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https://www.courtlistener.com/api/rest/v3/opinions/2566614/ | 98 P.3d 827 (2004)
Joseph J. KIRBY and Deborah A. Kirby, husband and wife, Appellants,
v.
The CITY OF TACOMA, a municipal corporation; Ray Corpuz and "Jane Doe" Corpuz, husband and wife; Philip Arreola and "Jane Doe" Arreola, husband and wife; William Woodard and Catherine Woodard, husband and wife; Raymond Roberts and "Jane Doe" Roberts, husband and wife; David Brame and "Jane Doe" Brame, husband and wife; James Hairston and "Jane Doe" Hairston, husband and wife, Respondents.
Nos. 29963-1-II, 30747-2-II.
Court of Appeals of Washington, Division 2.
September 14, 2004.
Publication Ordered October 5, 2004.
*830 John Louis Messina, Jeremy Adam Johnston, Messina/Bulzonmi, Tacoma, Stephen Louis Bulzomi, Messina/Bulzomi, University Place, Cynthia M. Morgan, Law Offices of Reseburg & Morgan, Seattle, for Appellants.
Shelley Marie Kerslake, Kenyon Disend PLLC, Issaquah, Jon Jeffrey Walker, Tacoma City Attorneys Office, Tacoma, for Respondents.
HUNT, J.
Tacoma police officer Joseph Kirby appeals summary judgment in favor of the City of Tacoma, in which the trial court dismissed his claims of age and disability related employment discrimination, First Amendment violations, and intentional infliction of emotional distress. He also appeals the trial court's denial of his motion for relief from judgment based on newly discovered evidence. Kirby argues that (1) genuine issues of material fact exist as to his claims of discrimination and intentional infliction of emotional distress; (2) he properly pleaded a First Amendment claim; and (3) the trial court abused its discretion in denying the motion for relief from judgment. Holding that summary judgment dismissal of Kirby's claims was proper, we affirm.
FACTS
I. BACKGROUND
Kirby joined the Tacoma Police Department (TPD) in January 1983. He quickly received promotions to sergeant and lieutenant, received commendations and "outstanding" evaluations, placed first on the civil service captain's list, and was made a temporary captain for six months.
In January 1996, on promotion to lieutenant, Kirby was removed from the Clandestine Lab Team (CLT). Another officer, Sergeant Ramsdell, was allowed to remain on the CLT when he was promoted to lieutenant, because the team did not have another officer certified as a team leader. When another certified officer became available, Ramsdell was also removed from the CLT.
On March 4, 1997, Kirby became involved in police union activities. On September 15, 1998, he was diagnosed with a work-related stress disorder, about which he notified the City on July 31, 1998. His private physician provided psychiatric treatment from September 15, 1998, until March 26, 2001. Kirby was subjected to several psychiatric examinations to determine his fitness for duty, including one on September 9, 1998. Kirby twice reported himself unable to work due to stress-related illness.[1]
Kirby had a contentious relationship with the TPD command structure. On June 15, 1998, for example, TPD held a command staff meeting to discuss domestic violence between two TPD officers. Kirby had spoken with one of the involved officers over the weekend and related the conversation without saying that it was confidential or union-related.[2] When the bureau commander ordered Kirby *831 to write an administrative report on the incident, Kirby saluted and said, "F* *king Airborne, you'll get your report, but you won't like what it says."[3] Clerk's Papers (CP) at 269. Kirby wrote the report but improperly disseminated it, before submitting it to the bureau commander; as a result, Kirby was reprimanded for insubordination.
Kirby was the subject of numerous Internal Affairs (IA) investigations, some of which lasted for months and some for up to two years. TPD does not generally initiate IA investigations unless the incident would justify economic sanctions. Charles Meinema later testified, "[I]t seems whenever Joe Kirby has any kind of disagreement with a superior, the matter gets referred to IA, and this has happened to other people as well." CP at 412.
On Friday, August 20, 1999, Kirby learned of allegations that a TPD officer had attempted to bribe a citizen. The following Monday, he brought the allegations to a superior officer. Kirby was orally reprimanded and counseled for failure to inform the chief of police immediately. Kirby later testified that he did not tell the chief because he believed that the chief was likely to engage in a cover-up. No formal disciplinary action was taken against the officer allegedly involved in the bribery allegations.
On November 3, 1999, Kirby was orally reprimanded again, this time for having failed to support a superior officer's policies by expressing his (Kirby's) own opinion about the TPD's decision to transfer a secretary out of his division in October.
According to Kirby, TPD Chief Philip Arreola exhibited age discrimination when he (1) once referred to Kirby as the "old guard"; and (2) again, during a command staff meeting, said, "Now if I can just get some of these gray-haired old captains to leave, we can get you guys here at the table" (while addressing two younger officers who had just placed first and second on the captain's list). CP at 420. Another time, at a staff meeting, Kirby complained about administration of discipline procedures. Arreola told Kirby to stand down or he would suspend[4] him for having the audacity to challenge him in an open forum. Arreola never took any steps to suspend or terminate Kirby. According to Kirby, Arreola also seized his email account and conducted a "warrantless search of his emails" in retaliation for raising an issue about officer safety when serving warrants and potential TPD liability.[5]
In 1999 and 2000, TPD twice passed over 52-year-old Kirby for promotion to captain, even though he had been a temporary captain for the previous six months and had placed first on the civil service captain's list at the time of the appointments. Instead, TPD gave the positions to the two other candidates from the top three, who were 45 and 42 years old. Before passing over Kirby for promotion, the TPD had never passed over a lieutenant who placed first on the civil service captain's list, even though the City's personnel rules allowed selection of any candidate from the top three.
Arreola was no longer employed with the TPD when Kirby was passed over for captain; nor was Arreola involved in the promotion decisions at issue here. Rather, Chief James Hairston selected the other applicants over Kirby because they fit better into the organizational structure and had better team-working skills.[6]
II. PROCEDURE
Kirby sued the City, alleging continued harassment and discrimination during his employment with the TPD because of his *832 participation in protected union activities, his disability, and his age. He later amended his complaint, adding intentional infliction of emotional distress. Kirby also filed a Notice of Claim indicating his intent to assert constitutional tort claims under both the Washington State and Federal Constitutions.
The trial court granted the City's motions for partial summary judgment on all Kirby's claims, and dismissed the case. The court also dismissed Kirby's First Amendment claim, finding that the complaint failed properly to plead a First Amendment claim.
The trial court denied Kirby's motion for reconsideration under CR 59(a)(7),(8), and (9), in which he argued that he had presented sufficient evidence to defeat summary judgment on his claim of wrongful adverse employment action.
Kirby then moved for relief from judgment based on newly discovered evidence and fraud. On April 26, 2003, TPD Chief David Brame killed himself and his wife. The newspaper published an article about Chief Brame's prehire psychological evaluation, including the text of the evaluation. During discovery in Kirby's case, the City had claimed that their files did not contain prehire psychological screening material.
The trial court denied Kirby's motion. It concluded that Kirby did not properly plead a claim for discrimination based on union activity, and the evidence did not suggest that TPD discriminated against Kirby based on age, disability, or union activity.
ANALYSIS
I. STANDARD OF REVIEW
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). We must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986).
After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables, 106 Wash.2d at 13, 721 P.2d 1. We will uphold the ruling granting the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.
II. EMPLOYMENT DISCRIMINATION
A. McDonnell Douglas Test
Washington courts apply the protocol developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) to determine the evidentiary burdens of the parties in discrimination cases. Hill v. BCTI Income Fund-1, 144 Wash.2d 172, 180, 23 P.3d 440 (2001); Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 753 P.2d 517 (1988). Under this protocol, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Hill, 144 Wash.2d at 181, 23 P.3d 440. If the plaintiff fails to establish a prima facie case, the defendant is entitled to judgment as a matter of law. Hill, 144 Wash.2d at 181, 23 P.3d 440.
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory explanation for the adverse employment action. Hill, 144 Wash.2d at 181, 23 P.3d 440. If the defendant provides such a reason, the burden shifts back to the plaintiff to show that the employer's reason is actually a pretext for what, in fact, is a discriminatory purpose. Hill, 144 Wash.2d at 182, 23 P.3d 440; Grimwood, 110 Wash.2d at 364, 753 P.2d 517. If the plaintiff fails to make this showing, the defendant is entitled *833 to judgment as a matter of law. Hill, 144 Wash.2d at 182, 23 P.3d 440.
B. Adverse Employment Actions
Washington courts have defined "adverse employment action." According to our Supreme Court, discrimination requires "an actual adverse employment action, such as a demotion or adverse transfer, or a hostile work environment that amounts to an adverse employment action." Robel v. Roundup Corp., 148 Wash.2d 35, 74 n. 24, 59 P.3d 611 (2002).
Federal law provides further guidance. An actionable adverse employment action must involve a change in employment conditions that is more than an "inconvenience or alteration of job responsibilities," DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir.1995), quoting Crady v. Liberty Nat'l Bank & Trust Co. of Indiana, 993 F.2d 132 (7th Cir.1993), such as reducing an employee's workload and pay, Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000). In contrast, yelling at an employee or threatening to fire an employee is not an adverse employment action. See Munday v. Waste Mgmt. of N. Am. Inc., 126 F.3d 239, 243 (4th Cir.1997).
Kirby alleges numerous adverse employment actions. The City concedes that TPD's failure to promote Kirby to permanent captain alleges an adverse employment action. The other alleged events, however, were disciplinary or investigatory in nature and, therefore, do not constitute adverse employment actions under the cases cited above. At most, these events were inconveniences that did not have a tangible impact on Kirby's workload or pay.
1. Hostile work environment
Kirby did not argue on summary judgment that TPD created a hostile work environment amounting to an adverse employment action. Generally, we do not consider on appeal issues not raised in the trial court. RAP 9.12. Accordingly, we do not consider Kirby's argument that the City engaged in an adverse employment action stemming from a hostile work environment.
2. Age discrimination
a. No prima facie case
To establish a prima facie case of age discrimination, Kirby had to show: (1) he was within the statutorily protected age group; (2) he applied and was qualified for an available promotion; (3) he was not offered the position; and (4) the promotion went to a significantly[7] younger person. Kuyper v. Dep't of Wildlife, 79 Wash.App. 732, 735, 904 P.2d 793 (1995), review denied, 129 Wash.2d 1011, 917 P.2d 130 (1996). Kirby satisfies the first three elements. He was over 40 years old at the time of the two captain promotions. He was first on the captain's list, had served as a temporary captain, and had received awards and commendations.
Viewing the facts and all reasonable inferences in the light most favorable to Kirby, it appears he was likely qualified for a captain position. But he was not offered the captain position. Instead, it went to a somewhat younger candidate on both occasions. But to establish a successful claim of wrongful discharge due to age discrimination, and to satisfy the fourth prong of the prima facie case, the replacement must be someone not in the protected class. See Chen v. State of Wash., 86 Wash.App. 183, 189, 937 P.2d 612 (1997). Here, the officers promoted to captain were only seven or 10 years younger than Kirby, and they were within the same protected age group (i.e. 40-70 years old). See Brady v. Daily World, 105 Wash.2d 770, 777, 718 P.2d 785 (1986) (replacement must be outside the protected age group). Thus, *834 Kirby did not establish wrongful discharge due to age discrimination.[8]
b. No pretext
Nor can Kirby establish "pretext" without evidence that the City's articulated reasons for its promotion decisions are unworthy of belief. Kirby has failed to show that the City's articulated reasons: (1) have no basis in fact; (2) were not really motivating factors for the decision; or (3) were not motivating factors in employment decisions for other employees in the same circumstances. Kuyper, 79 Wash.App. at 738-39, 904 P.2d 793.
Kirby cites Arreola's references to older officers as the "old guard" and getting "gray-haired old captains to leave." But Arreola was no longer working for the TPD when it promoted the two other officers and he was not involved in the promotion decisions.[9] Arreola's comments, therefore, cannot impute discriminatory intent to the City.[10]See Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S. Ct. 1775, 1805, 104 L. Ed. 2d 268 (1989) (O'Connor J. concurring) (finding that statements by non-decision makers are insufficient to establish discriminatory intent).
Accordingly, we hold that the trial court properly granted summary judgment on Kirby's age discrimination claim.
3. Disability discrimination
Kirby also claims that he received disparate treatment from the TPD due to his disability. A prima facie case of disparate treatment requires the plaintiff to show that (1) he is in a protected class (disabled); (2) suffered an adverse employment action; (3) was doing satisfactory work; and (4) was treated differently than someone not in the protected class. Roeber v. Dowty Aerospace, 116 Wash.App. 127, 135, 64 P.3d 691, review denied, 150 Wash.2d 1016, 79 P.3d 446 (2003).
Kirby satisfies the elements of the prima facie case for disparate treatment based on his disability. He was diagnosed with a stress disorder, which is a mental disability. See RCW 49.60.180. He suffered an adverse employment action when the City failed to promote him to permanent captain. Viewing the facts and inferences in the light most favorable to Kirby, there is no reason to doubt that his work was satisfactory for a time and in some respects. And there is no evidence that the candidates promoted over him to permanent captain manifested any disabilities.
Kirby having established a prima facie case of disability discrimination, the evidentiary burden shifted to the City to produce a legitimate nondiscriminatory explanation for its adverse employment action. Hill, 144 *835 Wash.2d at 181, 23 P.3d 440. The City did this. The City did not select Kirby for promotion to captain because he was, by his own admission, a "poor fit" for the command structure. He was lacking in teamwork and ability to build consensus or partnerships necessary to move the organization forward.
The burden then shifted back to Kirby to present evidence that the City's explanation for passing over Kirby for promotion is unworthy of belief. Kuyper, 79 Wash.App. at 738, 904 P.2d 793. Kirby offers little more than his testimony that he believed his disability played a substantial role in the adverse employment action taken against him. But "[p]laintiff's conclusory opinions do not amount to material facts admissible in evidence showing there is a genuine issue for trial." Grimwood, 110 Wash.2d at 365, 753 P.2d 517.
Moreover, Kirby fails to offer any specific instances of conduct or discipline constituting discrimination based on his disability. Where "the plaintiff has produced no evidence from which a reasonable jury could infer that an employer's decision was motivated by an intent to discriminate, summary judgment is entirely proper." Kuyper, 79 Wash.App. at 739, 904 P.2d 793. Such is the case here.
4. First Amendment and public policy
Kirby never pleaded below that the City discriminated against him and violated his First Amendment rights[11] for acting as a union advocate. Rather, he first raised the First Amendment claim in his memorandum in opposition to the City's motions for summary judgment. And he first introduced his claim of adverse employment action in violation of public policy at oral argument on the City's motions for summary judgment.[12]
CR 8(a) requires that a complaint for relief "contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled." The complaint must "apprise the defendant of the nature of the plaintiff's claims and the legal grounds upon which the claims rest." Molloy v. Bellevue, 71 Wash.App. 382, 385, 859 P.2d 613 (1993), review denied, 123 Wash.2d 1024, 875 P.2d 635 (1994). "A pleading is insufficient when it does not give the opposing party fair notice of what the claim is and the ground upon which it rests." Dewey v. Tacoma School Dist. No. 10, 95 Wash.App. 18, 23, 974 P.2d 847 (1999), quoting Lewis v. Bell, 45 Wash.App. 192, 197, 724 P.2d 425 (1986).
Kirby's "Notice of Claim" failed to provide the City adequate notice of the nature of the claims against which it would have to defend. The trial court noted that "the words `free speech' or `first amendment' usually manage to alert the other side."[13] Report of Proceedings (RP) (1/10/2003) at 43. But Kirby's "Notice of Claim" merely referenced "constitutional tort claims." The variation among potential constitutional tort claims is significant. As the City argued at summary judgment, this variation presented myriad ways of proceeding with a defense and conducting discovery, resulting in actual prejudice to the City. The City should not be required to guess against which claims they will have to defend.
CR 15 specifically provides for amendment to add or to remove claims from an action. But Kirby did not follow the proper procedure; instead, he filed a "Notice of Claim." As the City argues, this method of practice "would be unfair to opposing parties and undermine the ability of trial courts to control the cases on their busy dockets." Br. of Respondent at 38. We have previously rejected *836 such tactics in Dewey, 95 Wash.App. at 25, 974 P.2d 847.
The plaintiff in Dewey failed to satisfy the liberal "notice pleading" standards because his complaint did not contain the words "First Amendment" or "free speech." Dewey, 95 Wash.App. at 23, 974 P.2d 847. We noted, "Although inexpert pleading is permitted, insufficient pleading is not." Id. We held that the complaint did not "identify a free speech or First Amendment theory, nor [did] it fairly imply such a theory." Id. at 25, 974 P.2d 847.
Similarly, Kirby's "Notice of Claim" did not mention free speech or the First Amendment. Rather, at best it arguably implied such a claim under its pleaded "constitutional tort claim," which could include a First Amendment claim. Although it is possible to try an unpleaded claim by implication,
[i]n determining whether the parties impliedly tried an issue, an appellate court will consider the record as a whole, including whether the issue was mentioned before the trial and in opening arguments, the evidence on the issue admitted at the trial, and the legal and factual support for the trial court's conclusions regarding the issue.
Dewey, 95 Wash.App. at 26, 974 P.2d 847 (citing Fed. Signal Corp. v. Safety Factors, Inc., 125 Wash.2d 413, 435-36, 886 P.2d 172 (1994)). But a defendant's argument that the plaintiff failed to plead a First Amendment theory of recovery does not amount to a "trial" of the issue. Dewey, 95 Wash.App. at 26, 974 P.2d 847.
Here, the City argued at summary judgment that Kirby failed properly to plead a First Amendment theory of recovery. Only after this argument did the City hesitantly[14] attack the merits of Kirby's unpleaded claims. The City should not be penalized for attempting a defense for which it was ill prepared as a result of Kirby's procedural failures.
Kirby based the public policy component of his attempted First Amendment claim for adverse employment action on Robel v. Roundup, 148 Wash.2d at 50, 59 P.3d 611; specifically, the portion of the opinion entitled "Retaliation for Filing Workers' Compensation Claim." Robel, 148 Wash.2d at 48, 59 P.3d 611. Washington's Industrial Insurance Act provides,
No employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.
Robel, 148 Wash.2d at 48-49, 59 P.3d 611 (citing RCW 51.48.025(1)). Kirby argues that Robel created a common law tort for adverse employment action in violation of public policy and derives elements from those the Robel court used in applying a particular antidiscrimination statute (RCW 51.48.025(1)). He is incorrect. As Division Three of this court has expressly recognized:
The issue in Robel was entirely statutory. It did not involve a claim for the common law tort of wrongful retaliation in violation of public policy. The dissenting opinion in Robel incorrectly contended the majority `extends the tort of wrongful discharge ... to encompass an act by an employer short of actual or constructive discharge.'
Korslund v. Dyncorp Tri-Cities Services, Inc., 121 Wash.App. 295, 317, n. 8, 88 P.3d 966 (2004).[15]
Kirby's tort claim, at best, is an offshoot of his inadequately pleaded First Amendment claim. Just as his First Amendment claim fails, so does his public policy claim fail.
*837 "A party who does not plead a cause of action or theory of recovery cannot finesse the issue by later inserting the theory into trial briefs and contending it was in the case all along." Dewey, 95 Wash.App. at 26, 974 P.2d 847. See Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996) ("a plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment."). The trial court properly granted summary judgment on and dismissed Kirby's claim of discrimination due to protected union activities.
5. Intentional Infliction of Emotional Distress
The elements of the tort of outrage are: "(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress." Birklid v. Boeing Co., 127 Wash.2d 853, 867, 904 P.2d 278 (1995) (citation omitted). The conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291 (1975). Furthermore, "liability in the tort of outrage does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Grimsby, 85 Wash.2d at 59, 530 P.2d 291.
Whether conduct is sufficiently outrageous is ordinarily a jury question. Nonetheless, the trial court must initially determine if reasonable minds could differ on whether the conduct was extreme enough to result in liability. Dicomes v. State, 113 Wash.2d 612, 630, 782 P.2d 1002 (1989).
In Dicomes, the State terminated an executive secretary from her administrative position because she had revealed budget information to interested third parties. Dicomes, 113 Wash.2d at 615-16, 782 P.2d 1002. She claimed the discharge constituted outrageous conduct because it allegedly showed her to be an incompetent and disloyal employee. Dicomes, 113 Wash.2d at 630, 782 P.2d 1002. She further argued that management created an intentionally false report for the sole purpose of embarrassing, humiliating, and then terminating her. Dicomes, 113 Wash.2d at 630, 782 P.2d 1002. The Supreme Court disagreed and held that "even if the purpose of the study was to fire plaintiff, the fact of the discharge itself is not sufficient to support a claim of outrage," reasoning that "mere insults and indignities, such as causing embarrassment or humiliation, will not support imposition of liability on a claim of outrage." Dicomes, 113 Wash.2d at 630, 782 P.2d 1002, citing Grimsby, 85 Wash.2d at 59, 530 P.2d 291.
