b).) In cases brought on claims of discrimination, including claims of retaliation, California applies the formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (the McDonnell Douglas test). Under that formula, "[t]o establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action. [Citations.]" (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453, 116 Cal.Rptr.2d 602 (Akers).)
It is undisputed that the activity in question filing complaints with the DFEH, is a protected activity.
Adverse Employment Action
The FEHA does not itself define "adverse employment action," and the countervailing concerns in this area of the law have led different courts to adopt different definitions of that term. It is recognized that "`[w]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.' [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any `action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.' [Citation.]" (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511, 91 Cal.Rptr.2d 770.) "On the one hand, we worry that employers will be paralyzed into inaction once an employee has lodged a complaint ..., making such a complaint tantamount to a `get out of jail free' card for employees engaged in job misconduct. On the other hand, we are concerned about the chilling effect on employee complaints resulting from an employer's retaliatory actions." (Brooks v. City of San Mateo (9th Cir.2000) 229 F.3d 917, 928.)
The only published California cases on point have held that it is not enough for the plaintiff to show that he or she has been subjected to some form of adverse treatment. The plaintiff must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment. (Akers, supra, 95 Cal. App.4th at p. 1455, 116 Cal.Rptr.2d 602; Thomas v. Department of Corrections, supra, 77 Cal.App.4th at pp. 510-511, 91 Cal.Rptr.2d 770, and see Robinson v. City of Pittsburgh (3d Cir.1997) 120 F.3d 1286, 1300, Torres v. Pisano (2d Cir.1997) 116 F.3d 625, 640.) "A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient." (Akers, supra, at p. 1455, 116 Cal.Rptr.2d 602.) The reasoning is that "[r]equiring an employee to prove a substantial adverse *918 job effect `guards against both "judicial micromanagement of business practices" [citation] and frivolous suits over insignificant slights.' [Citation.] Absent this threshold showing, courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction. While the Legislature was understandably concerned with the chilling effect of employer retaliatory actions and mandated that FEHA provisions be interpreted broadly to prevent unlawful discrimination, it could not have intended to provide employees a remedy for any possible slight resulting from the filing of a discrimination complaint." (Ibid.)
Dr. McRae contends that the rule stated by these cases is too restrictive, preferring a rule adopted by some federal courts, including the Ninth Circuit. This rule, as articulated by the Ninth Circuit, incorporates language from the Equal Opportunity Employment Commission's (EEOC's) Compliance Manual, and holds that an adverse employment action is "`any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.'" (Ray v. Henderson (9th Cir.2000) 217 F.3d 1234, 1242-1243, citing EEOC Compliance Manual Section 8, "Retaliation," ¶ 8008 (1998).) The Ninth Circuit has held that adverse employment actions might include demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees. (Ray v. Henderson, at pp. 1241-1242.) The Ninth Circuit explained, "While some actions that we consider to be adverse (such as disadvantageous transfers or changes in work schedule) do `materially affect the terms and conditions of employment,' others (such as an unfavorable reference not affecting an employee's job prospects) do not." (Id. at p. 1242.)
In our opinion, the deterrence test, as articulated by the Ninth Circuit, is overbroad. The Ninth Circuit recognizes that "non-trivial" actions should not be deemed "adverse employment actions." (Brooks v. City of San Mateo, supra, 229 F.3d at p. 928.) Nonetheless, the deterrence test could support a finding of adverse employment action in nearly any employment action or decision. An employee quite possibly and reasonably might wish to avoid the move of an office or a desk, the addition or subtraction of other employees, the addition or subtraction of responsibilities, a change in opening or closing times or the introduction of a dress code; yet we believe that none of these things, in and of themselves, should provide the basis for a claim of retaliation.
The deterrence test attempts to avoid this result, at least in part, by adding a retaliatory element to the definition of adverse employment. Under the EEOC guideline, it is not enough that the employment action would be likely to deter an employee from engaging in the protected activity; it also must be based on a retaliatory motive. (EEOC Compliance Manual, Section 8, "Retaliation," ¶ 8008 (1998); Ray v. Henderson, supra, 217 F.3d at pp. 1242-1243.) This definition causes the "causal link" prong of the prima facie test to collapse into the "adverse employment action" prong. (Id. at p. 1243, fn. 6), making it inconsistent with the McDonnell Douglas test. In addition, as will be discussed, post, the "causal link" element of the prima facie test can be satisfied by as little as showing the employment action followed the protected conduct closely in time and the employer was aware of the *919 protected conduct. (Morgan v. Regents of University of California (2000) 88 Cal. App.4th 52, 69, 105 Cal.Rptr.2d 652.) Adding a retaliatory element to the second prong of the McDonnell Douglas test, therefore, does little to prevent the litigation of frivolous claims.
We therefore align ourselves with existing California decisions, holding that an adverse employment action means an employment action that causes substantial and tangible harm, such as, but not limited to, a material change in the terms and conditions of employment. A plaintiff need not show that the employment action was retaliatory in order to establish that it meets the second prong of the McDonnell Douglas test, although the plaintiff, of course, will need to make such a showing to satisfy the third prong of the test. We hold, further, that while something less than an "ultimate employment action"[5] may be actionable, a plaintiff may seek redress through the courts only for final employment actions; i.e., those that are not subject to reversal or modification through internal review processes.
Causal Link Between Protected Activity and Employer's Action
For purposes of making a prima facie showing under the McDonnell Douglas test, the causal link element may be established by an inference derived from circumstantial evidence. A plaintiff can satisfy his or her initial burden under the test by producing evidence of nothing more than the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69, 105 Cal. Rptr.2d 652.)
Such evidence, however, only satisfies the plaintiff's initial burden. "Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation `drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Akers, supra, 95 Cal.App.4th at p. 1453, 116 Cal.Rptr.2d 602.) The plaintiff must have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. The plaintiff's burden is to prove, by competent evidence, that the employer's proffered justification is mere pretext; i.e., that the presumptively valid reason for the employer's action was in fact a cover-up. (Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 676, 3 Cal.Rptr.3d 867.)
In responding to the employer's showing of a legitimate reason for the complained-of action, the plaintiff cannot "`simply show the employer's decision was wrong, mistaken, or unwise. Rather, the employee "`must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder *920 could rationally find them "unworthy of credence," [citation], and hence infer "that the employer did not act for the [... asserted] non-discriminatory reasons." [Citations.]' [Citation.]"'" (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 75, 105 Cal.Rptr.2d 652.) "The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)
Actions Taken Against Dr. McRae
The Letter of Instruction
On May 13, 1997, Dr. Andreasen received notice that Dr. McRae had filed a complaint with the DFEH complaining that she had been denied the position of Chief Medical Officer at Solano Prison because of her race.[6] On May 16 and again on June 6, Dr. Andreasen sent memoranda to all physicians and surgeons, reminding them that they were expected to be at their posts during their rotations and that no exceptions could be made without the specific signed authorization of the CMO. On May 22, Dr. Andreasen wrote a note to his supervisory file on Dr. McRae, reporting that she had left her position as an emergency room physician to attend a meeting without securing adequate coverage for her position in the emergency room, without informing the CMO's office that she was leaving the emergency room or that she was in need of relief for a medical staff function.
On June 12, 1997, Dr. Andreasen wrote another memorandum to his supervisory file, stating that there were reports that Dr. McRae had been coming in at 9:30 a.m. when she was on duty at 8:00 a.m., and on one day had worked only from 9:30 a.m. to 10:40 a.m., without notifying the CMO's office that she was going to take time off. Dr. Andreasen wrote, further, that he had scheduled a meeting with Dr. McRae on June 9, apparently to talk about these reports, but Dr. McRae called in sick. Dr. Andreasen rescheduled the meeting for the following day, but Dr. McRae did not appear. She was paged and stated that she would not be able to attend the meeting because she was taking a training session. The meeting was rescheduled again, for the next day. Dr. McRae called in sick.
Dr. Andreasen then issued the "Letter of Instruction" to Dr. McRae on June 26, 1997. The letter reported that three days earlier, Dr. McRae had failed to notify her supervisor that she was leaving the job site, and had failed to report to her assigned post for emergency room coverage. Andreasen wrote that Dr. McRae's conduct violated provisions of the California Code of Regulations and Dr. Andreasen's own memoranda to all providers, dated May 16, 1997, and June 6, 1997. Dr. Andreasen instructed Dr. McRae to read and familiarize herself with the cited regulations and memoranda, and to notify her supervisor about any need to leave her job site or to report in late. Dr. McRae refused to accept or sign the letter, and Dr. Andreasen placed it his supervisory file.
There is no evidence that the letter of instruction resulted in any loss of pay, *921 status or job responsibilities to Dr. McRae. It was not a performance evaluation. There is no evidence that the letter itself could or did lead to any alteration of the terms and conditions of Dr. McRae's employment, or that its existence deprived her of any promotional opportunities. (Compare with Akers, supra, 95 Cal. App.4th at pp. 1456-1457, 116 Cal.Rptr.2d 602.)[7] We do not believe that a negative performance evaluation, even if unwarranted, can trigger an FEHA claim. Employee criticism is a useful and necessary tool that benefits not only the employer, but also the employee and the public. Although the FEHA seeks to prevent the chilling effect of retaliatory action, it should not be interpreted in a way that discourages employers from informing employees of any dereliction of duty, or of the need to improve their performance. The interest in allowing employers to take corrective action as needed, or to warn employees that their conduct may lead to an adverse employment action, requires an interpretation that tolerates the risk that an employee may be unable to seek redress through the FEHA for such criticism, even when that criticism in fact may be retaliatory.
Nor did the letter of instruction become an adverse employment action because it was attached to the investigation report and may have been a factor in the decision to suspend Dr. McRae for 30 days. Assuming that the decision to suspend was an adverse employment action (and for reasons we will state, we have concluded that it was not), and assuming, further, that the decision to suspend was based, in part, on the letter of investigation, the letter would be relevant to the question of whether the asserted reasons for the decision were pretextual. That written criticism leads to an adverse employment action, however, does not relate back so as to make the criticism itself an adverse employment action.
This does not mean that negative employment evaluations cannot be considered in deciding whether an employee has been subjected to an adverse employment action. A pattern of negative employment evaluations, or a negative employment evaluation accompanied by other conduct, might create a hostile work environment, providing grounds for a retaliation claim on that basis. In addition, adverse employment actions such as terminations, demotions, etc., may be based in part on unwarranted criticism. In such cases, the fact that the criticism is unwarranted will be a factor in deciding if the employer's motive for the adverse action is pretextual, but it is the later action, and not the criticism itself, that is the adverse employment action.
For all of these reasons we conclude that the letter of instruction, even if unwarranted or based on an improper motive, is not an adverse employment action.
The Investigation and Decision to Suspend
On January 27, 1998, Warden Anna Ramirez-Palmer filed an internal affairs investigation *922 request, alleging that (1) on December 16, 1997, Dr. McRae disobeyed two directives, issued by Dr. Andreasen, to contact the family of a patient inmate to report on the inmate's medical condition; (2) Dr. McRae had refused to provide medical information about the patient to another physician that would have allowed the patient to transfer to Hospice;[8] and (3) Dr. McRae acted improperly in connection with another patient inmate. As to the third allegation, Dr. Andreasen asserted that the patient had been admitted at a time when Dr. McRae was on duty. The patient had been diagnosed with pneumonia, and the admission orders called for intravenous antibiotics. Nursing staff could not find a vein that would sustain an IV, and called Dr. McRae, who, without examining the patient, gave a telephonic order to staff to delay giving antibiotics until IV access could be secured the following day. Dr. Andreasen alleged, further, that it appeared that Dr. McRae's decision contributed to the patient's subsequent respiratory failure.
On June 25, 1998, after receiving a report of the investigation and its findings, Warden Ramirez-Palmer recommended that Dr. McRae be suspended for 30 days. This recommendation was passed on to Donna Wilson, the Chief Deputy of Clinical Services, and from her to Dr. Susan Steinberg, the Deputy Director of Health Care Services Division, for final approval. Dr. Steinberg signed off on the proposed action on July 14, 1998, and a Statement of Adverse Action was drafted. The suspension, however, never was implemented, and while Dr. McRae was aware of the investigation, she did not know about the suspension until after she commenced this case.
A 30-day suspension would be an adverse employment action. Here, however, while there was a decision to suspend, the suspension never took place. By the time the decision had been reached, Dr. McRae was on nonindustrial disability leave. She returned to work nearly one year later, worked for two and one-half weeks, and left without ever learning of the decision to suspend. The record does not disclose whether there was any intention to implement that decision after Dr. McRae returned from nonindustrial disability leave. The decision to suspend Dr. McRae, therefore, had no actual impact on the terms and conditions of her employment. Moreover, the decision was not final. The notice of adverse action, prepared for Dr. McRae and signed by Dr. Wilson (but never sent to Dr. McRae), informed Dr. McRae that she had the right to contest the matter by stating her position in writing and/or requesting an interview with Dr. Wilson. Dr. Wilson explained that she had the discretion to alter the decision. Dr. McRae also had the right to appeal the decision to the State Personnel Board. A negative evaluation is not an adverse employment action when the plaintiff has the power to appeal, even if the plaintiff leaves his or her employment while an appeal of the evaluation is pending. "`To rule otherwise would be to encourage litigation before the employer has an opportunity to correct through internal grievance procedures any wrong it may have committed.'" (Brooks v. City of San Mateo, supra, 229 F.3d at p. 930.)
We find, therefore, that the 30-day suspension was not an adverse employment action as a matter of law. This is not to say that the investigation is irrelevant to Dr. McRae's claims of retaliation. *923 Evidence of an unfounded and retaliatory investigation, for example, like evidence of an unfounded and negative employment evaluation, might provide grounds for a claim of hostile work environment. We hold here only that the decision to suspend an employee is not itself an adverse employment action unless or until that decision is implemented.
The Transfer to Solano Prison
The confrontation between Dr. McRae and the two nurses was triggered by Dr. McRae's actions with respect to a "HEPA" air filter, a filter that destroys bacteria. The filter had been placed close to Dr. McRae's desk, and she was concerned that the filter might be leaking ultraviolet light, causing her injury. She filed a grievance, asking that the filter be moved. When the grievance was denied, Dr. McRae simply unplugged and moved the filter herself. A pattern apparently developed, where Dr. McRae would move the filter, and when she left the room, someone would move it back.
On the morning of April 16, 1998, Dr. McRae had moved the filter and was treating a patient at her desk. The two nurses, defendants Bruce Wiltse and Richard Burkhart, entered and confronted Dr. McRae about her actions. Mr. Burkhart moved the filter back, and plugged it in. Dr. McRae unplugged it. This happened three times. Dr. McRae telephoned Dr. Andreasen and another physician in the building, Dr. Kevin Geraghty, who also was her union steward. According to Dr. McRae, as she was telling Dr. Andreasen what had happened, Mr. Burkhart yelled, "Liar, liar," jabbed his finger at her face, and at one point touched her on the hand as she was attempting to shield her face from him. Dr. Geraghty testified that he came into the room at about that time. Dr. Andreasen was there, but did not appear to be doing anything. After Dr. Geraghty called Dr. Andreasen by name, Dr. Andreasen left the room with Mr. Wiltse and Mr. Burkhart. Dr. McRae testified that although Dr. Andreasen was present for a couple of minutes before Dr. Geraghty arrived, he took no action until Dr. Geraghty indicated that he was there. Dr. McRae went out on nonindustrial disability leave the next day, and sought a restraining order against Mr. Burkhart and Mr. Wiltse.
Approximately two weeks later, Dr. Wilson was hired as the Chief Deputy of Clinical Services at CMF. On July 29, 1998, Dr. Wilson wrote to Dr. McRae that her disability leave would expire on August 15, directing her to report to work at Solano Prison rather than to return to work at CMF. She wrote: "You are being transferred to Solano in an effort to resolve several of your safety concerns here at CMF. Your transfer to Solano will alleviate your concerns about working in close proximity to Mr. Wiltse and Mr. Burkhart and will resolve the Temporary Restraining Orders on file with the Solano County District Attorney's Office. Your transfer to Solano will also resolve your concerns regarding exposure to the HEPA FILTER and UV light, your concerns with the B-1 Clinic health hazards and inadequate B-1 office space. Your transfer to Solano will also resolve your concerns about having to perform MOD duty." Dr. McRae responded by filing a third DEFH complaint on August 18, 1998, asserting that the transfer was a retaliatory act, and requesting that the decision to transfer her be reversed. On August 25, Dr. Wilson reported back to Dr. McRae that her grievance had been denied. In March 1999, Dr. McRae reported to work at Solano Prison, but left within three weeks.
*924 There is no question but that a transfer can be an adverse employment action, when it results in substantial and tangible harm. It also is settled that an adverse employment action does not occur when the transfer is into a comparable position not resulting in substantial and tangible harm. (Akers, supra, 95 Cal. App.4th at p. 1457, 116 Cal.Rptr.2d 602.) The District of Columbia Circuit, in Brown v. Brody (D.C.Cir.1999) 199 F.3d 446, after surveying the relevant case law, stated a formulation that reflects our own view: "[A] plaintiff who is made to undertake or who is denied a lateral transfer that is, one in which she suffers no diminution in pay or benefits does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm. Mere idiosyncrasies of personal preference are not sufficient to state an injury." (Id. at p. 457.)
This formulation was drawn, in part, from the opinion in Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (Burlington), where the United States Supreme Court used the term "tangible employment action" to define actionable harm in discrimination cases, importing that term into its discussion of a vicarious liability issue. The Supreme Court held: "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Compare Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 [7th Cir.1993] (`A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation'), with Flaherty v. Gas Research Institute, 31 F.3d 451, 456 [7th Cir.1994] (a `bruised ego' is not enough), Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 [6th Cir.1996] (demotion without change in pay, benefits, duties, or prestige insufficient), and Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 [8th Cir.1994] (reassignment to more inconvenient job insufficient)." (Burlington, supra, at p. 761, 118 S.Ct. 2257.)
The transfer of Dr. McRae from CMF to Solano Prison did not entail a demotion, a reduction in pay or a loss of benefits. It did not involve a change in status or a less distinguished title. There is no evidence that it involved any significant change in job responsibilities, or, except for on-call duty, in work hours or commute time.
Dr. McRae nonetheless successfully contended that the transfer was an adverse employment action, asserting that some aspects of the work at Solano Prison were more unpleasant to her than some aspects of employment at CMF, and also that Solano Prison presented a dangerous environment. For Dr. McRae to prevail on this point, the record must contain substantial evidence that Solano Prison in fact presented a less desirable work environment than CMF, and, further, that the change was not just somewhat less pleasant, but had materially adverse consequences comparable in significance to a demotion, a decrease in wages or salary, a less distinguished title, a material loss of *925 benefits, or significantly diminished responsibilities.
"In determining whether a judgment is supported by substantial evidence, we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court. [Citation.] We may not substitute our view of the correct findings for those of the trial court [or jury]; rather, we must accept any reasonable interpretation of the evidence which supports the [fact-finder's] decision. However, we may not defer to that decision entirely. `[I]f the word "substantial" means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case.' [Citations.]"
"Although each case must be judged for sufficient evidence on its own peculiar circumstances, a number of general guidelines may be set forth. First, a judgment may be supported by inference, but the inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork. [Citation.] Thus, an inference cannot stand if it is unreasonable when viewed in light of the whole record. [Citation.] And although an appellate court will normally defer to the trier of fact's drawing of inferences, it has been said: `To these well settled rules there is a common sense limited exception which is aimed at preventing the trier of the facts from running away with the case. This limited exception is that the trier of the facts may not indulge in the inference when that inference is rebutted by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men. The trier of the facts may not believe impossibilities.'" (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204, 52 Cal.Rptr.2d 518.)
Dr. McRae testified that she was aware that Solano Prison had a reputation among physicians as one of the worst facilities in the system, and physicians were sent there before they were dismissed. Dr. McRae, however, produced no evidence that anyone else was aware of this reputation. In other words, while Dr. McRae stated her own belief that Solano Prison had a poor reputation, she produced no evidence that it in fact had a poor reputation. In addition, she produced no evidence that the Department routinely sent physicians there as a step towards dismissal, and her claim on this point is undermined by the fact that she actively sought a position at that facility.
Dr. McRae testified that she was unable to get a lab coat at Solano Prison, and had to wear a paper gown to keep her clothing clean. Dr. McRae had her own desk while working at CMF, but claimed she had no desk or specific workplace at Solano Prison, and sometimes had to use a stand ordinarily used to hold medical instruments. One of the other doctors allowed her to use his office on occasion, and sometimes she used the treatment room as an office. A nurse there complained that she was using his desk. Dr. McRae's testimony was corroborated, somewhat, by the testimony of Barbara Clayton, the Department's *926 northern regional health service administrator. Ms. Clayton confirmed that space was limited at Solano Prison, that there were only two actual treatment areas for doctors in the primary area and that four doctors were assigned to work in those areas. As a result some of the doctors worked out of the emergency room or shared space.
There is little question but that the lack of a lab coat or the need to share a desk would have been inconvenient and irritating. On the other hand, work at CMF exposed Dr. McRae to the HEPA filter and to two nurses against whom she had sought a restraining order, and required her to work under a supervisor she felt did not support her. Even assuming, however, that the overall environment at CMF was more pleasant for Dr. McRae than the environment at Solano Prison, matters such as the lack of a lab coat or a desk do not compare in significance with matters such as demotions, loss of pay or benefits, or harassment in the workplace. In short, they do not amount to a tangible injury supporting a claim of adverse employment action.
Dr. McRae also complained of the differences in on-call duty required by CMF and Solano Prison. At CMF, Dr. McRae was required to spend two to four nights per month at the hospital. At Solano Prison, she was required to be on-call for a full week at a time. Dr. McRae claimed that physicians on this duty had to be within a 30-minute response of the institution. As she lived more than 30 minutes away, Dr. McRae asserted that she would have to move out her home for about a week, live in a motel, eat in restaurants and arrange for the care of her dog, and would have to bear the expense of these items.
Dr. McRae, however, did not prove the truth of her assertions. She produced no evidence of an order or policy requiring on-call physicians to arrive at the facility within 30 minutes of a call. She also produced no evidence that any Solano Prison physician had actually moved out of his or her home during the week of on-call duty, or that there had been any complaints that a physician had failed to arrive at the facility within 30 minutes of being called.
As evidence supporting her claim, Dr. McRae cites her own testimony, where she stated her belief that on-call physicians had to be within a 30-minute response time of the institution. Dr. McRae explained, further, "I don't recall specifically who told me that, but I think it was Dr. Ziesma [who, Dr. McRae stated, was in a supervisory position]. I believe the other doctors may have said it, too, but the response time for emergencies was 30 minutes. It may have been even less than that, but I don't think it was more than 30 minutes. If there was an emergency at the facility, the physician on duty had to get there within 30 minutes was my understanding."
Dr. McRae also cites the collective bargaining agreement between the State of California and the Union of American Physicians and Dentists. As relevant, the agreement provided that the on-call assignment was a work shift of seven consecutive days in which the employee is available by telephone or electronic paging device at all times, and "normally immediately available to return to the facility." Employees would be entitled to pay for every hour actually worked plus one hour for travel time.
Dr. McRae's opinion, or even the opinion of a supervising physician, has no probative value absent a showing that the opinion is based on fact. The collective bargaining agreement required only that the *927 employee be "immediately available to return to the facility." "Immediately available to return" suggests that the employee must be prepared to drop whatever he or she might be doing immediately, and return. Dr. McRae did not establish that the agreement required her, or any other physician, to be able return within any particular period of time. That an employee will be paid for no less and no more than one hour of travel time is not a mandate that the employee be within 30 minutes of the facility.
The Department introduced evidence that Dr. McRae's beliefs were unfounded. Ms. Clayton, the Department's northern regional health service administrator, who also had been the labor liaison from 1994 until 1999, and was the person who dealt with collective bargaining issues, testified that there was no requirement that an on-call physician had to be within 30 minutes of the facility. She explained that on-call duty at Solano Prison meant that nursing staff would contact the on-call physician if there were an emergency, if staff needed to receive orders about a patient or it was necessary for the physician to come in. Most of the facility's physicians lived out of the area. Most of the time they would not come in, but would make telephone orders. Solano Prison was not licensed for acute care, so a physician would not need to return even if a serious emergency arose. The physician instead would order the patient sent to another facility. The Department's evidence, therefore, was that on-call physicians were not required to be within 30 minutes from the prison at all times during periods of on-call duty, and Dr. McRae's evidence provided no valid basis for concluding otherwise.
Dr. McRae also complained that Solano Prison provided a more dangerous work setting than CMF. Neither side produced much evidence on the relative safety of either facility, and Dr. McRae's stated concerns about safety are somewhat undermined by the fact that she actively sought employment at Solano Prison. Both facilities house prisoners, and both facilities, therefore, have safety issues. CMF houses inmates at all levels, including those at level 4, who are considered to be more dangerous than the general prison population. CMF also provides secured housing units for inmates who have been segregated from the general population because of their violent conduct. Solano Prison, in contrast, houses only level 2 and 3 inmates, who are considered to be only medium custody inmates. Solano Prison, which was built more recently than CMF, has gun towers and an observation area in the housing unit facing the yard, both of which are manned by armed correctional officers. There is an armed entryway into the prison. There is no similar protection for staff at CMF.
Ms. Clayton explained: "Solano has more visible uniform staff than ... CMF. CMF is a closed quarter, which is maybe the width of this room, maybe a little bit wider, where you have staff and inmates who are in the same general area. The only protection for staff is that they have they are supposed to walk in this marked off area, which is in the center corridor, which is white lines in the center of the corridor, and the staff are to walk within that area, and that is supposed to be their protection there at CMF."
This evidence does not establish, or even allow an inference, that Solano Prison provides a more dangerous environment than CMF. To the contrary, the evidence supports the conclusion that Solano Prison provides a safer work environment than the environment at CMF.
*928 Dr. McRae testified that she felt fear for her safety because she believed she lacked the support and protection of the administration. This was based, in part, on her experience at CMF, and, in part, on the failure to provide her with an orientation after she began working at Solano Prison. Dr. McRae explained that an orientation would have dealt with safety issues, including "what areas you may and may not walk into; what it means when there is a yard down; what kind of special rules are in effect for employees at that particular facility to ensure [their] safety." Dr. McRae testified, further, that she had received information that an orientation was very important and that it was to take place quite soon after a person came on duty. When she complained that she had not had an orientation, she was told, simply, that one would be scheduled. Dr. McRae explained, further, that she had concluded that the administration at Solano Prison would not support her because it had failed to provide her with a lab coat and a desk and there had been a complaint about her use of the common workspace.
Dr. McRae's testimony does not support a finding that the transfer compromised her safety. The evidence is that CMF and Solano Prison do not share administrations. That Dr. McRae was not supported at CMF, therefore, would not mean that she would lack support at Solano Prison. As Dr. McRae was transferred from CMF to Solano Prison, she was transferred away from employees and administration she believed to be hostile to her. In addition, even if Dr. McRae's troubles at CMF meant that she lacked support at Solano Prison, her complaint is with the administration of both facilities, and does not support a claim that the transfer compromised her safety, at least in the absence of some evidence that Solano Prison was in fact a more dangerous environment so that the lack of support would be felt more acutely.
As to the orientation, Dr. McRae was at Solano Prison for only two and one-half weeks. Ms. Clayton, although testifying that orientations were given to employees as soon as possible after they reported to work, also testified that orientations generally were given once a month. In the meantime, employees received on-the-job training. The purpose of an orientation was to familiarize the employee with the setting and explain how to function within it, including how to work safely. As orientations are standard, an orientation would have been review for Dr. McRae, who had worked for six years at CMF. On-the-job training would cover matters such as physical layout. Dr. McRae produced no evidence contradicting Ms. Clayton's testimony. The evidence, therefore, does not establish either that Dr. McRae was denied an orientation, or that the failure to provide her with one rendered the job unsafe.
As noted above, an employment action is not an adverse employment action unless it results in a materially adverse change in employment conditions comparable to a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits or significantly diminished material responsibilities. (Brown v. Brody, supra, 199 F.3d at pp. 456-457.) On our review of the record as a whole, resolving all factual differences in favor of the jury's verdict, and drawing all reasonable inferences from the evidence, we cannot find substantial evidence that the transfer of Dr. McRae from CMF to Solano Prison amounted to an adverse employment action.
We have not considered whether Dr. McRae met her burden of showing that *929 the letter of instruction or unimplemented decision to suspend her were causally connected to her protected activity of filing DFEH complaints, as we have concluded there is no reason to conclude that either action was an adverse employment action. While we have concluded that the transfer of Dr. McRae from CMF to Solano prison is not an adverse employment action, it did result in physical changes in her employment environment. We have, therefore, also reviewed the evidence in light of the third prong of the McDonnell Douglas test.
The Department proffered a compelling reason for transferring Dr. McRae to Solano Prison her relationship with other CMF employees had so deteriorated that she had sought a restraining order against them and had taken nonindustrial leave in mid-April, and did not return to work until nearly a year later. Under those circumstances, the decision to transfer Dr. McRae into a new work environment away from the other employees has at least the appearance of a reasonable management decision.
The burden, therefore, shifted to Dr. McRae to produce competent evidence that the Department's proffered reason for the transfer was pretextual, by demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions as to allow the jury to find it unworthy of credence. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 75, 105 Cal.Rptr.2d 652.) Dr. McRae did not meet that burden. She made no showing that the Department routinely, or indeed ever, punished persons for filing FEHA complaints by transferring them to other, less favorable, assignments. She did not and could not show that the Department had no legitimate reason for her transfer. Her argument, rather, focused on her claim that the Department should have taken some other action to alleviate her problems at CMF, such as disciplining or transferring the two nurses. That some other action might have addressed the Department's concerns does not establish that the Department's stated reasons for the transfer were pretextual. Moreover, Dr. McRae's problems at CMF were not limited to her confrontation with the two nurses. Transferring the nurses, accordingly, would have solved some of the Department's problems, but would not have resolved Dr. McRae's complaints about Dr. Andreasen or the HEPA filter.
In short, there simply is no reason to conclude from the evidence that the decision to transfer Dr. McRae was the result of a wish to retaliate against her for filing grievances, as opposed to the wish to remove her from an environment where she could not function effectively.
Pattern of Conduct
Dr. McRae contends that even if the evidence does not show that any single action taken by the Department was an adverse employment action, the Department's actions, taken together, established a pattern of conduct that the jury could have deemed to be an adverse employment action.
Dr. McRae did not try her case on a theory of hostile work environment, and the evidence, while reflecting isolated incidents of unpleasantness, does not show the kind of severe and pervasive harassment that permits recovery on such a theory. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131, 87 Cal.Rptr.2d 132, 980 P.2d 846.) Thompson *930 v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 104 Cal.Rptr.2d 95, cited by Dr. McRae, did not involve an adverse employment action. It was a wrongful discharge case, where the court simply recognized that conduct amounting to a hostile work environment would support a finding of constructive discharge. (Id. at pp. 1171-1172, 104 Cal.Rptr.2d 95.) The court in Akers, supra, 95 Cal.App.4th 1441, 116 Cal.Rptr.2d 602, found that a negative evaluation and a counseling memorandum, taken together, had the result of denying the plaintiff any opportunities for promotion. It followed that the evidence allowed a finding that the plaintiff had suffered an adverse employment action. (Id. at p. 1456, 116 Cal.Rptr.2d 602.) It was the denial of the opportunity for promotion, however, and not the pattern of conduct, that provided a valid basis for the plaintiff's FEHA claim. Dr. McRae has not shown that the Department's actions, whether taken alone or in combination, had a similar effect.
CONCLUSION
In conclusion, viewing the evidence in the light most favorable to the jury's findings, including all reasonable inferences that might be drawn therefrom, we nonetheless find that Dr. McRae failed to show she suffered an adverse employment action, whether the conduct she complains of is considered separately or cumulatively. Because we find that Dr. McRae failed to establish the second prong of the McDonnell Douglas test, we need not reach the question of whether she produced sufficient evidence to rebut the Department's showing of legitimate, nondiscriminatory reasons for the actions it took. Nonetheless, we also find that the Department produced evidence of a valid, nonretaliatory reason for its decision to transfer Dr. McRae to Solano Prison, and that Dr. McRae did not meet her burden of showing that the Department's reason was pretextual.
The judgment, therefore, is reversed.
The orders awarding Dr. McRae postjudgment and prejudgment attorney fees are reversed.
The order awarding costs to the individual defendants is affirmed. The matter is remanded to the trial court to award costs to the Department, to the extent that those costs are not duplicative of costs already awarded to the individual defendants.
The defendants are awarded their costs on appeal.
We concur: SWAGER and MARGULIES, JJ.
NOTES
[1] The trial court reasoned that since there were five defendants, each would be awarded one-fifth of the costs. Dr. McRae contends that the Department actually paid all of the costs; therefore, the court erred in awarding costs to the individual defendants. As we reverse the judgment, Dr. McRae will be responsible for all of the disputed costs, whether they were paid by the Department or by the individual defendants. There is therefore no reason for us to decide how those costs should be divided among the various defendants.
[2] Dr. McRae is African-American.
[3] In April 1998, Dr. McRae had a verbal confrontation with two registered nurses, one of whom called her a liar and, according to Dr. McRae, jabbed his finger at her, touching her hand as she attempted to shield her face. Dr. McRae believed that Dr. Andreasen did not take appropriate action to protect her during the confrontation, and did not support her during its aftermath. Dr. McRae went out on nonindustrial disability leave the next day, and sought a restraining order against the two nurses.
[4] Dr. McRae, citing two exhibits, asserts that she requested that medical staff conduct a peer review of her cases, and that medical staff exonerated her. The exhibits show only that she sent a letter to the Medical Executive Committee asking if her conduct had failed to meet the standard of care, and had received the response that she had "no pending peer review issues." She was not exonerated; she simply never was investigated for failing to meet the standard of care.
[5] Certain courts, among them those of the Fifth and Eighth Circuits, take the position that only "ultimate employment decisions," such as firing, demotion or a reduction in pay, are sufficient to state a retaliation claim. (Mattern v. Eastman Kodak Co. (5th Cir.1997) 104 F.3d 702, 707; Ledergerber v. Stangler (8th Cir.1997) 122 F.3d 1142, 1144.)
[6] Notice was provided by a letter addressed to Dr. Andreasen from the DFEH. Dr. Andreasen testified that he did not recall seeing the letter, and was not aware that Dr. McRae had filed a DFEH complaint when he issued the letter of instruction. He assumed that he had forwarded the DFEH letter to the legal office, believing that it did not apply to him. For purposes of our discussion here, we assume that Dr. Andreasen did in fact receive notice of Dr. McRae's complaint.
[7] The threat that an employer might retaliate by issuing a letter of instruction which might deter an employee from engaging in protected activity, could be an adverse action under the "deterrence test" adopted by the Ninth Circuit. (See Brooks v. City of San Mateo, supra, 229 F.3d at p. 928; Yartzoff v. Thomas (9th Cir.1987) 809 F.2d 1371, 1375-1376.) In California, however, a mere oral or written criticism of an employee does not meet the definition of an adverse employment action under FEHA (Akers, supra, 95 Cal.App.4th at p. 1457 & fn. 4, 116 Cal.Rptr.2d 602.)
[8] It appears that, early into the investigation, the second allegation was found to be untrue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326781/ | 288 S.E.2d 164 (1982)
Andrew Re GILKERSON
v.
The Honorable C. Berkley LILLY, Chief Judge, etc., et al.
No. 15374.
Supreme Court of Appeals of West Virginia.
March 5, 1982.
*165 Lee H. Adler, Beckley, for petitioner.
Chauncey H. Browning, Atty. Gen., Laurie J. Garrigan and Silas B. Taylor, Asst. Attys. Gen., Charleston, for respondents.
NEELY, Justice:
This is an original prohibition proceeding that invites further illumination of our law on double jeopardy. On 11 August 1979 petitioner, then nineteen years old, accompanied a juvenile to the local skating rink in Raleigh County. On the way home, they walked along West Virginia Route # 16 and either one or both decided to break into the Dairy Delight dairy stand. Apparently pursuant to a preconceived plan, the petitioner assisted the smaller and thinner juvenile through a window and the juvenile handed out cigarettes and confectionery *166 items to petitioner. Within minutes the police arrived and arrested the juvenile. Petitioner was not apprehended until 16 August 1979, at which time he waived his right to a preliminary hearing on the nighttime breaking and entering charge.
Petitioner posted bond on the nighttime breaking and entering charge and also posted bond on a companion case, charging him by warrant in magistrate court with the misdemeanor, contributing to the delinquency of a minor by:
enticing, encouraging, inviting, and soliciting the said Howard Franklin Scott to break and enter, ...
Petitioner was tried on the misdemeanor, contributing to delinquency charge in magistrate court on 20 September 1979, found guilty, fined $80 and costs, and sentenced to five days in jail. In January 1980, petitioner was indicted for the nighttime breaking and entering. He now challenges the indictment on the grounds of double jeopardy.
I
The thrust of petitioner's argument is that in State ex rel. Dowdy v. Robinson, W.Va., 257 S.E.2d 167 (1979) this Court adopted the "same transaction test" for determining whether the trial of a defendant for one offense bars his trial for another offense arising from the same criminal transaction. Petitioner argues that since his breaking and entering arose from the exact same transaction as his contributing to the delinquency of a minor, trial on the breaking and entering is now barred because he has already been convicted of an offense arising out of the same transaction, namely contributing to delinquency. Citing Dowdy, supra as his authority, petitioner admits that the State could have tried him on both charges at the same time, but asserts that having failed to join the offenses for trial at the same time the State is now precluded from putting him to the expense and strain of a second trial.
The question before us, therefore, is whether we shall apply the same transaction test as enunciated in Dowdy, supra and reaffirmed in State ex rel. Johnson v. Hamilton, W.Va., 266 S.E.2d 125 (1980) to cases where one offense is a misdemeanor which must be prosecuted of right in the magistrate court and the other is a felony pending in the circuit court. We hold that the same transaction test alone does not make a conviction or acquittal in magistrate court on a misdemeanor an automatic bar to the prosecution of a felony charge arising out of the same transaction in the circuit court.
II
The trial judge below made a prescient observation in his letter opinion in this case when he said:
3. It would appear from a triology of West Virginia cases: (1) State ex rel Dowdy Vs. Johnson 257 S.E.2d 167; (2) State ex rel Johnson Vs. Hamilton 266 S.E.2d 123 [125]; (3) State ex rel Watson Vs. Ferguson 274 S.E.2d 440 hold that double jeopardy must be viewed from two tests, known as the "same evidence" and the "same transaction" tests. These cases are about as clear as mud.
If the holdings of this Court on the subject of double jeopardy tend to be confusing, our sense of inadequacy is at least solaced by the total lack of illumination on the subject emanating from the United States Supreme Court.[1] The lack of consistent holdings is undoubtedly a fair reflection of the complexity of the problem and the number of permutations of real world factual situations requiring application of double jeopardy principles. There is, however, a consistent thread that, at least implicitly, runs through our cases and that is one of policy. As this Court said in Dowdy, supra:
*167 The policy behind the prohibition against double jeopardy is probably best stated in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957):
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. 355 U.S. at 187, 78 S.Ct. at 223. 257 S.E.2d at 170.
The object of our "same transaction test" is to discourage certain abuses that all of us have observed from time to time in criminal prosecutions. It is not uncommon for three or four separate felonies to arise from a single transaction and for the prosecution to obtain separate indictments and schedule separate trials on each offense. Where these crimes are neither one offense with lesser included offenses nor provable by the same evidence, separate trials are permissible under the United States Supreme Court's "same evidence test." In Johnson v. Hamilton, supra we indicated that our decision in Dowdy, supra adopting the "same transaction test" was not predicated upon an absolute state constitutional standard, but was rather a court-fashioned rule of procedural law designed to secure a fundamental state constitutional right. In Johnson v. Hamilton we said:
Our discussion in the Dowdy case concerning the rules for implementing the West Virginia Constitution's prohibition against double jeopardy indicates that our selection of the `same transaction' test and the `same evidence' test, depending upon which is more favorable to the defendant, is a matter of policy which goes to the appropriate procedure for securing a fundamental right.
The preeminent position of policy, as opposed to absolute constitutional mandate, was finally made clear in the case of State ex rel. Watson v. Ferguson, W.Va., 274 S.E.2d 440, 444 where the Court said:
In light of the foregoing salutary goals and under our inherent rule-making power, we conclude that a defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transactions, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan. To the extent that State ex rel. Johnson v. Hamilton, W.Va., 266 S.E.2d 125 (1980), set the rule as a constitutional holding, it is disapproved.
It is now possible to say that the policy principles behind the double jeopardy clause are effected in this jurisdiction by a procedural rule that requires the defendant to be tried at the same time for all offenses arising out of the same transaction. Nonetheless, as in Watson v. Ferguson, supra, where the Court permitted multiple trials under circumstances where four people had been murdered by the defendant using a tire tool in the course of one unlawful entry into a single house, a court may for good cause choose not to apply the procedural rule. In Watson this Court concluded that the murders were sufficiently distinct and that there was good cause for trying each one separately. The Court said:
Here there is no contention that the multiple homicides occurred as a result of a single volitive act on the part of the defendant, but rather each was killed by sequential acts of the defendant moving from one victim to another, striking them with the tire lug wrench. Thus, where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and punished separately under the double jeopardy clause of Article III, Section 5 of the West Virginia Constitution. 274 S.E.2d 440, 448.
*168 Furthermore, the Court in Watson pointed out that while there are legitimate policy reasons for requiring the defendant to be prosecuted for all offenses arising out of the same transaction at the same time, there are, nonetheless, countervailing policies that frequently militate in favor of separate trials. In this regard the Court said:
In any analysis of the policies underlying double jeopardy in the area of offenses against multiple victims, it must be recognized that the extent [of] criminal culpability cannot be answered merely by looking at the shortness of the time frame. Some consideration must be given to the defendant's criminal acts and intent. We do not conceive that in fashioning a double jeopardy policy in regard to what is the "same offense" that we can ignore the fact that multiple victims have been the subject of the defendant's acts. There can be little doubt that one function of a criminal justice system is to enable those individuals who have been victimized by the criminal acts of another to find some individual vindication of the harm done to each. Certainly, the degree of culpability, and as a consequence the degree of punishment, must bear some proportion not only to the magnitude of the crime but also to the number of victims involved. These are fundamental considerations that society expects from a criminal justice system. 274 S.E.2d at 446.
Reading synoptically the trilogy of cases just discussed it may be possible to draw certain conclusions about the continued viability of the same transaction test. First, the same transaction test is a procedural rule that is not mandated by either the State or federal constitutions but is in furtherance of the general policy enunciated in the double jeopardy clauses. Second, a person has a right to be tried at the same time for all felonies and misdemeanors arising out of the same transaction. Third, where there are multiple victims of a series of outrageous criminal acts arising out of the same transaction, as for example multiple murders or multiple rapes, the policy goal of vindicating the outrage of each individual victim is sufficiently urgent to warrant a court permitting separate trials to focus on the harm done to each separate victim. However, absent strong and urgent countervailing policy reasons for not requiring a joint trial going to the need to vindicate individual victims, a person cannot be tried at a second trial for an offense of which the prosecution was aware at the time of the first trial if the second offense arose out of the same transaction as the first offense.
III
Watson v. Ferguson, supra, indicates that the procedural rule that expects all offenses arising out of the same transaction, whether they be felonies or misdemeanors, to be tried together applies to a situation where one offense is a felony and the other a misdemeanor. Our language in Watson on this subject was comparatively broad, but that was before we had an actual case with all of its real life ramifications before us.
In real life it must be recognized that many so-called "judicial" proceedings in magistrate court are essentially administrative in nature. Notwithstanding our constant urging that prosecuting attorneys appear in magistrate courts, e.g., State ex rel. Skinner v. Dostert, W.Va., 278 S.E.2d 624, 630 (1981), and that those courts take on the dignity that has previously been reserved for circuit courts, we are not unaware that in the work-aday world many of our high expectations are confounded in practice.
Furthermore, we have held that where the prosecution for a misdemeanor is initiated by warrant in magistrate court the offense is triable as of right in magistrate court and only defendant's knowing and voluntary waiver of that right to be tried in magistrate court permits a prosecutor to proceed by indictment in the circuit court. State ex rel. Burdette v. Scott, W.Va., 259 S.E.2d 626 (1979). Finally, we perceive that the mechanical application of the same transaction test to combinations of felonies and misdemeanors may lead to utterly outrageous miscarriages of justice.
*169 While every effort is made to establish high standards of competence in magistrate courts, nonetheless, magistrates are not lawyers. Admittedly, over the course of several years in office many magistrates master law to a high degree of professional competence; however, every four years at least twenty-five percent of our magistrates are entirely new to the job. Thus we can envisage a negligent homicide arising from a motor vehicle accident where the police officer secures a warrant for drunk driving in magistrate court while the prosecutor successfully seeks an indictment for vehicular homicide in the circuit court. Any competent defense lawyer would advise the defendant to proceed immediately to magistrate court and offer a plea of guilty to the drunk driving charge in the perfectly correct expectation that the plea to that charge, arising as it did out of the same transaction as the vehicular homicide, would be a bar to subsequent prosecution for the more serious vehicular homicide.
Unless the magistrate were highly experienced and the lines of communication between the magistrate court and the overworked prosecutor's office comparatively efficient, it is not unlikely that the magistrate would accept the plea, set a penalty, and entirely dispose of the case without the prosecutor's prior knowledge. As we pointed out in Dowdy, the entry of a final judgment order in a criminal case has a certain artificial magic about it whenever we are talking about double jeopardy questions.
Even in the absence of purposeful legal tactics designed to use the same transaction test to confound justice, there are other mechanical obstacles to the automatic application of the test to a combination of felonies and misdemeanors. Warrants can be issued at any hour of the day or night in a comparatively informal setting. Grand jury indictments, on the other hand, can be returned only when the grand jury is sitting, i.e., a few days or weeks of each term of court. Consequently, it is highly likely that misdemeanor warrants would be procured immediately against a defendant while an indictment for a felony of which the prosecutor has knowledge at the time a misdemeanor warrant is issued will not be returned for several weeks or even months.
We conclude, therefore, that the same transaction test cannot be used to bar a subsequent felony prosecution on the grounds that a misdemeanor conviction has been obtained in magistrate court for a misdemeanor arising out of the same transaction unless the defendant moves in the magistrate court that the prosecutor proceed on the misdemeanor by indictment and try the defendant on the misdemeanor charge jointly with the felony in the circuit court.[2] Once that occurs, the problem of related prosecutions will become obvious to the prosecutor and the mechanical problems discussed above will cease to be relevant. Once the opportunity for confounding the criminal justice system through poor communication and inattention in the magistrate court has been eliminated, the defendant may then rightfully expect that all offenses arising out of the same transaction be tried together in the circuit court.
IV
In the case before us the only test that could conceivably bring the two offenses within the purview of the double jeopardy clause is the "same transaction test." Contributing to the delinquency of a minor is certainly not a lesser included offense of nighttime breaking and entering nor is the evidence necessary to prove contributing to delinquency coextensive with the evidence necessary to prove breaking and entering. Consequently, there are no other grounds that would permit the petitioner successfully to defend against the felony prosecution on double jeopardy principles.
For the reasons set forth above the writ of prohibition prayed for is denied.
Writ denied.
NOTES
[1] Justice Blackmun, with self-deprecating insight, referred to "the Court's continuing struggle to create order and understanding out of the confusion of the lengthening list of its decisions on the Double Jeopardy Clause" in his dissenting opinion in Sanabria v. United States, 437 U.S. 54, 80, 98 S.Ct. 2170, 2187, 57 L.Ed.2d 43 (1978). See also Weston, "The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences," 78 Mich. L.Rev. 1001 (1980).
[2] We note that such a motion by the defendant for joinder of all charges from both magistrate court and circuit court in one trial before the circuit court constitutes a waiver of right to trial in magistrate court. Hence, this holding is consistent with State ex rel. Burdette v. Scott, W.Va., 259 S.E.2d 626 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326726/ | 154 Ga. App. 183 (1980)
267 S.E.2d 797
ARGONAUT INSURANCE COMPANY et al.
v.
CLARK et al.
58898.
Court of Appeals of Georgia.
Argued October 31, 1979.
Decided March 18, 1980.
Rehearing Denied March 31, 1980.
M. D. McLendon, A. Terry Sorrells, for appellants.
W. Fred Orr, II, James G. Edwards, II, for appellees.
SOGNIER, Judge.
This interlocutory appeal arises from litigation involving an accident in which Phillip Clark was injured while working in the course and scope of his employment by Hensel Phelps Construction Company. The appellant-insurers provided both workers' compensation and liability insurance for Hensel Phelps, and Clark had previously been awarded workers' compensation benefits. The instant suit was filed by Clark and his wife under the theory first enunciated in Sims v. American Cas. Co., 131 Ga. App. 461 (206 *184 SE2d 121) (1974), affd. sub nom Providence Washington Ins. Co. v. Sims, 232 Ga. 787 (209 SE2d 61) (1974), that under certain circumstances a cause of action may also exist against a liability insurer for negligently conducted safety inspections. The appeal is from the trial court's denial of appellants' motions for summary judgment.
Clark was injured when a front-end loader or back-hoe, which was positioned on loose and sloping soil with its tracks extended partially off the soil and out over the slope, slid down the slope and tilted over while Clark and another employee were standing in its bucket performing construction work. Clark's complaint alleged that the insurer made safety inspections of the work site, both pursuant to the provisions of the insurance policies and as a service performed independently of the contract; that these inspections were made not only to rate the risks but to assist Hensel Phelps in reducing accidents and losses and to protect the lives, health and safety of Hensel Phelps' employees; that both Clark and Hensel Phelps relied upon these inspections; that the inspections were negligently made and were not performed with reasonable care and skill; and that he was injured as a result of the insurer's negligent inspections.
1. The insurer contends that all inspections were performed solely with respect to the workers' compensation coverage. "Where an insurer issues both workmen's compensation and public liability insurance policies but limits its inspections of insured's premises to its role of workmen's compensation carrier, it is entitled as the employer's alter ego to the immunity afforded the employer under the Workmen's Compensation Act as against tort claims of insured employees. [Cit.]" Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 694 (1) (252 SE2d 199) (1979). However, since the standard safety inspection reports prepared by appellants refer to both the workers' compensation and liability insurance policy numbers, and appellants' inspector testified that he made the inspections to detect unsafe conditions and to help avoid accidents to the public as well as to the workers, it cannot be assumed as a matter of law that appellants were not subject to liability as third party tortfeasors under Code Ann. § 114-103 for alleged negligence in making safety inspections. Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 694 (2), supra.
2. In considering whether under the facts of the case an insurer was liable in common law tort for the negligent safety inspection of the premises, this court has since Sims v. American Cas. Co., 131 Ga. App. 461, supra, and its progeny approved and adopted the standards set forth in § 324A of the Restatement, *185 Second Torts, which provides as follows: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking."
Subparagraph (a) applies only when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed. The illustration given by the Restatement is that A store calls B electric company to repair a defective light hanging over one of the aisles of the store. B's workman repairs the light, but leaves the fixture so loosely attached that it falls upon and injures C, a customer in the store who is walking down the aisle. B is liable to C.
The evidence is undisputed in the instant case that until shortly before the incident in which Phillip Clark was injured the loader had been operating on level ground; that the loose dirt on which the loader was positioned had not been piled up until 11 or 11:30 a. m., the loader was moved at approximately 2 p. m., and the incident occurred that afternoon; that the loader tilted and slid down the slope because it was positioned on loose dirt which gave way under it; that Clark knew from safety meetings conducted by his employer that loose dirt should be tamped before moving heavy equipment such as the loader onto it; that Clark knew the dirt on which the loader was positioned had not been tamped and was loose, and that the loader was on a slope; that Clark was working from the bucket of the loader on the express instructions of his employer and was observed performing the work by supervisory personnel of Hensel Phelps; and that the insurer's safety inspector did not arrive at the construction site until after Clark was injured, at which time he then advised the Hensel Phelps safety officer that "using a front-end loader in that capacity was a dangerous thing to do and that henceforth ... to make sure it doesn't happen again." It is clear from these facts that the insurer in no way created a hazardous condition or increased the risk of an existing condition. See Smith v. Ammons, 125 Ga. App. 69 (1, 2) (186 SE2d 469) (1971), affd., 228 Ga. 855 (188 SE2d 866) (1972). Subparagraph (a) is inapplicable here.
Subparagraph (b) of the Restatement of Torts is likewise not controlling. The evidence established that the insurer had no *186 contractual obligation nor agreement to supervise the project premises or construction activities, that Hensel Phelps provided engineers, safety supervisors and safety officers to supervise matters of the safety of its employees' activities, including supervision and inspection, and that the insurer neither had, nor assumed, the authority to supervise or direct the employees of Hensel Phelps in the manner in which they performed construction work and activities. This provision would apply only had the insurer contracted or agreed to supervise the construction work for Hensel Phelps and then performed negligently so as to cause the injury to Clark. See Norair Eng. Corp. v. St. Joseph's Hospital, 147 Ga. App. 595, 599 (2) (249 SE2d 642) (1978).
Potential liability arises under subparagraph (c) if "the harm is suffered because of the reliance of the other or the third person upon the undertaking." The illustrations of such situations given in the Restatement are two of the most typical of such cases: negligent inspection of elevators by a third person where the owner of the building relies on the other's report that the elevator is in good condition, and failure of a crossing guard employed by the railroad to warn of approaching trains. See, e.g., Higgins v. Otis Elevator Co., 69 Ga. App. 584 (26 SE2d 380) (1943); Chumley v. L. & N. R. Co., 45 Ga. App. 732 (165 S.E. 917) (1932).
While Clark has alleged that he and Hensel Phelps relied upon the insurer's safety inspections, he does not assert that there was an unsafe and concealed condition on the premises of which the safety inspector possessed or should have possessed a superior knowledge as a result of his inspections. This is the crux of such actions, dating back to early cases involving steam boiler explosions and defects in or malfunctioning of other such inherently dangerous equipment or materials. E.g., Van Winkle v. American Steam-Boiler Ins. Co., 19 A 472 (N. J. 1890); Hartford Steam Boiler Inspection & Ins. Co. v. Pabst Brewing Co., 201 F 617 (7th Cir. 1912); Southeastern Elevator Co. v. Phelps, 70 Ga. App. 331 (28 SE2d 85) (1943); Womack v. Central Ga. Gas Co., 85 Ga. App. 799 (70 SE2d 398) (1952); Sims v. American Cas. Co., 131 Ga. App. 461, supra, and numerous cases cited therein; Aetna Cas. &c. Co. v. C. P. Co., 134 Ga. App. 552 (215 SE2d 314) (1975); U. S. Fire Ins. Co. v. Day, 136 Ga. App. 359 (221 SE2d 467) (1975); Penn. &c. Ins. Co. v. Thomas Milling Co., 137 Ga. App. 430 (224 SE2d 55) (1976); Winslett v. Twin City Fire Ins. Co., 141 Ga. App. 143 (232 SE2d 638 (1977); Redwing Carriers, Inc. v. Travelers Ins. Co., 147 Ga. App. 872 (250 SE2d 580) (1978); St. Paul Fire &c. Ins. Co. v. Davidson, 148 Ga. App. 82 (251 SE2d 32) (1978); Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 694, supra; Huggins v. Aetna Cas. &c. Co. 245 Ga. 248 (264 SE2d 191) (1980).
*187 Clark complains only of the work activities and procedures specifically ordered by his employer and, in contrast to the decisions upon which he relies, both he and his employer had full knowledge of the work to be undertaken and the circumstances under which it was to be done. Thus, even assuming that either Clark or Hensel Phelps relied upon the safety inspections of the insurer, the question arises as to what risks the insurer is being charged with negligently failing to warn of or discover.
The decisive factor is the nature of an insurer's duty to inspect as opposed to the duty to supervise owed to the employees of the insured. When an employer delegates its duty to properly supervise its employees' work activities to an insurer, the insurer can be held to have breached a duty which proximately resulted in injury to the employee. In the instant case, however, as in Tillman v. Travelers Indemnity Co., 506 F2d 917, 921 (5th Cir., 1975) and cases considered therein, "the employer had a legal obligation to exercise reasonable care in maintaining a safe place in which its employees could work. [Cit.] In each case the employer had its own safety program and consulted with a representative of the insurer regarding recommendations for safety improvements. More importantly, in each case the record was void of any indication that the employer had delegated to the insurer any part of its direct and primary duty to discover unsafe conditions. Proof that the insurer conducted its own safety inspections and consulted with the employer afterwards `falls far short of systemwide assumption of ... [the employer's] duty to discover ... hazards [cit.]." Under such circumstances an insurer does not owe an employee a legal duty to warn him or his employer of conditions which he and his employer had a greater opportunity to discover, and which involve the manner and circumstances under which the employees are directed to perform their work rather than defects in equipment or concealed hazards on the premises.
This is not to say that an insurer is not to inspect to observe compliance with safety procedures, but that it has no duty to report those hazards which it did not see or of which it had no superior knowledge. Winslett v. Twin City Fire Ins. Co., 141 Ga. App. 143 (1(b)), supra. While an insurer, as well as anyone else, should be held accountable for injuries proximately caused by its own negligence, the attempt to substitute the insurer for the insured so as to hold the insurer accountable for the negligence of the insured involves an entirely different legal theory of liability. We therefore hold that an actionable count based upon reliance by the employee or employer on the defendant's negligent safety inspections, where the duty to supervise has not been delegated to the defendant, must *188 allege and prove that the defendant failed to report unsafe working conditions after having observed them.
Since Clark did not contend that the insurer observed but failed to report the hazardous position of the loader, and it is undisputed that the loader was placed there and Clark ordered to work on it by the employer, thereby precipitating Clark's injury before the insurer's safety inspector arrived for his daily visit to the construction site, the requisite negligence of the insurer was not alleged nor was there any support for such a proposition in the affidavits and testimony before the court. Accordingly, it was error to deny the insurer's motions for summary judgment.
Judgment reversed. McMurray, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326786/ | 161 Ga. App. 591 (1982)
288 S.E.2d 914
BARTON
v.
THE STATE.
63216.
Court of Appeals of Georgia.
Decided March 11, 1982.
William W. Keith III, Bobby Lee Cook, for appellant.
Stephen A. Williams, District Attorney, J. O. Partain III, Assistant District Attorney, for appellee.
BIRDSONG, Judge.
Burglary. Allen Barton was convicted of three counts of burglary and sentenced to eight years, three to serve and five on probation. The facts presented authorized the jury to conclude that Barton owned an antique furniture auction in the township of Chatsworth. In between Christmas and New Years, 1980-1981, Barton engaged the services of three men to help him break and enter the premises of one Emily Cogburn. Mrs. Cogburn has a considerable amount of furniture which she had inherited from her family and stored in several buildings on her family's land. When Mrs. Cogburn became aware that her furniture had been stolen, she investigated several auction houses and found some of her furniture at Barton's furniture auction in Chatsworth. Mrs. Cogburn swore out an arrest warrant against Barton and based upon information from an employee of Barton's that there was more furniture stored in a shed behind *592 Barton's home sought to search that shed plus Barton's home. When Barton was arrested, he was advised of his right to insist on a search warrant but voluntarily agreed to allow police to search his place of business, his home and the shed. In his own testimony, Barton denied hiring any men to steal used furniture but contended rather that one of the men allegedly helping him had borrowed his (Barton's) truck and later had sold the furniture to Barton. Barton offered evidence of alibi on the night the alleged burglary took place. Following his conviction, Barton brought this appeal enumerating four alleged errors. Held:
1. In his first enumeration of error, Barton complains that the trial court erred in denying his motion to suppress. This enumeration is based upon an argument that the search warrant authorizing the search only described the "premises" located at an address in Chatsworth. Barton contends this authorized the search of his home but not of a shed about 20 feet behind his house. We reject this argument. "Premises" contemplates the entire living area used by its occupant. Living area may be otherwise expressed as the "curtilage." The word "curtilage" includes yards and grounds of a particular address together with the gardens, barn and buildings thereon. Bellamy v. State, 134 Ga. App. 340 (214 SE2d 383). The principle of curtilage comes to us from the common law and traditionally has included out-buildings, which may be searched as part of the "premises" though not specifically described so long as permission has been obtained to search the "premises." Bellamy v. State, supra. We find no merit in this enumeration.
2. In enumeration of error 2, appellant contends that the trial court erroneously denied him a continuance or alternatively failed to grant him a mistrial. The enumeration is based upon the contention that Barton was charged with burglarizing Mrs. Cogburn's buildings on January 2, 1981. In its opening statement, the state contended that it would show the commission of the offense on or about December 29, 1980. Appellant then requested a continuance because it was prepared to defend against January 2 and was not ready to defend against the date of December 29. Alternatively, the defense moved for a mistrial. However, the transcript affirmatively discloses that at the preliminary hearing the state indicated its evidence could only show an "on or about time frame" of the burglary in question. The burglarized buildings were not lived in by the victim but were used for storage purposes mainly or as a vacation home. The defense was aware that a matter of days were involved between the time the furniture was last seen and the discovery of the burglary. In addition to evidence adduced at the preliminary hearing, appellant was given a copy of a co-defendant's statement that showed that the burglary *593 took place several days before the date alleged in the indictment.
The purpose of the requirement of specificity in an indictment is to prevent surprise and to give a defendant appropriate notice to prepare his defense. DePalma v. State, 225 Ga. 465, 469-470 (169 SE2d 801). Appellant can hardly argue surprise inasmuch as he was on notice well in advance of trial that the state could not prove through the victim the exact date of the burglary. Moreover, appellant was aware that there was evidence that the burglary took place on a day certain. In point of fact, Barton was able to and did introduce evidence of an alibi as to the date of the alleged burglary notwithstanding the absence of a grant of continuance. We can find no error and certainly no prejudice to the appellant in the denial of his continuance or motion for new trial under the facts of this case. See McGruder v. State, 213 Ga. 259 (98 SE2d 564); Cherry v. State, 159 Ga. App. 75 (282 SE2d 717).
3. In his third enumeration of error, Barton complains the trial court erred in giving an accepted pattern instruction on the inference that the acts of a person are the product of his will and that he intends the natural and probable results thereof but such inference may be rebutted and whether to draw that inference rested solely within the discretion of the jury based upon the evidence. We find no error in this charge. A charge in almost identical language has been approved by this court in Bernard v. State, 159 Ga. App. 99 (282 SE2d 733). See also Skrine v. State, 244 Ga. 520 (260 SE2d 900).
4. In his final enumeration of error, appellant urges that the trial court erred in giving an "Allen" charge. The court gave a modified charge taken from Allen v. United States, 164 U.S. 492 (17 SC 154, 41 LE 528) in its initial charge to the jury. Subsequently, the jury experienced some difficulty in reaching a verdict and questioned the trial court as to certain issues. The trial court then gave a fuller charge based on Allen, supra. Barton now argues that by failing to place the burden of proof specifically upon the state in this last charge, the trial court shifted the burden to the defense.
We cannot agree. The trial court in its charge mentioned the burden of proof and the standard of reasonable doubt repeatedly. On at least fourteen occasions, the jury was informed that the guilt of the accused would have to be proven beyond a reasonable doubt. On at least four or more occasions the jury was told that the burden of proof rested exclusively on the state. Considering the charge of the court as an entity, as we must, there is little if any likelihood that the jury could have believed the defendant Barton had any burden of proving his innocence. Moreover, this same argument was made and rejected in Anderson v. State, 247 Ga. 397, 401 (276 SE2d 603). We find no merit in this enumeration.
*594 Judgment affirmed. McMurray, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326797/ | 161 Ga. App. 149 (1982)
288 S.E.2d 106
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY
v.
COLLINS et al.
63076.
Court of Appeals of Georgia.
Decided February 3, 1982.
Ogden Doremus, for appellant.
M. Francis Stubbs, Sam L. Brannen, for appellees.
QUILLIAN, Chief Judge.
Georgia Farm Bureau Mutual Insurance Company (GFB) brought this action against its insured, appellee Collins, and his mortgagee, for a declaratory judgment that GFB's homeowner's insurance policy covering Collins' dwelling which was destroyed by fire, was null and void because of material misrepresentations made by Collins in applying for the policy. A more detailed statement of the facts which caused GFB to commence this action is contained in Ga. Farm &c. Co. v. First Fed. &c. Assn., 152 Ga. App. 16 (262 SE2d 147) in which we affirmed the trial court's grant of summary judgment to the mortgagee. Collins counterclaimed for the policy coverages, bad faith penalties and attorney fees. A jury trial resulted in a verdict for Collins "in the amount of $38,000, which is $20,000 contents, $7,000 remainder of dwelling coverage, and $8,000 loss of use, plus $3,000 lawyer fees." After the jury was dispersed the parties agreed that the evidence did not support the $8,000 award of loss of use and that the attorney fees award exceeded a stipulation of the amount. Thereupon, on Collins' motion and over GFB's objection, the trial court amended the verdict by striking the $8,000 award of loss of use and the $3,000 for attorney fees, and entered judgment for Collins in the amount of $27,000. GFB appeals the verdict and the judgment. Held:
1. Error is asserted in two enumerations because the trial court amended the verdict on a matter of substance after the jury was dispersed, contrary to Code Ann. § 110-111, and because a portion of an illegal verdict cannot be written off to make it legal if it is so ambiguous the illegal portion cannot be determined, citing Walton v. Johnson, 212 Ga. 378 (92 SE2d 861).
We find no error. The verdict here is certainly not ambiguous, as each element thereof is specifically designated and all the elements add up to the total, contrary to the authority cited.
Furthermore, the items written off were not supported by *150 evidence. Code Ann. § 110-112 provides that if part of a verdict is legal and part illegal, the court may order it amended by entering a remittitur as to the illegal part and give judgment for the balance.
An amendment in substance after the jury is dispersed does not require reversal when the amount of the recovery is reduced in favor of the appellant. Ace Parts &c. Inc. v. First Nat. Bank, 146 Ga. App. 4 (3) (245 SE2d 314). "[A]ppellants will not be heard to complain of the judgment awarding an amount less than the jury declared they owed. Code Ann. § 110-112; [Cits.]" Bagwell v. Sportsman Camping &c. Inc., 144 Ga. App. 486 (2), 488 (241 SE2d 602).
2. The general grounds are raised in six enumerations. It is claimed that the verdict as amended is not supported by the evidence.
This court does not pass on the weight of the evidence, only on the sufficiency thereof. If there is any evidence to sustain a jury's verdict we will not disturb it. Howard v. Howard, 150 Ga. App. 213 (1) (257 SE2d 336). "This court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict, and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. [Cits.] Williams v. Stankowitz, 149 Ga. App. 865, 866 (256 SE2d 147).
GFB argues that because Collins was the only witness for the defense and because he was shown to have made prior statements inconsistent with portions of his testimony, his testimony should be disregarded. A party's testimony is construed most strongly against him if it is contradictory, vague and equivocal. Dowling v. Tracy, 116 Ga. App. 43 (1) (156 SE2d 524). However, we do not find Collins' testimony to be suffering from such defects to the extent it should be disregarded as incredible as a matter of law.
On the issue of whether Collins made material misrepresentations in obtaining the policy the evidence was conflicting with GFB's evidence indicating that he did and Collins testifying that he did not. We find that the evidence was sufficient to authorize the jury to find that no representations were made by Collins which would void the policy and that Collins was therefore entitled to recover on the policy.
3. Collins presented some evidence concerning the nature and monetary extent of his various losses, and the trial court in its charge did instruct the jury on the measure of special damages for bad faith penalties and attorney fees. However, the instructions given on the measure of compensatory damages for Collins' claim for recovery under the policy were inadequate to instruct the jury, to which GFB made appropriate objection.
This was error.
*151 "As was held in National Cas. Co. v. Dixon, 114 Ga. App. 362 (3) (151 SE2d 539) and cases therein cited: `Failure of the court to include in the charge instructions or rules for the computation of damages was error.' Accord, [Cits.]" First of Ga. Ins. Co. v. Worthington, 156 Ga. App. 588 (1) (275 SE2d 87).
Therefore, the verdict and judgment must be reversed.
4. In several enumerations, it is contended that the trial court erred in either giving or failing to give certain charges on fraud, burden of proof, rescission of the policy and form of verdict therefor.
We find no error as the charge as a whole fairly presented the law on the circumstances under which the policy could be rescinded and the other matters complained of and was adjusted to the evidence in the case. Jones v. Tyre, 137 Ga. App. 572 (3) (224 SE2d 512).
5. The remainder of the 30 enumerations are either mooted by the foregoing findings, are not meritorious, or are not likely to recur in further proceedings.
Judgment reversed. McMurray, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326864/ | 154 Ga. App. 124 (1980)
267 S.E.2d 633
DEDAVIESS
v.
U-HAUL COMPANY OF SOUTHERN GEORGIA et al.
58722.
Court of Appeals of Georgia.
Argued October 16, 1979.
Decided March 10, 1980.
Rehearing Denied March 26, 1980.
Robert M. Ray, Jr., for appellant.
Ann Wooten, Lanny B. Bridgers, for appellees.
SOGNIER, Judge.
DeDaviess appeals an order of the Superior Court of Chatham County dismissing U-Haul International of Phoenix, Arizona (hereafter U-Haul International) as a defendant for lack of jurisdiction and granting motions for summary judgment to defendants U-Haul Company of Southern Georgia, d/b/a Amerco Marketing Company (hereafter called Amerco), and U-Haul Company of Northern Florida (hereafter U-Haul of Florida).
In October, 1973 appellant entered into a contract with Amerco to act as agent for Amerco in handling U-Haul rental equipment. The contract provided that appellant would remit all rental monies received to U-Haul International Monday of each week; thereafter he would receive a commission for such rentals. In November, 1975 Amerco assigned the DeDaviess contract to U-Haul of Florida. In December, 1975, appellant, without notice, ceased operating as a U-Haul dealer and transferred the U-Haul equipment in his possession to another U-Haul dealer, retaining $326.90 of the rental money he had collected, claiming Amerco refused to reimburse him for the cost of a U-Haul sign, the cost of which Amerco had promised to pay. In October, 1976 Williams, an agent of U-Haul of Florida who was responsible for collection of debts, obtained a criminal warrant against DeDaviess for theft by *125 conversion of the rental monies he had retained. After a hearing in the Municipal Court of Savannah the criminal complaint was dismissed. Appellant filed this action against Amerco, U-Haul of Florida and U-Haul International seeking damages for false and malicious prosecution. U-Haul International filed a motion to dismiss the complaint for lack of jurisdiction. The other two defendants filed motions for summary judgment on the ground that there was no material issue of fact and they were entitled to summary judgment as a matter of law. The trial court granted the motions of all defendants.
DeDaviess contends the trial court erred in granting summary judgment to defendants Amerco and U-Haul of Florida, as genuine issues of material fact remain to be resolved by a jury. DeDaviess also contends the trial court erred in granting U-Haul International's motion to dismiss for lack of jurisdiction because (a) U-Haul International lacked standing to bring a motion to dismiss without removing its legal impediment to do so; (b) that U-Haul International failed to prove it was not doing business in Georgia; and (c) that any proof it sought to rely on was controverted. We do not agree.
1. Neither Amerco or U-Haul International had any interest in the criminal warrant and Williams did not act as their agent; hence the summary judgments were properly granted as to those parties. Amerco had assigned its interest in the contract prior to issuance of the warrant.
The trial court correctly ruled it had no jurisdiction over U-Haul International. The uncontroverted affidavit of the treasurer of U-Haul International provided that it had never been licensed to do business in Georgia and that it does not now transact business, and had never transacted business, in the State of Georgia. As to appellant's contention that U-Haul International must remove its "legal impediment" before filing a motion to dismiss, Code Ann § 22-1401 (b) provides, in part: "Without excluding other activities ... a foreign corporation shall not be considered to be transacting business in this State... solely by reason of ... (1) Maintaining or defending any action or suit ..." Accordingly, there was no legal impediment to U-Haul International's motion to dismiss.
2. With regard to U-Haul of Florida, an examination of the record discloses no material issue of fact. The facts related at the beginning of this opinion are not in dispute so the only issue would be whether U-Haul of Florida, through its agent Williams, maliciously procured the warrant against appellant. DeDaviess *126 acknowledged that he kept money collected for U-Haul rentals and did not transmit it to U-Haul as required by his contract but was doing so as a set-off.
The mere fact that Larry Williams had no "personal malice" against DeDaviess is not material, as DeDaviess' action is against U-Haul of Florida, not Larry Williams. Thus, the question to be decided is whether U-Haul of Florida acted maliciously, as Williams was their alleged agent, and a principal is responsible for the torts of his agent when the agent is acting on behalf of the principal.
This Court has held that good faith is always a question for the jury. Hodges v. Youmans, 129 Ga. App. 481 (3), 483 (200 SE2d 157) (1973). Accord, Ginn v. C. & S. Nat. Bank, 145 Ga. App. 175, 177 (243 SE2d 528) (1978). Finally, we note that the presentment of criminal charges to obtain an advantage in a civil matter (such as collection of a debt) violates Standard 49, Canons of Ethics, Part III, Code Ann. Title 9 appendix. The affidavits of Larry Williams and Eugene Miller, president of U-Haul of Florida, indicate that Williams and a Georgia attorney decided on "a criminal course of action" against DeDaviess to collect the debt owed by him to U-Haul of Florida. This action was approved by Miller. Thus, a Georgia attorney, acting on behalf of U-Haul of Florida, agreed to a cause of action which is prohibited by Standard 49, Code of Ethics, supra. This course of action, in itself, could be construed as an act of malice, and presents a genuine issue of a material fact to be decided by a jury. Accordingly, it was error to grant summary judgment to U-Haul of Florida.
Judgment affirmed in part; reversed in part. McMurray P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326820/ | 267 S.E.2d 345 (1980)
47 N.C. App. 323
Marion E. BROWN
v.
Howard R. BROWN.
Nos. 804DC97, 804DC98.
Court of Appeals of North Carolina.
June 17, 1980.
*347 E. C. Collins, Jacksonville, for plaintiff-appellee.
Patrick M. Donley, Jacksonville, for defendant-appellant.
HARRY C. MARTIN, Judge.
In one of his briefs, defendant argues that the court erred in denying his motion to dismiss this action for lack of jurisdiction over the person of the defendant and lack of jurisdiction over the subject matter. His first contention is that because the court failed to make findings of fact and conclusions of law as required on any motion when requested by a party to that motion, N.C.G.S. 1A-1, Rule 52(a)(2), was not complied with. The record discloses that no findings of fact or conclusions of law were made by the court in denying defendant's motion to dismiss, but, more significantly, the record fails to show that defendant requested such findings and conclusions. Absent request, the court is not required to find facts and make conclusions of law. If the court does not do so in this situation, it is presumed that the court on proper evidence found facts to support its judgment. Williams v. Bray, 273 N.C. 198, 159 S.E.2d 556 (1968); Sherwood v. Sherwood, 29 N.C.App. 112, 223 S.E.2d 509 (1976).
Defendant's additional contention is that jurisdiction over a nonresident that would be sufficient to authorize a North Carolina court to render a personal judgment against him for alimony, child support and attorney's fees can be acquired only by personal service of process within the territorial jurisdiction of the court. This contention cannot be upheld. This Court has previously determined that when defendant personally receives by registered mail in another state copies of the summons and complaint, this manner of service of process gives the court of North Carolina personal jurisdiction over the defendant which will support a judgment in personam for payment of alimony. Sherwood, supra. The Court reached this conclusion after holding that an action for alimony on the ground of abandonment is a claim of "injury to person or property" under N.C.G.S. 1-75.4(3). Because such an action is grounds for personal jurisdiction under N.C.G.S. 1-75.4, the longarm manner of personal service provided under Rule 4(j)(9)(b) may be utilized. Furthermore, *348 under the circumstances of the Sherwood case, the Court found that the "minimum contacts" test had been met and that due process had been satisfied. Because the circumstances of this case are essentially identical to those of Sherwood, we hold that the service of process on defendant, a nonresident, by certified mail, gave the court personal jurisdiction over him which will support the order for alimony pendente lite, custody, and child support.
Moreover, we think that by defendant's participation in the 2 April 1979 hearing, his agreement with plaintiff as to a disposition of the tax refund for 1978, and his desire that it be incorporated into the 2 April order, he submitted himself to the jurisdiction of the court.
In his other brief, defendant assigns as errors certain findings of fact and conclusions of law made by Judge Henderson in the order adjudicating defendant to be in willful contempt of court. Defendant continues to argue that the order of 2 April 1979 should never have been entered because the court lacked personal jurisdiction over defendant. Because we have held that the court did have personal jurisdiction over defendant, the finding of fact that an order was entered on 2 April 1979 requiring defendant to pay $400 per month for child support and $200 for attorney's fees is supported by competent evidence, perhaps the most competent evidence ever availablethe actual inclusion of the order in the record, with its date and specific provisions. The finding, therefore, is conclusive on appeal. General Specialties Co. v. Teer Co., 41 N.C.App. 273, 254 S.E.2d 658 (1979).
Similarly, the findings that the order to show cause was duly served on defendant and that plaintiff and defendant were both represented by counsel at the hearing on the order are supported by the record. Defendant attempts to persuade us that because his attorney made a limited entry to determine jurisdictional issues only, "service of any other matters must be made personally upon the Defendant and may not be served to the attorney of record who has limited his appearance." The law in North Carolina fails to support this argument. By filing an answer and counterclaim, defendant made a general appearance in this action. A general appearance has consistently been defined as "one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person." In re Blalock, 233 N.C. 493, 504, 64 S.E.2d 848, 856, 25 A.L.R. 2d 818, 828 (1951); Swenson v. Thibaut, 39 N.C.App. 77, 250 S.E.2d 279 (1978), disc. rev. denied, appeal dismissed, 296 N.C. 740, 254 S.E.2d 182 (1979). Because defendant's appearance was general, service upon him of copies of the order to show cause by hand delivery to his attorney, which service is reflected in the record, complied with N.C.G.S. 1A-1, Rule 5(b), and was therefore valid.
Defendant excepted to the court's finding that defendant had failed to make payments required by the order and was in arrears of $600 for child support and $200 for attorney's fees. The affidavit of plaintiff competently supports this finding of fact. As mentioned earlier in this opinion, defendant failed to timely appeal from the 2 April 1979 order; therefore, the award of attorney's fees to plaintiff, included in that order, cannot now be contested.
Finally, defendant excepted to the finding that plaintiff's attorney had rendered valuable legal services to plaintiff in bringing the contempt proceedings, with a value of no less than $100. This finding in turn underlies the award of $100 attorney's fees to plaintiff's counsel. Defendant's assignment of error based upon this exception must be sustained. An award of attorney's fees here cannot be upheld where the court failed to make findings of fact upon which a determination of the reasonableness of the fees can be based, such as the nature and scope of the legal services rendered, and the skill and time required. Powell v. Powell, 25 N.C.App. 695, 214 S.E.2d 808 (1975). The conclusory finding that plaintiff's attorney had rendered "valuable" legal *349 services fails to qualify as a finding upon which a determination of the reasonableness of the $100 fee can be based.
The assignment of error based on defendant's exception to the conclusion of law that his failure to make payments under the 2 April 1979 order "has been willful and without legal justification or excuse" cannot be sustained. The court's finding of fact that "defendant has been gainfully employed on a full-time basis and has had no change in his income or expenses which would justify a refusal to pay the support and attorney fees as ordered" was not excepted to by defendant. It is therefore presumed to be supported by the evidence and is binding on appeal. James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759 (1955). Moreover, the finding supports the conclusion of law based upon it.
The court's denial of defendant's motion to dismiss for lack of personal jurisdiction is affirmed.
The court's order finding defendant in willful contempt of court is affirmed. The award of attorney's fees to plaintiff's counsel in bringing the contempt proceedings is vacated.
WEBB and WELLS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326828/ | 161 Ga. App. 725 (1982)
288 S.E.2d 671
WALDEN
v.
METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
63060.
Court of Appeals of Georgia.
Decided February 24, 1982.
Rehearing Denied March 18, 1982.
Larry Cohran, for appellant.
Thomas G. Sampson, Charles R. Coleman, Linwood R. Slayton, Jr., for appellee.
McMURRAY, Presiding Judge.
This is a personal injury case in which the plaintiff contends he was struck by a bus in the City of Atlanta, the said bus being owned by the Metropolitan Atlanta Rapid Transit Authority. He alleges that the defendant's negligence by and through its authorized driver was the proximate cause of his injuries.
The defendant, inter alia, denied the complaint but admitted, for the purpose of this litigation, the jurisdiction of the court, otherwise denying the claim. Plaintiff later amended his complaint to enlarge upon the damages he suffered both as to medical bills, pain and suffering, nursing care and lost wages. The case proceeded to trial and resulted in a verdict and judgment for the defendant. The motion for new trial, as amended, was thereafter filed and denied after a hearing. Plaintiff appeals. Held:
The first enumeration of error is that the trial court erred in excluding the plaintiff from the courtroom over his objection while a *726 defense witness, the driver in this instance, was called by the plaintiff for the purpose of cross-examination. At first blush it would appear from the cases cited by the plaintiff that the trial court was in error in excluding the party under the rule of sequestration during the progress of the trial. St. Paul Fire &c. Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786 (1), 789 (39 S.E. 483), states clearly that a party to the issue on trial has a right to be present and in that case it was, "manifestly erroneous to exclude her from the court-room." See also in this connection Georgia R. &c. Co. v. Tice, 124 Ga. 459, 460 (3), 465 (52 S.E. 916), where it is clearly stated that the rule of sequestration of witnesses does not apply where the witness is a party, although there may be several parties on the same side of a case who are to be witnesses. See also Knox v. Harrell, 26 Ga. App. 772 (1) (108 S.E. 117). But counsel for defendant has cited Davis v. Atlanta Coca-Cola Bottling Co., 119 Ga. App. 422 (2) (167 SE2d 231), that the trial court did not err "upon request for sequestration of witnesses, in giving the plaintiff the option of testifying first himself or leaving the courtroom while he first presented other witnesses. The action of the court was proper to preserve the defendant's right to sequestration of the witnesses and the plaintiff's right to be present during the whole trial of the case," citing Tift v. Jones, 52 Ga. 538 (4), 539, 542. The Tift case clearly states in headnote 4 that if a party intends to be a witness for himself and sequestration is called for, that "it is the proper rule, unless there be special reasons to the contrary, that such party should first be examined in the absence of his other witnesses, in order that he may thereby be present, as is his right, during the whole trial of his case." At page 542 the Supreme Court cites the sequestration rule (now Code § 38-1703) and that if the party "intends to be a witness for himself, it would be a proper rule that such party should be first examined, unless there be reasons to the contrary, in the absence of his other witnesses. This would preserve his right to be present in the court during the whole trial of his case." That court then cites situations wherein the trial court might not require that he be ordered to be examined first but the particular circumstances of each case must control, "under the discretion of the court" and that the trial court's discretion should not be interfered with unless clearly abused (at page 543 of the reprint), "and the courts will doubtless take care that the party proposing to be a witness shall not willfully disregard the rule, nor the other party improperly disable him in the exercise of every right the law gives him." Under the stipulation of facts on which this appeal is based, the parties only agreed, among other things, that the plaintiff had the burden of proof and called the employee, an agent of the defendant (the driver of the bus), ostensibly for the purpose of cross-examination, at which time the *727 trial court on its own motion, ordered that the plaintiff sequester himself from the courtroom while this witness was cross-examined by the plaintiff's attorney over the objection of plaintiff's attorney. No transcript of the trial is before the court inasmuch as the parties had agreed it would not be necessary for the plaintiff to file the transcript since counsel for plaintiff in the motion for new trial was only insisting on the alleged error in sequestering the plaintiff from the courtroom during the cross-examination of the defendant's employee and agent. The stipulation of facts fails to disclose that the plaintiff himself was appearing as a witness in his own behalf. However, an amendment to the stipulation of facts contains the language that the plaintiff called this witness "before plaintiff himself testified." Under the circumstances of this case the trial court did not abuse its discretion in excluding the plaintiff from the courtroom over his objection while a defense witness was testifying on cross-examination. Had the plaintiff testified as a witness first a different situation would have occurred, and we decline to speculate on whether or not in that situation the trial court would have required that he be sequestered as to the witness on cross-examination. We do not find the enumeration of error based upon the above, as well as the overruling of the plaintiff's motion for new trial, as amended, to be meritorious. See Boutelle v. White, 40 Ga. App. 415 (1) (149 S.E. 805); Cone v. Davis, 66 Ga. App. 229, 238 (14) (17 SE2d 849); Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 443 (6) (208 SE2d 321).
Judgment affirmed. Quillian, C. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326842/ | 154 Ga. App. 288 (1980)
267 S.E.2d 892
HAY
v.
McKINLEY.
59327.
Court of Appeals of Georgia.
Argued February 6, 1980.
Decided April 9, 1980.
James B. Drew, Jr., for appellant.
Donald M. Comer, Chuck J. Driebe, for appellee.
BIRDSONG, Judge.
Breach of contract. The facts of this case show that appellants Mr. and Mrs. Hay undertook to purchase a 1973 Rambler auto from the appellee McKinley d/b/a Tempo Sales and Leasing Co. They traded an older model Cadillac plus $575 cash as the purchase price. McKinley was not present when the sale was consummated. The Hays took possession of the Rambler on the day of the sale, signed over title to the Cadillac to Tempo and left the Cadillac with Tempo. Mr. and Mrs. Hay were aware at the time of the sale that Tempo did not have present possession of the title to the Rambler. The bill of sale had notated thereon that tag and title transfer for the Rambler had been applied for. The Hays did not receive the tag or title transfer for two months at which time the actual owner notified the Hays that if he were not paid for the car he would repossess. Mrs. Hay testified that she contacted McKinley and was assured by McKinley that he was doing all he could to obtain title. In point of fact a wholesaler had made arrangements with salesmen on McKinley's used car lot to sell the Rambler and then to pay the wholesaler for the car. The wholesaler had not at that time obtained title to the Rambler. The ultimate agreement was for the wholesaler to take and sell the Cadillac as at least part payment. When the sale of the Cadillac did not materialize, the wholesaler demanded cash. When this was not forthcoming, the wholesaler refused to deliver to Tempo the title to the Rambler which the wholesaler had obtained after the sale to the Hays. Mr. and Mrs. Hay brought suit against McKinley seeking damages for breach of contract including the value of the Cadillac, rental of a replacement auto and the cash difference payment. By amendment, the Hays *289 added a count for fraud and deceit seeking punitive damages and attorney fees. The trial court granted partial summary judgment to the Hays on the issue of liability on the breach of contract (i.e., failure to deliver title) and following a non-jury trial rendered judgment to the Hays for the value of the Cadillac, rental and the cash payment. The trial court denied any recovery for fraud and deceit to include punitive damages or attorney fees. The trial court also denied a motion for a new trial in which complaint was made that the court erred in finding no fraud or deceit. Held:
1. We affirm. We are confronted in this case with what essentially is a question of fact. The trial court was warranted in believing that the Hays took the Rambler with knowledge that Tempo did not have title at the time of the sale but that title could be expected to be delivered in the future when obtained by Tempo. There is no evidence that Tempo knew or had reason to believe at the time of execution of the contract that it could never obtain title. In fact the evidence is undisputed that if the sale of the Cadillac had been accomplished, the wholesaler would have been satisfied and delivered title to the Rambler either to Tempo or the Hays. Moreover, it seems clear that even after Mrs. Hay became aware that there was difficulty in obtaining the title, she agreed to a continuation of the arrangement, seeking only the Rambler and title thereto. Based upon such evidence, the trial court properly concluded that a count of fraud and deceit would not lie. Fraud and deceit cannot be predicated upon statements which are promissory in their nature as to future acts. Motors Ins. Corp. v. Morgan, 117 Ga. App. 654, 656 (161 SE2d 382). Moreover, in this case the Hays elected to affirm the contract. Thus, they are bound by the terms of the contract and may not recover for asserted fraud and misrepresentation of the seller as to delivery of the title when they were on specific notice that the seller did not have title at the time of the sale. Gem City Motors v. Minton, 109 Ga. App. 842, 847 (137 SE2d 522).
2. Specifically, in their four enumerations of error, appellants complain that the trial court erred in denying the motion for new trial; in concluding that there was no fraud and deceit; in concluding that the Hays affirmed the contract; and finding that the Hays were advised by Tempo that it did not have title at the time of the sale and thereafter did not inform the Hays that it could not obtain title. It is obvious that each of these enumerations involves factual matters. It is the law of this state that a trial judge's findings of fact, like the factual conclusions of a jury, are binding on appeal and unless wholly unsupported or clearly erroneous will not provide *290 SE2d 154). We conclude not only that the conclusions of the trial court are supported, but further, that they are the only ones reasonably that could have been made. We will not substitute our judgment for that of the trial court. The enumerations complaining of the factual determinations of the trial court are without merit.
Judgment affirmed. Deen, C. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326872/ | 267 S.E.2d 93 (1980)
Alvin V. LEAKE
v.
Eugene MEREDITH.
Record No. 780346.
Supreme Court of Virginia.
June 6, 1980.
*94 Lanier Thurmond, Richmond, (Thurmond & Glass, Richmond, on briefs), for appellant.
Clarence B. Neblett, Jr., Richmond, (Dennis P. Brumberg, Norma B. Carl, Baer, Neblett, Brumberg & Carl, Richmond, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
I'ANSON, Chief Justice.
In this appeal, we must determine whether warranty provisions of Virginia's Commercial Code § 8.2-315,[1] which parallels § 2-315 of the Uniform Commercial Code, are applicable to a chattel lease.
Plaintiff, Eugene Meredith, filed a motion for judgment against Alvin V. Leake, defendant, to recover damages for personal injuries sustained when an aluminum extension ladder rented from the defendant broke while being used by the plaintiff. The plaintiff's motion for judgment was premised upon one count of negligence and another count of breach of implied warranty of fitness for a particular purpose. At the conclusion of all the evidence, the trial court ruled, as a matter of law, that the defendant had not been negligent and that the disclaimer of an implied warranty did not meet the conspicuousness requirement of Code § 8.2-316(2).[2] The sole issue before the jury was whether there had been a breach of an implied warranty of fitness for a particular purpose. The jury returned a verdict for the plaintiff in the amount of $7,500, and judgment was entered thereon. We granted the defendant an appeal.
On October 16, 1974, the plaintiff rented a 40-foot aluminum extension ladder from the defendant, who operated a paint store. The plaintiff, a general contractor and house painter for more than 35 years, had rented ladders and bought paint from the defendant for approximately 11 years. On the day of the rental, the defendant's daughter, an employee of the store, waited on the plaintiff. The plaintiff informed the defendant's daughter of the purpose for which the ladder would be used. After being shown several ladders, the plaintiff inspected the ladder selected by another of the defendant's employees and stated that it was "all right." The rental agreement was evidenced by a receipt, which provided that the ladder was rented "as is" at the rate of $4 per day. Attached to the ladder was a label specifying the proper angle at which the ladder should be set and detailing other safety precautions. The plaintiff used the ladder without any problems for three days while painting the sides and rear of a house. While painting the front of the house on October 19, 1974, however, the plaintiff was injured when the ladder broke and he fell to the ground.
The crucial issue involved in this appeal is whether Virginia's Commercial Code § 8.2-315 is applicable to chattel leases. By giving a jury instruction[3] clearly based upon Code § 8.2-315, the trial court held that this code section was applicable to the lease involved in this case.
*95 Code § 8.2-315, concerning implied warranty of fitness for a particular purpose, expressly refers to buyers and sellers. A "buyer" is defined as "a person who buys or contracts to buy goods," Code § 8.2-103(1)(a); a "seller" is "a person who sells or contracts to sell goods," Code § 8.2-103(1)(d). "A `sale' consists in the passing of title from the seller to the buyer for a price." Code § 8.2-106(1). Furthermore, Code § 8.2-106(1) provides that "unless the context otherwise requires `contract' and `agreement' are limited to those relating to the present or future sale of goods." A literal reading of these Code sections thus indicates that the implied warranty of fitness for a particular purpose (Code § 8.2-315) applies to sales only, and not to bailments or chattel lease transactions. See, e.g., DeKalb Agresearch, Inc. v. Abbott, 391 F.Supp. 152 (N.D. Ala. 1974), aff'd mem., 511 F.2d 1162 (5th Cir. 1975); Mays v. Citizens & Southern National Bank, 132 Ga.App. 602, 208 S.E.2d 614 (1974); Bona v. Graefe, 264 Md. 69, 285 A.2d 607, 48 A.L.R.3d 660 (1972).
The appellee has relied heavily upon Comment 2 to Code § 8.2-313, which notes that "the warranty sections of this Article [Article 2] are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined ... to sales contracts." Even this Comment does not suggest, however, that the Uniform Commercial Code is applicable to non-sales transactions or that a common-law warranty concerning leases parallels the provisions of the Code. Indeed, the first clause of Comment 2 notes that "this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as a part of a contract for sale." (Emphasis added.) Moreover, while Official Comments concerning the Uniform Commercial Code are frequently helpful in discerning legislative intent, they should not become devices for expanding the scope of Code sections where language within the sections themselves defies such an expansive interpretation.
Although we are aware of several cases in which the warranty provisions of the Uniform Commercial Code have been held applicable as to leases, see Annot., 48 A.L.R.3d 668 (1973), we note that most of these cases concern instances in which the lease contained an irrevocable option to buy. Since the rental agreement at issue in this case contained no such provision, these cases are of little value in resolving the issue before us.
When it enacted the Uniform Commercial Code, the General Assembly made several modifications in the language of the uniform act. We are unwilling to assume that the legislature was unaware of the limitations arising from the language used in the warranty sections. If the General Assembly had intended the warranty provisions of the Code to be applicable to leases, it could have changed the terms of these provisions. Since the legislature chose not to do so, we conclude that Code § 8.2-315 is inapplicable to chattel leases.[4]
For the reasons stated, the judgment of the court below is reversed and set aside, and final judgment is here entered for the defendant.
Reversed and final judgment.
COMPTON, J., dissenting.
COMPTON, Justice, dissenting.
I would affirm the decision below, applying the warranty provisions of Virginia's Uniform Commercial Code to a chattel lease.
NOTES
[1] Code § 8.2-315 provides: "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section [§ 8.2-316] an implied warranty that the goods shall be fit for such purpose."
[2] Code 8.2-316(2) provides that any disclaimer of an implied warranty of fitness must be "by a writing and [must be] conspicuous."
[3] Instruction No. 6 provided that: "If you believe from a preponderance of the evidence that the defendant had reason to know the particular purpose for which the ladder was required, and that the plaintiff relied on defendant's skill or judgment to select or furnish a suitable ladder, there is an implied warranty or promise that the ladder shall be fit for such purpose. And if you further believe from such evidence that the defendant breached such implied warranty and that any such breach was a proximate cause of the plaintiff's injuries, then you shall find your verdict in favor of the plaintiff."
[4] Even if Code § 8.2-315 were applicable, it is not clear that Meredith would be entitled to recover. Code § 8.2-316(3) provides that "notwithstanding" the provisions of § 8.2-316(2), which includes a requirement that warranty disclaimers be conspicuous, "all implied warranties are excluded by expressions like `as is.'" It is not settled that disclaimers pursuant to Code § 8.2-316(3) must be conspicuous. See J. White & R. Summers, Uniform Commercial Code § 12-6 at 366 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326876/ | 154 Ga. App. 68 (1980)
267 S.E.2d 466
SCHOEN et al.
v.
HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF ATLANTA.
59031.
Court of Appeals of Georgia.
Submitted January 10, 1980.
Decided March 5, 1980.
Rehearing Denied March 20, 1980.
Fred A. Gilbert, Leonard S. Luckett, for appellants.
Paul Oliver, Jefferson D. Kirby, III, for appellee.
BIRDSONG, Judge.
Plea in abatement. Home Federal Savings & Loan Assn. filed a dispossessory proceeding against the Schoens in DeKalb State Court, to which the Schoens filed a plea in abatement based upon an action pending in Fulton Superior Court. The sole question on appeal is whether the DeKalb court erred in overruling the Schoens' plea in abatement. We conclude that it did.
In the prior pending Fulton Superior Court action the Schoens seek to quiet title and retain possession of their home lot in DeKalb County, as against Home Federal and others. It is there alleged that the Schoens purchased the property in 1963, and in 1977, sought refinancing from two individuals named Minter and Fiala, and their companies. The Schoens executed a warranty deed to Minter Financial Services, but they allege that the transfer was intended to be security for the refinancing loan obtained from Minter Financial Services and that it was agreed the property would be deeded back to the Schoens. A few months later, the Schoens, while continuing to live in the house and make payments to Minter under the refinancing agreement, discovered that Minter had conveyed the property to a person wholly unknown to the Schoens, named Robert O. Smith. Smith had in turn executed a deed to secure debt to Federated Financial Mortgage Corp. in September, 1977, which deed was assigned to Home Federal. Apparently, Robert O. Smith made no payments to Home Federal and became in default. On July 3, 1978, the Schoens filed suit in Fulton Superior Court against Home Federal, Federated Financial Mortgage Corp., Minter, Fiala, Minter Financial Services, Defco, Inc., and Robert O. Smith. They alleged fraud, cheating and swindling, and bad faith against Minter, Fiala and Smith; they seek damages, and the cancellation of their warranty deed to Minter Financial Services and of the deed to secure debt from Robert O. Smith, which was assigned to Home Federal. On the day they filed the action in Fulton Superior Court, the Schoens obtained a court order restraining and enjoining Home Federal from proceeding in foreclosure against Robert O. Smith. This injunction was later dissolved, it being conceded by the Schoens that Robert O. Smith was in default on his apparent financial obligation to Home Federal. Home Federal foreclosed, purchased Smith's alleged interest in the property at its sale under *69 power, and in March, 1979, filed the dispossessory proceedings in DeKalb State Court, against the Schoens as tenants holding "without right, title and interest," and as tenants at sufferance.
In seeking to abate the dispossessory proceedings, the Schoens offered the record in the Fulton County action. In overruling the plea, the DeKalb court as a court of law, not equity, declined to consider the record in the Fulton County action but limited its consideration to the Smith documents which on their face give title to Home Federal Savings & Loan, to the demand for possession made by Home Federal, and to the fact that the Schoens "are and were in possession of the subject real estate." It was error for the court to so limit its consideration because the Schoens pleaded no substantive equitable defense to the dispossessory proceeding in DeKalb State Court, but instead asserted the pendency of the other suit which, if it had the effect of settling the issues of title and possession, would as a matter of law under Code § 3-607 abate the dispossessory proceeding. The trial court queried why the Schoens did not move in the Fulton Superior Court to enjoin the DeKalb State Court proceedings (see, e.g., Coffey Enterprises Realty &c. Co. v. Holmes, 233 Ga. 937 (213 SE2d 882)), but it is apparent that the plea in abatement under Code § 3-607 in the DeKalb State Court was offered by the Schoens as their adequate remedy at law; and though seemingly circuitous, it was well chosen, for it avoids petitioning the Fulton Superior Court to do in equity what the DeKalb Court already had jurisdiction to do at law (see Flynn v. Merck, 204 Ga. 420, 423 (49 SE2d 892)).
In defense of the DeKalb State Court's denial of the Schoens' plea, appellee Home Federal asserts that Code § 3-607 provides for abatement of an action because of a prior pending action, only where the two actions are "for the same cause of action," and that identical causes of action are not presented by the two suits. We reject this contention. The requirement that the two cases be of "the same cause of action" is founded on the doctrine that "no one should be twice harassed, if it appear to the Court that it is for one and the same cause." (Emphasis supplied.) Rogers v. Hoskins, 15 Ga. 270, 273. To that end, a too technical reading of the provision regarding "the same cause of action, between the same parties" would be ill-conceived. (See, Rogers, supra, p. 273.) The plea in abatement has been held good even where the causes of action are, technically speaking, legally disparate and rest in opposite parties, if they arise out of the same transaction and if the second suit would resolve the same issues as the first pending suit and would therefore be "unnecessary, and consequently oppressive." See Hood v. Cooledge, *70 39 Ga. App. 476, 479 (147 SE 426); Rogers, supra, p. 274. A judgment in a prior suit adjudicating the legal or equitable title to the same land will estop a later inconsistent suit in ejectment among the same parties (Dickerson v. Powell, 21 Ga. 143); or a later dispossessory proceeding (Garrick v. Tidwell, 151 Ga. 294 (106 SE 551); Allen v. Allen, 154 Ga. 581, 587 (115 SE 17); or other suit touching the right to entitlement between the parties (Cosnahan v. Johnston, 108 Ga. 235, 237-238 (33 SE 847)). So, for the same reasons, a pending suit "for the same property" will, on a plea in abatement, bar a later inconsistent action in ejectment, Citizens & Contractors Bank v. Johnson, 175 Ga. 559, 560 (165 SE 579).
It was held in Coffey, supra, a case very similar on its facts to the one before us that the Cobb Superior Court did not err in enjoining dispossessory proceedings in the Cobb State Court, because each action involved a dispute as to possession of the same land and arose out of the same transaction and occurrence. In that case, it was held that Coffey was required by Code § 81A-113(a) to raise the issue of its right to possession in the superior court action filed by Holmes. The premise of that holding is the same as in each of the cases just cited (Dickerson, Allen, Cosnahan, and Citizens & Contractors Bank), which is that the determination of entitlement to the land in the first action will necessarily dispose of the issue of entitlement in the second action, since both touch on the same land and are between the same parties. It is urged however, that in the case sub judice the issue in the DeKalb dispossessory proceeding is as to Home Federal's right to possession following its purchase of the property at its own sale under power after Robert O. Smith's default, which is said to be a different matter entirely from the issues in the Fulton County action. This argument is specious; in the pending action the Schoens seek title and possession, as against Home Federal, of the same property of which Home Federal seeks title and possession as against the Schoens in the dispossessory proceeding. "While there [is] some difference in the character of the title alleged [in each action] ... this [is] not a substantial variance, the former suit being sufficiently broad to comprehend all the relief sought in the latter." Eppinger v. Seagraves, 141 Ga. 639, 640 (81 SE 1035).
The Schoens contend, in their action in Fulton Superior Court, that they have been in open, notorious, and continuous possession of the property since 1963, and that while accepting a deed to secure debt from Robert O. Smith, neither Home Federal nor Federated Financial Mortgage Corp. ever inquired as to the Schoens' title; that their possession of the property was notice of their claim to *71 ownership, and that the sale of the real estate where they, the grantors to Smith's grantor, remained in possession is a "signal flag" for fraud. "`Possession retained by the vendor, after an absolute sale of real or personal property, is prima facie evidence of fraud, which may be explained, and after the possession is proven, the [burden] of explaining it rests upon those who claim under the sale.'" Perimeter Dev. Corp. v. Haynes, 234 Ga. 437, 438 (216 SE2d 581). Home Federal clearly had notice of the Schoens' claim before Home Federal foreclosed and purchased the property at its own sale (see Coffey, supra, pp. 939-940). If the Schoens win their case in Fulton Superior Court, the judgment will be a bar to any dispossessory proceedings against the Schoens. It is manifest, therefore, that the state court action involves the same cause of action as that in the Fulton Superior Court. The "cause of action" in each suit is title and possession of the same land, as against the other party. The dispossessory proceedings should have been abated pending the final determination of the action in Fulton Superior Court.
Judgment reversed. Deen, C. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326878/ | 267 S.E.2d 30 (1980)
47 N.C. App. 357
Joseph D. LATHAN
v.
UNION COUNTY BOARD OF COMMISSIONERS and Union County and Gladys Nesbit and Keith A. Nesbit.
No. 7920SC1181.
Court of Appeals of North Carolina.
June 17, 1980.
*31 Joe P. McCollum, Jr., Monroe, for plaintiff-appellee.
Griffin, Caldwell & Helder by Thomas J. Caldwell and H. Ligon Bundy, Monroe, for defendants-appellants Union County Board of Commissioners and Union County.
Smith, Smith, Perry & Helms by Henry B. Smith, Jr., Monroe, for defendants-appellants Gladys Nesbit and Keith A. Nesbit.
HARRY C. MARTIN, Judge.
Appellants assign as error the trial court's entering summary judgment on behalf of plaintiff and denying appellants' motion for summary judgment. The court granted judgment in favor of plaintiff "as a matter of law in that the property described in the petition was spot zoned by the defendant, Union County Board of Commissioners."
There is no controversy as to the facts disclosed by the evidence in this case. The only controversy involves the legal significance of the facts; therefore, this action is a proper case for summary judgment. See Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972), in which the validity of a City of Raleigh zoning ordinance was determined on summary judgment. Based on the materials before it, the trial court in the present case ruled that the Nesbit property had been spot zoned. We affirm this ruling.
In the Blades case, the Court defined the concept of spot zoning as follows:
A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, so as to impose upon the small tract greater restrictions than those imposed upon the larger area, or so as to relieve the small tract from restrictions to which the rest of the area is subjected, is called "spot zoning."
280 N.C. at 549, 187 S.E.2d at 45. Spot zoning is beyond the authority of the municipality or county in the absence of a clear showing that a reasonable basis exists for such distinction. Id. The question for our determination, then, is whether the record clearly discloses a reasonable basis for spot zoning the Nesbit property. If such a clear showing does not exist, the court appropriately granted summary judgment for plaintiff.
The only evidence in the record that would arguably tend to show a reasonable basis for the rezoning is found in defendants' exhibits. Keith Nesbit stated in an affidavit "[t]hat Cane Creek flows through the property and a substantial portion of the property is unsuitable for residential structures and developments because of the fact that it is too low." Similarly, in the minutes of the Union County Board of Commissioners' meeting, held 6 November 1978, are found the reasons for a favorable recommendation by the Union County Planning Board:
*32 "(1) Because of how long it has been there. (2) You can't tell a man that he can't grow and will have to go up U.S. 74 to expand. (3) How long they have had the land."
In addition, the zoning maps reveal that a small district, between one and two acres in size, is located across Rocky River Road from the Nesbit property and is zoned B-3, general business district. Two roads, one gravel and one paved, border portions of the Nesbit property; defendants argue that this factor makes the property "peculiarly suited for industrial use" and "sets it apart from the adjoining property."
We think that this evidence falls short of being a clear showing that a reasonable basis exists for spot zoning the Nesbit property. The county, therefore, acted beyond its authority, and the trial court was correct in granting summary judgment for plaintiff on the basis of the unlawful spot zoning.
Affirmed.
WEBB and WELLS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326861/ | 161 Ga. App. 37 (1982)
288 S.E.2d 852
PARKER
v.
THE STATE.
62708.
Court of Appeals of Georgia.
Decided January 22, 1982.
Phillip L. Hartley, for appellant.
Jeff C. Wayne, District Attorney, Bruce L. Udolf, Assistant District Attorney, for appellee.
SHULMAN, Presiding Judge.
Janis Parker was arrested and charged with a violation of the Georgia Controlled Substances Act (Code Ann. Ch. 79A-8, Ga. L. 1974, p. 221 et seq.). This court granted appellant's application for an interlocutory appeal from the trial court's denial of her motion to suppress evidence seized after a search of her car.
James Ash, an officer in the vice and narcotics unit of the Hall County Sheriff's Department, received a telephone call from a reliable confidential informant who stated that he had seen marijuana in a light tan Toyota with a tag number containing the numerical sequence 606 near a gasoline station and funeral home on Broad Street. The informant also told Ash that the car was occupied by a white couple. Ash relayed the information to a fellow vice and narcotics officer, Bishop, who observed the car at the gasoline station *38 and proceeded to follow it. Within 20 minutes of its departure from the station, the tan Toyota stopped and the male rider disembarked. At that point, although no crime had been committed in his presence, Officer Bishop detained the woman driver, Ms. Parker, and asked for identification. When Ash and a backup unit arrived at the scene, Bishop searched the car and found marijuana. Appellant maintains that, based on this court's decision in Love v. State, 144 Ga. App. 728 (242 SE2d 278), the evidence seized cannot be used against her since Bishop did not have the requisite probable cause to stop her and make a warrantless search of her vehicle.
In Love, two Georgia law enforcement agencies, the Fulton County District Attorney's office and the GBI Fugitive Squad, pooled information in an effort to apprehend a suspect. Inspector Angel of the GBI, acting on information he had received from Fulton County Investigator Matthews, arrested Love and searched his automobile and motel room. Matthews had received the information he had given Angel from an informant Matthews believed to be reliable. This court ruled that the evidence seized in the search of Love's car should have been suppressed because neither the probable cause nor the exigent circumstances required by the United States Supreme Court decision in Carroll v. United States, 267 U.S. 132 (45 SC 280, 69 LE 543), was present. In its discussion on the probable cause aspect of the Carroll test, this court held that Angel had no probable cause to search the vehicle since there was no evidence to support a conclusion that Angel had facts from which to make an independent determination of the reliability of Matthews' informant. Love v. State, supra, p. 736. The writer, although concurring with the majority in Love, now exercises his human prerogative of reconsideration and determines that a less stringent view is more persuasive and in line with present legal authority. Because we have concluded that the holding in Love to the effect the searching officer must personally be in possession of sufficient facts enabling him to make an independent determination of probable cause unduly restricts law enforcement officers in taking concerted action based upon a reliable informer's tip, we must overrule that portion of Love.
1. Warrantless searches by law enforcement officers are the exception and not the rule. See Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (91 SC 2022, 29 LE2d 564). In Carroll v. United States, supra, the U. S. Supreme Court held that a warrantless search of an automobile was legitimate if there was probable cause to believe the automobile contained contraband and there were exigent circumstances which made it impractical to obtain a search warrant. When the facts and circumstances before an officer would lead a *39 reasonably discrete and prudent person to believe a vehicle contains contraband, probable cause to search the car exists. Cunningham v. State, 133 Ga. App. 305, 307-308 (211 SE2d 150). The question for this court is whether such facts and circumstances may include information obtained from a law enforcement officer who, in the course of conducting a common investigation, received the information from a reliable confidential informant. We hold that it may and affirm the decision of the trial court.
2. We first note that the trial court had ample evidence before it on which it could base a holding that Officer Ash had probable cause to search appellant's car. There is evidence to support the conclusions that the informant was reliable, that Ash was aware of how the informant had received the information, and that Ash knew the information was current. See Love v. State, supra, p. 735; Sams v. State, 121 Ga. App. 46, 48 (172 SE2d 473).
3. Information obtained by police officers engaged in an investigation may be used by another officer common to that investigation as a reliable basis for the establishment of probable cause. McDonald v. State, 156 Ga. App. 143, 145 (273 SE2d 881); Cuevas v. State, 151 Ga. App. 605, 608 (260 SE2d 737); Cunningham v. State, supra, p. 308; Buck v. State, 127 Ga. App. 72, 74 (192 SE2d 432). In cases where an informant supplies the information to one officer who then relays it to a fellow officer, the question has revolved around the reliability of the informant. Where the informant is found to be reliable, probable cause for the non-receiving officer to search exists. Meneghan v. State, 132 Ga. App. 380 (208 SE2d 150); Buck v. State, supra. However, where the officer receiving the tip could not establish the credibility of the informant, probable cause was not demonstrated. Radowick v. State, 145 Ga. App. 231 (244 SE2d 346). In the case before us, Ash and Bishop were engaged in a common investigation and Ash was able to establish the credibility of his informant. Thus, Bishop was authorized to act upon the information supplied to him by Ash. McDonald v. State, supra; Meneghan v. State, supra; Buck v. State, supra.
4. Especially when an officer is operating under the exigent circumstances required for a warrantless search of a car, we cannot require a police officer to radio to another officer all the information he has about a suspect, the source of his information, and the background of his informant in order that the receiving officer may make an independent determination as to whether he has probable cause to stop and search the automobile in question. We emphasize that our decision today in no way curtails the right of an individual to be free from unreasonable searches and seizures since we still require that probable cause to search be established. We hold only that the *40 searching officer need not personally be aware of all the facts which would support a probable cause determination so long as it can be established by evidence that the searching officer's actions were the end result of a chain of information-sharing, one link of which is an officer in possession of the "information requisite to support an independent judicial assessment of probable cause." Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 568 (91 SC 1031, 28 LE2d 306).
Judgment affirmed. Quillian, C. J., Deen, P. J., McMurray, P. J., Banke, Birdsong, Carley, Sognier and Pope, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262367/ | 25 Cal.Rptr.3d 813 (2005)
127 Cal.App.4th 601
Charles Karel BOULEY II, Plaintiff and Appellant,
v.
LONG BEACH MEMORIAL MEDICAL CENTER et al., Defendants and Respondents.
No. B168667.
Court of Appeal, Second District, Division Five.
March 15, 2005.
*814 Law Offices of Michael A. Lotta and Michael A. Lotta, Long Beach; Law Offices of John Calfee Mulvana and John Calfee Mulvana for Plaintiff and Appellant.
Reback, McAndrews & Kjar, Manhattan Beach, Terrence J. Schafer, Newport Beach and Neale B. Gold; Carroll, Kelly, Trotter, Franken & McKenna, Richard D. Carroll, Kristi K. Hendrick, David P. Pruett, Long Beach, and Lori A. Conway; Law Offices of Lynn E. Moyer and Lynn E. Moyer; and David J. Ozeron for Defendants and Respondents.
ARMSTRONG, J.
In 2000, California law first recognized the domestic partnerships of same-sex couples and certain male-female couples who chose "to share one another's lives in an intimate and committed relationship of mutual caring." (Fam.Code *815 § 297, subd. (a).) Since that time, the Legislature has repeatedly acted to expand the rights and responsibilities of domestic partners. This case concerns one of those rights, a domestic partner's standing to sue for wrongful death.
The cause of action is a creature of statute, and standing to sue is governed by Code of Civil Procedure section 377.60.[1] (Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119-120, 115 Cal.Rptr. 329, 524 P.2d 801.) The decedent in this case, Andrew Lee Howard, died in May of 2001. On that date, section 377.60 specified that "A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: [¶] (a) The decedent's surviving spouse, children, and issue of deceased children...."
As of January 1, 2002, however, section 377.60 subdivision (a) was amended to include not just spouses and children, but domestic partners as defined in Family Code section 297. It was after that date, in May of 2002, that Mr. Howard's domestic partner, appellant Karl Bouley, filed this suit for medical malpractice against respondents Long Beach Memorial Hospital, Valley View Internal Medicine, and Drs. George Kooshian, David Amin, and Amy Stone.
Respondents demurred to the suit on the ground that appellant did not have standing to sue, that is, that the case was governed by section 377.60 as it existed when Mr. Howard died, not as it existed when the suit was filed. The trial court sustained the demurrers and dismissed the case. We find that on the plain language of the statute and the legislative history, the 2002 amendments to section 377.60 were intended to operate retroactively. Further, effective January 1, 2005, while this case was on appeal, section 377.60 was again amended. Now, new subdivision (f)(2) of section 377.60 provides that "Notwithstanding paragraph (1), for a death occurring prior to January 1, 2002, a person may maintain a cause of action pursuant to this section as a domestic partner of the decedent by establishing the factors listed in paragraphs (1) to (6), inclusive, of subdivision (b) of Section 297 of the Family Code, as it read pursuant to Section 3 of Chapter 893 of the Statutes of 2001, prior to its becoming inoperative on January 1, 2005." An examination of those amendments reveals that the Legislature intended that these amendments, too, operate retroactively. We further find that there is no constitutional barrier to effectuating the Legislative intent. We thus reverse.[2]
Discussion
"A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute. [Citations.]" (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, *816 391, 182 P.2d 159.) "Phrased another way, a statute that operates to `increase a party's liability for past conduct' is retroactive. [Citations.]" (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 839, 123 Cal.Rptr.2d 40, 50 P.3d 751.) The 2002 and 2005 amendments to section 377.60 may fairly be said to be such statutes.
That is, however, only the beginning of the inquiry. If the Legislature has clearly indicated its intent that the amendments operate retroactively, we must carry out that intent unless the Constitution forbids. (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 128 Cal.Rptr. 427, 546 P.2d 1371, Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 393, 182 P.2d 159.) "[A] statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent `some constitutional objection' to retroactivity. [Citation.]" (Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841, 123 Cal.Rptr.2d 40, 50 P.3d 751.)
Here, the Legislative intent is unmistakable. In subdivision (d), section 377.60 provides that "This section applies to any cause of action arising on or after January 1, 1993." With that language, the Legislature unambiguously provided that the 2002 amendments must be applied to this lawsuit.
It is true that subdivision (d) was not added to the statute to address the 2002 amendments. Instead, it was added in 1997 as urgency legislation (Stats.1997, c. 13 (S.B.449), § 1, eff. May 23, 1997) in order to undo the unintended consequences of 1996 amendments, in which the Legislature had inadvertently deprived certain parents of the right to sue. (Wedding, Cal. Wrongful Death Statute: Correcting an "unintended mistake." (1998), 29 McGeorge L.Rev. 453.)
That bit of history is not determinative. The Legislature is presumed to be aware of existing law (People v. Cruz (1996) 13 Cal.4th 764, 775, 55 Cal.Rptr.2d 117, 919 P.2d 731) and may certainly be presumed to know the full text of the laws it is amending. The Legislature was free to remove subdivision (d) from the statute once it served its original purpose, or to amend it to specify that it did not apply to the 2002 amendments. The fact that the Legislature chose not to do so can only lead us to conclude that the Legislature intended that subdivision (d) would apply to the 2002 amendments, making those amendments retroactive. (People v. Bouzas (1991) 53 Cal.3d 467, 279 Cal.Rptr. 847, 807 P.2d 1076.)
Further, appellant also has standing to sue because the 2005 amendments to section 377.60 so provide. Section 377.60 subdivision (f)(2) explicitly applies to "a death occurring prior to January 1, 2002," and provides that "a person may maintain a cause of action pursuant to this section as a domestic partner of the decedent by establishing the factors listed in paragraphs (1) to (6), inclusive, of subdivision (b) of Section 297 of the Family Code, as it read pursuant to Section 3 of Chapter 893 of the Statutes of 2001, prior to its becoming inoperative on January 1, 2005." Mr. Howard died prior to January 1, 2002. Appellant has alleged that he and Mr. Howard were domestic partners under the version of Family Code section 297 operative prior to January 1, 2005.[3] Thus, under the plain language of the statute, appellant may sue for wrongful death.
*817 Respondents make two arguments to the contrary. They point out that the statute also provides that the 2005 amendments "are not intended to revive any cause of action that has been fully and finally adjudicated by the courts, or that has been settled, or as to which the applicable limitations period has run." (§ 377.60, subd. (f)(3).) Respondents then argue that this case was fully and finally adjudicated when the trial court dismissed it after demurrers were granted, and that the statute of limitations ran on the case before January 1, 2005.
The arguments are not persuasive. The trial court might have finished its work on the case, but it was not finally adjudicated by the courts the Legislature used the plural at that time. Instead, it came to us for further adjudication. (Hellinger v. Farmers Group, Inc. (2001) 91 Cal.App.4th 1049, 1059-1060, 111 Cal. Rptr.2d 268 [case has not been "litigated to finality" for purposed of amendments to Code of Civil Procedure section 340.9 if notice of appeal has been filed].) "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed...." (Code Civ. Proc., 1049.) "[T]he judgment of the trial court is not final until we dispose of the case." (Metcalf v. U-Haul International, Inc. (2004) 118 Cal.App.4th 1261, 1266, 13 Cal.Rptr.3d 686.)
As to the statute of limitations, this case was filed within the statute. No new statutory period began to run while we or the trial court were deciding a legal issue in the case.
The history of the 2005 amendments is consistent with the express language. Those amendments were part of A.B. 2580 of the 2003-2004 legislative session. As introduced, the bill did not amend section 377.60. It was a "cleanup bill to the Domestic Partner Rights and Responsibilities Act of 2003, legislation which greatly expanded the scope of domestic partner rights and responsibilities." (Senate Judiciary Committee analysis.) The provisions relating to section 377.60 were added in the Senate. The Senate floor analysis explains that "Apparently courts have interpreted the amendment made by AB 25 to Section 377.60 of the Civil Code[4] [the 2002 amendments], as applied to deaths prior to its effective date of January 1, 2002, in different and conflicting ways. These amendments to AB 2580 clarify the application of the AB 25 amendments to those wrongful death actions. The amendments will not affect actions that have been adjudged or settled or where the statute of limitations has run."
Thus, the intent behind the 2005 amendments to section 377.60 is consistent with *818 the Legislative efforts in this area since 2002: the Legislature wished to expand the rights of domestic partners and to allow all domestic partners to enjoy the benefits of the expansions of the law.
Having determined the Legislative intent, we turn now to the constitutional question, whether there is a constitutional barrier to effectuating the Legislative intent. "[R]etroactive application of a statute may be unconstitutional if it is an ex post facto law, if it deprives a person of a vested property right without due process of law, or if it impairs the obligation of a contract." (In re Marriage of Buol (1985) 39 Cal.3d 751, 756, 218 Cal.Rptr. 31, 705 P.2d 354.)
Respondents' argument is that retroactive application of the amendments to section 377.60 would deprive them of due process. They cite In re Marriage of Bouquet, supra, 16 Cal.3d 583, 128 Cal.Rptr. 427, 546 P.2d 1371. Respondents' argument suffers from several flaws.
Retroactive application of a law is unconstitutional if it deprives a person of a vested right without due process of law. (In re Marriage of Buol, supra, 39 Cal.3d at pp. 760-761, 218 Cal.Rptr. 31, 705 P.2d 354.) No due process analysis is required unless there is such a deprivation. Thus, in In re Marriage of Bouquet the Supreme Court engaged in the due process analysis only after determining that amendments to the community property law actually denuded the wife of a vested property right. Respondents have not identified any vested property right which was infringed by these amendments, and we can see none.[5]
Moreover, a statute can be applied retroactively even if vested property rights are impaired: "Vested rights ... may be impaired `with due process of law'.... In determining whether a retroactive law contravenes the due process clause, we consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions." (In re Marriage of Bouquet, supra, 16 Cal.3d 583 at p. 592, 128 Cal.Rptr. 427, 546 P.2d 1371.)
It is easy to see how an individual could have relied on the community property laws Bouquet considered. People may spend or save, marry or divorce, in reliance on those laws, but we do not see how an individual relies on section 377.60 during the events which may later become the basis for a wrongful death suit. Respondents make only one suggestion, arguing that individuals relied on the standing law when purchasing insurance. We find this unlikely. Wrongful death damages are limited to the value of the benefits, including personal services, advice, and training, that the heirs could reasonably have expected to receive from the decedent. (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423, 167 Cal.Rptr. 270.) The pecuniary value of the decedent's society, comfort and protection is recoverable, but mental and emotional distress, including grief and sorrow, are not. (Krouse v. Graham *819 (1977) 19 Cal.3d 59, 72, 137 Cal.Rptr. 863, 562 P.2d 1022.) Damages are thus highly unpredictable, and do not depend solely upon whether the decedent was married or otherwise, or left parents or children or spouses, but on the emotional and financial nature of any of those relationships. How, then, could a person seeking to protect him- or herself from wrongful death suits buy more or less insurance in reliance on the law on standing? Could such a person determine the proper policy limits based on a prediction of the anticipated number of potential decedents who would leave emotionally and financially dependent children, spouses, or domestic partners as survivors? We think not.
Nor are we persuaded by respondents' argument on the remaining factor identified in Bouquet, the public interest at stake in the retroactive application of the law. (In re Marriage of Bouquet, supra, 16 Cal.3d at p. 593, 128 Cal.Rptr. 427, 546 P.2d 1371.) "Vested rights are not immutable; the state, exercising its police power, may impair such rights when considered reasonably necessary to protect the health, safety, morals and general welfare of the people." (In re Marriage of Buol, supra, 39 Cal.3d at pp. 760-761, 218 Cal.Rptr. 31, 705 P.2d 354.)
Respondent argues that the state's interest in the domestic partnership law is not sufficiently strong, citing cases (Nieto v. City of Los Angeles (1982) 138 Cal. App.3d 464, 188 Cal.Rptr. 31, Harrod v. Pacific Southwest Airlines (1981) 118 Cal. App.3d 155, 173 Cal.Rptr. 68, Hinman v. Department of Personnel Administration (1985) 167 Cal.App.3d 516, 213 Cal.Rptr. 410) which hold that the state has an interest in promoting marriage, and thus may extend certain privileges to married partners only.
It is well established that the state has a strong interest in promoting marriage. It is also true that the Legislature has recently identified a public interest in promoting stable families and individual rights and responsibilities through the extension of rights to domestic partners. We need not and do not compare the relative strength of those public policies. In order to support retroactive application of a law, the state's interest must be significant, but need not be compelling. (Graczyk v. Workers' Comp. Appeals Bd. (1986) 184 Cal.App.3d 997, 1008, 229 Cal.Rptr. 494.) Retroactive legislation "is justified where ... such retroactive application reasonably could be believed necessary to serve the public welfare." (Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 734, 218 Cal.Rptr. 562.)
The Legislative history of the domestic partnership laws reveals a significant public interest which would be effectuated by the retroactive application of the standing laws.
In signing AB 25 of the 2001-2002 legislative session, which added domestic partners to section 377.60 and also amended the Family Code to expand the rights and responsibilities of domestic partners, the Governor wrote "This legislation does nothing to contradict or undermine the definition of a legal marriage, nor is it about special rights. It is about civil rights, respect, responsibility, and, most of all, it is about family. Therefore, I am honored to sign one of the strongest domestic partner laws in the nation."
In 2003, when it enacted Stats.2003, c. 421 (A.B.205), which expanded the rights and responsibilities of domestic partners, the Legislature explained that "This act is intended to help California move closer to fulfilling the promises of inalienable rights, *820 liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state's interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises." (Stats.2003, c. 421, subd. (1)(a).)
The Legislature further declared that "Expanding the rights and creating responsibilities of registered domestic partners would further California's interests in promoting family relationships and protecting family members during life crises, and would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution."
We note, too, that domestic partnership is not, as respondent suggests, limited to same-sex couples. Male-female couples otherwise eligible to marry may become domestic partners if marriage would cause them to suffer adverse financial consequences under the Social Security law. (Holguin v. Flores (2004) 122 Cal.App.4th 428, 433, 18 Cal.Rptr.3d 749.) Clearly, when it included those couples in the domestic partnership law, the Legislature chose to subordinate the state's interest in promoting marriage to other interests.
The Legislature has thus determined that the state has a significant interest in promoting family relationships by giving rights to domestic partners. The 2005 (and 2002) amendments to section 377.60 effectuate that interest, and may be enforced retroactively without offending due process.
Legislative expressions of retroactivity have withstood challenges in any number of statutes, some of which, like the amendments before us here, may be said to change the rules of a lawsuit midstream. For instance, in Graczyk v. Workers' Comp. Appeals Bd., supra, 184 Cal.App.3d 997, 229 Cal.Rptr. 494, a change in the definition of "employee" in the worker's compensation law meant that the plaintiff was an employee at the time of his accident, but was not by the time his workers' compensation claim was adjudicated. The court ruled that the amendments applied retroactively, holding that because the workers' compensation scheme is purely statutory, the plaintiff did not have a vested right of action (id. at p. 1006-1007, 229 Cal.Rptr. 494) and that the state had a "significant, if not a compelling interest in defining the employer-employee status," effectuated by the amendments, so that retroactivity was not barred on due process grounds. (Id. at p. 1008-1009, 229 Cal.Rptr. 494.)
Proposition 213, which prohibited uninsured motorists from collecting noneconomic damages in an action arising out of a car accident, has also been applied retroactively to plaintiffs whose cases were pending when the law changed. After determining that the electorate intended retroactive application, courts enforced that intent, finding that the right to recover certain types of damages is not a vested right because it is created by statute, not by common law or the constitution, and because the amendments served an important state interest which justified its retroactivity. (Yoshioka v. Superior Court, supra, 58 Cal.App.4th at pp. 981-982, 68 Cal.Rptr.2d 553; Savnik v. Hall (1999) 74 *821 Cal.App.4th 733, 738-739, 88 Cal.Rptr.2d 417; Honsickle v. Superior Court (1999) 69 Cal.App.4th 756, 763-764, 82 Cal. Rptr.2d 36.)
Those statutory changes worked to the detriment of plaintiffs, but defendants may equally be affected. A statute of limitations may be changed retroactively, depriving a defendant of an absolute defense. The Legislature may retroactively revive causes of action by extending limitations periods or similar time statutes relating to procedure which otherwise would bar such lawsuits. (Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382, 386, 64 Cal.Rptr.2d 53.) Such a change is deemed merely procedural. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 81, 115 Cal.Rptr.2d 3.)
Similarly, when Code of Civil Procedure section 425.16, the anti-SLAPP statute, was enacted, it was applied to pending cases as a procedural statute (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 42 Cal.Rptr.2d 464), as was a change in the anti-SLAPP law, which removed certain claims from the ambit of that law and deprived a defendant of a defense which existed at the time the case was filed. (Brenton v. Metabolife International, Inc. (2004) 116 Cal.App.4th 679, 690, 10 Cal. Rptr.3d 702; Metcalf v. U-Haul International, Inc., supra, 118 Cal.App.4th at pp. 1265-1266, 13 Cal.Rptr.3d 686; Physicians Committee for Responsible Medicine v. Tyson Foods, Inc. (2004) 119 Cal.App.4th 120, 125-130, 13 Cal.Rptr.3d 926.)
In sum, we find that in enacting both the 2002 and 2005 amendments to section 377.60, the Legislature clearly intended to grant standing to individuals in appellant's position. In the absence of any constitutional impediment, we effectuate that intent.
Disposition
The judgment is reversed. Appellant to recover costs on appeal.
We concur: TURNER, P.J., and MOSK, J.
NOTES
[1] Hereinafter, section 377.60.
[2] In addition to the wrongful death cause of action, the complaint brought causes of action for negligent infliction of emotional distress and for survival, on behalf of Mr. Howard's estate. Respondents demurred to these causes of action, too, on grounds other than standing. Appellant did not oppose the demurrers on the claim for survival and has made no argument on appeal concerning the emotional distress claim. Although we reverse the judgment in favor of respondents, we do not reverse the ruling sustaining the demurrers to those causes of action.
[3] Some respondents have argued to the contrary, that the complaint is insufficient because it does not allege that both appellant and Mr. Howard filed declarations of domestic partnership with the Secretary of State, as Family Code section 297 requires. The complaint alleged that appellant was Mr. Howard's domestic partner, and the record includes a declaration of domestic partnership bearing the two signatures, notarized on December 5, 2000. It is true that the Secretary of State date-stamped the document on July 14, 2001, well after Mr. Howard died, but appellant has argued that he could amend his complaint to allege that the document was mailed to the Secretary of State during Mr. Howard's lifetime, so that the date stamp reflects only delay by the Secretary of State. When read liberally for purposes of demurrer, those allegations are enough to allege that appellant and Mr. Howard were domestic partners in compliance with and as defined by the Family Code.
[4] The amendment made by AB 25 was to Section 377.60 of the Code of Civil Procedure, not the Civil Code.
[5] It is sometimes said that rights created by statute are not vested, but that common law rights are. (Callet v. Alioto (1930) 210 Cal. 65, 68, 290 P. 438; Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 981-982, 68 Cal. Rptr.2d 553.) Because the wrongful death cause of action is purely a creature of statute, under this analysis any rights respondents had under the old version of the statute were not vested rights. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262374/ | 18 Md. App. 429 (1973)
306 A.2d 554
PAUL MONROE HOWELL
v.
STATE OF MARYLAND.
No. 769, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 13, 1973.
*430 The cause was argued before ORTH, C.J., and MOYLAN and CARTER, JJ.
Gary Huddles for appellant.
Emory A. Plitt, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State's Attorney for Baltimore County, and Jean Spotts, Assistant State's Attorney for Baltimore County, on the brief, for appellee.