Dicomes is analogous to Kirby's case. When viewed in the light most favorable to Kirby, all of the adverse employment actions Kirby alleged are little more than insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Workplace disciplinary actions such as writing administrative reports, receiving oral reprimands, and internal affairs investigations are not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Grimsby, 85 Wash.2d at 59, 530 P.2d 291. Nor do threats to terminate or to suspend constitute outrageous conduct in light of Dicomes, where not even actual termination constituted outrageous conduct. Moreover, Kirby was not even terminated, as in Dicomes. Rather, he was passed over for a promotion based on negative reviews by his supervisors and negative predictions about his ability to advance team goals.
Kirby has failed to set forth specific facts showing a genuine issue of material fact as to his claim of outrageous conduct. Therefore, we hold that summary judgment on this claim was also proper.
III. MOTION FOR RELIEF FROM JUDGMENT
A. Standard of Review
We review the trial court's denial of a motion for relief from judgment for abuse of discretion. In re Marriage of Scanlon v. Witrak, 110 Wash.App. 682, 686, 42 P.3d 447, review denied, 147 Wash.2d 1024, 60 P.3d 92 (2002). A trial court abuses its discretion *838 when it exercises that discretion on untenable grounds or for untenable reasons. Scanlon, 110 Wash.App. at 686, 42 P.3d 447.
B. Newly Discovered Evidence
Kirby contends that newly discovered information from the media showed: (1) former TPD Chief David Brame confessed to committing an armed rape, yet he was not disciplined; and (2) before being hired, Brame was not recommended for employment with the TPD based on a psychologist's evaluation. Kirby argues that this newly discovered information highlights the disparate treatment between himself and other TPD members. We disagree.
Kirby is correct that showing the defendant treated similarly situated employees outside of the plaintiff's class more favorably would generally be probative of pretext.[16]Vasquez v. County of L.A., 349 F.3d 634, 641 (9th Cir.2003). But here, as the City argues, "[T]he events are so remote in time to the period during which Kirby claims to have been discriminated against, that they lack probative value." Br. of Respondent at 47.
Kirby claims that TPD's discrimination against him began on October 1, 1996. But Brame was hired in 1981, 15 years before the City's alleged discrimination against Kirby, and Brame's alleged rape occurred in 1988, eight years earlier. In light of such large time gaps, Brame and Kirby cannot have been "similarly situated" employees to show disparate treatment. Eight and 15-year spans allow for numerous personnel and policy changes.
Thus, this newly discovered information could not help Kirby show that he was treated less favorably than a similarly situated employee. We hold that the trial court did not abuse its discretion in denying Kirby's motion for relief from judgment.
IV. ATTORNEY FEES
In a separate section of its brief, the City requests costs and statutory attorney fees. According to RAP 14.2, "[T]he appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review." Accordingly, we award the City costs and statutory attorney fees. RAP 14.1; RAP 14.2; RAP 14.3.
Affirmed.
We concur: MORGAN, A.C.J., and VAN DEREN, J.
NOTES
[1] These incidents occurred on July 31, 1998, and March 15, 1999.
[2] Kirby did not raise the union advocacy issue until sometime after the meeting. Clerk's Papers (CP) at 288.
[3] Kirby testified at deposition that he was in jeopardy of termination if he did not divulge the conversation.
[4] Kirby claims that Arreola threatened to suspend him. But, Kirby's declaration and deposition state that Arreola threatened to terminate his employment.
[5] The TPD email system and all emails generated on the system are City property, and the email system is limited to official business. Information on the email system can be considered a public record, subject to public disclosure.
[6] At trial, Kirby testified, "I also believe that Mike Darland made an accurate statement when he said in deposition that he did not select me because basically I was not a good fit for the current command structure." CP at 561.
[7] See Hill, 144 Wash.2d at 188, 23 P.3d 440 (in the context of a wrongful discharge due to age claim the plaintiff must show that he was replaced by a significantly younger person.). See also O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433 (1996) (Adopting requirement that replacement worker must be "substantially younger" than plaintiff alleging age discrimination under Age Discrimination in Employment Act to make prima facie case).
[8] Even assuming, without deciding, that Kirby had established the prima facie elements of an age-discrimination case, he fails to rebut the City's articulated non-discriminatory reasons for promoting the other candidates to captain. Kirby even agreed with one command staff member's reason for not selecting Kirby: "I was not a good fit for the current command structure." CP at 561. Kirby distrusted the command staff and disapproved of their management style.
Kirby also publicly disagreed with command staff decisions. While serving as temporary captain, he was disciplined for failing to support policies of a superior officer, deliberately failing to cooperate with peers, and failing to notify the chief of a serious incident involving the integrity of another officer.
Furthermore, TPD policy allowed management to select from any of the top three candidates. Kirby has neither alleged nor shown that the candidates promoted to captain were not qualified. That the TPD lawfully chose a different qualified candidate, who happened to be younger, is not sufficient to establish that the TPD intended to discriminate against him. See Kuyper, 79 Wash.App. at 738, 904 P.2d 793. The City demonstrated legitimate, non-discriminatory reasons for promoting the other candidates over Kirby.
[9] James Hairston became chief in December 1998 and was the chief who made the final decisions on the captain promotions.
[10] Even if Arreola had been the decision maker, such stray remarks would not have given rise to an inference of discriminatory intent. Pottenger v. Potlatch Corp., 329 F.3d 740, 747 (9th Cir.2003). See also Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325, 1330 (7th Cir.1989) (noting that stray "remarks, ... when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue."). Arreola's comments were insufficient evidence from which to infer that the City's articulated reasons for the promotions were merely pretext for discrimination.
[11] U.S. CONST. amend. I.
[12] Kirby did file a "Notice of Claim" document stating "plaintiffs intend to assert constitutional tort claims under both the Washington State and Federal Constitutions." CP at 155-56. Kirby contends that this notice of claim, in conjunction with a reference to an administrative claim in his complaint, is sufficient to satisfy Washington's liberal notice pleading requirements because he thereby provided sufficient notice to the City of its First Amendment violations. The discussion of Dewey satisfactorily resolves this issue in the City's favor.
[13] Kirby's counsel admitted, "The language of the complaint is broad enough, although I agree it doesn't specifically state first amendment language." RP (1/10/2003) at 32.
[14] See RP (1/10/2003) at 16 ("Now, we were at somewhat of a disadvantage in responding to the motion in this way because we don't fully understand plaintiff's claim, but we did the best we could with the information we had.")
[15] Kirby's attempted reliance on Robel fails for another reason. His asserted "creation" of this cause of action derives, not from the majority opinion, but rather from a dissent, which contends, "[T]he majority extends the tort of wrongful discharge ... to encompass an act by an employer short of actual or constructive discharge." Robel, 148 Wash.2d at 70, 59 P.3d 611 (Bridge, J., dissenting in part). Kirby's misplaced reliance on the minority dissent's interpretation of the majority's decision in Robel (which applied RCW 51.48.025(1) to the particular facts) fails to establish his tort claim.
[16] Similarly situated employees must have the same supervisor, be subject to the same standards, and have engaged in the same conduct. Vasquez v. County of L.A., 349 F.3d 634, 641-42, n. 17. (9th Cir.2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327862/ | 215 Ga. App. 360 (1994)
MOCLAIRE
v.
THE STATE.
ENDRES
v.
THE STATE.
A94A1248, A94A1249.
Court of Appeals of Georgia.
Decided November 3, 1994.
Reconsideration Dismissed November 17, 1994.
Reconsideration Denied November 29, 1994.
*366 Steven H. Sadow, Robert G. Fierer, Colette B. Resnick, for appellants.
Lewis R. Slaton, District Attorney, Barry I. Mortge, Shawn E. Lagrua, Alfred D. Dixon, Assistant District Attorneys, for appellee.
JOHNSON, Judge.
The state prosecuted William Moclaire and Troy Endres together on a multiple count indictment charging them with participating in a crime ring involving several law enforcement officers and others. The Fulton County jury found Endres guilty of two counts of armed robbery and Moclaire guilty of two counts of burglary, three counts of armed robbery, two counts of aggravated assault and two counts of possession of a firearm during the commission of a felony. Moclaire and Endres jointly appeal from their convictions.
1. Moclaire and Endres contend the court erred in denying their extraordinary motion for a new trial because the state failed to disclose the results of a prosecution witness' polygraph examination and statements made by the witness after the polygraph in violation of Brady v. Maryland, 373 U.S. 83 (83 SC 1194, 10 LE2d 215) (1963). "The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and material either to guilt or punishment. . . . Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. Such evidence is evidence favorable to an accused, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (Citations and punctuation omitted.) Brooks v. State, 182 Ga. App. 144, 145 (1) (355 SE2d 435) (1987). Contrary to the argument of Moclaire and Endres, the polygraph results and the witness' statements after the polygraph are not exculpatory. Black's Law Dictionary defines exculpatory as clearing or tending to clear from alleged fault or guilt; excusing. Houston v. State, 187 Ga. App. 335, 338 (3) (370 SE2d 178) (1988). Here, the polygraph results and witness statements in no way clear or excuse Moclaire and Endres from guilt; rather, the evidence shows simply the probability that the witness, who was indicted along with Moclaire and Endres, committed crimes other than those which he admitted and did not reveal the identities of all the crime-ring participants. This evidence is, at best, non-inculpatory of Moclaire and Endres, whom the witness had previously identified as crime-ring participants, in that it does not again mention them by name. See Whatley v. State, 197 Ga. App. 489, 490 (3) (398 SE2d 807) (1990).
Despite their argument to the contrary, Moclaire and Endres could not have used the polygraph results as impeachment evidence because they did not stipulate with the state that the results would be *361 admissible at trial. "[W]here the defendant and the State did not stipulate that the results of a polygraph test taken by a witness would be admissible at trial, questioning the witness regarding those test results is impermissible because a stipulation is a prerequisite for the admissibility of such evidence." (Citations and punctuation omitted.) Walker v. State, 264 Ga. 79, 80 (2) (440 SE2d 637) (1994); Bragg v. State, 175 Ga. App. 640, 644 (2) (334 SE2d 184) (1985). Moclaire and Endres have also made no showing as to how the witness is impeached by the statements he made after the polygraph. Any other evidence concerning the unstipulated polygraph test was also nonprobative and inadmissible. See Allen v. State, 210 Ga. App. 447, 449 (3) (436 SE2d 559) (1993). Moreover, we find no merit in the appellants' contention that the results of the polygraph examination could have potentially led to the discovery of exculpatory information. See Jefferson v. State, 159 Ga. App. 740, 742 (2) (285 SE2d 213) (1981).
Not only have Moclaire and Endres failed to show the polygraph results and witness statements were favorable to them as exculpatory or impeachment evidence, but they have also failed to show the evidence is material to their guilt or sentencing. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Citation and punctuation omitted.) Rogers v. State, 257 Ga. 590, 592 (3) (361 SE2d 814) (1987). "`The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.' [Cits.]" Belins v. State, 210 Ga. App. 259, 260 (2) (435 SE2d 675) (1993). "[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." (Citations and punctuation omitted.) Houston v. State, supra at 339 (3). Considering the polygraph evidence and witness statements in the context of the entire record, we conclude there is no reasonable probability that the result of the instant proceeding would have been different if the evidence had been given to Moclaire and Endres. Because the omitted evidence does not undermine confidence in the outcome of the trial, the trial court was justified in denying the extraordinary motion for a new trial. See Cato v. State, 195 Ga. App. 619, 620 (1) (394 SE2d 413) (1990); Benefield v. State, 140 Ga. App. 727, 733-736 (8) (232 SE2d 89) (1976).
2. Moclaire and Endres claim the court erred in refusing to reopen the evidence after both they and the state rested. "It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an *362 abuse of discretion." (Citations and punctuation omitted.) Oswell v. State, 208 Ga. App. 883, 884 (2) (432 SE2d 586) (1993). Moclaire and Endres requested that the court allow them to present an additional witness who purportedly would have corroborated the testimony of a prior witness. The court did not abuse its discretion in refusing to reopen the evidence for testimony which was cumulative of prior evidence and which Moclaire and Endres could have presented in their case-in-chief. See Brown v. State, 188 Ga. App. 282, 283 (372 SE2d 838) (1988); Killens v. State, 184 Ga. App. 717, 721 (5) (362 SE2d 425) (1987); Pope v. State, 178 Ga. App. 148, 149 (1) (342 SE2d 330) (1986).
3. Moclaire and Endres assert the court erred in not allowing them to recall a prosecution witness to cross-examine him about criminal charges pending against him in Cobb County. The federal constitution guarantees the defendant in a criminal trial the specific right to cross-examine a key state witness about criminal charges pending against the witness. Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982). See also Owens v. State, 251 Ga. 313, 314-317 (1) (305 SE2d 102) (1983). Assuming, without deciding, that the witness in the instant case was a key prosecution witness and that the court erred in refusing to allow the cross-examination, the error was harmless beyond a reasonable doubt because the strength of the state's case was overwhelming and the witness' testimony merely corroborated other evidence. See Byrd v. State, 262 Ga. 426, 427-428 (2) (420 SE2d 748) (1992).
4. Moclaire and Endres argue the court erred in ruling that a newspaper reporter could not be compelled to testify to impeach state witness James Batsel. This argument is without merit.
Batsel's sister purportedly told the reporter about statements Batsel had made concerning the crime ring. Moclaire and Endres attempted to have the sister testify to impeach Batsel, claiming the statements she attributes to Batsel contradict his trial testimony. When Moclaire and Endres were unable to find the sister, they sought to compel the reporter's testimony about what the sister purportedly told the reporter Batsel had said. The trial court refused to compel the testimony, ruling it is protected by the reporter's qualified privilege under OCGA § 24-9-30 and is hearsay.
We note the sister's testimony about any material prior inconsistent statements made by Batsel would not have been hearsay, but would have been admissible both to impeach Batsel and as substantive evidence. See Sprouse v. State, 250 Ga. 174, 176 (296 SE2d 584) (1982). Likewise, if the sister had testified and denied telling the reporter about alleged material statements made by Batsel, the reporter's claims to the contrary would have been appropriate to impeach the sister and as substantive evidence. See Jackson v. State, *363 258 Ga. 810, 811 (3) (375 SE2d 454) (1989). Under those circumstances, whether the reporter's information is protected by the qualified privilege of OCGA § 24-9-30 would be a pertinent issue. Under the circumstances of the instant case, however, pretermitting that issue is the trial court's correct ruling that the reporter's proffered testimony is inadmissible hearsay.
"Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons." OCGA § 24-3-1 (a). Here, the reporter's proffered testimony does not derive its value solely from the reporter's credibility but rests mainly on the veracity and competency of Batsel's missing sister. Contrary to the claim of Moclaire and Endres in the trial court that they offered the reporter's testimony merely to show that Batsel made the statements to his sister, they actually offered the reporter's testimony for the truth of the matter asserted therein; i.e., to prove that Batsel's sister did in fact tell the reporter about statements allegedly made by Batsel. Because the testimony was offered for the truth of the matter asserted therein, it is inadmissible hearsay. Compare Gibby v. State, 213 Ga. App. 20, 22 (2) (b), (c) (443 SE2d 852) (1994). Thus, regardless of whether the reporter's information is privileged, the trial court did not err in disallowing the reporter's testimony.
5. Moclaire and Endres complain the court erred in refusing to allow them to impeach state witness Mark McKenna with testimony from McKenna's attorney regarding communications made to the attorney by McKenna about his involvement in the crime ring. Moclaire and Endres argue the attorney-client privilege is inapplicable to the communications because the attorney discussed them with the media and in another court. "[C]ommunications made by a client to an attorney for the purpose of being imparted by him to others do not fall within the inhibitions of the law that render an attorney as a witness incompetent to testify to statements or disclosures made to him by his client." (Citations and punctuation omitted.) Shelton v. State, 206 Ga. App. 579, 580 (426 SE2d 69) (1992). In the instant case, there is no evidence that McKenna made the communications to his attorney for the purpose of having the attorney impart them to others. Compare Brenneman v. State, 200 Ga. App. 111, 114 (2) (407 SE2d 93) (1991). The mere fact that the attorney discussed the communications with others, without evidence that McKenna authorized those discussions, does not prove that McKenna waived the attorney-client privilege. "[I]t is axiomatic that the privilege belongs to the client, not the attorney [cit.]." Peterson v. Baumwell, 202 Ga. App. 283, 285 (2) (414 SE2d 278) (1991). Because McKenna has not waived the privilege, which was properly invoked by the attorney in this case, the trial court correctly ruled the communications are expressly protected by *364 the attorney-client privilege and the attorney could not be compelled to testify. See OCGA §§ 24-9-24; 24-9-25; Womack v. State, 260 Ga. 305, 306-307 (2) (393 SE2d 232) (1990); Williams v. State, 258 Ga. 281, 284-285 (5) (368 SE2d 742) (1988); Amwest Surety Ins. Co. v. Interstate Constr. Co., 212 Ga. App. 590, 592 (442 SE2d 772) (1994).
6. Endres claims the court erred in denying his renewed motion to suppress evidence. The court initially granted Endres' motion to suppress, but when the state indicated it had filed a notice of appeal from the court's ruling, Endres withdrew the motion in order to avoid a delay of his trial. Several days after the withdrawal, Endres' counsel renewed the motion to suppress, claiming he had not received a copy of the state's notice of appeal. The prosecutor contradicted Endres' counsel, stating she had in fact mailed a copy of the notice to him and spoken to Endres' other attorney the day the notice was filed. The court denied Endres' renewed motion to suppress.
Endres asserts the state did not actually file a notice of appeal and thus the prosecutor's averment to the contrary was a misrepresentation that amounts to prosecutorial misconduct because it goaded Endres into withdrawing his motion to suppress. "A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority." Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993). The only evidence Endres cites in support of his assertion that the state did not file a notice of appeal is the page of the transcript at which his counsel states he did not receive a copy of the notice from the state and a portion of the record which does not contain the notice of appeal. This evidence is not dispositive as to whether the state actually filed a notice of appeal, especially in light of the prosecutor's statement in her place to the trial court that the state did file the notice. Because it is unclear from the record before us whether the state filed a notice of appeal, Endres has not met his burden of proving by the record that the prosecutor made a misrepresentation of fact. See Carroll v. State, 208 Ga. App. 316, 318 (3) (430 SE2d 649) (1993).
Moreover, even if we assume the prosecutor was mistaken in stating that a notice of appeal had actually been filed, Endres has not shown the prosecutor intended the misstatement to goad him into withdrawing the motion to suppress. "The standard is the intent of the prosecutor in connection with the misconduct. . . . Intent is a question of fact for the court to resolve. . . . [T]he facts must warrant the conclusion that there was such an instigative intention." (Citations and punctuation omitted.) Williams v. State, 207 Ga. App. 124, 125 (427 SE2d 59) (1993). The trial court in this case heard the prosecutor's explanation regarding the state's intention to appeal from the grant of Endres' motion to suppress and obviously found *365 that the prosecutor had no instigative intention to goad Endres into withdrawing his motion to suppress. Because Endres has failed to prove that the prosecutor's statement rises to the level of prosecutorial misconduct, we will not disturb the court's finding.
7. Moclaire and Endres contend the court erred in admitting several pieces of irrelevant evidence. "Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. Furthermore, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion." (Citations and punctuation omitted.) Moss v. State, 206 Ga. App. 310 (1) (425 SE2d 386) (1992). Here, the court admitted a copy of Moclaire's birth certificate from New Jersey. The state claims the birth certificate is relevant to the issue of Moclaire's identification as a crime-ring participant because there was testimony that one of the participants had a New Jersey accent. Although the relevance of the birth certificate is doubtful, we cannot say the court abused its discretion in admitting it. "Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors." (Citations and punctuation omitted.) Jones v. State, 202 Ga. App. 642, 644 (5) (415 SE2d 64) (1992).
Nor did the court abuse its discretion in admitting a photograph of items belonging to an unindicted co-conspirator and items seized from other co-conspirators. Those items may not have been used by Moclaire or Endres, but they were identified as instrumentalities used in crimes in which the appellants were implicated. The items were therefore relevant to show that the crimes did in fact occur and to demonstrate how they were perpetrated. See Moss v. State, supra. "Further, applying the high probability test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), we find that even if error had occurred it would have been harmless." Watkins v. State, 207 Ga. App. 766, 772 (4) (430 SE2d 105) (1993).
8. Moclaire claims the court erred in giving him consecutive sentences for his possession of a firearm during the commission of a felony and armed robbery convictions. He argues those two offenses merge because they involve the same firearm. This argument has previously been decided adversely to Moclaire. See Wiley v. State, 250 Ga. 343, 351-352 (6) (296 SE2d 714) (1982); Kennedy v. State, 195 Ga. App. 795 (1) (395 SE2d 270) (1990).
Judgment affirmed. Beasley, P. J., and Andrews, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327186/ | 684 S.E.2d 1 (2009)
299 Ga. App. 865
LAWSON
v.
The STATE.
Lawson
v.
The State.
Nos. A09A1482, A09A1483.
Court of Appeals of Georgia.