MOYLAN, J., delivered the opinion of the Court.
The appellant, Paul Monroe Howell, was convicted in the Circuit Court for Baltimore County by Judge Walter R. Haile, sitting without a jury, of daytime housebreaking, assault with intent to murder and possession of marihuana. Upon this appeal, he raises four contentions:
(1) That his in-court identification by the victim of the assault and housebreaking should have been suppressed as the product of an impermissibly suggestive pretrial photographic viewing;
(2) That a State's witness was permitted to testify after having violated a sequestration order;
(3) That inculpatory oral admissions were induced by promises and should not have been received into evidence; and
(4) That the marihuana was the fruit of an unconstitutional search and seizure.
The Search Incident
We shall consider first the search and seizure which produced the contraband marihuana. The breaking and *431 entering of the home of Adrian Merryman and the concomitant assault upon Mr. Merryman occurred on May 16, 1972. On May 18, Corporal James Raymon, of the Baltimore County Police Department, showed a series of photographs to Mr. Merryman, from which Mr. Merryman selected a photograph of the appellant as his assailant. Corporal Raymon applied for and received an arrest warrant for the appellant. A lookout for the appellant and his automobile was broadcast via police teletype.
On the basis of the teletyped lookout, particularly upon the basis of the description of the appellant's automobile, including the license tag number, three Baltimore City detectives detained the appellant and his automobile upon the parking lot of a drive-in restaurant at 11805 Reisterstown Road, just across the Baltimore County line from Baltimore City, at approximately 12:50 p.m. on May 19. Corporal Raymon was immediately notified and had responded to the scene by approximately 1 p.m. The appellant was leaning against his automobile on the driver's side. A female companion was seated on the right front seat. Corporal Raymon arrested both the appellant and his female companion. Corporal Raymon searched the automobile and recovered from beneath the right front seat a package of marihuana. At issue is the legitimacy of that search and seizure.
In many cases where a motorist is arrested and his car is searched, a search incidental to a lawful arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and a search pursuant to the "automobile exception" under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), may overlap. They do not, however, necessarily overlap. A search may at times be good upon both theories, at times good upon either one of the theories but not upon the other, and at times good upon neither theory. In the case at bar, the search of the automobile cannot be predicated upon the "automobile exception" because of the failure of Corporal Raymon to establish probable cause to believe that the automobile contained evidence of crime, one of the two necessary preconditions for *432 the invocation of this exception to the basic proposition that all searches carried out without a warrant are per se unreasonable. Carroll v. United States, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
If the search here is to be found legitimate, it must be as a valid search incident to a lawful arrest under Chimel. Whatever form of detention the appellant may have been under during the approximate ten-minute period between being stopped by the Baltimore City detectives and the arrival of Corporal Raymon, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the appellant was formally arrested by Corporal Raymon moments after the corporal arrived upon the scene. There is no question but that the search was sufficiently contemporaneous with the arrest to satisfy the strictures of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).
Nor does the fact that the detaining detectives may have executed a "frisk" or external "pat down" of the person of the appellant for weapons exhaust anticipatorily the right to make a search incident to a lawful arrest. The search contemplated by the "search incident exception" is more intensive in nature than that contemplated by a mere "frisk" for weapons under Terry and Sibron. It has as its purpose not simply the interest of protecting the arresting officer and depriving the prisoner of potential means of escape, Closson v. Morrison, 47 N.H. 482 (1867), but also the interest of preventing the destruction of evidence by the arrested person, Reifsnyder v. Lee, 44 Iowa 101 (1876); Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090 (1897). And see People v. Chiagles, 237 N.Y. 193, 196, 142 N.E. 583 (1923) (opinion by Cardozo, J.); United States v. Rabinowitz, 339 U.S. 56, 72, 70 S.Ct. 430, 94 L.Ed. 653 (1950) (dissenting opinion by Frankfurter, J.); Brown v. State, 15 Md. App. 584, 292 A.2d 762.[1]
*433 The question at bar is rather the permissible scope the range in space the perimeter of an admittedly proper "search incident." Adopting the analysis of Justice Frankfurter in his series of dissents in United States v. Rabinowitz, supra; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); and Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), Chimel made clear that a proper search incident extends not only to the person of the arrestee but to that area within his "immediate physical control." "Immediate physical control" and "immediate physical surroundings" are defined as that area "which may fairly be deemed to be an extension of his person." That search perimeter is described by Chimel as being the area within the "reach," within the "grasp," within the "lunge" of the arrestee.
The arrest of a motorist does not automatically confer the right to search his automobile, or any part of it, as a necessary incident of the arrest. See Martin v. State, 18 Md. App. 112, 305 A.2d 197, where the arrest of a suspect in the middle of the street was held not to confer the right to search his automobile parked at a curb half-a-street width away. And see Soles v. State, 16 Md. App. 656, 299 A.2d 502, where the arrest of a suspect behind the wheel was held not to confer the right to search a locked trunk as an incident of the arrest. On the other hand, see Peterson v. State, 15 Md. App. 478, 292 A.2d 714, where the arrest of four persons braced up against an automobile was held to confer the right to search the interior of that automobile as an incident of the arrests. The automobile of an arrested motorist is neither automatically included in whole, automatically included in part and excluded in part, nor automatically excluded in whole from the permissible search perimeter. Rather must each search be analyzed on a case-by-case basis, bearing always in mind the purposes giving birth to the "search incident exception" as one measures the perimeter necessary to serve those purposes. The area within "the lunge, the grasp, or the reach" of the arrestee the area which may be deemed "a fair extension of his body" may intrude upon some, or even all, automobile space, *434 just as it intrudes upon other, non-automobile space. Conversely, it may not. The word "automobile" is not a talisman, for purposes of automatic inclusion or exclusion. It is simply so much cubic footage of space through which a perimeter measured from an arrestee be he motorist, passenger or pedestrian may or may not pass.
In the case at bar, the arrestee, not yet thoroughly searched, was standing, unshackled, by the door of his automobile. His female companion, who was also arrested, was seated upon the right front seat. The area beneath the right front seat, from which the marihuana was recovered, was, we hold, within the legitimate search perimeter emanating from the appellant. Peterson v. State, supra, 489-490. It was within the range from which a weapon could easily have been recovered to endanger the officer or to make good an escape. It was within the range from which readily destructible evidence could easily have been grabbed and destroyed. It was a proper "search incident" to a lawful arrest. There was, therefore, no constitutional impediment to the introduction into evidence of the seized marihuana.
The Photographic Viewing
The remaining contentions can be dealt with briefly. The appellant predicates his argument that the in-court identification of him by Mr. Merryman should have been suppressed upon the foundation that it was the tainted product of an impermissibly suggestive pretrial photographic viewing. Upon our constitutionally mandated, independent review, we see nothing even mildly impermissibly suggestive about the photographic viewing procedure, let alone anything so suggestive as to give rise to "a substantial likelihood of irreparable misidentification." Photographs were shown to Mr. Merryman by Corporal Raymon two days after the offense. Mr. Merryman had already given the police a rather complete description of his assailant. Between 12 and 20 photographs were shown. That of the appellant was placed approximately in the middle of the group. Corporal Raymon had made a point of obtaining *435 photographs all of which resembled the description given by Mr. Merryman as closely as possible. Nothing was said by Corporal Raymon which would have focused upon the photograph of the appellant in any way. Mr. Merryman selected the photograph of the appellant with assurance. The appellant hangs his entire claim upon the statement of Corporal Raymon to Mr. Merryman "that I may possibly have the person involved." The full context of Corporal Raymon's testimony in this regard demonstrates its total innocuousness:
"I went to Mr. Merryman's house and I identified myself and told him I was there and wanted to show him some photographs of some various people and that he had all the time in the world to look through these photographs and that I may possibly have the person involved and with this, he proceeded to look through these photographs. The individual who he identified at that time as the photograph was approximately half way in the pile. My department requires us to display approximately ten photographs. In this instance, I had twenty, including the Defendant."
The statement made by Corporal Raymon in no way zeroed in upon the photograph of the appellant anymore than it did upon any of the other 11 or 19 photographs, as the case may be. It is, in any event, implicit in any photographic viewing that the police are not engaging in an exercise in sheer futility, which would be the case if they did not "possibly have the person involved." In the case at bar, the Fourteenth Amendment was not offended. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Smith and Samuels v. State, 6 Md. App. 59, 250 A.2d 285; Coleman v. State, 8 Md. App. 65, 258 A.2d 42; Spencer v. State, 10 Md. App. 1, 267 A.2d 323; Perkins v. State, 11 Md. App. 527, 275 A.2d 517; Layman v. State, 14 Md. App. 215, 286 A.2d 559.
Sequestration
Witnesses were ordered sequestered at the outset of the *436 trial. The State had no intention of calling Detective John Hopkins and he was not sequestered. The defense, without prior warning, contested the admissibility of an oral admission made by the appellant and, further, insisted that all policemen who were present when the admission was made be called by the State so that the appellant could cross-examine them. Although we think the court exercised its discretion properly in permitting Detective Hopkins to testify under the circumstances, the point is academic in the context of this case. The only possible prejudice that could have flowed from non-sequestration would have been that Detective Hopkins might have heard Corporal Raymon's testimony about the interrogation of the appellant. When Detective Hopkins took the witness stand, the following transpired:
"(The Court) First I want to ask a preliminary question. Has he been in Court today during the testimony of Corporal Raymon?
(The Witness) No, I was in here earlier this morning on a case before you, Your Honor, but I have not been in here since.
(The Court) You didn't hear Corporal Raymon's testimony?
(The Witness) No, sir."
Although by happenstance rather than by formal compliance with the sequestration order, de facto sequestration was achieved.
Admissibility of Oral Statement
The appellant gave an oral statement incriminating himself in the daytime housebreaking and in the assault upon Mr. Merryman. The thrust of the appellant's argument is that the police induced him to confess to this crime by promising that they would "clear up" a number of other crimes which he had perpetrated. The trial judge made a number of findings as to specific, first-level facts, which we accept. He found that the police had given the appellant all *437 of the Miranda warnings before taking a statement from him. He found that the oral statement at issue had already been given before the police made mention of any other crimes. He found that after the police had effectively gotten all of the information from the appellant which they desired in this case, that they subsequently asked him to give them information about other crimes which he had perpetrated with the assurance that they would not charge him with those crimes. The police, content to proceed against the appellant on the instant charges, simply wished to close the books on a number of other theretofore "open cases." Accepting those first-level facts as found by the trial judge, we must make a constitutionally mandated, independent review of what to make of those facts. We must resolve for ourselves the ultimate, second-level fact of whether the oral statement was or was not voluntary. Dillingham v. State, 9 Md. App. 669, 267 A.2d 777 (concurring opinion by Orth, J.); Walker v. State, 12 Md. App. 684, 280 A.2d 260. We find, as an ultimate constitutional fact, that the oral statement was voluntary and, therefore, admissible.
Judgments affirmed.
NOTES
[1] The appellant's argument that Corporal Raymon had time to get a search warrant is irrelevant, since the existence of exigent circumstances is not a precondition to a "search incident." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262380/ | 26 Cal.Rptr.3d 518 (2005)
127 Cal.App.4th 1391
The PEOPLE, Plaintiff and Respondent,
v.
Damascio Ibarra TORRES, Defendant and Appellant.
No. B163612.
Court of Appeal, Second District, Division One.
March 30, 2005.
Rehearing Denied April 22, 2005.
*519 Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Ellen Birnbaum Kehr, Deputy Attorney General, for Plaintiff and Respondent.
SPENCER, P.J.
INTRODUCTION
Defendant Damascio Ibarra Torres appeals from a judgment of conviction entered after a jury trial. Defendant was convicted of three counts of attempted murder (Pen.Code, §§ 187, subd. (a), 664), during which he personally used a firearm (id., § 12022.5) and inflicted great bodily injury on his victims (id., § 12022.7). He also was convicted of two counts of false imprisonment (id., § 210.5), during one of which he personally used a firearm (id., § 12022.5). The trial court sentenced defendant to life imprisonment with the possibility of parole on the attempted murder counts, with an additional 11 years for the firearm use and great bodily injury enhancements. The trial court sentenced defendant to a consecutive determinate term of 14 years eight months on the false imprisonment counts and firearm enhancement.
This appeal is from defendant's second trial in this case. Defendant previously was convicted of these same offenses. He appealed, and this court affirmed his conviction. (People v. Torres (July 28, 1995, B085270) [nonpub. opn.].)[1] He then filed a petition for writ of habeas corpus in the federal district court. The court granted his petition, and that decision was upheld on appeal. (Torres v. Prunty (9th Cir. 2000) 223 F.3d 1103.)[2] Defendant was retried, convicted, and this appeal followed.
Defendant challenges the instruction on insanity and the finding he was sane at the time he committed the instant crimes. He claims ineffective assistance of counsel at the sanity hearing. He also challenges the *520 sentence he received. We conclude there was prejudicial instructional error, requiring reversal of the sanity finding. We also find sentencing error.
FACTS
The Shootings
At about noon on February 8, 1993, defendant walked into the urgent care area at Los Angeles County USC Medical Center. He was dressed in camouflage clothes and dark glasses. He carried three guns. Yelling, he asked where the doctors were, claiming that he had AIDS, was sick and dying.
Doctors Glenn Rogers, Paul Kaszubowsky and Richard May were working as screeners in the urgent care area.[3] Defendant began shooting at them, firing a total of seven times.
Defendant shot Dr. Rogers in the shoulder. The bullet was deflected by Dr. Rogers's collarbone; it traveled through his lung and out his back. The doctor ran to the emergency room, where he received medical assistance. He was hospitalized for five days and was able to return to practice in about six weeks.
Defendant shot Dr. Kaszubowsky in the forearm. The bullet shattered the bones and severed the medial nerve in Dr. Kaszubowsky's forearm, as well as grazing his head. The doctor ran from the room and was helped to the surgical area. He required two surgeries on his arm, was hospitalized for a week and suffered some permanent impairment of his ability to use his arm. He also suffered psychological problems and was unable to return to work for four years.
Dr. May was shot in the head, arm and abdomen. He lost consciousness and was taken to the emergency room by a nurse and a security guard. He was unconscious for several days and hospitalized for six weeks. He lost a portion of his brain, and had bone and bullet fragments lodged in his brain. He suffered some visual loss, inner ear problems, partial loss of his voice, impairment of his arm, herniated discs in his back and post-traumatic stress disorder. He required two surgeries after his initial hospitalization, was under psychiatric care and was able to work only part time.
After shooting the three doctors, defendant demanded to know where the rest of the doctors were. He began looking in the cubicles. He encountered two nurses working there. He told them he did not want nurses, he wanted doctors.
Dr. Ann Tournay, who was examining a patient in a cubicle, heard the shooting and defendant's statement that he wanted doctors. She removed her badge identifying her as a doctor. When defendant entered her cubicle, he was holding a woman, Lillian Bragg (Bragg) by the neck. He asked Dr. Tournay if she was a doctor. She said she was a nurse. He said, "Don't give me that, you're a doctor. You're British. I like the British. I like `Are You Being Served?'" He handcuffed Dr. Tournay to Bragg. About that point, armed security guards arrived, but defendant pointed a gun at the women's heads, and the guards left.
*521 Defendant continued looking for doctors for about an hour. He then barricaded himself, Dr. Tournay and Bragg inside a room. He had Dr. Tournay look out the window and report to him about what was happening outside. He also had her communicate with the police through the window. After several hours, defendant released Dr. Tournay and Bragg. Defendant surrendered himself to the police and was arrested about 5:00 p.m.
Defendant's Statements Regarding His Actions
During negotiations with the police before he was arrested, defendant complained that he was a victim of a medical conspiracy and had been used as a "human guinea pig." He had been injected with a mysterious virus that was killing him. He was rotting alive and giving off a stench. When he went to the doctors to get help with his physical ailments, they told him to go to a mental hospital.
After his arrest, defendant told the police in an interview that USC had used him as a guinea pig in a medical experiment. In 1982, a doctor gave him an injection then called him a "sorry bastard." Since the injection, defendant could not digest his food and had no control over his intestines. He smelled so bad that he could not go into a store or ride the bus, and he was afraid he would be kicked out of the hotel in which he lived. The doctors wanted him to die on the streets like a dog. Every time he went to the hospital, the doctors refused to assist him and instead told him to go to a mental hospital. The doctors also had sent out a computer message to other hospitals to tell them that he should not receive medical assistance.
Defendant described shooting the doctors. He explained he wanted to get them for the way they had treated him over the last 10 years. He "wanted revenge. It's just that simple."
Defendant told the police he had left written plans in his hotel room. He planned to shoot the screening doctors because they treated him like an animal, as though he was not human. He explained that he had written out the plans so that, if the police stopped him before he killed the doctors, they could see the plans and defendant could receive help. He hoped he would be stopped before he shot the doctors, so that he could receive help, but if he was not stopped, he planned to shoot the doctors.
Documents found in defendant's hotel room identified him as a "Victim of a Medical Conspiracy." The documents explained that defendant was being used as a guinea pig in a secret experiment. He was being systematically refused medical treatment by doctors at Los Angeles County USC Medical Center and told to go to a mental hospital, even though he was physically ill, not mentally ill. The doctors had injected him with "a deadly experiment," possibly the AIDS virus. Defendant was leaking fecal matter and gave off a terrible stench, preventing him from walking down the street or getting on a bus. He was dying and he would be found under a bridge, dead as a dog. The doctors would not help him because they were guilty.
One document listed 34 steps for defendant to take. They included "shoot all three screeners, grab two nurse hostages, shoot all doctors, no black hostages, don't shoot nurses or people, shoot doctors only, return to a cubicle and stay there all-day." Defendant also stated in the document, "They are going to pay for treating me like a laboratory animal. They injected me with AIDS and all they want is to sit back and watch me die."
*522 Psychiatric Evidence
Dr. Gregory Cohen, a psychiatrist, was appointed to examine defendant and testified for the defense. He reviewed psychiatric evaluations of defendant by Dr. Woodard in 1986, by Dr. Wells in 1993, by Dr. Kaushal Sharma in 1994, and by Dr. Magpayo in 1998. He also reviewed police reports, transcripts of defendant's interview with the police following the shootings, transcripts of other court proceedings and tapes of earlier interviews with defendant. He reviewed defendant's notes and he interviewed defendant in 2000.
Dr. Cohen noted that defendant was diagnosed with chronic borderline schizophrenia in 1986, when he underwent a Social Security disability evaluation. Dr. Magpayo diagnosed defendant with chronic paranoid schizophrenia in 1988.
Dr. Cohen believed that defendant was suffering from a paranoid delusional disorder. At the time of the shootings, defendant was delusional and had a fixed false belief of persecution. He also had somatic delusions that he was suffering from severe medical illnesses which, in reality, did not exist. Defendant's delusions remained constant over the yearsbefore, during and after the shootings. These delusions involved a conspiracy by doctors at USC to use him in an experiment, resulting in the illnesses and horrible stench he believed he had. The delusions led to defendant's actions on February 8, 1993.
In Dr. Cohen's view, defendant's disorder was so severe that he believed he was acting in self-defense when he shot the doctors at Los Angeles County USC Medical Center. This view was based on a videotaped interview of defendant by Dr. Mohandie in 1999. In this interview, defendant stated, "I became like a vigilante and I shouldn't have done that. II justbut that's the way I was then. I am not againstI am not for paybacks anymore, but it is too late now. All I can do is just pay the price, ... my debt to society." Defendant also explained that the doctors at USC "just kept at it, at me and at me for ten years. Ten years. From the beginning of the injection to when that thing happened, it is like they just kept at it, kept at it until I just struck back." These statements supported Dr. Cohen's "opinion that [defendant] believes he has been subjected to experiments by who he sees as being very evil doctors, for years and years and years, and that it led up to the shootings, and that part of ... [defendant's] mental state involved vengeance, as well as defending himself and defending others." Defendant wanted to expose what the doctors were doing to help both himself and other poor, mentally ill and retarded people who were victims of the doctors' experiments.
Dr. Kory Knapke, another psychiatrist, also was appointed to examine defendant and testified for the defense. He also reviewed past interviews and reports and transcripts from prior court proceedings. He interviewed defendant for two hours in November 2000.
Dr. Knapke opined defendant was suffering from paranoid schizophrenia,[4] but defendant did not believe he was mentally ill. At the time of the shootings, defendant was paranoid and delusional and was experiencing a psychotic episode. Defendant believed he was ridding the world of evil and God would approve of his actions.
Dr. Sharma, a forensic psychiatrist, testified on behalf of the prosecution. Dr. *523 Sharma reviewed Dr. Magpayo's report, police reports, defendant's letter, and some audiotapes and videotapes. He met with defendant once in 1993, twice in 1994, and in June and November of 2000.
Dr. Sharma believed defendant was suffering from a paranoid and somatic delusional disorder. He believed his diagnosis was more accurate than Dr. Knapke's, in that he had interviewed defendant earlier, when defendant was at the height of his illness. Defendant's condition had improved since 1993. In 1993, defendant had a severe mental disorder which impaired his judgment.
Dr. Sharma did not agree that defendant shot the doctors in self-defense, to protect others or to reveal what had been done to him. He believed defendant's primary motive was revenge. This belief was based on his discussions with defendant, defendant's to-do list, statements during negotiations and statements to police officers after his arrest.
Sanity PhaseDefense
Dr. Cohen believed that defendant was legally insane when he shot the doctors. Defendant at that time was unable to understand the wrongfulness of his conduct. Defendant believed he was eliminating evil, and God was on his side. His acts were justified in order to save himself and others. He had no other choice but to act as he did.
In Dr. Knapke's view, defendant was legally insane at the time of the shootings. Defendant was psychotic and did not know that his actions were wrong. He believed he was eliminating evil, exposing the doctors' illegal experimentation and defending himself. He believed he had no choice but to do what he did. Although defendant knew killing was wrong, he believed that by stopping evil he was doing something right.
Dr. Jean Carlin, a psychologist, was appointed to examine defendant in December 1999. She reviewed defendant's written notes and the reports of Dr. Wells and Dr. Sharma. She concluded that defendant was suffering from a paranoid-type delusional disorder. She also opined that defendant was legally insane at the time of the shootings.
According to Dr. Carlin, defendant knew what he was doing and that society would regard his actions as wrong. Defendant did not understand that his actions were wrong, however. He believed they were morally correct. He believed he was helping God by taking action against evildoers.
Prosecution
Dr. Tournay testified that, while defendant held her hostage, he seemed calm and normal so long as he was not talking about the conspiracy against him. As to whether defendant acknowledged the wrongfulness of his conduct, she stated that defendant talked about a plan to go to Alaska, then stated, "I guess I won't be going there after what I have done." After defendant's arrest, he wrote to Dr. Tournay to apologize, acknowledging that he had to be held accountable for what he had done.
Dr. Rogers had contact with defendant while defendant was incarcerated. Defendant apologized for shooting the doctor and acknowledged it was a stupid thing to do.
Dr. Sharma believed defendant was legally sane at the time of the shootings. Defendant both understood the nature and quality of his acts and understood the wrongfulness of his acts. Dr. Sharma disagreed with the defense experts' opinions that defendant was legally insane because he believed that his actions were morally justified.
*524 Dr. Sharma felt he had an advantage over the other psychiatrists testifying for the defense in making his determination as to defendant's sanity, in that he had interviewed defendant within a year of the shootings, before defendant's statements had a chance to be clouded by faded memories or second thoughts.
According to Dr. Sharma, defendant's writings and his statements during negotiations and to the police afterward showed that he realized his actions were considered wrong by society and he would be arrested for them. Additionally, Dr. Sharma believed defendant's primary motivation in the shootings was revenge. In Dr. Sharma's opinion, if defendant acted out of revenge for past events, there was no direct connection between his mental illness and his acts, and he is not legally insane.
CONTENTIONS
Defendant contends he established by a preponderance of the evidence that he was insane on February 8, 1993, and the trial court committed reversible error when it instructed the jury as to the definition of insanity. We conclude there is merit to defendant's claim of instructional error and do not reach his contention that he was entitled to a finding of insanity as a matter of law.
Defendant further contends he was denied the effective assistance of counsel at his sanity hearing by his attorney's failure to bring out evidence of statements he made at his first trial to the effect that he believed his actions constituted self-defense. Inasmuch as the jury's finding of sanity must be reversed due to instructional error, we need not address this contention.
Defendant also contends the trial court erred in imposing a greater sentence after his retrial. We agree.
DISCUSSION
Sanity
The trial court instructed the jury pursuant to CALJIC No. 4.00: "A person is legally insane when by reason of mental disease or mental defect he was incapable of either: [¶] 1. Knowing the nature and quality of his act; or [¶] 2. Understanding the nature and quality of his act; or [¶] 3. Distinguishing right from wrong at the time of the commission of the crime. [¶] The defendant has the burden of proving his legal insanity at the time of the commission of the crime by a preponderance of the evidence." The trial court modified the instruction by adding the following: "The term `wrong' refers to both legal wrong and moral wrong. The concept of moral wrong refers to society's generally accepted standards, and not to the subjective standards of the defendant." (Italics added.) It is this addition to the instruction that defendant challenges.
As modified, the instruction thus required defendant to meet the burden of proving he was incapable of distinguishing right from both legal and moral wrong at the time he committed the crimes. This was error.
The trial court's focus on moral wrong was understandable in light of case law on the matter. In People v. Rittger (1960) 54 Cal.2d 720, 7 Cal.Rptr. 901, 355 P.2d 645, a defendant involved in a prison murder sought to justify his actions by his own "personal, prison-influenced standards," which fell outside the laws of self-defense. (At p. 734, 7 Cal.Rptr. 901, 355 P.2d 645.) In rejecting this attempt, the Supreme Court observed: "The fact that a defendant claims and believes that his acts are justifiable according to his own distorted standards does not compel a finding of legal insanity. [Citation.] This is necessarily *525 so if organized society is to formulate standards of conduct and responsibility deemed essential to its preservation or welfare, and to require compliance, within tolerances, with those standards." (Ibid.)
In discussing legal insanity in general, the Rittger court looked back at the history of the insanity defense: "Also pertinent here are the following question of the Lords and answer of the judges in [M'Naghten's] Case ([(1843)] 10 Clark & Fin. [200, 211,] 8 Eng. Rep. [718, 722]): `"If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion: but, making the ... assumption ... that he labours under ... partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.' [Citations.]" (People v. Rittger, supra, 54 Cal.2d at pp. 731-732, 7 Cal.Rptr. 901, 355 P.2d 645; see also People v. Skinner (1985) 39 Cal.3d 765, 781, fn. 13, 217 Cal. Rptr. 685, 704 P.2d 752 [language from M'Naghten's Case, supra, 8 Eng. Rep. at p. 723 also quoted with approval].)
Being able to distinguish legal right from legal wrong is not the test for insanity, however. In People v. Stress (1988) 205 Cal.App.3d 1259, 252 Cal.Rptr. 913, the defendant killed his wife in order to get a forum to denounce what he believed was a conspiracy to draft his son. He was found sane in a court trial. The Court of Appeal reversed, noting that "[i]t appear[ed] the trial court believed that in the context of [Penal Code] section 25, subdivision (b) [defining insanity defense], the term `wrong' meant legal and not moral wrong." (Stress, supra, at p. 1273, 252 Cal.Rptr. 913.) Rather, "the proper question is whether a defendant can distinguish, not the legal rightness or wrongness of his act, but its moral rightness or wrongness." (Id. at p. 1272, 252 Cal.Rptr. 913.)
The Supreme Court explained the difference between legal wrong and moral wrong in People v. Coddington (2000) 23 Cal.4th 529, 97 Cal.Rptr.2d 528, 2 P.3d 1081.[5] In Coddington, the court approved the following instruction, based on Penal Code section 25, subdivision (b), and People v. Skinner, supra, 39 Cal.3d 765, 217 Cal.Rptr. 685, 704 P.2d 752: "`Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane. [¶] A person is legally insane when, by reason of mental disease or mental defect he was incapable of knowing or understanding the nature and quality of his act or incapable of distinguishing right from wrong at the time of the commission of the offense. The word "wrong" as used in this instruction is not limited to legal wrong, but properly encompasses moral wrong as well. Thus, the defendant who is incapable of distinguishing what is morally right from what is morally wrong is *526 insane, even though he may understand the act is unlawful.'" (Coddington, supra, at p. 608, 97 Cal.Rptr.2d 528, 2 P.3d 1081.)
CALJIC No. 4.00 itself makes no reference to "legal" or "moral" right or wrong. It simply states that "[a] person is legally insane when by reason of mental disease or mental defect he was incapable of ... [d]istinguishing right from wrong...."
Here, the effect of the trial court's instruction required defendant to prove that he could not distinguish legal right from legal wrong, in addition to moral right from moral wrong. That defendant was prejudiced by this instruction is established by Dr. Sharma's testimony that defendant's writings and his statement during negotiations and to the police afterward showed that he realized his actions were considered wrong by society and he would be arrested for them. In other words, because defendant knew that he was committing a legal wrong, he was sane regardless of his inability to distinguish moral right from moral wrong. This is not the law. (People v. Coddington, supra, 23 Cal.4th at p. 608, 97 Cal.Rptr.2d 528, 2 P.3d 1081.)
Defendant offered evidence that he was suffering under the delusion that doctors were injecting him and others with lethal materials and that he felt morally justified in killing doctors to protect himself and others. A jury could accept this evidence as establishing that defendant could not distinguish between moral right and moral wrong. As stated in M'Naghten's Case, "`[I]f under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment.'" (People v. Rittger, supra, 54 Cal.2d at p. 732, 7 Cal.Rptr. 901, 355 P.2d 645.) Defendant had the right to have the jury make the determination whether he fell within that rubric, but the erroneous instruction denied him of that right. Accordingly, he is entitled to reversal of the finding of sanity. (See People v. Baker (1954) 42 Cal.2d 550, 576-577, 268 P.2d 705; People v. Duckett (1984) 162 Cal. App.3d 1115, 1127, 209 Cal.Rptr. 96.)
Sentence
Defendant originally was sentenced to two consecutive terms of life imprisonment with the possibility of parole, with a consecutive determinate term of 12 years.[6] Following his retrial, the trial court sentenced him to three consecutive terms of life imprisonment with the possibility of parole, plus a consecutive determinate term of 25 years eight months.[7]
If a defendant successfully challenges his conviction and obtains a new trial, the due process and double jeopardy clauses of the California Constitution prohibit the imposition of a greater sentence following retrial. (People v. Henderson (1963) 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 386 P.2d 677; People v. Thompson (1998) 61 Cal.App.4th 1269, 1275, 76 Cal.Rptr.2d 267.) The People agree that defendant should not have received a longer sentence *527 following his retrial than he received originally. His sentence therefore cannot exceed that which he received originallya determinate term of 12 years plus two consecutive terms of life imprisonment with the possibility of parole.
Defendant also complains of the notation on the abstract of judgment: "Pursuant to [Penal Code] section 2933.5A(2)(O), the court is prohibited from granting custody credits as to counts 1, 2, and 3 [attempted murder]." The People agree with defendant that Penal Code section 2933.5, subdivision (a)(2)(O), is inapplicable here.
Penal Code section 2933.5, subdivision (a)(2)(O), prohibits an award of conduct credits to a defendant convicted of "[a]ny felony in which the defendant personally inflicted great bodily injury, as provided in Section 12022.53 or 12022.7." It applies, however, only to a defendant "who previously has been convicted two or more times, on charges separately brought and tried, and who previously has served two or more separate prior prison terms." (Pen.Code, § 2933.5, subd. (a)(1).) Inasmuch as defendant has no prior convictions, this provision is not applicable to him. Hence, it must be deleted from the abstract of judgment.
The judgment of conviction is affirmed. The judgment in the sanity phase is reversed and the matter is remanded for a new sanity hearing. If defendant is found to have been sane at the time of the commission of the offenses, he should be resentenced. On resentencing, the aggregate term to be imposed cannot exceed 12 years plus two consecutive terms of life imprisonment with the possibility of parole, and the abstract of judgment should not contain the notation that Penal Code section 2933.5, subdivision (a)(2)(O), is applicable to the case.
We concur: VOGEL and MALLANO, JJ.
NOTES
[1] At the first trial, defendant was identified as Damacio Ybarra Torres.
[2] The petition was granted on the ground the original trial court erred in failing to hold a hearing as to defendant's competence to stand trial. (Torres v. Prunty, supra, 223 F.3d at p. 1109.) We held there was no substantial evidence as to defendant's incompetence to stand trial, so the trial court was not required to hold a competency hearing. (People v. Torres, supra, B085270 at p. 14.)
During defendant's second trial, two competency hearings were held. After both hearings, the court declared defendant competent to stand trial.
[3] Screeners interviewed patients coming into urgent care to determine the nature and seriousness of their problems. They worked at desks in the waiting room area, while other doctors examined patients in curtained cubicles.
Dr. Rogers had seen defendant twice previously in the urgent care area. He had recommended that defendant seek mental health treatment, but defendant stated that he did not have a mental health problem or need treatment.
[4] Dr. Knapke disagreed with other doctors, who diagnosed defendant as suffering from a delusional disorder.
[5] Overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13, 108 Cal.Rptr.2d 409, 25 P.3d 618.
[6] One life term was imposed concurrently. Three years were imposed for great bodily injury caused by one of the attempted murders; five years were imposed for one count of false imprisonment, the other false imprisonment term to run concurrently; and four years were imposed for the use of a firearm in the commission of the false imprisonment.
[7] The trial court imposed 11 years for firearm use and great bodily injury enhancements on the attempted murder counts, eight years for one false imprisonment count and a one-third consecutive term of one year and eight months for the other false imprisonment count, plus five years for firearm use on the false imprisonment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262384/ | 25 Cal.Rptr.3d 154 (2005)
127 Cal.App.4th 49
The PEOPLE, Plaintiff and Respondent,
v.
Antwaine Devon BUTLER, Defendant and Appellant.
No. B173781.
Court of Appeal, Second District, Division Four.
February 24, 2005.
Review Denied June 8, 2005.
*156 Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
*155 EPSTEIN, P.J.
Antwaine Devon Butler appeals from his conviction of first degree murder. He claims a violation of his Sixth Amendment confrontation rights based on the trial court's admission of prior inconsistent statements by two witnesses and evidence of a prior uncharged offense. Appellant also asserts instructional error in the trial court's refusal to give requested instructions on voluntary manslaughter. We find no Sixth Amendment violation and conclude the evidence of the uncharged offense was relevant and admissible. On this record, the trial court was not required to instruct on voluntary manslaughter.
FACTUAL AND PROCEDURAL SUMMARY
This appeal arises from a murder which occurred on November 21, 2002. The trial court admitted evidence of an incident on November 16, 2002 as relevant to the murder, so we begin our summary with that event.
On the evening of November 16, friends Ronnie, Andre, Tony, Alonso, Clive, Reggie, and Gustavo, attended a birthday party *157 in the neighborhood of 42d and Normandie in Los Angeles. Appellant also was at the party, and argued with Reggie. Appellant approached Ronnie, claiming that Ronnie was looking at him. Appellant asked if Ronnie knew him, which Ronnie denied. When Ronnie turned to leave, appellant punched him on the lip. Ronnie had never seen appellant before this party.
When his friends saw Ronnie's bleeding lip, they asked what had happened. When they heard appellant had hit Ronnie, some of the group of friends ran outside, saw appellant at the corner of 42d and Normandie, and chased him. Clive was in this group. Appellant got away. Clive was upset that appellant had hit Ronnie. The mothers of two of the boys, Ronnie and Reggie, arrived to drive the group home. Tony, Andre, Clive, and Reggie drove away in the car driven by Reggie's mother. As they were leaving, Andre and Tony saw appellant coming down the street with a gun in his hand. Appellant pointed it at someone outside the car.
The birthday party was chaperoned by Joe Bigelow and his brother-in-law, Tyrone Jemison. They checked the partygoers for weapons before allowing them to enter the backyard. Bigelow saw appellant approach, then turn and walk away, and then return a few minutes later. Appellant was patted down by Bigelow and was allowed to enter the party because no weapon was found. An hour later, appellant left the party in a hurry, followed by a group of people. There was a commotion. Five or 10 minutes after that, appellant returned with a semiautomatic handgun, walking down the middle of the street. Bigelow yelled, "Don't come down here with a gun.'" Appellant replied: "Tell them to come out." He kept yelling this demand. Bigelow did not know to whom appellant was referring, but did not let anyone out of the party because appellant was holding a gun. When appellant continued to approach, Bigelow took out a gun and cocked it and Jemison retrieved a shotgun from inside the house. At that, appellant stopped and went away. He appeared "pretty upset like he wanted to shoot somebody." After appellant left, two vehicles arrived and picked up some kids.
At 4:00 p.m. on November 21, 2002, some of the same group was gathered at a bus stop at Western and Vernon Avenues. The group included Clive, Andre, Tony, and Gregory. Gregory saw appellant, accompanied by an African-American male and a Hispanic male, walking by a Shell gas station across the street. Of these three men, appellant was the only one wearing his hair in a ponytail. Appellant and his companions crossed the street to the group at the bus bench. Appellant asked Clive if he remembered him, and when Clive said "No," appellant hit him. Gregory was hit in the face and then Andre told him to run. Gregory fled the scene through an alley. As he ran, he heard multiple gun shots nearby. At trial, Gregory at first denied, but then admitted, he saw the handle of a gun on appellant as appellant walked toward the group at the bus stop.
When appellant hit Clive, a fight started between the two groups. Tony testified that he saw appellant holding Clive in a headlock. Appellant reached into his shirt and Tony saw the handle of a gun. Tony hit appellant and Clive got away at that point. Both Clive and Tony ran, but separated. Seconds later, Tony heard gunshots but did not see the shooter. Andre's shirt had been pulled over his head in the melee, and he heard gunshots but did not see the shooter. After the shots, Clive's friends fled. Andre and Tony returned to the scene and found Clive lying face down with gunshot wounds. Clive had suffered 10 gunshot wounds. He was 14 years old.
*158 Omar Hines was standing outside a restaurant at the intersection of Western and Vernon when he saw the fight at the bus stop. He saw an African-American man with a ponytail take a gun out. Everyone started running when the man with the gun started shooting. A teenager fell to the ground and appellant went over to him and fired more shots.
Tonia Poe, a teacher at the Little Citizens Westside Academy, witnessed the shooting. At trial, she denied making statements to colleagues immediately after the shooting identifying appellant as the perpetrator. The trial court admitted the testimony of several of her colleagues as to Poe's inconsistent prior statements identifying appellant as the shooter. Another employee at the school, Tamika Hunter, denied at trial that appellant had told her he would miss a tutoring session scheduled for the day of the shooting since "`he couldn't stay that day because he had some business to take care of. He had to get his name out of some mess.'" The trial court admitted the testimony of two witnesses confirming the statements Hunter recanted at trial. We reserve the details of this testimony for our discussion of appellant's claim that his constitutional right to confrontation was violated in the admission of the prior inconsistent statements of these two witnesses.
Appellant presented no defense and was convicted of first degree murder. He was sentenced to a term of 50 years to life and filed a timely appeal.
DISCUSSION
I
Appellant's first argument is based on the trial court's admission of Poe's prior inconsistent statement that she saw him shoot the victim, and Hunter's statement that appellant said he would miss their tutoring session because he had business to take care of. Because each witness denied making the statement at trial, neither defended or explained the statement attributed to her. Under these circumstances, appellant concludes his right to confrontation guaranteed by the Sixth Amendment of the United States Constitution was violated.[1] We begin with a review of the relevant testimony.
A. Tonia Poe
The prosecution presented testimony from Poe's colleagues at the school, saying that Poe returned from the scene of the shooting, hysterical, and identified her former student, appellant, as the shooter. At the preliminary hearing and at trial, Poe denied making these statements.
Poe testified that she was at the gas station on the corner of Western and Vernon at the time of the shooting. She had left work at the Academy, and was on the way to her second job. She said that when she got to the gas station, she looked and could not find her wallet. Before she could do anything about it, she heard gunshots. She fled in her car and returned to the Academy to get her wallet. The Academy is one block from the crime scene.
At trial, Poe testified that she did not see the shots fired. She said she did not see appellant in the area of the shooting. Poe admitted that she was crying and shaking when she returned to the Academy because she had never been that close *159 to gunshots before. She denied telling either Erin Ramsey, another teacher, or the principal, Angela Moore, that she had seen appellant shoot and kill a kid on the street. She denied seeing appellant in the fight. She also denied telling Ms. Ramsey that "it was not going to go any further than this, meaning that day." Poe denied telling Ms. Ramsey "I am afraid, I know these people, my boyfriend knows these people, I work around here, I am afraid." She denied telling Ms. Ramsey she did not want to testify. Poe denied telling Ms. Moore she saw appellant in the fight, that he shot the victim, and that she did not want to testify.
Poe admitted she participated in a conference call at the school with Ms. Moore and Deborah Lewis. They discussed the shooting, but Poe testified that all she said was that she heard shots and drove away. Ms. Lewis asked her whether she had seen appellant commit the shooting. She said "No."
Poe denied telling another colleague, Doris Evans, that she saw appellant shoot a boy and that she refused to report this. She did not tell Ms. Evans that Poe's boyfriend, Curtis, told her she should not have talked about the shooting at the school. Poe denied being threatened or being afraid of testifying that she saw appellant shoot the victim, but admitted that she was concerned about her safety as a witness. She said she did not want to be in court.
Erin Ramsey testified that she was on her way out of the Academy the afternoon of the shooting when Poe came into the building, crying, with a look of fear on her face. Ramsey followed Poe back into the school to find out what was wrong. Poe went into the office of Ms. Moore, the principal. Poe did not go upstairs to her classroom. After walking back and forth, the first thing Poe said was that she had seen appellant shoot a boy. Poe repeated this as she cried and rocked back and forth. Alarmed at Poe's condition, Ramsey left her with another colleague, Mr. Mitchell (who had just arrived). Ramsey got Ms. Dunk (also a colleague) and Ms. Moore to come to the office.
Once she calmed down a bit, Poe told the others in the office that she had seen appellant cross the street with two other people and engage in a fight with other boys. She saw appellant take out a gun and start shooting. Poe became more hysterical once Mr. Mitchell went to the crime scene and returned to report that the shooting victim was dead. Poe said she did not want to testify because she was familiar with appellant and his family. They knew where she worked. Poe never said anything about having misplaced her wallet.
B. Tamika Hunter
At trial, Hunter testified that she had been doing one-on-one tutoring sessions with appellant between 2:45 p.m. and 3:30 p.m., Mondays through Thursdays for about a month before the shooting. She saw appellant the morning of November 21, 2002. Hunter testified that appellant told her he would miss his tutoring session that afternoon, but did not say why. She did not ask him why he would miss the session. Appellant had never before missed a tutoring session. He did not appear for tutoring that day.
Deborah Lewis, an administrator at the Academy, is Hunter's mother. Hunter testified that she had never told her mother that appellant had told her he was going to clear his name. She also denied making such a statement to Ms. Moore. Hunter admitted telling others at the school that she did not want to be involved in the case because she was concerned for her safety and the safety of others. She denied being *160 threatened by appellant or anyone else about her testimony. Defense counsel cross-examined Hunter at length about her mother's testimony that Hunter had previously said appellant missed the appointment because of business he had to take care of.
C. Other witnesses
Ms. Lewis works on a campus of the Academy different from the one at which Poe and her colleagues worked. After the shooting, the same afternoon, Lewis received a conference call on speaker phone from Ms. Moore. Several other staff were present on Ms. Moore's end, including Poe. Doris Evans, the overall director of the school, also participated from a separate location. Lewis knew every participant and recognized their voices on the call. Poe was extremely upset, crying, and talking fast. Poe told everyone on the call that she had seen appellant shoot someone.
Hunter was in the office with Lewis when the call came through and they were on hold. Hunter told her that appellant had cancelled his tutoring session that day because he had some business to take care of, and had to get his name out of some mess. When the conference call resumed, Hunter told the others about what appellant had said. Later, Hunter told Lewis she would not testify because she was afraid.
After the conference call, Lewis telephoned 911 to report the murder. She made the call between 6:00 p.m. and 6:30 p.m. on the afternoon of the shooting. She reported the murder because Poe said she would not. Because the operator seemed nonchalant about the report, Lewis said she had witnessed the murder. She described what Poe had told her, including identifying appellant as the shooter. Late on the night of the shooting, Lewis, accompanied by Ms. Evans from the school, went to the police station to report she had information about the shooting. They did not identify Poe as the source of their information at that time, but did identify Poe and tell officers what she said at a later time.
Ms. Moore testified and confirmed Poe's statements which we have summarized. Moore heard Poe say three times that she had seen appellant cross the street, get into a fight, and shoot a boy. Moore also confirmed that while on the conference call, she heard Hunter say that appellant left school early because he had to clear his name in some mess. According to Moore, Poe left and went to her second job while the conference call was in progress. Later, Poe called the school and was conferenced back into the call. She told everyone she had just spoken with her boyfriend, who had told her she should not have told everyone what she had seen. Poe said she would not testify. During this part of the conference call, Ms. Evans asked Poe what she could do to help her. Poe said, "the only thing you can do to help me is to lie." At that point Poe again said she could not believe appellant had shot the victim.
Ms. Evans also testified that Poe had identified appellant as the shooter during the conference call and that Poe said she would not testify. Poe said her boyfriend had told her to keep her mouth shut.
Appellant relies on Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, to argue that the admission of prior inconsistent statements by Poe and Hunter violated his right to confrontation under the Sixth Amendment. "Prior to Crawford, the admission of a hearsay statement under a firmly-rooted exception to the hearsay rule or when there were indicia of reliability did not violate a defendant's right of confrontation. (Ohio v. Roberts (1980) 448 U.S. 56, 66, [65 *161 L.Ed.2d 597, 100 S.Ct. 2531].)" (People v. Corella (2004) 122 Cal.App.4th 461, 467, 18 Cal.Rptr.3d 770.)
In Crawford, the Supreme Court announced a new test to determine whether the admission of a testimonial statement by a witness is a violation of the confrontation clause. The court did not define "testimonial", but observed that the confrontation clause is focused on testimonial statements. "`Testimony,' ... is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement." (Crawford v. Washington, supra, 124 S.Ct. at p. 1364.)
The Crawford court went on to examine the various formulations of "testimonial," which include affidavits, custodial examinations, and prior testimony. (124 S.Ct. at p. 1364.) The Supreme Court held that testimonial out-of-court statements are not admissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. (Id. at p. 1374.) It left a comprehensive definition of "testimonial" for another day, but observed that it applies at minimum to prior testimony at a preliminary hearing, before a grand jury, and to police interrogations. (Ibid.)
As to nontestimonial hearsay, the Crawford court observed: "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law as does [Ohio v. Roberts (1980) 448 U.S. 56, [100 S.Ct. 2531]], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." (Crawford v. Washington, supra, 124 S.Ct. at 1374.)
In People v. Corella, supra, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, the Court of Appeal concluded that, after Crawford, "a `nontestimonial' hearsay statement continues to be governed by the Roberts standard, but the admission of a `testimonial' hearsay statement constitutes a violation of a defendant's right of confrontation unless the declarant is unavailable to testify at trial and the defense had a prior opportunity for cross-examination. (Crawford, 124 S.Ct. at pp. 1369, 1374.)" (Id. at p. 467, 18 Cal.Rptr.3d 770.) In Corella, the defendant's wife telephoned 911 and said appellant had punched her. She repeated these facts to an officer who responded to the scene, and to a paramedic. At the preliminary hearing, Mrs. Corella recanted her statements. She did not testify at trial. The police officer testified to the statements at trial and a tape recording of the 911 telephone call was played for the jury.
Corella argued that the statements to the 911 operator and the police officer were inadmissible because they were testimonial within the meaning of Crawford. The court agreed that the statements were properly admitted because they were not testimonial. (People v. Corella, supra, 122 Cal.App.4th at p. 467, 18 Cal.Rptr.3d 770.) It concluded that the statements were not akin to interrogation because they were not "`knowingly given in response to structured police questioning,' and bear no indicia common to the official and formal quality of the various statements deemed testimonial by Crawford." (Id. at p. 468, 18 Cal.Rptr.3d 770.)
As in Corella, the statements made by Poe and Hunter on the afternoon of the shooting "bear no indicia" common to the various testimonial settings identified by the Crawford court. No government official *162 was present. The statements were made spontaneously to co-workers. Appellant asserts that the statements by Poe and Hunter were testimonial "because an objective observer would reasonably foresee that [the] statement could be used in a prosecution." He also argues that the statements were testimonial because they were included in police reports of statements made by other witnesses. We find no language in Crawford that supports these arguments. Rather, appellant's position is contrary to the language we have quoted from Crawford in which the Supreme Court focused on statements given in lieu of oral testimony, such as an affidavit, or given to a government official in a formal statement.
Even if the statements were considered testimonial, both Poe and Hunter were available for cross-examination at trial. Appellant contends he had no meaningful opportunity for cross-examination because each denied the prior inconsistent statements attributed to her. Each witness was thoroughly examined and denied making the statements. In addition, each prosecution witness who testified about the prior statements was thoroughly cross-examined about the circumstances in which the statements were made. It was pointed out in examination that either Poe and Hunter were lying, or their colleagues from the school were lying. We find no violation of the Sixth Amendment under these circumstances. Therefore, the California hearsay law applies. Appellant does not argue that the statements were inadmissible under California's rule on prior inconsistent statements, Evidence Code sections 770 and 1235. At oral argument, respondent referred to the spontaneous statement exception to the hearsay rule. (Evid.Code, § 1240.) Since this was not raised in the trial court, we do not base our decision on this ground.
II
Appellant also argues the trial court erred in admitting evidence of the incident at the November 16 party. He cites Evidence Code section 1101 which prohibits the admission of uncharged acts to show a criminal disposition or propensity to commit the crime charged.[2]
The prosecutor argued that the evidence of the November 16 incident was relevant to prove motive. The defense objected on the grounds that the events at the party were unrelated to the murder because different people were involved in a different scenario at a different location. The defense argued that the evidence should be excluded because the prejudice outweighed the probative value. We reject respondent's argument that the issue was not preserved for appeal.
"Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. (People v. Durham (1969) 70 *163 Cal.2d 171, 186 [74 Cal.Rptr. 262, 449 P.2d 198]; Evid.Code, § 1101, subd. (b).) The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. (People v. DeRango (1981) 115 Cal.App.3d 583, 589 [171 Cal.Rptr. 429], citing People v. Matson (1974) 13 Cal.3d 35, 40 [117 Cal.Rptr. 664, 528 P.2d 752].) When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. (People v. Thompson (1980) 27 Cal.3d 303, 315 [165 Cal.Rptr. 289, 611 P.2d 883].) Because this type of evidence can be so damaging, `[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.' (Id. at p. 316, 165 Cal.Rptr. 289, 611 P.2d 883.)" (People v. Daniels (1991) 52 Cal.3d 815, 856, 277 Cal.Rptr. 122, 802 P.2d 906.) "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1195, 17 Cal.Rptr.3d 532, 95 P.3d 811.)
The Supreme Court has held that "[a]s long as there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper. [Citations.]" (People v. Daniels, supra, 52 Cal.3d at p. 857, 277 Cal.Rptr. 122, 802 P.2d 906.) Here we find the requisite direct relationship between the November 16 incident and the November 21 shooting. In each, appellant had a dispute with members of the same group of friends. He was chased by the group at the November 16 party, then brandished a weapon at them as they drove away from that party. Clive was in the group that chased appellant. On November 21, three of the friends who had been together at the party were at the bus stop Tony, Andre, and Clive. Appellant approached the group and asked Clive if he remembered him. When Clive said he did not, appellant hit him without provocation. Various members of the group testified that the first time they had seen appellant was at the November 16 party. The incident at the November 16 party is relevant to explain appellant's motive for the otherwise unprovoked attack on Clive. It was properly admitted as more probative than prejudicial in light of the more serious nature of the November 21 shooting. As in People v. Daniels, supra, 52 Cal.3d at page 858, 277 Cal.Rptr. 122, 802 P.2d 906, the evidence of the prior incident was crucial to the prosecution's theory of the case.
III
Finally, appellant argues the trial court erred in refusing his proffered instructions on the lesser included offense of voluntary manslaughter based on heat of passion. The prosecution argued against the instruction based on the evidence that appellant initiated the fight, and that when the shooting occurred, Clive was attempting to run from the scene.
"`"[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence. ..." [Citations.]' (People v. Lewis (2001) 25 Cal.4th 610, 645 [106 Cal.Rptr.2d 629, 22 P.3d 392].) `To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are *164 present.' (Ibid.) Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. (See People v. Avena [(1996)] 13 Cal.4th 394, 414, 53 Cal.Rptr.2d 301, 916 P.2d 1000.) `"Substantial evidence is evidence sufficient to `deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." [Citation.]' (People v. Lewis, supra, 25 Cal.4th at p. 645, 106 Cal.Rptr.2d 629, 22 P.3d 392.)" (People v. Cunningham (2001) 25 Cal.4th 926, 1007-1008, 108 Cal.Rptr.2d 291, 25 P.3d 519.)
We conclude the trial court properly rejected the voluntary manslaughter instruction because appellant armed himself with a gun before confronting the group at the bus stop; hit Clive without provocation; and then shot the unarmed Clive when Clive was attempting to run from the fight. This evidence is consistent only with first degree murder.
DISPOSITION
The judgment is affirmed.
We concur: HASTINGS, J., and GRIMES, J.[*]
NOTES
[1] Respondent contends the appellant waived the confrontation issue because he did not object to the testimony below. Because Crawford v. Washington (2004) 541 U.S. 36, [124 S.Ct. 1354] was decided after the trial in this case, the failure to object was excusable. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2, 18 Cal.Rptr.3d 230.)
[2] Evidence Code section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262390/ | 25 Cal.Rptr.3d 50 (2005)
127 Cal.App.4th 32
Ellen DIXON et al., Plaintiffs and Respondents,
v.
CITY OF LIVERMORE, Defendant and Appellant.
No. A100310.
Court of Appeal, First District, Division Four.
February 10, 2005.
As Modified on Denial of Rehearing March 11, 2005.
Review Denied May 18, 2005.
*51 Ralph S. LaMontagne, Eric A. Amador, Shaw, Terhar & LaMontagne, for Appellant.
Terry O'Reilly, Gary L. Simms, O'Reilly Collins & Danko, San Mateo, CA, for Plaintiffs and Respondents Ellen Dixon and Joesph Dock.
Thomas Marc Litton, Frederick J. Geonetta, Litton & Geonetta, San Francisco, CA, for David Dixon, Jr.
*52 RIVERA, J.
The City of Livermore (the City) appeals after the trial court found it vicariously liable for injuries suffered by plaintiffs in a helicopter crash at an air show held at the Livermore Municipal Airport (Airport), and managed by Wings for Charity, Inc. (Wings). We conclude there is no substantial evidence to support the trial court's conclusion that Wings's negligent acts or omissions caused plaintiffs' injuries. Accordingly, there is no basis to hold the City vicariously liable, and we reverse the judgment.
I. BACKGROUND
Plaintiff Ellen Dixon and her husband, David Dixon, attended an air show at the Airport on September 10, 1995. They took a helicopter ride piloted by James Crist (Crist). The helicopter crashed during the ride, killing David Dixon and seriously injuring Ellen Dixon.
A. Pretrial and Trial Proceedings
Ellen Dixon, her son Joesph Dock, and David Dixon's son David Dixon, Jr., (plaintiffs) filed a claim against the City. They claimed the City had participated in the air show by contributing use of Airport grounds and facilities, and of various City employees, such that the City had `jointventured' the air show and its activities, and that it had negligently reviewed the qualifications and safety of Tri-Valley Helicopters (Tri-Valley) and Wings's air show activities.
Plaintiffs then filed this action against the City, Wings, Tri-Valley, Crist, Greenbelt Aviation (Greenbelt), Rodger Ainsworth (Ainsworth), and other defendants, including the helicopter manufacturer, alleging causes of action for negligence, strict products liability, negligent products liability, negligent infliction of emotional distress, wrongful death, and loss of consortium.[1] A jury found Crist and Tri-Valley negligent, and deadlocked on whether the City and Wings were negligent. It found the other defendants not to be negligent. The jury awarded $11,009,000 in damages, and assigned Crist 60 percent of the fault, and Tri-Valley 40 percent.
Crist moved for a mistrial, and the City joined in the motion as it related to the amount of damages. The trial court denied the motion, instead granting plaintiffs' motion to limit the retrial to the issues of the liability of the City and Wings and the apportionment of fault.
Plaintiffs settled their claims against Wings, Tri-Valley, Crist, and other defendants. The City was the sole defendant at the second trial. The parties waived a jury, and the unresolved issues with respect to the City were tried by the court.
After the retrial, the trial court issued a proposed statement of decision concluding that Wings was an independent contractor of the City; the City and Wings were engaged in a joint enterprise; Wings was negligent in its management of the helicopter operation; and the City was vicariously liable for Wings's negligence.
The City objected to the proposed statement of decision. It cited the general rule that the employer of an independent contractor is not liable for physical harm caused to others by the acts of the contractor. (See Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 32, 103 Cal.Rptr.2d 594.)[2] It also argued that the *53 evidence did not support a finding that the City and Wings were involved in a joint enterprise, and that Wings could not be both an independent contractor of the City and a member of a joint enterprise with the City.
B. The Statement of Decision
The trial court then issued its statement of decision.
1. Trial Court's Factual Findings
According to the statement of decision, the City owned and operated the Airport. Between 1969 and 1983, a series of organizations participated with the City in putting on air shows. In 1983 or 1984, the City's director of public works, Dan Lee, recommended that the City create a charitable organization for the purpose of participating in the management of the air show, and the City council approved the suggestion. With input from the City attorney, Lee drafted bylaws for the organization, Wings. Lee became Wings's first vice-chairperson. The City believed the creation of Wings was the best way to meet the objectives of raising money for charity, providing family entertainment, having volunteer involvement, increasing public awareness of and support for the Airport, providing funding for capital improvements at the Airport, and assuring continuation of the Airport.
The City and Wings entered into an "Agreement for Livermore Air Show Management". According to the agreement, Wings would provide overall management of the air show and would coordinate its decisions with the City's designated representatives.
A week before the air show, a Federal Aviation Administration (FAA) employee met with the City, Wings, and other representatives. At the meeting, it was decided that helicopter flights would be at an altitude of approximately 300 feet. Wings did not object to this decision.
In order for low-level aerobatics to occur over an airport, the FAA must waive certain federal regulations. Wings sought and received a waiver for the air show. The waiver did not include helicopter rides for hire. In an advisory relating to waiver for aviation events, the FAA recommended that the manager of an air show verify the qualifications of all participants at an air show, including participants in rides for hire.[3]
Tri-Valley was a tenant of the Airport, allowed under the terms of its agreement with the Airport to offer scenic helicopter rides to the public. Although the Airport was closed to ordinary traffic during the air show, Wings and the City allowed Tri-Valley to operate its rides for hire as part of the air show. Wings was aware that Tri-Valley was a tenant at the Airport and had provided rides at previous air shows. *54 There was no evidence that Wings took any other affirmative action to verify the qualifications of Tri-Valley as an operator of helicopter rides to the public, to verify the qualifications and experience of Tri-Valley pilots, or to verify that only Tri-Valley equipment and personnel would be used in the helicopter rides.[4]
Tri-Valley's helicopter had mechanical problems in the week before the air show, and Tri-Valley contacted Ainsworth of Greenbelt to arrange a back-up helicopter. Ainsworth agreed to supply an Enstrom helicopter, pilots, and a fuel truck to Tri-Valley. The pilots were to be responsible for fueling the helicopter.
Crist was one of Ainsworth's pilots. He was an FAA-certified commercial pilot, a fact confirmed by an FAA representative either immediately before or during the air show. He had been trained by Tim Wells, a friend who was another Ainsworth pilot. Wells testified that during his helicopter training, Crist had demonstrated difficulty in executing "auto rotation" maneuvers, which are necessary to land a helicopter when it loses power. In fact, Crist had never autorotated a helicopter to the ground during training. Crist's training was primarily on a different model helicopter, which had both a fuel light and a warning siren for slow rotations; the Enstrom had neither. Crist's logbook demonstrated the number of hours he had flown helicopters, and specifically how many hours he had flown an Enstrom.[5]
The City's regular fuel island, which met the requirements of the Uniform Fire Code, was closed during the air show.[6] The City also had four fuel trucks used for remote fueling; they had pumps, safety equipment, and trained personnel in accordance with the Uniform Fire Code. During the air show, at Tri-Valley's request, the City pumped fuel from a City fuel truck onto a truck operated by Greenbelt, which had a fuel tank mounted on the truck bed. The fuel was then pumped from the Greenbelt truck into the Enstrom helicopter. Wings did not check to see if Greenbelt's truck had proper pumps, safety equipment, or fuel cells, as required by the Fire Code. A City employee authorized this method of fueling, but no City personnel inspected the fuel site. The day before the accident, the helicopters were being "hot fueled," or fueled with the engine running; this is considered an unsafe practice and is not an accurate way to measure fuel. No fuel logs were kept of the pumping of fuel into the Enstrom.
The Enstrom had two fuel tanks. They could not both be fully fueled during the ride program due to the combined weight of the fuel and the passengers. As a result, Tri-Valley and Crist decided to fill only one tank; after it was filled, the fuel would level out between the two tanks. The night before the accident, one tank of the Enstrom was filled. The engine was not running at the time. The helicopter was not fueled again before the Dixons' flight.
*55 On the morning of September 10, 1995, another Ainsworth pilot used the Enstrom, and then turned it over to Crist to fly. There was no evidence Crist inspected the amount of fuel in the helicopter.
That morning, the Dixons attended the air show and purchased a five-minute scenic helicopter ride from Tri-Valley. Crist was the pilot. He flew the helicopter at an altitude of approximately 300 feet, over inhospitable terrain. The helicopter ran out of fuel. Crist could not land safely, and the helicopter crashed.
2. Trial Court's Conclusions Regarding Liability
Plaintiffs had contended the City was directly liable for plaintiffs' injuries because of its failure to adhere to legal requirements for proper handling of fuel. The trial court rejected this basis for liability, concluding the evidence did not demonstrate a nexus between plaintiffs' injuries and the purpose of the statutes at issue. Similarly, the trial court found the City was not vicariously liable for the torts of Tri-Valley and Crist in their roles as independent contractors, concluding the evidence did not show that plaintiffs' injuries were caused by any breach of the City's mandatory duties relating to fuel-handling.
The trial court did, however, find the City vicariously liable for the negligence of Wings. It concluded that Wings was "more than an independent contractor and that the nature of the agency relationship created by the City with Wings resulted in a master-servant relationship akin to a typical employer-employee relationship." The court then found that "Wings, in its role as servant of the City, breached duties owed to plaintiffs to adequately investigate and supervise the operations of the helicopter rides offered by [Tri-Valley] at the Airshow." The court found that Wings failed to reasonably supervise the helicopter operation, and that this conclusion was "buttress[ed]" by the following conduct: (1) Wings failed to comply with the Uniform Fire Code, particularly with respect to safe fueling practices; (2) Wings failed to determine if Greenbelt's truck had proper pumps, safety equipment, or fuel cells; (3) Wings failed to observe that on the day before the accident, helicopters were being "hot fueled"; (4) Wings failed to inspect the landing site to ensure it complied with legal requirements; (5) Wings did not include the helicopter ride program in the FAA waiver; (6) Wings did not sufficiently evaluate the qualifications of the pilots in the ride program; (7) Wings did not ensure that the ride was flown at a high enough altitude and flown over more hospitable terrain. Furthermore, Wings's failure to ensure that Tri-Valley did not use subcontracted aircraft or pilots without Wings's knowledge showed a "dangerously laissez-faire approach" to the helicopter rides. The totality of these circumstances, according to the trial court, created "an overwhelming impression of negligent management by Wings." The trial court concluded Wings's failure to ensure that rides were offered by experienced pilots using the safest helicopters was a cause of the accident. The court found Crist 40 percent at fault to plaintiffs, Tri-Valley 30 percent, and Wings 30 percent. The City and Wings were found jointly and severally liable for 30 percent of plaintiffs' noneconomic damages and for all of their economic damages.
The trial court entered judgment against the City in the amount of $6,172,000. This appeal ensued.
II. DISCUSSION
A. The Claim Adequately Informed the City of the Basis of Liability
The City contends plaintiffs' tort claim did not adequately inform the City of *56 the basis of liability the trial court ultimately adopted, that the City was vicariously liable for the act of Wings as its servant or employee. Government Code[7] section 945.4 requires a plaintiff to present a claim before bringing suit against a public entity for damages arising out of an alleged tort. (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434, 253 Cal.Rptr. 587 (Fall River).) The claim must include a general description of the injuries and the names of the public employees who caused them. (Ibid.; § 910, subds. (d), (e).) "Furthermore, `"If a plaintiff relies on more than one theory of recovery against the [governmental agency], each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint...."'" (Fall River, at p. 434, 253 Cal.Rptr. 587.)
The City does not contend the complaint alleged causes of action not adequately pled in the tort claim; rather, it complains that the trial court adopted a theory of liability that was not fairly included in the claim. The tort claim did not allege that Wings was a servant or employee of the City. While the complaint contains a general allegation that each of the defendants "was an agent, servant, employee, representative and/or joint venturer of each of the remaining defendants,"[8] it does not appear that plaintiffs relied in the litigation on the theory that the City was liable for the actions of Wings as its servant or employee.[9] However, even assuming that section 945.4 prohibits the trial court (as opposed to plaintiffs) from relying on a theory not pled in the tort claim, we reject the City's contention that the tort claim did not put it on notice that plaintiffs sought to hold it vicariously liable for Wings's negligence.
Where a complaint is "predicated on the same fundamental facts" as those in the claim (White v. Superior Court (1990) 225 Cal.App.3d 1505, 1511, 275 Cal.Rptr. 706), courts have concluded the claim did not violate section 945.4. In White, for instance, the plaintiff submitted a claim to a city stating a police officer had falsely arrested her and beaten her. She then filed a complaint alleging causes of action for negligent hiring, training and retention and intentional failure to train, supervise, and discipline. (White, at p. 1507, 275 Cal.Rptr. 706.) The city contended these causes of action were not fairly reflected in the claim filed with the city. (Id. at p. 1508, 275 Cal.Rptr. 706.) The court rejected this contention because both the complaint and the claim were predicated on the same fundamental facts the officer's alleged mistreatment of the plaintiff. (Id. at p. 1511, 275 Cal.Rptr. 706.)
The court in Blair v. Superior Court (1990) 218 Cal.App.3d 221, 267 Cal.Rptr. 13, reached a similar conclusion. There, the claim alleged the plaintiff was injured when the pickup he was riding in went out of control on an icy road that the defendant had negligently failed to maintain and sand. (Id. at p. 223, 267 Cal.Rptr. 13.) The complaint included allegations that the roadway lacked guard rails or warning *57 signs. (Id. at p. 224, 267 Cal.Rptr. 13.) The court concluded the claim and the complaint were "premised on essentially the same foundation, that because of its negligent construction or maintenance, the highway at the scene of the accident constituted a dangerous condition of public property." (Id. at p. 226, 267 Cal.Rptr. 13.) Similarly, in Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 276 and footnote 2, 29 Cal.Rptr.2d 398, the plaintiff had alleged in her claim that her father fell in his apartment during an earthquake and was not discovered until seven days later, that he subsequently died, and that the defendant "`negligently owned, maintained, managed and operated the premises....'" Her complaint alleged negligent failure to disclose latent defects in the public building in which the father had lived, breach of the defendant's duty to inspect the premises for safety, and negligent failure to inspect the building. (Id. at p. 276, 29 Cal.Rptr.2d 398.) The court stated the additional allegations in the complaint "were not based on a different set of facts from those set out in the claim and [were] fairly included within the facts first noticed in the claim." (Id. at p. 278, 29 Cal.Rptr.2d 398.)
Most recently, our Supreme Court has upheld the rule of White and Blair in Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 20 Cal.Rptr.3d 176, 99 P.3d 500. There, the plaintiff's notice of claim against a public agency stated he had been wrongfully terminated for supporting another employee's sexual harassment complaints. The claim identified the instigator of the termination, and stated the date on which the termination occurred. (Id. at p. 444, 20 Cal.Rptr.3d 176, 99 P.3d 500.) The claim was denied, and the plaintiff brought an action against the public agency, which he later sought to amend to allege he had been terminated in violation of public policy on three specific grounds. (Ibid.) Our Supreme Court concluded the claim adequately informed the agency of the nature of the claim, stating, "A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an `entirely different set of facts.' (Stevenson v. San Francisco Housing Authority [supra, 24 Cal.App.4th at p. 278, 29 Cal.Rptr.2d 398].) Only where there has been a `complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim' have courts generally found the complaint barred. (Blair v. Superior Court, supra, [218 Cal.App.3d] at p. 226 [267 Cal.Rptr. 13].)" (Id. at p. 447, 20 Cal.Rptr.3d 176, 99 P.3d 500.) Stockett's additional theories were based on the same factual foundation as those in the claim, and the claim provided sufficient information to allow the public agency to conduct an investigation into the merits of the claim. (Id. at pp. 448-450, 20 Cal.Rptr.3d 176, 99 P.3d 500.) In reaching this conclusion, the court distinguished various cases in which the complaint alleged liability on an entirely different factual basis from that in the tort claim. (Id. at p. 448 & fn. 4, 20 Cal.Rptr.3d 176, 99 P.3d 500, discussing Fall River, supra, 206 Cal.App.3d at pp. 433-434, 253 Cal.Rptr. 587 [notice of claim stated injury was caused by school's negligent maintenance of door, but complaint additionally alleged the school negligently failed to supervise students], Lopez v. Southern Cal. Permanente Medical Group (1981) 115 Cal.App.3d 673, 676-677, 171 Cal.Rptr. 527 [claim alleging state negligently issued driver's license to person despite epileptic condition insufficient to allow amended complaint alleging state neglected to suspend or revoke license despite failure to *58 comply with accident reporting and financial responsibility laws], and Donohue v. State of California (1986) 178 Cal.App.3d 795, 803-804, 224 Cal.Rptr. 57 [claim alleging Department of Motor Vehicles negligently allowed uninsured motorist to take driving test did not provide notice of complaint's allegation that department negligently supervised and instructed driver during exam].)
We conclude the claim adequately informed the City that plaintiffs sought to hold it vicariously liable for the negligence of Wings. The claim alleged the City had "joint-ventured" the "Wings for Charity Airshow." This allegation would most naturally be understood to mean the City and Wings were joint venturers in the air show. "`[T]he negligence of one joint venturer or of his employees acting in connection with the joint venture is imputed to the other joint venturers.'" (County of Riverside v. Loma Linda University (1981) 118 Cal.App.3d 300, 312, fn. 3, 173 Cal.Rptr. 371.) The claim also informed the City that the qualifications, competency, and safety of Tri-Valley would be at issue, although this allegation was stated in terms of the City's negligence. In the circumstances, the City was not held liable on a different factual basis from that alleged in the claim.[10]
B. There Is No Substantial Evidence That Wings's Omissions Caused Plaintiffs' Injuries
The trial court concluded that Wings was negligent in its management of the air show, and that this negligence was a cause of plaintiffs' injuries. Wings is not liable for plaintiffs' injuries unless it owed plaintiffs a legal duty of care, it breached that duty, and the breach was a substantial factor in causing plaintiffs' injuries. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772, 107 Cal.Rptr.2d 617, 23 P.3d 1143 (Saelzler).) "[A]bstract negligence," without proof of a causal connection to the injury suffered, will not support a finding of liability. (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 918, 214 Cal.Rptr. 395 (Noble); see also Saelzler, supra, 25 Cal.4th at p. 773, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) Proof of causation must be by substantial evidence, "and evidence `which leaves the determination of these essential facts in the realm of mere speculation and conjecture is insufficient.' [Citations.]" (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484, 50 Cal.Rptr.2d 785 (Leslie G.).) In Saelzler, the court concluded summary judgment was properly granted to a property owner on whose property the plaintiff had been assaulted, where the evidence showed merely a "speculative possibility" that additional security would have prevented the assault. (Saelzler, supra, 25 Cal.4th at pp. 766-767, 781, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)
The trial court concluded that Wings committed the following acts or omissions: failure to comply with the Uniform Fire Code's requirements for fueling practices; failure to determine if Greenbelt's equipment complied with the Fire Code; failure to observe that helicopters were being hot fueled the day before the accident; failure to inspect the landing site; failure to include the helicopter ride program in the FAA waiver; failure to evaluate the pilots' qualifications; and failure to ensure that the ride was at a sufficient altitude and flown over more hospitable terrain.
*59 The court went on to state: "The Court finds that Wings did, in fact, fail to reasonably supervise the helicopter operation, and that the enumerated conduct buttresses this conclusion. One can imagine a number of different scenarios that might have resulted in injury to Airshow attendees, arising out of some or all of the above failures. These acts/omissions must be reviewed alongside the fact that [Tri-Valley] was free to sub-contract out its helicopter concession without any oversight from Wings. Even though the principals of [Tri-Valley] remained on site and in control of the concession, the ability of [Tri-Valley] to use aircraft and pilots about which Wings had neither sought nor received any prior knowledge or notice establishes a dangerously laissez-faire approach by Wings with respect to the operation of the helicopter rides at the Airshow. The totality of these circumstances create[s] an overwhelming impression of negligent management by Wings."
As we have discussed, however, there must be evidence of more than "abstract negligence"; we cannot affirm the judgment unless there is substantial evidence of a causal connection between Wings's negligent acts or omissions and plaintiffs' injuries. (See Noble, supra, 168 Cal.App.3d at p. 918, 214 Cal.Rptr. 395; Leslie G., supra, 43 Cal.App.4th at p. 484, 50 Cal.Rptr.2d 785.) We first note that of the seven instances the trial court provided of Wings's omissions, five of them (failure to comply with the Fire Code's fueling practices, failure to determine whether Greenbelt's truck complied with the Fire Code, failure to observe hot fueling the day before the accident, failure to inspect the landing site, and failure to include the helicopter ride in the FAA waiver) have no causal connection whatsoever to the accident.[11] Indeed the trial court made no attempt to draw such a connection, instead linking Wings's "negligent management" to the accident as follows: "The cause of the accident ... was the helicopter, while being piloted by an inexperienced pilot, running out of fuel over inhospitable terrain. There is a reasonable inference that the accident would not have occurred if (1) the helicopter did not run out of fuel; (2) the flight did not occur over inhospitable terrain; or (3) the helicopter was being piloted by a more experienced pilot. If the Wings [sic] had acted affirmatively to insure, or even made an inquiry to verify, that the public was being offered rides by experienced pilots using the safest helicopters, the likelihood of plaintiffs['] suffering the injuries in fact suffered would have been reasonably and prudently minimized." The question before the trial court, however, was not merely whether there was a "reasonable inference" that the accident would not have occurred but for these three factors, nor whether the risk of injury could have been "prudently minimized," but whether plaintiffs had proven by a preponderance of the evidence that an act or omission of Wings was negligent and a substantial factor in bringing about plaintiffs' injuries.
Our review of the record persuades us that there is no substantial evidence to support a finding that the accident was due to the negligence of Wings.[12]
*60 First, as to the helicopter's running out of fuel, there is no evidence indicating that Wings was, or should have been, responsible for making sure the helicopter was adequately fueled. Even plaintiffs' expert, James Cheatham (Cheatham), testified that the fuel level is the sole responsibility of the pilot.
Second, as to the flight's occurring over inhospitable terrain, there is no evidence that any other route would have been safer or that the choice of route was negligent. Cheatham testified that the area where the ride was conducted contained safe areas for autorotation landings, but that Crist did not choose one of those areas. A defense expert, Terry Blumenthal, testified that Crist made a turn into inhospitable terrain, but that any route would have some inhospitable terrain, whether houses, factories, or quarries, and that the route the flight took was "as good a route as they could have chosen." While there is evidence that Crist chose an unsafe spot to land the helicopter, the record does not indicate that the route as a whole was unsafe or that Wings was negligent in allowing the helicopter rides along that route.[13]
Third, the trial court concluded the accident might not have occurred if the helicopter had been flown by a more experienced pilot using a safer helicopter. There are two reasons why this cannot support liability. First, the issue of negligent entrustment was decided in favor of the City and Wings before the second trial began. The complaint contained a third cause of action against Wings and the City for negligent entrustment. This cause of action alleged that defendants knew or should have known that Crist was incompetent and unfit to perform the duties for which he was employed, that they breached their duty of care by "negligently hiring and supervising defendant Crist without investigating his qualification to fly the F28C, and by failing to disqualify him from participating as an Enstrom F28C helicopter pilot in the Airshow." The City won summary adjudication on this cause of action, and won a directed verdict on the "issue[ ] of negligent entrustment." Wings also won a directed verdict on the third cause of action and on the "issue[] of negligent entrustment." Thus, both the City and Wings were found not to be liable for hiring and supervising Crist without investigating his qualifications and for failing to disqualify him from flying at the air show.[14]
In any case, there is no substantial evidence that Wings was negligent in failing to check Crist's qualifications or in refusing to allow the Enstrom to be used; nor is there substantial evidence that these omissions caused plaintiffs' injuries.[15] It is *61 undisputed the FAA informed Wings that the FAA would be responsible for the helicopter program. There is also uncontradicted evidence that the FAA checked to ensure the helicopter pilots were properly qualified, and that the Enstrom was airworthy and met FAA requirements.[16] Further, plaintiffs presented no expert testimony that it was the standard of care in the air show industry to demand that pilots have higher qualifications than those required by the FAA. It is true that plaintiffs' expert, Cheatham, testified as the owner of a helicopter company that he would not hire a pilot with Crist's experience, that Crist was not competent to operate a helicopter for hire, and that Tri-Valley's overall operation was incompetent. However, the issue here is not whether Crist's employer was negligent in hiring him (indeed, the jury in the first trial found that Crist's employer, Ainsworth, was not negligent); the issue is whether it was negligent for Wings not to check and reject a pilot who had been approved by the FAA. We see no basis to conclude Wings was negligent for failing to second-guess the FAA's judgment on whether the pilots were qualified.
More importantly, the evidence does not support a conclusion that a prudent air show operator would not have allowed Crist to fly if it had checked his qualifications. Plaintiffs' expert, Skip Lehman (Lehman), himself an aviation event producer, testified that air show producers should not just confirm the pilots have commercial licenses, but should also check their credentials and reputations. Lehman stated that he looks for "[r]eliability, safety, and experience." Crist had a commercial pilot's license. His logbook showed nearly 1,000 hours of helicopter flying time, and frequent flights in an Enstrom in the months preceding the accident. That amount far exceeded the 150 hours required for a commercial pilot certificate with a helicopter-class rating. (14 C.F.R. § 61.129(c) (2004).)[17] There was no evidence that, prior to the accident at issue, Crist had ever had an enforcement action brought against him by the FAA, or that Crist had ever been involved in any accidents while piloting a helicopter. Crist also testified that he had previous experience flying passengers for hire in the 1994 Livermore air show.[18] Although Crist's flight instructor testified that Crist had some difficulty executing autorotations during his training, there is no evidence indicating that air show operators, in addition to checking the pilots' "[r]eliability, safety, and experience," should also locate and interview the flight instructors of each of the pilots to determine what problems they had encountered during their training. In fact, Lehman agreed that "it's nothing more than pure speculation that if Wings for Charity or the City of Livermore had played a more active role in managing the operation of this airshow that the accident would or would not have occurred," and that there was no "basis to determine whether or not the accident could have been avoided had the City and *62 Wings actually done anything about the helicopter ride."
Plaintiffs cite White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 82 Cal. Rptr.2d 71 to support their argument that Wings cannot rely solely on Crist's licensure to establish his competence to fly the helicopter at the air show. In White, the court concluded a company that rented an airplane to a licensed pilot could be held liable for negligent entrustment of an airplane to a new pilot where the company had not performed a "high altitude checkout" with the pilot, although it knew he would be flying into the South Lake Tahoe airport, a challenging high altitude airport surrounded by mountains. (Id. at pp. 916-918, 920-923, 82 Cal.Rptr.2d 71.) White does not assist plaintiffs. First, the issue in White is liability for negligent entrustment, an issue that we have already concluded has been eliminated from this case. (Id. at p. 920, 82 Cal.Rptr.2d 71.) Second, the evidence in White indicated that the South Lake Tahoe airport was known to be "at best, a challenging airport and, at worst, a dangerous airport," and that it required special skills to take off and land there safely. (Id. at p. 922, 82 Cal.Rptr.2d 71.) The record here does not indicate that a pilot would require special skills or training to fly the helicopter rides. This case, rather, is closer to Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 650, 96 Cal.Rptr.2d 874, which concluded that a car rental agency was not negligent in renting a car to a licensed driver where there was no evidence the agency knew or should have known the driver was incompetent or that the agency had knowledge of any circumstances that would put it on notice that he was incompetent.
We agree with plaintiffs' expert Lehman that it is speculative to conclude that the accident would not have occurred if Wings had acted differently in managing the air show. Neither the trial court nor we may engage in such speculation. (See Saelzler, supra, 25 Cal.4th at p. 781, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) The record does not contain substantial evidence that plaintiffs' injuries were caused by the negligent acts or omissions of Wings. Accordingly, there is no basis to hold the City vicariously liable for Wings's negligence, and we must reverse the judgment.[19]
III. DISPOSITION
The judgment is reversed. The trial court is directed to enter judgment in favor of the City.
We concur: KAY, P.J., and REARDON, J.
NOTES
[1] The complaint alleged Wings was "a California non-profit corporation, organized for the purpose of staging and operating the annual Wings for Charity Airshow...."
[2] As noted in Kinney, this rule is subject to many exceptions. (Kinney v. CSB Construction, Inc., supra, 87 Cal.App.4th at p. 32 & fn. 2, 103 Cal.Rptr.2d 594.) Pursuant to Government Code section 815.4, a public entity is liable for injuries caused by the torts of its independent contractor to the same extent as it would be liable if the public entity were a private person. As noted post, the trial court ultimately chose not to rest the City's liability on the theory that Wings was an independent contractor. We have no occasion to consider here the applicability of any of the exceptions to the general rule of nonliability for the acts of an independent contractor.
[3] The FAA circular advisory stated: "The primary safety check-and-balance used by the aviation event organizer is the establishment of the credentials of each participant and his or her aircraft, confirmation of the participants' experience in an aviation event environment, and provision to each flying participant with the proper information regarding operations at that specific event."
[4] Although not spelled out in detail in the court's statement of decision, it is undisputed that the FAA announced it would be in charge of the helicopter ride program and that it undertook to verify the credentials of the pilots and the airworthiness of the helicopters.
[5] Although the statement of decision did not provide the numbers, Crist's logbook indicated that he had close to 1,000 hours of total helicopter flying experience, and had frequently flown an Enstrom in the months preceding the accident. Plaintiff presented evidence at trial suggesting that the number of hours Crist had reported in the Enstrom may have been inaccurate.
[6] The parties do not cite to the relevant provisions of the Uniform Fire Code. We draw our discussion of its requirements from the trial court's statement of decision.
[7] All undesignated statutory references are to the Government Code.
[8] Thus, the City's statement in its reply brief that "[o]ne searches respondents' complaint in vain for even the slightest hint of a master/servant allegation" is incorrect.
[9] Plaintiffs' rebuttal trial brief on the issue of joint enterprise and proposed statement of decision at the second trial relied on the theory that the City and Wings were engaged in a joint enterprise or agency, as well as on the theory that the City was liable for its own negligence.
[10] As noted above, it appears that the parties never relied on or briefed the employee/servant theory that the trial court ultimately relied on in finding the City liable. Because the City does not challenge the trial court's ruling on this ground, we do not consider the propriety of such a procedure.
[11] As noted ante, the trial court found that the evidence did not demonstrate a nexus between plaintiffs' injuries and the purpose of the enactments at issue. Plaintiffs do not challenge this finding on appeal.
[12] Our task in reviewing the record was made far more difficult by plaintiffs' failure to provide any citations to the evidence in the record underlying the trial court's findings.
[13] In fact, Chris MacDonald (MacDonald), a partner in Tri-Valley, testified that the route and the altitude were determined by a meeting with an FAA representative. Brent Rodrigues, another Tri-Valley partner, testified that he told Jayne Kruse, the director of air operations for Wings, that he thought the altitude was unsafe for the terrain. However, Rodrigues was not qualified as an expert and this testimony does not contradict the evidence provided by plaintiffs' own expert that the ride area contained safe places for autorotation landings.
[14] In the colloquy leading up to the trial court's ruling on Wings's motion for directed verdict on the third cause of action, counsel for plaintiffs articulated his understanding that the directed verdict would be narrowly based on the fact that Wings did not hire Crist. Counsel's observations notwithstanding, it is clear that the gravamen of the third cause of action was Wings's and the City's alleged failure to scrutinize Crist's qualifications and alleged failure to remove him as a pilot for the helicopter rides.
[15] We agree with the City that the question of whether it is the custom and practice of air show operators to demand higher qualifications than those required by the FAA is a matter that could only be decided based on expert testimony as to the standard of care in the industry. (See Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702, 106 Cal.Rptr. 1, 505 P.2d 193["[i]f the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case"].)
[16] The jury in the first trial found that Enstrom was not negligent and that there was no defect in the design of the Enstrom helicopter. It also found that Ainsworth, the owner of Greenbelt, which supplied the helicopter, was not negligent. It would be difficult to square a conclusion that the Enstrom was not defective and neither its manufacturer nor its supplier was negligent, with one that Wings was negligent for allowing the Enstrom to be used.
[17] As noted above, plaintiffs presented evidence at trial that the number of hours Crist reported in the Enstrom may have been inaccurate; specifically, the flight meter on the helicopter indicated that it had been flown for fewer hours than Crist reported having flown it in his logbook. However, no one argues that checking a pilot's qualifications would require not only checking the logbook, but also examining the flight meters of each of the helicopters the pilot had flown to ensure that the hours reported in the pilot's logbook were accurate.
[18] In addition, Crist testified that he believed he had ferried helicopters at another event, the Isleton Crawdad Festival, although he was not sure whether he had flown passengers. MacDonald testified that he did not recall Crist flying in previous Livermore air shows.
[19] Having concluded the record does not support the trial court's finding of liability on the part of Wings, we have no occasion to address the City's claim that it would not be vicariously liable for any acts or omissions of Wings, and we express no views on this question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262400/ | 306 A.2d 268 (1973)
Phillip T. FREDERICKS, Appellant,
v.
UNITED STATES, Appellee.
No. 6372.
District of Columbia Court of Appeals.
Argued March 19, 1973.
Decided June 15, 1973.
John M. Bixler, Washington, D.C., for appellant.
James W. Diehm, Asst. U. S. Atty. with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terrry, Asst. U. S. Atty., were on the brief, for appellee.
Before KELLY and NEBEKER, Associate Judges, and QUINN, Associate Judge, Retired.
*269 QUINN, Associate Judge, Retired:
This is a consolidated appeal from convictions of second degree burglary, petit larceny, grand larceny, and unauthorized use of a vehicle, in violation of D.C.Code 1967, §§ 22-1801(b), -2202, -2201 and -2204 respectively. However, insofar as the lower court ordered that the burglary and petit larceny counts be severed from the other two, it will be beneficial to treat them separately for purposes of this opinion.
The government's evidence at appellant's trial on the burglary and petit larceny charges showed that on November 2, 1970, Clarence Harris, the proprietor of a grocery store, while returning to the store sometime after 10 p. m., witnessed appellant run out of his establishment and pass within ten to fifteen feet of him. Upon entering his shop, Mr. Harris discovered that the pinball machine had been broken into and that $50 to $100 in change was missing, along with two cartons of cigarettes. Mr. Harris identified appellant rather easily as he had assisted at the store on a voluntary basis for approximately four to five weeks prior to November 2, and had been in the store several times that same day. In addition, the store lights were on and the street lights were bright, so that appellant was plainly visible.
Appellant assigns as error the admission into evidence of hearsay testimony by Mr. Harris. During the direct examination, when asked why he returned to the store that night, he testified that he returned to put on another lock because "I found out [from others] that Phillip [the appellant] had stolen my keys." Despite the absence of any objection and the refusal by appellant of the court's offer of a corrective instruction at trial, he contends that the receipt in evidence of this statement was prejudicial error which should be corrected by this court. We disagree.
It is readily admitted that the statement in question was in fact hearsay. Nevertheless, it is difficult to discern how the receipt of such evidence was substantial error. It is well established that absent a clear showing of prejudice, courts are not disposed to notice alleged errors which are raised for the first time on appeal. Harris v. United States, 112 U.S. App.D.C. 100, 299 F.2d 931 (1962). "Hearsay evidence is not wholly alien to the judicial process and in the absence of objection may be accorded within reason its natural probative effect...." (Citations omitted.) United States v. Harris, 141 U.S.App.D.C. 253, 258, 437 F.2d 686, 691 (1970). Cf. Adams v. United States, D.C.App., 302 A.2d 232 (March 20, 1973).
In the case at bar, the evidence of appellant's guilt was clearly established and there is no reason to believe that on a second trial an intelligent and honest jury would reasonably arrive at any other verdict. Mr. Harris' identification of appellant was a positive and convincing one. He was well acquainted with the defendant; the store and street lights were bright and he saw Fredericks face-to-face as he ran out of the store at a distance of only ten to fifteen feet away. In light of this evidence, we are not inclined to reverse appellant's conviction for "what may well have been the considered tactical judgment of defense counsel in doing nothing which might have accented for the jury [the tainted statement]." Butler v. United States, 122 U.S.App.D.C. 5, 7, 350 F.2d 788, 790 (1965), cert. denied, 384 U.S. 992, 86 S.Ct. 1899, 16 L.Ed.2d 1009 (1966).
Appellant's objection to his conviction for grand larceny is equally meritless. The facts brought out at trial demonstrate that on January 23, 1971, Elizabeth McConnell parked her automobile valued at $3,800 in front of a booth of a commercial parking lot adjacent to her place of work, and, pursuant to the policy of the lot, left the keys in the car. When the attendant returned, he saw appellant sitting in Mrs. McConnell's car. After a brief conversation, Fredericks drove the car out of the *270 lot, stating, "See you [at] five o'clock." A short time later, when the owner returned for the vehicle the attendant identified appellant as the person who had taken her automobile. She then informed the police, who promptly placed the defendant under arrest. The car was recouped a short time later in another part of town, after having been damaged to the extent of $1,500. Appellant was then charged and convicted of grand larceny and unauthorized use of a vehicle.
Appellant maintains that the trial court improperly denied a motion for judgment of acquittal as to the grand larceny count because the government failed to prove that Fredericks took the automobile with an intent to steal it; the gravamen of the appellant's contention being that the intent to steal is the essential element distinguishing larceny from unauthorized use of an automobile.
Traditionally, larceny is not committed when the defendant takes property of the owner with the intent of borrowing it temporarily and of returning it thereafter. 2 Wharton Criminal Law, § 454 (Anderson ed. 1957). However, grand larceny, defined by D.C.Code 1967, § 22-2201, as the felonious taking and carrying away of anything of value of the amount of $100 or more, does not require an intent to appropriate property permanently. Mitchell v. United States, 129 U.S.App.D.C. 292, 296, 394 F.2d 767, 771 (1968). Rather, the proof must merely manifest an intent to appropriate the property to a use inconsistent with the owner's rights. United States v. Johnson, 140 U.S.App.D.C. 54, 57, 433 F.2d 1160, 1163 (1970), and authorities cited therein at n. 18.
Therefore, on the basis of the facts presented, it can reasonably be concluded that appellant intended to use Mrs. McConnell's car in a manner inconsistent with her rights in it, and was justifiably found guilty of grand larceny (the taking) as well as unauthorized use of a vehicle after the asportation.[1]
Appellant was sentenced to a prison term of ten years on the burglary and petit larceny counts and a concurrent term of ten years on the other two counts. Subsequently, the trial court modified appellant's confinement to an indeterminate term, apparently pursuant to 18 U.S.C. § 4208(a)(2), which provides that "the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine." Congress, however, in Section 6 of Pub.L. No. 85-752, as amended, provided, inter alia, that 18 U.S.C. § 4208 cannot be applied to crimes exclusively applicable to the District of Columbiathe very situation here. Cf. Atkinson v. United States, D.C.App., 295 A.2d 899 (1972).
Accordingly, the judgments of conviction are affirmed, but the sentence is vacated and the case remanded for resentencing.
So ordered.
NOTES
[1] Unauthorized use of a vehicle is a general intent crime, while larceny requires specific intent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262411/ | 25 Cal.Rptr.3d 873 (2005)
127 Cal.App.4th 698
The PEOPLE, Plaintiff and Respondent,
v.
Robert Patrick JUNGERS, Defendant and Appellant.
No. D043246.
Court of Appeal, Fourth District, Division One.
March 17, 2005.
Review Denied June 15, 2005.
*875 Cynthia M. Sorman, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
*874 IRION, J.
Robert Patrick Jungers appeals an order imposing a probation condition that prohibits him from initiating contact with his wife, the victim of Jungers's domestic violence. Jungers contends the condition was unreasonable and violated his rights to free association and marital privacy. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On September 23, 2001, Jungers became angry at Cary Martinez, the mother of his child, yelled at her and threw a beer bottle at the wall. When Martinez tried to leave, Jungers threw a child car seat at her, hitting her in the leg. Jungers got into Martinez's car with their child to prevent Martinez from leaving. He then followed her into the house, grabbed her neck and threw her to the ground. Jungers straddled Martinez and tried to hit her but she was able to escape. She had bruises on her arm, leg and neck. When the police arrived, Martinez was crying and said she was extremely afraid of Jungers.
Jungers was arrested and taken to jail. He was served with a protective order and advised not to contact Martinez. However, Jungers called Martinez from jail and threatened to "kick her ass" when he got out. Jungers admitted he has a substance abuse problem and a propensity for violence.
Jungers pleaded no contest to inflicting corporal injury on a spouse, cohabitant or child's parent. (Pen.Code, § 273.5, subd. (a).)[1] The court suspended imposition of a sentence and placed Jungers on probation for three years, conditioned on his participating in the Turning Point program for one year. The court ordered him to have only mutual contact with Martinez and not to annoy, harass or threaten her. When the Turning Point placement was no longer appropriate, the court reinstated probation and ordered Jungers to serve the remainder of his time in local custody.
On June 24, 2003, Jungers admitted he violated the terms of his probation by not reporting a change of address to his probation officer. The court revoked Jungers's probation but reinstated it on the same terms and conditions previously set.
On September 16, 2003, Jungers admitted he violated the terms of his probation *876 by not reporting to his probation officer, not keeping the probation officer informed of his current address and whereabouts, and contacting or attempting to contact Martinez without her consent. In accordance with the stipulation of counsel, the court imposed a three-year prison term but suspended execution of the sentence, and reinstated probation on the previous terms and conditions. The court ordered Jungers placed in Teen Challenge, a residential treatment program, for one year. The court further ordered Jungers to have no contact with Martinez and explained that although Martinez could contact Jungers, he could not initiate contact with her.
Jungers filed a motion to modify or clarify the court's probation order. He informed the court he recently married Martinez and argued "a condition of probation restricting marital association plainly implicates the constitutional rights of privacy, liberty and freedom of association." In support of the motion, Jungers submitted the declaration of Martinez who stated she wanted to have contact with her husband while he was at Teen Challenge and she did not fear for her safety. Jungers asked the court to modify or clarify its probation order to permit him to have "marital communication and association" with his wife.
At a hearing on the motion, Jungers's attorney told the court he was seeking an order that would prohibit Jungers from annoying, harassing or molesting Martinez, but that would allow him, consistent with the rules of Teen Challenge, to have contact with her. The court clarified its ruling as follows: "[Martinez] can contact [Jungers]. He cannot contact her. He cannot initiate contact. [¶] She can write to him. He may not write to her. [¶] She can call him. He may not call her. [¶] She can visit him at Teen Challenge. He may not go to her home."[2]
DISCUSSION
I
Standard of Review
Section 1203.1 gives trial courts broad discretion to impose conditions of probation to foster rehabilitation of the defendant, protect the public and the victim, and ensure that justice is done. (§ 1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319, 124 Cal.Rptr.2d 43.) "A condition of probation will not be held invalid unless it `(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal. Rptr. 905, 541 P.2d 545, fn. omitted.) As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 43 Cal. Rptr.2d 681, 899 P.2d 67.)
II
Jungers Preserved the Issue for Appeal
Preliminarily, the People assert Jungers waived the issue by failing to object *877 to the probation condition at the time it was imposed, citing People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802. In Welch, the court held a defendant's failure to object at sentencing to an unreasonable probation condition waives the claim of error on appeal unless the issue involves a pure question of law. (Id. at pp. 234-236, 19 Cal.Rptr.2d 520, 851 P.2d 802.) The court reasoned: "A timely objection allows the [sentencing] court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. .... A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis." (Id. at p. 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.)
Here, although Jungers did not object when the court first imposed the condition that he not initiate contact with Martinez, he challenged that condition by bringing a motion to modify or clarify the court's order. By objecting in this manner, Jungers gave the court an opportunity to modify or delete the condition he claimed was invalid, thus satisfying the "objection and waiver rule" of People v. Welch, supra, 5 Cal.4th 228, 235, 238, 19 Cal.Rptr.2d 520, 851 P.2d 802.
III
The Probation Condition Was Reasonable
The probation condition that Jungers not initiate contact with Martinez, which restricts conduct not itself criminal, is directly related to Jungers's criminal offense and reasonably related to future criminality. (People v. Carbajal, supra, 10 Cal.4th 1114, 1121, 43 Cal.Rptr.2d 681, 899 P.2d 67.) The crime involved domestic violence, necessitating the protection of the victim. Jungers admittedly had a problem with anger and had used threats and intimidation in the past to control Martinez. While on probation, Jungers contacted Martinez without her consent, thus violating the court's order prohibiting him from doing so. Under these circumstances, the probation condition is reasonably related to the goals of enhancing rehabilitative and deterrence objectives and protecting the victim. (People v. Lent, supra, 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.) The court acted well within its discretion by prohibiting Jungers from initiating contact with Martinez. (Brown v. Superior Court, supra, 101 Cal.App.4th 313, 319, 124 Cal.Rptr.2d 43.)
IV
The Probation Condition Was Constitutionally Valid
Probation is a privilege and not a right. (In re York (1995) 9 Cal.4th 1133, 1150, 40 Cal.Rptr.2d 308, 892 P.2d 804.) Because probation conditions foster rehabilitation and protect the public safety, they may infringe the constitutional rights of the defendant, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362, 61 Cal. Rptr.2d 1.) "Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands." (In re White (1979) 97 Cal.App.3d 141, 149-150, 158 Cal.Rptr. 562.) Consequently, restrictions on a probationer's right of association are permissible if reasonably required to accomplish the needs of the state. (People v. Robinson *878 (1988) 199 Cal.App.3d 816, 818, 245 Cal.Rptr. 50 ["restriction of the right of association is part of the nature of the criminal process"]; People v. Peck, supra, at p. 363, 61 Cal.Rptr.2d 1 [probation condition that defendant convicted of drug offenses not associate with other drug users was valid].) However, probation conditions that restrict constitutional rights must be carefully tailored and "reasonably related to the compelling state interest" in reforming and rehabilitating the defendant. (People v. Mason (1971) 5 Cal.3d 759, 768, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on another ground in People v. Lent, supra, 15 Cal.3d 481, 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545; People v. Delvalle (1994) 26 Cal.App.4th 869, 879, 31 Cal.Rptr.2d 725.)
Here, Jungers's reasonable expectations of free association and marital privacy have necessarily been reduced by his conviction of a crime specifically, a felony involving domestic violence against Martinez. Nevertheless, the probation condition restricting Jungers's ability to contact Martinez is valid only if it is reasonably necessary to accomplish the needs of the state and is narrowly tailored to accomplish this goal. We conclude it is.
A
State's Interest in Addressing Domestic Violence
The elimination of domestic violence is a compelling state interest. The Legislature's stated purpose in enacting the Law Enforcement Response to Domestic Violence Act (§§ 13700-13731; Stats.1984, ch. 1609, § 3) was "to address domestic violence as a serious crime against society and to assure the victims of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide." (Stats.1984, ch. 1609, § 1.) The Legislature expressed its intent "that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior in the home is criminal behavior and will not be tolerated." (Ibid.)
Consistent with the Legislature's response to the problem of domestic violence, section 273.5 punishes a defendant who inflicts corporal injury on a spouse, cohabitant or person who is the mother or father of the defendant's child. "The statute reflects legislative recognition of the high incidence of violence in intimate relationships and the state's interest in encouraging nonviolent intimate relationships." (Cal. Judges Benchbook: Domestic Violence Cases in Criminal Court (CJER 2000) § 1.7, p. 9.) Further, when a defendant convicted of domestic violence is granted probation, the terms of probation must include "[a] criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions." (Pen.Code, § 1203.097, subd. (a)(2).)
Here, the court was required to issue a protective order for Martinez when it placed Jungers on probation, despite Martinez's claim she did not fear for her safety.[3] Although the court's order curtailed Jungers's rights of association and marital *879 privacy, it legitimately and reasonably operated to accomplish the needs of the state in addressing domestic violence by rehabilitating Jungers and protecting Martinez. The state's compelling interest in protecting victims of domestic violence justifies the restriction on Jungers's right to initiate contact with Martinez. (See In re Peeler (1968) 266 Cal.App.2d 483, 492-493, 72 Cal.Rptr. 254 [court upheld probation condition prohibiting association with reputed drug users, including defendant's husband, effectively requiring her to live apart from him]; People v. Celestine (1992) 9 Cal.App.4th 1370, 1375, 12 Cal.Rptr.2d 179 [probation condition prohibiting defendant from associating with other drug users, including defendant's girlfriend, was proper]; People v. Wardlow (1991) 227 Cal.App.3d 360, 367, 278 Cal.Rptr. 1 [court properly imposed probation condition of no contact with other child molesters, including defendant's brothers].)
B
The Order Was Narrowly Drawn
The court did not impose a complete ban on association or marital privacy, but only a narrowly tailored condition consistent with Jungers's rehabilitation and the safety of the victim. The condition prohibiting Jungers from initiating contact with Martinez does not require that he refrain from participating in visits, conversations and communications with her. It only assures that contact between them is acceptable to and welcomed by Martinez, thus supporting the state's compelling interest in preventing further incidents of violence, threats and harassment. In this regard, the condition constitutes a reasonable restriction on the manner in which Jungers may communicate with Martinez. As drawn, the condition does not interfere with Jungers's marital relationship to an impermissible degree.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P.J., and McDONALD, J.
NOTES
[1] Statutory references are to the Penal Code.
[2] The term of probation was two years, terminating on September 16, 2005.
[3] We note that victims of domestic violence often remain in abusive relationships. (See People v. Jenkins (1994) 29 Cal.App.4th 287, 294, 34 Cal.Rptr.2d 483 [victim of severe beatings and repeated abuse did not want boyfriend arrested].) In this regard, domestic violence statutes are meant to protect "victims from participation or complicity in their own predicament." (People v. Gams (1997) 52 Cal.App.4th 147, 153-154, 60 Cal.Rptr.2d 423 [discussing social science phenomenon of "`learned helplessness'"].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262414/ | 26 Cal.Rptr.3d 104 (2005)
127 Cal.App.4th 823
Hadi FALAHATI et al., Plaintiffs and Respondents,
v.
Shinji KONDO, Defendant and Appellant.
No. B176988.
Court of Appeal, Second District, Division Seven.
March 21, 2005.
*106 Suzuki & Ito, Paul T. Suzuki and Ronald N. Ito, Los Angeles, for Defendant and Appellant.
Hadi Falahati and Sharon Gilmour Falahati, in pro. per., for Plaintiffs and Respondents.
*105 JOHNSON, J.
Shinji Kondo appeals from an order denying his motion to vacate and set aside his default and the default judgment against him. We conclude the trial court erred in entering a default and default judgment against Kondo and erred again in denying his motion to vacate them.
FACTS AND PROCEEDINGS BELOW
Plaintiffs' original verified complaint in this action named a number of defendants including Kondo and sought damages for intentional interference with economic relationship and prospective economic advantage, defamation, fraud, negligent misrepresentation, unfair business practices, and intentional infliction of emotional distress. The complaint alleged numerous *107 acts of wrongdoing by Kondo which caused harm to plaintiffs. In response to a demurrer to the complaint plaintiffs filed a first amended complaint again naming Kondo as a defendant and alleging facts to show how he had caused them damage.
The trial court sustained a demurrer to the first amended complaint with leave to amend. Plaintiffs' second amended complaint, also verified, entirely removed Kondo as a defendant. He was not named in the caption and all the previous factual allegations involving him were removed. Again the trial court sustained a demurrer to the complaint and granted plaintiffs further leave to amend.
The verified third amended complaint, which is now the operative pleading in this action, is for intentional interference with prospective economic advantage and unfair business practices. The caption of the complaint named three individuals and two corporations as defendants. Kondo was not named as a defendant and there are no allegations he did anything which caused harm to plaintiffs.
Kondo did not file a responsive pleading to the third amended complaint.[1]
Eight months after plaintiffs filed their third amended complaint they filed a "Notice of Errata" to add Kondo to the caption only. The notice stated: "The word `Shinji Kondo' has been left out in the first (Caption) page of [plaintiffs'] Third Amended Complaint, this is a typographical error only, and the word `Shinji Kondo' should have never been left out, and the pleading should be regarded as if the words had never been left out." Plaintiffs did not amend the complaint to allege Kondo engaged in any conduct causing them damage.
The same day plaintiffs filed their "errata" adding Kondo's name to the caption of the third amended complaint they filed a request to enter his default and the court clerk entered the default as requested.
Four months later the trial court held a default prove-up hearing and awarded plaintiffs judgment against Kondo in the sum of $70,000. The record is silent as to whether Kondo was served with notice of entry of the default judgment.
Ten months after entry of the default judgment Kondo filed a motion to vacate the default and set aside the subsequent judgment on the ground he had not been served with the initial summons and complaint in the action. He also argued adding him to the caption of the third amended complaint and entering his default on the complaint the same day denied him due process.
The trial court denied Kondo's motion. From the declarations supporting and opposing the motion the trial court made a factual finding Kondo was served with the summons and original complaint and had actual notice of the subsequent proceedings. The court further ruled plaintiffs' failure to name Kondo in the third amended complaint until the "errata" added him to the caption "was of no consequence since Kondo's counsel was served with the `Notice of Errata' and notice of entry of default. There is no explanation for Kondo's failure to move to set aside the entry of default."
Kondo filed a timely appeal from the order denying his motion.
DISCUSSION
On appeal from an order denying a motion for relief from default or a default *108 judgment we will not disturb the trial court's factual findings where, as here, they are based on substantial evidence. It is the province of the trial court to determine the credibility of the declarants and to weigh the evidence.[2] Thus we accept the trial court's findings Kondo was served with the original summons and complaint, that he had actual notice of these proceedings and that his counsel was served with the "Notice of Errata" and the notice of entry of default.
This does not end the matter, however, because whether the default and default judgment complied with constitutional and statutory requirements are questions of law as to which we exercise independent review.[3]
As we explain below the default judgment against Kondo must be set aside. The complaint on which it is based failed to apprise Kondo of the nature of the plaintiffs' demand against him and neither the third amended complaint nor any subsequent notice informed Kondo of the amount of damages plaintiffs were seeking from him. In addition, the default must be vacated because Kondo was denied an opportunity to respond to the amendment purporting to add him as a defendant in the action in violation of his rights under Code of Civil Procedure section 471.5 and the due process clauses of the United States and California Constitutions.
I. THE DEFAULT JUDGMENT IS VOID BECAUSE IT IS BASED ON A COMPLAINT WHICH FAILED TO APPRISE KONDO OF THE NATURE OF THE PLAINTIFFS' DEMAND OR THE AMOUNT OF DAMAGES SOUGHT AGAINST HIM.
The third amended complaint plainly fails to state a cause of action against Kondo because it does not allege any conduct on his part caused any harm, loss or damage on the plaintiffs' part.[4]
Although the complaint contains a boilerplate allegation each defendant was the agent and employee of the others and contains some charging allegations respecting "defendants and each of them" these allegations do not result in the complaint stating a cause of action against Kondo because he is nowhere mentioned in the body of the complaint. Adding Kondo's name to the caption of the complaint added nothing to plaintiffs' causes of action because "the caption of the complaint constitutes no part of the statement of the cause of action[.]"[5]
*109 It is well established a default judgment cannot properly be based on a complaint which fails to state a cause of action against the party defaulted because, as Witkin explains, "[a] defendant who fails to answer admits only facts that are well pleaded."[6] Because the third amended complaint alleged no facts with respect to Kondo, there were no facts for Kondo to admit.
A defendant suffering an erroneous default judgment has three potential avenues of relief: a direct appeal from the judgment, a motion to set aside the judgment and a collateral attack on the judgment.[7] There are potential roadblocks in each of these avenues. A direct appeal from the judgment must be filed within a specified time, generally not more than 180 days after entry of the judgment.[8] Similarly a motion for relief from a default judgment under Code of Civil Procedure section 473, subdivision (b) or 473.5, subdivision (a), usually must be filed within six months from entry of the judgment or notice of entry of the default or default judgment, whichever occurs first. A void judgment can be attacked at any time by a motion under Code of Civil Procedure section 473, subdivision (d) or by a collateral action.[9] However, a default judgment is not necessarily void just because it is based on a complaint which fails to state a cause of action.[10]
A default judgment is void if the trial court lacked jurisdiction over the parties or the subject matter of the complaint or if the complaint failed to "apprise[ ] the defendant of the nature of the plaintiff's demand,"[11] or if the court granted relief which it had no power to grant including a default judgment which exceeds the amount demanded in the complaint.[12]
The default judgment in the present case is void for two reasons. The complaint contained no factual allegations with respect to Kondo; therefore it failed to apprise him of the nature of plaintiffs' demand against him.[13] In addition, the complaint does not specify the amount of damages plaintiffs seek from Kondo; it is not possible to calculate an amount of damages from the complaint's allegations; the request for entry of default did not specify the amount of damages sought;[14] and *110 plaintiffs did not serve Kondo with any other form of notice of the amount of damages sought from him.[15] Our Supreme Court has held "a default judgment greater than the amount specifically demanded is void as beyond the court's jurisdiction."[16] Where no amount of damages is demanded any amount awarded is by definition greater than the amount demanded.[17]
Accordingly, we hold the trial court erred in denying Kondo's motion to set aside the default judgment.[18]
Plaintiffs contend the trial court properly denied Kondo's motion to set aside the default judgment on the ground of laches. We disagree. A motion to vacate a judgment void on its face is not subject to a claim of laches.[19] Furthermore we do not believe a ten month interval between the judgment and the motion to set it aside supports a claim of laches especially since the record does not show whether or when the judgment or notice of entry of the judgment was served on Kondo.
Our conclusion that even with the errata the third amended complaint cannot support a default judgment against Kondo necessarily means if plaintiffs wish to recover damages from Kondo they will have to further amend their complaint to plead a cause of action against him including a demand for a specific amount of damages. Such an amendment, if permitted, would have the effect of vacating Kondo's default and entitle him to demur, move to strike or answer the amended complaint.[20]
II. THE DEFAULT MUST BE VACATED BECAUSE KONDO WAS DENIED HIS STATUTORY AND CONSTITUTIONAL RIGHTS TO RESPOND TO THE AMENDMENT BY "ERRATA."
As a separate and independently sufficient ground for setting aside the judgment we hold the default itself was obtained through extrinsic fraud because it was entered the same day plaintiffs amended the complaint to add Kondo as a defendant in the action. Kondo was thereby denied the opportunity to respond to the complaint in violation of Code of Civil Procedure section 471.5 and his right to due process.
Code of Civil Procedure section 471.5, subdivision (a) provides: "If the complaint is amended ... [t]he defendant shall answer the amendments, or the complaint as amended, within thirty days after service thereof, or such other time as the court may direct[.]" The statute does not differentiate between "substantive" and *111 "technical" amendments. Therefore Kondo was entitled to 30 days in which to respond to plaintiffs' "errata." Instead, at plaintiffs' request the court clerk entered a default on the same day the amendment was filed.
Kondo's right to respond to the complaint is not only statutory. "Even the most rudimentary of due process procedures [requires] notice and opportunity to be heard ... to anyone directly affected by [an] official's action."[21] Thus under the fundamental requirements of due process before a court enters a defendant's default in a lawsuit which may result in a judgment depriving the defendant of liberty or property "[a] defendant is entitled to opportunity to be heard upon the allegations of the complaint on which judgment is sought against him."[22] No such opportunity was afforded Kondo because he was defaulted the same day he was added to the plaintiffs' suit.
Plaintiffs argue Kondo has no ground for complaint because adding his name to the caption merely corrected a typographical error in the verified third amended complaint which already contained allegations against "defendants and each of them." This argument lacks merit. According to plaintiffs' reasoning they could have filed an "errata" to the caption naming as defendants Bill Gates, Warren Buffet and Martha Stewart and immediately defaulted them as well. Furthermore, plaintiffs' contention adding Kondo's name to the complaint merely corrected a typographical error does not, under the circumstances, justify denying him the opportunity to respond to the complaint. The two most recent versions of plaintiffs' verified complaint had not merely left Kondo's name out of the caption but had eliminated any reference to Kondo in the allegations composing the causes of action. Thus, even if we agreed simply restoring Kondo to the caption brought him within the verified complaint's charging allegations,[23] Kondo could not have filed a verified answer before he was added to the complaint by the "errata" because there would have been nothing for him to admit or deny.
Plaintiffs further argue failing to afford Kondo an opportunity to respond to the complaint after the "errata" was filed "was of no consequence" because if he believed the default was entered in error he should have moved to set it aside in the four months prior to the default prove-up. The short answer to this contention is that Kondo would not have had to move to set aside the default if plaintiffs had afforded him his statutory and due process rights in the first instance. A deprivation of due process is no less a deprivation merely because the person deprived has a remedy. Kondo had a statutory and due process right to respond to the complaint before a default was entered. Kondo was denied this right and no post hoc remedy can change that fact.
A court has inherent, equitable power to set aside a default on the ground of extrinsic fraud.[24] Courts have given the term extrinsic fraud "a broad meaning" applying it to "almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing."[25] Here, Kondo *112 was deprived of a fair adversary hearing for the reasons stated above.
When the defendant's default has resulted in a judgment for the plaintiff there are three essential requirements to obtain relief from the default. The defendant must show a meritorious defense, a satisfactory excuse for failing to timely answer the complaint and reasonable diligence in seeking to set aside the default once it was discovered.[26]
As to the first two requirementsa meritorious defense and a satisfactory excuse for not timely answering the complaintwe have previously explained Kondo could not have answered the verified third amended complaint because it contained no allegations with respect to any conduct on his part; there was nothing for him to admit or deny. For the same reason, Kondo has a meritorious affirmative defense: the complaint fails to state a cause of action against him.
As to due diligence, there is no explanation in the record why Kondo did not move to vacate the default in the four-month period between its entry and the default prove-up. The answer may lie in his claim the attorney who received the "Notice of Errata" and notice of entry of default, and who was also a defendant in the action, was not actually representing Kondo or had abandoned his representation. These are factual questions which were raised but not decided in the court below. Suffice it to say to the extent the trial court denied the motion to vacate the default for lack of due diligence either before or after the entry of the default judgment the court abused its discretion for reasons we will explain.
The questions of defendant's diligence and plaintiff's prejudice are "inextricably intertwined."[27] The greater the prejudice to the plaintiff from vacating the default the greater the burden on the defendant of proving diligence and vice versa.[28] As a general rule once a default has resulted in a judgment there is a high degree of prejudice to the plaintiff in vacating the default because it entails setting aside the judgment and disturbing the plaintiff's justifiable reliance on the award.[29] Every case, however, must be judged on its peculiar circumstances.
In this case plaintiffs cannot claim they are justified in relying on their default judgment because they obtained it through a procedural maneuver which violated Kondo's statutory and due process rights to notice and an opportunity to be heard. At the time plaintiffs filed their "Notice of Errata" they were proceeding in propria persona. Whether or not plaintiffs were aware of the requirements of Code of Civil Procedure section 471.5 and due process they are held to the same standard as an attorney[30] and no reasonably competent attorney could have believed the third amended complaint could be made to state a cause of action against Kondo merely by adding his name to the caption. Nor can plaintiffs contend they were acting in good faith in filing their "errata" and defaulting Kondo on the same day. We find spurious *113 their claim the third amended complaint alleged causes of action against Kondo all along and the "errata" merely cured a "typographical error." It is more likely plaintiffs added Kondo's name to the caption of the complaint because they knew the court clerk would look no further than the caption in the course of determining if the requirements for entering a default were met.
Because plaintiffs knew or should have known they procured their default against Kondo in violation of his statutory and constitutional rights, their claim to prejudice if the default and subsequent judgment are nullified is substantially weakened. Conversely, the fact the default was procured against Kondo, not because of some mistake or neglect on his part, but because he was denied his statutory and constitutional right to be heard substantially strengthens his entitlement to equitable relief. Under these facts the four-month period between the default and the default prove-up and the ten-month period between the default judgment and the motion to set it are not so unreasonable as to constitute laches.
DISPOSITION
The order denying Shinji Kondo's motion to vacate his default and set aside the judgment against him is reversed and the cause is remanded to the trial court with directions to enter a new and different order vacating the default and setting aside the judgment and to conduct any further proceedings in accordance with the views expressed in this opinion. Appellant is awarded his costs on appeal.
We concur: PERLUSS, P.J., and ZELON, J.
NOTES
[1] There is a dispute as to whether Kondo was ever served with, or had notice of, the third amended complaint. Because we decide this case on other grounds we do not reach that issue.
[2] Coordinated Construction, Inc. v. Canoga Big "A," Inc. (1965) 238 Cal.App.2d 313, 319, 47 Cal.Rptr. 749.
[3] Transamerica Title Co. v. Hendrix (1995) 34 Cal.App.4th 740, 741-742, 40 Cal.Rptr.2d 614.
[4] Code of Civil Procedure section 425.10, subdivision (a) states: "A complaint ... shall contain both of the following: (1) A statement of the facts constituting the cause of action, in ordinary and concise language. (2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated [except in circumstances not applicable here]." See Blondeau v. Snyder (1892) 95 Cal. 521, 523, 31 P. 591; Jackson v. Bank of America (1986) 188 Cal.App.3d 375, 388, 233 Cal.Rptr. 162; Whiteman v. Anderson-Cottonwood Irr. Dist. (1922) 60 Cal.App. 234, 243, 212 P. 706.
[5] McDonough v. Waxman (1930) 103 Cal.App. 169, 173, 284 P. 482; see also Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, 448, 241 Cal.Rptr. 796. The purpose of allowing the plaintiff to amend the complaint by adding a party (see Code Civ. Proc. § 473, subd. (a)(1)) is to reflect an assignment of the cause of action, to substitute an executor or administrator for a deceased defendant (see Burgos v. Tamulonis (1994) 28 Cal.App.4th 757, 763, 33 Cal.Rptr.2d 728) or to substitute the trustee of the estate for a defendant in bankruptcy (see Yoo v. Robi (2005) 126 Cal. App.4th 1089, 1093, fn. 1, 24 Cal.Rptr.3d 740).
[6] 6 Witkin, California Procedure (4th ed. 1997) Proceedings Without Trial, section 160, page 574; citation omitted. "A default admits the material allegations of the complaint, and no more[.]" (Ellis v. Rademacher (1899) 125 Cal. 556, 557, 58 P. 178).
[7] Spielman & Grant, Attacking A Default Judgment In California On The Grounds That The Complaint Failed To State A Cause Of Action (1954) 1 U.C.L.A. L.Rev. 195, 195.
[8] California Rules of Court, rule 2(a).
[9] Code of Civil Procedure section 473, subdivision (d) states: "The court ... may, on motion of either party after notice to the other party, set aside any void judgment or order." A void judgment is subject to collateral attack at any time. (Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 1239, 79 Cal. Rptr.2d 719.)
[10] Christerson v. French (1919) 180 Cal. 523, 525-526, 182 P. 27.
[11] Christerson v. French, supra, 180 Cal. at page 525, 182 P. 27.
[12] Molen v. Friedman, supra, 64 Cal.App.4th at page 1156, 75 Cal.Rptr.2d 651.
[13] Christerson v. French, supra, 180 Cal. at page 525, 182 P. 27.
[14] National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417-418, 214 Cal.Rptr. 113.
[15] Compare Code of Civil Procedure section 425.11, requiring plaintiff to serve notice of amount of damages sought in personal injury case prior to obtaining a default judgment.
[16] Greenup v. Rodman (1986) 42 Cal.3d 822, 826, 231 Cal.Rptr. 220, 726 P.2d 1295.
[17] Petty v. Manpower, Inc. (1979) 94 Cal. App.3d 794, 798, 156 Cal.Rptr. 622.
[18] Kondo did not raise the above arguments in his motion to set aside the judgment. However, questions of jurisdiction are never waived and may be raised for the first time on appeal as may the failure of the complaint to state a cause of action. (Code Civ. Proc. § 430.80, subdivision (a); Horacek v. Smith (1948) 33 Cal.2d 186, 191, 199 P.2d 929; National Diversified Services, Inc. v. Bernstein, supra, 168 Cal.App.3d at p. 417, 214 Cal.Rptr. 113.) In order to assure compliance with Government Code section 68081 we offered both sides the opportunity to submit letter briefs on this issue.
[19] Batte v. Bandy (1958) 165 Cal.App.2d 527, 538, 332 P.2d 439.
[20] Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1744, 33 Cal.Rptr.2d 391.
[21] Lockyer v. City & County of San Francisco (2004) 33 Cal.4th 1055, 1108, 17 Cal.Rptr.3d 225, 95 P.3d 459.
[22] Thompson v. Cook (1942) 20 Cal.2d 564, 568, 127 P.2d 909.
[23] We rejected this proposition for reasons explained at page 108, ante.
[24] Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 35 Cal.Rptr.2d 669, 884 P.2d 126.
[25] In re Marriage of Park (1980) 27 Cal.3d 337, 342, 165 Cal.Rptr. 792, 612 P.2d 882.
[26] Rappleyea v. Campbell, supra, 8 Cal.4th at page 982, 35 Cal.Rptr.2d 669, 884 P.2d 126.
[27] Rappleyea v. Campbell, supra, 8 Cal.4th at pages 983-984, 35 Cal.Rptr.2d 669, 884 P.2d 126.
[28] Rappleyea v. Campbell, supra, 8 Cal.4th at page 984, 35 Cal.Rptr.2d 669, 884 P.2d 126.
[29] Rappleyea v. Campbell, supra, 8 Cal.4th at page 984, 35 Cal.Rptr.2d 669, 884 P.2d 126.
[30] People v. Clark (1990) 50 Cal.3d 583, 625, 268 Cal.Rptr. 399, 789 P.2d 127. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262452/ | 25 Cal.Rptr.3d 201 (2005)
127 Cal.App.4th 138
In re Bryan WAGNER on Habeas Corpus.
No. G031641.
Court of Appeal, Fourth District, Division Three.
February 24, 2005.
Rehearing Denied March 18, 2005.
*202 Steven H. Hertz, Costa Mesa, for Petitioner.
*203 Benton, Orr, Duval & Buckingham and Brenda L. McCormick, Ventura, for Pamela Lee Iles.
OPINION
RYLAARSDAM, Acting P.J.
We grant the petition of Bryan Wagner for a writ of habeas corpus after his incarceration for an alleged violation of a condition of his probation. The trial judge failed to provide petitioner with required due process protections. We also order that, if petitioner so requests, the case be assigned to another judge to determine whether he violated the conditions of his probation and for further proceedings in a manner provided by law.
FACTUAL AND PROCEDURAL BACKGROUND
In his petition for a writ of habeas corpus, petitioner alleged that he had pleaded guilty to a misdemeanor count of spousal battery and was sentenced to "three years modified probation under Judge Iles [sic] supervision." He stated that, as a condition of probation, he was required to make certain payments by January 7, 2003. When he appeared before Judge Iles on December 18, 2002 to request modification of the terms under which these payments were to be made, Judge Iles referred him to her judicial administrator to discuss the matter. He further asserted that, after this conversation, the judicial administrator reported to Judge Iles that "[p]etitioner was unwilling to pay a donation of $1,000.00 to the victim witness assistance fund," whereupon Judge Iles, without making any inquiry of him, ordered him taken into custody without bail and set a probation revocation hearing for January 16, 2003, almost a month later.
We issued a stay, ordered petitioner released from custody, and invited an informal reply to the petition. The Office of the District Attorney responded with a letter stating, "We must inform the Court that the People were not present at the December 18, 2002, hearing at which the petitioner was taken into custody, nor were we involved in any representations the lower court may have made on December 20 or December 23 regarding petitioner's matter. Consequently, we cannot provide this Court with any information or explanation of the lower court's action, and we must decline to become involved in this imbroglio." Thereafter we issued our order to show cause, whereupon the Office of the District Attorney sent us another letter stating that it would not file a return and would not participate in any oral argument. The letter concluded, "As previously noted in our January 6 letter to the Court, we must respectfully decline to become involved in this imbroglio." Judge Iles filed a return to the petition through a private law firm.
Judge Iles's return alleged, inter alia, that: (1) petitioner "was remanded into custody because on December 16, 2002, his probation was lawfully revoked for his failure to appear and provide proof of enrollment in the [rehabilitation] program or, alternatively, to provide a letter from his physician explaining why [petitioner] was continuing to be prescribed narcotic drugs...," (2) the court "had the authority to order the payment pursuant to Penal Code section 1203.097[, subdivision] (a)(11)(A)" (italics omitted), and (3) the "court did not represent that [petitioner] would be released from custody if he provided evidence of his medical condition."
The record provided to us did not include a reporter's transcript. And the docket reports and clerk's minutes did not enable us to determine what had transpired before, during, and after petitioner was in custody. We therefore issued an *204 order to the superior court to conduct an evidentiary hearing before another judge and to make findings of fact as to specific issues. Judge Roger D. Randall conducted the hearing and subsequently provided us with his findings.
We relate Judge Randall's findings made in response to the issues identified by us to the extent they are relevant to our discussion.
Judge Randall found that petitioner's conditions of probation included: "[t]hat he pay a restitution fine of $200, stayed to 11/5/02; [¶] ... that he pay the Domestic Violence Fund $200, stayed to 11/5/02; [¶] ... that he pay $1000 to Laura's House, a battered women's shelter; [¶] ... that he report in person to the Domestic Violence Judicial Assistant on 11/5/02 to furnish proof of payment to the shelter; [¶] ... [¶] ... [and] that he complete and enroll in a batterer's program through Human Options, reporting in person to the court on 8/19/02 at 8:30 AM in the DV Judicial Assistant's office to furnish proof of enrollment...." The findings also state that "[p]etitioner received and signed a [Domestic Violence Project Team] referral on 8/5/02 which ordered him to make contact within one week with the Health Care Agency, via Bill Dellefield, MFT, for the[ ]Perinatal Treatment Program and Drug and Alcohol Assessment; and with Children and Youth Services via Michael Bucaro, Psy.D."
Judge Randall also found that the original terms and conditions of probation were modified on several occasions. These modifications included an extension of time to January 7, 2003 to pay all moneys previously ordered to be paid, and on November 26, 2002, petitioner was ordered to attend and successfully complete a substance abuse program and present proof of his enrollment to the judicial assistant on December 16. On each occasion when conditions of probation were modified, petitioner was present in court and had adequate notice of the changes.
Additionally Judge Randall found "[p]etitioner was eligible for admission in the domestic violence substance abuse program by virtue of his background and the circumstances of his offense. He was not ineligible to participate because of a medical condition." However, on December 13, 2002, Dellefield sent a report to the court stating that petitioner "was ineligible to participate in the program so long as he was taking prescription addictive drugs." Having been so advised by Dellefield on November 15, petitioner was aware that he could not participate in the substance abuse program unless he stopped using the prescription medications or "submit[ted] proof that his continued use of such drugs was medically necessary."
On December 16, petitioner violated the terms of his probation by failing to appear and failing to provide proof of enrollment in the substance abuse program. A bench warrant was issued for his arrest. When petitioner came to court on December 18, the warrant was recalled. Correspondence from the substance abuse program (presumably the Dellefield report the court received on December 13) was filed.
Judge Randall further found: "Petitioner told the court he was taking the prescription medicines ... for carpal tunnel syndrome, and that he had been told he could not participate in the program while he was taking these medications. The court noted [p]etitioner was not enrolled in the substance abuse program due to medical reasons and ordered him to appear for further proceedings in that regard on 1/8/03, with a hearing to be conducted at that time to consider a doctor's report regarding [p]etitioner's medical eligibility for the substance abuse program.
"The judge ordered [p]etitioner to report to the judicial assistant to set up a *205 payment schedule for his fees and donation. Petitioner reported to the [j]udicial [a]ssistant, Leslie Howard, and had a conversation with her in which they discussed a payment schedule. Petitioner said he was not going to pay the battered women's shelter donation. The [j]udicial [a]ssistant then went back to the courtroom, followed by [p]etitioner. He stood in the audience section of the courtroom while she approached sidebar. Judge Iles was dealing with another case. The [j]udicial [a]ssistant slammed the Wagner case file down on the sidebar and told Judge Iles [p]etitioner was not cooperating with her, and that she could not, therefore, work with him. Judge Iles told the [p]etitioner that since he was not willing to cooperate with the [j]udicial [a]ssistant he would be taken into custody. She instructed her bailiff, Richard Avila, to take him into custody.
"Richard Avila handcuffed the [p]etitioner and placed him in the in-custody box inside the courtroom. Petitioner kept trying to turn and talk to the judge. He asked Avila why he was going into custody, and Avila gave him his uniform answer: `I don't know. I just do as I'm told.' As [p]etitioner continued to question why he was in custody, the judge told him he was in violation of his probation. She ordered Avila to take him down, which meant he was to be removed from the courtroom to a cell in another part of the courthouse. This was done.
"At about the time [p]etitioner was taken into custody the judge ordered that the Public Defender be appointed to represent him. The Public Defender who was working in the [d]omestic [v]iolence court that day, Stephen Daniels, was not physically in court at the time of [p]etitioner's arrest, and learned of his appointment after the [p]etitioner was in custody. Petitioner was returned to the courtroom about three hours after he was taken out. At that time Mr. Daniels had an opportunity to speak to him. At some point in time an arraignment date for a probation violation hearing was set for 1/16/03. Mr. Daniels did not object to that date, and does not recall when in the process a date was set. He did not speak to the judge regarding the time of arraignment.
"... The court did not explain to [p]etitioner why his probation was being revoked on 12/18/02. The judge told [p]etitioner he was going into custody because he was not cooperating with Ms. Howard. She later told him he was in custody for a probation violation."
After these events, petitioner or his family arranged for him to be represented by his present lawyer, Steven H. Hertz. On December 20, 2002, and again on December 23, the court conducted in-chambers hearings. During the first of these hearings Daniels, the public defender, and Hertz were present with the judge. Hertz was the only one present with the judge during the December 23 hearing. There was no representative from the Office of the District Attorney, nor was the court clerk present during either hearing. At the December 20 hearing Hertz substituted in as petitioner's lawyer; at that time he requested that petitioner be released but Judge Iles told him he was being held at "no bail." During the December 23 hearing, Hertz provided Judge Iles "with a letter from [p]etitioner's physician ... speaking of his use of prescription drugs and mentioning the possibility of surgery in the near future. No action was taken at that time." Thereafter Hertz filed this petition for writ of habeas corpus on behalf of petitioner.
DISCUSSION
The facts asserted by the court in support of petitioner's arrest are not supported by the findings.