July 15, 2009.
Reconsideration Denied August 27, 2009.
*2 Lee Sexton, Stockbridge, for appellants.
Tracy G. Lawson, Dist. Atty., Robert C. Watts, Asst. Dist. Atty., for appellee.
MIKELL, Judge.
A Clayton County Grand Jury indicted brothers Damaris and Marcus Lawson for numerous offenses related to the robbery of two taxicab drivers, including armed robbery, aggravated assault, possession of a weapon during the commission of a crime, simple battery, and obstruction of a law enforcement officer. Following a joint trial, Damaris and Marcus were convicted of one count of armed robbery, one count of robbery, four counts of aggravated assault, and one count of possession of a weapon during the commission of a crime. The jury also convicted Marcus of one count of simple battery of a law enforcement officer and one count of obstruction of a law enforcement officer. The trial court sentenced both men to thirty years in prison. On appeal from the denial of their joint motion for new trial, Damaris and Marcus contend that the trial court erred in failing to suppress evidence found in their home. We affirm.
In reviewing a trial court's order suppressing evidence,
the trial court's application of the law to the facts is subject to de novo review if the facts are stipulated, or if the critical facts do not depend on the testimony of witnesses who are subject to cross-examination. However, a trial court's ruling on a motion to suppress frequently involves a mixed question of fact and law. When the outcome of a motion to suppress depends on the credibility of the witnesses or on disputed facts, and the trial court has not committed an error of law, the court's ruling will not be disturbed on appeal. As reviewing court, we must accept the factual *3 and credibility determinations and inferences drawn by the trier of fact, even if we disagree with them, as long as there is evidence in the record to support the trial court's findings.[1]
"Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial."[2] So viewed, the record reflects that on March 11, 2007, Maria Hernandez was working as a dispatcher for Victor's Taxi when she received a call for a taxi. Due to the volume of calls that evening, Hernandez decided to take the call herself instead of dispatching another driver. Hernandez and her boyfriend, Kevin Osorio, drove to the specified location, 8470 Pineland Drive, but could not locate the address. Hernandez was stopped by two men in the roadway who claimed to have called for a taxi. The two men got into the vehicle, and Hernandez drove them to a nearby gas station and waited outside while they went into the store. The men returned to the taxi and asked to be taken to another location. As the taxi drove down a dead end street, one of the men produced a long knife, held it to Osorio's neck and demanded money. The other man pushed an object into Hernandez's side and demanded her cell phones. After Osorio gave the men approximately $100, they jumped out of the taxi and fled.
On March 12, 2007, John Pittman was driving a taxi when he received a call to pick up a fare on Pineland Drive. When he arrived on the street, he was unable to locate the address that he had been given. He blew his horn and observed two men walking out of a home. The men approached Pittman and acknowledged that they had called for a taxi. Pittman drove the men to a Chevron gas station and waited outside while they went into the store. The men then returned to the taxi and asked Pittman to return them to the Pineland neighborhood. En route, the men told Pittman to turn down a different street and to stop at a duplex at the end of the street. When Pittman came to a stop, one of the men began to choke him from behind. The men demanded money and Pittman's wallet. The men fled into the woods with $37, Pittman's wallet, and a cell phone a previous passenger had left in the backseat of the taxi.
Pittman called 911 and met Clayton County police officer Katherine Strickland at a nearby gas station. Strickland accompanied Pittman back to the incident location, where she met other officers from the department's K-9 unit. Pittman indicated that the two subjects had fled into a wooded area, and K-9 officer Robert Warner released his K-9 into that area. The dog followed the scent through the wooded area to a location on Pineland Drive and alerted to an area between 8452 and 8453 Pineland Drive. Strickland took Pittman to Pineland Drive, where he identified the house at 8452 as being the one his attackers had exited before entering the taxi. Based on this information, Warner applied for a search warrant to search 8452 Pineland Drive, which was denied by a Clayton County magistrate.
Officers Strickland and Warner, accompanied by two other officers, then approached the home and knocked on the door for approximately 30 minutes, but no one answered. Strickland then located an open window at the front of the house and Warner yelled into the window, "Clayton County Police, is anyone inside?" A male voice from inside the home replied, "what's going on?" At trial and at the suppression hearing, Warner explained that the blinds were down, but that after the man spoke, he used his expandable ASP baton to move the blinds back "so [that] the subject could see that it was, in fact, the police." Warner told the man that an armed robbery had occurred in the area and that the subjects had run to that location. According to Warner, he wanted to make sure everyone was okay. Moments later, the man, wearing a t-shirt and underwear and later identified as Marcus, opened the front door and again asked, "What's going on[?]" Warner stepped from the window to the door and asked Marcus for identification. Marcus said he did not have any and *4 then struck Warner on the side of his head.[3] The other officers took steps to arrest Marcus for simple battery. The officers attempted to pull Marcus away from the door and into the yard, a location where they could see him better and clear him for possible weapons, but Marcus resisted and held firm to the doorjamb. Officers eventually pushed Marcus back into the residence in order to release his grip from the door and then handcuffed him.
Within one to two feet of the open door, lying face up on the floor in plain view, was Pittman's prison identification card. Officers then conducted a security sweep in order to determine if anyone else was in the home. Officers observed a knife lying on the coffee table in plain view and discovered Damaris in a back bedroom, along with Pittman's wallet. Damaris could not provide identification, so he was detained by police. Pittman identified Marcus and Damaris at the scene as the men who robbed him.
Hernandez and Osorio, who were brought to the location, also identified Marcus and Damaris as the men who robbed them the previous night. Several hours later, at approximately 3:30 a.m., Clayton County Police Detective Larry White obtained a search warrant for 8452 Pineland Drive. When White executed the warrant at 6:30 a.m. that same morning, he recovered Pittman's prison identification card, a long knife matching the description of the one used on Osorio, and the cell phone taken from Pittman's taxi. According to Pittman, 90 minutes elapsed between the time he and Strickland arrived at 8452 Pineland Drive and Marcus's arrest.
Before trial, Damaris and Marcus moved to suppress the evidence recovered by Detective White. Following a hearing, the trial court denied the motion. Damaris and Marcus filed a joint motion for new trial, which was denied by the trial court.
1. In their first enumerated error, Damaris and Marcus contend that the trial court should have granted them a new trial because the evidence found in the home was the result of a warrantless search and should have been suppressed as "fruit of the poisonous tree." The state concedes that Warner's use of the baton was improper, but argues that his actions were not flagrant misconduct and that the intervening circumstances of Marcus's arrest cleanse any misconduct by the officer. We agree with the state.
The Fourth Amendment protects citizens from unreasonable government intrusion into their homes. It is well settled Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.[4] The "fruit of the poisonous tree" doctrine provides that any evidence acquired by the police through exploitation of information obtained by means of unlawful conduct is inadmissible in a criminal prosecution.[5] In determining whether evidence must be excluded under this doctrine, we must ask "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."[6] If the prosecution can show that any connection between official illegality and the prosecution's evidence has "become so attenuated as to dissipate the taint," the evidence will be admissible.[7] In Brown v. Illinois,[8] the Supreme Court held that *5 this issue must be "answered on the facts of each case" and that "[n]o single fact is dispositive."[9] The Supreme Court set forth several factors for lower courts to consider in making this determination, including "the time elapsed between the illegality and the acquisition of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct."[10]
Here, in analyzing the first factor, we acknowledge that little time elapsed between Warner's act of pushing aside the blinds and the acquisition of the inculpatory evidence. However, this factor is not dispositive.[11] In considering the other two factors, we find that the taint of Warner's illegal act was sufficiently dissipated. With regard to the third factor, the record reflects that Warner pushed aside the blinds for safety reasons only after Marcus voluntarily questioned what was going on and that Warner did not view any evidence in the home that was ultimately gathered pursuant to the search warrant. The trial court found no evidence of flagrant misconduct, and we will not disturb this conclusion. In any event, it is the second factor that is dispositive in this case. Marcus's act of voluntarily opening the door of the home, attacking Warner, and then resisting arrest were intervening acts that completely purged the taint from Warner's initial unlawful act.[12] If Marcus had not attacked Warner and then resisted arrest, the evidence found in the home would be inadmissible as fruit of the poisonous tree. What distinguishes this case is the independent and intervening action of voluntarily opening the front door and attacking the officer. These acts broke the chain of causation and dissipated the taint of Warner's arguably illegal act. Under these circumstances, we hold that any taint flowing from the prior illegal act was too attenuated to affect the admissibility of the challenged evidence.
2. In their second enumerated error, Damaris and Marcus contend that the trial court erred in concluding that Marcus's warrantless arrest justified a protective sweep of the home. We disagree.
An officer may arrest a suspect without an arrest warrant if an offense has been committed in his presence.[13] And while an officer generally must have a search warrant or consent to enter a home to make an arrest, an officer can enter a home to arrest a suspect when he or she has followed the suspect there in "hot pursuit."[14] "[A] suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place."[15] In Santana,[16] the Supreme Court held that for Fourth Amendment purposes, one who is in the threshold of his dwelling is in a public place and not within the dwelling.[17] This holding was based on the Supreme Court's prior ruling in Katz v. United States,[18] that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."[19] In this case, Marcus's warrantless arrest did not violate the Fourth Amendment. Marcus voluntarily opened the door of his home and was standing in the doorway when he struck Warner. When Marcus held *6 fast to the doorjamb, attempting to thwart or evade arrest, officers were authorized to effectuate an in-home arrest.[20] The officers were also entitled to search Marcus's immediate person and presence pursuant to his arrest.[21] Finally, officers were justified in conducting a protective sweep of the home. "A `protective sweep' is a limited search of the premises primarily to ensure officer safety by detecting the presence of other occupants."[22] Police officers are authorized to make a protective sweep in conjunction with an in-home arrest when they possess "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."[23] In light of the circumstances, including the officers' observation of Pittman's identification card in plain view, their knowledge that two men were involved in the armed robbery, and the fact that Marcus opened the door to the home identified by Pittman, it was not unreasonable for officers to suspect that the second person related to the armed robbery was concealed somewhere in the home and that he could pose a danger to those on the arrest scene.[24] Therefore, the protective sweep was authorized, and the trial court did not err in denying appellants' motion for new trial on the ground of illegally obtained evidence.
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] (Footnote omitted.) Laseter v. State, 294 Ga. App. 12, 13(1), 668 S.E.2d 495 (2008).
[2] (Footnote omitted.) Whitehead v. State, 258 Ga.App. 271, 273(1), 574 S.E.2d 351 (2002).
[3] Throughout their brief, appellants incorrectly state that Damaris was arrested for punching Officer Warner. To the contrary, the record reflects that Marcus was indicted and found guilty of simple battery on a law enforcement officer and obstruction of a law enforcement officer.
[4] Brigham City v. Stuart, 547 U.S. 398, 403(II), 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).
[5] See Wong Sun v. United States, 371 U.S. 471, 485(II), 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
[6] (Citation and punctuation omitted.) Id. at 488(III), 83 S.Ct. 407. See also Vergara v. State, 283 Ga. 175, 184(2), 657 S.E.2d 863 (2008).
[7] (Punctuation omitted.) See Wong Sun, supra at 491(V), 83 S.Ct. 407, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
[8] 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Although Brown v. Illinois dealt with the exclusion of a defendant's statements, it applies equally to seized evidence. See Spence v. State, 281 Ga. 697, 700-702(3), 642 S.E.2d 856 (2007).
[9] Brown, supra at 603(III), 95 S.Ct. 2254.
[10] (Punctuation omitted.) Spence, supra at 700(3), 642 S.E.2d 856, citing Brown, supra at 603-604(III), 95 S.Ct. 2254, and United States v. Parker, 469 F.3d 1074, 1078(II)(A) (7th Cir.2006).
[11] Brown, supra at 603(III), 95 S.Ct. 2254.
[12] See, e.g., United States v. Bailey, 691 F.2d 1009, 1017-1018(II) (11th Cir.1982) ("[P]olice may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.... If the police lawfully have arrested a suspect, then they may properly conduct [a search incident to a lawful arrest]") (citations and footnote omitted).
[13] O.C.G.A. § 17-4-20(a).
[14] (Citations omitted.) Brown v. State, 163 Ga. App. 209, 210(1), 294 S.E.2d 305 (1982).
[15] United States v. Santana, 427 U.S. 38, 43(II), 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).
[16] Id.
[17] Id. at 41-42(II), 96 S.Ct. 2406.
[18] 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
[19] (Citations omitted.) Id. at 351, 88 S.Ct. 507.
[20] See, e.g., Brock v. State, 196 Ga.App. 605, 607(2), 396 S.E.2d 785 (1990).
[21] OCGA § 17-5-1; Jenkins v. State, 223 Ga. App. 486, 488(1), 477 S.E.2d 910 (1996). See also Lentile v. State, 136 Ga.App. 611, 614(1), 222 S.E.2d 86 (1975) ("[a] police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be") (citations and punctuation omitted; emphasis in original).
[22] (Citations omitted.) State v. Pando, 284 Ga. App. 70, 72(1)(b), 643 S.E.2d 342 (2007).
[23] Maryland v. Buie, 494 U.S. 325, 334(III), 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).
[24] See, e.g., Inglett v. State, 239 Ga.App. 524, 525(1), 521 S.E.2d 241 (1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1643848/ | 994 So.2d 383 (2008)
Steven FLANDERS, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-1327.
District Court of Appeal of Florida, Third District.
October 15, 2008.
Steven Flanders, in proper person.
Bill McCollum, Attorney General, for appellee.
Before GERSTEN, C.J., ROTHENBERG, J., and SCHWARTZ, Senior Judge.
*384 PER CURIAM.
Steven Flanders (Flanders) appeals the trial courts summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We find merit in ground one of Flanders motion, and, therefore, affirm in part, reverse in part, and remand for further proceedings.
In ground one, Flanders argues he received ineffective assistance of counsel because defense counsel, among other things, failed to call an alibi witness. To assert a facially sufficient claim of ineffective assistance of counsel for failure to call a witness, the defendant must (1) identify the prospective witness, (2) describe the substance of the witness testimony, (3) state that the witness was available to testify, and (4) describe the prejudice resulting from omitting the witness testimony. See Nelson v. State, 875 So.2d 579 (Fla.2004).
Here, Flanders motion fails to make the necessary allegations. Thus, the trial court correctly determined the motion to be facially insufficient. However, because this is Flanders first motion for postconviction relief, the trial court should have given Flanders an opportunity to amend his motion to cure the pleading defect. See Spera v. State, 971 So.2d 754 (Fla. 2007).
Accordingly, we reverse the trial courts order summarily denying Flanders relief as to ground one. On remand, the trial court should allow Flanders a reasonable time to file an amended and legally sufficient motion. If Flanders does not file an amended motion, the denial may be reinstated. If Flanders cures the defects on an amended motion, the trial court should either hold an evidentiary hearing on whether trial counsel was ineffective for failing to call the alibi witness or attach to any subsequent order summarily denying relief those portions of the record conclusively refuting his claim.
We affirm as to grounds two and three. See Parker v. State, 611 So.2d 1224, 1226 (Fla.1992).
Reversed in part, affirmed in part, and remanded with instructions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035940/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL MORA, on his own behalf
and on behalf of all persons
similarly situated, No. 04-55594
Plaintiff-Appellant,
v. D.C. No.
CV-03-00471-JVS
CONSTRUCTION LABORERS PENSION OPINION
TRUST FOR SOUTHERN CALIFORNIA,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
December 5, 2005—Pasadena, California
Filed January 25, 2006
Before: Harry Pregerson, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Noonan;
Dissent by Judge Pregerson
1073
MORA v. CONSTRUCTION LABORERS PENSION TRUST 1075
COUNSEL
Richard A. Weinstock and Andrew T. Koenig, Ventura, Cali-
fornia, for the plaintiff-appellant.
John S. Miller, Herbert J. Klein, and Dwayne P. McKenzie,
Los Angeles, California, for the defendant-appellee.
Donald J. Capuano, Washington, DC, for amicus curiae
National Coordinating Committee for Multiemployer Plans.
OPINION
NOONAN, Circuit Judge:
Manuel Mora and the class represented by him (collectively
Mora) appeal the judgment of the district court denying cred-
its for hours of service giving rise to additional pension bene-
fits from the defendant, Construction Laborers Pension Trust
for Southern California (the Pension Trust). Mora contends
that contributions made to the Construction Laborers’ Trust
for Southern California (the Vacation Trust) should generate
the service credits. The district court ruled that ERISA did not
1076 MORA v. CONSTRUCTION LABORERS PENSION TRUST
require the contributions to count toward service credits and
granted summary judgment to the Pension Trust. We affirm.
Doing so, we dispel a confusion largely caused by a name.
FACTS
The Pension Trust is the product of collective bargaining
between the Southern California District Council of Laborers
together with affiliated local unions and the Southern Califor-
nia Chapter of the Associated General Contractors of America
together with other associations of contractors. The Pension
Trust was established on October 16, 1962. Its terms are set
out in over 90 typed pages. Article IX provides for its amend-
ment by the trustees. It has been amended 55 times, normally
as the result of collective bargaining. Half of the trustees are
elected by the union and half by the associations of employ-
ers. There is a procedure for appealing the denial of pension
claims and there is a Pension Appeals Committee, whose
elected chairman is John L. Smith, the Business Manager of
Local No. 1184, Laborers’ International Union of North
America, AFL-CIO.
Employers are required to contribute to the Pension Trust
for all hours worked by a construction laborer and for all
hours for which the laborer is paid although no work is per-
formed. If a laborer receives a paid vacation, the employer is
required to contribute to the Pension Trust for each hour of
such vacation.
The collective bargaining agreements between the union
and the employer association have not required paid vaca-
tions. Some employers give them, some don’t. In 1965, the
union and the employer associations negotiated the establish-
ment of the Vacation Trust, to be governed by trustees half
appointed by the union and half by the employers. The Vaca-
tion Trust had in Article XIII a provision for amendment by
the trustees and in Article VIII, an appeals process. Amended
article 12.07 provides:
MORA v. CONSTRUCTION LABORERS PENSION TRUST 1077
Contributions to the Fund and any liquidated dam-
ages payable in connection therewith, shall be
deemed to be, and shall be, a part of the wages due
to the employees with respect to whose work such
payments are made. No individual employer shall
have any right, title or interest in such contributions,
or any part thereof, and no part thereof shall ever
revert to any such individual employer. Insofar as
consistent with the other provisions of this Agree-
ment, contributions shall be treated and reported as
a part of the compensation earned by the employee
at the time the work to which the contributions per-
tain is performed, subject to the terms of this Agree-
ment, and shall be deemed to be, and shall be treated
as, subject to withholding tax and social security and
unemployment taxes as a part of the total compensa-
tion payable at the end of the individual employer’s
payroll period during which such work is performed
or paid for, but the full per hour contribution shall be
transmitted to the Fund. Such contributions shall not
be a part of the hourly wage rates for the purpose of
computing overtime, or reporting time or for any
other purpose of the Collective Bargaining Agree-
ment, or part of the “regular rate” or “basic hourly
rate” for the purpose of the Federal Fair Labor Stan-
dards Act or the Walsh-Healy Act or any other law,
ordinance or regulation, except that if, consistent
with the foregoing, such contributions can be consid-
ered and treated as a part of the wages prevailing in
the area for the purpose of the Federal Davis-Bacon
Act and similar federal, state or local laws, ordi-
nances or regulations, they shall be so considered
and treated.
Article 12.08 then provides:
It is the intent and purpose of the Plan, and of this
Agreement, and a material part of the consideration
1078 MORA v. CONSTRUCTION LABORERS PENSION TRUST
for the making of contributions to the Fund by indi-
vidual employers, that the money in each vacation
account shall be received by the employee entitled
thereto personally.
According to the sworn and undisputed declaration of John L.
Smith:
The Vacation Trust is and always has been set up
as a savings type vehicle for an employee rather than
as a payment to an employee for vacation time off
that the employee takes. The monies contributed to
the Vacation Trust have always been subject to pay-
roll withholding in the same manner as wages paid
and received for that particular week of employment.
Over the years on behalf of its members, the
Union has moved money back and forth between
wages and contributions to the Vacation Trust to
reflect the balance between the amount of wages that
the Union believes can be set aside and accumulated
as Vacation Trust contributions and the amount of
wages that the Union believes should be paid
directly to employees as immediate wages received.
It has never been the intent of the Pension Trust
Trustees nor of the Union nor of the employer asso-
ciations that the money paid by employers as contri-
butions to the Vacation Trust constitute hours of
service to be credited to an employee. The contribu-
tion to the Vacation Trust is simply payment for
wages in the same manner as a wage payment is for
the hour worked. Contributions to the Vacation Trust
allow an employee to accumulate savings throughout
the year. Contributions to the Vacation Trust do not
pay for vacation time off and were never intended to
do so.
MORA v. CONSTRUCTION LABORERS PENSION TRUST 1079
Mora is a retired construction laborer and union member,
who receives an early retirement pension from the Pension
Trust. In 1970 and again in 1972, Mora worked less than
1,000 hours and so did not receive service credits for those
years. But there were payments made to the Vacation Trust
for the hours he did work in those years. If those payments
were treated as counting for hours of service he would have
over 1,000 hours of service for 1970 and 1972 and increase
his pension by $26.00 per month.
On December 28, 1999, Mora appealed the computation of
credits for 1970 and 1972. On January 26, 2000, the Pension
Appeals Committee denied his appeal.
PROCEEDINGS
On January 14, 2002, Mora began this suit in the district
court. On November 20, 2002, the district court found that the
requirements for certification of a class had been met, that the
estimated class was between 500 and 600 persons whose
claims were typical and shared commonality, and that fair and
efficient adjudication called for certification of a class of par-
ticipants or their surviving spouses who had been granted a
pension by the Pension Trust after January 1, 1975, the date
on which ERISA applied. The class was essentially limited to
those who had not received service hours credit for payments
from the Vacation Trust.
On October 10, 2003, the district court denied Mora’s
motion for summary judgment. On March 12, 2004, after sub-
mission of additional documents and declarations by both
sides, the district court, sua sponte, gave summary judgment
to the Pension Trust.
Mora appeals.
ANALYSIS
[1] Mora pitches his appeal not on the terms of either the
Pension Trust or the Vacation Trust, but on regulations issued
1080 MORA v. CONSTRUCTION LABORERS PENSION TRUST
by the Department of Labor interpreting ERISA, 29 U.S.C.
§ 1052. They read:
(1) An hour of service is each hour for which an
employee is paid, or entitled to payment, for the per-
formance of duties for the employer during the appli-
cable computation period.
(2) An hour of service is each hour for which an
employee is paid, or entitled to payment, by the
employer on account of a period of time during
which no duties are performed (irrespective of
whether the employment relationship has termi-
nated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty
or leave of absence. 29 C.F.R. § 2530.200b-2(a).
Mora argues that the payments made to the Vacation Trust are
payments “due to vacation.” As the Pension Trust is undis-
putedly an ERISA plan, Mora concludes that the regulation
controls.
[2] The difficulty for Mora is that the payments to the
Vacation Trust were not made “on account of time during
which no duties [were] performed.” The payments were made
precisely for time during which Mora worked. These hours
have already been counted once. To count them again would
be to count them twice. The regulations do not call for that
improbable result. Indeed, they explicitly prohibit it. 29
C.F.R. § 2530.200b-2(b)(3); accord. Hope v. Int’l Brother-
hood of Electrical Workers, 785 F.2d 826, 830-31 (9th Cir.
1986).
[3] This conclusion is consistent with the express provision
of Article XII of the Vacation Trust, already quoted: “Contri-
butions to the [Vacation Trust] . . . shall be deemed to be, and
shall be, a part of the wages due to the employees with respect
to whose work such payments are made.” They “shall not be
MORA v. CONSTRUCTION LABORERS PENSION TRUST 1081
a part of the hourly wage rates for the purpose of computing
overtime, or reporting time . . . .” The conclusion is equally
consistent with the August 22, 1966 ruling of the Internal
Revenue Service and the July 12, 1967 ruling of the Franchise
Tax Board of the state of California. I.R.S. Priv. Ltr. Rul. 67-
351 (Aug. 22, 1966); CA F.T.B. Priv. Ltr. Rul. (July 12,
1967). The trustees and the tax authorities have not been in
the dark for over thirty-eight years.
Mora’s contentions have a superficial attraction because of
the name of the entity into which the 1970 and 1972 contribu-
tions were made. His argument ends with the name. The pay-
ments were in fact into a trust that held savings on his
account. His suit is an attempt to make an end run around the
union-employer trustees of the Pension Trust. It is without a
basis.
The judgment of the district court is AFFIRMED.
PREGERSON, Circuit Judge, dissenting:
Department of Labor regulations allow employees to count
hours of paid vacation as “hours of service,” the currency in
which hours are counted for pension purposes. The majority
holds that construction laborers cannot count their vacation
benefit as “hours of service,” because their vacation benefit
comes from a trust fund as a lump sum of money, not from
an employer as a set amount of vacation time. I cannot sup-
port this outcome.
The crux of my disagreement with the majority comes
down to whether the payments union members receive from
the vacation trust are vacation benefits intended to approxi-
mate “traditional” paid vacations received by employees in
other industries, or whether the vacation trust is an involun-
tary savings plan akin to a “Christmas Club.” I believe the
1082 MORA v. CONSTRUCTION LABORERS PENSION TRUST
vacation trust documents are clear on this point. Article II of
the Trust Agreement states that the trust fund is intended as
“a fund for the payment of paid vacations.” The summary
plan document circulated by the vacation trust fund to union
members touted this program as a “vacation check” that “ma-
terially assists [an employee] in defraying the expenses of a
vacation should [the employee] decide to take one.” Thus, I
cannot agree with the majority that Mora’s argument is much
ado over an unfortunate label. See Maj. Op. At 1076. Defen-
dant’s present assertions to the contrary, see Maj. Op. at 1078,
do not alter the fact that vacation trust payments were consis-
tently marketed as a paid vacation benefit and should carry
the consequences that normally follow paid vacations.
Once it is shown that these vacation trust payments are
intended to approximate vacation benefits provided to
employees in other industries, the Defendant’s remaining
arguments fall away. The lump sum of money received by
union construction laborers can easily be translated into a
quantity of time, and in fact, the regulations provide for this
calculation. See 29 C.F.R. § 2530.200b-2(b)(2). The differ-
ences between the vacation trust payment and a traditional
vacation benefit — i.e., the fact that payments come from a
trust rather than from the employer, the timing of tax with-
holding, and the fact that payments are doled out at regular
intervals rather than at the time vacation is taken — can be
attributed to the nature of the construction industry and the
short-lived relationship between construction employers and
laborers, not to any substantive difference between the con-
struction laborer’s paid vacation and the paid vacation of
other employees. “Double counting” of hours can be avoided
by allowing union members to show that they did take some
period of time away from work; indeed, it should hardly be
a problem for transitory construction laborers to show that
they did not work a full 52 weeks in a year.
Constructions laborers work at many job sites for multiple
employers over the course of a year. Accommodations have
MORA v. CONSTRUCTION LABORERS PENSION TRUST 1083
been negotiated between unions and construction employers
to ensure that these transitory workers are provided with paid
vacation benefits similar to those provided to employees in
other industries. I believe we should give effect to their agree-
ment and treat the paid vacation received by construction
laborers as we would treat paid vacation received by an
employee in any other industry.
Accordingly, I respectfully dissent. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1928580/ | 57 N.J. Super. 515 (1959)
155 A.2d 111
LORETTA MATTHEWS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DONALD MATTHEWS, DECEASED, PLAINTIFF-RESPONDENT,
v.
EDNA NELSON AND DAVID NELSON, DEFENDANTS-APPELLANTS.
Superior Court of New Jersey, Appellate Division.
Argued October 13, 1959.
Decided October 29, 1959.
*516 Before Judges PRICE, SULLIVAN and FOLEY.
*517 Mr. Robert A. Lederer argued the cause for respondent.
Mr. John J. Gaffey argued the cause for appellants (Messrs. Gaffey & Webb, attorneys).
The opinion of the court was delivered by SULLIVAN, J.A.D.
Defendants appeal a judgment for $15,000 in favor of plaintiff. The suit, a death action, arose out of an intersection automobile collision. After trial the jury returned a special verdict that defendant David Nelson, the driver of one of the cars, was negligent and his negligence was a proximate cause of the accident. The jury also found that plaintiff's decedent, Donald Matthews, the driver of the other car, was not guilty of contributory negligence and awarded plaintiff as administratrix ad prosequendum the sum of $15,000.
The appeal rests on three main points. First, that the trial court should have granted defendants' motions for dismissal at the close of plaintiff's case, and again after both sides had completed the presentation of evidence. Second, that the verdict should be set aside as against the weight of the evidence and that it is the result of mistake, partiality, prejudice or passion. This ground was a basis of a motion for a new trial. Third, that certain statements made by plaintiff's counsel in his opening to the jury and also in his summation were prejudicial and that the court should have granted defendants' motions for a mistrial.
The first and second points can be considered jointly since they rest on the proposition that the evidence at the close of plaintiff's case and at the close of the entire case demonstrates that plaintiff's decedent Donald Matthews was contributorily negligent as a matter of law and that the jury could not have properly found otherwise. We do not agree. The collision took place at about 1:15 in the afternoon at the intersection of State routes 528 and 547 in Jackson Township, Ocean County. The pavement was dry. Plaintiff's decedent Matthews was driving north on Route *518 547. He had a passenger sitting next to him in the front seat. The defendant David Nelson was driving east on Route 528. His mother and co-defendant was sitting next to him. At the intersection of the two highways is an overhead warning light which blinks red for traffic on Route 547 and amber for traffic on Route 528. In addition, Route 547 at the intersection is a stop street marked by a stop sign and a white line about 20 feet back from the corner. The evidence was that Matthews arrived at the intersection first, stopped his car at the white line for about 20 seconds and then proceeded slowly into the intersection intending to cross over. He was about half way across when he was struck on the left side by defendants' car. A witness described the crash as "a terrific sound"; the car driven by Matthews appeared "to be turning and twisting"; Matthews' body was "propelled through the air" and landed about 40 feet away. Another witness used these words, "I saw a car tumbling over, also saw a man's body going through the air." There was testimony that the Matthews car came to rest on its side 35 feet away from the point of impact. The Nelson car came to rest against a tree about the same distance away. All of this proof must be considered in the light of the evidence that the Matthews car was proceeding at 5 to 8 miles per hour at the time. The defendants' automobile therefore must have been traveling at a high rate of speed to cause the results just described. Indeed, one of the witnesses estimated that the Nelson car was traveling at 55 to 60 miles per hour. The argument made by defendants is that Matthews either did not look to his left or else made an ineffective observation since the defendants' automobile was approaching from that direction. That is not necessarily so, however. No one knows whether or not Matthews looked to his left. He certainly had a right to assume that vehicles on Route 528 were being operated at a reasonable speed and with due regard to the amber caution light which marked the intersection. German v. Harris, 106 N.J.L. 521 (E. & A. 1929). The passenger in the Matthews car looked *519 to his left when Matthews came to a stop and saw nothing coming from that direction. It was not until Matthews had started up again and the car was at or into the intersection that this witness saw the defendants' car for the first time. Under these circumstances it was for the jury to say whether or not Matthews was contributorily negligent.
The other point made by defendants, supported by timely motions for mistrial, is that plaintiff's counsel in his opening to the jury "suggested to the Court to the jury the figure of the award" contrary to Botta v. Brunner, 26 N.J. 82 (1958), and also "that counsel for Mrs. Matthews in his summation has stated the amount of a verdict stated the amount of his computations and has expressed to the jury the sum of $28,000," contrary to Botta, supra. On this appeal defendants have broadened their objections to include the contention that counsel for plaintiff, in his argument to the jury, used figures on loss of income that were not supported by the evidence.
Basically, the defendants contend that it was error for plaintiff's counsel to urge upon the jury the proposition that plaintiff's damages could be computed according to a mathematical formula and his use of actual figures suggested to the jury the amount of the verdict to be returned. In substance, counsel took the age of plaintiff's decedent at the time of his death and by use of the mortality tables, which are part of our court rules, calculated the value of a dollar of yearly income over the period of life expectancy. According to the tables such value was $9.90. Counsel then took the amount of yearly income claimed to have been lost by plaintiff as a result of her husband's death and multiplied it by figures taken from the tables. For example, counsel in his summation told this to the jury:
"Mrs. Matthews said, and that is her testimony in this case, that her husband gave her $55 a week, or thereabouts. Now, I compute that $55 a week is $2,860 a year; it is a mere matter of mathematics. $2,860 per year. So as I view it, if one were to create a fund presently today for that yearly amount which her husband gave to *520 her during his lifetime, $2,860, it would take that amount times $9.90, which mathematically speaking is $28,314, as I compute it."
The objection, therefore, is two-pronged. Did counsel have the right to mention a mathematical formula and figures at all, and if so, did he distort the actual figure on loss of income to a point where it constituted prejudicial error?
A review of counsel's opening and summation does not disclose any impropriety in his reference to a formula and figures. All he did was explain to the jury how the actuarial tables worked and how a self-depleting fund, adequate to produce a stated income over a specified period of time, could be calculated. An actuary could have testified to the method of computing such a fund, and in answer to a hypothetical question could have made an actual calculation for the jury.
In a death action under our statute N.J.S.A. 2A:31-1 et seq., the sum recoverable is the present value of the pecuniary injury to the next of kin. The use of a mathematical formula in computing the pecuniary injury has been sanctioned by our courts on numerous occasions. McManus v. New Jersey Water Co., 22 N.J. Super. 253 (App. Div. 1952); McStay v. Przychocki, 10 N.J. Super. 455 (App. Div. 1950), affirmed 7 N.J. 456 (1951); Brown v. Erie Railroad Co., 87 N.J.L. 487 (E. & A. 1915); Hackney v. Delaware & Atlantic Tel. & Tel. Co., 69 N.J.L. 335 (E. & A. 1903). Use of the annuity and mortality tables to calculate the present value of the pecuniary loss is permissible. Capone v. Norton, 21 N.J. Super. 6 (App. Div. 1952). Concededly the tables are not conclusive and their application and use depends on the particular case and the underlying facts and circumstances. The court adequately charged the jury on this point.
Botta v. Brunner, 26 N.J. 82 (1958), relied on by defendants, is not to the contrary. There, the court criticized counsel's argument to the jury that damages for pain and suffering could be calculated at so much an hour or day. As the court therein stated at page 95, "* * * pain and suffering have no known dimensions, mathematical or financial." *521 The rule in Botta, however, has no application to a death action under the statute for the reason that the measure of damages in such case, the pecuniary loss to the next of kin, is susceptible of some mathematical computation.
The final point made by defendants is that even granting counsel's right to argue use of a formula and figures to a jury, in this case counsel had misstated and misused the actual figures testified to, thereby misleading the jury and prejudicing defendants' case.
It is to be noted that no objection on this score was made to the trial judge, so that, in the absence of plain error affecting substantial rights, defendants have no standing to raise this matter on appeal. R.R. 1:5-3(c), R.R. 4:47. Slovak Catholic Sokol v. Foti, 13 N.J. Super. 458 (App. Div. 1951).
The situation arose out of plaintiff's testimony that her husband gave her $55 weekly out of his salary. She also said that this money was used for their joint household and other expenses. Counsel for plaintiff in his argument to the jury, in showing how a capital fund representing loss of income is computed, used the $55 figure as plaintiff's actual loss of income.
Counsel in his summation to a jury should not misstate the evidence nor distort the factual picture. A study of counsel's argument however satisfies us that the jury was not misled since counsel indicated to the jury that he was using the figures for demonstration purposes and that the jury should determine itself what the actual figures were. Counsel's reference to the $55 figure as a basis for computing a capital fund is set forth supra. Immediately following the above quote he added:
"And by the same token, if you feel it wasn't $55 a week, it was $50 a week, it would take whatever that yearly salary would be of $50 a week, $2,500 a year or thereabouts, times $9.90. So whatever you feel he contributed to her. Now, this is only a basis to give you some idea of damage in this matter." *522 Counsel then closed his summation on this point with this language:
"Now we are going to ask you ladies and gentlemen of the jury, as I have indicated before, for a verdict for Mrs. Matthews for whatever annual income you think she has been deprived of, on the basis of $9.90 on the basis of each one of those dollars, or whatever figure you feel honestly and within reason would compensate her for her loss."
The court in charging the jury specifically told it that the $55 figure must be considered in light of the testimony that it was used for household expenses which were for the benefit of both plaintiff and her husband. The verdict of $15,000 indicates plainly that the jury did not adopt the figures used by counsel in his argument. Under the circumstances, we find no error, plain or otherwise.
Affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327218/ | 178 S.E.2d 601 (1971)
CITY OF CHARLOTTE, a Municipal Corporation,
v.
The CHARLOTTE PARK AND RECREATION COMMISSION, Maude Stewart Haywood, Piedmont Realty Company, its successors and assigns, and Abbott Realty Company, its successors and assigns, Charlotte Kelly and Luther Kelly.
No. 64.
Supreme Court of North Carolina.
January 29, 1971.
*604 W. A. Watts, Charlotte, for plaintiff appellant.
Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Joseph W. Grier, Jr., and James Y. Preston, Charlotte, for defendant appellee.
LAKE, Justice.
The deed from Piedmont Realty Company conveyed to the City of Charlotte a fee simple determinable estate, sometimes called a base or qualified fee, in the land here in question. Charlotte Park and Recreation Commission v. Barringer, 242 N.C. 311, 88 S.E.2d 114, cert. den., 350 U.S. 983, 76 S.Ct. 469, 100 L.Ed. 851; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Hall v. Turner, 110 N.C. 292, 305, 14 S.E. 791; Restatement, Property, § 44; 28 Am. Jur.2d Estates, §§ 22, 29, 30, 31. The Superior Court found, without objection, that by virtue of certain acts of the Legislature this estate in the land was vested in the Commission at and prior to the time of the retaking of the land by the City in this condemnation proceeding.
The conveyance of the fee simple determinable estate left in the grantor, Piedmont Realty Company, a possibility of reverter, which is not an estate in the land but is a reversionary interest therein. Elmore v. Austin, supra; Restatement, Property, § 154(3); 28 Am.Jur.2d Estates, §§ 27, 182, 183. Though the record before us does not so show, it is stated in the brief of the Commission that Abbott Realty Company, itself now defunct, was "a supposed transferee of Piedmont Realty Company."
There is a widespread division among the authorities on the subject as to whether a possibility of reverter, resulting from a conveyance of a fee simple determinable, can be the subject of an inter vivos transfer. See: Annot., 53 A.L.R.2d 224-266; 28 Am.Jur.2d Estates, §§ 27, 184. Among the authorities saying that such an interest is not transferable inter vivos are Pond v. Douglass, 106 Me. 85, 75 A. 320; Puffer v. Clark, 202 Mich. 169, 199, 168 N.W. 471, 480; and Tiedeman, Real Property (3rd Ed), § 291. See also: Church of Henderson, Methodist Protestant v. Young, 130 N.C. 8, 40 S.E. 691, in which the majority opinion does not make it clear whether the interest attempted to be transferred was a possibility of reverter, created by the conveyance of a fee simple determinable, or was a right of reentry for breach of a condition subsequent, fastened upon a conveyance of a fee simple absolute. Authorities supporting the transferability of a possibility of reverter, arising from a conveyance of a fee simple determinable, include Copenhaver v. Pendleton, 155 Va. 463, 155 S.E. 802, 77 A.L.R. 324; and Restatement, Property, § 159(1).
It is not necessary for us to determine this question in the matter now before us. The successors of both Piedmont Realty Company, the grantor of the fee simple determinable, and of Abbott Realty Company, the "supposed transferee" of the possibility of reverter, as well as the two corporations themselves, have been made parties defendant in this condemnation proceeding and have been served with process by publication. Neither of the corporate defendants filed answer. Both are said to be defunct long since. Individual defendants, made parties on the ground that they are "heirs and successors to the assets of the Abbott Realty Company," filed *605 a joint answer, disclaiming any interest in the award of compensation for the taking, and asserting that they have assigned to the Commission any and all rights which they had at the time of the taking. Thus, both parties to the "supposed transfer" of the possibility of reverter, and the successors of each of them, were made parties to this action, were served with process, and either disclaimed or failed to assert any interest in the award of compensation for the taking.
Absent a valid inter vivos transfer of a possibility of reverter, it passes by descent to the heirs of the grantor of the fee simple determinable or if, as here, the grantor was a corporation, it passes to the successors thereof upon the dissolution of the corporate grantor. See: Church of Henderson, Methodist Protestant v. Young, supra; Copenhaver v. Pendleton, supra; Restatement, Property, § 164; 28 Am.Jur.2d Estates, § 184. Thus, if the "supposed transfer" to Abbott Realty Company was valid, the possibility of reverter was held, at the time of the taking, by the successors of that corporation, it being defunct. If the "supposed transfer" was invalid, the possibility of reverter was then held by the successors of Piedmont Realty Company, also now defunct. In either event, those who held the possibility of reverter, at the time of the taking of the property in this condemnation proceeding, are parties hereto and have either failed to assert a claim or have disclaimed any interest in the award of compensation.
A fee simple determinable estate terminates automatically upon the occurrence of the event, which gives rise to the reverter, and no entry upon the land by the holder of the possibility of reverter is necessary to bring about the reversion of the fee simple absolute to him. Charlotte Park and Recreation Commission v. Barringer, supra; First Universalist Society of North Adams v. Boland, 155 Mass. 171, 29 N.E. 524; 28 Am.Jur.2d Estates, § 24. Thus, had the Commission put the land to a use other than that specified in the deed from Piedmont Realty Company, which the record does not indicate, the Commission's right in the land would have terminated immediately. The taking of the land under the power of eminent domain does not, however, cause a reversion of the title to the grantor or its successor or transferee. Carter v. New York Cent. R. Co., Sup., 73 N.Y.S.2d 610; Nichols, Eminent Domain, § 12.321.