The trial court properly issued a warrant for petitioner's arrest when he failed *206 to appear on December 16, 2004. (Pen.Code, § 1203.2, subd. (a).) And this disobedience of the court's order provided a basis for the probation revocation.
But the additional ground stated in Judge Iles return to the petition, failure "to provide proof of enrollment in the HCA program or, alternatively, to provide a letter from his physician explaining why Wagner was continuing to be prescribed narcotic drugs for the treatment of carpal tunnel syndrome" is not supported by the findings. The original terms of probation ordered petitioner to make contact with the health care agency for an assessment. There is no evidence he failed to do so.
Subsequently, on November 26, petitioner was ordered to attend and successfully complete a substance abuse program and present proof of his enrollment. Judge Randall found that "[p]etitioner was ineligible to participate in the program so long as he was taking prescription addictive drugs." It is likely that the court wished to satisfy itself that petitioner's taking of these drugs was truly necessary for his medical condition and would have wanted to receive a letter from the treating physician. But there is nothing in the findings or the record to indicate that the court ever instructed petitioner to obtain such a document until the hearing on December 18, 2002, when, before he was referred to the judicial assistant, he was told to present such a letter on January 8, 2003.
The report the court received from Dellefield on December 13, 2002, contained a recommendation that petitioner be ordered to provide "convincing proof that doctors believe he must take the medication in question until he has surgery...." (Underlining omitted.) But there is nothing in the record that petitioner was provided with a copy of this report. And, even if he had been given a copy, the recommendation from Dellefield would not be the equivalent of a court order or a further condition of probation.
Furthermore, the findings indicate that neither petitioner's failure to appear two days earlier nor his failure to provide a letter from his physician was the basis for his being taken into custody. The warrant issued when he did not appear on December 16, 2002, was recalled when he came to court on December 18. Judge Randall found that after "[t]he [j]udicial [a]ssistant slammed the Wagner case file down on the sidebar and told Judge Iles [p]etitioner was not cooperating with her, ... Judge Iles told the [p]etitioner that since he was not willing to cooperate with the [j]udicial [a]ssistant he would be taken into custody." This was after a private conversation between Judge Iles and her assistant. Even if "contempt of judicial assistant" were a crime, the perpetrator of such contempt would be entitled to a hearing (Code Civ. Proc., § 1217) and bail (Code Civ. Proc., § 1215).
Petitioner was entitled to due process.
Placing petitioner in jail, denying him bail, and scheduling a hearing a month hence constituted a de facto revocation of his probation without satisfying any of the due process requirements demanded upon such revocation. Penal Code section 1203.2, subdivision (b) empowers the court to revoke probation on its own motion. But the section requires that the court give notice of its motion to probationers and their attorneys of record. There is no evidence that the public defender who represented petitioner at the time of his plea withdrew or was discharged. No notice was given either to petitioner or to his lawyer.
Penal Code section 1203.2, subdivision (b) also requires such notice be given to the district attorney where there is no probation officer. No such notice was given. *207 (Judge Randall's findings stated that "it is the unwritten policy of the Orange County District Attorney's office not to attend hearings in misdemeanor matters unless an evidentiary hearing is required"; we question whether such an unwritten policy permits the court to ignore the statutory requirement.)
"A probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer [(1972) 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484]]." (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, fn. omitted, 93 S.Ct. 1756, 36 L.Ed.2d 656.) These conditions include that probationers be advised of their right to a formal hearing on the alleged probation violations (Morrissey v. Brewer, supra, 408 U.S. at p. 488, 92 S.Ct. 2593; People v. Vickers (1972) 8 Cal.3d 451, 457, 105 Cal.Rptr. 305, 503 P.2d 1313), of their right to counsel (People v. Vickers, supra, 8 Cal.3d at p. 461, 105 Cal.Rptr. 305, 503 P.2d 1313), their right to present evidence (Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. 2593), their right to confront and cross-examine witnesses (People v. Vickers, supra, 8 Cal.3d at p. 457, 105 Cal.Rptr. 305, 503 P.2d 1313), and their right to disclosure of the evidence to be presented against them (ibid.). Unless waived, probationers are also entitled to receive a written statement of the reasons for and evidence supporting the revocation of probation. (Ibid.)
According to Judge Randall's findings, all the court did was tell petitioner he would be taken into custody because he was not willing to cooperate with the judicial assistant and, when he inquired why he was taken into custody, she merely replied that he was in violation of his probation. This did not satisfy the court's duty to afford due process to petitioner.
The court should not have personally selected the charity to which petitioner was ordered to make a contribution.
One of the conditions of probation imposed by Judge Iles was that petitioner "pay $1000 to Laura's House, a battered women's shelter." According to Judge Randall's findings, the conflict between petitioner and Judge Iles's judicial assistant resulted from petitioner's statement to her that he was not going to pay that donation. In her return, Judge Iles stated that she "had the authority to order the payment pursuant to Penal Code section[ ]1203.097, [subdivision] (a)(11)(A). The payment to the shelter is to an organization reasonably related to [petitioner's] pled offense." (Italics omitted.)
Penal Code section 1203.097 requires certain conditions be imposed when a person guilty of domestic violence is granted probation. Instead of a fine, the court may order "[t]hat the defendant make payment to a battered women's shelter, up to a maximum of five thousand dollars ($5,000)." (Pen.Code, § 1203.097, subd. (a)(11)(A).) The statute is silent as to who is entitled to designate the recipient of this payment. But an interpretation that would permit each trial judge to designate his or her favorite shelter runs afoul of provisions of the California Code of Judicial Ethics. Canon 2B(2) provides that "[a] judge shall not lend the prestige of judicial office to advance the pecuniary or personal interests of ... others." And canon 4C(3)(d)(iv) provides that a judge "shall not permit the use of the prestige of his or her judicial office for fund raising...."
In the face of these prohibitions, courts must devise means to implement Penal Code section 1203.097, subdivision (a)(11)(A) in such a manner as to remove the responsibility for designating specific charities from the individual judge imposing probation. Without limiting the means *208 by which this may be accomplished, one such method would be to have the funds paid to a court-administered domestic violence fund and have a committee of judges, not directly involved in sentencing persons guilty of domestic violence, determine how these funds should be distributed within the framework of section 1203.097, subdivision (a)(11)(A). Undoubtedly other means may be devised to permit implementation of the scheme of the subdivision that do not run afoul of the prohibition on judges engaging in fund raising activities on behalf of particular charities.
Judge Iles's personal embroilment in the case warrants a transfer to another judge.
We may infer from Judge Randall's findings that Judge Iles's precipitous order remanding petitioner to custody, without affording him an opportunity to respond to the charges made by the judicial assistant, was motivated by anger aroused when the judicial assistant "slammed the Wagner case file down on the sidebar and told Judge Iles [p]etitioner was not cooperating with her...." It also appears Judge Iles may have relied on a report from the substance abuse program which was not shared with petitioner, the district attorney, or the previously appointed public defender.
The district attorney's declination "to become involved in this imbroglio" or to take a position on whether or not petitioner's probation was properly revoked compels us to take a closer look at a judge who appears to have combined the functions of probation officer, prosecutor, judge, and executor of the sentence. And Judge Iles's decision to file a return in these proceedings contradicts her function as a dispassionate fact finder. Except where the issues involve the trial court's procedures rather than the litigation in which the issues arise, it is inappropriate for trial judges to make their voices heard in the appellate process. (Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1016, 1018, 61 Cal.Rptr.2d 49, disapproved on another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6, 103 Cal.Rptr.2d 751, 16 P.3d 166.) By filing the return, Judge Iles indicates that she believes she has a personal stake in this matter. She is not allowed to have such an interest.
As we recently noted, "[t]he superior court and the others involved in the efforts to establish dedicated domestic violence courts within the Orange County trial court system are to be commended. We recognize domestic violence courts in many instances better assist victims, increase accountability of batterers, and advance the administration of justice in countless other ways, but judicial officers handling domestic violence cases must conform their conduct to the law. This record suggests that, despite the best of intentions, a judicial officer can become so embroiled in the cause of domestic violence and can develop such a sense of ownership that an appearance of impropriety is created." (Hemingway v. Superior Court (2004) 122 Cal.App.4th 1148, 1158, 19 Cal.Rptr.3d 363.)
"Code of Civil Procedure section 170.1, subdivision (a)(6) provides the standard by which we are to determine whether the trial judge is to be disqualified: `... a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.' We need not determine whether there is actual bias." (Ng v. Superior Court, supra, 52 Cal.App.4th at p. 1024, 61 Cal.Rptr.2d 49.) The circumstances here lead us to conclude that in the interest of justice, and if petitioner so requests, further proceedings herein be heard before a trial judge other than Judge Iles. (Code Civ. Proc., § 170.1, subd. (c).)
*209 DISPOSITION
Let a writ of habeas corpus issue directing the trial court to vacate its order determining that petitioner violated a condition of his probation and placing petitioner in custody. The writ shall further direct that, upon request by petitioner, the Presiding Judge of the Orange County Superior Court assign another judge to determine whether grounds exist supporting a finding that petitioner violated the conditions of his probation and conduct further proceedings in a manner provided by law. This court's stay order is dissolved.
WE CONCUR: MOORE and FYBEL, JJ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327166/ | 178 S.E.2d 30 (1970)
10 N.C. App. 116
Norman D. DALY by his Agent Grace W. Daly
v.
Aldred WEEKS.
Grace W. DALY
v.
Aldred WEEKS.
No. 708DC624.
Court of Appeals of North Carolina.
December 16, 1970.
*31 Joseph H. Davis, Goldsboro, for plaintiff.
Herbert B. Hulse and George F. Taylor, by Herbert B. Hulse, Goldsboro, for defendant.
BROCK, Judge.
Defendant assigns as error the admission of testimony as to damages. It is defendant's contention that plaintiffs' witness merely gave an opinion as to the amount plaintiff should have received as one-third of each crop in 1969 without giving any basis for arriving at the opinion. We think defendant's assignment of error has merit.
Plaintiffs' witness Norman Daly was allowed to give opinion testimony. The record discloses the following question and answer with respect to the tobacco crop:
"Q. All right, sir, Mr. Daly, do you have an opinion satisfactory to yourself as to how much the entire tobacco crop, this is the total sales yours and Mr. Weeks' part would amount to in 1969, based on your knowledge of the potential of the land, the season that you had during the crop year, 1969, and the market prices that tobacco brought in 1969, do you have an opinion satisfactory to yourself as to how much the 1969 crop would have brought properly taken care of, tended, cultivated, Mr. Daly? Objection. Overruled.
A. I do.
Q. Now, Mr. Daly, in your opinion how much would that tobacco crop have brought last year properly taken care of? Objection. Overruled.
A. Around $8700.00."
In answer to similarly phrased questions the witness was allowed to answer over objections that the total income from the corn crop would have been $2,000.00; the total income from the wheat crop would have been $1,000.00; the total income from the soybean crop would have been $600.00; and that the total combined income from all of the crops would have been $12,300.00.
The only qualifying testimony and only explanatory testimony as to how the witness arrived at his figure is as follows: "We had farmed for about 38 to 40 years before I retired in 1965. I farmed my farm from 1941 until I retired and farmed my wife's farm from 1934 until I retired. I'm acquainted with the crop season that I had on mine and my wife's farm during the crop year 1969. I am familiar with the market prices that tobacco, corn, soybeans and wheat brought during 1969."
On cross-examination the witness made it clear that the figures he had given were not arrived at by any calculation of soil quality, weather, expenses, sales, or any *32 other factor; but only "what I thought the crop should bring."
"If any of the factors involved in revenue and costs are estimated, the estimates must be based on facts. * * * A witness will not be permitted to give a mere guess or opinion, unsupported by facts, as to the amount of damages arising upon a breach of contract. The amount of damages is the ultimate issue to be determined by the jury. It is incumbent upon the plaintiff to present facts, as to all reasonable factors involved, that the jury may have a basis for determining damages." Tillis v. Cotton Mills, 251 N.C. 359, 111 S.E.2d 606.
The admission of the opinion testimony as to damages without basing the opinion upon facts in evidence from which the jury could make its reasonable determination of damages was prejudicial error.
Defendant assigns as error the failure of the trial judge to grant his motions for directed verdicts. The evidence of breach of contract required submission of the case to the jury. This assignment of error is overruled.
Defendant's assignments of error to the charge of the Court to the jury are based on defendant's assertion that the Court failed to instruct the jury in certain respects. An assignment based on failure to charge should set out the defendant's contention as to what the Court should have charged. State v. Wilson, 263 N.C. 533, 139 S.E.2d 736. Defendant has failed to do this and the assignment of error is overruled.
For the errors in admission of evidence, there must be a
New trial.
MORRIS and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326903/ | 154 Ga. App. 9 (1980)
267 S.E.2d 264
UNITED STATES OF AMERICA et al.
v.
WATERFORD NO. 2 OFFICE CENTER.
59282.
Court of Appeals of Georgia.
Argued January 9, 1980.
Decided February 21, 1980.
Rehearing Denied March 18, 1980.
William L. Harper, Douglas P. Roberto, for appellants.
Wesley Williams, for appellee.
QUILLIAN, Presiding Judge.
The plaintiff appeals from an adverse judgment on its claim to a fund deposited in the registry of the State Court of DeKalb County.
The trial judge, sitting without a jury, made the following findings of fact:
"The within and foregoing motion for money rule having come on regularly to be heard and after hearing the evidence, the Court finds the facts as follows:
"U. S. Electronics was a Missouri corporation with an office and place of business located at 4480 North Shallowford Road, Atlanta, DeKalb County, Georgia. U. S. Electronics had leased the premises from the defendant, Waterford No. 2 Office Center.
"Subsequent to the lease having been entered into, U. S. Electronics borrowed money from a bank in St. Louis, Missouri, which loan was guaranteed by the Small Business Administration, an agency of the United States of America. At the time the loan was made, the collateral in which plaintiff claims a security interest was located in DeKalb County, Georgia. The bank filed a financing statement in Fulton County, Georgia on October 23, 1979. The *10 bank assigned its security interest to plaintiff in February of 1979. Agents of plaintiff notified defendant Waterford No. 2 that it claimed a security interest in the property of the debtor, U. S. Electronics.
"Subsequent to the assignment of the security interest to plaintiff by the bank, defendant Waterford No. 2, obtained judgment against U. S. Electronics for past due rent. The property was levied on by the Marshal of the State Court of DeKalb County and sold at public auction. The levy and sale were conducted with knowledge of plaintiff and plaintiff had its agents at the sale.
"Neither the bank nor plaintiff, its assignee, ever recorded the financing statement in DeKalb County, Georgia.
"The proceeds from the sale, $3,000.00, were deposited in the registry of the State Court of DeKalb County and plaintiff filed its claim to the fund."
Based on those facts he reached these conclusions of law:
"The priority of liens in respect to personal property is governed by the Uniform Commercial Code, Georgia Code Annotated, Title 109-A.
"One who claims a security interest in property of a debtor must file its financing statement in the county in which the collateral is located. In the case at bar, the debtor's principal office and place of business, as well as the collateral, were located in DeKalb County, Georgia. In order to prevail, the plaintiff must be able to show it filed its financing statement in DeKalb County, Georgia prior to the sale of the property levied upon. Plaintiff failed in its proof and must necessarily fail in its claim for the funds held by the Court. To protect its security interest against other lien holders, the Uniform Commercial Code requires a creditor to file its financing statement in the county where the collateral is located. Notification is not a substitute for filing. M. D. Hodges Enterprises, Inc. v. First Georgia Bank, 243 Ga. 664 (1979)." Held:
The case cited by the trial judge, M. D. Hodges Enterprises, Inc. v. First Georgia Bank, 243 Ga. 664 (256 SE2d 350), was decided based on the law prior to the revision of Code Ann. Ch. 109A-9 which was effective July 1, 1978. It is not determinative in this case.
Here the appellant failed to perfect its security interest since the filing under which it claimed was not in the correct county. See Code Ann. § 109A-9-401 (1)(b) (Ga. L. 1978, pp. 1081, 1119). While the security interest remained unperfected, the appellee levied on the property pursuant to a judgment for past due rent. Thus, the issue is, where the appellee had knowledge of the appellant's claim to a security interest, which of the two parties was entitled to *11 priority.
UCC § 109A-9-301 (1)(b) (Code Ann. § 109A-9-301, Ga. L. 1962, p. 156, 397) formerly provided: "Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of ... a person who becomes a lien creditor without knowledge of the security interests and before it is perfected." (Emphasis supplied.) UCC § 109A-9-301(1)(b) (Code Ann. § 109A-9-301(1)(b), Ga. L. 1978, pp. 1081, 1102) now provides: "Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of ... a person who becomes a lien creditor before the security interest is perfected." Under Code Ann. § 109A-9-301(3) (Ga. L. 1978, pp. 1081, 1102) "A `lien creditor' means a creditor who has acquired a lien on the property involved by attachment, levy or the like."
The Georgia Reviser's Comments on UCC § 109A-9-301(1)(b) read: "Under the former Code an unperfected security interest prevailed over a lien creditor who acquires his lien with knowledge of the security interest. This rule was an unjustified departure from the race to the record concept; it does not take into account the probability that the lien creditor extended credit at an earlier time when he was without knowledge of the security interest. The revision in subsection (1)(b) of this provision eliminates the uncertain knowledge element from the formula. A lien creditor would defeat an unperfected security interest even where the lien is acquired with knowledge of the security interest." (Emphasis supplied.)
The national codifiers have set forth the reasons for the changes now incorporated in our Code: "Paragraph (1) (b) has been amended to eliminate the element of knowledge in the conditions under which a lien creditor may defeat an unperfected security interest. Knowledge of the security interest will no longer subordinate the lien creditor to the unfiled security interests. The former section denied the lien creditor priority even though he had no knowledge when he got involved by extending credit, if he acquired knowledge while attempting to extricate himself. It was completely inconsistent in spirit with the rules of priority between security interests, where knowledge plays a very minor role." (Emphasis supplied.) 6A Bender's UCC Service 1-706, § 9-301.
Clearly the change incorporated in Code Ann. § 109A-9-301 (1) (b) by deleting the language "without knowledge of the security interests" was intended to eliminate knowledge as a factor insofar as a lien creditor's rights relative to an unperfected security interest are concerned. However, UCC § 109A-9-401 (2) (Code *12 Ann. § 109A-9-401 (2), Ga. L. 1978, pp. 1081, 1119) provides: "A filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this Article and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement."
While there appears to be a conflict in the two sections, UCC § 109A-9-301 (1) (b) specifically appertains to the situation present in the case sub judice involving a lien creditor and in view of the rationale behind its revision we deem it to be controlling. So construed Code Ann. § 109A-9-401 (2) would be applicable to "any person [other than a lien creditor] who has knowledge of the contents of such financing statement."
The trial judge did not err in finding for the appellee.
Judgment affirmed. Shulman and Carley, JJ., concur.
ON MOTION FOR REHEARING.
The movant's argument that the security interest was perfected even though filed in the wrong county has no arguable basis. See 4 Anderson, Uniform Commercial Code, and cits. "When filing is required to perfect a security interest, it must be filed in the manner designated by Code § 9-401." Anderson, supra, p. 262, § 9-302:9. "Filing in the wrong county fails to perfect the interest of the creditor and this is so even though the filing is made based on the address given by the debtor." Anderson, supra, p. 449, § 9-401:29. "Filing in the county designated by the Code is mandatory to perfecting a security interest by filing, and a filing in a wrong office has no effect in perfecting a security interest." Anderson, supra, p. 452, § 9-401:32.
Motion for rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326927/ | 161 Ga. App. 171 (1982)
288 S.E.2d 264
GIBBS
v.
JIM WILSON CHEVROLET COMPANY, INC.
62857.
Court of Appeals of Georgia.
Decided February 5, 1982.
W. Allan Myers, for appellant.
James A. Glenn, Jr., for appellee.
SOGNIER, Judge.
Gibbs purchased a used 1975 Pontiac from Jim Wilson Chevrolet Company, Inc. (Wilson). Gibbs paid $500 down and financed the remainder of the purchase price through Wilson and GMAC. In addition, Gibbs purchased optional Mechanical Breakdown Insurance on the automobile. The automobile developed mechanical problems which Gibbs requested that Wilson remedy. Gibbs was not satisfied with Wilson's attempts to fix the car and notified Wilson that she was revoking acceptance of the automobile. Wilson subsequently repossessed the Pontiac because of Gibbs' failure to make installment payments and sued for a deficiency. Gibbs counterclaimed alleging fraud and sought to recover payments made on the car. The trial court directed a verdict in favor of Gibbs on the complaint and directed a verdict in favor of Wilson on the counterclaim. Gibbs appeals.
Appellant contends that the trial court erred in directing a verdict against her on her counterclaim for fraud, because there was sufficient evidence of a misrepresentation upon which she relied to her damage to submit the issues to the jury. We agree.
*172 Gibbs signed an installment sales contract which contained a disclaimer of all warranties. However, appellant testified that she purchased the car because she had been assured that the car was in good mechanical condition, and any mechanical problems with the car would be covered by the Mechanical Breakdown Insurance. Appellant also testified that she took the car back to Wilson a number of times because of mechanical failures, but Wilson had failed to repair the car despite the insurance. Appellant revoked acceptance of the automobile by letter and demanded return of the money she had paid to Wilson. Wilson's representative testified that Gibbs had notified Wilson prior to the time of repossession that she wanted to surrender the car.
Where the purchaser of personal property has been injured by the false and fraudulent representations of the seller as to the subject matter thereof, he may rescind the contract, return the article and sue in tort for fraud. Bob Maddox Dodge v. McKie, 155 Ga. App. 263, 264 (270 SE2d 690) (1980). "Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence." Code Ann. § 37-706. A review of the record indicates there was sufficient evidence at trial that Gibbs rescinded the contract and tendered the car to Wilson to require submission of the case to the jury on the issue of fraud. Cambron v. Canal Ins. Co., 246 Ga. 147, 149 (269 SE2d 426) (1980); Bob Maddox Dodge, supra.
Wilson argues that Gibbs failed to prove any damages which could have resulted from the alleged fraud. We do not agree. Appellant testified, and the contract showed, that she had paid $500 in cash as a down payment on the car. Thus, enough evidence was presented for the jury to decide whether Gibbs had any actual damages as a result of the alleged fraud.
It is error to direct a verdict unless the evidence demands the particular verdict and fails to disclose any material issue for jury resolution. Humble Oil &c. Co. v. Mitchell, 230 Ga. 323, 326 (197 SE2d 126) (1973). In our opinion the evidence in the instant case did not demand a verdict in favor of Wilson on appellant's counterclaim, and it was error for the trial court to direct a verdict in this regard.
Judgment reversed. Shulman, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326925/ | 161 Ga. App. 512 (1982)
288 S.E.2d 754
SMITH
v.
THE STATE.
63110.
Court of Appeals of Georgia.
Decided March 4, 1982.
Robert Wilson, District Attorney, Susan Brooks, Assistant District Attorney, for appellee.
SOGNIER, Judge.
Appellant was convicted of theft by shoplifting and sentenced to six years confinement. His attorney filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (87 SC 1396, 18 LE2d 493), which we granted on November 2, 1981. Pursuant to Anders, counsel filed a brief in connection with his motion to withdraw setting forth any arguable contentions of error on behalf of appellant. Counsel enumerated the general grounds, and also enumerated as error the trial court's denial of a motion for continuance in order to secure an attorney of appellant's choice and the trial court's exclusion of appellant from the courtroom during his trial. Appellant also filed two supplemental briefs pro se, enumerating as error that he was denied effective assistance of counsel. Because appellant claims that he was denied effective assistance of counsel, we will review all enumerations of error raised by both appellant and his counsel prior to withdrawal.
1. The evidence disclosed that two men, one of whom was appellant, attempted to steal 24 pullover tops from a Sears, Roebuck & Company store at Columbia Mall in DeKalb County. One man reached up to a clothes rack and took the tops from the rack and put them in a large plastic garbage bag that the second man was holding. A saleslady observed the men and her manager and security personnel were alerted. When the two men saw the security personnel, they dropped the plastic bag and departed, going in different directions. Appellant was apprehended as he was going toward the escalator. Appellant had no authority to take the merchandise and neither he nor his companion paid for the merchandise. Appellant's companion, Michael Anderson, testified that he and appellant went to Sears to steal clothing or whatever they could steal. Anderson and appellant filled the garbage bag with sweaters; they were acting together and had no intention of paying for the merchandise. The store manager testified that 24 velour tops were in the plastic bag, and they had a total value of $400.
This evidence is more than sufficient to sustain the verdict, and we find that a rational trier of fact could find from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560).
2. On several occasions the trial court had appellant removed from the courtroom because he was boisterous and was disrupting the proceedings. On each occasion the trial court told appellant he could remain in the courtroom if he would not disrupt the proceedings. The appellant informed the court he would continue to be disruptive, and *513 on one occasion asked the court to excuse him "because I will interrupt the courtroom because I want my attorney present." It is apparent from the transcript that the trial court afforded appellant every opportunity to remain in the courtroom if he would not be disruptive. However, appellant continued to argue with the judge and stated he would be disruptive, and on each occasion the trial court had appellant removed from the courtroom. Appellant was represented throughout the trial by the public defender, an attorney at law.
The Supreme Court of the United States has held that "a defendant [in a criminal case] can lose his right to be present at trial, if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom." Illinois v. Allen, 397 U.S. 337, 344 (90 SC 1057, 25 LE2d 353). The court went on to hold that there are three constitutionally permissible ways for a trial judge to handle an obstreperous defendant: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; or (3) remove him from the courtroom until he promises to conduct himself properly. Id., at 345. In the instant case, the trial judge gave appellant every possible opportunity to remain in the courtroom if he would not be disruptive. On each occasion appellant either continued to argue with the judge and would not obey the judge, or stated specifically that he would continue to be disruptive. On one occasion, appellant asked to be excused from the courtroom because he would interrupt the court. Under such circumstances, it was not error to have appellant removed from the courtroom. Allen, supra.
3. Appellant next contends it was error to deny appellant a continuance to secure an attorney of his choice. The record discloses that appellant was in confinement from December 4, 1980 until he was tried on March 18-19, 1981; that a public defender was appointed to represent appellant and represented him at a probation revocation proceeding on February 24, 1981, and at the trial of the instant case; and that during the time appellant was confined from December 4, 1980 until the date of trial no attorney had been retained to represent appellant, and no attorney (other than the public defender) had made an appearance in court on appellant's behalf.
Although no specific motion for a continuance was made, appellant stated that he had a (retained) attorney, and hadn't had time to get in touch with him. Appellant stated further that he had tried the preceding night to contact his attorney, but the jailer would not allow him to do so.
*514 Appellant had almost three and one-half months from the time he was confined in December 1980 until the date of trial in which to retain counsel if he desired, yet there is no evidence that he made any effort to do so. The first time he indicated he desired counsel other than his appointed counsel was at the commencement of jury selection. Further, appointed counsel stated on the record that he represented appellant. In response to the court's statement to appellant that he had not seen a private attorney, appellant stated: "Right, because I know I had probation and I know I had violated my probation and there wasn't no need for an attorney. I thought they was trying me at the probation revocation [on February 25, 1981]." The judge also informed appellant that the trial was going to proceed because appellant had ample time to employ counsel and had been unable to do so. Finally, when appellant was asked how he pleaded, he stated he had an attorney, but "I have not contacted my lawyer up until now."
Under the circumstances of this case, we do not believe appellant was denied his right to be represented by retained counsel. In another case where a defendant was not allowed to discharge appointed counsel and retain different counsel the day of trial, we affirmed denial of a continuance and held: "A defendant will not be permitted to use the discharge of [appointed] counsel and employment of another counsel as a dilatory tactic in requesting a continuance. [Cit.] The trial court concluded that the defendant and his [family] had ample resources and time to make arrangements to employ counsel and failed to do so." Pope v. State, 140 Ga. App. 643, 644 (2) (231 SE2d 549) (1976). See also Brownlee v. State, 155 Ga. App. 875-876 (2) (273 SE2d 636) (1980). Considering the fact that appellant had almost three and one-half months to retain counsel and made no effort to do so, we find no error in denial of a request for continuance. Pope, Brownlee, supra.
4. Appellant's contention that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the constitution of the United States (Code §§ 1-806, 1-815) is based primarily on the fact that the court would not grant a continuance to allow appellant time to retain an attorney; we have discussed that issue in Division 3. However, in his brief filed pro se, while acknowledging that his appointed counsel was competent, appellant contends that appointed counsel did not do proper research to prepare for trial, did not interview witnesses and did not file pretrial motions. These allegations are not supported by the record, which discloses that counsel was well prepared and conducted thorough cross-examination of all prosecution witnesses. Thus, appellant's claim that his counsel was so ineffective as to deny him a *515 fair trial under the Sixth and Fourteenth Amendments is totally unfounded. "[T]he effectiveness of counsel cannot be fairly measured by the results of a criminal trial or appeal, but upon the reasonable effectiveness of counsel at the time the services were rendered." Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974); Sherrell v. State, 141 Ga. App. 502, 504 (233 SE2d 869) (1977). Accordingly, this enumeration is without merit.
Judgment affirmed. Shulman, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327005/ | 122 Ga. App. 720 (1970)
178 S.E.2d 567
DODD
v.
NEWTON (two cases).
45564, 45565.
Court of Appeals of Georgia.
Submitted September 16, 1970.
Decided October 30, 1970.
*721 A. S. Dodd, Jr., for appellant.
Brannen, Clark & Hester, Perry Brannen, for appellee.
EVANS, Judge.
1-4. Headnotes 1 through 4 require no further elaboration.
5. Examination of the testimony here objected to as being inadmissible shows the following:
The husband of Mrs. Ruth L. Dodd, who was a practicing attorney, was on cross examination by the plaintiff, and, over objection that it was not germane, was allowed to testify as to contingent fees in Statesboro, Georgia, as follows: "... settlement prior to suit a contingent fee would be twenty five (25) percent, settlement after suit filed, thirty three and one-third (33 1/3)." (T. pp. 23, *722 29, 30). The defendant's attorney, while cross examining Ward Newton, the plaintiff, brought out the same testimony on a larger scale wherein it applied to the entire State of Georgia, without objection, said Newton testifying as follows: "Not only that, I have never, I have never taken a suit wherein damages were produced that I was not paid one third and if I associated with counsel, some other counsel, we divided that one-third. So I am asking to be paid the exact amount I am paid every day, have been paid every day and every other attorney in the State, and you know it, is also paid, unless he makes some peculiar arrangement." (T. p. 98).
This court will take judicial notice that Statesboro is a city in the State of Georgia. See Owens v. Rutherford, 200 Ga. 143, 149 (36 SE2d 309); and that Statesboro was incorporated in 1866 and the charter has been amended various times since. See Ga. L. 1889, 1902, 1912, 1947, and others.
The appellate courts of Georgia have held numerous times that where testimony is objected to and admitted and the same testimony is elicited on cross examination, the error, if any, is thereby cured. American Family Life Ins. Co. v. Glenn, 109 Ga. App. 122 (2) (135 SE2d 442); Moore v. State, 193 Ga. 877 (2) (20 SE2d 403); Walthour v. State, 191 Ga. 613 (1a, b) (13 SE2d 659).
Further, even though this lawsuit is bottomed on quantum meruit, it is still affected by the contingency of the recovery. It is axiomatic that the value of an attorney's services for losing a case is quite different from the value of those services in winning a case, and no one knows this better than the client who must pay the attorney. Thus, in my opinion, admission of the evidence as to the contingent contract, while not governing and controlling the fee to be awarded, was still proper subject matter for consideration by the jury. Here we have a case where there was a recovery; and the plaintiff, an attorney, sets up his claim for the reasonable worth of his services in helping to effect that recovery. Black's Law Dictionary defines quantum meruit as: "As much as he deserved; in pleading, the common count in an action for assumpsit for work and labor founded on an implied assumpsit or promise on the part of the defendant to pay the plaintiff as much as he reasonably deserved to have for his labor."
Can it be doubted that a laborer is entitled to more for his *723 services for a successful project than for an unsuccessful one? Of course, other elements may be properly considered by the jury also, including the time, work, and inconvenience suffered by the attorney. Suppose, for instance, this case had been lost, and this suit had been brought for attorneys fees for quantum meruit can it be doubted that the defendant would have come forth with his contention that the services were not very valuable in that they did not accomplish the desired result?
Counsel for appellant cites two cases from other jurisdictions, but they do not support the premise. Dumas v. King, 157 F2d 463 (14) holds that the Fair Labor Standards Act specifically provides for "reasonable attorney's fees" and therefore does not contemplate a speculative or contingent fee. However, in that case $250 was awarded as attorney's fee for recovering $629.72 for overtime compensation, and an equal amount for liquidated damages, and an additional $250 for services necessary in connection with the employer's appeal. Thus $500 attorney fees were awarded as against a recovery of $1,259.44 principal, which is considerably more than 33 1/3%. No ruling whatever was made as to the admissibility of evidence as to the contingent fee contract. In the other case, McCrory Stores Corp. v. Irving Trust Co., 91 F2d 947 (3, 4), no ruling was made as to the admissibility of evidence as to contingent fee contracts, and it is readily apparent that the court was fully apprised of such contingent fee contract in making its award. The holding there simply was that "the contract ... cannot establish the standard for compensation." This is a far cry from holding it to be inadmissible for consideration as to what is a reasonable fee under all the circumstances. The defendant's brief also cites Cooper v. Irving Trust Co., 302 U. S. 725 (58 SC 46, 82 LE 560), but this was simply a denial of certiorari in the McCrory case.
Finally, while the decisions of the United States Supreme Court are binding upon our Georgia appellate courts (see Thornton v. Lane, 11 Ga. 459, 500; Thompson v. Eastern Air Lines, 200 Ga. 216, 222 (39 SE2d 225); and Hertz v. Abrahams, 110 Ga. 707, 718 (36 SE 409, 50 LRA 361); those of other Federal courts are not binding upon the Georgia appellate courts. Morgan v. Limbaugh, 75 Ga. App. 663, 666 (44 SE2d 394); Atlantic C. L. R. Co. v. Anderson, *724 73 Ga. App. 343, 348 (36 SE2d 435).
In 7 CJS 1122, § 204, it is stated: "Customary Charges; Fees of Others. In determining the value of an attorney's services it is proper to receive evidence as to the price usually charged and received for similar services by other persons of the same professions, in the same vicinity, and practicing in the same court. It has been held, however, that a local usage as to fees is not competent to show the value of services rendered in another state or country; and that, in any case, such evidence is not essential, inasmuch as the court itself is competent to judge with respect to the value of such services."
Having examined each and every error properly enumerated and argued, and finding no harmful error, we must affirm the judgment of the lower court.
Judgment affirmed. Deen, J., concurs. Hall, P. J., concurs specially.
HALL, Presiding Judge, concurring specially. The majority opinion holds that evidence of the "contingent fee" schedule of the local bar is relevant and admissible in a quantum meruit suit. I disagree. "A contingent fee may or may not be reasonable, but it is by definition a proportionate part of a judgment recovered by the attorney for his client." Old Equity Life Ins. Co. v. Barnard, 120 Ga. App. 596, 597 (171 SE2d 636). It is "payable by special contract out of the proceeds of the suit." Modlin v. Smith, 13 Ga. App. 259, 264 (79 SE 82). The "happening of the contingency is a condition precedent to the right of the attorney to recovery for his services, and the precise event which was contemplated must happen." Byrd v. Clark, 170 Ga. 669 (2) (153 SE 737). Quantum meruit is applicable where there is no contract and the attorney is merely entitled to the reasonable value of the services he has actually performed. Justice Nesbit has said that where lawyers have no special agreement there is "an implied understanding to pay them a reasonable fee." McDonald v. Napier, 14 Ga. 89, 104. His recovery is not "for breach of contract, but is a recovery of reasonable fees in the nature of a quantum meruit ..." Dorsey v. Edge, 75 Ga. App. 388, 392 (43 SE2d 425). It "will give him as much compensation as is fairly merited by his performance as far as it went, to be measured by the reasonable value of the benefit accruing *725 from it." Sellers v. City of Summerville, 88 Ga. App. 109, 116 (76 SE2d 99). Quantum meruit gives him only "as much as he reasonably deserved to have for his labor." Johnson v. Higgins-McArthur Co., 99 Ga. App. 260, 264 (108 SE2d 299).
While I believe the admission of the contingent fee testimony was error, I am of the opinion it was not harmful in light of the particular facts and verdict in the case sub judice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327606/ | 201 Ga. App. 466 (1991)
411 S.E.2d 354
DEANS
v.
DAIN MANAGEMENT, INC. et al. (two cases). DAIN MANAGEMENT, INC.
v.
DEANS.
A91A1234, A91A1235, A91A1236.
Court of Appeals of Georgia.
Decided October 10, 1991.
Middleton & Anderson, Eugene C. Brooks IV, for appellant.
Carter & Ansley, Ben Kingree III, for appellees.
COOPER, Judge.
Appellant began working for the Environmental Protection Agency ("EPA") in Atlanta in June 1984. EPA's offices were housed in two buildings, a five-story building on Courtland Street (hereinafter referred to as the "Courtland" building) and a high-rise office building on Ralph McGill Boulevard (hereinafter referred to as the "Tower" building). Both EPA buildings were managed by Dain Management, Inc. ("Dain"). Appellant's office was located on the fourth floor of the Tower building; however she made numerous visits to the Courtland building, which was connected to the Tower building on the third and fourth floors by enclosed corridors.
Between February 1984 and August 3, 1984, office partitions made by Open Office Products, Inc. ("Open Office") were installed on the first, second, third, and fourth floors of the Courtland building. When appellant visited the Courtland building during that period of time, she noticed that an unpleasant odor emanated from the partitions. *467 Within two months after appellant began working for the EPA, she heard people who worked in the Courtland building complaining of eye and throat irritations, which they attributed to the partitions. Between August 15, 1984 and September 10, 1984, tests were conducted on air samples taken from the Tower and Courtland buildings, which concluded that the levels of formaldehyde in both buildings were in excess of the recommended standard for formaldehyde exposure. Also, in 1984, a study by the National Institute of Occupational Safety & Health concluded that the volume of fresh air in the Courtland building was inadequate and the building's ventilation should be improved.
As a result of employee complaints, the EPA had the partitions removed from the Courtland building. All of the partitions were removed by June 19, 1985. Some of the partitions were sent to a lab for tests, which showed that the partitions were offgassing excessive amounts of formaldehyde and the main source of the formaldehyde was its fiberboard core. The fiberboard core used by Open Office to make the partitions was manufactured by Medford Corporation ("Medford") and sold under the tradename of "Medite" to Spellman Hardwoods ("Spellman"), which then sold it to Open Office. Medford included the following warning with the sale of Medite: "Medite contains formaldehyde. Formaldehyde may cause health problems such as eye and respiratory irritation and may aggravate respiratory conditions or allergies. Medite should not be used in enclosed areas where formaldehyde could be a problem unless properly sealed."
The partitions containing the Medite core were replaced with partitions which did not containing the Medite core. In January 1986, appellant was transferred to the Courtland building. Her work area was surrounded by three partitions. In February 1986, appellant began experiencing symptoms similar to those of a sinus infection. Appellant took several days off from work during which time she felt much better, but when she returned to work on February 24, 1986, she began to experience the same symptoms. On March 4, 1986, appellant sought treatment with Dr. Paul Rabinowitz, an allergist who had treated other EPA employees. Appellant told Dr. Rabinowitz during her initial visit that she worked at the EPA and that a source of her problems may be partitions which were releasing formaldehyde. Appellant continued to see Dr. Rabinowitz for several months and on November 13, 1986, Dr. Rabinowitz confirmed that chemicals in appellant's work environment were causing her allergic reactions. Appellant was subsequently diagnosed as having asthma and an auto-immune system disorder. The medical evidence reflects that both asthma and auto-immune disorders can be caused by formaldehyde sensitivity.
On February 29, 1988, appellant filed a complaint based on theories *468 of negligence and strict liability against Dain, Spellman, Open Office and Medford, alleging that she had suffered permanent injuries as a result of inhaling formaldehyde at her workplace. Appellant subsequently dismissed her action against Spellman, and the remaining defendants moved for summary judgment. The trial court granted Medford's and Open Office's motions on the grounds that there was a lack of a causal connection between appellant's injury and the partitions. The trial court also granted Dain's motion with respect to appellant's alleged injuries of formaldehyde sensitization and asthma based on the expiration of the statute of limitation. However, the trial court denied Dain's motion as to appellant's contention that the formaldehyde exposure caused her to suffer with an auto-immune disorder. The trial court subsequently amended its order to alternatively grant summary judgment to Medford and Open Office based on the statute of limitation.
In Case No. A91A1234, appellant appeals from the trial court's grant of summary judgment to Dain, Medford and Open Office. In Case No. A91A1235, appellant appeals from the trial court's amended order, and in Case No. A91A1236, Dain cross-appeals from that part of the trial court's order which denied Dain's motion for summary judgment.
Case No. A91A1235
Appellant filed a notice of appeal from the trial court's first order on August 30, 1990. On August 31, 1990, the trial court entered its second order which amended the first order. Appellant argues that the trial court erred in amending its order after a notice of appeal had been filed from that order. "[T]he filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter, or modify the judgment. . . are without effect. [Cits.]" Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979). Thus, the trial court had no jurisdiction to amend its order and we have no jurisdiction to consider the appeal. Bishop v. Typo-Repo Svcs., 188 Ga. App. 581 (373 SE2d 762) (1988). Accordingly, this appeal is dismissed.
Case Nos. A91A1234 and A91A1236
1. Appellant first contends that the trial court erred in granting summary judgment to Medford and Open Office on the issue of proximate cause. It is undisputed that when appellant began working in the Courtland building in January 1986, the partitions containing the Medite core had been removed and replaced with partitions which were formaldehyde free. However, appellant argues that her exposure *469 to formaldehyde fumes occurred during 1984 and 1985 and sensitized her to the extent that she is unable to tolerate breathing even small amounts of formaldehyde. Medford and Open Office argue that appellant's alleged formaldehyde sensitization was caused by other sources of formaldehyde in the air in the Tower building. The evidence reflects that the Tower and Courtland buildings had separate heating/ air conditioning and ventilation systems; that formaldehyde fumes are present in cigarette smoke and paper products; that the EPA did not have a "no smoking" policy during 1984 and 1985; and that appellant handled paper products as part of her job. There is also evidence in the record that formaldehyde has a density similar to that of air such that it freely migrates through the air; that formaldehyde will permeate from one room to another just as air does; that tests conducted on air samples from the Tower building over a three week period between August 15, 1984 through September 10, 1984 revealed levels of formaldehyde in the Tower building in excess of the recommended standard for formaldehyde exposure. Dr. Elaine Panitz, an occupational and environmental specialist, testified in her deposition on appellant's behalf that in her opinion appellant's formaldehyde sensitization occurred between June 1984 and June 1985 and that appellant began manifesting symptoms of sensitization in June 1985. The trial judge found that there were sufficient other sources of formaldehyde in appellant's work environment to account for the 1984 formaldehyde readings and that there was a lack of causal connection between the partitions installed in the Courtland building and appellant's sensitization to formaldehyde while she worked in the Tower building. "On motion for summary judgment, all doubts as to evidence and the benefit of any conflict are to be indulged in favor of the opposing party and construed against the movant. [Cit.] If the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact must be drawn against the movant and in favor of the party opposing the motion. [Cit.]" Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990). While there is evidence that formaldehyde from sources other than the partitions with the Medite core could have caused the elevated levels of formaldehyde in the Tower building, we find that it is also a permissible inference that formaldehyde offgassed from the partitions installed in the Courtland building migrated into the Tower building causing the elevated levels. "The cardinal rule of the summary procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. [Cit.]" Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987). We conclude that an issue of fact was raised as to the causal connection between appellant's formaldehyde sensitization and the partitions with the Medite core. Therefore, the trial court erred in granting summary *470 judgment to Medford and Open Office.
2. Appellant also contends that the trial court erred in granting partial summary judgment to Dain based on the statute of limitation. Appellant alleges that she suffered three distinct injuries as a result of her exposure to formaldehyde in the workplace: formaldehyde sensitization, asthma, and an auto-immune system disorder. She argues that since she did not receive a medical diagnosis of a formaldehyde-induced problem until November 13, 1986, her action filed on February 29, 1988 was timely. Appellant's injuries are all based on her exposure to chemicals in the atmosphere and subject to the discovery rule enunciated in King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252) (1981). This court held in King that "`[a] cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant's conduct.' [Cit.]" Id. at 320. The trial court applied the discovery rule and concluded that appellant discovered that Dain's conduct may have been the cause of her allergic-type reaction, including her asthma, on February 24, 1986; therefore, the statute of limitation expired on February 24, 1988. We disagree and reverse. Although appellant may have believed on February 24, 1986, that something in her workplace was causing her recurrent health problems, it is not clear that on that date she associated her problems with the conduct of defendants Dain, Medford and Open Office. Furthermore, any belief that appellant may have had that the office partitions were a source of her problems was erroneous inasmuch as the partitions surrounding her at that time were formaldehyde free. The relevant inquiry for purposes of applying the discovery rule in this case is whether on February 24, 1986, appellant associated her health problems with either the conduct of Dain in failing to adequately ventilate the Tower building in 1984 and 1985, the conduct of Open Office in manufacturing the partition which was installed in the Courtland building in 1984, or the conduct of Medford in manufacturing the Medite core which was the main source of the formaldehyde emitting from the partitions. We do not hold, as appellant argues, that a medical diagnosis is necessary before the statute of limitation begins to run. We hold in accordance with King that under the facts of this case, on February 24, 1986, appellant neither knew, nor through the exercise of reasonable diligence should have known, that her symptoms were the result of having been sensitized to formaldehyde between 1984 and 1985. See Andel v. Getz Svcs., 197 Ga. App. 653 (1) (399 SE2d 226) (1990). Accordingly, we hold that the trial court erred in finding that appellant's action was filed outside the statute of limitation and in granting summary judgment to Dain. For the foregoing reasons, the trial court correctly denied summary judgment to Dain *471 on appellant's auto-immune disease, and the judgment appealed from in Dain's cross-appeal is affirmed.
Judgment reversed in Case No. A91A234. Judgment affirmed in Case No. A91A1236. Appeal dismissed in Case No. A91A1235. Birdsong, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326922/ | 161 Ga. App. 44 (1982)
288 S.E.2d 854
WORLEY
v.
WORLEY.
62887.
Court of Appeals of Georgia.
Decided January 22, 1982.
Ronald A. Lowry, for appellant.
J. Wayne Moulton, for appellee.
CARLEY, Judge.
Appellant, Jean S. Worley, and appellee, Howard E. Worley, were formerly husband and wife. The parties were divorced in 1980 and all issues relating to child custody and division of assets of the marriage were resolved by a settlement agreement dated August 7, 1980, which was subsequently modified by an agreement dated December 24, 1980. No issues relating to the divorce or to the settlement agreement are presently before the court.
The present litigation was instituted by appellee's filing of a verified petition, pursuant to Code Ann. § 81A-127(a) seeking an order allowing appellee to depose appellant prior to the filing of an action. The pertinent allegations of the petition are as follows:
2.
"Petitioner expects to be a party to litigation but presently is unable to bring it or cause it to be brought for the reason that the actions and activities with particular regard to tax filings by Jean S. Worley are unknown to Petitioner.
3.
"The subject matter of the expected litigation concerns those agreements entered into between the parties in settling a certain divorce action between them . . .
5.
"The substance of the testimony which Petitioner expects to elicit from the witness is the witness's United States tax filings and records for the 1980 tax year, with particular regard to the manner in which certain sums of alimony, paid by Petitioner to the witness were handled, as well as the facts and circumstances surrounding the settlement of the divorce action between the parties and its subsequent modification."
Appellant responded to the petition by denying the material allegations thereof and by filing a motion to quash or, in the alternative, to dismiss the petition. Appellant brings this appeal from the trial court's order allowing the taking of appellant's deposition prior to the institution of any action.
Proper resolution of the issue raised by this appeal requires an *45 analysis of the underlying legislative objective in affording a prospective litigant the right to perpetuate testimony prior to filing suit. As far as this court can discern, there are no Georgia cases interpreting Code Ann. § 81A-127 (a). However, Rule 27(a) of the Federal Rules of Civil Procedure is substantially identical with § 27(a) of our Civil Practice Act (Code Ann. § 81A-127(a)) and thus resort to federal cases interpreting Rule 27(a) as persuasive authority is proper. Sorrells v. Cole, 111 Ga. App. 136, 138 (141 SE2d 193) (1965); Millholland v. Oglesby, 114 Ga. App. 745 (1) (a) (152 SE2d 761) (1966). The federal decisions construing Rule 27(a) have uniformly stated that the purpose of the rule is to preserve and perpetuate Known testimony, not to provide prospective litigants with a vehicle for the ascertainment of pre-complaint evidence. See Petition of North Carolina, 68 F.R.D. 410, 412 (S.D.N.Y. 1975); Petition of Exstein, 3 F.R.D. 242 (S.D.N.Y. 1942); Petition of Ferkauf, 3 F.R.D. 89, 91 (4-5) (S.D.N.Y. 1943); Ash v. Cort, 512 F2d 909, 911 (3d Cir. 1975). Moreover, the federal courts have held that in addition to the specific allegations which must be set forth in a petition under Rule 27 (a), one of the requirements which must be met before leave will be granted for the taking of pre-complaint depositions is the existence of a substantial danger "that testimony sought to be preserved by deposition would otherwise become unavailable before complaint could be filed. [Cits.]" In re Boland, 79 F.R.D. 665, 667 (1) (D.C.C. 1978). See generally 4 Moore's Federal Practice § 27.07(4), at 1826-1828 (2d ed. 1981).
We find the interpretation of Federal Rule 27(a) as expressed by the federal courts in the above cited decisions to be based upon sound and persuasive reasoning. Accordingly, we conclude that the purpose of Code Ann. § 81A-127(a) is to provide for perpetuation of testimony in situations where, for one reason or another, testimony might be lost to a prospective litigant unless steps are taken immediately to preserve and protect such testimony. Code Ann. § 81A-127(a) does not provide a substitute for discovery or a method to determine whether a cause of action exists. This code section cannot be used for the purpose of ascertaining facts to be used in drafting a complaint.
In the instant case, appellee alleged in paragraph 2 of the petition that he is unable to bring the underlying action because he lacks knowledge of the facts and information necessary to frame his complaint. It is readily apparent that this is the very information which appellee seeks to discover by deposing appellant. As the federal courts have held and as we now hold, this is impermissible under Code Ann § 81A-127(a). Moreover, appellee's petition does not allege that the testimony sought to be preserved is in danger of being lost and "there is no evidence that the testimony of persons with *46 knowledge of the material facts relevant to [appellee's] proposed lawsuit will be unavailable after a complaint is filed." In re Boland, supra, at 667.
For the foregoing reasons we conclude that appellee has not shown entitlement to the entry of an order permitting him to perpetuate testimony under Code Ann. § 81A-127(a). Accordingly the trial court erred in ordering the taking of appellant's deposition and in failing to grant appellant's motion to dismiss.
Judgment reversed. Deen, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326957/ | 153 Ga. App. 877 (1980)
267 S.E.2d 260
METROPOLITAN PUBLISHERS REPRESENTATIVES, INC.
v.
ARNSDORFF.
59205.
Court of Appeals of Georgia.
Argued January 8, 1980.
Decided February 19, 1980.
Rehearing Denied March 13, 1980.
Foy R. Devine, for appellant.
Ronald S. Stevens, for appellee.
QUILLIAN, Presiding Judge.
This was an action by appellee-salesman to recover unpaid commissions from appellant-employer. The *878 employer admitted that the salesman had earned the commissions, but produced evidence of an oral condition of employment which required the salesman to remain employed until the end of the year to receive the commissions. The salesman, who had resigned his position before the end of the year, denied there was any such condition. The only issue before the jury was whether the condition in fact existed. By its verdict for the salesman, the jury found there was no such condition. The employer appeals. Held:
1. The trial court charged the jury: "... if you should find that such a condition [to remain employed to the end of the year] was not established by the preponderance of the evidence, then you should return a verdict in favor of the plaintiff." Appellant contends this charge erroneously shifted the burden of proof to the defense. Although plaintiff normally has the burden of proof, Code Ann. § 38-103 states: "The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential."
"[I]f a defendant files an affirmative defense, ordinarily he has the burden of proving such affirmative defense. See Code § 38-103; Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821, 826 (187 S.E. 194). As is explained in the Williamson case, supra, it is only when the defendant admits the essential facts of petition, and sets up other facts in justification or avoidance, that defendant has the burden of proving such affirmative defense." Willis v. Kemp, 130 Ga. App. 758, 759 (204 SE2d 486). We find that appellant admitted the essential facts of appellee's complaint, asserted and produced evidence that there was a condition to the receipt of appellee's commissions, and that proof of the existence of that condition was essential to appellant's defense of the suit. Accordingly, appellant had the burden of proof on this issue and the trial court's charge was not error.
2. The trial court did not err in refusing to permit appellant's counsel, in closing argument, to read to the jury from a reported case of this court. Code Ann. § 24-3319 (Superior Court Rule 19) provides that "in all civil cases questions of law shall be argued exclusively to the court, and questions of fact to the jury."
*879 "There is no logical difference between reading law to the jury and reading law to the court in the presence of the jury ... In the past it could be fairly argued, that in reading the law to the court at the commencement of the argument (in the presence of the jury), counsel was informing the court of the authorities he was relying on and thus assist the court in the preparation of its charge to the jury ... Whatever may have been the justification for the practice in the past ended with the enactment of Code Ann. § 70-207 (b), supra. Under this latter Code section not only must counsel submit requests to charge at or before the close of the evidence, but the court must inform counsel of its proposed action on the requests prior to counsel's argument to the jury. What then is the purpose of reading `law to the court' in the presence of the jury? ... The practice complained of here is condemned. In all civil cases the jury shall receive the law exclusively from the trial judge and any departure from this rule will constitute reversible error." Central of Ga. R. Co. v. Sellers, 129 Ga. App. 811, 814-815 (201 SE2d 485). Accord, Harris v. Collins, 149 Ga. App. 638 (3) (255 SE2d 107).
3. There also was no error in the trial court denying appellant's motion for a new trial. The motion was based on matters resolved adversely to appellant in the first two divisions of this opinion, as well as the general grounds. We find the verdict was authorized by the evidence. Howard v. Fleming, 231 Ga. 364 (201 SE2d 422); Smith v. Smith, 235 Ga. 109, 114 (218 SE2d 843).
Judgment affirmed. Shulman and Carley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326955/ | 267 S.E.2d 397 (1980)
In the Matter of Shirley W. BOLDEN, Appellee, and
J. C. Penney Company, Inc., Employer, and
Employment Security Commission of North Carolina, Appellant.
No. 8026SC146.
Court of Appeals of North Carolina.
July 1, 1980.
*398 Paul E. Hemphill, Staff Atty., Legal Services of Southern Piedmont, Inc., Charlotte, for claimant-appellee.
Gail C. Arneke, Staff Atty., Raleigh, for Employment Security Commission of North Carolina, appellant.
PARKER, Judge.
In the judgment appealed from the court expressly found that the facts found by the Commission were based upon competent evidence contained in the record. The court nevertheless reversed the Commission's decision, basing its ruling upon its finding that the Commission "did not properly apply the law to those and other facts in evidence." (Emphasis added.) In reversing the Commission on the basis of "other facts in evidence," the Court committed error.
In reviewing decisions of the Employment Security Commission as authorized by G.S. 96-15(i), the superior court functions as an appellate court. In re Enoch, 36 N.C.App. 255, 243 S.E.2d 388 (1978). In *399 performing that function, "the reviewing court may determine upon proper exceptions whether the facts found by the Commission were supported by competent evidence and whether the findings so supported sustain the legal conclusions and the award made, but in no event may the reviewing court consider the evidence for the purpose of finding the facts for itself." Employment Security Comm. v. Young Men's Shop, 32 N.C.App. 23, 29, 231 S.E.2d 157, 160 (1977). If the findings of fact made by the Commission, even though supported by competent evidence in the record, are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding should be remanded to the end that the Commission made proper findings.
In the judgment appealed from the court did not specify what were the "other facts in evidence" to which the Commission had failed properly to apply the law. Presumably the court was referring to the evidence presented by the claimant in support of her contention that her employer had unfairly discriminated against her because of her race. The ultimate question for decision in this case was whether the claimant had "left work voluntarily without good cause attributable to [her] employer" within the meaning of G.S. 96-14(1) so as to be disqualified for unemployment compensation benefits by virtue of that section. Had she left her job because of racial discrimination practiced against her by her employer, she would have had good cause attributable to her employer and so would not have been disqualified for benefits. The Commission made no factual findings on this matter. The question presented for our determination on this appeal thus becomes whether such findings were necessary to determine the rights of the parties upon the matters in controversy in this case. This depends upon whether the evidence presented by the claimant was sufficient to raise a genuine issue of fact which the Commission was required to resolve as to whether claimant's employer unfairly discriminated against her on account of her race. We find that it was. Although claimant's objective evidence tending to support her subjective feeling that she had been the victim of racial discrimination was minimal indeed and certainly would not compel that conclusion, in our opinion it was sufficient to raise a factual issue which the Commission should have resolved.
Accordingly, the judgment appealed from is vacated and this matter is remanded to the superior court with directions that the superior court further remand this matter to the Employment Security Commission, to the end that the Commission make findings of fact upon all controverted issues required to determine the rights of the parties.
Vacated and remanded.
CLARK and WEBB, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1326951/ | 267 S.E.2d 140 (1980)
Bernard PACKER and Dorothy Packer
v.
C. W. HORNSBY and Waller J. Roberts.
BOARD OF ZONING APPEALS OF the CITY OF VIRGINIA BEACH
v.
C. W. HORNSBY and Waller J. Roberts.
Record Nos. 780828, 781022.
Supreme Court of Virginia.
June 6, 1980.
Grover C. Wright, Jr., Virginia Beach, for appellants in 780828.
Edward T. Caton, Virginia Beach, for appellees in both cases.
Charles M. Sallé, Asst. City Atty., on brief, for appellant in 781022.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
POFF, Justice.
We have consolidated for opinion two appeals from a judgment reversing the authorization of a variance from a zoning ordinance. The appellants are Dr. and Mrs. Bernard Packer, who applied for the variance, and the Board of Zoning Appeals which approved the application. The appellees are C. W. Hornsby and Waller J. Roberts who protested the application.
*141 In 1968, the Packers purchased one of the six lots situated between 88th and 89th Streets in the northern portion of the City of Virginia Beach. Their lot fronts 50 feet on the ocean and runs west between parallel lines 140 feet to an alley. None of the six lots, all of comparable size, conformed to the minimum lot size requirement of the zoning ordinance in effect in 1968. That ordinance prescribed six-foot side yard setbacks and a ten-foot setback from the oceanfront property line. In 1973, the City enacted a comprehensive zoning ordinance which continued the minimum lot size requirement but increased the oceanfront setback to 30 feet and fixed the setbacks from the northern and southern sidelines at ten feet and five feet, respectively.
All six dwellings conformed to the setbacks required when they were built. Although four of the six were situated closer than 30 feet to the oceanfront, they were lawful nonconforming structures under the 1973 ordinance. The house the Packers bought is 33.8 feet from the oceanfront but only 2.8 feet from the northern sideline.
In 1977, the Packers applied for a building permit to enlarge their living room and add a dining room. There is ample space west of the house to accommodate the construction; but, since the western portion of the existing structure contains bedrooms, a kitchen, and a furnace room, the Packers planned an eastern extension. To qualify for the building permit, they applied for a variance to reduce the oceanfront setback requirement from 30 feet to 8.1 feet and the northern sideline setback requirement from 10 feet to 4.3 feet. The reasons assigned in the application were "improvement to existing structure is needed" and "development of adjacent property makes adherence to set back a hardship".
At the conclusion of a hearing on the application, a member of the Board, observing that "it appears that the average of the houses along this block . . . are approximately 16 feet from the oceanfront line", moved to decrease the oceanfront setback to 16 feet and the sideline setback to 4.3 feet. In response to a question concerning "the grounds for your variance", the Board member cited "[t]he development in the area." The motion was adopted unanimously.
Pursuant to Code § 15.1-497, the trial court awarded a writ of certiorari to Hornsby and Roberts, owners of the lots adjoining the Packers' lot, and granted the Packers leave to intervene. The court reviewed the record of the Board hearing, examined exhibits introduced by the Packers, heard argument by counsel, and issued a letter opinion. By final order entered June 2, 1978, the court reversed the Board's decision and denied the variance.
We recently summarized the well-settled standard of judicial review for cases like this in Alleghany Enterprises v. Covington, 217 Va. 64, 67, 225 S.E.2d 383, 385 (1976):
"A proceeding before the trial court under Code § 15.1-497 is not a trial de novo. There is a presumption that the Board's decision was correct and the burden is on the appellant to overcome this presumption. Board of Zoning Appeals v. Combs, 200 Va. 471, 476-77, 106 S.E.2d 755, 759 (1959). The court may not disturb the decision of a board of zoning appeals unless the board has applied erroneous principles of law or, where the board's discretion is involved, unless the evidence proves to the satisfaction of the court that the decision is plainly wrong and in violation of the purpose and intent of the zoning ordinance. Board of Zoning Appeals of Alexandria v. Fowler, 201 Va. 942, 948, 114 S.E.2d 753, 757-58 (1960)."
The "principles of law" to be applied by a board of zoning appeals considering a request for a variance are found in Code § 15.1-495(b). The first paragraph of subsection (b) empowers a board to grant a variance when "owing to special conditions a literal enforcement of the provisions [of a zoning ordinance] will result in unnecessary hardship". The second paragraph lists, in the alternative, "special conditions" and, in effect, defines "unnecessary hardship". Such a hardship occurs when "the strict application of the terms of the ordinance *142 would effectively prohibit or unreasonably restrict the use of the property" or create "a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant". Further qualifying the power to grant a variance, the third paragraph provides that a board cannot authorize a variance unless it finds:
"(1) That the strict application of the ordinance would produce undue hardship.
"(2) That such hardship is not shared generally by other properties in the same zoning district and the same vicinity.
"(3) That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance."
Hence, not only must an applicant show the existence of at least one of several "special conditions" which would cause compliance with a zoning ordinance to result in an "unnecessary hardship", but the board of zoning appeals must find that the three enumerated tests are satisfied. Tidewater Utilities v. Norfolk, 208 Va. 705, 711, 160 S.E.2d 799, 803 (1968).
Under the statutory scheme, findings by the board are crucial. "Any person. . . aggrieved by any decision of the board" is entitled to an appeal of right to the circuit court, and the court is empowered to "reverse or affirm, wholly or partly, or [to] modify the decision". Code § 15.1-497. Reading Code §§ 15.1-495, -497 together, we conclude the General Assembly intended that the record transmitted on certiorari reflect the findings underlying the board's decision. If it does not, the parties cannot properly litigate, the circuit court cannot properly adjudicate, and this Court cannot properly review the issues on appeal. See Burkhardt v. Board of Zoning Appeals, 192 Va. 606, 615, 66 S.E.2d 565, 570 (1951); accord, Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506, 522 P.2d 12, 113 Cal. Rptr. 836 (1974).
The Packers alleged in their application that "the development of adjacent property makes adherence to set back a hardship". The only reason expressly assigned by the Board for its decision was "[t]he development in the area." Absent the specific findings required by statute, we will assume for purposes of these appeals that, in the language of the court's letter opinion, "the Board . . . presumably . . . found that inability to build as close to the ocean as the average dwelling in the block was built . . . constitute[d] undue hardship."
According due deference to the Board's decision, we hold that the evidence does not support such a finding. Proximity to the ocean is doubtless a "privilege or convenience" coveted by every homeowner along the beach. But a zoning restriction upon that privilege does not constitute an "unnecessary hardship" within the meaning of Code § 15.1-495(b).
Because a facially valid zoning ordinance may prove unconstitutional in application to a particular landowner, Nectow v. Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842 (1928), some device is needed to protect landowners' rights without destroying the viability of zoning ordinances. The variance traditionally has been designed to serve this function. See generally 3 R. Anderson, American Law of Zoning § 18.02 (2d ed. 1977). In this role, the variance aptly has been called an "escape hatch", Lincourt v. Zoning Bd. of Warwick, 98 R.I. 305, 310, 201 A.2d 482, 485 (1964), or "escape valve", National Land & Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 512, 215 A.2d 597, 602 (1965). A statute may, of course, authorize variances in cases where no ordinance's application to particular property is not unconstitutional. However, the language used in Code § 15.1-495(b) to define "unnecessary hardship" clearly indicates that the General Assembly intended that variances be granted only in cases where application of zoning restrictions would appear to be constitutionally impermissible. Cf. Gayton Triangle v. Henrico County, 216 Va. 764, 767, 222 S.E.2d 570, 573 (1976). Manifestly, the Packers do not face a "hardship approaching confiscation", nor has their use *143 of their land been effectively prohibited or unreasonably restricted. The applicants already have a dwelling, which they did not seek to expand for ten years, and they can enlarge the house without violating the setback requirement by adding to the west side of the structure. The evidence shows that the Packers simply would prefer to expand to the east in order to have a better floor plan with a better view of the ocean.
The premise for the Board's decision was that the Packers should be entitled to build as close to the ocean as "the average of the houses along this block". As to the oceanfront setback requirement of the ordinance, four of the six houses are lawful nonconforming structures; the Packers' house and one other conform to the restriction. If, as the Board concluded, one owner of property complying with a restriction should be allowed to conform his structure to neighboring nonconforming structures, then every such owner would be entitled to do so. A board of zoning appeals could, by granting variances piecemeal, ultimately nullify a zoning restriction throughout the zoning district. But the statute provides that "all variances shall be in harmony with the intended spirit and purpose of the ordinance", and that "[n]o provision of § 15.1-495 shall be construed as granting any board the power to rezone property."