In this proceeding the City, in its declaration of taking, asserted that it thereby acquired a fee simple absolute in the land described as taken. Thus, the City in this proceeding has taken by condemnation both the fee simple determinable estate and the possibility of reverter. These were taken simultaneously. There was no interval following the taking of the fee simple determinable estate, for use for a purpose other than that stated in the deed from Piedmont Realty Company, in which the reverter could have occurred. The condemnation destroyed the possibility of reverter. First Reformed Dutch Church of Gilboa, N. Y. v. Croswell, 210 App.Div. 294, 206 N.Y.S. 132; Carter v. New York Cent. R. Co., supra; Town of Winchester v. Cox, 129 Conn. 106, 26 A.2d 592. The court below has found, without objection, that at the time of the taking by this proceeding there was no intent on the part of the Commission to abandon its use of the land as a park and that there was then no probability that such use by the Commission would be discontinued.
The right to compensation for a taking of property by the power of eminent domain is in those who owned compensable interests in the property immediately prior to the filing of the complaint and declaration of taking. G.S. § 136-104; North Carolina State Highway Commission v. Hettiger, 271 N.C. 152, 155 S.E.2d 469. In condemnation proceedings, where there are several separately owned interests in the condemned property, a proper method for determining compensation to be paid the holder of each interest is, first, to determine *606 the value of the property taken, as a whole, and then apportion the award among the several claimants. G.S. § 136-117; City of Durham v. Eastern Realty Co., 270 N.C. 631, 155 S.E.2d 231; Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732; 27 Am.Jur.2d Eminent Domain, § 247. The taker of the property, thus having its total liability determined, is not affected by or interested in the division of the award by the court.
Although there is authority to the contrary (See: State by Mondale v. Independent School District No. 31, 266 Minn. 85, 123 N.W.2d 121), the weight of authority supports the view that if, at the time of the taking of both the fee simple determinable estate and the possibility of reverter, the event which would otherwise have terminated the fee simple determinable estate is not a probability for the near future, the owner of the fee simple determinable estate is entitled to the full award of compensation for the taking, the possibility of reverter being considered of no value. United States v. 16 Acres of Land, 47 F.Supp. 603 (D.C.Mass.); United States v. 1119.15 Acres of Land, 44 F.Supp. 449 (D.C.Ill.); State by State Highway Com'r v. Cooper, 24 N.J. 261, 131 A.2d 756; First Reformed Dutch Church of Gilboa, N.Y. v. Croswell, supra; Carter v. New York Cent. R. Co., supra; Restatement, Property, § 53, Comment b; Nichols, Eminent Domain, § 5.221 [1]; 27 Am.Jur.2d Eminent Domain, § 251. In the present instance, those whom the City has designated as claimants of the possibility of reverter have either failed to file answer, or have filed answer disclaiming any interest in the award and asserting that they have transferred such interest as they might otherwise have to the Commission. Thus, there was no error in the conclusion of the Superior Court that the Commission is entitled to the full award to be made in this case.
It appears from the record that substantially all, but not all, of the tract of land affected by this taking has been condemned. The Commission asserts that the remainder is of no value as a park. "Where a portion of a tract of land is taken for highway purposes, the just compensation to which the landowner is entitled is the difference between the fair market value of the property as a whole immediately before and immediately after the appropriation of the portion thereof." Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219; G.S. § 136-112; North Carolina State Highway Commission v. Gasperson, 268 N.C. 453, 150 S.E.2d 860; Gallimore v. State Highway and Public Works Commission, 241 N.C. 350, 85 S.E.2d 392. The market value of the property is to be determined on the basis of conditions existing at the time of the taking. North Carolina State Highway Commission v. Hettiger, supra. It is not limited by the use then actually being made of the property, but is determined in the light of all uses to which the property was then adapted and for which it could have been used. Williams v. State Highway Commission, 252 N.C. 514, 114 S.E.2d 340; Barnes v. North Carolina State Highway Commission, supra; Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10. All factors pertinent to a determination of what a buyer, willing to buy but not under compulsion to do so, would pay and what a seller, willing to sell but not under compulsion to do so, would take for the property must be considered. North Carolina State Highway Commission v. Gasperson, supra.
The City contends that the application of this rule requires that the land be valued on the basis of its use as a public park only, since the Commission could not use it for any other purpose without terminating its estate therein. Although there is authority to that effect, in our opinion the better view, which is supported by the weight of authority, is that, in the absence of exceptional circumstances, if both the fee simple determinable estate and the possibility of reverter are condemned and *607 if, at the time of the taking, the event which would otherwise terminate the fee simple determinable is not a probability for the near future, the award is made on the basis of the full market value of the land without restrictions as to its use. United States v. 16 Acres of Land, supra; Town of Winchester v. Cox, supra; State v. Cooper, supra; First Reformed Dutch Church of Gilboa, N. Y. v. Croswell, supra; Carter v. New York Cent. R. Co., supra; In re Appropriation of Easement for Highway Purposes, 169 Ohio St. 291, 159 N.E.2d 612, 75 A.L.R.2d 1373; Restatement, Property, § 53; Nichols, Eminent Domain, § 12.321; 27 Am.Jur.2d Eminent Domain, § 289; Annot., 75 A.L.R.2d 1382. There is no injustice to the taker in this ruling for, having condemned both the fee simple determinable and the possibility of reverter, it has acquired a fee simple absolute. It is, therefore, required to pay only the value of the property which has been taken. If any injustice results, is falls upon the holder of the possibility of reverter. In the present case, according to the record before us, the holder or holders of that interest in the land have either filed no answer and made no claim to any portion of the award or have expressly disclaimed any interest therein and have requested that it be paid to the Commission.
A number of the cases cited by the City in support of its position are, in our opinion, distinguishable. In Boston Chamber of Commerce v. Boston, 217 U.S. 189, 30 S.Ct. 459, 54 L.Ed. 725, the city condemned land for use as a street. The land was subject to an easement of way, light and air in favor of an adjoining property owner. The Supreme Court of the United States held that the Fourteenth Amendment required the city to pay only the value of the land after taking this encumbrance into account. There, the encumbrance was not taken, or destroyed, by the condemnation proceeding since the purpose of the condemnation was to provide a public street and would, necessarily, preserve the easement of way, light and air. Not having taken or destroyed the right of the owner of the dominant estate, the city was properly held liable for the value of the servient estate only. In Rogers v. State Roads Commission, 227 Md. 560, 177 A.2d 850, and in State Highway Commission v. Callahan, 242 Or. 551, 410 P.2d 818, the taker was the grantor of the fee simple determinable and, therefore, was already the owner of the possibility of reverter. Not having taken this interest, that is, not having taken the fee simple absolute, it should not be required to pay for it, and the award was properly limited to the value of the fee simple determinable estate. Staninger v. Jacksonville Expressway Authority, 182 So.2d 483 (Fla.Dist.Ct.App.), and State v. Reece, 374 S.W.2d 686 (Tex.Civ.App.), involved zoning restrictions and restrictions imposed by a covenant. These are distinguishable for the reason that the condemnation proceeding was not a taking or a destruction of the restriction. Furthermore, such restrictions are distinguishable from a possibility of reverter in that those restrictions forbid a use to be made of property, whereas the possibility of reverter does not forbid such use but transfers title to the property if it occurs. Where, as in the case before us, both the fee simple determinable and the possibility of reverter have been taken in the same condemnation proceeding, the full fee simple absolute has been taken and its full value should be paid by the taker to the party or parties rightfully entitled.
It follows that the measure of damages set forth in the third conclusion of law by the court below is the correct measure to be applied in this case and there was no error in the court's refusal to limit such damages to the value of the property as used for a public park.
No error.
MOORE, J., did not participate in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327250/ | 122 Ga. App. 776 (1970)
178 S.E.2d 737
WILLIS
v.
THE STATE.
45356.
Court of Appeals of Georgia.
Submitted June 1, 1970.
Decided November 9, 1970.
Louise T. Hornsby, for appellant.
Hinson McAuliffe, Solicitor, James L. Webb, Frank A. Bowers, for appellee.
QUILLIAN, Judge.
The defendant was charged with violation of the State Liquor Control Act on 26 separate counts. He was tried in the Criminal Court of Fulton County before a jury of 5 and was found guilty of 14 counts of the accusation. The jury verdict recited that the defendant was guilty on counts 3-8, 13-16, 19, 20, and 23-26. The defendant was acquitted of the remaining counts. His motion for new trial as amended was overruled and appeal was taken to this court. Held:
1. (a) Enumerations of error 1, 8, 9 and 10 complain that the evidence was insufficient to support the verdict. In the brief to this court the only counts which are expressly complained of as being unsupported by evidence are 13-16 and 21-22. The defendant was acquitted as to Counts 21 and 22 so any issue in that regard is nugatory. The verdict in the form used was a general verdict as to each count. See Lee v. State, 66 Ga. App. 613, 618 (18 SE2d 778); McDay v. State, 105 Ga. App. 678 (4) (125 SE2d 534). Thus each count stands as a separate entity. Wells v. State, 75 Ga. App. 588 (44 SE2d 66). Assuming, but not deciding, that the general grounds addressed to the case as a whole would raise an issue as to whether each count was sufficient, still we can not hold that the verdicts as to counts 13-16 were error. They are subject to the rule that where there is some evidence which supports the verdict, it is not error to refuse to grant a new trial. Smith v. State, 95 Ga. App. 775 (2) (98 SE2d 606).
(b) Under these same grounds, the defendant attempts to raise the issue that the affidavit on which the accusation was based was false since the evidence on the trial showed that the affiant had personal knowledge only of the offenses committed on May 5, 1968 (Counts 3-6), and May 26, 1969 (Counts 7-8). Ordinarily, defects in the accusation or questions involving the sufficiency of the accusation are not properly subjects of a motion for new trial. Edenfield v. State, 95 Ga. App. 2 (1) (96 SE2d 533); Ledford v. State, 215 Ga. 799 (113 SE2d 628). However, there are certain exceptions made where the sufficiency of the evidence is involved. See Brown v. State, 82 Ga. App. 673, 677 (62 SE2d *777 732). In any case, however, the contention made by the defendant with regard to the affiant's personal knowledge has been decided adversely to him by this court in Hutto v. State, 116 Ga. App. 140, 142 (156 SE2d 498), where it was pointed out that often "affiant's knowledge of matters stated in his affidavit must, of necessity, rest upon information derived from others."
The enumerations of error dealing with the sufficiency of the evidence are without merit.
2. Enumeration of error 2 complains that the defendant was deprived of the right to a trial by a constitutional jury. On the trial the defendant moved for a panel of 48 jurors and a "constitutional" jury of 12 persons. The trial judge overruled the motion.
"Where one seeks by a pleading in a criminal action to invoke a constitutional protection or guarantee, it is incumbent upon him to specify plainly and distinctly the particular constitutional provision that he invokes, and where a defendant in a criminal prosecution seeks to assert that the procedure followed by the State in the prosecution violates a particular constitutional right, it is incumbent upon him to point out specifically and definitely the particular provision which he contends has been violated." Josey v. State, 102 Ga. App. 707 (117 SE2d 641). The defendant failed to properly raise the constitutional questions in the court below. Turner v. State, 58 Ga. App. 775, 779 (199 SE 837).
As to the merits of the defendant's contentions, see the following: Smith v. State, 23 Ga. App. 130 (1) (97 SE 624); Allen v. State, 51 Ga. 264; Conyers v. Graham & Foute, 81 Ga. 615 (4) (8 SE 521); McIntyre v. State, 190 Ga. 872 (5) (11 SE2d 5, 134 ALR 813); Coates v. Lawrence, 46 FSupp. 414, 423. In Williams v. Florida, 399 U. S. 78 (90 SC 1893, 26 LE2d 446), the U. S. Supreme Court has recently held that a jury of 12 is not an indispensable ingredient for "trial by jury" and that a lesser number (6 in that case) meets the constitutional guarantee.
3. The third enumeration of error complains that a State's witness placed the defendant's character in evidence and that the court erred in overruling the defendant's motion for a mistrial. On cross examination, the State's witness in answer to the question, *778 "Now, how did you finally arrest James Willis?" responded, "We carried the three boys to the police station, pulled James Willis' file from the I. D. Section, took this picture here and showed it to them. They said this is the defendant that sold it to them. The next day we took a warrant, went to his house to arrest him. We couldn't find him. We went back this is on Monday. We were up on Tuesday and Wednesday. We went back on Thursday and arrested him." The defendant's counsel made no objection at this time but proceeded to question the witness in great detail with regard to the picture, including several questions as to whether the witness had exhibited the picture to the jury, which he denied. Counsel then moved for a mistrial which the trial court, after hearing argument, overruled. Subsequent to this on further cross examination, the witness was again queried with regard to the picture.
In Cooper v. State, 182 Ga. 42 (2) (184 SE 716, 104 ALR 1309), the Supreme Court approved the admission of a picture allegedly from the rogues' gallery where such picture contained nothing to indicate the defendant was guilty of previous crimes. See in this connection: Martin v. State, 225 Ga. 234 (2) (167 SE2d 638). The picture in this case was not introduced into evidence and, under the record, we cannot presume that the jury saw it. Moreover, we find no harmful error since evidence of substantially the same nature was elicited by defendant's counsel on cross examination. Hudson v. State, 108 Ga. App. 192 (2) (132 SE2d 508, 100 ALR2d 1395); Gasaway v. State, 119 Ga. App. 199 (2, 3) (166 SE2d 381); Salisbury v. State, 222 Ga. 549 (2) (150 SE2d 819).
4. Enumeration of error 4 complains of the failure of the trial judge to direct a verdict of acquittal. It is again settled that there is no duty resting on a trial judge in any criminal case to direct a verdict of not guilty. Pritchard v. State, 224 Ga. 776, 779 (164 SE2d 808). See also Anderson v. State, 120 Ga. App. 147 (1) (169 SE2d 629); Arnall v. State, 120 Ga. App. 309 (2) (170 SE2d 337).
5. Enumeration of error 5 complains that the trial judge abused his discretion in refusing to permit defendant's counsel to assist *779 him while giving an unsworn statement and also erred in referring to the defendant's statement as unsworn.
The record reveals that during the defendant's statement his counsel asked the question, "Do you get money for working on cars." The trial judge asked, "Are you going to swear him, is this an unsworn statement?" Defendant's counsel replied, "I thought I'd direct him, I wanted to tell his occupation." The court refused to allow the defendant's counsel to ask him the question. However, the defendant in continuing with his statement told of his occupation and the money he made "working on cars."
No objection was made to the trial court's reference to the unsworn statement. Moreover, a mere reference to the unsworn statement does not constitute a comment on the failure of defendant to testify under the mandate of Code § 38-415, as amended. Harris v. State, 118 Ga. App. 769 (3) (165 SE2d 462). Since all the information his counsel sought was given by the defendant in his statement, we find no abuse of discretion by the trial judge. Thacker v. State, 226 Ga. 170, 177 (173 SE2d 186). See in this connection Martin v. State, 223 Ga. 649, 651 (157 SE2d 458).
6. Enumerations of error 6 and 7 complain that the defendant's constitutional rights were violated when the trial judge failed to afford him a procedure, outside the presence of the jury, for determining the voluntariness of alleged incriminating statements.
From the transcript it appears that at the time the prosecuting attorney questioned the State's witness with regard to any statement that the defendant may have made, an objection was interposed by defendant's counsel on the ground that the proper foundation had not been laid. After argument, the State's attorney withdrew the question and no response was ever made to it.
It thus appears that the defendant failed to make any objection on the constitutional grounds that he now urges (Shepherd v. City of Jackson, 18 Ga. App. 216 (2) (89 SE 161); Bobo v. State, 106 Ga. App. 111, 113 (126 SE2d 286); Crider v. State, 114 Ga. App. 522 (2) (151 SE2d 791); Lundy v. State, 119 Ga. App. 585, 587 *780 (168 SE2d 199); Lewis v. State, 196 Ga. 755, 760 (27 SE2d 659)) and since the question was withdrawn, there was no error harmful to the defendant.
7. Enumeration of error 11 complains that the testimony of a witness with regard to certain counts (13-16) should have been excluded upon timely motion because the same was hearsay. Objection was interposed at one point when the witness testified as to what a "decoy" did. This was not hearsay because the witness was not testifying as to what the third party said but as to what the witness saw the third party do. Cf. Moon v. State, 120 Ga. App. 141, 143 (169 SE2d 632). Subsequently, counsel moved to strike the entire testimony of the witness. The refusal to exclude evidence objected to as a whole, when in part admissible, is not ground for a new trial. Luke v. State, 26 Ga. App. 175 (1) (106 SE 199); Macon, Dublin &c. R. Co. v. Anchors, 140 Ga. 531, 536 (79 SE 153); Edenfield v. Brinson, 149 Ga. 377 (5) (100 SE 373); Clarke v. State, 221 Ga. 206 (4) (144 SE2d 90). Insofar as this ground raises the question with regard to the direction of a verdict of acquittal on Counts 13 through 16, it is controlled by the ruling in Division 4 of this opinion.
Judgment affirmed. Bell, C. J., and Whitman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327258/ | 122 Ga. App. 769 (1970)
178 S.E.2d 772
JOHNSON
v.
THE STATE.
45551.
Court of Appeals of Georgia.
Submitted September 8, 1970.
Decided November 6, 1970.
Charles E. Solomon, Jr., L. M. Wyatt, for appellant.
Eldridge W. Fleming, District Attorney, for appellee.
BELL, Chief Judge.
1. The defendant was indicted and tried for theft by taking and theft by receiving stolen property. The jury acquitted the defendant of theft by taking but convicted her of theft by receiving stolen property. The trial court charged the jury: "that if you find the offense alleged in the indictment was committed by someone and that very soon thereafter the whole or any part of the goods so taken at the time the offense was committed, if any offense was committed, was found in the recent possession of the defendant, such possession, if not satisfactorily explained consistent with her innocence, would authorize you to identify the defendant as the guilty party and to convict her of the crime charged." As the court did not limit the application of this charge to either offense, the jury was free to apply it to the theft by receiving stolen property. This constitutes harmful error. It has been held that the rule of recent possession of stolen property has no application to a charge of theft by receiving stolen property. Gaskin v. State, 119 Ga. App. 593 (168 SE2d 183).
2. The defendant contends that the verdict was without evidence to support it because the State did not prove ownership or theft of the goods and did not establish that the defendant knew the goods were stolen. The essential elements of the crime are that property was stolen and the defendant received, disposed of, or retained stolen property which he knew or should have known was stolen. Code Ann. § 26-1806. The indictment charged that the offense was committed on January 20, 1970, and the goods, 25 girdles, were allegedly owned by and stolen from the International Playtex Corporation. Six girdles were received in evidence and it was established by two witnesses for the State that they obtained them from the defendant. An employee of International testified that the six girdles were manufactured by his firm in LaGrange; and three were manufactured in January 1970, one in December 1969, one in October 1969, and gave no date of manufacture for the sixth. When asked if they had been "released and sold," this witness stated "The only way they could have been released, we ship from LaGrange to our *770 distribution center in Dover and from there they are shipped to customers but they are packaged when they are shipped to customers. It's very unlikely these could have been completed in January and gotten out into LaGrange in any manner." The testimony of this employee is the only evidence adduced by the State that any girdles were stolen from International. There is a complete lack of any direct evidence that any of this type of apparel was missing from the firm in any quantity. The employee's testimony only established that the garments manufactured in January 1970, a total of three, were unlikely to have left the point of manufacture for sale and the legitimate possession of another by sale during January 1970. The fact that three of the garments were unlikely to have been shipped from LaGrange does not authorize, in the absence of any other circumstances, the inference that the goods were the subject of a theft. This evidence as to the likelihood of shipment in January 1970 has no bearing upon the two garments manufactured in October and December 1969. One of the witnesses testified positively that she purchased a girdle from the defendant on December 24, 1969. It must also be borne in mind that the defendant was charged with receiving a total of 25 girdles. A witness did testify that she purchased a girdle from the defendant in January 1970 and sometime "after January" 1970 the defendant gave her 19 girdles to sell on her behalf. The record is otherwise silent as to the nineteen. There is not a scintilla of evidence that these were even manufactured by International Playtex, nor is there any evidence showing circumstances from which it can be inferred that they had been stolen from International. To sustain the conviction of the defendant for the offense charged, the larceny of the goods and their ownership must be proven, with reasonable certainty, as alleged in the indictment. O'Connell v. State, 55 Ga. 296. The evidence here as to proof of ownership and theft of the goods is vague and uncertain and cannot support a conviction.
The evidence is fatally deficient for another reason. There is no evidence from which it can be found that the defendant initially received the goods with knowledge that they had been stolen, an essential element of the crime. A witness did testify *771 that after obtaining a girdle from the defendant, the defendant "called me and told me they was in hot water, the one had bought had carried a whole passle of `em to the pawn shop and was in hot water, if I had any in my house, to get rid of `em." This statement attributed to the defendant, a portion of which is meaningless, shows at best an after the fact knowledge that the goods were stolen and an attempt to secrete them. This is insufficient to establish that the defendant had guilty knowledge at the time of receiving them. Pat v. State, 116 Ga. 92 (42 SE 389).
Judgment reversed. Quillian and Whitman, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327278/ | 227 Ga. 55 (1970)
178 S.E.2d 864
BAILEY
v.
BAILEY.
26180.
Supreme Court of Georgia.
Argued November 10, 1970.
Decided December 3, 1970.
*56 J. Laddie Boatright, for appellant.
Arthur C. Farrar, for appellee.
MOBLEY, Presiding Justice.
This appeal is from the grant of the motion for summary judgment of plaintiff.
Mrs. Lois Bailey, as administratrix of the estate of L. M. Bailey, brought an action to recover described land from Lovie B. Sears Bailey, alleging that plaintiff claims fee simple title to the land as administratrix under described deed to L. M. Bailey.
Defendant filed an answer denying that plaintiff owns title to the land, alleging that defendant and her deceased husband, Edison Bailey, have been in adverse possession of the land for more than 20 years.
Plaintiff later amended her petition, alleging the title under which she claims as follows: Mrs. Della Bailey orally purchased a described tract of land in June, 1920, for the consideration of $250; she went into possession of the land, built a house on it, and occupied it in a manner that would constitute adverse possession until her death in 1936. After Della Bailey's death, all of her heirs at law conveyed their interest in Della Bailey's property to L. M. Bailey by two deeds, a quitclaim deed and a guardian's deed. One of the heirs signing the quitclaim deed was Edison Bailey. A described part of the tract of land owned by Della Bailey is now in the possession of defendant, and plaintiff, as administratrix of L. M. Bailey's estate, claims title and the right of possession of this property.
On April 28, 1970, plaintiff served defendant with a request for admission of certain facts, within 15 days, which include the following: Edison Bailey died on March 30, 1960. Edison Bailey did not own any interest in the land in question in the case. Lovie B. Sears Bailey (defendant) does not own any interest in the land. Edison Bailey conveyed his interest in the land in dispute to L. M. Bailey on September 30, 1936, by recorded quitclaim deed. Lovie *57 B. Sears Bailey (defendant) claims her interest in the land as heir of Edison C. Bailey and the fact that Edison C. Bailey's interest in the land was derived as an heir of Mrs. Della Bailey. At the time of Mrs. Della Bailey's death, she had fee simple title to the land in question.
Plaintiff took the deposition of defendant on May 8, 1970. On June 26, 1970, plaintiff filed a motion for summary judgment on the ground that there is no genuine issue as to any material fact and plaintiff is entitled to judgment as a matter of law, as appears from the pleadings, the deposition of defendant, the admissions of defendant, and the affidavit of plaintiff's counsel.
The motion was granted and judgment was entered in favor of plaintiff against defendant to recover the land.
Defendant (appellant here) has specified the entire record on appeal and the clerk has certified that the entire record has been transmitted to this court. The record contains no objection by the defendant to the request for admissions, nor any denial of the facts set out therein.
Code Ann. § 81A-136 (Ga. L. 1966, pp. 609, 648; Ga. L. 1967, pp. 226, 234, 235) provides for the filing and service on the opposite party of a request for admissions of facts, and provides that where no objection or denial is made to the matters of which an admission is requested, within the time designated in the request, or other time allowed by the court on motion, the matters shall be deemed admitted.
The trial judge was authorized to treat the matters covered by the request for admissions as admitted in the consideration of plaintiff's motion for summary judgment. Moore v. Hanson, 224 Ga. 482 (1) (162 SE2d 429). These admissions were sufficient to prove plaintiff's case and to disprove the defense of defendant. Therefore no issue remained for trial, and the trial judge properly granted plaintiff's motion for summary judgment.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327280/ | 178 S.E.2d 801 (1971)
Mary Ann BILLINGS
v.
CIVIL SERVICE COMMISSION of West Virginia and John R. Barber, Acting Alcohol Beverage Control Commissioner.
No. 13007.
Supreme Court of Appeals of West Virginia.
Submitted January 14, 1971.
Decided February 2, 1971.
*802 Burton & Burton, Walter W. Burton, Princeton, for appellant.
Chauncey H. Browning, Jr., Atty. Gen., Dennis R. Vaughan, Jr., Asst. Atty. Gen., Charleston, for appellees.
BROWNING, Judge:
This case is a statutory appeal from a final order of the Civil Service Commission of the State of West Virginia dated August 10, 1970.
The appellant, Mary Ann Billings, was employed by the West Virginia Alcohol Beverage Control Commissioner as a clerk, having begun her employment on September 23, 1963. On September 12, 1969, appellant took a leave of absence for pregnancy and was absent for four weeks. When she returned to work, her division director informed her that "she would have to train someone else and she would be terminated and that the reason for this termination was political." Claiming that political discrimination became "so bad," she did not return to work after October 30, 1969. She was never given any reasons in writing for her "termination," the Commissioner taking the position that she resigned rather than having been discharged. Appellant testified that at the time she did not believe she was covered by the Civil Service System and thus did not appeal her "dismissal" within the thirty-day statutory period.
Prior to all of this, but during appellant's employment, Governor Hulett C. Smith, by executive order dated January 11, 1969, placed Alcohol Beverage Control Commissioner employees under the West Virginia Civil Service System. On July 14, 1969, Governor Arch A. Moore, Jr., by executive order, attempted to remove those employees from the protection of the system. On March 30, 1970, this Court, in State ex rel. Karnes v. Dadisman, W.Va., 172 S.E.2d 561 (1970), held Governor Moore's executive order to be void for reasons set forth in that opinion. On June 30, 1970, this Court, in State ex rel. Clark v. Dadisman, W.Va., 175 S.E.2d 422 (1970), held, inter alia, that "terminated" employees were entitled to reinstatement and back pay since they were never legally discharged (not having been given reasons in writing for their discharges).
On July 8, 1970, the appellant herein filed for an appeal with the Civil Service Commission and was granted a hearing to be held on August 10, 1970. On that date, the hearing was held, and the commission entered the order herein complained of. This, in part, was the commission's holding:
The appeal was not timely and properly made in accordance with, and in compliance with the Statutes of the State of West Virginia, Rules and Regulations of the Civil Service Commission of West Virginia and the decisions of the Supreme Court of Appeals of West Virginia. However, the Commission did hear evidence as to the merits of the case, and it was determined that the employee was not, in fact, discharged, but did, in fact, resign her position as Clerk V with the Alcohol Beverage Control Commission and, therefore, was not appealing from a discharge.
IV. DECISION
1. Appeal was untimely.
2. The employee resigned and was not discharged. Appeal denied.
We granted an appeal in this case on October 19, 1970, and, upon appellant's motion *803 to reverse, filed December 12, 1970, briefs of counsel and oral argument on January 13, 1971, the case was submitted for decision.
It will be noted that the decision of the commission was based upon two points, the first being that the appeal was untimely. There is pending in this Court for decision the case of Harris v. Civil Service Commission and sixteen other cases 178 S.E.2d 842, all of which by agreement of counsel were consolidated for decision, in which the sole issue is whether there was a timely appeal to the commission. That question will be dealt with extensively in the opinion of the Court when it is handed down, and, in view of the position of the Court upon the second finding of the commission, we do not consider it necessary to discuss the issue of timely filing. In other words, the sole issue we are passing upon in this case is whether or not the employee was "discharged." Of course, if any employee under civil service resigns or "abandons" a position under such circumstances that those terms become synonymous, the commission is without authority to reinstate that employee unless the severance of the employee from his or her position was under such circumstances that it violated Code, Chapter 29, Article 6, as amended, the subject of which is civil service, and the Rules and Regulations of the Civil Service Commission. Although not raised in brief or argument by counsel for either of the parties in this case, we deem it necessary to determine what weight, if any, should be given to a finding of fact by the Civil Service Commission.
Code, 29-6-13, as amended, empowers the commission to take evidence and to pass upon that evidence affirming or reversing the decision of the employing authority, therefore, in our opinion, placing it certainly in the position of an administrative agency whose finding of fact will not be reversed by this Court unless clearly wrong.
In this regard, compare West Virginia's Administrative Procedures Act, Chapter 29A, and in particular Article 5, Section 4:
(g) The [circuit] court may [upon review] affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the agency if the substantial rights of the petitioner * * * have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:
* * * * * *
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record * * * (Emphasis added.)
And, as stated in Guine v. Civil Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965):
The principle is well established by the decisions of this Court that an order of an administrative body based upon a finding of facts which is contrary to the evidence, or is not supported by the evidence, or is based upon a mistake of law, will be reversed and set aside by this Court upon review.
Conversely, this Court has recognized that an order of the Public Service Commission "based upon evidence to support it is not subject to judicial interference upon review by this Court." Atlantic Greyhound Corp. v. Public Service Commission, 132 W.Va. 650, 54 S.E.2d 169 (1949). See also, United Fuel Gas Co. v. Public Service Commission, 143 W.Va. 33, 99 S.E.2d 1 (1957); Walk v. State Compensation Commissioner, 134 W. Va. 223, 58 S.E.2d 791 (1950); Town of Harrisville v. Public Service Commission, 103 W.Va. 526, 138 S.E. 99 (1927); City of Huntington v. Public Service Commission, 101 W.Va. 378, 133 S.E. 144 (1926); Pittsburgh & West Virginia Gas Co. v. Public Service Commission, 101 W.Va. 63, 132 S.E. 497 (1926). Upon this authority, we now hold specifically that this Court will not *804 reverse a finding of fact by the Civil Service Commission unless it is contrary to the evidence or is based upon a mistake of law. In other words, the finding must be clearly wrong to warrant our "judicial interference."
In appraising the evidence in this case, we must consider the situation that prevailed at the time the appellant ceased to be an employee of the Alcohol Beverage Control Commissioner. The present Governor had entered his order removing the employees from that department from civil service protection, and it was therefore assumed by the commissioner and employees of the commissioner, as well as others perhaps, that the executive order of the present Governor was valid. There is no conflict in the evidence, the only witness testifying being Mary Ann Billings, the appellant. It is true that at the end of the hearing an affidavit was submitted by the person who at that time was Alcohol Beverage Control Commissioner to the effect that the records of that department showed that Mrs. Billings had "resigned." However, that, of course, was not conclusive and there was no evidence to contradict the evidence of the appellant that she never at any time submitted a formal resignation nor was she at any time discharged. The real issue then is whether or not she was subject to such discrimination or pressure that she was justified in severing her relationship with the department. Perhaps this opinion would not serve its purpose if there was not some brief quotation from the uncontradicted evidence of Mrs. Billings.
* * * * * *
Q. Were you given any reasons for dismissal in writing or otherwise?
A. No, Sir: There were circumstances concerning my last day at work but I don't know how to explain this exactly but I had been pressured for several weeks to either train someone or else and, so, it got to the point that it was unbearable and I couldn't take it any longer.
Q. So, you resigned?
A. I did not resign. I told them that under the circumstances that I did not feel, since I didn't have any Civil Service protection, that it would do me any good to stay any longer. So, I didn't write any resignation and they didn't fire me. It was just an understanding.
* * * * * *
Q. * * * Did you make up your mind that you were going to leave and left because of what you considered to be job pressure? Is that what I am to understand?
A. Well, we had a meeting with the Commissioner the afternoon that was my last day and he informed me and also two other employees, one was the Director and one was the Chief Accountant, that the man who was harrassing us which was head of personnel in our Division could not be handled because of politics and that he was put there as a hatchet man and that there wasn't anything that they could do at that time, but they did plan to remove him out of that office which they have done since the time I left because so many employees had trouble with him.
Q. I take it from what you say you were not dismissed, in other words, nobody told you * * *
A. No, nobody told me to go home.
Q. that you were dischargedgo home and don't come back? You simply decided that due to the pressures of the job that you couldn't take it.
A. They had put someone, they had put a woman in my Department to be trained for my job.
* * * * * *
Q. And, then you left, as you said, without being told you had to leave or that you were discharged? You left of your own free will.
*805 A. But during the days that I worked during those two weeks, we had to put up with such things as the Republicans being called out of your office, having their legal meetings downstairs, and I was Supervisor of the Division and was never called in on any of these meetings so I know it didn't pertain to the work. The employees they were calling down were new employees so I know they didn't know what was going on. You had to put up with that all the time, seeing them walk, staying in there with you four or five hours and then go downstairs and report what you were doing and everything you had said. So, this Mr. Miller walked up to me the first morning I came back after having my baby and he asked me if I would train someone for him and I said, "Where do you want me to start?" He wasn't expecting that reaction so he just threw up his hands and he said, "I don't know." So, he turned around and walked out. So, later he called me in and also the Director of the Division was in on this meeting and he said he felt like that if I did not train someone, I would have to go, and that the Commissioner had not said so but if it was up to him, he'd get rid of me in a minute that it was politics and that they didn't want a Democrat handling their payroll.
* * * * * *
A. * * * Mr. Conaty had even told me that he would try to move me over to his office to relieve some of the pressure but the last day I was there he said it would be impossible for some time, that things were looking bad and that if the main office called up, I would have to go, it was just a matter of time.
Q. But, no one told you you had to leave?
A. No, it was just the everyday pressures that were built up during that two week period knowing that if I did train someone, I was going and if I refused, I was going anyway.
* * * * * *
EXAMINATION BY: WALTER BURTON
Q. Mrs. Billings, on and prior to the time that you left, did you think that you were being discriminated against with respect to your employment because of political factors?
A. Yes, Sir, I did because I was a Democrat.
Q. And, did, on numerous times, Mr. Miller tell you that?
A. Once Mr. Miller did and several times Mr. Conaty told me that he felt that I was a good worker and that he was going to try to keep me as long as he could. That he was going to try to hide me but that in time that they would fire me.
* * * * * *
It is the view of this Court considering all of the circumstances that have heretofore been related and particularly the statement of Mr. Conaty, the only person who had the authority to discharge her, assuming that she was not under civil service, what transpired between her and some of the members of the opposing party who had recently begun work for the Alcohol Beverage Control Commissioner, their conduct in holding meetings and not inviting her and even the statement by some minor official of the department that he would fire her in a minute if he could even though he had no such authority, that the commission was justified in holding that appellant voluntarily left her employment with the Alcohol Beverage Control Commissioner and was not discharged. Furthermore, the commission was not clearly wrong in holding, upon the facts and considering only her testimony, that the appellant was not entitled to be reinstated to her former position and be paid her salary from the day she ceased her employment. Therefore, the ruling of the commission is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327571/ | 684 S.E.2d 6 (2009)
299 Ga. App. 831
MATHIS
v.
The STATE.
Fortie
v.
The State.
Waller
v.
The State.
Nos. A09A0215, A09A0308, A09A0358.
Court of Appeals of Georgia.
July 31, 2009.
Reconsideration Denied August 24, 2009.
*9 Gilbert J. Murrah, Bainbridge, for appellant (case no. A09A0215).
Little, Crumly & Chambliss, Samuel F. Little, Jr., Atlanta, for appellant (case no. A09A0308).
Sheueli C. Wang, James C. Bonner, Jr., Athens, for appellant (case no. A09A0358).
Joseph K. Mulholland, Dist. Atty., for appellee.
DOYLE, Judge.
Following a joint jury trial, Jeremiah Waller and Jean Fortie were each convicted of *10 two counts of armed robbery,[1] and Doney P. Mathis was convicted of two counts of armed robbery,[2] possession of a firearm during the commission of a crime,[3] and obstruction of a law enforcement officer.[4] All three have appealed, and we have consolidated the appeals for review.[5] Mathis alleges that the trial court erred in denying his motion for new trial because: the evidence was insufficient; the trial court failed to sever the trials; the court failed to grant a mistrial after the State injected improper character evidence; the presence of uniformed and plainclothes law enforcement officers during the trial violated his due process rights; and the trial court failed to continue the trial until his court-ordered mental evaluation was completed. Fortie contends that the trial court erred in admitting certain evidence that improperly injected his character into the trial and in denying his motion to sever; Fortie also alleges that he received ineffective assistance of counsel. Waller argues that the trial court erred in denying his request to give a jury charge on coercion and duress and in admitting certain evidence. We affirm the convictions of Mathis and Fortie, and we reverse Waller's conviction, for reasons that follow.
On appeal from a criminal conviction, we review the evidence in a light favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.[6] We neither resolve issues of witness credibility nor weigh the evidence, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.[7] So viewed, the evidence shows that on August 4, 2005, Sheree Dean and Susan Hand were working as bank tellers at the Family Bank in Decatur County. At 8:50 a.m., Dean and Hand, who were inside the bank preparing for the 9:00 a.m. opening, observed a manlater identified as Jean Fortiewalk up to the entrance and look through the door into the bank. At approximately 9:10 a.m., Mathis and Waller entered the bank, running. Waller had a stocking on his face, and Mathis was in the process of pulling a stocking over his head. Mathis, who was brandishing a gun, yelled, "Give me the money, give me the goddam [sic] money. I want all the money." Both men were standing at the counter, and Mathis hit the counter and repeatedly instructed Dean to "hurry up." Dean retrieved as much money as she could, running back and forth from her teller station at the drive-through to the counter where the men were standing; she placed the money on the counter, and Waller shoved the money into a bag. According to Hand, the men took approximately $7,400 in cash from the bank. Waller and Mathis also took $50 from a bank customer. The two men then ran out of the bank and down a dirt road behind the bank.
Tom Wheeler, who was driving by the scene, saw two men run out of the bank. Because he believed that the men were "doing something wrong," Wheeler attempted to follow them in his vehicle by cutting through an adjacent driveway. As he did so, he encountered a blue Buick containing four individuals. The Buick stopped inches away from his vehicle, and Wheeler backed up and let the car go past him after the driver repeatedly pumped the brake, causing the car to rock back and forth in a threatening manner. Wheeler then called 911 and followed the Buick for approximately a mile-and-a half, but stopped after he saw a gun pointed out of the driver's side rear window of the Buick.
All Decatur County Sheriff's deputies on duty at that time were instructed to search for the suspects and were given a description of the Buick, including the license plate number, as well as a description of Waller and Mathis and their clothing. Lieutenant Rick Ashley observed the Buick and pursued it at *11 a high rate of speed for six miles until another patrol car joined him, and he initiated a traffic stop. Mathis leaped out of a rear door and fled into the woods. Waller, Fortie, and a woman, Tonya Jackson, remained in the car and were arrested on the scene. The authorities searched the Buick and found multiple money wrappers bearing the Family Bank stamp. Police apprehended Mathis in the same general area the following day; Mathis was in possession of $7,144 in cash.
The State tried Waller, Fortie, and Mathis together in a joint trial. Jacksonwho was charged with two counts of armed robbery, entered a plea to robbery and was sentenced to twenty yearstestified. Jackson testified that on August 3, 2005, she, Fortie (her boyfriend), Waller, and Mathis discussed robbing a bank. The following morning, the four of them went to Wal-Mart, where Waller stole stockings and Fortie stole a "fake" "gun that shoots animals, like a pellet [gun]." They then went to the Family Bank, and she and Fortie waited in the car while Mathis and Waller went inside; Mathis and Waller ran out of the bank, down a dirt road, and jumped into the vehicle, which Fortie was driving.
Waller also testified, denying that he discussed robbing a bank with the other three individuals. According to Waller, he was asleep in the car when Fortie awakened him outside a bank, instructing him to "go with... Mathis." Waller testified that he initially refused, but complied after Fortie pointed a gun at him. Waller and Mathis approached the bank, and Mathis instructed him to don a stocking cap. Waller testified that he refused, but Mathis "pulled out a gun and told me, do what I told you to do or you won't see your family no more." The two men then entered the bank, and Mathis demanded and collected money; Waller denied taking money or putting it in a bag. The jury found Waller, Mathis, and Fortie guilty on all counts, and all three have appealed.
Case No. A09A0215
1. Mathis, in a single enumeration of error, alleges that the trial court erred in denying his motion for new trial. He divides his argument into several sub-parts, which we address in turn.
(a) Mathis contends that the verdicts as to armed robbery and possession of a firearm during the commission of a crime were contrary to law and unsupported by the evidence because the indictment charged him with committing armed robbery with the use of a handgun (as opposed to a replica), while the testimony at trial established that a toy gun was used in the robbery.
Mathis provides no statutory or legal authority for this contention, in violation of our rules.[8] Notwithstanding his failure to do so, however, this argument is without merit. We have previously held that there was no fatal variance between an indictment that alleged that the defendant committed armed robbery by the use of a handgun and evidence that showed that the defendant used a BB gun; or between an indictment that alleged that armed robbery was committed by the use of a pistol and the evidence that showed that the weapon was a pellet gun.[9] Similarly, there is no fatal variance here between the indictment that alleged that Mathis committed armed robbery through the use of a handgun, and evidence that showed that the weapon used was a pellet gun. "[T]here was no risk that [Mathis] was uninformed as to the charges against him or that he could be prosecuted for the same offense twice.... The evidence did not fatally vary from the indictment."[10] Thus, Mathis's arguments that the verdicts were contrary to law or unsupported by the evidence are without merit.