We hold that the evidence does not support a finding of hardship within the contemplation of the statute and that the authorization of the Packers' variance was an administrative infringement upon the legislative prerogatives of the local governing body. Accordingly, we will affirm the trial court's judgment that the Board's decision was "plainly wrong and in violation of the purpose and intent of the zoning ordinance".
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327015/ | 154 Ga. App. 135 (1980)
267 S.E.2d 792
CARRERAS et al.
v.
AUSTELL BOX BOARD CORPORATION et al.
58915.
Court of Appeals of Georgia.
Argued October 31, 1979.
Decided March 13, 1980.
Rehearing Denied March 26, 1980.
R. Michael Souther, Michael Mears, for appellants.
Wilbur C. Brooks, Ronald A. Lowry, for appellees.
SOGNIER, Judge.
This action for damages arose when a truck owned by defendant Austell Box Board Corporation (hereafter Austell) ran into the rear of the Carreras' automobile, which was stopped waiting for the traffic on a single-lane bridge. Austell's truck was being driven by one of its employees, Baxter, who was also a defendant below. The principal issue raised by plaintiff in the pretrial order was the negligent operation of Austell's truck by Baxter. However, an issue raised by the evidence was whether Austell was negligent in inspecting and maintaining the truck's brakes. The jury entered a verdict for the defendants and the Carreras' appeal, contending the trial court erred (1) by instructing the jury that it could not return a verdict for appellants against Austell unless it also returned a verdict for appellants against Baxter; (2) by failing to instruct the jury on recharge as to the difference between the potential liability of Austell based solely on the negligence of Baxter pursuant to the doctrine of respondeat superior, and the potential direct liability of Austell based upon its duty to keep the brakes of its truck in proper working order as *136 required by statute; (3) by denying appellant's motion for a new trial; and (4) by concluding and determining that no issue was raised as to the independent liability of Austell based on its failure to maintain properly the brakes on its truck, as the appellants did not raise the issue in the pretrial order. As both Enumerations 1 and 3 require reversal, we will confine our opinion to those two enumerations.
1. In regard to Enumeration 1, the trial court charged the jury that "[i]f you find no negligence on the part of the defendant driver, Baxter, then there could be no recovery against him or the defendant, Austell Box Board Corporation." This was error. Appellants' evidence at trial sought to establish two grounds for recovery; negligent operation of the truck by Baxter, and negligent inspection and maintenance of the truck's brakes by Austell. If the jury believed the driver Baxter was not negligent, then the trial court's instruction required the jury to find for Austell, the owner, even if the jury found Austell negligent in the inspection and/or maintenance of the brakes on the truck. However, Austell is liable for its negligence independent of any negligence on the part of its driver. See Cravey v. J. S. Gainer Pulpwood Co., 128 Ga. App. 465, 467 (197 SE2d 171) (1973). "The statutory duty to keep an automobile equipped with proper brakes is imposed on the owner, and the owner [Corporation] is liable for any injuries proximately caused by the defective condition of the brakes if he permits another person to operate it while it is in that condition, when he knows or through the exercise of ordinary diligence could and should have known of its defective condition. [Cits.] ... [a]nd when an injury can be traced directly to a wrongful act, and but for such wrongful act it could not reasonably be supposed that the injury would have resulted, this essentially antecedent act may be said to be the `proximate cause' of the injury." Gregory v. Ross, 214 Ga. 306, 311 (104 SE2d 452) (1958). Thus, if the jury believed Baxter was not negligent, the jury was prohibited, improperly from considering any allegation of negligence on the part of Austell. This was error. Lewis v. Harry WhiteFord, 129 Ga. App. 318 (199 SE2d 599) (1973).
2. As to Enumeration 3, in examining the pretrial order in this case, it is clear that appellants did not allege any acts of negligence on the part of Austell. However, the defendant's outline of the case in the pretrial order stated that "defendants were not guilty of any negligence which caused or contributed to the plaintiff's alleged injuries, by way of a sudden emergency created by a brake failure which the defendants were unable to foresee or prevent and, therefore, plaintiffs would not be entitled to recover any sum of the *137 defendants whatsoever." Further, defendants notified plaintiff in the pretrial order that one of the defense witnesses at trial would be "[a] mechanic at Austell Box Board concerning condition of brakes following accident." Both sides presented evidence on this issue without objection by any party or the court.
Appellants contend that even though the pleadings were not amended formally, such an amendment is not necessary as Code Ann. § 81A-115 (b) (CPA § 15 (b)) provides, in pertinent part, that "[W]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary ... to raise these issues may be made upon motion of any party at any time, ... but failure so to amend does not affect the result of the trial of these issues ..." Appellees, relying on Code Ann. § 81A-116 (5) (CPA § 16-5), contend that the pretrial order limits the issues for trial to those not disposed of by admissions or agreements of counsel and when entered, such order controls the subsequent course of the action unless modified at trial to prevent manifest injustice. As there was no admission or agreement of counsel on the issue of Austell's negligence, and appellant did not specify such an issue in the pretrial order, we are faced with the question of whether the limitations of CPA § 16-5 control the issues which may be covered in the court's charge to the jury, or does CPA § 15 (b) permit litigation of an issue not raised by the pleadings or the pretrial order.
"The purpose of modern pleading is to facilitate determination of the truth; ..." McDonough Const. Co. v. McLendon Elec. Co., 242 Ga. 510, 512 (250 SE2d 424) (1978). "`Rule 15 is one of the most important of the rules that deal with pleadings. It re-emphasizes and assists in attaining the objective of the rules on pleadings: that pleadings are not an end in themselves, but are only a means to the proper presentation of a case; that at all times they are to assist, not deter, the disposition of litigation on the merits.' 3 Moore's Federal Practice § 15.02[1], p. 15-13. `The first part of Rule 15 (b) provides that if issues are tried with the express or implied consent of the parties, "they shall be treated in all respects as if they had been raised in the pleadings."... In effect, therefore, the parties may, by express consent, or by the introduction of evidence without objection, amend the pleadings at will ... Implied consent usually is found where one party raises an issue material to the other party's case, or where evidence is introduced without objection ... It should be noted that Rule 15 (b) is not permissive in terms: it provides that issues tried by express or implied consent shall be treated as if *138 raised by the pleadings.'" McDonough, supra, at 514.
Evidence was introduced by appellants, without objection, on the issue of failure of the truck's brakes to stop properly, and the type maintenance performed on the truck by Austell. Appellees were not surprised by such evidence, as their outline of the case in the pretrial order stated that appellees were not guilty of any negligence caused by a brake failure, and they listed a witness who would testify to the condition of the brakes after the accident. This issue was litigated and the court charged the jury on this issue. The fact that appellants did not raise the issue in the pretrial order is not controlling where evidence is introduced on the issue without objection; the opposing party is not surprised; and the issue is litigated. Brooks v. Wooton, 355 F2d 177 (1) (2d Cir. 1966). Rule 16 must always be considered in light of the mandatory provisions of Rule 15 (b), 6 Wright & Miller, Federal Practice and Procedure: Civil § 1491, p. 456; 462-463, § 1493, and the test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend, offer evidence or was misled. 3 Moore's Federal Practice § 15.13[2], p. 15-172.
Applying the rules discussed above to the instant case, we find the issue of Austell's negligence in inspecting and maintaining the brakes on its truck was tried by implied consent of the parties, without objection by the parties or the court. Hence, the plaintiffs, were not required to formally amend the pretrial order, and the trial court erred in denying plaintiff's motion for a new trial on the ground (stated by the court) that plaintiffs did not raise this issue in the pretrial order and never sought to amend their complaint.
Judgment reversed. McMurray, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3063752/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 17, 2009
No. 08-13464
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-14215-CV-KMM
JUDITH A. BUNNELL,
Plaintiff-Appellant,
versus
J.C. PENNEY CORPORATION, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 17, 2009)
Before BARKETT and FAY, Circuit Judges, and TRAGER,* District Judge.
PER CURIAM:
*
Honorable David G. Trager, United States District Judge for the Eastern District of New
York, sitting by designation.
Judith Bunnell appeals from an adverse summary judgment in favor of J.C.
Penney on her complaint alleging age discrimination, in violation of the Florida
Civil Rights Act of 1992, Fla. Stat. § 760.10(1)(a) (“FCRA”). The parties do not
dispute that Bunnell established a prima facie case. The only issue here is whether
the district court erred in granting Penney’s motion for summary judgment on the
basis that Penney’s reason for terminating Bunnell’s employment was not a pretext
for age discrimination.
Upon review of the record, we find disputed issues of material fact that
preclude summary judgment. Thus, we vacate the summary judgment and remand
for further proceedings.
VACATED and REMANDED.
2 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1327099/ | 267 S.E.2d 717 (1980)
Archie ROSE
v.
HERRING TRACTOR & TRUCK CO. and International Harvester Company.
No. 798SC1034.
Court of Appeals of North Carolina.
July 15, 1980.
*719 Barnes, Braswell & Haithcock by Michael A. Ellis and W. Timothy Haithcock, Goldsboro, for plaintiff-appellant.
Taylor, Warren, Kerr & Walker by Robert D. Walker, Jr. and John H. Kerr, III, Goldsboro, for defendant-appellee, Herring Tractor and Truck Company.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by C. Ernest Simons, Jr., Raleigh, for defendant-appellee, International Harvester Company.
CLARK, Judge.
The plaintiff does not bring forth any argument or assignment of error or make any argument in his brief on the issues of breach of warranty or on the question of liability of International Harvester. The plaintiff therefore waives any assignment of error on these questions. N.C.App.R. 28; Crockett v. First Federal Savings and Loan Association, 289 N.C. 620, 224 S.E.2d 580 (1976); State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976).
The only question properly raised for review by this Court is whether the trial court erred in directing a verdict for the defendants. The defendants contend that the plaintiff was guilty of negligence as a matter of law because plaintiff's employee continued to drive the tractor on a public highway with knowledge that the brakes were not in proper working order and were unsafe. On the other hand, plaintiff contends that he was not contributorily negligent because he was acting in reasonable reliance upon the statements or representations of the employees of Herring Tractor that the tractor brakes were in proper working order. We do not agree with plaintiff's contentions.
"The right to rely upon the assumption that another will exercise due care is not absolute . . . and must yield to the realities of the situation to the extent that if the plaintiff observes a violation of duty which imperils him, he must be vigilant in attempting to avoid injury to himself." Harris v. Bingham, 246 N.C. 77, 79, 97 S.E.2d 453, 455 (1957). "[W]here a person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his recovery." Dunnevant v. R. R., 167 N.C. 232, 234, 83 S.E. 347, 348 (1914); Cook v. Winston-Salem, 241 N.C. 422, 85 S.E.2d 696 (1955) (quoting the above language, held nonsuit properly allowed at close of plaintiff's evidence). There is no dispute about the relevant facts as quoted in the statement of facts above: plaintiff's partner and employee both knew of the defective condition of the brakes and nonetheless caused the tractor to be operated on a public highway. "Here, according to plaintiff's [evidence], the alleged known defective condition was obvious, not latent; and such defective condition was of such nature that the hazards reasonably foreseeable from the continued use and operation of the [tractor] were patent." Nationwide Mutual Insurance Co. v. Don Allen Chevrolet Co., 253 N.C. 243, 251, 116 S.E.2d 780, 786 (1960). The willingness of plaintiff's employee-driver and partner-owner to operate the tractor on a public highway with defective or malfunctioning brakes and knowledge thereof is negligence as a matter of law. G.S. 20-124; Wilcox v. Glover Motors, Inc., 269 N.C. 473, 153 S.E.2d 76 (1967) (duty on both owner and driver who have knowledge); Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246 (1945). The entry of directed verdict for the defendant was proper.
Affirmed.
VAUGHN and HARRY C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327104/ | 226 Ga. 880 (1970)
178 S.E.2d 187
ALF
v.
ALF; and vice versa.
26146, 26147.
Supreme Court of Georgia.
Argued October 13, 1970.
Decided November 12, 1970.
*881 L. D. Skaggs, for appellant.
Rupert A. Brown, for appellee.
ALMAND, Chief Justice.
The main appeal in this case is from an order denying a petition for habeas corpus. In his petition, appellant sought to change the custody of two minor children, who were placed in the custody of their mother, the appellee, by virtue of a final divorce decree entered in Clarke Superior Court in November, 1969.
The cross appeal is from an order denying the motion of the appellee to dismiss the appellant's motion for a new trial.
On March 28, 1970, the court, after a hearing, entered an order denying the prayers of the father to change the custody of the two minors. On April 24, 1970, the father, appellant here, filed a motion for a new trial on the general grounds. The mother, appellee here, filed her motion to dismiss the motion for a new trial on the ground that a direct appeal, and not a motion for a new trial, was the only way to review the judgment in a case involving the custody of children.
Both motions being denied, the case is before us on the main appeal by the father and cross appeal by the mother, each assigning error on the order.
1. We consider first the cross appeal.
Section 2 of the 1965 Appellate Practice Act (Ga. L. 1965, p. 18; Code Ann. § 6-702) provides: "A motion for new trial need not be filed as a condition precedent to appeal or consideration of any judgment, ruling or order in any case, but in all cases where motion for new trial is an available remedy the party entitled thereto may elect to file the motion first, or appeal directly."
Code Ann. § 30-127 (Ga. L. 1962, pp. 713, 714) provides that in cases of divorce where the children of the parties are awarded to one of the parents, the court, "in the exercise of a sound discretion, may look into all the circumstances of the parties,... make a different disposition of the children."
In Johnson v. Johnson, 131 Ga. 606, 607 (62 S.E. 1044) it was said: "... This section of the code contemplates that *882 the judge, and not the jury, shall dispose of the children of the marriage. If the court should award the custody to the mother, and the father desired to except to the decree in this particular, error should be assigned upon the decree. It is not a ground for a new trial."
Basing its decision on Johnson v. Johnson, supra, this court, in Gibson v. Wood, 207 Ga. 282 (61 SE2d 125) held: "Where the losing party desires to except to a judgment awarding the custody of a child, the proper procedure is by direct exceptions to the decree, and not by motion for a new trial."
At the time the 1965 Appellate Practice Act was adopted, in a case involving the custody of children between the parents, a motion for a new trial was not an available remedy to review such judgment.
The appellee in the cross appeal relies on the case of Cody v. Cody, 221 Ga. 677 (146 SE2d 778) where it was held that a motion for a new trial is a proper remedy for attacking a decree or judgment holding a party in contempt for failure to pay alimony. This case was decided after the adoption of the 1965 Appellate Practice Act. The holding in that case, in effect, was that in a contempt case for failure to pay alimony, a motion for a new trial was an available remedy under the 1965 Act. That case is not controlling here. It might be noted that this court, in Cody v. Cody, supra, cited in support of its decision, Gibson v. Wood, supra.
It was error to overrule the motion to dismiss the motion for a new trial.
2. The notice of appeal (August 13, 1970) from the order of March 28, 1970, denying the motion of the appellant to change the custody of the minor children was not filed within 30 days from the date of the judgment. Therefore, Code Ann. § 6-803 (Ga. L. 1968, pp. 1072, 1077) requires that the main appeal be dismissed.
Judgment on cross-appeal reversed; main appeal dismissed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327103/ | 154 Ga. App. 250 (1980)
267 S.E.2d 858
COLLINS
v.
MARTIN et al.
59136.
Court of Appeals of Georgia.
Submitted January 11, 1980.
Decided April 7, 1980.
Anthony R. Cueto, for appellant.
C. Richardson Cook, for appellees.
SOGNIER, Judge.
This is an appeal from an order of the Bibb County Juvenile Court permanently terminating the appellant's parental rights to her daughter. The child's paternal grandparents brought a petition in juvenile court alleging deprivation. After a hearing, the trial court found the child deprived and ordered that the paternal grandparents be awarded temporary custody of the child. The court further ordered a subsequent hearing be held to give the appellant an opportunity to show that she could establish a home suitable for the care of the child. At a hearing held two years after the initial hearing, the court found that the deprivation which existed was likely to continue and the situation was not likely to improve. The court terminated appellant's parental rights and awarded custody of the child to the paternal grandparents. The issue presented on appeal is whether there was sufficient evidence for the court to find *251 the probability of continuous deprivation so that the mother's rights to her child should be terminated. We find that the evidence did not support the court's order.
Appellant had been married to the son of the appellees, who now have custody of the child. While the appellant and the father of the child were married, he took the child to his parents and asked that they look after the child since he and his wife (the appellant) had separated. At the time, appellant had no job and testified that although she did not consent to the grandparents having custody of her daughter, as long as the child was with her father appellant did not object to her daughter living with the grandparents. Subsequently, the grandparents brought a petition in juvenile court alleging that the child was deprived and that appellant's parental rights should be terminated.
At the initial hearing, evidence was introduced to show that the home in which appellant had lived with her daughter, then two years old, was substandard with regard to cleanliness; that the child had a severe diaper rash; that appellant and her husband argued and used profane language in front of the child; that appellant and her husband had had sexual relations in front of the child; and that the child had been left unattended on occasion. There was also evidence of sexual promiscuity. The juvenile court found the child to be deprived and awarded the grandparents temporary custody of the child until such time as the court could determine if said deprivation would continue. At a subsequent hearing, there was evidence that appellant had given birth to a second child out of wedlock and that appellant had moved to Indiana and was drawing welfare. Evidence was also introduced that appellant had changed her lifestyle and had established a home for herself and her second child in Indiana; that she had been employed prior to giving birth to her second child; that she was properly caring for the second child; and that she was to begin secretarial training for which she would be paid. The court also received into evidence various reports from social service agencies in Indiana which indicated that appellant's home was adequate and that it could not be said that appellant should not have custody of her daughter. The court found the deprivation likely to continue and that appellant had not shown a situation which would warrant returning the child to its mother. The court, in accordance with Code Ann. § 24A-3201 (a) (2), terminated appellant's parental rights.
In R. C. N. v. State of Ga., 141 Ga. App. 490 (233 SE2d 866) (1977), this court faced a similar situation regarding the termination of the parental rights of a mother. The trial court's *252 decision was reversed in that case even though the evidence showed that the mother was unemployed and had no steady source of income; that she had lived at several different addresses; that she had formerly been in trouble with the police; that she had missed several appointments to see the child; that the home in which she lived had been observed to be unclean; and that she was known to use profane language.
We find the court's reasoning in R. C. N. applicable to the present case. "Seldom does the state wield so awesome a power as when it permanently cuts the family ties between parent and child. While the state may not sit blindly idle as a child suffers unconscionable hardship, neither may it blithely intercede simply because the child's lot is substandard. A mother's failure to live up to societal norms for productivity, morality, cleanliness and responsibility does not summarily rob her of the right to raise her own offspring, nor does it end the child's right to be raised by its own mother. As expressed by Justice Ingram in Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976): `There can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring. To terminate that right is to sever that right for the future as effectively in law as if it never existed. It is a tearing of the flesh and it can be done by the court only under the most carefully controlled and regulated circumstances for the sake of the child. There must be compelling facts to establish the necessary lack of "proper parental care or control" justifying the government's intrusion in cutting natural family ties.'" Id., p. 491.
The trial judge has a great deal of discretion in cases such as this and his judgment will ordinarily not be disturbed. Yde v. Yde, 231 Ga. 506, 507 (202 SE2d 423) (1973); Powell v. Dept. of Human Resources, 147 Ga. App. 251, 253 (248 SE2d 533) (1978). However, the evidence must be enough to show that the deprivation found will be likely to continue and likely to cause serious harm to the child. We do not find such evidence here. On the contrary, the unrebutted evidence showed that the appellant had changed her lifestyle and was already providing an adequate home for her second child. In reviewing other cases involving termination of parental rights, we find "[t]he thread running through these cases ... manifests moral unfitness, physical abuse and abandonment by the parent ..." Elrod v. Dept. of Family &c. Services, 136 Ga. App. 251, 255 (220 SE2d 726) (1975). The court has taken a stern view of parental rights termination, sustaining them only where there has been evidence of profoundly detrimental and egregious parental conduct underlying the statutorily mandated determination of *253 deprivation and probable continued deprivation. Madray v. Dept. of Human Resources, 146 Ga. App. 762 (247 SE2d 579) (1978); R. C. N. v. State of Ga., supra, 492. See Wynn v. Dept. of Human Resources, 149 Ga. App. 559 (254 SE2d 883) (1979) (physical abuse of child); Madray v. Dept. of Human Resources, supra, (mother charged with voluntary manslaughter after death of newborn child); Watkins v. Dept. of Human Resources, 143 Ga. App. 208 (237 SE2d 696) (1977) (father of child mentally retarded with drinking problem); Roberson v. Dept. of Human Resources, 148 Ga. App. 626 (252 SE2d 57) (1979) (mother had been incarcerated and was drug user); George v. Anderson, 135 Ga. App. 273 (217 SE2d 609) (1975) (father had murdered children's mother and grandmother); Childers v. Dept. of Family &c. Services, 147 Ga. App. 825 (250 SE2d 564) (1978) (suspected child abuse, children left without adequate supervision); In the Interest of K. C. O., 142 Ga. App. 216 (235 SE2d 602) (1977) (sixteen-year-old mother with three illegitimate children diagnosed as incipient schizophrenic).
The appellant's conduct, while not exemplary, cannot be said to be so profoundly detrimental or egregious as to permanently terminate her rights to her child.
Judgment reversed. Deen, C. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327139/ | 178 S.E.2d 95 (1970)
10 N.C. App. 191
Ray G. REGISTER and wife, Elizabeth B. Register
v.
Joseph M. GRIFFIN, Trustee, and Piedmont Production Credit Association.
No. 7026SC440.
Court of Appeals of North Carolina.
December 30, 1970.
*99 H. Parks Helms, Charlotte, for plaintiffs.
Joseph M. Griffin, Charlotte, for defendants.
*100 BROCK, Judge.
The evidence by each side dwells at length upon dollar figures, i. e. the face amounts of notes, the interest accrued on the various notes, and the payments and applications thereof to interest and principal due. Obviously a summary of the evidence would be difficult to follow, and, in our opinion, would serve no useful purpose.
All of plaintiffs' assignments of error are directed to two contentions asserted by plaintiffs. First, plaintiffs contend that the 21 November 1963 deed of trust secures only the note which was executed contemporaneously therewith, and specifically that the said deed of trust does not secure the four additional notes executed in 1964 and 1965. And it is their contention that they were not in default in payments on the 21 November 1963 note; therefore, they assert the trustee had no authority to foreclose. Second, plaintiffs contend that, even if it should be determined that the trustee was correct in instituting foreclosure proceedings, defendants are not entitled to recover attorney fees from plaintiffs under the provisions contained in the several notes.
Plaintiffs' first contention.
The deed of trust executed by plaintiffs, as set out in the foregoing statement of facts, contains the following provision: "THEREFORE, in consideration of said advances and One Dollar ($1.00) paid to Undersigned, receipt acknowledged, and for better securing said indebtedness, and any additional advances (not exceeding an equivalent amount) that may subsequently be made by Borrower to Lender, and all renewals and extensions thereof, and all other indebtedness now due or hereafter to be contracted, * *" (emphasis added). By this provision the parties contemplated that additional loans not exceeding $12,200.00 made by defendants to plaintiffs would be secured by the deed of trust. Also, each of the four additional notes executed by plaintiffs in 1964 and 1965 contains the following provision: "The maker hereof, by executing this note, amends his application for loan heretofore submitted, and requests an increase equal to the amount of this note * * *" Although the provisions of the deed of trust, and the provisions of the notes are not models to be followed, they are a sufficient agreement as between the contracting parties, and, we hold that as between the original parties the deed of trust secures the four additional notes. We are not called upon to decide, and specifically do not decide, the effect of the provisions upon an innocent third party.
There was sufficient evidence to sustain the finding that the notes are in default. Therefore, it follows that the conclusion that the trustee has the right to proceed with foreclosure of the deed of trust is correct and it is hereby affirmed.
Plaintiffs' second contention.
After the dismissal of plaintiffs' first action defendant charged plaintiffs' account with $691.20. In his conclusions of law, Judge Froneberger concluded "[t]hat the defendant Piedmont Production Credit Association rightfully charged the plaintiffs $691.20 for attorney fees previously incurred * * *" Plaintiffs' except and assign this conclusion as error. Also, Judge Froneberger concluded "[t]hat the firm of Griffin and Gerdes [defendants' attorneys] is rightfully due compensation for defending and trying this action, and said compensation in the amount of $500.00 should be charged to the plaintiffs herein." Plaintiffs except and assign this conclusion as error. These assignments of error are sustained.
Each of the notes executed by plaintiffs contained the following provision: "We also promise to pay all costs of collection including a reasonable attorney's fee of not less than ten per *101 centum of the total amount due hereon, unless contrary to the laws of the state where this note is executed." At the time of the execution of the notes in 1963, 1964, and 1965, such a provision for attorney fees in a note was contrary to the laws of North Carolina. G.S. § 25-8 provided in part that "* * * a provision incorporated in the instrument to pay counsel fees for collection is not enforceable * * *" This statutory provision became a part of the contracts between the parties and the repeal of G.S. § 25-8 in 1965 and the enactment of G.S. § 6-21.2 in 1967, which permits such a provision, did not vary the terms of the original contracts between the parties. Article I, § 10 [1], Constitution of the United States. Therefore, as between the parties, the terms of the notes relative to attorney fees is inapplicable and contrary to law.
This holding does not affect any rights defendants may have to make a motion in the cause under G.S. § 1A-1, Rule 65(e).
The $691.20 attorney fees which defendant charged to plaintiffs' account is included in the figure of $5,358.69 denominated as "interest" in the judgment; therefore this interest figure must be modified.
The judgment entered by Judge Froneberger is modified to read as follows:
It is therefore ordered, adjudged and decreed:
1. That the defendant Piedmont Production Credit Association is owed by the plaintiffs the sum of $14,065.00 principal plus $4,667.49 interest up to February 24, 1970, plus interest at a daily rate thereafter at the rate of $2.312 per day.
2. (Deleted)
3. That the cost of this action be taxed against the plaintiffs.
4. That the defendant Piedmont Production Credit Association is entitled to have the deed of trust, as security for the five notes, foreclosed through its trustee, the defendant Joseph M. Griffin, after due advertisement according to law.
5. That the court retains jurisdiction of this matter pending foreclosure and full settlement thereof.
Except as modified as above, the judgment appealed from is affirmed.
Modified and Affirmed.
MORRIS and GRAHAM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327076/ | 153 Ga. App. 888 (1980)
267 S.E.2d 304
COLEMAN
v.
THE STATE.
59363.
Court of Appeals of Georgia.
Submitted February 4, 1980.
Decided March 13, 1980.
Enoch Overby, for appellant.
Charles Crawford, District Attorney, for appellee.
McMURRAY, Presiding Judge.
Defendant was indicted, tried, and convicted of the offense of burglary. Defendant appeals. Held:
At trial, the state's witnesses included a confessed accomplice of the defendant who testified that he broke into and entered a home while defendant served as a lookout. Prior to eliciting this testimony the state *889 inquired as to the voluntariness of his testimony. This witness testified that no one had made any promises to him to get him to testify and that he was testifying of his own free will.
At the sentencing hearing for both this defendant and the accomplice, a colloquy developed between the trial court and counsel during which the assistant district attorney remarked in regard to eliciting the accomplice's testimony and to the sentencing of the accomplice that the accomplice came forward, entered his plea, assisted the state and there should be more favorable treatment toward him in assisting the state. The assistant district attorney also stated that no promises had been made to the accomplice and there was no agreement. At no place does it appear in the transcript and record that the state made any recommendation to the court as to what sentence or length of sentence should be imposed upon the defendant or the accomplice. Furthermore, it appears that the trial court imposed a five-year sentence (two years to serve and the remaining three years on probation) upon the defendant and also upon the accomplice.
Defense counsel, both prior to and following the assistant district attorney's remarks, made several comments as to the fairness of the district attorney's office in recommending favorable treatment to criminal defendants who had assisted the state in the prosecution of cases in which they were involved. At no time, however, did the defense counsel make any motion for mistrial in the light of this or any other remark by the assistant district attorney nor was any objection made to the accomplice's testimony upon the trial of the case. No issue having been raised or submitted for ruling by the trial court, there is nothing for consideration on appeal. Painter v. State, 237 Ga. 30, 33 (226 SE2d 578); Tyler v. State, 147 Ga. App. 394, 395 (249 SE2d 109).
Certainly it would be incredulous to suggest that a criminal defendant faced with conviction and punishment will not recognize that an implication inherently exists that if he cooperates with the state and aids in the prosecution that he might receive some support as a result of his cooperation. This belief most certainly exists without regard to whether it is encouraged. *890 Conduct which must be disclosed to the jury is the encouragement of this belief as such conduct is viewed as strongly affecting the credibility of the witness. See in this regard Price v. State, 141 Ga. App. 335, 336 (2) (233 SE2d 462); Fleming v. State, 236 Ga. 434, 438 (224 SE2d 15); Giglio v. United States, 405 U.S. 150 (92 SC 763, 31 LE2d 104). In this case there is no evidence of any promises to the accomplice by the prosecution and no non-disclosure in violation of the requirements of due process.
Judgment affirmed. Smith and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327081/ | 267 S.E.2d 454 (1980)
Bertha Ann MUNDY
v.
Victor P. ARCURI and Phyllis P. Arcuri, his Wife.
No. 14686.
Supreme Court of Appeals of West Virginia.
June 17, 1980.
*456 Herschel Rose, Rose, Southern & Padden, Fairmont, for appellants.
Harry R. Cronin, Jr., Fairmont, for appellee.
*455 HARSHBARGER, Justice:
On August 5, 1976, Victor and Phyllis Arcuri sold to Bertha Ann Mundy ten acres and twelve poles of real property in Taylor County on which there was a tavern, with fixtures, a pavilion, and a house. The conditional sale contract price was $169,000, of which $25,000 was paid in cash, and the balance was payable in monthly installments of $1,638.78.
Mundy took possession on September 1, 1976, and immediately opened the tavern for business; but a fire gutted it on October 31. Several days after the fire, the Acuris gave Mundy notice that their contract was terminated because she failed to have adequate fire insurance.
Mundy asked the Arcuris' permission to go on the property and rebuild. She had already obtained ABCC authority to use the pavilion as a tavern until she could restore the burned building. The Arcuris refused, locked her off the property, and sold some of the fixtures. They received an insurance check for $11,900.00, payable to them and Mundy; it remains uncashed. She sued to get the property, or in the alternative, for refund of the $25,000. The trial court ordered that her money be returned, finding that the Arcuris had waived their right under the contract to require additional fire insurance protection; and they appeal.
The pertinent part of the contract was:
The buyer shall, beginning on September 1, 1976, pay all taxes and levies made against said property as and when the same become due and shall obtain, maintain, and pay for, adequate fire insurance on the improvements situate on said property in the policy evidencing which shall be written in the name of Victor P. Arcuri and Phyllis P. Arcuri. . . . If the buyer fails or refuses to pay said taxes or insurance premiums, as herein required, such failure shall constitute a default hereunder and be treated and considered the same as though the buyers [sic] had failed or neglected to pay the monthly installments hereunder and sixty (60) days had elapsed thereunder and this contract shall become null and void.
Mundy did not purchase fire insurance for 1976. Her evidence, contradicted by the Arcuris, tended to prove they told her at the contract signing that they had already purchased fire insurance and she would be saved that money for the year. The Arcuris objected that this testimony violated the parol evidence rule.
Prior or contemporaneous statements that contradict clear, unambiguous language of a written contract are inadmissible. North American Royal Coal Co. v. Mountaineer Developers, Inc., 239 S.E.2d 673 (W.Va.1977), Syllabus Point 1; Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971); Kanawha Banking and Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947); 17 Am.Jur.2d Contracts §§ 260, 261; 32A C.J.S. Evidence § 998; 4 Williston on Contracts §§ 631, 639 (3d ed. Jaegger 1961). In addition, there must be evidence of consideration to prove an oral modification of a written contract. Bischoff v. Francesa, 133 W.Va. 474, 56 S.E.2d 865 (1949); Charleston Lumber Co. v. Friedman, 64 W.Va. 151, 61 S.E. 815 (1908), Syllabus Point 3; 17 Am. Jur.2d Contracts § 460; 17A C.J.S. Contracts §§ 376, 377. No evidence of consideration for a modification was introduced.
A problem with appellants' parol evidence argument is that the trial court did not admit the testimony to contradict, alter or modify a written contract, but to prove that the Arcuris waived that contractual provision for 1976. Waiver or estoppel in pais is different from modification. In order to support estoppel or waiver, a party *457 must have been induced to rely on certain facts, and must have done so to his detriment. Nisbet v. Watson, 251 S.E.2d 774 (W.Va.1979), Syllabus Point 3; Humble Oil & Refining Co. v. Lane, 152 W.Va. 578, 165 S.E.2d 379 (1969); Helmick v. Broll, 150 W.Va. 285, 144 S.E.2d 779 (1965), Syllabus Point 2; 31 C.J.S. Estoppel § 59; 28 Am. Jur.2d Estoppel and Waiver § 27; 5 Williston on Contracts § 691.
One who asserts waiver or estoppel has the burden of proving it. Hoffman v. Wheeling Savings & Loan Ass'n, 133 W.Va. 694, 57 S.E.2d 725 (1950); 31 C.J.S. Estoppel § 160; 28 Am.Jur.2d Estoppel and Waiver § 146; 50 A.L.R. 971. Mundy introduced her testimony and the testimony of a friend who was present at the contract signing to prove that the Arcuris made representations upon which she relied to her detriment. She also produced testimony to indicate that the Arcuris did, in fact, maintain the fire insurance, refused to add her name as a beneficiary of the policy, and never suggested that she should purchase any additional insurance for that year.
Cross-examination of Mr. Arcuri disclosed that the amount of coverage was satisfactory to him before the sale:
COUNSEL: That total insurance that you said you had on that main building [tavern] on the place was $11,900.00, is that correct?
ARCURI: Approximately.
Q: And your testimony was to the effect that the building was worth $100,000.00, isn't that correct?
A: That is correct.
Q: Did you consider the $11,900.00 adequate for your own purposes?
A: I figure it was, because I owned it, and it didn't make that much difference to me. I owned the property.
Q: Did you ever, after this contract was entered into, in your capacity as her consultant, or in your capacity as the other party, suggest to her that she should increase the insurance on those various buildings on these grounds?
A: No, I did not.
Q: You didn't increase any of them yourself either, did you?
A: I did. I did increase it, the previous year. It was lower than that, and I increased it the next time.
Q: But you had made no increase after this contract was signed?
A: No. No.
Q: So you felt secure in the type of insurance you had on it at that time?
A: That is correct.
The trial court found as fact that on August 31 the Arcuris knew about the fire insurance coverage, but did not complain about it until after the fire. It was too late then for them to object that she did not have enough insurance.
Where a party stands by and sees another who, in good faith, deals with property inconsistent with the first person's interest and that person makes no objection, he is estopped to deny the validity of the action on the part of the second person.. . . Thaxton v. Beard, 157 W.Va. 381, 201 S.E.2d 298 (1973), Syllabus Point 2.
Where a party knows his rights or is cognizant of his interest in a particular subject-matter, but takes no steps to enforce the same until the condition of the other party has, in good faith, become so changed, that he cannot be restored to his former state if the right be then enforced, delay becomes inequitable, and operates as an estoppel against the assertion of the right. This disadvantage may come from death of parties, loss of evidence, change of title or condition of the subject-matter, intervention of equities, or other causes. When a court of equity sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief. Carter v. Price, 85 W.Va. 744, 102 S.E. 685 (1920), Syllabus Point 3 (emphasis added).
We will not interfere with a trial court's finding of fact unless it is clearly wrong and against the preponderance of evidence. *458 Frasher v. Frasher, 249 S.E.2d 513 (W.Va. 1978); Mahoney v. Walter, 157 W.Va. 882, 205 S.E.2d 692 (1974); McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972); see generally, West Virginia Rules of Civil Procedure, Rule 52(a).
We affirm its conclusion that the Arcuris waived the contract's fire insurance provision for 1976-77. Also, we affirm that the Arcuris are to return Ms. Mundy's $25,000 down payment and that the contract is rescinded. They keep the insurance money; we assume the trial court considered her installment payments made before the fire to be equivalent to the reasonable rental value of the property.
There is no need for us to discuss other aspects of the transaction because this disposition determines all matters raised on appeal fairly requiring decision.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327095/ | 154 Ga. App. 118 (1980)
267 S.E.2d 651
DEPARTMENT OF TRANSPORTATION
v.
HARRISON et al.
59495.
Court of Appeals of Georgia.
Argued February 7, 1980.
Decided March 21, 1980.
J. Thomas Whelchel, for appellant.
Robert W. Harrison, Jr., for appellees.
DEEN, Chief Judge.
An interlocutory appeal has been granted to review an order of the Superior Court of Camden County which denied the Department of Transportation's motion to dismiss appellees' "response" to appellant's declaration of taking. Held:
Appellant filed its declaration of taking against certain real property on April 26, 1979, and it was served on Kenneth L. Harrison, Jean P. Harrison, C. S. Edwards, and James Larry King. A hearing date was set for June 26, 1979, the notice was posted at the courthouse, and it was published in a local newspaper on May 3 and May 10, 1979. Mrs. Nancy W. King apparently appeared at the hearing and laid claim to the property contending that she held title to the property under a warranty deed dated May 7, 1979, and recorded May 17, 1979. On her motion, the trial court rescheduled the hearing for July 10, 1979. No transcript of the June 26, 1979, hearing appears in the record. On July 5, 1979, she filed a "response" to appellant's declaration of taking contending that she was the sole owner of the property, entitled to receive all compensation paid for the land, and sought a jury trial on the issue of compensation.
Clearly Mrs. King's "response" is an appeal. Code Ann. § 95A-610 makes it incumbent upon a dissatisfied condemnee to file notice of appeal within thirty days after service of notice. Dept. of Transp. v. Brooks, 143 Ga. App. 872 (240 SE2d 163) (1977); Dept. of Transp. v. Massengale, 141 Ga. App. 70 (232 SE2d 608) (1977); Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975). Code Ann § 95A-606 provides: "Upon the filing of the petition and declaration, the same shall be served in the following manner: (a) Where the owner or owners of such property, or any person having a claim against or interest in the same, are residents of this State, the petition and declaration shall be served upon such persons personally and, in cases where such persons are residents of the State but not of the county in which such property is located, such *119 service shall be by second original, as in other cases; ...(g) In all instances, and in addition to the service hereinbefore provided for, the condemnor shall, at the time of filing the petition and declaration of taking, cause a copy of such proceedings to be posted on the bulletin board at the courthouse; and, in addition thereto, such advertisement shall be published in the official newspaper of the county in which such property is located, which notice shall describe the property taken, so as to identify the same, and shall give the name or names of the owners of such property, or persons having an interest in or claims against such property, so far as the same may be known, and such notice shall be published in said newspaper once each week for two weeks subsequent to the filing of such petition and declaration." At the time of filing the declaration of taking and service upon the owners of record, the Department of Transportation was not required to personally serve Mrs. King because she was not an owner of record and her interest was unknown to the condemnee at the time the condemnation petition was filed. Therefore, service by publication was sufficient. Code Ann. § 95A-605 (b) provides that upon the filing of the declaration of taking and deposit into the court of the sum of money estimated in the declaration as just compensation, "title to said land in fee simple absolute, or such lesser interest as is specified in said declaration, shall vest in the condemnor and said land shall be deemed to be condemned and taken for the use of the condemnor; and the right to just compensation for the same shall vest in the persons entitled thereto." As the record shows that the condemnor complied with the statutory requirements, title vested in the Department of Transportation and an attempted conveyance to appellee after that date did not pass title or give appellee a right to compensation from the condemnor. Appellee's reliance upon Knight v. Dept. of Transp., supra, is misplaced. In that case, a property owner with an interest existing at the time the petition was filed had not been served.
Appellee's contention that she was entitled to file her appeal up to and including the date required by the statute for determination of the time of possession is without merit. Code Ann. § 95A-608 provides: "Upon the filing of a declaration of taking, the court shall have power to fix the time, the same to be not later than 60 days from the date of filing of the declaration of taking, as provided in section 95A-605, within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner..." This Code section applies only to possession. The time for filing a notice of appeal is contained in § 95A-610 and is controlling in all cases where an appeal is desired. *120 The advertisement contained a clear statement as to the right of appeal and the time allowed for an appeal.
Judgment reversed. Birdsong and Sognier, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327133/ | 122 Ga. App. 754 (1970)
178 S.E.2d 735
ACTION INDUSTRIES, INC.
v.
REDISCO, INC.
45619.
Court of Appeals of Georgia.
Submitted September 17, 1970.
Decided October 16, 1970.
Rehearing Denied November 5, 1970.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Robert W. Beynart, for appellant.
John E. Sacker, Jr., for appellee.
DEEN, Judge.
In an action filed on February 27, 1970, in the Civil and Criminal Court of DeKalb County, the defendant Action Industries, Inc., a nonresident foreign corporation, was served under Georgia's Long Arm Statute (Code Ann. § 24-113.1 et seq.) by personal service on its president dated March 2, 1970, at its place of business in Elkhart, Indiana. The appearance date specified on the process was the first Monday in April 1970, which was in fact April 6, more than 30 days after the defendant was served.
*755 The motion to quash, denial of which is the subject of this appeal, is based on the fact that under Ga. L. 1968, pp. 2928, 2933, the DeKalb County court "shall have monthly terms beginning on the first Monday of each month. All suits filed must be filed twelve days before the beginning of the term"; that there is no time limit set in the Long Arm Statute for out-of-State service, which is immaterial under Code Ann. § 81A-112 (a) allowing the defendant 30 days from date of service, but that applying the rules of the local court where the time for answer runs from the date of filing the petition rather than the date of service, where a minimum of 12 days is provided and service may take most of this time, the application of the provisions of Code Ann. § 24-115 is unconstitutional as failing to give the defendant a reasonable time to prepare and file its answer and thereby denies it equal protection of law, citing Holland Furnace Co. v. Willis, 222 Ga. 156 (149 SE2d 93). The attack is not against the constitutionality of the statute but against its unconstitutional application in the court in question. As to local defendants, it has been held that the Civil Practice Act will take precedence over local acts or rules in all courts of record (Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 (176 SE2d 604) but that the provisions of Code Ann. § 81A-112 (a) do not apply to the Civil and Criminal Court of DeKalb County. Hines v. Wingo, 120 Ga. App. 614 (1) (171 SE2d 905). In a constitutional attack made in an action by a nonresident defendant in the City Court of Macon who was served by services on the Secretary of State with process forwarded by mail it was held in Hines, supra, that although in fact the defendant had notice 19 days prior to the time for filing defensive pleadings "no applicable law guaranteed appellant a reasonable time within which to prepare and file a defense after service of process upon the Secretary of State" and that this was a violation of due process. The question would be squarely before us as to application only if the time for answer which the defendant had under the rules of the Civil and Criminal Court of DeKalb County (now the State Court of DeKalb County) was shown to be less than the time it would have had had the defendant been sued in a superior court of this State. However, *756 under Ga. L. 1951, pp. 2401, 2405 (which was not repealed by Ga. L. 1968, p. 2928, by the addition of Sec. 11 B (b)) it is provided: "Each action shall be filed and summonses issued thereon not less than 12 days prior to the first day of the particular term to which the same is brought; and summons thereon shall be served not less than 9 days prior to the first day of the term to which said action is brought; provided that service effected too late for a particular term shall be good for the next succeeding term." This action was filed on February 27 and was thus returnable to the April term which commenced on April 6. Having been served on March 2, it allowed the defendant more, not less, than he would have been entitled to under general law. Therefore, the application of the local statutory practice rule is never a denial of due process in the DeKalb County Court when the action is filed less than 12 days from the commencement of the next succeeding term, and the date for answer stated on the process is more than 30 days from the date of service of process.
The trial court did not err in denying the motion to quash service of process.
Judgment affirmed. Evans, J., concurs. Hall, P. J., concurs specially.
HALL, Presiding Judge., concurring specially.
In my opinion, the Civil Practice Act (including Code Ann. § 81A-112 )is applicable to the State Court of DeKalb County. Code Ann. § 81A-112( a) provides that a defendant shall serve his answer within thirty days, "unless otherwise provided by statute." The latter phrase refers to general and not special laws. Our court has two conflicting decisions on this. See Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 (176 SE2d 604) and Hines v. Vargo, 120 Ga. App. 614 (171 SE2d 905). The general intent of the CPA was to "provide a modern, unified system of rules governing civil *757 actions in the Georgia Trial Courts." Rees, "The Georgia Civil Practice Act of 1966: Preliminary Observations," 2 Georgia State Bar Journal 419. The Civil Practice Act is applicable to "all courts of record." Code Ann. § 81A-101. In any event the 1970 General Assembly has the final word on this. See also Ga. L. 1970, pp. 679, 681, "Practice and Procedure, etc. in certain Courts below the Superior Court level," which provides: "The rules of practice and procedure that are applicable to the superior courts of this State shall be the rules which govern practice and procedure of the courts which come under the provisions of this Act." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327147/ | 122 Ga. App. 542 (1970)
178 S.E.2d 42
JOHNSON
v.
THE STATE.
45598.
Court of Appeals of Georgia.
Argued September 11, 1970.
Decided September 29, 1970.
Millard C. Farmer, Jr., for appellant.
JORDAN, Presiding Judge.
This is an appeal from a judgment of conviction and sentence for simple assault.
1. A person commits a simple assault when he commits an act which places another in reasonable apprehension of immediately receiving a violent injury. Code Ann. § 26-1301 (GA. L. 1968, pp. 1249, 1280). The alleged victim testified that the accused "walked by and took me by the arm, asked me to go outside, he wanted to talk to me." Continuing, he testified, "He asked me if I didn't believe he'd kill me if I didn't stay away from his daughter, and he took the pistol out of his pocket and a pint bottle fell out of his pocket, and he laid the pistol on my chin." Responding to another question, he stated, "He went on talking, he was drinking pretty heavy, and he told me he'd kill me if I didn't stay away from his daughter." Even though the threats accompanying the use of the pistol may have been indicative only of a conditional intent to inflict bodily harm, the circumstances also clearly disclose a situation whereby the jury could determine that the alleged victim, with a pistol pointed at him, was in reasonable apprehension of immediately receiving a violent injury. The evidence clearly supports the verdict of guilty.
*543 2. The transcript fails to disclose any evidence to warrant instructions on justification under Code Ann. §§ 26-901, 26-902 (GA. L. 1968, pp. 1249, 1272), or to show that the trial judge, in sustaining objections during the questioning of the alleged victim by counsel for the accused, deprived the accused of the benefit of a thorough and sifting cross examination on relevant and material matters to support a defense of justification in pointing a pistol at another. Even if the alleged victim had endangered the the life of the accused's daughter by the reckless driving of his automobile in which she was a passenger at some time previously to the alleged assault, this fact affords no legal justification for entering a room where the alleged victim was present, inviting him outside, and pointing a pistol at him, accompanied by threats. The second and third enumerations are without merit.
3. The accused in his unsworn statement referred to hearsay reports that the alleged victim had continued to see his daughter despite the written request of the accused to stay away from her. This the victim denied and the accused produced no witnesses to corroborate his statements in this respect. The district attorney in his argument alluded to this by quoting from a Supreme Court Justice to the effect that "when a man knows that he's charged with something and has the means to refute it and does not refute it, then it would be contrary to all human experience for you to place any other presumption on that except he couldn't do it." We consider this argument as within legitimate bounds in respect to the weight to be given to the accused's statements concerning the conduct of the alleged victim, in contrast to the weight to be given the testimony of the victim concerning his conduct preceding the alleged assault.
Judgment affirmed. Eberhardt and Pannell, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327145/ | 122 Ga. App. 825 (1970)
178 S.E.2d 922
PHOTOGRAPHIC BUSINESS & PRODUCT NEWS
v.
COMMERCIAL COLOR CORPORATION.
45534.
Court of Appeals of Georgia.
Submitted September 8, 1970.
Decided November 13, 1970.
Lipshutz, Macey, Zusmann & Sikes, Bartow Cowden, III, for appellant.
Harry James Beecham, for appellee.
BELL, Chief Judge.
1. A "Xeroxed" copy of a letter addressed to the plaintiff and signed by a former official of defendant corporation, was not admitted in evidence on grounds that plaintiff had failed to account for the original writing. This ruling was not erroneous for any reason urged. A photocopy is ordinarily secondary evidence, which may not be admitted over objection without accounting for the original. Cox v. State, 93 Ga. App. 533, 535 (92 SE2d 260). The only foundation laid for its admission was the testimony of plaintiff's witness that the signature appearing on the reproduction was his. There was no evidence that the letter was kept and made in the regular course of business and that photocopy was made to preserve it permanently so as to authorize its admission under Code Ann. §§ 38-710 *826 and 38-711. Martin v. Baldwin, 215 Ga. 293 (4) (110 SE2d 344).
2. In this action on an account, plaintiff in his complaint alleged that defendant was indebted to it in the amount of $1,000. Defendant's answer alleged that it was not indebted to plaintiff in any sum whatsoever. The trial court heard the case without a jury. The only witness for plaintiff, a former vice president of defendant corporation, testified that defendant corporation had purchased a monthly ad in a publication of the plaintiff for a twelve month period at $275 per month and that six of the ads. were published. He also testified that one payment of $275 "might have been made" but he was "not sure"; that he was not aware of what was paid on the account; that defendant did not have the money from month to month to pay the charges and this situation continued until he terminated his employment in August, 1968. No other evidence as to the existence of the account or the amount due upon it was adduced by plaintiff. Plaintiff conceded at trial that $275 had been paid. Defendant presented no evidence. The trial court entered judgment for defendant.
By denying that he was indebted to the plaintiff in any sum the burden of proof was cast upon plaintiff to prove every essential element of his cause of action. Wilkes v. Arkansas Fuel Oil Co., 60 Ga. App. 775 (2) (5 SE2d 269). The plaintiff's evidence was vague and too indefinite to establish that defendant was indebted to it in any certain amount. Wolfe v. Brown-Wright &c. Corp., 87 Ga. App. 12 (73 SE2d 82). The failure to make a prima facie case for recovery demanded a judgment for defendant.
Judgment affirmed. Quillian and Whitman, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327143/ | 255 S.C. 219 (1970)
178 S.E.2d 142
Brady S. HILL, Respondent,
v.
Frank P. JONES and Harleysville Mutual Casualty Insurance Co., Appellants.
19137
Supreme Court of South Carolina.
December 11, 1970.
*220 Messrs. Jeffries, Arnold & Wise, of Greenwood, for Appellants.
*221 Messrs. Charles & Charles, of Greenwood, for Respondent.
December 11, 1970.
LEWIS, Justice.
This Workmen's Compensation case involves an appeal by the employer and the insurance carrier from an order of the lower court affirming an award by a majority of the Industrial Commission in favor of the respondent-employee.
Respondent sustained an injury to his left shoulder while about the construction site of a building at the John de la Howe School in McCormick County, South Carolina, where he was employed as a brickmason. He contended that the injuries were sustained when he fell from a scaffold while engaged in his work. Appellants denied liability and contended that, while respondent and a fellow employee were walking across the construction site, after work had ended for the day, respondent had a physical seizure of some type, *222 which caused him to fall to the ground resulting in the injury to his shoulder.
Respondent filed a claim for benefits under the Workmen's Compensation Act and an initial hearing was held before a hearing commissioner who denied the claim. Upon review by the Full Commission, a majority thereof filed an opinion reversing the decision and made an award to claimant upon a finding that he "did sustain an injury by accident arising out of and in the course of his employment when he fell from a scaffold." The cause was then remanded to the hearing commissioner for the purpose of determining the benefits due respondent. Upon appeal to the circuit court, the award of the Majority Commission was affirmed. This appeal followed.
The questions to be decided are (1) whether there was any competent evidence to sustain a finding that respondent sustained a compensable injury and (2) whether the award of the Commission is fatally deficient for failure to sufficiently state the reasons for the conclusion reached and for failure to apply the correct rule of law with reference to the burden of proof.
A decision of the first question involves a review of the testimony. In dealing with the factual issues, we are governed by the well settled principle that, since the Industrial Commission is the fact-finding body, the courts are without power to pass upon the force and effect of the evidence and can only review the facts to determine whether there was any competent evidence to support the findings of the Commission. If there was, such factual findings are binding on both this Court and the circuit court.
The testimony is in conflict as to the cause of respondent's injury. He testified that in the performance of his work on the afternoon of December 30, 1966, he was standing on a scaffold, about ten feet above the ground, "pointing-up" brick work on a wall when he fell from the scaffold to the ground injuring his left shoulder. He was immediately taken *223 to a doctor and the medical testimony is to the effect that the injury required extensive treatment and ultimately surgery. While respondent produced no eye witness to the fall, two fellow employees testified that they saw him working on the scaffold about fifteen or twenty minutes prior to the accident.
The testimony introduced by appellants was directly in conflict with respondent's version of the accident. Witnesses testified that they saw respondent suffer a physical seizure while walking near the building under construction, causing him to fall to the ground. They further testified that respondent was unconscious after the fall and was taken by them to a doctor for medical attention. While respondent testified that he fell from a scaffold, there was testimony that no scaffolding was in place at the building where respondent said he fell.
There was other testimony but the foregoing shows the direct conflicts in the evidence as to the cause of respondent's injury and the basic factual issues which the fact-finding body was required to resolve. We think that there was sufficient evidence to present an issue of fact for determination by the Commission as to whether respondent sustained an injury by accident arising out of and in the course of his employment.
Finally, appellants contend that the opinion and award of the Commission should be set aside because it allegedly fails to sufficiently state the reasons for the factual findings and fails to apply the correct rule of law with reference to the burden of proof.
In the performance of its duties as the fact-finding body, the Industrial Commission is required by Section 72-354 of the 1962 Code of Laws to file its award which must contain "a statement of the findings of fact, rulings of law, and other matters pertinent to the question at issue." We have held that "this duty on the part of the Commission requires that, not only must findings of fact be made upon the essential *224 factual issues, but that they be sufficiently definite and detailed to enable the appellate court to properly determine whether the findings of fact are supported by the evidence and whether the law has been properly applied to those findings. 58 Am. Jur. 878, Section 472." Drake v. Raybestos-Manhattan, Inc., 241 S.C. 116, 127 S.E. (2d) 288.
Where the decision of the commission fails to comply with the foregoing requirements, it will ordinarily be reversed and the cause remanded to the commission, where the evidence is in conflict, in order that such detailed and specific findings may be made as will enable the appellate court to properly review the factual and legal basis of the award. Drake v. Raybestos-Manhttan, Inc., supra.
The Hearing Commissioner filed an opinion in which he, after reviewing the evidence in detail, denied the claim upon a finding that respondent had failed to establish his right to compensation by the greater weight or preponderance of the evidence. Upon appeal, the decision of the Hearing Commissioner was reversed by a majority of the Full Commission in an opinion which contained the following statement:
"In the absence of any medical testimony to the effect that claimant had a history of suffering from physical seizures and since there is so much controversy as to how claimant fell, it is the opinion of the Majority Commission that the basic purpose of the Workmen's Compensation Act is to include injured workmen within its protection rather than exclude them."
The opinion of the Majority Commission contained only brief references to the testimony and no reasons were stated for the factual finding that the claim was compensable. In view of the quoted statement in the award of the Majority Commission and the absence of a sufficient statement of the factual basis and reasons for its decision, we are unable to determine whether the award was based upon an inference *225 of compensability because there was "so much controversy as to how claimant fell," or upon a conclusion that respondent had established his right to recover by the greater weight of the evidence.
The vice in this award, which we here disapprove, is that the quoted statement, in the absence of further factual or legal clarification of the basis for the ultimate finding of compensability, creates a substantial question as to whether the Majority Commission applied the correct rule of law with reference to the burden of proof.
Respondent was required to prove his right to benefits by the greater weight or preponderance of the evidence, and the weight to be accorded the testimony was solely for the Commission to determine. Since such was peculiarly a Commission function and its opinion affirmatively creates substantial doubt as to whether that function was performed in accordance with the correct legal principle, we think it proper to reverse the award of the Majority Commission and remand the cause to the court to be, in turn, remanded to the Industrial Commission for the purpose of making a decision or award which will clearly reflect its findings in accordance with the greater weight or preponderance of the evidence.
The judgment is accordingly reversed and the cause remanded for the purpose stated.
MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327140/ | 178 S.E.2d 798 (1971)
John YATES
v.
CIVIL SERVICE COMMISSION of West Virginia, Donald E. Ryder, et al., Commissioners, Etc., Alcohol Beverage Control Commissioner of West Virginia.
No. 13022.
Supreme Court of Appeals of West Virginia.
Submitted January 13, 1971.
Decided February 2, 1971.
Leo Catsonis, Charleston, for appellant.
Chauncey H. Browning, Jr., Atty. Gen., Dennis R. Vaughan, Jr., Asst. Atty. Gen., Charleston, for appellees.
CAPLAN, President.
This is an appeal by John Yates from an order of the Civil Service Commission wherein the commission held that the appellant was not entitled to reinstatement to his former position. After the appeal was granted the appellant asked leave to move to reverse and such leave was allowed. The case is now before us on a motion to reverse the order of the Civil Service Commission.
John Yates became an employee of the West Virginia Alcohol Beverage Control *799 Commissioner on May 1, 1964. He served that employer in several capacities, his last position being that of a cashier in the state liquor store in Lewisburg. As a cashier he was a covered employee in the state civil service system.
While so employed, Mr. Yates, on the night of October 31, 1969, received a telephone call from his supervisor, Sam Mason, who told him that he was discharged from his position with the commissioner. That there was no letter of dismissal nor any reasons offered for his dismissal is not disputed in the record. In fact, one of the findings of the Civil Service Commission was that the employee "was dismissed without being given reasons in writing."
In July 1969 the appellant took a civil service examination but did not learn the results thereof until approximately July 10, 1970, several months subsequent to his discharge by the Alcohol Beverage Control Commissioner. At that time Mr. Yates' counsel told him that he had learned from the Director of Personnel of the Civil Service Commission that he had failed the examination. There is no showing in the record of this case that the employer had any knowledge of the results of such examination. Clearly the employer did not know that Yates had failed at the time of his dismissal.
On May 28, 1970 the appellant, through his counsel, sought an appeal from the dismissal of October 31, 1969. In the letter seeking such appeal the commission was requested to advise the appellant of the grounds of dismissal as required by its rules and regulations. Pursuant thereto a hearing was held before the Civil Service Commission on August 10, 1970, on which date the commission rendered its decision. Therein it found that the "employee was dismissed without being given reasons in writing." A second finding was that the employee failed the qualifying examination. Its decision was "The employee is not entitled to reinstatement by reason of his failing the qualifying examination." It is from this decision that the appellant prosecutes this appeal.
It is the contention of the appellant that his discharge by the Alcohol Beverage Control Commissioner was illegal for the reason that the commissioner failed to present him with the reasons for such discharge, as specifically required by Code, 1931, 29-6-8(11), as amended. The appellees, on the other hand, take the position that although no reasons were given for Yates' discharge, he nonetheless is not entitled to reinstatement because of his failure to pass the qualifying examination.
We are confronted on this appeal, not with the mere issue of whether the dismissal of Yates was legal or illegal, but with the further consideration of whether his failure to pass the qualifying examination, knowledge of which was obtained after the dismissal, now precludes his reinstatement. As herein noted, no reasons were stated for Yates' dismissal at the time thereof. By statute and by the decisions of this Court, it is well established that good cause must exist for the dismissal of an employee in the classified service and that such good cause must be shown to have existed at the time of the dismissal. In the absence thereof such dismissal is illegal and cannot stand. See Guine v. Civil Service Commission, 149 W. Va. 461, 141 S.E.2d 364, wherein the Court said: "Clearly, under the law, good cause must exist for the dismissal of an employee in the classified service. Not only shall good cause be alleged in the dismissal of such employee but it must be proved in the event of an appeal from the dismissal."
Code, 1931, 29-6-8(11), as amended, where pertinent, provides: "Discharge or reduction of these employees shall take place only after the person to be discharged or reduced has been presented with the reasons for such discharge or reduction stated in writing, and has been allowed a reasonable time to reply thereto in writing, or upon request to appear personally and reply to the head of the department or *800 his deputy. The statement of reasons and the reply shall be filed as a public record with the director." On an appeal to the Civil Service Commission, "If the commission finds that the action complained of was taken by the appointing authority without good cause, the employee shall be reinstated to his former position * * * without loss of pay for the period of his suspension." Code, 1931, 29-6-13, as amended. Article XI, Section 2 of the Rules and Regulations of the Civil Service Commission requires that "specific reasons" for dismissal be given in writing to any employee against whom such action is taken.
Not only did the subject employer fail to cite specific reasons for Yates' dismissal, he failed to state any reasons at the time of such dismissal. The employee had no opportunity to reply to his employer's action as provided by law. Under the foregoing statutes, rules and regulations and decision of this Court, it is clear that reasons for dismissal must be given to an employee at the time of such dismissal. It does not satisfy the requirements of law relating to civil service coverage to supply the reasons for dismissal for the first time at an appeal before the Civil Service Commission. If this were permitted the basic purpose of civil service coverage, security of tenure in one's employment, would be effectively thwarted. An employer could fire a covered employee without cause and not be required to give the reasons therefor unless the employee appeals. If the employee does not appeal he may have been dismissed without cause, clearly contrary to law. If he does appeal without having been given reasons in writing, he is placed in a position of not knowing the charges against him. This would be repugnant to our concept of justice.
In the instant case the only reason for refusing to reinstate the appellant is that he failed to pass the qualifying examination. This was not a reason given by the employer at the time of dismissal. In fact, the employer was totally unaware of the employee's failure to pass the examination when he fired him. Such dismissal, therefore, was clearly illegal.
The function of the Civil Service Commission, upon an appeal by a dismissed covered employee, is to determine whether the appointing authority had good cause to dismiss such employee. If the action of the employer were without good cause, Code, 1931, 29-6-13, as amended, unequivocally and mandatorily requires the commission to reinstate the employee to his former position or a position of like status and pay. In the case before us the failure of the employee to pass the qualifying examination is nothing more than a reason to terminate his employment. This, however, must be done in accordance with the requirements of law. Doubtless, if the employer had informed the appellant in writing that his employment was terminated by reason of his failure to pass the qualifying examination, and this were found to be true at the hearing, such dismissal would be sustained. Such was not the case here. If the procedure followed in the instant case were permitted to stand, it could readily serve as precedent to allow future firings of covered employees without giving reasons therefor unless and until such employee was heard on appeal. This is contrary to a basic principle in the civil service law that a covered employee shall be protected from dismissal without cause and that he shall be given the opportunity to reply to his employer at the time of dismissal. It is incumbent upon the employer to inform the employee of the reasons for dismissal at the time of dismissal.
We are of the opinion and we hold that the employer having failed to give Mr. Yates reasons for dismissing him at the time of such dismissal, the dismissal was without cause and invalid. We further hold that such dismissal cannot have life breathed into it and made valid by a reason presented by the Civil Service Commission at an appeal before it. Therefore, *801 in accordance wtih the mandatory provisions of Code, 1931, 29-6-13, as amended, the appellant is hereby reinstated to his former position or a position of like status and pay.
Since the record of this case reveals that Mr. Yates has failed to pass the qualifying examination, the employer is not precluded by this decision from now reconsidering such employee's status.
For the reasons stated, the motion to reverse is granted.
Motion to reverse granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3028309/ | Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-9-2007
USA v. Young
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2311
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Recommended Citation
"USA v. Young" (2007). 2007 Decisions. Paper 1124.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1124
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2311
UNITED STATES OF AMERICA
v.
SHARIF YOUNG,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 04-cr-00716)
District Judge: Honorable R. Barclay Surrick
Submitted Under Third Circuit LAR 34.1(a)
April 19, 2007
Before: McKEE and AMBRO, Circuit Judges,
MICHEL,* Chief Judge
(Opinion filed: May 9, 2007)
OPINION
*
Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
AMBRO, Circuit Judge
Sharif Young was convicted by a jury of one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Young appeals the District Court’s
denial of hiss pre-trial motion to suppress a statement he made while in custody and
eventually used against him at his trial.1 Young argues that admitting the statement in
evidence violated his privilege against self-incrimination set out in Miranda v. Arizona,
384 U.S. 436 (1966).
The facts found by the District Court are straightforward and not clearly
erroneous.2 After Detective Christopher Gilman had read Young his Miranda warnings
and inquired whether he wanted to make a statement, Young said that he “didn’t want to
sign anything.” Detective Gilman responded, “Well, . . . I guess that means you really
don’t want to . . . give me a statement in reference to this matter.” Young then asked
what he was being charged with, and Detective Gilman told him. According to Detective
Gilman, Young then said that “Jason was trying to shoot him with an AK-47 and that he
shot at Jason numerous times because Jason was trying to shoot him.”
After our own review, we find that we have little to add to the District Court’s
1
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291.
2
We review the facts underlying a district court’s evidentiary rulings for clear error
and exercise plenary review over the legal conclusions properly drawn from the facts.
United States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005); United States v. Perez, 280
F.3d 318, 336 (3d Cir. 2002).
2
thorough analysis. See United States v. Young, No. 04-CR-00716, 2005 WL 2789185
(E.D. Pa. Oct. 25, 2005). Even assuming that Young had asserted his right to remain
silent—a fact that is far from clear given the Supreme Court’s decision in North Carolina
v. Butler, 441 U.S. 369, 373 (1979) (holding that waiver of the right to remain silent can
be inferred from a defendant’s apparent willingness to talk, despite refusing to sign a
written waiver)—his statement was not made as a result of custodial interrogation. See
Rhode Island v. Innis, 446 U.S. 291 (1980). Rather, Young gave his incriminating
statement spontaneously and voluntarily after Detective Gilman answered a benign,
factual question put by the Young himself. See McGowan v. Miller, 109 F.3d 1168,
1170–71, 1175 (7th Cir. 1997); United States v. Taylor, 985 F.2d 3, 6–8 (1st Cir. 1993);
United States v. Jackson, 862 F.2d 1168, 1172 (4th Cir. 1989).