(b) Mathis further argues that the trial court erred by failing to sever his trial from that of his co-defendants.[11] We find no basis for reversal.
*12 Mathis made a pre-trial verbal motion to sever his trial from that of his co-defendants on the sole ground that their defenses were antagonistic. At the hearing, Mathis's counsel stated that he believed, based on his conversations with counsel for the co-defendants, that the co-defendants intended to introduce testimony that Mathis somehow compelled them to commit the charged crimes. Upon hearing that the witnesses the co-defendants intended to call for that purpose had either expressed an unwillingness to testify or had not yet been subpoenaed, the trial court denied the motion to sever.
Mathis had "the burden of making a clear showing of prejudice and a denial of due process in the absence of severance. The trial court has discretion in determining whether severance is necessary and that determination will not be set aside unless there is an abuse of that discretion."[12] "Antagonism between co-defendants is not enough in itself to require severance, rather [Mathis] must also demonstrate that he was harmed by the failure to sever."[13] Mathis does not specifically allege that he was harmed by the trial court's denial of his motion to sever. And in light of the evidence presented at trial from sources other than his co-defendants including (1) Jackson's testimony that Mathis discussed the robbery, stole the stockings used in the robbery, and actually went into the bank and emerged shortly thereafter with money; (2) Dean and Hand's identification of Mathis as the man who brandished the gun during the robbery; and (3) Mathis's possession of approximately $7,100 in cash on his person when he was apprehended in the area the day following the robberywe conclude that Mathis "has not shown the clear prejudicial harm necessary to overturn the trial court's denial of the motion to sever."[14]
Mathis further argues, for the first time on appeal, that the number of defendants created confusion of the evidence and the law and that the admission of letters from Fortie (who did not testify) to Jackson that incriminated Mathis mandated severance.[15] But Mathis has not demonstrated that he raised these arguments to the trial court. "Furthermore, it is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court," and thus, we will not consider these arguments.[16]
(c) Mathis also contends that his character was improperly injected into evidence by a witness' reference to his prior incarceration and his prior marijuana consumption.
(i) During direct examination, the State asked Jackson what happened after the Buick left the dirt road and ended up back on the highway following the incident, and she *13 replied, "It was a cop, police standing right there. It was a police right there in a truck. And I told them to stop the car, but Doney [Mathis] told [Fortie], don't stop the car, because he wasn't going back to jail."
"[M]ere mention that a defendant has been in jail falls short of placing his character at issue."[17] Moreover, "[w]hen a witness gives a non-responsive answer to a question impacting negatively on the defendant's character, this does not place the defendant's character in issue under OCGA § 24-9-20(b)."[18] Finally, the statement at issue "was clearly admissible as part of the res gestae even if such evidence incidentally placed [Mathis's] character in evidence."[19] In light of the nature of the statement and the fact that Jackson gave a nonresponsive answer to the prosecutor's question, the trial court did not abuse its discretion in denying Mathis's motion for mistrial based on this testimony.[20]
(ii) Mathis also maintains that the trial court erred in failing to grant a mistrial after Waller testified during direct examination that he and the co-defendants smoked marijuana while they drove around Macon the night before the bank robbery. But neither Mathis nor his co-defendants made a contemporaneous objection to the question or to Waller's response, nor did they make a timely motion for mistrial.
"By failing to make a timely objection, [Mathis] has waived any objection that might have been made. Moreover, a mistrial will not lie where evidence is admitted without objection[,] and a motion for mistrial not made contemporaneously with the alleged misconduct makes the motion not timely."[21]
(d) Mathis argues that the trial court erred in denying his motion for mistrial on the grounds that his trial was "permented [sic] with both uniformed and plain clothes law enforcement officers such that there was a fog of law enforcement present surrounding [him] in court and going to and from court [to the] extent that it denied [Mathis] due process [ ] and a fair trial." We find no reversible error.
Decatur County Sheriff Wiley Griffin testified at the hearing on the defendants' motions for new trial, explaining that because there were three defendants, the Sheriff's Department "basically tripled [its] security." Sheriff Griffin testified that
we had individuals in plainclothes and we had individualswell, they wore badges even though they were in suits and plainclothes, they still wore badges. And then we had people in uniform, some with guns, some not with guns. And then also we had people in plainclothes that were deputies of Decatur County and Mitchell County Sheriff's Office but were notthe public couldn't tell you that. And, basically, we also had uniformed men around the [d]efendants that basically their job to be [sic] sort of like a circle around those [d]efendants but they did not wear guns.[22]
While in court, the defendants wore "street clothes" with stun belts underneath their clothing; the stun belts were not visible. There was no evidence that they were handcuffed or shackled while in the courtroom.
After court was in recess each day, the defendants changed into their orange jail uniforms and were shackled, with restraints on their ankles and their wrists. They were then led out of the courthouse one at a time and into patrol cars that transported them to the jail. Counsel for Fortie characterized the police escort as a "motorcade of one [d]efendant per car." He also testified that *14 there was a police dog on the scene as well. During the trial, counsel for Fortie advised the trial court that Fortie "believe[d] that he saw one of the jurors seeing the three defendants led out of the courthouse last night in full shackles, handcuffs, orange jump[] suits, the whole bit."[23] However, because none of the defendants requested that the juror be questioned about what she might have seen, the trial court did not so inquire.
Sheriff Griffin testified that the trial in this case occurred "shortly after" the Brian Nichols courthouse shootings in Atlanta. He further stated that monitored telephone calls made by the defendantsincluding one where a defendant threatened to "light this motherf____r up"raised security concerns for the trial, including the possibility of an escape attempt. One of the defendants physically assaulted an officer at the jail, and Griffin described one defendant as "very aggressive" toward jail physicians. Griffin was also concerned about the mental stability of the defendants, including one who required medical attention after mutilating his own genitals.
Although it is well settled that a defendant is entitled to a trial free of partiality which the presence of excessive security measures may create, it is also as well established that the use of extraordinary security measures to prevent dangerous or disruptive behavior which threatens the conduct of a fair and safe trial is within the discretion of the trial court.[24]
Under the circumstances of this case, particularly given the security concerns regarding the three defendants on trial, we cannot say that the trial court abused its discretion in denying Mathis's motion for mistrial on the grounds asserted.[25]
(e) Finally, Mathis argues that the trial court erred in conducting his trial before his court-ordered mental evaluation was completed. We disagree.
At a pre-trial hearing held on June 13, 2008, Mathis's attorney stated that the mental evaluation of Mathiswhich was ordered by the trial court on April 25, 2006had not been completed. As a result, he was not prepared to announce ready for trial. The trial court advised that it had granted Mathis a continuance during the previous term of court because the evaluation had not been completed and that it had specifically instructed counsel for Mathis that he was responsible for ensuring that the evaluation was completed before the next term of court. The trial court therefore stated that it would not continue the trial.
It is well settled that "a motion for continuance is addressed to the sound discretion of the trial judge, and the refusal to grant a continuance will not be disturbed by the appellate courts unless it clearly appears that the judge abused his discretion in this regard."[26] Here, counsel for Mathis was clearly instructed to ensure that the evaluation was completed, and he failed to do so. Further, Mathis fails to point to any evidence in the record demonstrating that he was incompetent, and we have found none. Under these circumstances, we hold that the trial court did not abuse its discretion in refusing to continue the trial for the completion of Mathis's competency evaluation and no basis for reversal.[27]
Case No. A09A0308
2. Fortie contends that the trial court erred in allowing his character into evidence in several instances. We find no reversible error.
*15 (a) Fortie alleges that the trial court erred in: allowing an excessive number of law enforcement officers in the courtroom; allowing a "large and conspicuous police presence during the transportation" of Fortie to and from the courthouse; and in failing to remove a juror who allegedly saw him in shackles. For the same reasons set forth in Division 1(d), this argument affords Fortie no relief.
(b) Fortie further contends that the trial court erred in allowing testimony that he smoked marijuana the night before the robbery. As did Mathis, Fortie waived this argument by failing to contemporaneously object to the testimony or to make a timely motion for mistrial based on its admission.[28]
(c) Fortie also argues that the trial court erred in failing to grant a mistrial when, "after admonishing the [S]tate not to go into anything that would involve testimony from a co[-]defendant who didn't testify[,]" a witness for the State "went into a plan to commit armed robbery." Because he failed to support this assertion with cogent argument or citation of authority or to cite to the record to demonstrate where the purportedly improper testimony was admitted, we will not consider it.[29]
(d) Fortie also alleges that "[a] sequestered witness passed inherently prejudicial newspaper photographs of the [d]efendants around the witness room." Frank Green, an investigator who had already testified for the State, testified that while he was in the sequestered witness room, Emma Wrighta witness who did not testify at trialshowed him a newspaper article that contained a small photograph of Mathis.[30] Although Wright also had "pictures of her car," it is not clear whether she circulated them. After Wright spoke to a third witness, an FBI agent in the room instructed them not to discuss the case. According to Green, the bank employees who identified the defendants had already testified, and they were not present in the witness room at that time.
"The trial court has discretion to grant or deny a motion for mistrial based on an alleged violation of a sequestration order."[31] Here, where there was no evidence that a testifying witness saw the article or any photographs before his or her testimony, Fortie has not shown any harm resulting from the alleged violation, and thus the trial court did not abuse its discretion in denying the motion for mistrial on this basis.[32]
3. Fortie also challenges the trial court's denial of his motion to sever. We discern no abuse of discretion.
At the hearing on his motion to sever his trial from that of his co-defendants, Fortie argued that their defenses were "antagonistic to each other and likely to confuse the jury."[33] On appeal, Fortie specifically alleges that because of Mathis's apparent defense of mistaken identity and Waller's defense of coercion, Fortie's defense of coercion "was likely `lost in the noise,' and severely *16 prejudiced by the sheer unbelievability [sic] of the other two defenses."
It is incumbent upon the defendant who seeks a severance to show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, the trial court's denial of a severance motion will not be disturbed. Even when the evidence of one defendant's guilt is stronger than that against the other, it is not error to deny a severance when there is evidence that the defendants acted in concert.[34]
And as we explained in Division 1(b), supra, "[a]ntagonism between co-defendants is not enough in itself to require severance, rather [Fortie] must also demonstrate that he was harmed by the failure to sever."[35] In light of the evidence presented at trialincluding (1) testimony from Jackson (who was not a defendant) that Fortie discussed the robbery, stole the pellet gun used in the robbery, exited the car and peered into the bank minutes before the robbery, and drove the get-away car; and (2) that Fortie was apprehended shortly after the robbery in a car with Waller and Jackson, which contained multiple money wrappers bearing the Family Bank stampwe conclude that Fortie "has not shown the clear prejudicial harm necessary to overturn the trial court's denial of the motion to sever."[36]
4. In his final enumeration, Fortie contends that he received ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, "a defendant must establish, pursuant to Strickland v. Washington,[37] that counsel's performance was deficient and that the deficient performance was prejudicial to the defense." We review the trial court's legal conclusions on this issue de novo, and its factual findings for abuse of discretion. An insufficient showing on either the deficiency or prejudice prong will support the trial court's conclusion that there was no ineffective assistance.[38]
Fortie does not allege that he was prejudiced by trial counsel's allegedly deficient performance, and therefore, under the Strickland test, his claim for ineffective assistance of counsel fails.
Instead, Fortie contends that he experienced a constructive denial of counsel, permitting him to rely on a presumption of prejudice pursuant to United States v. Cronic.[39] In Cronic, the United States Supreme Court recognized that circumstances may exist such that, "although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial."[40] However, "constructive denial is not present unless counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. The attorney's failure must be complete and must occur throughout the proceeding and not merely at specific points."[41]
Here, in support of his claim that he received a constructive denial of counsel, Fortie alleges:
the strained relationship between counsel, [T]he trial court[,] and client was evident. From the failure to request that voir dire be recorded and ensure that the voir dire oath was properly administered under OCGA § 15-12-132;[42] to the failure to *17 object to the lead witness remaining in the courtroom after sequestration; to the critical failure of obtaining an expert to show that all the letters in Exhibit #52 were not written by the same hand, the failures multiplied exponentially the errors set forth in [the other sections] of [his] brief. Such actions are antithetical to the "zealous and active" defense envisioned by the Sixth Amendment or the level playing field envisioned by the Fourteenth Amendment.
"As in Cronic, [Fortie] has not demonstrated a breakdown in the adversarial process that would justify a presumption that his conviction was insufficiently reliable to satisfy the Constitution."[43] The deficiencies that Fortie allegesfailure to obtain an expert and failure to object to a witness remaining in the courtroom following sequestrationare "precisely the type of shortcomings that courts routinely subject to a prejudice analysis."[44]
Case No. A09A0358
5. Waller alleges that the trial court erred in failing to instruct the jury on his sole defense of coercion and duress. We agree.
Under OCGA § 16-3-26, which defines the defense of coercion, "[a] person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury." Coercion is an affirmative defense.[45] In order to establish an evidentiary basis for a statutory affirmative defense, the defendant must admit all of the elements of the crime charged except intent.[46]
Here, the evidence supported a jury instruction on coercion. Waller admitted at trial that he exited the car, donned a stocking on his head, entered the bank, remained there while Mathis wielded a gun and demanded money from the teller, and then got into the getaway car. By such testimony, Waller has admitted the elements of armed robbery as a party to the crime.[47] Since Waller testified that he committed such acts because Mathis pointed a gun at him and threatened to shoot him or his family, he was entitled to a jury charge on coercion, and the trial court erred in failing to so instruct the jury, even in the absence of a request by Waller.[48] And we cannot conclude that the failure to give the charge was harmless.[49] Accordingly, we reverse Waller's conviction.
6. Based on our holding in Division 5, we do not address Waller's remaining enumerations.
Judgments affirmed in Case Nos. A09A0215 and A09A0308. Judgment reversed in Case No. A09A0358.
BLACKBURN, P.J., and ADAMS, J., concur.
NOTES
[1] OCGA § 16-8-41(a).
[2] Id.
[3] OCGA § 16-11-106(b).
[4] OCGA § 16-10-24(a).
[5] A fourth co-defendant, Tonya Jackson, entered a plea to robbery prior to the joint trial of the other three individuals.
[6] See Moore v. State, 274 Ga.App. 432, 618 S.E.2d 122 (2005).
[7] See id.
[8] See Court of Appeals Rule 25(c)(2).
[9] See Palmer v. State, 286 Ga.App. 751, 754(2), 650 S.E.2d 255 (2007); Johnson v. State, 266 Ga.App. 898, 900(2), 598 S.E.2d 551 (2004).
[10] (Citation omitted.) Johnson, 266 Ga.App. at 900(2), 598 S.E.2d 551.
[11] Mathis's brief does not contain citations to the record to show that he moved to sever his trial or that the trial court ruled on such a motion. We remind counsel that "Court of Appeals Rule 25(c)([2]) provides that each enumerated error must be supported in the brief by specific reference to the record or transcript. As we have reiterated time and time again, this Court will not cull the record in search of error on behalf of a party." (Punctuation omitted.) Gardner v. State, 289 Ga.App. 359, 360, 657 S.E.2d 288 (2008). Nevertheless, because the State concedes that the trial court denied Mathis's motion to sever, we exercise our discretion to review this argument on the merits.
[12] (Citation and punctuation omitted.) Thomas v. State, 274 Ga. 156, 158(2), 549 S.E.2d 359 (2001).
[13] (Punctuation omitted.) Rivers v. State, 283 Ga. 1, 4(2), 655 S.E.2d 594 (2008).
[14] Id.
[15] In his brief, Mathis summarily contends that the letters from Fortie to Jackson incriminated Mathis. Although he lists the exhibit number for the letters in his brief, Mathis failed to indicate which of the 32 pages of handwritten letters are inculpatory or to specify how they incriminate him. "It is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record. [Mathis] has not met his burden and it is not the function of this court to cull the record on behalf of a party in search of instances of error." (Punctuation omitted.) Walker v. State, 296 Ga.App. 531, 537(2)(b), 675 S.E.2d 270 (2009). Moreover, based on our review of the letters, we do not find them to clearly inculpate Mathis. See Metz v. State, 284 Ga. 614, 617(2)(a), 669 S.E.2d 121 (2008) (severance not mandated based on introduction of custodial statements made by a nontestifying co-defendant that did not directly inculpate the defendant); Wilkins v. State, 266 Ga. 278, 279(2)(a), 466 S.E.2d 592 (1996) (severance not required because the statements of the nontestifying co-defendant did not clearly implicate the defendant).
[16] Jefferson v. State, 157 Ga.App. 324, 326(2), 277 S.E.2d 317 (1981).
[17] Taylor v. State, 272 Ga. 559, 561(2)(c), 532 S.E.2d 395 (2000).
[18] (Punctuation omitted.) Nelson v. State, 204 Ga.App. 409, 410(2), 419 S.E.2d 502 (1992).
[19] Kellibrew v. State, 239 Ga.App. 783, 786(3), 521 S.E.2d 921 (1999).
[20] See Taylor, 272 Ga. at 561(2)(c), 532 S.E.2d 395; Kellibrew v. State, 239 Ga.App. at 786(3), 521 S.E.2d 921; Nelson, 204 Ga.App. at 410, 419 S.E.2d 502.
[21] (Citations and punctuation omitted.) Garner v. State, 180 Ga.App. 146, 147(1), 348 S.E.2d 690 (1986). See also Gant v. State, 291 Ga.App. 823, 826(2), 662 S.E.2d 895 (2008); Sweeney v. State, 233 Ga.App. 862, 865(4), 506 S.E.2d 150 (1998).
[22] The record does not indicate precisely how many officers were present in the courtroom.
[23] (Emphasis supplied.)
[24] Young v. State, 269 Ga. 478, 479(2), 499 S.E.2d 60 (1998).
[25] See id.; Brown v. State, 240 Ga.App. 321, 323-324(2), 523 S.E.2d 333 (1999); Thrasher v. State, 204 Ga.App. 413, 414(3), 419 S.E.2d 516 (1992). Compare McKenzey v. State, 138 Ga. App. 88, 90(1)(b), 225 S.E.2d 512 (1976) (physical precedent only) (judgment reversed because the jury saw the defendantwho presented no apparent security riskin handcuffs and the trial court did not instruct the jury that the fact that he was handcuffed was to have no bearing on its deliberations).
[26] Campbell v. State, 231 Ga. 69, 74(2), 200 S.E.2d 690 (1973).
[27] See id.; McCrary v. State, 274 Ga.App. 5, 6(2), 616 S.E.2d 222 (2005).
[28] See Division 1(c)(ii).
[29] See McBee v. State, 296 Ga.App. 42, 46(2)(b), 673 S.E.2d 569 (2009); Slmbey v. State, 288 Ga.App. 717, 718, 655 S.E.2d 223 (2007); Court of Appeals Rule 25(a)(1) ("[t]he brief of appellant shall ... contain ... the citation of such parts of the record or transcript essential to a consideration of the errors complained of"); Court of Appeals Rule 25(a)(3) ("[t]he brief of appellant shall ... contain the argument and citation of authorities"); Court of Appeals Rule 25(c)(2) ("[a]ny enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned").
[30] Thus, contrary to Fortie's assertion in his brief, there is no evidence that the witness circulated photographs of any defendant except for Mathis.
[31] Scott v. State, 227 Ga.App. 900, 903(5), 490 S.E.2d 208 (1997).
[32] See id.; Owens v. State, 213 Ga.App. 693, 694(2), 445 S.E.2d 818 (1994) (trial court did not abuse its discretion in denying a mistrial on the grounds that a witness violated the rule of sequestration because defendant failed to show harm resulting from such violation).
[33] Fortie alleges for the first time on appeal that the number of defendants created confusion of the law and the evidence, and that the admission of evidence admissible against one defendant was improperly considered against him. As we held in Division 1(b), Fortie's failure to demonstrate that he raised these arguments before the trial court precludes our review thereof.
[34] (Citation and punctuation omitted.) Wallace v. State, 267 Ga.App. 801, 804-805(2), 600 S.E.2d 808 (2004).
[35] (Punctuation omitted.) Rivers, 283 Ga. at 4(2), 655 S.E.2d 594.
[36] Id.
[37] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[38] (Citation and footnotes omitted.) Crane v. State, 294 Ga.App. 321, 323(1), 670 S.E.2d 123 (2008).
[39] 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
[40] Id. at 659-660, 104 S.Ct. 2039.
[41] (Citations and punctuation omitted.) Turpin v. Curtis, 278 Ga. 698, 699(1), 606 S.E.2d 244 (2004).
[42] At the hearing on his motion for new trial, Fortie specifically withdrew his argument regarding the oath to the jurors. Thus, we are puzzled by his inclusion of this issue in his appellate brief, given his clear abandonment of the argument below.