We therefore affirm Young’s conviction for the reasons given by the District
Court.
3 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1327177/ | 178 S.E.2d 1 (1970)
10 N.C. App. 22
Deborah Jones PATTERSON, by Next Friend, Bobby Jones
v.
Ralph Conner REID and wife, Nancy L. Reid.
No. 7026SC472.
Court of Appeals of North Carolina.
December 16, 1970.
*5 James H. Morton, Charlotte, for plaintiff-appellee.
Helms, Mulliss & Johnston by E. Osborne Ayscue, Jr., and Robert B. Cordle, Charlotte, for defendants-appellants.
PARKER, Judge.
The motion for summary judgment under Rule 56 of the Rules of Civil Procedure (G.S. § 1A-1, Rule 56) is a procedure new to the courts of this State. (For an excellent discussion of the history and purpose of the summary judgment procedure, see opinion by Morris, Judge, in Pridgen v. Hughes, N.C.App., 177 S.E.2d 425, filed November 18, 1970.) The purpose of the rule is not to resolve a disputed material issue of fact, if one exists, but to provide an expeditious method for determining whether any such issue does actually exist. The rule provides that "[t]he 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 any party is entitled to a judgment as a matter of law." Rule 56(c). When motion for summary judgment is made, the court must look at the record in the light most favorable to the party opposing the motion. Crest Auto Supplies, Inc. v. Ero Manufacturing Company, 360 F.2d 896 (7th Cir. 1966). However, when the motion is supported as provided in the rule, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Rule 56(e). The affidavits comtemplated by the rule, both those supporting and those opposing the motion, "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e).
In the case before us, plaintiff alleged in her pleading a claim against defendants for injuries received by her from an animal with known vicious propensities. To recover for injuries inflicted by a domestic animal, a claimant must show (1) that the animal was in fact vicious, and (2) that the owner or keeper knew or should have known of its vicious propensities. The basis of the claim in this event is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness. Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297. Here, plaintiff does not contend that the defendants owned the animal; she alleged it belonged to another. She does assert that defendants were the keepers of the animal. "The keeper is one who, either with or without the owner's permission, undertakes to manage, control, or care for the animal as owners in general are accustomed to do." Swain v. Tillett, supra.
Defendants' affidavits disclose they are prepared to offer competent evidence to show that their only connection with the horse in this case was that they permitted its owner, their tenant, to pasture it in their pasture, that they did not at any time "manage, control, or care for the animal as owners in general are accustomed to do," and that the horse was not in fact vicious and defendants neither knew *6 nor had any reason to know of any vicious propensity on its part. These facts, if established, would defeat plaintiff's claim. Defendants' affidavits are, therefore, sufficient to require summary judgment in their favor unless plaintiff is prepared to show that there is a genuine issue as to these facts. To do so, she may not rest upon the mere allegations in her pleading, but her response, by affidavits or otherwise as provided in Rule 56, "must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e).
Turning to plaintiff's affidavits, we find that some of the statements therein are based on hearsay. These would not be admissible in evidence and should not be considered in passing on the motion for summary judgment. Rule 56(e). Considering such of the facts stated in plaintiff's affidavits as would be admissible in evidence, and construing these in the light most favorable to plaintiff, we find plaintiff has failed to show that she can offer any competent evidence to prove that the defendants were the "keepers" of the animal here involved, within the definition of that word as contained in Swain v. Tillett, supra. Furthermore, even if a liberal construction of plaintiff's affidavits show that she can produce some competent evidence from which a jury might permissibly find that the horse here involved was a vicious animal, they completely fail to disclose that she has any competent evidence to show that defendants either knew or had any reasonable cause to know of any such vicious propensities. Her affidavits, therefore, fail to "set forth specific facts showing that there is a genuine issue for trial."
We note that a liberal construction of the allegations in plaintiff's complaint might support the contention that she has stated a valid claim for relief on the theory that defendants, even though being neither owners nor keepers of the horse, were nevertheless liable for her injuries in that they negligently encouraged plaintiff to ride the horse by allowing her to use saddles and other riding equipment owned by defendants without adult supervision or protection. However, here again, in order to recover on such a theory, it would be necessary for plaintiff to prove that defendants knew or should have known that the animal was in fact vicious. In addition, plaintiff would have to produce evidence that defendants actively encouraged plaintiff to ride. Her affidavits fail to show that she can produce any competent evidence to prove these facts.
Plaintiff having failed to show that there is a genuine issue for trial, defendants' motion for summary judgment in their favor should have been allowed. The judgment denying defendants' motion is
Reversed.
MALLARD, C. J., and HEDRICK, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327179/ | 178 S.E.2d 387 (1971)
277 N.C. 664
Kennette Frazier PANHORST
v.
George M. PANHORST, Jr.
No. 60.
Supreme Court of North Carolina.
January 20, 1971.
*391 Thomas Walton and William J. Cocke, Ashville, for plaintiff appellant.
Robert E. Riddle, Asheville, for defendant appellee.
LAKE, Justice.
The jury was instructed, "If you answer the first issue NO, and thereby find that the defendant did not abandon the plaintiff, as the Court has instructed you with reference to that issue, then you would not come to consider the second issue * * *." (Emphasis added.) That is, in that event, the jury would not consider the issue of whether such abandonment was or was not without adequate cause or provocation on the part of the plaintiff.
The verdict on the first issue was reached in the light of this instruction:
"Abandonment, within the meaning of the law, means that there is a separation of the parties one from the other. It also means that the separation is without the consent of the party from whom the separation is had and that the separation is without the intention of renewing the marital relationship and that the separation is willful, that is without adequate cause, excuse or justification.
* * * * * *
"Ordinarily, * * * the spouse who separates or leaves is not justified in leaving the other spouse unless the conduct of the spouse who is left is such as would likely render it impossible for the withdrawing spouse to continue the marital relationship with safety, health and self-respect, and so, members of the jury, the Court instructs you that when you come to consider the first issue, the burden of proof, as the Court has told you, is upon the plaintiff upon this issue and when you come to consider this first issue the Court instructs you that if the plaintiff has satisfied you from the evidence and by its greater weight that in October, 1968, the defendant separated himself from the plaintiff and that this separation was without the consent of the plaintiff and that this separation was without the intention on the part of the defendant of renewing the marital relationship and that this separation was brought about without the existence of circumstances which would justify the defendant in withdrawing, that is, was absent such circumstances as would make it impossible for the withdrawing spouse, the defendant, to continue the marital relations with safety, health and self-respect; if the plaintiff has satisfied you of each of these elements from the evidence and by its greater weight, then it would be your duty to answer the first issue YES.
"On the other hand, * * * if the plaintiff has failed to satisfy you from the evidence by its greater weight as to each of these elements, then it would be your duty to answer the first issue NO."
The plaintiff assigned this instruction as error and also assigned as error that the court had failed to declare and explain the law arising upon the evidence, as required under G.S. § 1-180. (See, Rule 51(a), Rules of Civil Procedure.) Both of these assignments of error were allowed by the Superior Court in ordering a new trial. The Court of Appeals reversed on the ground that the plaintiff did not set out in her exception and assignment of error her contention as to what the court should have charged.
It is alleged in the complaint and admitted in the answer that the plaintiff and defendant were married and lived together until 9 October 1968, when the defendant left the home. The defendant's own testimony makes it clear that he left with no intent to return, though the plaintiff begged him not to do so. The sole question presented by the pleadings and the evidence related to whether he was legally justified in leaving and thus was absolved from the duty of paying alimony pursuant to G.S. § 50-16.2(4). The plaintiff's testimony, if believed by the jury, is sufficient *392 to establish that the cause of the condition, which the defendant assigns as the only reason for leaving, was her affliction with a physical ailment for which she was and had been for a long time undergoing medical treatment. The defendant's testimony was to the effect that he, when leaving, was aware that she had some physical difficulty for which she was undergoing medical treatment. Nowhere in the charge, except in revewing the testimony, is there any specific reference to the physical condition or health of the plaintiff. The jury was not given any direction as to the bearing of the plaintiff's condition, if the jury believed it to be as the plaintiff had testified, upon the legal right of the defendant to leave her as he admits that he did. In this there was error requiring a new trial as ordered by the Superior Court.
"It is the duty of the court to charge the law applicable to the substantive features of the case arising on the evidence, without special request, and to apply the law to the various factual situations presented by the conflicting evidence." Strong, N.C.Index 2d, Trial, § 33. Rule 51(a) of the Rules of Civil Procedure, formerly G.S. § 1-180, "requires the judge `to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.' 53 Am.Jur., Trial, section 509." Western Conference of Original Free Will Baptists of North Carolina v. Miles, etc., 259 N.C. 1, 9, 129 S.E.2d 600, 605; Lewis v. Watson, 229 N.C. 20, 23, 47 S.E.2d 484.
G.S. § 50-16.2 provides that a dependent spouse is entitled to an order for alimony when "(4) the supporting spouse abandons the dependent spouse." The statute does not define abandonment. One spouse abandons the other, within the meaning of this statute, where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it. See, Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12. One spouse may abandon the other without physically leaving the home. Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; McDowell v. McDowell, 243 N.C. 286, 90 S.E.2d 544; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919. In that event, the physical departure of the other spouse from the home is not an abandonment by that spouse. The constructive abandonment by the defaulting spouse may consist of either affirmative acts of cruelty or of a wilful failure, as by a wilful failure to provide adequate support. McDowell v. McDowell, supra; Blanchard v. Blanchard, supra. There is, however, no wilful failure, and so no constructive abandonment, where the defect of which the departing spouse complains is due to the illness or physical disability of the remaining spouse and his or her consequent inability to act.
In an action by a wife for alimony without divorce, G.S. § 50-16.2, like its predecessor, does not preclude the husband, who has left the home, from proving as a defense that it was actually the wife who separated herself from him, though she did not leave the home. Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923. If, however, the failure of the wife, asserted by the husband as justification for his departure from the home, was not wilful but was due to her health and physical condition, such failure would not constitute a constructive abandonment of the husband by the wife and would not be justification for his departure from the home. The jury should have been so instructed.
The judgment of the Court of Appeals is hereby reversed, and the matter is remanded to that court for the entry of a judgment by it further remanding it to the Superior Court for entry therein of a judgment granting the plaintiff a new trial on the ground of the above mentioned error in the charge of the judge of the General County Court.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262360/ | 238 P.3d 816 (2008)
GRESHAM (MICHAEL)
v.
STATE.
No. 48474.
Supreme Court of Nevada.
April 1, 2008.
Decision Without Published Opinion Reversed/Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327085/ | 227 Ga. 48 (1970)
178 S.E.2d 848
LINDSEY
v.
THE STATE.
26171.
Supreme Court of Georgia.
Argued November 9, 1970.
Decided December 3, 1970.
*49 Albert B. Wallace, for appellant.
Richard Bell, District Attorney, Eugene Highsmith, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Jr., Assistant Attorneys General, for appellee.
MOBLEY, Presiding Justice.
Walter Wilson Lindsey was jointly indicted with Carlton Lee Wells for the murder of Edward Chesnut. Wells pleaded guilty. Lindsey was tried and convicted, and sentenced to life imprisonment. He appeals from the judgment of conviction and sentence, and enumerates as error the denial of his motion for new trial, as amended, and other alleged errors.
The murder with which appellant was charged occurred while a robbery was being committed. Wells admits that he is the person who committed the robbery, during which the deceased was killed. It was the contention of the State that appellant conspired with Wells to commit the robbery, and was guilty of the murder resulting from that crime.
1. The answers to several of the questions raised by the enumeration of errors depend on a determination of the sufficiency of the evidence to show that there was a conspiracy between Wells and appellant to commit the robbery, and we will first consider this question.
The testimony of an accomplice, uncorroborated by other competent evidence, is not sufficient to convict a person charged with a felony. Code § 38-121. Appellant strongly urges that there was no evidence to corroborate the testimony of Wells that appellant suggested the robbery, during the course of which the deceased was *50 killed, and conspired with him in effecting the robbery.
The robbery occurred at the grocery store and filling station of two brothers, Charles and Edward Chesnut. The testimony of the surviving brother shows the following: The time of the robbery was "dusk dark." Wells walked up to their station, and at gunpoint forced them to go into the store, and one of the victims to give him his pocketbook, which contained about $400 in bills and some checks. Wells forced the brothers to get in their truck and drive the three of them to a place designated by Wells. There Wells made the brothers get out of the truck. The gun was discharged, and Edward Chesnut received a bullet wound, from which he later died. Charles Chesnut then grabbed Wells and pulled him to the ground and beat him with the gun. Wells asked Chesnut if he was trying to kill him, and when Chesnut said that he was, Wells said: "Don't kill me. I'll tell you who put me up to it; who planned it all." Chesnut asked who it was and Wells said: "Wilson Lindsey." Chesnut asked where Lindsey was, and Wells replied: "He's down there waiting on me in the truck." Chesnut hit Wells twice more. Chesnut's brother said that he was shot, and Chesnut went to his brother's assistance, allowing Wells to escape.
Carlton Lee Wells testified as to appellant's participation in the robbery as follows: At about 10 o'clock on the morning of January 8, 1969 (the date of the homicide) he came to appellant's boarding house. He had come to the county to look at an abandoned generator plant they were talking of buying. He, appellant, and Jack Miller went to a whiskey store and bought some whiskey. They were riding in Wells' truck. At one time during the day they stopped at Jones Trading Post. Later in the day Wells had a conversation with appellant about the store operated by the Chesnut brothers. Appellant mentioned that "there was a good bit of money there," and they decided that "somebody ought to get it." Appellant said that Wells would have to take the gun and go and take the money because appellant was known by the people and Wells was not. Wells took the pistol belonging to appellant, which was on the seat of the truck, and got out of the truck and walked about 500 yards to the store. They were to wait for him at Jones' store. The robbery and shooting occurred about 6 p. m., and Wells *51 ran through the woods until about midnight. When he came to a house, he told the people there that he had been in an automobile accident, and hired them to take him to appellant's boarding house, paying them $120. When Wells got to the boarding house the following occurred: "He asked me what happened and I told him that I did not know; that there was a fight and at that time I didn't know that anybody had been shot. And it was after midnight then, and I asked him if he would go to get some whiskey for me. I was in the back room trying to wash the blood off me. I was a bloody mess. I asked him to go to the bootlegger and get some whiskey, and he said, `Where's the money?' I said, `In my shirt pocket.' He took it out of my shirt pocket, my hand was so bloody, I couldn't take it out... This was money taken from the Chesnuts... I asked him what happened to him and he said that white pick-up truck come flying out from there with those two brothers in it, he knew something had gone on and so he left." On cross examination Wells admitted that he had been convicted of numerous felonies. The indictments and convictions were introduced in evidence by appellant. Wells stated that he did not remember making any statement to Chesnut while Chesnut was beating him with the pistol.
The circumstances relied on by the State to corroborate Wells' testimony are the following: Watson Jones, who operated Jones Trading Post, saw appellant and Wells together, a short distance from the scene of the crime, at about 4:30 or 5 p. m. on the date of the homicide. Appellant admitted that he and Jack Miller waited for Wells in Wells' truck a short distance from the place where the robbery was committed, although appellant stated that Wells said he was going to see about a generator. A few hours after the robbery and murder, a police officer pursuing appellant saw him stoop over in the automobile in which he was riding, and when they searched this automobile they found $267 in bills under the seat beneath the place appellant was sitting, and some of these bills had a red, dried material on them which seemed to be blood. The amount of $267, plus the amount paid by Wells to the person driving him after the robbery ($120 according to Wells, and $20 according to the witness Hurst) approximated the amount of money taken in the robbery.
*52 "The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant's guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence." Hargrove v. State, 125 Ga. 270, 275 (54 S.E. 164); Whaley v. State, 177 Ga. 757 (3) (171 S.E. 290); Smith v. State, 189 Ga. 169, 172 (5 SE2d 762).
We can not say as a matter of law that there was no evidence in the present case connecting appellant with the crime, and we must affirm the overruling of the general grounds of the motion for new trial.
2. Appellant on a former trial was acquitted of the charge of robbery in the same transaction in which the homicide occurred. Appellant assigns error on the admission of evidence concerning the robbery, over the objection that appellant had been acquitted of this charge. Appellant also contends that the court erred in charging the jury on a conspiracy to rob and murder, because of his previous acquittal of the charge of robbery.
No plea of former jeopardy was filed, and such a plea would not have been good, since the crimes of robbery and murder are separate crimes even though both are committed in the same transaction. Harris v. State, 193 Ga. 109, 119 (17 SE2d 573, 147 A.L.R. 980). However, even where a plea of former jeopardy is not available, a criminal judgment is res judicata of every fact in issue which is actually or necessarily adjudicated by that judgment. Harris v. State, supra. This is sometimes referred to as the doctrine of collateral estoppel. See 9 ALR3d 210; Hoag v. New Jersey, 356 U.S. 464 (78 SC 829, 2 LE2d 913).
The evidence in the present case showed that when appellant was on trial for the offense of robbery, objection was made by his counsel to the first witness on the ground that a list of the witnesses had not been furnished appellant. The prosecuting attorney stated to the court that this was a material witness, and if he could not use him, the court should direct a verdict of acquittal, which was done.
Thus it appears that no question of fact as to the guilt of appellant was determined in the trial for robbery, and his acquittal in *53 that case does not preclude the State from introducing evidence of the robbery to prove appellant's guilt of murder in the same transaction.
It was not error to admit evidence of the robbery, or to charge on the contention of the State that there was a conspiracy between appellant and Wells to commit an armed robbery, and that pursuant to this conspiracy the deceased met his death.
The charge on a conspiracy to rob, and killing in consequence thereof, which equated such killing with murder, was correct as an abstract principle of law. Gore v. State, 162 Ga. 267 (1) (134 S.E. 36). We have examined the whole charge on conspiracy and find that the issue was fairly presented, and no error was committed in the instructions on conspiracy complained of in the enumeration of errors.
3. Error is assigned on the admission in evidence of the statement made by Wells to Chesnut during the course of the robbery, at a time when Chesnut had obtained the pistol and was beating Wells with it. The ground of objection was that it was hearsay, and was not voluntary.
Appellant also contends that the court erred in failing to charge the jury that they should not consider any statement made by Wells about appellant's participation in the criminal enterprise unless the statement was freely and voluntarily made, and that the statement would have no probative value if made as a result of any coercion, threats, intimidation, or violence committed upon Wells.
Code § 38-411, in regard to the inadmissibility of a confession unless voluntarily made, has no relevancy to the statement admitted in evidence here. It was not a confession or admission by Wells, but was a statement implicating another made while he was in the process of committing a robbery. The court did not err in failing to charge that the jury should refuse to consider it if they found that it was not voluntary. No request was made for a charge cautioning the jury to consider the circumstances under which the statement was made in determining its probative value.
The evidence is an exception to the hearsay rule. "After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be *54 admissible against all." Code § 38-306. We have previously held that the evidence was sufficient to show a conspiracy between appellant and Wells. The criminal project had not ended at the time the statement was made by Wells, and it was admissible in evidence. Barrow v. State, 121 Ga. 187 (2) (48 S.E. 950).
4. It is contended that the court erred in admitting testimony of the witness Ponder that he found money under the seat of the automobile in which appellant was riding at the time he was arrested. Objection was made to the evidence on the ground that no warrant for appellant's arrest was shown, that the officers had no right to search the car, and that evidence obtained in such search was illegal.
This witness was a police officer with the City of Forest Park, and he had received a radio call from the Clayton County Police to look for a car of the same description as the one in which appellant was riding. The witness held appellant in custody until Chief Howard Smith arrived, after which the witness, on the instruction of Chief Smith, searched the car and found the money.
Appellant has not contended that his arrest was illegal, and he has made no written motion to suppress evidence obtained at the time of his arrest. The facts of this case bring it within the ruling made in Hunsinger v. State, 225 Ga. 426, 427 (169 SE2d 286), where it was held: "No contention is made that the arrest was not a lawful one, and the search of the motor vehicle in which the defendant was a passenger for things connected with the crime for which he was arrested was not unlawful."
5. Error is assigned on the admission in evidence of the pistol used in the robbery by Wells, and other physical exhibits, on the ground that they were admissible only on the question of the guilt or innocence of Wells, and could not be admitted as evidence on the trial of appellant because there was no corroboration of Wells' testimony connecting appellant with the crime.
The question of the sufficiency of the evidence to connect appellant with the crime has already been decided adversely to his contentions. Where a conspiracy is shown, exhibits relevant to the commission of the crime are admissible against a co-conspirator. Gossitt v. State, 182 Ga. 535, 537 (186 S.E. 417).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327122/ | 684 S.E.2d 898 (2009)
STATE of North Carolina
v.
Nathaniel Vandis WILLIAMS.
No. COA09-289.
Court of Appeals of North Carolina.
November 3, 2009.
*899 Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.
Ryan McKaig, for Defendant.
STEPHENS, Judge.
I. Procedural History and Factual Background
On 18 September 2008, Defendant Nathaniel Vandis Williams was arrested on charges of possession with intent to sell and deliver a controlled substance and sale and delivery of that controlled substance. On 3 November 2008, Defendant waived indictment and entered a guilty plea to an information alleging one count of delivery of the controlled substance, cocaine. On the same day, the State dismissed the charges of possession with intent to sell and deliver a controlled substance and sale of a controlled substance. In Wake County District Court, Defendant stipulated to being a prior record Level IV for sentencing purposes, and the trial court so found. The trial court sentenced Defendant to 11 to 14 months imprisonment and recommended participation in the DART program. From the judgment entered upon his guilty plea, Defendant appeals.
II. Discussion
Defendant first argues that the trial judge erred in accepting his guilty plea as there was no factual basis for his plea in violation of N.C. Gen. Stat. § 15A-1022. We disagree.
We note first that Defendant does not have an appeal as a matter of right to challenge the trial court's acceptance of his guilty plea. N.C. Gen. Stat. § 15A-1444 (2007); see State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987) (defendant not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea). However, pursuant to N.C. R. App. P. 21, Defendant has petitioned this Court for a writ of certiorari. We elect to grant Defendant's petition and review the issue. See State v. Poore, 172 N.C.App. 839, 616 S.E.2d 639 (2005) (treating defendant's appeal as petition for writ of certiorari and addressing defendant's argument that there was an insufficient factual basis supporting the entry of his plea); State v. Rhodes, 163 N.C.App. 191, 592 S.E.2d 731 (2004) (defendant's appeal treated as writ of certiorari and defendant's challenge to the procedures employed in accepting his guilty plea addressed).
N.C. Gen. Stat. § 7A-272 provides:
With the consent of the presiding district court judge, the prosecutor, and the defendant, the district court has jurisdiction to accept a defendant's plea of guilty or no contest to a Class H or I felony if:
(1) The defendant is charged with a felony in an information filed pursuant to G.S. 15A-644.1, the felony is pending in district court, and the defendant has not been indicted for the offense....
N.C. Gen. Stat. § 7A-272 (c)(1) (2007).[1] A defendant who pleads guilty in district court pursuant to N.C. Gen. Stat. § 7A-272 (c)(1) shall enter that plea to an information. N.C. Gen. Stat. § 15A-644.1 (2007). An information "is a written accusation by a prosecutor... charging a person represented by counsel with the commission of one or more criminal offenses." N.C. Gen. Stat. § 15A-641(b) (2007). The information must contain (1) the name of the district court in which it is filed, (2) the title of the action, (3) criminal charges *900 pleaded as provided in Article 49 of Chapter 15A, and (4) the signature of the prosecutor,[2] and must also contain or have attached the waiver of indictment. N.C. Gen. Stat. § 15A-644(a) and (b); N.C. Gen. Stat. § 15A-644.1.
Moreover, pursuant to N.C. Gen. Stat. § 15A-1022, "[t]he judge may not accept a plea of guilty ... without first determining that there is a factual basis for the plea. This determination may be based upon ... [a] statement of the facts by the prosecutor." N.C. Gen. Stat. § 15A-1022(c) (2007).
In this case, Defendant pled guilty to an information alleging delivery of cocaine, a controlled substance. At the hearing on Defendant's guilty plea, the prosecutor made a statement of the facts which supported the charge of delivery of cocaine. When asked by the trial court if Defendant had anything to add regarding the factual basis, defense counsel answered, "Nothing on the factual basis, Your Honor." The trial court then determined that, "after consideration of the record, the evidence presented, the answers of the [D]efendant, the statements of the lawyer for the [D]efendant, and the District Attorney, the Court will find that there is a factual basis for the entry of the plea[.]" Defendant now contends that there was no factual basis for the plea as there was a fatal variance between the facts alleged in the "charging instrument" and the facts as stated by the prosecutor. Defendant's argument is misplaced.
The arrest warrant states that Defendant sold and delivered cocaine to "Detective T. Ross[.]" The information refers to "Terry Ross" as the person to whom Defendant was charged with delivering cocaine. At the hearing on Defendant's guilty plea, the prosecutor stated: "[O]n a Thursday at about 12:40 in the afternoon, [Raleigh police] utilized the named informant in the charging document to make controlled purchases of cocaine. Detective Gibney [sic] utilized this CI." Defendant argues it is unlikely that the "named informant" referred to in the prosecutor's statement is a police officer, as the arrest warrant suggests.
However, Defendant entered a plea of guilty to an information, as required by N.C. Gen. Stat. § 15A-644.1. Thus, the information, not the arrest warrant, was the "charging instrument" in this case. Furthermore, there is no evidence before this Court that "Terry Ross" and the "named informant" were not the same person. Accordingly, we conclude there was no variance, much less a fatal variance, between the allegations contained in the information and the prosecutor's stated factual basis for the plea agreement. Thus, the trial court did not err in accepting Defendant's plea. Defendant's assignment of error is overruled.
Defendant next argues that the trial court erred in determining that Defendant was a Level IV offender for sentencing purposes. Specifically, Defendant contends that the trial court erred in adding an additional sentencing point on the ground that one of Defendant's prior offenses included all of the elements of his present conviction for delivery of cocaine. We disagree.
Under N.C. Gen. Stat. § 15A-1444, "a defendant who has pled guilty has ... the right to appeal ... whether the sentence results from an incorrect finding of the defendant's prior record level under N.C. Gen. Stat. § 15A-1340.14[.]" State v. Carter, 167 N.C.App. 582, 584, 605 S.E.2d 676, 678 (2004). A defendant's prior record level "is determined by calculating the sum of the points assigned to each of the offender's prior convictions that the court ... finds to have been proved in accordance with [section 15A]." N.C. Gen. Stat. § 15A-1340.14(a) (2007). Furthermore, an additional point is added "[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted[.]" N.C. Gen. Stat. § 15A-1340.14(b)(6) (2007).
We note first that Defendant stipulated to being a Level IV offender and specifically stipulated to the addition of one point to his prior record level based on "the elements *901 of this crime [being] associated with previous crimes[.]"[3] However, while "a stipulation by [a] defendant may be sufficient to prove [the] defendant's prior record level, the trial court's assignment of a prior record level is a conclusion of law, which we review de novo." State v. Mack, 188 N.C.App. 365, 380, 656 S.E.2d 1, 12 (2008) (citing State v. Fraley, 182 N.C.App. 683, 690, 643 S.E.2d 39, 44 (2007)). "Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate...." State v. Prush, 185 N.C.App. 472, 480, 648 S.E.2d 556, 561 (2007) (citations and quotation marks omitted), disc. review denied, 362 N.C. 369, 663 S.E.2d 855 (2008). Furthermore, a trial court's determination of whether all the elements of a present offense are included in any prior offense involves the resolution of a matter of law, reviewable de novo on appeal. Id. Accordingly, we must review the trial court's calculation of Defendant's prior record level, despite Defendant's stipulation at the plea hearing. We conclude that the trial court correctly determined that Defendant was a Level IV offender by adding one point to his prior record level based on N.C. Gen. Stat. § 15A-1340.14(b)(6).
We find support for our conclusion in State v. Ford, ___ N.C.App. ___, 672 S.E.2d 689 (2009). In Ford, defendant argued that the trial court erred in determining his prior record level as the court impermissibly assigned one prior conviction point on the basis that all of the elements of attempted felonious larceny, of which defendant was found guilty, were included in a prior offense for which defendant was convicted. Specifically, defendant contended that "neither of [his] prior felonious larceny convictions included, as `elements' of the crimes, that [d]efendant took property valued over $ 1,000[,]" id. at ___, 672 S.E.2d at 690, as required by N.C. Gen. Stat. § 14-72(a) which states that "[l]arceny of goods of the value of more than one thousand dollars ($ 1,000) is a Class H felony." Id. (quoting N.C. Gen. Stat. § 14-72(a)).
This Court, noting that this contention had already "been addressed and rejected by prior decisions of our courts[,]" id., explained:
In North Carolina, larceny remains a common law crime and is defined as "`the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter's consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker's own use.'" Our Supreme Court has held that "[N.C. Gen. Stat. §] 14-72 relates solely to punishment for the separate crime of larceny," and this Court has concluded that "[t]he statutory provision upgrading misdemeanor larceny to felony larceny does not change the nature of the crime; the elements of proof remain the same."
Id. (internal citations omitted). Thus, this Court concluded that "for purposes of N.C. Gen. Stat. § 15A-1340.14(b)(6), it matters not under what provision of N.C. Gen. Stat. § 14-72 [d]efendant's prior felony larceny convictions were established" and held that the trial court properly determined defendant's prior record level. Id.
N.C. Gen. Stat. § 90-95(a)(1) provides:
(a) Except as authorized by this Article, it is unlawful for any person:
(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[.]
N.C. Gen. Stat. § 90-95(a)(1) (2007). "To prove sale and/or delivery of a controlled substance, the State must show a transfer of a controlled substance by either sale or delivery, or both." State v. Carr, 145 N.C.App. 335, 341, 549 S.E.2d 897, 901 (2001) (citing State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 127 (1990)).
In this case, Defendant pled guilty to delivery of a controlled substance, identified as cocaine, "in violation of N.C. [Gen. Stat.] § 90-95(a)(1)." Cocaine is included in Schedule II of the North Carolina Controlled *902 Substances Act. Defendant was previously convicted of delivery of a controlled substance, marijuana, in violation of N.C. Gen. Stat. § 90-95(a)(1). Marijuana is included in Schedule VI of the North Carolina Controlled Substances Act.
While delivery of a Schedule II controlled substance is punishable under N.C. Gen. Stat. § 90-95(b)(1) and delivery of a Schedule VI controlled substance is punishable under N.C. Gen. Stat. § 90-95(b)(2), as in Ford, the statutory provision for punishing delivery of cocaine differently from delivery of marijuana "`does not change the nature of the crime; the elements of proof remain the same.'" Ford, ___ N.C.App. at ___, 672 S.E.2d at 690 (citation omitted). Thus, as in Ford, for purposes of N.C. Gen. Stat. § 15A-1340.14 (b)(6), it matters not under what provision of N.C. Gen. Stat. § 90-95 Defendant's prior conviction for delivery of a controlled substance was punishable. Accordingly, we conclude that the trial court properly determined Defendant's prior record level. The assignment of error upon which Defendant's argument is based is overruled.
AFFIRMED.
Judges HUNTER, JR. and BEASLEY concur.
NOTES
[1] Where an appeal from a plea authorized by N.C. Gen. Stat. § 7A-272(c) lies, such appeal is to the appellate division. N.C. Gen. Stat. § 7A-272(d) (2007).
[2] The omission of the signature of the prosecutor is not a fatal defect. N.C. Gen. Stat. §§ 15A-644 (a)(4) and (b) (2007).
[3] The addition of one point pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(6) elevated Defendant from a Level III to a Level IV offender. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327134/ | 684 S.E.2d 397 (2009)
300 Ga. App. 261
SHEPPARD
v.
The STATE.
No. A09A0993.
Court of Appeals of Georgia.
September 29, 2009.
McNeill Stokes, Atlanta, for appellant.
Fredric D. Bright, Dist. Atty., Dawn M. Baskin, Asst. Dist. Atty., for appellee.
ADAMS, Judge.
This is the second appearance of this case in the Court of Appeals. Myron Wendell Sheppard was convicted on two counts of child molestation and sentenced to twenty years with ten to serve. His motion for new trial was denied and he appealed. This Court held that the evidence was sufficient to support the convictions and that Sheppard had waived his assertions that the Georgia Child Hearsay Statute is unconstitutional in light of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and that the same statute was unconstitutionally applied in his case. Sheppard v. State, 294 Ga.App. 270, 271-272(1), (2), 669 S.E.2d 152 (2008).
Sheppard also asserted that "the trial court erred when it admitted similar transaction evidence without holding a Uniform Superior Court Rule 31.3(B) hearing pursuant to Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991)." Sheppard, 294 Ga. App. at 270, 669 S.E.2d 152. On that point, this Court vacated the trial court's judgment of conviction and remanded the case "with direction that it determine whether a Rule 31.3(B) hearing has already been held and, if not, to hold such a hearing." Id. at 273, 669 S.E.2d 152. On remand, the trial court determined that a proper hearing as required by Rule 31.3(B) had been held on June 14, 2004, and a transcript of that hearing has been provided to this Court. The trial court concluded that "the proffer made by the *398 State's Attorney established the requirements for the admission of the similar transactions pursuant to Williams v. State . . . ." Accordingly, the court reinstated the judgment.
1. Sheppard contends the trial court erred because, at the hearing, the prosecutor only made a proffer of the similar transaction evidence rather than introducing the actual evidence of those events. Therefore, Sheppard contends, the State did not carry its burden of proof and, furthermore, he was deprived of an opportunity to confront and cross-examine the similar transaction witnesses. He argues that because he had no prior convictions associated with any of the alleged similar transactions and that the State did not have certified copies of prior convictions or pleas, the State was required to produce actual evidence of the prior occurrences at the Rule 31.3(B) hearing.
This Court has already addressed the question raised herein and held that where the defendant has the opportunity to cross-examine the relevant witnesses during trial, he or she has not been deprived of any substantial rights:
We have repeatedly approved of such a procedure; the question is "whether defendant was deprived of any substantial rights" by the proffer. (Emphasis omitted.) Houston v. State, 187 Ga.App. 335, 338(2), 370 S.E.2d 178 (1988); Harris v. State, 210 Ga.App. 366, 367(2), 436 S.E.2d 231 (1993). The recent decision of the United States Supreme Court limiting the hearsay exceptions to the Confrontation Clause to those "firmly rooted" in the common law do not persuade us otherwise, as the State introduced no hearsay evidence during trial, and Ellis had ample opportunity to cross-examine the similar transaction witness then. See Crawford v. Washington, 541 U.S. [at 41,] 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Ellis v. State, 282 Ga.App. 17, 23-24(3)(b), 637 S.E.2d 729 (2006). See also Hinton v. State, 290 Ga.App. 479, 481(2), 659 S.E.2d 841 (2008). In this case, as Sheppard admits, the similar transaction witnesses testified and were, therefore, subject to cross-examination. We find no error.
2. Sheppard's next two enumerations are identical to the first two enumerations raised in his initial appeal, and this Court already has determined that those assertions of error have been waived. Sheppard, 294 Ga.App. at 271-272(2), 669 S.E.2d 152. Accordingly, they represent the law of the case. OCGA § 9-11-60(d).
Judgment affirmed.
BLACKBURN, P.J., and DOYLE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327156/ | 178 S.E.2d 446 (1971)
277 N.C. 720
William Clinton BRADY
v.
TOWN OF CHAPEL HILL and Harold P. Smith.
No. 76.
Supreme Court of North Carolina.
January 20, 1971.
*447 Ottway Burton, Asheboro, for plaintiff appellant.
Perry C. Henson and Daniel W. Donahue, Greensboro, for defendant appellees.
SHARP, Justice:
Except in certain instances not material here, "original general jurisdiction of all justiciable matters of a civil nature cognizable in the General Court of Justice is vested in the aggregate in the superior court division and the district court division as the trial divisions of the General Court of Justice." G.S. § 7A-240. In general, the district court division is the proper division for the trial of all civil actions in which the amount in controversy is $5,000.00 or less; and the superior court division is the proper division for the trial of all civil actions in which the amount in controversy exceeds $5,000.00. G.S. § 7A-243. The respective divisions are constituted proper or improper for the trial of specific actions in accordance with the provisions of N.C.Gen.Stats. Ch. 7A, art. 20. However, it is specifically provided by G.S. § 7A-242 that "no judgment rendered by any court of the trial divisions in any civil action or proceeding as to which the trial divisions have concurrent original jurisdiction is void or voidable for the sole reason that it was rendered by the court of a trial division which by such allocation is improper for the trial and determination of the civil action or proceeding." (Emphasis added.)
The foregoing statutes make it clear that after Judge Carr entered his order transferring this cause from the superior court division of the General Court of Justice to the district court division, the latter was the proper division in which to try this case. Nothing else appearing, disposition of the case thereafter in the Superior Court was irregular and contrary to the course and practice in the General Court of Justice. However, the judgment of the Superior Court dismissing the action was not, as plaintiff's counsel contends, void.
From the record it is apparent that Judge Ragsdale was unaware of Judge Carr's order transferring the action to the district court. The judgment of dismissal *448 in this case was a mischance, which need not, and should not, have occurred. The clerk erred when he calendared the case for trial in the superior court division; plaintiff's counsel erred when he failed to respond to the notice from the court. Had he appeared and informed the judge of the transfer, the dismissal from which he has attempted to appeal would not have occurred. After the judgment of dismissal was entered in his absence, however, plaintiff's remedyif anywas by a motion in the cause under G.S. § 1A-1, Rule 60(b), and not by appeal. Rule 60(b) provides:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
"(1) Mistake, inadvertence, suprise, or excusable neglect;
* * *
"(6) Any other reason justifying relief from the operation of the judgment." (For a succinct discussion of corresponding Fed.R.Civ.P. 60(b) (1) and (6) see 3 Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.1958) §§ 1325, 1329.)
Motions under Rule 60(b) must be made "within a reasonable time." When the motion is based on reason (1) the rule requires it to be made not later than one year after the judgment is taken or entered. If movant is uncertain whether to proceed under clause (1) or (6) of Rule 60(b) he need not specify if his "motion is timely and the reason justifies relief." 7 Moore's Federal Practice § 60.27(2) (2d ed.1970). The broad language of clause (6) "gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice." 3 Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.) § 1329.
The Court of Appeals dismissed this appeal because (1) it was not taken within ten days of the rendition of a judgment as required by G.S. § 1-279 and (2) plaintiff failed to give notice to defendants as required by G.S. § 1-280. Plaintiff's failure to comply with the requirements of these two statutes would have required the dismissal of the appeal had it been authorized by law. Teague v. Teague, 266 N.C. 320, 146 S.E.2d 87; Walter Corporation v. Gilliam, 260 N.C. 211, 132 S.E.2d 313; 1 N.C. Index 2d Appeal and Error § 14 (1967). However, under the circumstances here disclosed, if plaintiff is to have relief from the judgment of dismissal entered because of his failure to prosecute the action, he must seek it by motion in the cause in the Superior Court of Orange County, where the judgment was rendered. The procedure under Rule 60(b) is analogous to the former practice under G.S. § 1-220 and under motions to set aside an irregular judgment. See Walker v. Story, 262 N.C. 707, 138 S.E.2d 535; Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897; Menzel v. Menzel and Williams v. Blades, 250 N.C. 649, 110 S.E.2d 333; Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619, 5 N.C. Index 2d Judgments §§ 19 and 24; McIntosh, North Carolina Practice and Procedure §§ 653, 655 (1929). If, upon timely motion made in the Superior Court, plaintiff is able to show that he has a meritorious cause of action and that he himself has acted with proper diligence throughout, the judge may, upon such terms as are just, relieve him from the judgment of dismissal.
The order of the Court of Appeals dismissing plaintiff's appeal is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327336/ | 96 Ga. App. 887 (1958)
101 S.E.2d 920
LIBERTY MUTUAL INSURANCE COMPANY et al.
v.
GOINS.
36973.
Court of Appeals of Georgia.
Decided January 21, 1958.
*889 Anderson, Anderson, Walker & Reichert, W. W. Hemingway, for plaintiffs in error.
Cullen M. Ward, Ward, Brooks, Parker & Daniel, contra.
QUILLIAN, Judge.
1. There is no question that the claimant is entitled to compensation because there was ample evidence to support the finding that he was disabled as a result of an injury arising out of and in the course of his employment. The question to be decided here is whether the claimant was awarded the proper amount of compensation. Code (Ann.) § 114-405 provides: "Except as otherwise provided in the next section hereafter, where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity a weekly compensation equal to 60 percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than $20 a week, and in no case shall the period covered by such compensation be greater than 350 weeks from the date of injury. In case the partial incapacity begins after a period of total incapacity, the latter period shall be deducted from the maximum period herein allowed for partial incapacity. The total *890 compensation payable shall in no case exceed $6,000. (Acts 1922, p. 190; 1923, p. 95; 1949, pp. 1357, 1358; 1955, pp. 210, 211)."
Under the above Code section, the only method of computing the claimant's compensation is 60 percent of the difference between his average weekly wages prior to the injury and the average weekly wages he was able to earn thereafter, but not to exceed $20 per week. Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560 (121 S.E. 345); American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 (127 S.E. 155). The only formula for determining this difference is to compare his average weekly wages prior to the injury with wages earned each individual week thereafter until the time of the hearing. This is true because he may have earned varying amounts during the period prior to the hearing. If there are periods of unemployment, through no fault of the claimant, due to the injury then he would be entitled to temporary total disability for this period. Lumberman's Mutual Cas. Co. v. Cook, 69 Ga. App. 131 (2) (25 S.E.2d 67).
In the present case the claimant had several periods of unemployment which the director held were the result of the injury and due to no fault of the claimant. There was evidence to support this finding, and the claimant should be awarded compensation for temporary total disability during these periods. During the period between the injury and the time of the hearing the claimant obtained several different jobs at varying wages which were less than his average weekly wages prior to the injury, and the claimant should be compensated in the amount of 60 percent of the difference between these wages.
From approximately September 10, 1956, to the date of the hearing, the claimant's weekly wages were raised to $55, which was $2.29 higher than his average weekly wages prior to the injury. In American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 (1), supra, it was held: "There is no recognition of the elements of pain and suffering, or of increased discomfort and difficulty in performing the labors for which wages are paid after the injury; and as long as the average of these remain the same or more than those previously received, the law allows no compensation through the machinery of the industrial commission."
*891 Under the above authority, the claimant will not be entitled to compensation for the period in which he earned more than his average weekly wages prior to the injury.
The evidence being incomplete as to the exact dates of the claimant's employment and wages from the date of the injury to the time of the hearing, in complying with this decision it will be necessary that the board hear additional evidence as to these facts.
The judgment of the superior court is reversed with direction that the case be remanded to the Workmen's Compensation Board for the purpose of taking additional evidence to determine the amount of compensation due the claimant, in accordance with the ruling in this opinion.
Judgment reversed with directions. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327761/ | 411 S.E.2d 491 (1992)
261 Ga. 806
MEDERS
v.
The STATE.
No. S91P1361.
Supreme Court of Georgia.
January 9, 1992.
*492 James K. Jenkins, Maloy & Jenkins, Atlanta, Andru H. Volinsky, Concord, for Jimmy Fletcher Meders.
Glenn Thomas, Jr., Dist. Atty., Brunswick, John B. Johnson, III, Asst. Dist. Atty., Jesup, Michael J. Bowers, Atty. Gen., Atlanta, for the State.
C.A. Benjamin Woolf, Atty., State Law Dept., Atlanta, Attorney Register.
Patsy Morris, Atlanta, Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna.
CLARKE, Chief Justice.
Jimmy Fletcher Meders was convicted in Glynn County of malice murder and armed robbery and sentenced to death. He appealed to this court. We issued an opinion addressing the issues raised on appeal but deferring a sentence review until after proceedings on remand we ordered (at the state's request) to address the issue of trial counsel's effectiveness. Meders v. State, 260 Ga. 49(10), 389 S.E.2d 320 (1990). On remand, the trial court conducted a hearing on the issue of effectiveness of counsel and concluded that Meders had not been denied effective assistance of counsel. The court issued a nine-page order fully explaining its conclusion that Meders' trial counsel was effective. The case is again in this court for review of the proceedings on remand and for the sentence review required by OCGA § 17-10-35.[1]
1. Meders argues the trial court should have appointed to assist him at the remand hearing a mental health expert, a jury composition expert, and a criminal defense attorney to testify as an expert witness on the issue of ineffectiveness.
Meders was represented by two attorneys in the remand proceedings. He was not entitled to the appointment of a third attorney to testify as an expert witness about how properly to try a death penalty case. Nor was expert assistance necessary to determine whether or not the jury lists fairly represented the population of Glynn County. See Spivey v. State, 253 Ga. 187(7a), 319 S.E.2d 420 (1984). Finally, it was not an abuse of discretion to deny Meders' motion for independent psychological assistance. See Christenson v. State, 261 Ga. 80(2), 402 S.E.2d 41 (1991).
2. The trial court's nine-page order persuasively demonstrates that Meders has failed to overcome the "strong presumption" that Meders' trial counsel performed effectively. Ferrell v. State, 261 Ga. 115(3), 401 S.E.2d 741 (1991).
3. The jury found the presence of two statutory aggravating circumstances supporting its imposition of a death sentence: (1) the offense of murder was committed while the defendant was engaged in the commission of armed robbery, and (2) the defendant committed the offense of murder for the purpose of receiving money or any other thing of monetary value. See OCGA § 17-10-30(b)(2) and (b)(7). The evidence supports these findings. OCGA § 17-10-35(c)(2).
4. We do not find that Meders' death sentence was imposed as the result of passion, prejudice or other arbitrary factor. OCGA § 17-10-35(c)(1). His death sentence is neither excessive nor disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35(c)(3). The similar cases listed in the Appendix support *493 the imposition of a death sentence in this case.
Judgment affirmed.
WELTNER, P.J., and BELL, HUNT, BENHAM and FLETCHER, JJ., concur.
APPENDIX
Miller v. State, 259 Ga. 296, 380 S.E.2d 690 (1989); Lee v. State, 258 Ga. 82, 365 S.E.2d 99 (1988); Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987); Ford v. State, 257 Ga. 461, 360 S.E.2d 258 (1987); Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986); Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986); Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984); Finney v. State, 253 Ga. 346, 320 S.E.2d 147 (1984); Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984); Roberts v. State, 252 Ga. 227, 314 S.E.2d 83 (1984); Putman v. State, 251 Ga. 605, 308 S.E.2d 145 (1983); Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983); Wilson v. State, 250 Ga. 630, 300 S.E.2d 640 (1983); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982); Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685 (1982); Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1981); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980); Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979); Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718 (1979); Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977); Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (1976); Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8 (1976); Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3 (1976); Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703 (1976); Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975); Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974).
NOTES
[1] The remand hearing took place March 26, 1991. The trial court issued its order on July 10, 1991. The case was docketed in this court on July 17, 1991. Oral arguments were heard on September 24, 1991. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327277/ | 226 Ga. 871 (1970)
178 S.E.2d 178
CITIZENS BANK OF HAPEVILLE
v.
ALEXANDER-SMITH ACADEMY, INC.
26128.
Supreme Court of Georgia.
Submitted October 14, 1970.
Decided November 5, 1970.
Leonard M. Steinberg, for appellant.
Dunaway, Shelfer, Haas & Newberry, Bruce Weddell, for appellee.
MOBLEY, Presiding Justice.
Appellee, Alexander-Smith Academy, Inc., brought a complaint in equity against appellant, Citizens Bank of Hapeville, and Homer A. Spruill, Marshal of the Civil Court of Fulton County, to set aside a judgment rendered against it in a garnishment proceeding. The trial court sustained appellee's motion for summary judgment, quashed the "attempted service of summons of garnishment on plaintiff," and declared the judgment entered null and void.
The appeal is from that judgment, and enumerated as error is the grant of the judgment.
The material facts are: Citizens obtained a judgment against *872 Hugh D. Thompson, Jr., an employee of appellee. Citizens brought garnishment proceedings against appellee, which were served by Homer A. Spruill, through his deputy, Higginbotham, by handing the summons of garnishment to Marion Brown, a receptionist-typist in appellee's office. Thompson, who happened to be in the office at the time, took the papers and disposed of them, and the officers of the company knew nothing about the garnishment. Thereafter judgment by default was taken against appellee.
The issue is whether service of garnishment proceedings was properly made upon appellee, Alexander-Smith Academy, Inc., by handing the summons to Marion Brown, an employee of the corporation.
Code § 46-106 provides: "Service of a summons of garnishment upon the agent in charge of the office or business of the corporation in the county or district at the time of service shall be sufficient." The sole question is whether Marion Brown was the agent in charge of the office or business of the corporation when served. We are of the opinion that the uncontradicted evidence shows that she was not a person upon whom service could be perfected.
By affidavit, Ralph G. Page swore that he was chief executive officer of appellee and was agent in charge of the office and business of the corporation and was present throughout the day of the attempted service, and that he was never apprised of the existence of the garnishment prior to the default judgment taken thereon.
Paul R. Smith, president and director of appellee, swore that Marion Brown was a receptionist-typist and had no authority to accept service of the garnishment papers or processes of any nature, and that only Ralph G. Page, chief executive officer, was designated to accept processes concerning garnishment, and on the date of service he was the agent in charge of the office and place of business.
Marion Brown, by affidavit, swore that she is only a receptionist-typist, has been employed to perform in no other capacity, and has never been instructed to accept service of process. She *873 denied the statement in the answer of Homer A. Spruill that at the time Higginbotham handed her the summons of garnishment, she told him she was the proper person with whom to leave it.
A careful review of the pleadings and affidavits reveals that the statement of Spruill is the only evidence that could possibly make an issue of fact, and it does not do so for the reason that it is hearsay what Higginbotham, who served the summons, told him that Marion Brown said. Being hearsay, it has no probative value and, furthermore, it was not made on personal knowledge as required by Code Ann. § 81A-156 (e) (Ga. L. 1966, pp. 609, 660). There was no evidence to contradict the sworn statements of Page, Smith, and Marion Brown that she was not the agent in charge of appellee's office, and that she did not tell Higginbotham that she was.
The trial court properly held that the attempted service of summons of garnishment was not properly perfected on appellee according to Code § 46-106, and that there was no showing made, by affidavit or otherwise, that there existed a genuine issue of material fact for trial; and properly granted appellee's motion for summary judgment, quashed the attempted service of garnishment, and declared the judgment entered against appellee null, void, and of no effect.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327129/ | 684 S.E.2d 483 (2009)
STATE of North Carolina
v.
Gary Frances MELLO.
No. COA08-1052.
Court of Appeals of North Carolina.
November 3, 2009.
*485 Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.
Glover & Peterson, P.A., by James R. Glover, Chapel Hill, for Defendant.
ERVIN, Judge.
On appeal, Gary Frances Mello (Defendant) challenges the order entered by Judge Steve A. Balog (trial court) on 26 September 2007 denying his motion to suppress evidence seized during a traffic stop. For reasons set forth below, we find no error.
Factual Background
By 26 August 2006, Officer J.R. Pritchard had been employed by the Winston-Salem Police Department for about two and a half years. After completing Basic Law Enforcement Training, Officer Pritchard had received training in making drug arrests that included participating in numerous investigations with training officers. Officer Pritchard had made many arrests for drug violations and had conducted drug surveillance activities.
At approximately 10:30 a.m. on 26 August 2006, Officer Pritchard was patrolling the area of Chandler and Amanda Place when he observed a vehicle driven by Defendant stop about fifteen to twenty yards away. At that time, Officer Pritchard watched "two other individuals approach the vehicle putting their hands into the vehicle;" however, he did not see any exchange or transfer of money. Officer Pritchard had not previously seen Defendant, but he recognized the two men standing outside the vehicle. He did not, however, know their names or whether he had previously arrested them. Officer Pritchard characterized the area of Chandler and Amanda Place as "a very well-known drug location" where he had previously made drug-related arrests.
Based on his observation of the interaction between Defendant and the two individuals who approached his vehicle, Officer Pritchard suspected that he had witnessed a "drug transaction," something he had seen on numerous prior occasions. After seeing the episode at Defendant's automobile, Officer Pritchard drove a short distance before turning around. At that point, the two individuals fled the area, with one of them quickly entering a house. In addition, Defendant started driving away from the area in the opposite direction from that in which Officer Pritchard was traveling. According to Officer Pritchard, Defendant did not commit any traffic offense as he attempted to drive away. Officer Pritchard turned around again and stopped Defendant's vehicle. Defendant pulled over about a quarter of a mile after Officer Pritchard activated his blue light.
After he stopped Defendant's vehicle, Officer Pritchard approached the automobile and ascertained that Defendant was in the driver's seat and that there was a passenger named Robin Laughlin in the passenger seat. As he began to converse with Defendant, Officer Pritchard noticed that Defendant was clutching a white, rocklike substance. Defendant threw the substance to the floor. Subsequent testing revealed the substance to be .2 grams of cocaine base. In addition, Officer Pritchard recovered what he believed to be a crack pipe from Defendant's vehicle.
Procedural History
On 26 August 2006, a Magistrate's Order was issued charging Defendant with felonious possession of cocaine and possession of drug paraphernalia. On 26 February 2007, the Forsyth County grand jury returned a bill of indictment charging Defendant with felonious possession of cocaine and possession of drug paraphernalia.
On 16 April 2007, Defendant filed a motion to suppress the evidence obtained from his traffic stop on 26 August 2006. A hearing on Defendant's suppression motion was held on 31 August 2007. On 26 September 2007, the trial court entered an order denying Defendant's suppression motion.
On 10 December 2007, Defendant entered a plea of guilty to felonious possession of cocaine and possession of drug paraphernalia before Judge Long. Before entering his guilty plea, Defendant reserved the right to appeal the denial of his suppression motion to this Court. Based upon his guilty plea, Judge Long determined that Defendant was a Level III offender given that he had accumulated 5 prior record level points, that Defendant *486 should be sentenced in the presumptive range, and that the two offenses for which Defendant had pled guilty should be consolidated for judgment. After Defendant declined a probationary sentence, Judge Long ordered that Defendant be imprisoned for a minimum term of 5 months and a maximum term of 6 months imprisonment in the custody of the North Carolina Department of Correction. Defendant gave notice of appeal to this Court from the judgment entered by Judge Long.
Analysis
In his only challenge to his convictions and sentence, Defendant asserts that Officer Pritchard lacked the reasonable suspicion of criminal activity needed to conduct a valid investigatory stop of his vehicle on 26 August 2006 so that the trial court erred in denying his motion to suppress the evidence seized as a result of that stop. After carefully examining the trial court's order denying Defendant's motion to suppress in light of the evidentiary record and the applicable law, we disagree.
"[T] he scope of appellate review of [a denial of a motion to suppress] is strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). A trial court's factual findings are binding on appeal "if there is evidence to support them, even though the evidence might sustain findings to the contrary." Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) (citations omitted). We review the trial court's conclusions of law de novo. State v. Edwards, 185 N.C.App. 701, 702, 649 S.E.2d 646, 648, disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007). Based on this standard of review, we turn our attention to the findings of fact and conclusions of law contained in the trial court's order denying Defendant's motion to suppress.
In denying Defendant's suppression motion, the trial court made the following findings of fact:
1. Officer J[.] R[.] Pritchard has been an officer in the Winston-Salem Police Department for 3.5 years.
2. Officer Pritchard has had training in drug arrests and surveillance of drug activity.
3. Officer Pritchard has made numerous drug arrests.
4. Officer Pritchard has, in his duties, regularly patrolled the area of Chandler and Amanda Place.
5. Officer Pritchard has made drug arrests at Chandler and Amanda Place and has assisted other officers in making drug arrests at Chandler and Amanda Place, as well.
6. On August 26, 2006, Officer Pritchard was on duty and routine patrol in the area of Chandler and Amanda Place.
7. From training and experience, Officer Pritchard knew the area of Chandler and Amanda Place to be a well known drug location with high drug activity.
8. On August 26, 2006[,] at 10:30 a[.]m[.], Officer Pritchard drove by a motor vehicle operated by the Defendant. Officer Pritchard passed within 15-20 yards of the Defendant, traveling 10-15 MPH.
9. Officer Pritchard observed Defendant's vehicle stationary on Amanda Place, and saw two individuals on foot approach the driver's side of the Defendant's vehicle where the Defendant was located.
10. The two individuals inserted their hands into the Defendant's vehicle. Officer Pritchard did not see any object or money in their hands, nor did he observe any direct exchange between the individuals and the Defendant or any other persons in the car.
11. After brief contact, these individuals left the Defendant's car.
12. Officer Pritchard had not seen the Defendant before. He had seen the two pedestrians before. Their faces were familiar, but he did not know their names.
*487 13. Officer Pritchard suspected it was a drug transaction in which the Defendant had been involved and had observed numerous similar drug transactions in the past.
14. Officer Pritchard turned his car around and saw the two individuals on foot flee the area, one going into a nearby house.
15. As Officer Pritchard came back down the street, he observed the Defendant moving in the opposite direction. Officer Pritchard initiated a traffic stop of the Defendant.
16. Officer Pritchard did not suspect that Defendant had committed any traffic violations.
17. After stopping the Defendant and making contact, Officer Pritchard seized the objects that are the subject of the Defendant's motion to suppress.
Based on these findings of fact, the trial court concluded as a matter of law that, "[u]nder the totality of the circumstances, Officer Pritchard had reasonable suspicion based on articulable facts that to an officer of his experience and training would lead him to believe that the Defendant was involved in a drug transaction and was therefore justified in making an investigatory stop of the Defendant's vehicle." In light of these findings of fact and conclusions of law, the trial court denied Defendant's motion to suppress.
Sufficiency of the Evidence to Support the Findings of Fact
First, Defendant challenges the sufficiency of the evidentiary support for Findings of Fact Nos. 13 and 14, which provide that:
13. Officer Pritchard suspected it was a drug transaction in which the Defendant had been involved and had observed numerous similar drug transactions in the past.
14. Officer Pritchard turned his car around and saw the two individuals on foot flee the area, one going into a nearby house.
As a result, the first issue that we must address is the extent, if any, to which the challenged findings of fact are supported by competent evidence in the record.
The essential thrust of Finding of Fact No. 13 is that Officer Pritchard suspected that the interaction between Defendant and the two men that approached his vehicle on foot was a drug transaction and that he had observed drug transactions on other occasions. At the suppression hearing, Officer Pritchard testified as follows:
Q: What, if anything, brought your attention to the defendant, Officer?
A: I observed the vehicle that had pulled down into the area of Amanda Place. I observed two other individuals approach the vehicle putting their hands into the vehicle, which is what I observed to be a suspected drug
MR. JAMES: Objection. ...
THE COURT: Overruled.
A: Which is what I observed to be a suspected drug transaction. I've observed numerous transactions very similar to the way that it took place.
As a result, Officer Pritchard's testimony provides sufficient evidentiary support for Finding of Fact No. 13.
Similarly, the essential thrust of Finding of Fact No. 14 is that Officer Pritchard observed the two individuals who had approached Defendant's vehicle flee the area. The dictionary defines to "flee" as "[t]o run away, as from trouble or danger." American Heritage Dictionary of the English Language 519 (3rd ed. 1997). According to Defendant, the fact that Officer Pritchard observed the two individuals quickly leaving the area, with one ducking into a nearby house, is not evidence of flight. Officer Pritchard testified at the suppression hearing that he "observed both of the two individuals who had been at the vehicle fleeing from the area." The appellate courts in this jurisdiction have allowed witnesses to testify that individuals were "fleeing" or "in flight" under the rubric of a "shorthand statement of fact," see State v. Moore, 301 N.C. 262, 271, 271 S.E.2d 242, 247-48 (1980), overruled on other grounds, State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986) (stating that "this Court has long held that a witness may state `the *488 instantaneous conclusions of the mind as to the appearance, condition, or physical or mental state of persons, animals, or things, derived from the observation of a variety of facts presented to the senses at one and the same time'") (quoting State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975)), so this portion of Officer Pritchard's testimony was clearly competent and supported the challenged factual finding. As a result, Officer Pritchard's testimony provides ample support for the trial court's conclusion that the two individuals that approached Defendant's vehicle fled when Officer Pritchard turned his patrol vehicle around.
Thus, the only two findings of fact that Defendant has challenged on appeal have adequate evidentiary support. For that reason, all of the trial court's factual findings must be deemed true for the purpose of analyzing the appropriateness of the trial court's conclusions of law.
Reasonable Suspicion
Finally, Defendant challenges the trial court's conclusion of law that:
Under the totality of the circumstances, Officer Pritchard had reasonable suspicion based on articulable facts that to an officer of his experience and training would lead him to believe that the Defendant was involved in a drug transaction and was therefore justified in making an investigatory stop of the Defendant's vehicle.
According to Defendant, the trial court's findings of fact did not support its conclusion that Officer Pritchard had a reasonable suspicion to believe that defendant was involved in a drug transaction. In other words, Defendant contends that, even accepting the trial court's findings of fact as valid, those factual findings demonstrate that Officer Pritchard did not have the necessary reasonable suspicion to justify stopping Defendant's vehicle on 26 August 2006.
"An investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357, 362 (1979)). "Terry v. Ohio and its progeny have taught us that in order to conduct a warrantless, investigatory stop, an officer must have a reasonable and articulable suspicion of criminal activity." State v. Hughes, 353 N.C. 200, 206-07, 539 S.E.2d 625, 630 (2000) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
A court must consider "the totality of the circumstances the whole picture" [-] in determining whether a reasonable suspicion to make an investigatory stop exists. U.S. v. Cortez, 449 U.S. 411, 417 [101 S. Ct. 690, 695] 66 L. Ed. 2d 621, 629 (1981). The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. Terry, 392 U.S. at 21-22, [88 S.Ct. at 1879-80], 20 L.Ed.2d at 906; State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907 [100 S. Ct. 220] 62 L. Ed. 2d 143 (1979). The only requirement is a minimal level of objective justification, something more than an "unparticularized suspicion or hunch." U.S. v. Sokolow, 490 U.S. 1, 7 [109 S. Ct. 1581, 1585] 104 L. Ed. 2d 1, 10 (1989).
Watkins, 337 N.C. at 441-42, 446 S.E.2d at 70. As a result, the ultimate issue before the trial court in a case involving the validity of an investigatory detention is the extent to which the investigating officer has a reasonable articulable suspicion that the defendant might be engaged in criminal activity.
The Supreme Court held that an investigatory detention was appropriate on the basis of a remarkably similar set of facts in State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992). In Butler, the defendant sought the suppression of evidence relating to his purchase of a .12 gauge shotgun from a Fayetteville pawnshop and statements he made to Officer Ernesto Hedges of the Tampa, Florida, Police Department. The Supreme Court described the facts on which it based its decision as follows:
Officer Hedges obtained the gun purchase receipt and the statements on 11 October 1989 while on patrol as a uniformed officer assigned to a specialty drug unit in Tampa. *489 Hedges and his partner saw defendant, an unfamiliar figure, standing with a group of people on a Tampa street corner known as a "drug hole," an area frequented by drug dealers and users. Hedges had had the area under daily surveillance for several months. In the past six months, Hedges had made four to six arrests at the corner and knew that other arrests had occurred there. As Hedges and his partner approached the group, defendant and the officers made eye contact, at which point defendant immediately turned and walked away.
Their suspicions raised, the officers followed defendant and asked him for identification. Defendant handed Hedges a Florida driver's license. Before Hedges accepted the identification, he frisked defendant's person. Hedges testified that he conducted the frisk in order to discover any weapons and for his own protection during the face-to-face encounter with a person he suspected of drug activity.
Id., 331 N.C. at 231-32, 415 S.E.2d at 721. After ascertaining that the defendant was wanted for murder in North Carolina, Officer Hedges placed him under arrest. The Supreme Court held that the investigatory detention at issue in Butler did not run afoul of the state and federal constitutional protections against unreasonable searches and seizures. According to the Supreme Court:
In determining whether the Terry standard is met, we must consider Hedges' actions in light of the totality of the circumstances. Rinck, 303 N.C. at 559, 280 S.E.2d at 919; [State v.] Streeter, 283 N.C. [203] at 210, 195 S.E.2d [502] at 506 [(1973) ]. Those circumstances are: 1) defendant was seen in the midst of a group of people congregated together on a corner known as a "drug hole;" 2) Hedges had had the corner under daily surveillance for several months; 3) Hedges knew this corner to be a center of drug activity because he had made four to six drug-related arrests there in the past six months; 4) Hedges was aware of other arrests there as well; 5) defendant was a stranger to the officers; 6) upon making eye contact with the uniformed officers, defendant immediately moved away, behavior that is evidence of flight; and 7) it was Hedges' experience that people involved in drug traffic are often armed.
While no one of these circumstances alone necessarily satisfies Fourth Amendment requirements, we hold that, when considered in their totality, Officer Hedges had sufficient suspicion to make a lawful stop. Hedges observed defendant not simply in a general high crime area, but on a specific corner known for drug activity and as the scene of recent, multiple drug-related arrests. See United States v. Rickus, 737 F.2d 360, 365 (3d Cir.1984) (presence of defendants in area that recently experienced "a spate of burglaries"); United States v. Magda, 547 F.2d 756, 758-59 (2d Cir.1976) (two suspects observed one hundred feet west of a park which was under twenty-four hour surveillance for drug activity), cert. denied, 434 U.S. 878 [98 S. Ct. 230] 54 L. Ed. 2d 157 (1977). The United States Supreme Court has held that mere presence in a neighborhood frequented by drug users is not, standing alone, a basis for concluding that the defendant was himself engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 52 [99 S. Ct. 2637, 2641] 61 L. Ed. 2d 357, 362-63 (1979). Here, however, there was an additional circumstance-defendant's immediately leaving the corner and walking away from the officers after making eye contact with them. See United States v. Jones, 619 F.2d 494, 494 (5th Cir.1980) (individual's flight from uniformed law enforcement officer may be a fact used to support reasonable suspicion "that criminal activity is afoot"); Magda, 547 F.2d at 758-59 (defendant's companion immediately moved away with a "rapid motion" after looking in direction of observing officer); State v. Belton, 441 So. 2d 1195, 1198 (La.1983) (flight, nervousness, or a startled look at the sight of an officer may be a factor leading to reasonable suspicion), cert. denied, 466 U.S. 953 [104 S. Ct. 2158] 80 L. Ed. 2d 543 (1984).
Id., 331 N.C. at 233-34, 415 S.E.2d at 722-23; See also In re I.R.T., 184 N.C.App. 579, 585-86, 647 S.E.2d 129, 134-35 (2007) (holding that the officer had reasonable grounds to conduct an investigatory detention where a *490 juvenile in a high drug area started walking away upon the approach of a law enforcement officer while keeping his head turned away from the officer and while moving his mouth as if he had something in it); State v. Crenshaw, 144 N.C.App. 574, 578-79, 551 S.E.2d 147, 149-50 (2001) (stating that the officer had reasonable grounds to frisk defendant "based upon the officers' familiarity with defendant, defendant's presence in a specific area known for drug activity, and defendant's having been illegally parked"); State v. Willis, 125 N.C.App. 537, 542, 481 S.E.2d 407, 411 (1997) (stating that "[t]he Butler Court held that, when an individual's presence at a suspected drug area is coupled with evasive action, police may form, from those actions, the quantum of reasonable suspicion necessary to conduct an investigatory stop"); State v. Watson, 119 N.C.App. 395, 397-99, 458 S.E.2d 519, 521-23 (1995) (holding that officer had reasonable grounds to suspect criminal activity when a defendant with a history of drug involvement, while in an area in which numerous drug arrests had been made, attempted to enter a convenience store and to swallow the drugs in his possession upon the approach of law enforcement officers). The remarkable similarity between the facts at issue here and the facts at issue in Butler requires us to begin our analysis of the legal issues that are raised by Defendant's challenge to the trial court's order denying his suppression motion by examining those similarities.
A careful review of the record indicates that all of the features that led the Supreme Court to uphold the investigative detention at issue in Butler are present in this case as well. At bottom, Defendant voluntarily entered a drug-ridden area, comparable to the one in which Officer Hedges found the defendant in Butler. While in the area, two individuals approached Defendant's car and inserted their hands into the interior of the vehicle. After Officer Pritchard became suspicious and approached Defendant and the two pedestrians, the two pedestrians fled and Defendant began to drive off. In the same manner, the defendant in Butler attempted to walk away after making eye contact with Officer Hedges. Under the analysis adopted by the Supreme Court in Butler, this combination of presence in an area known to be a center of drug-related activity coupled with evasive action on the part of individuals involved in some sort of interaction with Defendant is sufficient to support a conclusion that Officer Pritchard had the "reasonable articulable suspicion" necessary to support an investigative detention. In fact, having seen the two pedestrians approach Defendant's vehicle and insert their hands into it, an action which the trial court found to have the appearance of a hand-to-hand drug transaction, Officer Pritchard actually had more of a basis for suspecting that criminal activity was afoot in this instance than Officer Hedges had for suspecting that something was amiss in Butler. State v. Summey, 150 N.C.App. 662, 667, 564 S.E.2d 624, 628 (2002) (holding that an officer's belief that he had observed the occupants of a truck participate in a drug transaction supported a valid investigatory detention of the truck and its occupants); State v. Clyburn, 120 N.C.App. 377, 380-81, 462 S.E.2d 538, 540-41 (1995) (holding that an officer's reasonable belief that he had witnessed a hand-to-hand drug transaction helped provide a "reasonable suspicion to make an investigatory stop of defendant's vehicle"). Thus, since the Supreme Court's decision in Butler is binding on this Court and since we are not persuaded that Butler can be distinguished from this case in any meaningful way, we do not believe that Butler leaves us with any alternative except to affirm the trial court's order denying Defendant's suppression motion.
The dissent, after noting our reliance on Butler and summarizing the facts of and decision in that case, attempts to distinguish this case from Butler on a number of different grounds. However, none of the bases upon which the dissent attempts to distinguish this case from Butler are persuasive.
First, the dissent appears to challenge the conclusion that the investigatory detention of Defendant took place in a drug-ridden area. In making this argument, the dissent contends that Officer Pritchard "based his opinion" that "`the area of Chandler and Amanda Place' was `a well-known drug location'" "on the fact that he had made and assisted in other drug arrests in the same area during *491 his two and a half years with the Winston-Salem Police Department;" that "he did not know the specific number of arrests made;" and that Officer Pritchard was "assigned to an adjoining beat" rather than to the Chandler and Amanda Place area "at the time.[1]" Put another way, the first argument advanced in the dissent tends to suggest that the area around Chandler and Amanda Place was not a drug-ridden area to the same extent as that in which the investigatory detention at issue in Butler occurred. However, the trial court determined, in a finding of fact that Defendant has not challenged on appeal and which is, for that reason, binding on us for purposes of appellate review, State v. Fuller, ___ N.C.App. ___, ___, 674 S.E.2d 824, 829 (2009) (stating that "where, as here, the defendant does not challenge the findings of fact on appeal, they are binding, and the only question before this Court is whether those findings support the trial court's conclusions") (citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982); State v. Cooper, 186 N.C.App. 100, 103, 649 S.E.2d 664, 666 (2007), disc. review denied, 361 N.C. 698, 666 S.E.2d 761 (2008)), that Officer Pritchard "knew the area of Chandler and Amanda Place to be a well known drug location with a high drug activity." Thus, given the trial court's finding that Officer Pritchard "knew the area of Chandler and Amanda Place to be a well known drug location with a high drug activity," the first basis upon which the dissent attempts to distinguish Butler is not persuasive.
Secondly, the dissent points out that, "as to the alleged transaction, Officer Pritchard did not see any exchange." Although the dissent suggests that this factor, along with others, serves to "render Butler inapplicable to this appeal," we do not agree. The existence of evidence tending to suggest, as the trial court found, that a hand-to-hand drug transaction had occurred in Officer Pritchard's presence makes the case for an investigatory detention here stronger than the one before the Court in Butler, since there was no evidence that Officer Hedges had witnessed such an unlawful act prior to initiating the investigatory detention at issue there.[2] Thus, the fact that Officer Pritchard did not actually witness an exchange between Defendant and the two individuals that approached his vehicle, while certainly making this case different from Butler, does not do so in such a manner as to suggest that the trial court erred by finding that the investigatory detention of Defendant resulted in a violation of his federal and state constitutional protections against unreasonable searches and seizures.
The dissent also notes that "defendant made no suspicious movements upon the police cruiser turning toward him." The *492 fact that the trial court found that the two pedestrians, rather than Defendant, fled from the scene does not strike us as a valid basis upon which to distinguish this case from Butler.[3] We do not dispute the fact that merely leaving a drug-ridden area in a normal manner is not sufficient to justify an investigatory detention. See In re J.L.B.M., 176 N.C.App. 613, 619-22, 627 S.E.2d 239, 243-45 (2006) (holding that information that a suspicious person wearing baggy clothes had been seen in a drug-ridden area and that he walked away upon the approach of law enforcement officers did not suffice to support an investigatory detention); State v. Roberts, 142 N.C.App. 424, 430, n. 2, 542 S.E.2d 703, 708, n. 2 (2001) (stating that "evidence that Defendant walked away from Miller after he asked Defendant to stop is not evidence that Defendant was attempting to flee from Miller and, thus, indicates nothing more than Defendant's refusal to cooperate"); State v. Rhyne, 124 N.C.App. 84, 89-91, 478 S.E.2d 789, 791-93 (1996) (holding that an officer lacked reasonable suspicion to frisk a defendant who was sitting in an area known to be a center of drug activity without taking evasive action or otherwise engaging in suspicious conduct); State v. Fleming, 106 N.C.App. 165, 170-71, 415 S.E.2d 782, 785 (1992) (holding that the fact that defendant was standing in an open area between two apartment buildings and walked away upon the approach of law enforcement officers did not justify an investigatory detention). However, the trial court's findings disclose the existence of an entirely different situation here than that addressed in these decisions. According to the trial court's findings, the two pedestrians who inserted their hands into Defendant's vehicle took evasive action of the type that supported a finding of reasonable suspicion in Butler upon observing Officer Pritchard's approach. The fact that the evasive action was taken by the two pedestrians, rather than Defendant, in the immediate aftermath of their encounter with Defendant created a reasonable basis, given the facts of this case, for believing that all three of these individuals were engaged in criminal activity that justified further investigative activity by Officer Pritchard. After all, the issue is not whether Defendant, and Defendant alone, did something that created a reasonable suspicion on the part of Officer Pritchard; instead, the issue is whether, viewed in their totality, the surrounding circumstances created a reasonable suspicion on the part of Officer Pritchard that Defendant might be involved in criminal activity. Watkins, 337 N.C. at 441, 446 S.E.2d at 70. Although the necessary reasonable suspicion can be created by the suspect's own conduct, there are reported cases, including the Magda decision cited by the Supreme Court in Butler, 331 N.C. at 234, 415 S.E.2d at 723, in which reviewing courts have considered the conduct of third parties to be relevant to the "reasonable articulable suspicion" inquiry as well. See United States v. Soto-Cervantes, 138 F.3d 1319, 1322-23 (10th Cir.1998) (holding that the fact that a member of a group of men other than the defendant jumped over a wall and hid something upon the arrival of law enforcement officers was relevant to the "reasonable suspicion" inquiry); Magda, 547 F.2d at 758-59 (stating that the fact that defendant's companion rapidly moved away after looking in an observing officer's direction was relevant to a "reasonable suspicion" determination); Commonwealth v. Moses, 408 Mass. 136, 142, 557 N.E.2d 14, 15-18 (1990) (holding that the fact that a group of men surrounding a car parked in a marked bus stop dispersed upon the approach of investigating officers was relevant to a "reasonable suspicion" determination). The fact that the two pedestrians fled in the immediate aftermath of an interaction with Defendant that could be reasonably construed as a hand-to-hand drug transaction which took place in "a well known drug location with high drug activity" would clearly have raised a reasonable suspicion in the mind of a competent and experienced law enforcement officer that further investigation was warranted; *493 the fact that Defendant did not drive away at a high rate of speed or take some other obvious evasive action himself does not change that fact. The federal and state constitutions do not, under existing decisional authority, require more in order for a valid investigatory detention to take place.
As a result, the facts of this case as set out in the trial court's findings of fact cannot be distinguished on any material basis from those that the Supreme Court found to be sufficient to justify an investigatory stop in Butler. For that reason, we are compelled by existing Supreme Court precedent to conclude that the trial court's findings of fact amply supported its conclusion that Officer Pritchard had an adequate basis for conducting an investigatory detention of Defendant on 26 August 2006.
Conclusion
For the reasons set forth above, we find no error in the trial court's order denying Defendant's motion to suppress. Thus, we further conclude that Defendant's guilty pleas and the resulting judgment entered by Judge Long should remain undisturbed.
NO ERROR.
Judges JACKSON concurs.
Judge HUNTER, Jr. dissents by separate opinion.
HUNTER, JR., ROBERT N., Judge, dissenting.
The facts of this case present either the pinnacle of a "hunch" or the absolute minimum threshold for "reasonable suspicion." The former will not support the initial traffic stop of defendant's vehicle in this case, while the latter will shower the investigatory stop in issue with all the riches and blessings accompanying a determination that a suspicion was "reasonable" under the United States and North Carolina Constitutions. In my opinion, Officer Pritchard's testimony shows that he had a "hunch" or "a strong intuitive feeling or a premonition," The American Heritage College Dictionary 663 (3d ed. 1997), as opposed to a "particularized and objective" suspicion that a drug transaction had taken place. United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981). Accordingly, I dissent.
Citizens in this country are protected against "unreasonable searches and seizures" by the Fourth Amendment of the United States Constitution. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090, reh'g denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961) (Fourth Amendment applicable to states through Fourteenth Amendment). Investigatory stops as authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) are constitutional under the Fourth Amendment as long as the officer initiating the stop has a "particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, 449 U.S. at 417-18, 101 S.Ct. at 695, 66 L.Ed.2d at 629. This standard under Terry, also known as "reasonable suspicion," "is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990).
When reviewing the facts and information presented to an officer leading to a Terry stop, we must examine the "totality of the circumstances." United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989). This requires us to examine two elements: (1) whether a trained officer's assessment to make a stop was "based upon all the circumstances" including "objective observations" of "the modes or patterns of operation of certain kinds of lawbreakers"; and (2) whether the officer's assessment in light of his training "[raised] a suspicion that the particular individual being stopped is engaged in wrongdoing." Cortez, 449 U.S. at 418, 101 S.Ct. at 695, 66 L.Ed.2d at 629. Under these guiding principles, we must determine whether "[t]he stop [is] based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citations omitted). "The only requirement is a *494 minimal level of objective justification, something more than an `unparticularized suspicion or hunch.'" Id. at 442, 446 S.E.2d at 70 (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585, 104 L.Ed.2d at 10).
Under the "totality of the circumstances" test, we consider several factors on the part of the accused including a suspect's nervousness or activity at an unusual hour. See State v. McClendon, 350 N.C. 630, 639, 517 S.E.2d 128, 133 (1999) (concluding that the circumstances gave rise to a reasonable suspicion because the defendant was fidgeting, sweating, breathing rapidly, and avoiding eye contact); Watkins, 337 N.C. at 443, 446 S.E.2d at 70-71 (holding that the police officer had reasonable suspicion when he saw a vehicle moving with its lights off in the parking lot of a closed business in a rural area at 3:00 a.m.). We also take into account a defendant's presence in a high-crime area or whether the defendant engages in unprovoked flight. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570, 576 (2000). "Headlong flightwherever it occursis the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Id. Considered individually, none of these factors are alone sufficient, and must be considered within the context of all the facts presented. Cortez, 449 U.S. at 417, 101 S.Ct. at 694-95, 66 L.Ed.2d at 629; Wardlow, 528 U.S. at 124, 120 S.Ct. at 676, 145 L.Ed.2d at 576.
The majority states that they are constrained, at least in part, to affirm the trial court's decision in this case based on our Supreme Court's holding in State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992). In Butler, defendant was with a group of people congregated on a corner known for its high drug activity. Butler, 331 N.C. at 231-32, 415 S.E.2d at 721. The officer had conducted daily surveillance of the corner for several months, and during that time had made four to six drug-related arrests. Id. When the police officers approached the defendant, "upon making eye contact with the uniformed officers, [the] defendant immediately moved away," which the Court concluded to be "behavior that is evidence of flight[.]" Id. at 233, 415 S.E.2d at 722. In summarizing the facts observed by the officer prior to stopping the defendant, the Court listed:
1) [D]efendant was seen in the midst of a group of people congregated on a corner known as a "drug hole"; 2) Hedges had had the corner under daily surveillance for several months; 3) Hedges knew this corner to be a center of drug activity because he had made four to six drug-related arrests there in the past six months; 4) Hedges was aware of other arrests there as well; 5) defendant was a stranger to the officers; 6) upon making eye contact with the uniformed officers, defendant immediately moved away, behavior that is evidence of flight; and 7) it was Hedges' experience that people involved in drug traffic are often armed.
Id. at 233, 415 S.E.2d at 722. In concluding reasonable suspicion existed for the police officer to conduct an investigatory stop of defendant, the Butler Court explained that:
The United States Supreme Court has held that mere presence in a neighborhood frequented by drug users is not, standing alone, a basis for concluding that the defendant was himself engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 52 [99 S. Ct. 2637, 2641] 61 L. Ed. 2d 357, 362-63 (1979). Here, however, there was an additional circumstance defendant's immediately leaving the corner and walking away from the officers after making eye contact with them.
Id. at 234, 415 S.E.2d at 722-23.
In addition to Butler, the majority cites a plethora of case law in which "reasonable suspicion" was found based on some or all of the specific behaviors or circumstances listed above which can support an officer's determination to conduct an investigatory stop under Terry. However, the fact remains that "reasonable suspicion" must be based on objective facts. Watkins, 337 N.C. at 442, 446 S.E.2d at 70; Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585, 104 L.Ed.2d at 10; Cortez, 449 U.S. at 417, 101 S.Ct. at 694, 66 L.Ed.2d at 628. In order for something to be "objective," it must have "actual existence or reality" and be "[u]ninfluenced by emotion, surmise, or personal prejudice." The American Heritage Dictionary 857 (2d ed. 1985). While an officer *495 may interpret objective facts through his experience and training, it remains paramount nevertheless that he have a "minimal level of objective justification" in deciding to initiate a Terry stop. Watkins, 337 N.C. at 442, 446 S.E.2d at 70.
In the transcript, the sum total of objective facts presented to the trial court to support this particular Terry stop were: (1) "the area of Chandler and Amanda Place" was considered by Officer Pritchard to be "a well-known drug location with high drug activity that takes place there on a regular basis"; (2) Officer Pritchard watched two familiar but unknown individuals walk to defendant's vehicle, and put "their hands into the vehicle"; and (3) the unknown individuals ran away when Officer Pritchard turned his cruiser around toward them, and one of the individuals "ducked" into a nearby house. Defendant committed no traffic offense.
With respect to the contention that "the area of Chandler and Amanda Place" was "a well-known drug location," the record shows that Officer Pritchard based this opinion on the fact that he had made and assisted in other drug arrests in the same area during his two and half years with the Winston-Salem Police Department.[4] According to the transcript, he had made "numerous" arrests in the Chandler and Amanda Place area, though he did not know the specific number of arrests made. When asked if he regularly patrolled the area in which defendant was arrested, he stated that he was assigned to an adjoining beat at the time. The State offered no other evidence showing that this area was "a well-known drug location." Moreover, as to the alleged transaction, Officer Pritchard did not see any exchange. In fact, the trial court found that "Officer Pritchard did not see any object or money in their hands, nor did he observe any direct exchange between the individuals and the Defendant or any other persons in the car." (Emphasis added.)
These observations of the record render Butler inapplicable to this appeal. Officer Pritchard did not have the area in question under daily surveillance, he was not patrolling the exact location of Chandler and Amanda Place on a regular basis at the time of defendant's arrest, defendant was not congregated with a group of suspected drug offenders under daily police scrutiny, and defendant made no suspicious movements upon the police cruiser turning toward him. Unlike Butler, which contained a laundry list of suspect activity, if we look only at defendant's actions leading up to Officer Pritchard's intervention, we are left only with defendant being approached by two individuals who put their hands into his car in a "well-known drug location."
In Butler, our Supreme Court cites United States v. Magda, 547 F.2d 756 (2d Cir.1976), cert. denied, 434 U.S. 878, 98 S. Ct. 230, 54 L. Ed. 2d 157 (1977). Butler, 331 N.C. at 234, 415 S.E.2d at 723. In Magda, a police officer observed two men "exchange something" on a street known for narcotics sales; the area in question was "particularly notorious as a center for drug traffic" and "under 24-hour surveillance" by police. Magda, 547 F.2d at 757-58. The officer actually saw "that each man gave and received something simultaneously." Id. at 757. After witnessing this exchange, the defendant, Magda, walked across the street, while Magda's "companion looked in [the officer's] direction, turned in a rapid motion and immediately walked away." Id. at 757-58.
Magda's holding that someone's actions other than the defendant's could be a factor within the context of a Terry analysis was not applicable to the actual holding of Butler. As the Butler Court explained, the defendant was the person who "[left] the corner and walk [ed] away from the officers after making eye contact with them." Butler, 331 N.C. at 234, 415 S.E.2d at 722-23. However, even assuming that this part of Magda applies to the current appeal through Butler, Magda hardly stands for the proposition that the flight of third persons other than the defendant is singularly sufficient for "reasonable suspicion." Like Butler, the area of the arrest in Magda was subject to constant police *496 scrutiny, and the officer in Magda actually observed an exchange between the individuals suspected of criminal activity. Magda, 547 F.2d at 757-58.
With respect to Officer Pritchard's testimony that he observed unknown individuals inserting their hands into defendant's vehicle, the majority cites State v. Summey, 150 N.C.App. 662, 564 S.E.2d 624 (2002) and State v. Clyburn, 120 N.C.App. 377, 462 S.E.2d 538 (1995), and argues that Officer Pritchard had reasonable suspicion based merely on "the appearance of a hand-to-hand drug transaction." However, in Summey, the arresting officer was conducting a "drug surveillance operation" on the area in question, and the officer "positioned himself in view of a residence which had been the subject of a nuisance abatement proceeding for drug-related activities." Summey, 150 N.C.App. at 663-64, 564 S.E.2d at 626. "A group of men were standing in the front yard of the residence" at the time the officer was conducting surveillance. Id. Within these facts not present in the current appeal, the Summey Court found "reasonable suspicion" for a Terry stop of the defendant's vehicle where the officer merely observed
a white Nissan pickup truck with the rear window missing drive toward[] the residence and stop alongside the road. One of the men standing in the yard approached the truck and appeared to engage in a brief conversation with the driver. A few moments later, the man returned to the yard and the truck drove away.
Id.
Clyburn is even more distinguishable from the case sub judice. In that case, the record showed:
On the evening of 9 November 1993, Officers R.A. McManus and C.R. Selvey of the Charlotte-Mecklenburg Police Department conducted surveillance in the 1600 block of Remount Road. Both officers were aware of the area's reputation for drug activity and had previously made drug arrests in the vicinity. While positioned in an unmarked car, the officers observed three black males standing in front of a vacant duplex across the street. Officer McManus testified that he observed several "meetings" whereby the three men were approached by individuals on foot who would speak briefly to one of the black males. During each "meeting," the individual would disappear behind the duplex with the same black male, later identified as the defendant. The other two males remained in front of the duplex as if acting as lookouts. Each time the defendant reappeared, the other two men conferred with him. Officers McManus and Selvey had observed similar "meetings" during their years on the police force. Based on their training and experience, both officers testified that in their opinions the "meetings" were drug transactions.
Clyburn, 120 N.C.App. at 378, 462 S.E.2d at 539. After the surveilling officers witnessed this activity, they conducted a Terry stop of the defendant's car after witnessing a passenger in the car engage in similar activity. Id.
Absent Officer Pritchard's observing an actual exchange inside defendant's car in this case, I believe the above case law amply demonstrates that the circumstantial evidence necessary for "reasonable suspicion" is substantially higher than (1) presence in a "drug location" and (2) the flight of third persons from an approaching police cruiser. Were the fleeing individuals the defendants in this appeal, their actions would certainly bear the indicia of guilt prescribed by our United States Supreme Court. Wardlow, 528 U.S. at 124, 120 S.Ct. at 676, 145 L.Ed.2d at 576. However, because they are not, my contention is that their actions gave Officer Pritchard "a strong intuitive feeling or a premonition" in light of his prior, and not then existing, experience at Chandler and Amanda Place with respect to defendant. While I recognize that such strong intuitions are a valuable tool in an officer's execution of his duties, they nonetheless amount to a mere "hunch," and are insufficient under the guarantees of the Fourth Amendment. Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585, 104 L.Ed.2d at 10. More importantly, however, they are insufficient to support the trial court's conclusion of law that Officer Pritchard had reasonable suspicion to believe that defendant was involved in a drug transaction.
*497 As such, because the trial court's conclusion of law as to reasonable suspicion is based on insufficient objective facts, and given that no case law otherwise binds this Court to a contrary result, I would reverse defendant's conviction.
NOTES
[1] The dissent also emphasizes that, unlike the situation in Butler, "Officer Pritchard did not have the area in question under daily surveillance," "was not patrolling the exact location of Chandler and Amanda Place on a regular basis at the time of defendant's arrest, [and] defendant was not congregated with a group of suspected drug offenders under daily police scrutiny." As we read Butler, none of the facts upon which this component of the dissent's argument is based are in any way essential to the holding in Butler. Instead, as we previously noted, the essential holding in Butler is that, "when an individual's presence in a suspected drug area is coupled with evasive action, police may form, from those actions, the quantum of reasonable suspicion necessary to conduct an investigatory stop." Willis, 125 N.C.App. at 542, 481 S.E.2d at 411. Thus, whether the area in question was under daily surveillance, the extent to which the investigating officer had personally had the area in question under surveillance, and the number of individuals present in the area under surveillance are not critical to the result reached in Butler.
[2] The dissent appears to contend in connection with this aspect of its argument that our reliance on Summey, 150 N.C.App. 662, 564 S.E.2d 624, and Clyburn, 120 N.C.App. 377, 462 S.E.2d 538, is misplaced on the grounds that those decisions are distinguishable from the present case on their facts. However, despite the existence of immaterial factual differences between this case on the one hand and Summey and Clyburn on the other, a careful analysis of the facts in Summey and Clyburn shows that the investigating officers did not actually see an exchange take place in either of these cases and that this Court still found that the events which led investigating officers to believe that drug transactions had occurred in their presence sufficed to justify investigatory detentions. The same logic suffices to support upholding the investigative detention at issue here given the trial court's unchallenged finding that "Officer Pritchard" "had observed numerous similar drug transactions in the past" and "suspected it was a drug transaction in which the Defendant had been involved."
[3] Similarly, the fact that the events at issue in Magda did not coincide with the events at issue in Butler should not obscure the fact that the Butler Court cited Magda as a key point in its legal analysis, thus indicating that evasive action by third persons can serve the same purpose as flight by the defendant in terms of providing adequate justification for an investigatory detention.
[4] The trial court's order shows that Officer Pritchard had three and a half years of experience, but a reading of the transcript shows that the arrest of defendant happened about a year prior to the hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327178/ | 684 S.E.2d 384 (2009)
300 Ga. App. 234
D'BABS CONSTRUCTION, INC.
v.
CASCADE FENCE COMPANY, INC.
No. A09A1795.
Court of Appeals of Georgia.
September 25, 2009.
*385 Scott McKenzie Stevens, Alpharetta, Karl J. Howe Jr., for appellant.
Brian William Pettersson, for appellee.
JOHNSON, Presiding Judge.
D'Babs Construction, Inc. sued Cascade Fence Company, Inc. for money allegedly owed under a contract. On August 12, 2008, the trial court appointed an auditor pursuant to OCGA § 9-7-1 et seq. and scheduled a hearing before the auditor on September 16, 2008 at 9:00 a.m. Notice of the hearing was sent to counsel for both parties. However, it is undisputed that D'Babs Construction failed to appear at the hearing despite the fact that no conflict letter was ever submitted.
The auditor and counsel for Cascade Fence Company attempted to contact D'Babs Construction's attorney, and even delayed the hearing approximately two hours, at which point Cascade Fence Company's attorney moved to strike D'Babs Construction's pleadings and enter default judgment on its counterclaim. The motion was taken under advisement and Cascade Fence Company presented its case. On September 19, 2008, the auditor issued its report to the trial court. The report recommended that D'Babs Construction be found in default and that Cascade Fence Company be awarded damages. The report noted:
The parties are hereby notified that pursuant to OCGA § 9-7-14 either party may file exceptions to this Report Of The Auditor within 20 days following the filing hereof. Exceptions shall be classified separately as "exceptions of law" and "exceptions of fact."
D'Babs Construction filed its exceptions to the auditor's report on October 6, 2008. However, the trial court issued an order finding that D'Babs Construction "by its willful refusal to attend and participate in the Court-ordered Hearing, has waived its right to file Exceptions to the resulting Report of the Auditor." The court adopted the auditor's report as the order of the court. D'Babs Construction appeals from this order. We are constrained to reverse the trial court's order.
OCGA § 9-7-14(a) provides that either party may file exceptions to the auditor's report to be classified separately as "exceptions of law" and "exceptions of fact" within 20 days after the report is filed and notice is given to the parties. This statute does not mention or address a situation where one of the parties files exceptions to a proceeding in which he failed to appear and participate. Nevertheless, the plain language of the statute gives either party the right to file exceptions to the report without limitation as to the party's presence at the hearing. Thus, the trial court erred in finding that D'Babs Construction, by failing to appear at the hearing, waived its right to file exceptions to the auditor's report. This opinion does not address the merits of any exceptions that D'Babs Construction may file. Nor does it address whether D'Babs Construction is entitled to a jury trial on its exceptions of fact since the trial court has not yet ruled on the exceptions of law, which may very well moot any factual exception.
Judgment reversed.
ELLINGTON and MIKELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327183/ | 226 Ga. 854 (1970)
178 S.E.2d 162
SUMMERVILLE et al.
v.
THE STATE.
26029.
Supreme Court of Georgia.
Argued September 17, 1970.
Decided November 5, 1970.
*855 Hester & Hester, Frank B. Hester, Richard M. Hester, for appellants.
Lewis R. Slaton, District Attorney, Carter Goode, Tony H. Hight, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Assistant Attorney General, Charles B. Merrill, Jr., Deputy Assistant Attorney General, for appellee.
ALMAND, Chief Justice.
The appellants were jointly indicted, tried and convicted, under two indictments. One charged them with taking a motor vehicle and a named sum of money, the property of Big Apple Super Markets, by intimidation and by use of a pistol, on March 19, 1970. The other indictment charged them with taking a named sum of money, the property of Big Apple Super Market, by intimidation and use of a pistol, on March 17, 1970.
Their joint motions for a new trial were overruled and their joint appeal is here for review. Error is enumerated on: (1) overruling motions to suppress evidence; (2) allowing, over objection, the testimony of Detective T. J. Smith, concerning line-up identifications made by State witnesses; and (3) submitting to one jury the issue of innocence or guilt as well as the issue of punishment.
1. Motion to suppress evidence: Defendants Summerville and Williams filed motions to suppress evidence obtained by an alleged illegal search. The grounds of the motion were that a search warrant was issued by the Judge of Polk Superior Court based on an affidavit of Bobby Burch, Chief of Police of Rockmart, Ga., and that the alleged facts were actually false and did not show probable cause, in violation of their constitutional rights under stated provisions of the Constitutions of the United States and the State of Georgia prohibiting unlawful search and seizure.
Two search warrants were issued on March 22, both based on affidavits of Bobby Burch. One was for the search of the premises of Truman H. Williams, Jones Avenue, Rockmart, Ga., "a duplex apartment." The other was for the search of the premises of James Leon "Joe" Summerville, located at 302 *856 Hampton Street, Rockmart, Ga. The affidavits recited that affiant had reasonable cause to believe that a named person had committed the offense of armed robbery and had in his possession tangible evidence comprised of "money and currency money wrappers, American Express blank money orders bearing numbers according to the list attached hereto and a ski mask being black with red rings ... and a .38 caliber revolver bearing serial No. 733911." The probable cause was stated as follows:
"Charles W. Brooks, and his wife and family, all of 1832 Kimberly Road, SW, Atlanta, Ga., have positively identified said person as being one of three perpetrators of an armed robbery committed on March 17, 1970, against said C. W. Brooks and the Big Apple Food Store located at 2581 Piedmont Rd., NE, Atlanta of which Mr. Brooks is manager. Identification of each of said three persons was made from police photographs and drivers license photos. Identification was positive by Mr. Brooks, who was an eyewitness and the victim of said armed robbery.
"Affiant received the above information from Detective T. J. Smith, of the Atlanta Police Department Robbery Squad, who received same from Charles W. Brooks. Detective Smith attested to the reliability of said Brooks, and of his truthfulness and veracity to affiant.
"All the above named items of tangible evidence are the fruits and instrumentalities of said armed robbery and are believed to be in the possession of either James Leon `Joe' Summerville, Truman H. Williams, or Danny Millican, or any of them, at the residence of one or more of said persons, they being the three perpetrators identified by Brooks."
The evidence which the defendants sought to suppress consisted of a pistol, a red, white and blue ski mask, a black ski mask with yellow eyes and white mouth, and a pillow containing unidentified money.
On the hearing of the motion to suppress, T. J. Smith, a detective of the Atlanta Police Department, testified that he investigated the reports of the robberies of the two Big Apple Stores. He obtained pictures of the three defendants, exhibited *857 them to C. W. Brooks, the Manager of the Jamestown Big Apple Store, who identified Millican and Summerville as being two of the three who robbed the store. Smith conveyed this fact to Chief Burch of the Rockmart Police force and upon this information Burch made the affidavit. Burch testified that the facts given by him at the time he swore to the affidavit were true as far as he was concerned.
The grounds upon which the motion to suppress was based were that certain facts and statements in Burch's affidavits were not true, viz., the statement therein that, "Charles W. Brooks, and his wife and family, all of 1832 Kimberly Road, SW, Atlanta, Ga., have positively identified said person as being one of three perpetrators of an armed robbery committed on March 17, 1970, against said C. W. Brooks and the Big Apple Store located at 2581 Piedmont Rd., NE, Atlanta, of which Mr. Brooks is Manager."
We are of the opinion that the ruling in Rugendorf v. United States, 376 U. S. 528 (84 SC 825, 11 LE2d 887), sustains the ruling of the trial court in overruling the motion to suppress. The court there held: "Petitioner attacks the validity of the search warrant. This court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish `probable cause'; however, assuming, for the purpose of this decision, that such attack may be made, we are of the opinion that the search warrant here is valid. Petitioner contends that probable cause did not exist because the only relevant recitations in the affidavit were the one informant's statements that he saw the furs in petitioner's basement and that he was told that they were stolen. However, the informant's detailed description of the furs, including number and type, closely resembled Special Agent Paarmann's description of the furs stolen in Alabama. The affiant checked the burglary report records and found the Alabama burglary to be the only recent one in the United States involving furs of the description and number that the informant saw in the petitioner's basement.
"In addition, the affidavit alleged that Leo and Samuel *858 Rugendorf were brothers and that Leo was a fence for professional burglars. Although one of the informants who gave the latter information added, incorrectly, that Samuel Rugendorf was associated with Leo in the meat business, there was direct information from another informant of the FBI that Leo was a fence, and nothing was shown to prove this untrue. The factual inaccuracies depended upon by petitioner to destroy probable cause i.e., the allegations in the affidavit that petitioner was the manager of Rugendorf Brothers Meat Market and that he was associated with his brother Leo in the meat business were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit... Petitioner's only challenges to the veracity of the affidavit are the two inaccurate facts mentioned above. Since the erroneous statements that petitioner was the manager of Rugendorf Brothers Meat Market and was associated with Leo in the meat business were not those of the affiant, they fail to show that the affiant was in bad faith or that he made any misrepresentations to the Commissioner in securing the warrant."
Chief Burch swore to the facts related to him by Detective Smith as he understood them to be, and counsel for the defendants on cross examining Chief Burch stated: "Nobody suggested that you knowingly and falsely swore to anything."
Sufficient facts were stated in the affidavit to show probable cause and that showing was in no way affected by the factual inaccuracies complained of.
2. The second enumeration of error is that the court erred in allowing, over objection, the testimony of Detective Smith concerning the line-up identifications made by two State witnesses. The line-up was allegedly conducted in violation of the defendants' constitutional right to the benefit of counsel, due process and equal protection of law as provided in the Sixth Amendment to the Constitution of the United States and Art. I, Sec. I, Par. III of the Constitution of the State of Georgia (Code Ann. § 2-103). Appellant alleges that the post-indictment pre-trial line-up, at which the defendants were exhibited to identifying witnesses, was held without notice and in the absence *859 of defendants' employed counsel, citing United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149).
The pertinent facts as to this ground are: in the morning hours of March 23, 1970, the defendants were told by an officer that they would be placed in a line-up around 8:30 or 9 o'clock the following night; as the defendants were being taken to the place where the line-up was to be had, one of the defendants informed the detectives that Mr. Frank Hester, an attorney, represented one or all of them. An effort was made to get in touch with Mr. Hester and it was learned that he was not expected until very late at night. A call was made to the district attorney and he requested Mr. Matthews, an attorney on the staff of the Public Defender of the Indigent in Fulton County, to attend the line-up. Matthews went to the police station and he advised them who he was and that he would be present at the line-up. Though expressing dissatisfaction that Hester was not present, no defendant advised Matthews that he or they would prefer to wait for Hester. All three were placed in the line-up. Matthews testified that he checked the line-up over and it appeared to be fair. Shortly after the line-up proceedings had commenced, a telephone call from Hester was received saying that he was on his way to the police station and the proceedings were stopped pending his arrival. Before his arrival, State witnesses Brooks and St. John had viewed the line-up and made identification. Matthews advised Hester as to what had taken place and took no further part in the proceedings. It does not appear from the transcript of the record that Hester or either defendant, had notified the officers that Hester represented the defendants at the time the line-up was set. After Hester arrived, the line-up was set up again and in his presence St. John again viewed the line. Witness Brooks, who had left, made his identification again the next day in Attorney Hester's presence. Matthews testified that, upon his arrival at the police station, the reason given for holding the line-up on this night was, "a lot of witnesses from different counties or something and that they would be very much inconvenienced if the line-up didn't take place because they had witnesses from several counties, sheriffs and whatnot." *860 There were 25 to 30 witnesses, some from out of town, present at the line-up.
On the trial of the case C. W. Brooks, Sr., testified for the State that defendant Williams was, at the time of the robbery, in his presence, in a lighted room, for about 25 minutes, and that none of his face was covered. He positively identified Millican as having entered through the back door of the kitchen with a gun in his hand. He testified that Summerville and Williams took him to the store. When the photographs of the defendants were shown to Brooks, he was positive as to Millican. At the line-up, St. John identified Millican and Williams positively.
Appellant cites the Wade case, supra, to support his contention, but in a footnote in that case (p. 237) is this statement: "Although the right to counsel usually means a right to the suspect's own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel's presence may eliminate the hazards which render the line-up a critical stage for the presence of the suspect's own counsel."
Under the facts of this case, and the rule stated above, the admission of the line-up identification by Brooks where the substitute counsel, and not the employed counsel, was present was not error.
We hold the second enumeration of error to be without merit.
3. The third enumeration of error complains of the submission of the issue of punishment to the same jury which found the appellant guilty.
The unanimous opinion in Chatterton v. State, 223 Ga. 243 (154 SE2d 213) settles this issue adversely to the claim of these appellants.
4. The evidence fully supports the verdicts.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327184/ | 684 S.E.2d 115 (2009)
300 Ga. App. 29
WEBB et al.
v.
STATE of Georgia.
No. A09A1248.
Court of Appeals of Georgia.
September 3, 2009.
*116 Ashley W. McLaughlin, McRae, for appellants.
Timothy G. Vaughn, Dist. Atty., Jason O. Waters, Asst. Dist. Atty., for appellee.
ANDREWS, Presiding Judge.
Decendr'ee and Reginald Webb appeal following a bench trial in this civil forfeiture action. Decendr'ee Webb claimed that she was the owner of the 1975 Chevrolet truck and $13,050 seized from her husband Reginald Webb after he was arrested for drug violations. Because Ms. Webb did not show that she was an "innocent owner" under OCGA § 16-13-49(e)(1)(A) and because the Webbs' other enumerations of error are without merit, we affirm.
Construed to support the judgment,[1] the evidence at the forfeiture hearing was that Reginald Webb used the money and the truck in a drug buy that was set up with a confidential informant. There was testimony that narcotics agents met with a confidential informant who told them that Reginald Webb wanted to buy "half a kilo" of cocaine from him. The agents recorded several phone calls between Webb and the confidential informant setting up a time and place for the drug buy. Agents stopped Reginald Webb just before he arrived at the agreed-upon meeting place.
After being stopped, Reginald Webb immediately called his wife and she arrived at the scene a short time later. After drug dogs alerted to both vehicles driven by the Webbs, the officers searched the vehicles. They found a loaded 9 millimeter handgun beneath the driver's seat and a safe containing $13,050 in the front passenger compartment of the pickup truck that Reginald Webb was driving.
Officers then arrested Reginald Webb. When questioned, Decendr'ee Webb told officers that the handgun was hers and the money in the safe was a gift from Reginald Webb's father.
The State filed a complaint for forfeiture of the pickup truck and the money. Decendr'ee Webb answered and claimed that *117 she was the sole owner of the truck and the money. Following a hearing, the court entered a judgment of forfeiture and this appeal followed.
Under the drug forfeiture statute, [OCGA § 16-13-49,] property subject to forfeiture includes that which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of the drug laws or any proceeds derived or realized therefrom. [OCGA § 16-13-49(d)(2).] Property may be seized without process under certain circumstances, including if there is probable cause to believe that the property is subject to forfeiture. [OCGA § 16-13-49(g)(2).]
(Citation and punctuation omitted.) Edwards v. State of Ga., 290 Ga.App. 467, 469, 659 S.E.2d 852 (2008).
Following seizure of the property and public notice thereof, the State may file a verified complaint in rem; such a complaint must describe the property with reasonable particularity, identify the present custodian of the property, allege the essential elements of the alleged violation leading to the seizure, and fulfill other pleading requirements. OCGA § 16-13-49(o)(1). Once the State presents a prima facie case for forfeiture in its pleadings, the burden then shifts to the claimant to establish both his standing to contest the forfeiture and his entitlement to a statutory exception.
(Citations omitted.) Id.
1. In this case, the property was subject to forfeiture under OCGA § 16-13-49(d)(2) as property that was used to facilitate a drug buy. The burden of proof then shifted to Decendr'ee Webb to show that she was an innocent owner. The innocent-owner provision of the forfeiture statute, OCGA § 16-13-49(e)(1), provides:
(e)(1) A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder:
(A) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur;
(B) Had not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm's length commercial transaction;
(C) With respect to conveyances for transportation only, did not hold the property jointly, in common, or in community with a person whose conduct gave rise to its forfeiture;
(D) Does not hold the property for the benefit of or as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in an illegal transaction. . . .
The trial court determined that Decendr'ee Webb had not shown that the money and truck were hers, but rather that it was family money and a family truck. This Court "will not reverse the trial court's findings of fact if any evidence exists to support them." Davis v. State of Ga., supra at 304, 568 S.E.2d 161.
As to the money seized, the evidence below was that Ms. Webb first told officers that the $13,050 had been given to Reginald Webb by his father to help the Webbs move. Ms. Webb's testimony at the hearing was that the money was mostly hers and was money she had saved from her various jobs. But she also testified that Reginald Webb "gave some," of the money and it was to be used "for the house and the land."
With regard to the pickup truck, the evidence was that, although the truck was titled in Decendr'ee Webb's name, both Decendr'ee and Reginald Webb drove it. Reginald Webb's mother testified that he drove all of the vehicles, including the truck, and Decendr'ee Webb testified that Reginald drove the truck to take away trash.
Accordingly, there was some evidence that either the money was given solely to Reginald Webb or it belonged jointly to him and his wife. There was also evidence that the *118 pickup truck, although titled in Decendr'ee's name, was held jointly by husband and wife. Therefore, the trial court did not err in concluding that Decendr'ee Webb had not carried her burden of showing that she was an innocent owner under OCGA § 16-13-49(e)(1)(A).
2. The Webbs also contend that the trial court failed to make findings of fact and conclusions of law on whether the forfeiture amounted to an "excessive fine" under the Eighth Amendment. This enumeration fails because the Webbs never raised this claim below. Jones v. State of Ga., 249 Ga.App. 64, 67, 547 S.E.2d 725 (2001).
3. In their last enumeration of error, the Webbs contend that the trial court erred in allowing into evidence the phone recordings of the conversations between the confidential informant and Reginald Webb without the informant's presence at trial, thus depriving the Webbs of their right to confront and cross-examine the informant.
This enumeration fails for several reasons. First, the Webbs did not challenge the admissibility of this evidence at trial. Secondly, Webb admitted that he took part in at least some of the telephone conversations. Finally, an officer was present when the phone calls were made to Reginald's cell phone, the calls were made on a speaker phone, the officer heard both sides of the conversation, and this officer was present at trial to authenticate the recorded conversation. The Webbs having come forward with no argument or authority on point to the contrary, we conclude that this enumeration of error is totally without merit.
Judgment affirmed.
MILLER, C.J., and BARNES, J., concur.
NOTES
[1] Davis v. State of Ga., 256 Ga.App. 299, 568 S.E.2d 161 (2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327777/ | 215 Ga. App. 633 (1994)
KENDALL et al.
v.
PEACH STATE MACHINERY, INC.
A94A1225.
Court of Appeals of Georgia.
Decided November 30, 1994.
Reconsideration Denied December 14, 1994.
Lawson & Thornton, George O. Lawson, Jr., for appellants.
James H. Mobley, Jr., for appellee.
SMITH, Judge.
Brent Construction Company and Wayne B. Kendall, its president and sole shareholder, appeal from the trial court's grant of summary judgment to Peach State Machinery in an action brought by Peach State to recover a deficiency judgment.
The record reveals that on January 7, 1993, the trial court entered an order granting Peach State's motion for summary judgment. Appellants allege they first learned the order had been entered when served with post-judgment discovery in April 1993. On April 15, 1993, appellants filed a "motion to vacate and correct judgment" under OCGA § 9-11-60 (g), and on April 27, 1993, they filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d).
After a hearing, the trial court entered an order on June 18, 1993, denying both motions. The order recites that the January 1993 order remains the judgment of the court, but because Brent and Kendall had apparently not received a copy, the order is to be re-entered nunc pro tunc and notice given in accordance with OCGA § 15-6-21.
1. In Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), the Supreme Court held that the trial court's failure to notify counsel of the entry of judgment, as required by OCGA § 15-6-21 (c), warranted the grant of a motion to set aside the judgment under 9-11-60 (g). The procedure outlined in Cambron permits commencement of a new 30-day period after re-entry of the judgment, provided the earlier judgment is first set aside. Id. at 148-149 (1).
An appellate court has the duty to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. Atlantic-Canadian Corp. v. Hammer, Siler, George Assoc., 167 Ga. App. 257, 258 (1) (306 SE2d 22) (1983). For appellate jurisdiction to attach, it is mandatory that a notice of appeal be timely filed. Id. The Cambron court did not hold that failure to notify a party of the entry of judgment extends the time for filing the notice of appeal, Atlantic-Canadian Corp., supra, and the denial *634 of a motion to set aside under OCGA § 9-11-60 (d) is subject to the discretionary appeal procedures, OCGA § 5-6-35 (a) (8). This court has held, however, that the denial of a motion to set aside brought under OCGA § 9-11-60 (g) is directly appealable. Crawford v. Kroger Co., 183 Ga. App. 836 (360 SE2d 274) (1987). Accordingly, this court has jurisdiction to entertain this appeal from the denial of the motion to set aside brought under OCGA § 9-11-60 (g).
2. We consider, therefore, whether the trial court's denial of the motions to set aside was erroneous.
Cambron provides that upon a finding by the court that notice was not provided as required by OCGA § 15-6-21 (c), the motion to set aside may be granted and the judgment re-entered. Alternatively, if the judge finds that notice was sent and received, the motion to set aside the earlier judgment should be denied. 246 Ga. at 148-149 (1). As stated in Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812 (403 SE2d 94) (1991), the issue is not whether the losing party had knowledge that judgment was entered, but whether the duty imposed on the court in OCGA § 15-6-21 (c) was carried out. Id. at 813 (1). To implement properly the procedure set forth in Cambron, therefore, it is necessary that the trial court first make a finding regarding whether the duty imposed on the court by OCGA § 15-6-21 (c) was met. If the trial court finds the statute's requirements were not met, the earlier judgment must be set aside before judgment is re-entered to commence a new 30-day period for appeal.
The order appealed from contains a finding that appellants did not receive the summary judgment order. However, it includes no finding regarding whether such notice was sent or whether the court's duty under OCGA § 15-6-21 (c) was met. Moreover, although the order explicitly denies the motions to set aside and states that the earlier order remains the judgment of the court, it also directs the entry nunc pro tunc of its order granting summary judgment.[1]
These provisions appear to be contradictory, and we cannot discern from the language of the order whether it was the intent of the trial court to allow the commencement of a new 30-day period for appeal or to refuse to do so. Further, since no finding was made regarding compliance with OCGA § 15-6-21 (c), even if we could ascertain the court's intention, we would be unable to determine whether the court's decision to grant or deny the motion to set aside was *635 proper under Cambron.
For these reasons, we are unable to determine if it is necessary that the trial court's order be vacated. This case therefore must be remanded to the trial court with direction that the court make the necessary findings and otherwise follow the procedure set forth in Cambron.
Case remanded with direction. Pope, C. J., concurs. McMurray, P. J., concurs in the judgment only.
NOTES
[1] Because it appears that some confusion exists regarding the procedure for re-entering judgment after setting aside an earlier judgment and that for entering an order nunc pro tunc, we note that a nunc pro tunc entry is used to record a previously unrecorded action taken or judgment rendered, which is to take effect as of the former date. It may not be used to correct a decision, however erroneous, or to supply non-action on the part of the court. Rivers v. Goodson, 184 Ga. App. 70, 72 (360 SE2d 740) (1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327837/ | 215 Ga. App. 626 (1994)
MOORE
v.
THE STATE.
A94A2722.
Court of Appeals of Georgia.
Decided December 13, 1994.
Michael R. McCarthy, for appellant.
Jack O. Partain III, District Attorney, Albert H. Tester, Assistant *629 District Attorney, for appellee.
BIRDSONG, Presiding Judge.
Gary Nathaniel Moore appeals his conviction of habitual felon and violation of the Georgia Controlled Substances Act by unlawfully selling cocaine. Held:
1. Appellant asserts the trial court erred by denying without a hearing appellant's pretrial motion to suppress identification testimony. This issue is controlled by Smith v. State, 195 Ga. App. 669 (1) (394 SE2d 558); moreover, "it has repeatedly been held that the trial court is not required to entertain a pre-trial motion to suppress identification testimony." Martin v. State, 201 Ga. App. 643 (1) (411 SE2d 788). Appellant's first enumeration is without merit.
2. Appellant contends the trial court erred in denying his motion for directed verdict based on "the motion to suppress identification *627 testimony." As a general rule, "a motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law." Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). The trial court did not err in denying the motion for a pretrial suppression hearing. See Division 1 above. At the commencement of trial and in response to an inquiry by appellant's counsel, the trial court ruled that appellant could re-assert his motion to suppress identification testimony during the course of the trial. Thereafter, appellant elected not to object to the identification testimony of the police officers or otherwise to re-assert timely his motion to suppress such testimony. "No ruling by the trial court on the admissibility of the [officers'] identification testimony ever having been properly invoked, this enumeration presents nothing for review." Smith, supra. Also, all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed. Scott v. State, 206 Ga. App. 23, 26 (1) (424 SE2d 328). Appellant by his trial procedure and strategy aided in the admission of the identification testimony at issue. See generally Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309). For each of these reasons, appellant's second enumeration is without merit.
3. Trial of the case took only approximately three-and-one-half hours; the jury was not confronted with conflicting expert testimony as to scientific matters, but was primarily confronted with important questions necessitating commonsense resolution of witness credibility and allocation of weight to various evidence. After deliberating approximately one hour and forty-five minutes, the jury was returned to the courtroom and the jury foreman reported a 10 to 2 jury deliberation vote whereupon the trial court gave the jury an Allen charge; appellant posed a timely objection to the charge. Approximately 45 minutes later the jury returned a guilty verdict. Appellant contends that the trial court erred in giving the Allen charge. While the trial court did not inquire whether the jury was making progress in its deliberation before giving the charge, it was ascertained that the jury had not yet reached a verdict and the trial court was informed that the jury was in disagreement by its vote of 10 to 2; further, the trial court was not informed as to which way the votes had been cast. Examination of the Allen charge on its four corners reveals that the trial court did not suggest a particular verdict or even require that a verdict be reached by this particular jury. Rather the jury was encouraged to return to the jury room for a reasonable time and to examine their differences in the spirit of fairness and candor in order to "try to arrive at a verdict." Additionally, the court expressly informed the jury that it was "not in any way bringing any pressure on any of [the jury members] to give up any conscientious opinion that [they] have." On balance we do not find this particular charge coercive. We *628 recognize the press of time that a busy court docket can create; however, the right to a fair trial must remain the paramount concern at all times and in all cases. A trial court should not elect too quickly to give an Allen charge, especially, when to do so, it would be compelled to call the jury from the deliberation room before the jury reported a need for additional guidance. Nevertheless it is the trial court's responsibility to control, in the furtherance of justice, the conduct of all persons connected with a judicial proceeding before it and in every matter appertaining thereto. OCGA § 15-1-3 (4). "It is within the trial court's discretion whether to give an Allen charge to a jury in disagreement. . . . Furthermore, the decision to give an Allen charge does not require a finding that the jury is deadlocked." Stewart v. State, 210 Ga. App. 474, 476 (5) (436 SE2d 679). The circumstances of this case are clearly distinguishable from the coercive atmosphere found to exist in McMillan v. State, 253 Ga. 520 (322 SE2d 278). Under the facts of the case at bar, we find no abuse of discretion by the trial court in electing to give the particular Allen charge at issue. Compare Jones v. State, 202 Ga. App. 642 (1) (415 SE2d 64). Appellant's fourth enumeration of error is without merit.
4. Appellant asserts that the trial court erred in denying his motion for directed verdict based on a claim of insufficiency of the evidence. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) "is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence." Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). Review has not revealed the existence of any legal errors, as enumerated, which harmed appellant. See Divisions 1 through 3 above. The police officers identified appellant as the person who sold them three pieces of a compressed substance which subsequent laboratory testing revealed contained cocaine. Review of the transcript in a light most favorable to the jury's verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of selling cocaine of which convicted. Jackson v. Virginia, supra. Appellant's third enumeration of error is without merit.
Judgment affirmed. Blackburn and Ruffin, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913801/ | 497 N.W.2d 625 (1993)
In re the Petition to Adopt S.T. and N.T.
No. C0-92-1672.
Court of Appeals of Minnesota.
March 16, 1993.
Review Granted May 18, 1993.
Michael O. Freeman, Hennepin County Atty., Nancy K. Jones, Asst. County Atty., Minneapolis, for appellant Hennepin County Bureau of Social Services.
Wright S. Walling, Gary A. Debele, Walling & Berg, P.A., Minneapolis, for respondents Iskierkas.
Hubert H. Humphrey, III, Atty. Gen., Laurasue Schlatter, Special Asst. Atty. Gen., St. Paul, for respondent Commissioner of Human Services.
Shirley A. Reider, Minneapolis, for respondent Guardian ad Litem.
Considered and decided by LANSING, P.J., and SCHUMACHER and HARTEN, JJ.
OPINION
SCHUMACHER, Judge.
Respondents Laurie and Robert Iskierka filed a petition for the adoption of S.T. and N.T. Appellant Hennepin County Bureau of Social Services advised the Minnesota Commissioner of Human Resources to withhold consent to the adoption. The Commissioner withheld consent, and the Bureau filed a motion to dismiss the petition for lack of jurisdiction. The district court found that the Commissioner's decision to withhold consent did not deprive the court of jurisdiction where the reasonableness of the Commissioner's decision had yet to be resolved. We affirm.
*626 FACTS
On May 22, 1989, the Bureau placed S.T. and N.T. in the Iskierkas' home for emergency shelter care. S.T. was one year and five months old at the time of placement. N.T. was six months old. The children are now ages five and four.
S.T. and N.T. are wards of the state. The Commissioner serves as guardian of the children and retains legal custody; the Bureau is an agent of the Commissioner. At the time of placement the Iskierkas were licensed foster care providers and residents of Hennepin County.
The Iskierkas presently live in Carver County. They have a 13-year-old son and three daughters, ages 15, 14 and 12. S.T. and N.T. are of African American heritage; the Iskierkas and their children are Caucasian. The Iskierkas assert that they and their children have "bonded as a family" with S.T. and N.T. This fact, claims the Bureau, "is no more than expected of foster parents fulfilling their contract."
The birth mother's parental rights were terminated on August 29, 1990. The district court denied the mother's motion to vacate its termination order, and this court affirmed in an unpublished decision. In re Welfare of S.T., No. C3-90-2259, 1991 WL 59826 (Minn.App. Apr. 23, 1991), pet. for rev. denied (Minn. June 19, 1991).
The Bureau then began to recruit relatives of the children for potential adoptive placement. Most of these relatives lived out of state, and the Bureau requested home studies through the Interstate Compact for the Placement of Children. A relative from Chicago, Illinois was identified as the most suitable prospective adoptive parent. The Bureau claims this relative is a maternal aunt of the birth mother.
In a letter dated January 30, 1992, the Iskierkas informed the Bureau that they desired to adopt the children. The Bureau responded that it was conducting home studies of relatives. The aunt in question visited the children in February 1992. She also visited in March, and had overnight visits in April and May of that year.
The aunt was scheduled to visit the children in June 1992. The Bureau intended that this visit serve as a transition for preadoptive placement with the aunt in July 1992. Such placement is a statutory prerequisite to filing a petition for adoption. See Minn.Stat. § 259.22 (1990).
The Iskierkas, allegedly without knowledge of the Bureau's plans to place the children with their aunt, informed the Bureau in May 1992 that they intended to file a petition for adoption. The Bureau refused to consent to adoption by the Iskierkas. Upon the Bureau's recommendation, the Commissioner similarly withheld consent.
On May 15, 1992, the Iskierkas obtained an ex parte order granting them temporary care, custody and control of the children. They also filed a motion for waiver of agency placement, leave to file a petition for adoption, waiver of home study and award of temporary physical care, custody and control of the children. Laurie and Robert Iskierka each submitted an affidavit in support of their motion. The affidavits describe the Iskierkas' home life, parenting capacity and desire to adopt the children.
The Bureau filed responsive motions on June 18, 1992. It sought to change venue from Carver to Hennepin County. It also requested that the court deny waiver of agency placement, dismiss the petition for adoption for lack of consent, and deny the award of temporary custody. The Bureau filed an affidavit of one of its social workers, Richard Hughes. It is apparent from the affidavit that a relative desired to adopt the children and that the children were not of the same race as the Iskierkas.
In an order dated July 20, 1992, the district court refused the request for a change in venue, granted the Iskierkas' motions to waive agency placement and allowed the Iskierkas to file a petition for adoption with the court. The court also ordered that temporary physical custody of the children remain with the Iskierkas. The district court rejected the Bureau's claim that the case should be dismissed *627 because the Bureau had not consented to the adoption:
The withholding of consent by the Commissioner does not affect the filing of the petition or divest the court of jurisdiction to hear the petition. Consent required under Minn.Stat. § 259.24 is for final adoption, not for filing of a petition. In addition, the lack of consent does not mandate the eventual denial of the proposed adoption as a determination must be made as to whether the consent was unreasonably withheld.
On August 19, 1992, the Bureau petitioned this court for a writ of prohibition restraining the district court from enforcing its order. This court denied the petition on September 1, 1992, finding that a direct appeal provided an adequate remedy. The Bureau then appealed the district court's order.
ISSUES
1. Does the district court have jurisdiction to hear a petition for adoption when the Minnesota Commissioner of Human Resources refuses to consent to such adoption?
2. Is the Commissioner's consent to adoption required before a petition for adoption may be submitted to the court, or is such consent merely required for the adoption itself?
ANALYSIS
An order granting or denying a pretrial motion to dismiss for lack of jurisdiction is appealable of right. Hunt v. Nevada State Bank, 285 Minn. 77, 88-89, 172 N.W.2d 292, 299-300 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1239, 25 L.Ed.2d 423 (1970); Miller v. City of St. Paul, 363 N.W.2d 806, 809 (Minn.App.1985), pet. for rev. denied (Minn. Apr. 26, 1985). The Bureau asserts that under Minn.Stat. § 259.24 (1990), the Commissioner's reasonable refusal to consent to an adoption divests the district court of jurisdiction. Interpretation of a statute is a question of law which this court reviews de novo. See Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).
1. Minn.Stat. § 259.24, subd. 1 (1990) provides: "No child shall be adopted without the consent of the child's parents and the child's guardian" except in certain enumerated circumstances. When parental rights have been terminated, the
commissioner or agency having authority to place a child for adoption * * * shall have the exclusive right to consent to the adoption of such child.
Minn.Stat. § 259.24, subd. 1(e). The statute also provides that consents "shall" be filed in the adoption proceedings "before the matter is heard." Minn.Stat. § 259.24, subd. 5.
The Bureau asserts that the district court has no jurisdiction to hear a petition for adoption unless the Commissioner consents to the adoption. It cites a 1954 supreme court decision in which the court interpreted the consent requirements of the adoption statute as follows:
[A]doption procedures are purely statutory[.] * * * This statutory language is explicit in requiring the guardian's consent and involves no ambiguity to justify any construction to the contrary.
* * * * * *
* * * We can only conclude * * * that the explicit wording of § 259.24, subd. 1, is to be interpreted to mean that the legislature intended to deprive the district court of jurisdiction to pass upon the merits of a proposed adoption if the guardian of the child refuses to give his consent, even though such refusal to consent is unsupported by any evidentiary showing that the proposed adoption is not for the best interests of the child.
In re Adoption of Zavasky, 241 Minn. 447, 452-53, 63 N.W.2d 573, 577-78 (1954) (emphasis added). The Zavasky court acknowledged that the "unqualified" right of a guardian to refuse consent "seems drastic," but that "insofar as such provision is unreasonable the remedy is with the legislature." Id. at 453, 63 N.W.2d at 577.
*628 In 1974 the legislature amended the statute construed in Zavasky by adding subdivision 7 to section 259.24, as follows:
Consent to an adoption shall not be unreasonably withheld by a guardian, who is not a parent of the child, by the commissioner or by an agency.
1974 Minn.Laws ch. 66, § 4. This provision subjects the Commissioner to a standard of reasonableness. Because the Commissioner's statutory right to refuse to consent to an adoption is no longer "unqualified," the statute no longer precludes judicial review:
There is a presumption in favor of judicial review of agency decisions in the absence of statutory language to the contrary.
Minnesota Pub. Interest Research Group v. Minnesota Envtl. Quality Council, 306 Minn. 370, 376, 237 N.W.2d 375, 379 (1975) (footnote omitted). Given the presumption of judicial review, and the likelihood that the legislature intended the standard of reasonableness to be capable of enforcement, we hold that the district court has jurisdiction to determine whether the Commissioner's decision to withhold consent was unreasonable.
2. The Bureau asserts that if in fact the Commissioner's decision is subject to judicial review, the adoption proceeding cannot be heard until the court has made a preliminary determination that the Commissioner's consent was unreasonably withheld. This preliminary determination, argues the Bureau, should be limited in scope and should not be equated with a determination of the best interests of the children.
Deference should be shown by courts to an agency's expertise and special knowledge in the field of its technical training, education and experience. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977); see also Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn.1984); Minnesota Power & Light Co. v. Minnesota Pub. Utils. Comm'n, 342 N.W.2d 324, 329 (Minn.1983). A reviewing court must not substitute its judgment for that of the agency if the record supports the agency's determination. Dakota County Abstract Co. v. Richardson, 312 Minn. 353, 356, 252 N.W.2d 124, 126-27 (1977).
The Bureau points out that the facts before the district court clearly supported the Commissioner's decision to withhold consent. The district court was aware that a relative had been identified as a suitable adoptive parent and that S.T. and N.T. are not of the same race as the Iskierkas. Minn.Stat. § 259.255 (1990) provides as follows:
The authorized child placing agency shall give preference, in the absence of good cause to the contrary, to placing the child with (a) a relative or relatives of the child, or, if that would be detrimental to the child or a relative is not available, (b) a family with the same racial or ethnic heritage as the child, or, if that is not feasible, (c) a family of different racial or ethnic heritage from the child which is knowledgeable and appreciative of the child's racial or ethnic heritage.
As the supreme court recently held,
adoptive placement with a family member is presumptively in the best interest of a child, absent a showing of good cause to the contrary or detriment to the child.
In re Welfare of D.L., 486 N.W.2d 375, 380 (Minn.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 603, 121 L.Ed.2d 539 (1992). The Bureau argues that, based on these presumptions, the district court was compelled to find that the Commissioner's decision to withhold consent was reasonable. Because the Commissioner was not unreasonable in withholding consent to the adoption, it argues, the district court is deprived of jurisdiction to hear the matter further.
Minn.R.Evid. 301 states that a presumption in favor of one party imposes the burden of going forward with the evidence on the other party. The adoption statutes provide specific grounds for challenging presumptions favoring adoptive placement with relatives or same race families. For example, Minn.Stat. § 259.255 enumerates preferences for the placement of children "in the absence of good cause to the contrary." It also provides that children *629 should not be placed with relatives when such placement would be "detrimental to the child". Id. The supreme court has recognized that the presence of facts giving rise to the statutory presumptions
does not mean that relatives' adoption petitions must be granted automatically. The terms "best interests," "good cause to the contrary" and "detriment" do not lend themselves to standardized definitions. The best interests of potential adoptees will vary from case to case, and the trial court retains broad discretion because of its opportunity to observe the parties and hear the witnesses.
D.L., 486 N.W.2d at 380.
In the present case, the district court specifically reserved the question of reasonableness for later determination. The court did not take evidence on the matter, so the Iskierkas have not yet had an opportunity to rebut the presumptions in favor of the Commissioner's decision. Even under the narrow standard of review urged by the Bureau, the record is insufficient to support the Commissioner's decision.
Furthermore, it is not clear that agency decisions regarding adoption should be reviewed under a narrow standard where parental rights have been terminated:
[I]t is clear that the judicial branch has an independent interest, and significant independent authority, to guard the welfare of children who are wards of the state after parental termination.
D.L., 486 N.W.2d at 379 (emphasis added). Nor do we find it a simple matter to distinguish between the best interests of the children and the reasonableness of the Commissioner's decision to withhold consent to the adoption. A decision contrary to the children's best interests would be unreasonable per se. As the supreme court stated in D.L.,
legislative enactments on the placement of children are not "beyond the control of the courts. The cardinal principle in such matters is to regard the benefit of the infant as paramount * * *."
D.L., 486 N.W.2d at 379 (quoting State ex rel. Flint v. Flint, 63 Minn. 187, 189, 65 N.W. 272, 273 (1895)).
We find that the district court correctly interpreted Minn.Stat. § 259.24 as requiring the Commissioner's consent for final adoption, rather than to the filing of a petition for adoption. The question of whether the Commissioner's consent was unreasonably withheld requires consideration of the best interests of the children. These interests can best be determined in the context of an adoption proceeding. Although deference should be accorded the Commissioner's expertise in this matter, the district court retains an independent interest and authority where the children in question are wards of the state due to parental termination.
Affirmed. | 01-03-2023 | 10-30-2013 |
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