[43] (Punctuation omitted.) Lyons v. State, 271 Ga. 639, 640(2), 522 S.E.2d 225 (1999).
[44] (Punctuation omitted.) Crane, 294 Ga.App. at 324(1)(a), 670 S.E.2d 123. See also Peeler v. State, 286 Ga.App. 400, 403(2)(a), 649 S.E.2d 775 (2007) (applying Strickland test to claim of ineffective assistance of counsel based on trial counsel's failure to obtain an expert); Bolick v. State, 244 Ga.App. 567, 571(1)(e), 536 S.E.2d 242 (2000) (applying Strickland test to claim of ineffective assistance of counsel based on trial counsel's failure to object to the State's request to allow a detective to remain at the prosecution table after the rule of sequestration was invoked).
[45] See OCGA §§ 16-3-26; 16-3-28; Olarte v. State, 273 Ga.App. 96, 101(2)(d), 614 S.E.2d 213 (2005).
[46] See Manders v. State, 281 Ga.App. 786, 790(3), 637 S.E.2d 460 (2006); Olarte, 273 Ga. App. at 101(2)(d), 614 S.E.2d 213.
[47] See OCGA § 16-2-21 ("[a]ny party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto"); Cox v. State, 293 Ga.App. 98, 100(1), 666 S.E.2d 379 (2008).
[48] See Wilson v. State, 255 Ga.App. 497, 499(2), 565 S.E.2d 847 (2002) ("a trial court is required to charge the jury on the defendant's sole defense, even without a written request, if some evidence has been presented to support the charge").
[49] See McBurnette v. State, 236 Ga.App. 398, 399, 512 S.E.2d 298 (1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327605/ | 684 S.E.2d 372 (2009)
300 Ga. App. 249
CITY OF CHICKAMAUGA
v.
HENTZ.
No. A09A2099.
Court of Appeals of Georgia.
September 25, 2009.
*373 Williams, Morris & Waymire, Gary K. Morris, for appellant.
William D. Hentz, for appellee.
JOHNSON, Presiding Judge.
Vicki Hentz sued the City of Chickamauga for personal injuries, pain and suffering, lost wages, and medical expenses after she fell while walking on a City-owned "recreational walkway surrounding Gordon Lee Memorial High School . . . used by members of the Chickamauga community for exercising, walking and jogging." The City moved for judgment on the pleadings, arguing that Hentz's claims were barred by the Recreational Property Act ("RPA").[1] Hentz filed a response to the City's motion and, five months later, amended her complaint to strike the original paragraphs that described the walkway as being for "recreational purposes" and to insert paragraphs describing the walkway as merely a sidewalk used for pedestrian travel. Subsequently, the trial court denied the City's motion, but certified the order for immediate review. We granted the City's application for interlocutory review to determine whether the RPA shields it from liability. Because we find that the RPA applies in this case and that the trial court, therefore, erred in denying the City's motion for judgment on the pleadings, we reverse.
We first address Hentz's argument that the City waived its right to complain of the judgment by not renewing its motion for judgment on the pleadings after Hentz filed her amended complaint. Although the complaint was amended after the City filed its motion for judgment on the pleadings, the amendment did not materially change Hentz's cause of action. It is thus immaterial that there was no renewal of the motion after the amendment.[2]
The purpose of the RPA is to encourage landowners to make their land available for public recreational use by limiting landowners' liability toward persons entering the land for recreational purposes.[3] To that end, the RPA provides that owners of land used for recreational purposes generally owe no duty to the public to keep the premises safe or to warn of dangerous conditions:
[A]n owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.[4]
Moreover, OCGA § 51-3-23 specifically provides:
. . . [A]n owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or
(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.
*374 Here, Hentz expressly alleged in her original complaint that the City owns and maintains a recreational walkway that surrounds Gordon Lee Memorial High School. She further stated that the walkway is used by members of the Chickamauga community for exercising, walking, and jogging, that the City "has posted signs encouraging use of the walkway for such purposes," and that the City has "built and maintained workout stations alongside the walkway," thus "promot[ing] said walkway as a place of community fellowship so as to encourage persons to become tax-paying residents of Chickamauga." These statements establish that the walkway is used for recreational purposes.
The fact that Hentz subsequently amended her complaint in an attempt to create a question of fact regarding whether the walkway is subject to the RPA is of no legal consequence. Hentz cannot simply withdraw harmful admissions and replace them with statements that support her cause of action, such as the walkway is merely an ingress and egress for the school and is only incidentally used by persons in the evening who walk for pleasure. Such statements do not alter the legal effect of Hentz's previous in judicio admissions.[5]
It is well settled that statements in pleadings are admissible against the party making them.[6] Where a factual allegation is contained in a pleading, from which inferences may be drawn beneficial to the opposite party, the allegation is to be treated as evidence in the record in the opposite party's favor.[7] Thus, the City may avail itself of allegations or admissions Hentz made in her original complaint that bring her cause of action within the RPA.
Moreover, even if the original complaint is disregarded, the averments of the amended complaint establish that the walkway falls within the ambit of the RPA. Georgia courts have defined "recreational purposes" very broadly.[8] Surely the term encompasses a path on which the city has taken the trouble to build an exercise station to encourage recreational fitness activity. Taking as true the facts alleged in Hentz's amended complaint, the walking path on which she fell was used for recreational purposes, and the City therefore is not liable for her injuries. The trial court erred in denying the City's motion for judgment on the pleadings.
Judgment reversed.
ELLINGTON and MIKELL, JJ., concur.
NOTES
[1] OCGA § 51-3-20 et seq.
[2] See Hunter v. A-1 Bonding Svc., 118 Ga.App. 498, 499(1), 164 S.E.2d 246 (1968); compare Pitman v. Pitman, 215 Ga. 585, 589(1), 111 S.E.2d 721 (1959).
[3] OCGA § 51-3-20; North v. Toco Hills, Inc., 160 Ga.App. 116, 117, 286 S.E.2d 346 (1981).
[4] OCGA § 51-3-22. There are two exceptions to this limited liability, neither of which applies here. See OCGA § 51-3-25.
[5] See Richmond County v. Sibert, 218 Ga. 209, 212(1)(a), 126 S.E.2d 761 (1962) (even after admission in judicio is withdrawn, it remains as evidence in the case).
[6] See OCGA § 24-3-30; First Support Svcs. v. Trevino, 288 Ga.App. 850, 852(2), 655 S.E.2d 627 (2007).
[7] See OCGA § 24-3-30; Weekes v. Nationwide Gen. Ins. Co., 232 Ga.App. 144, 149(3)(b), 500 S.E.2d 620 (1998).
[8] Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 115(1)(a), 537 S.E.2d 345 (2000) (the RPA does not apply only to land used for the activities specified in the statute, "but encompasses any recreational activity, i.e., any amusement, play or other form of relaxation which refreshes the mind or body"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327838/ | 451 S.E.2d 293 (1994)
John L. BUFORD and Betty Tate Buford
v.
GENERAL MOTORS CORPORATION.
No. 526PA93.
Supreme Court of North Carolina.
December 30, 1994.
*294 Moore and Brown by B. Ervin Brown, II, David B. Puryear, Jr., and R.J. Lingle, Winston-Salem, for plaintiff-appellants.
Petree Stockton, L.L.P. by Richard J. Keshian and Julia C. Archer, Winston-Salem, for defendant-appellee.
WHICHARD, Justice.
This case arises out of plaintiffs' purchase of a 1989 Chevrolet Suburban and requires us to interpret North Carolina's New Motor Vehicles Warranties Act (hereinafter the "Lemon Law"), N.C.G.S. §§ 20-351 through -351.10 (1993), for the first time. Plaintiffs bought their vehicle from Parks Chevrolet, Inc., an authorized dealer of General Motors automobiles, on 24 February 1989. They paid $23,066.00, $16,000.00 of which they financed. They were current on their finance payments of $357.59 per month. The General Motors warranty applicable to the Suburban covers the entire vehicle for up to three years or 50,000 miles, whichever comes first. Warranted repairs are free during the first year or up to 12,000 miles. After that point the consumer pays a $100 deductible fee per repair until the warranty expires. Plaintiffs put 12,000 miles on their vehicle within three months of their purchase. Plaintiff-husband uses it to haul heavy machinery to job sites from which he removes hazardous wastes such as lead and asbestos.
Plaintiff-husband testified that he first noticed problems with his new vehicle as he drove it home from Parks Chevrolet the day he bought it. He found the vehicle difficult to start and heard the doors and windows rattling. The first time it rained, he noticed that the tailgate leaked. Additionally, the defroster blew air in the wrong direction, and the windshield wipers sprayed water onto the hood instead of the windshield.
Plaintiffs returned their vehicle to Parks Chevrolet for its first repairs on 2 March 1989, one week after their purchase. Over the course of the next three years, plaintiffs returned the vehicle to Parks Chevroletor, after they moved to Pennsylvania, to Day Chevrolet in Pittsburghfor repairs on at least thirty-one different occasions. Because of the numerous repair attempts, plaintiffs' Suburban was out of commission for more than forty days during the first year of ownership.
*295 The primary problems plaintiffs reported included continuous shaking and vibration of the doors, windows, and body panels, excessive brake wear, wind passing through the doors and windows, and dashboard vents blowing air the wrong way. The vents and windshield washers had been repaired by the time of trial, while the fit of the doors and windows had not been corrected to plaintiffs' satisfaction despite several attempts. At the time of trial, plaintiffs had replaced the brakes five times in the 88,000 miles they had driven the vehicle. Plaintiffs also experienced problems with items not covered under the General Motors warranty, such as the spoiler on the hood and the wiring on the running board, both of which Parks Chevrolet installed.
After approaching Parks Chevrolet's service manager about the problems, plaintiff-husband met with the owner, Richard C. Parks, in March or April 1989. Plaintiffhusband testified that Parks offered him four options: live with the problems; trade in the vehicle and take the loss; go to arbitration; or go to court. He also testified that Parks told him that "quality is lacking in those Suburbans." Plaintiff-husband declined to utilize General Motors' arbitration system after learning from Parks and the Better Business Bureau in Pittsburgh that consumers receive little satisfaction from that procedure. He further testified that Parks did not offer to replace the Suburban or to refund plaintiffs' money.
Plaintiffs contacted an attorney, J. Bruce Mulligan, who wrote to Parks Chevrolet on 10 November 1989, restating plaintiffs' complaints and stating that the vehicle fell within the Lemon Law. The letter noted three specific defects that both Parks Chevrolet and Day Chevrolet had been unable to repair:
(1) the heating and air conditioning controls and vent system; (2) the fitting of the doors, particularly the driver's door and numerous vibrations in the body, which is ill-fitting; (3) a continuous grinding noise in the rear end which has resulted in two complete brake replacements in less than 30,000 miles for the vehicle.
Neither this letter nor Mulligan's phone calls to Chevrolet's Customer Assistance Division and General Motors Corporation generated a response. On 20 February 1990 Mulligan wrote to both the Customer Assistance Division and General Motors stating plaintiffs' intent to file suit under the Lemon Law if the matter was not resolved.
On 1 March 1990 John Lyles, the Division Manager at the Charlotte branch of Chevrolet Motor Division, replied to Mulligan, informing him that personnel in the Pittsburgh branch would handle the matter because plaintiffs lived in Pennsylvania at that time. Additionally, Lyles called plaintiff-husband around 9 March 1990. He offered, on behalf of Chevrolet Motor Division, to have plaintiffs' Suburban inspected at Day Chevrolet by a General Motors representative. He also offered the use of a rental car free of charge during the inspection. He testified that plaintiff-husband refused to allow any inspection and hung up on him. Mulligan eventually wrote to George Evanich, the Division Manager at the Pittsburgh branch of Chevrolet Motor Division, and reported that plaintiff-wife had made an appointment in April to have the Suburban inspected.
On 23 April 1990 Art Matlack, a Chevrolet Technical Analysis Expert, inspected plaintiffs' Suburban. At that time plaintiffs had driven the vehicle about 50,000 miles. Matlack performed minor repairs and adjustments, such as replacing bearings, aligning the hood, and adjusting mirrors. Some conditions plaintiffs complained offor example, wind entering the vehicle around the door frame on the driver's sidedid not occur during his testing and inspection. He completed all repairs at no charge to plaintiffs. Evanich sent the results of the inspection to Mulligan on 3 May 1990, and explained in his letter that "the vehicle returned to [plaintiff-husband] on April 27, 1990, was in the opinion of Chevrolet Motor Division free of all defects which would affect the operation, safety, or merchantability of this vehicle." General Motors did not offer to replace the vehicle or refund plaintiffs' money.
Plaintiffs filed suit in Superior Court, Forsyth County, on 13 March 1991, alleging that General Motors had unreasonably refused to *296 comply with the Lemon Law by failing to either refund their purchase price or replace the defective vehicle as required under the Act, and was therefore liable to plaintiffs for monetary damages. One month after the filing, Lyles himself performed a second inspection of the plaintiffs' Suburban. He tried to examine all seventeen problems listed by plaintiffs through discovery. However, plaintiff-husband cut Lyles' inspection short, indicating that he could wait no longer for Lyles to finish.
As of the date of Lyles' inspection, only two of the primary problems alleged by plaintiffs remainedthe fit and finish of the body and premature brake wear. Plaintiffs concede that defendant had repaired the heating and ventilation system to their satisfaction. Lyles examined the three aspects of the vehicle's fit and finish that plaintiffs complained of: a misaligned hood; rattling windows; and an ill-fitting door on the driver's side. He found that a spoiler on the hood, not installed by General Motors, affected the hood's alignment, making it difficult to close and causing some vibration. That condition, however, did not fall within the coverage of the General Motors warranty because the company neither manufactured nor installed the spoiler.
During his test drive, Lyles listened for a rattling noise from the windows on the driver's side. He heard no such noise, but did testify that he was unclear about the nature of the alleged noise because plaintiff-husband refused to communicate about his complaints. Finally, Lyles examined the vehicle's body in search of defects in the alignment of the door on the driver's side. After taking photographs from several different angles, he performed two standard tests during his test drive to determine the point at which air might enter the vehicle. First, he lit a cigarette and traced the door frame. When doors are misaligned or otherwise ill-fitting, cigarette smoke will be drawn out of a vehicle while the smoker is driving. Next he put his hand around the frame in an effort to feel air entering the passenger cabin. Lyles discovered no air coming in around the door frame as a result of either test. He concluded from his inspection that any problems with the suburban's fit and finish were minor imperfections to be expected on vehicles. He testified that eight out of ten 1989 Suburbans would have similar imperfections. He found no defects that could substantially impair the value of plaintiffs' vehicle.
As to brake wear, Lyles testified that the General Motors warranty does not cover that condition because it depends on the owners' care and use of the vehicle. He further testified that hauling heavy loads causes brakes to wear out more quickly than normal because a vehicle's stopping distance and the pressure needed on the brakes increase with the weight of the vehicle. Given the use plaintiff-husband made of his Suburban, Lyles did not seem surprised that the brakes wore out fairly quickly.
The case was tried to a jury during the 30 March 1992 session of Superior Court, Forsyth County. At the close of all the evidence, defendant moved for, and the trial court granted, a directed verdict in favor of defendant on the issue of whether it had unreasonably refused to comply with the Lemon Law. The court submitted two issues to the jury: whether plaintiffs' Suburban contained uncorrected defects that substantially impaired its value; and if so, what amount of damages plaintiffs should receive from defendant. The jury answered the first question in the affirmative and returned a verdict for plaintiffs in the amount of $20,766.00. The trial court entered judgment on 6 April 1992 for that amount, but conditioned plaintiffs' receipt of their damages on the return of the Suburban to General Motors. The trial court denied plaintiffs' motion for attorney's fees filed pursuant to N.C.G.S. § 20-351.8(3). On 4 May 1992 plaintiffs filed notice of appeal from the portion of the judgment that required return of the vehicle and from the denial of their motion for attorney's fees.
Defendant filed a Motion to Amend Judgment on 13 April 1992, requesting the trial court to add the following sentence to its judgment: "In the event plaintiffs fail to return the vehicle and proper title within thirty (30) days of the judgment, the judgment shall be offset by the fair market value of a 1989 Chevrolet Suburban as of April 6, *297 1992." The trial court granted defendant's motion and entered a supplemental judgment on 11 May 1992, ordering that the damages awarded to plaintiffs be offset by the difference between the book value of a 1989 Suburban as of 6 April 1992 and as of the date on which plaintiffs tendered the vehicle and proper title to General Motors. Plaintiffs filed notice of appeal from the supplemental judgment on 14 May 1992.
The Court of Appeals reversed the trial court's directed verdict on the issue of defendant's unreasonable noncompliance and ordered a partial new trial, holding that whether General Motors unreasonably failed to comply with the Lemon Law is a question for the jury, not the trial court. It also vacated the trial court's judgment to the extent it conditioned recovery of damages on the return of the vehicle to General Motors. Finally, the court vacated the supplemental judgment on the grounds that the trial court lacked jurisdiction to enter it.
On 27 January 1994 this Court allowed defendant's petition for discretionary review, 112 N.C.App. 437, 435 S.E.2d 782. For reasons that follow, we now reverse the Court of Appeals.
Defendant first contends the Court of Appeals erred when it reversed the trial court's directed verdict in defendant's favor on the issue of whether defendant acted unreasonably so as to warrant treble damages under the statute. At trial the court refused to submit to the jury the issue of whether General Motors unreasonably refused to comply with the Lemon Law during its course of dealing with plaintiffs. The Court of Appeals reversed the trial court, holding that whether a manufacturer unreasonably refused to comply with the law is a question for the jury when substantial evidence exists to support the contention. Additionally, the Court of Appeals remanded the case for a new trial solely on this issue. Defendant now argues that the trial court correctly directed a verdict in its favor. We agree, and accordingly reverse the Court of Appeals on this issue.
The portion of the Lemon Law that provides for treble damages states:
In any action brought under this Article, the court may grant as relief:
. . . . .
(2) Monetary damages to the injured consumer in the amount fixed by the verdict. Such damages shall be trebled upon a finding that the manufacturer unreasonably refused to comply with G.S. 20-351.2 or G.S. 20-351.3.
N.C.G.S. § 20-351.8(2) (1993). During the charge conference, the trial court stated, "I haven't heard any evidence from anybody that shows that the defendant ... in any way... unreasonably refused to comply. Looks like they [did] everything in the world they could do; continued to make repairs, [did] repairs outside the warranty." For those reasons, the court refused to submit to the jury the issue of whether General Motors acted unreasonably, and granted defendant's motion for a directed verdict.
A directed verdict is improper if the evidence, viewed in a light most favorable to the non-moving party, is legally sufficient to send the issue to the jury. Taylor v. Walker, 320 N.C. 729, 733-34, 360 S.E.2d 796, 799 (1987); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 337-38 (1985). It is proper when, as a matter of law, plaintiffs cannot recover upon any view of the facts established by the evidence. Taylor, 320 N.C. at 734, 360 S.E.2d at 799. Though the party who moves for a directed verdict bears a heavy burden, id., we conclude that defendant met this burden here.
Defendant first learned of plaintiffs' complaints through Mulligan's letter of 20 February 1990, one year after plaintiffs bought their vehicle. It responded to that letter by mail on 1 March 1990, only nine days later. It performed two independent inspections, one as a result of the communication with Mulligan and another after plaintiffs filed their suit. Defendant performed the minor repairs and adjustments necessary during the first inspection, all free of charge. Lyles found no defects that substantially impaired the value of the Suburban during his inspection and test drive, but testified that he would have corrected any defects he found. Despite these findings, defendant offered to *298 settle the lawsuit and avoid publicity by paying the damages allowed under the Lemon Law in exchange for possession of, and title to, the vehicle. Plaintiffs refused.
All the evidence thus leads to the conclusion that defendant acted reasonably and in good faith throughout its course of dealing with plaintiffs. The only suggestion of unreasonableness is plaintiffs' allegation that defendant should have, but never did, offer them a replacement or refund. This is not legally sufficient, even when taken as true, to send the issue to the jury. Defendant cooperated with plaintiffs and addressed their concerns in a prompt and honest manner as soon as it was notified of their dissatisfaction. Defendant reasonably concluded, as a result of two inspections and several tests, that the condition of plaintiffs' vehicle did not warrant paying them a full refund or supplying them with a replacement vehicle. The trial court thus correctly directed a verdict in defendant's favor on the issue of whether defendant unreasonably failed or refused to comply with the Lemon Law, and the Court of Appeals erred when it reversed the directed verdict and ordered a new trial on this issue.
Defendant next argues that the Court of Appeals erred by holding that the trial court abused its discretion when it denied plaintiffs' motion for attorney's fees. We agree, and accordingly reverse the Court of Appeals on this issue.
Attorney's fees are available as a remedy under N.C.G.S. § 20-351.8(3), which provides:
In any action brought under this Article, the court may grant as relief:
. . . . .
(3) A reasonable attorney's fee for the attorney of the prevailing party, payable by the losing party, upon a finding by the court that:
a. The manufacturer unreasonably failed or refused to fully resolve the matter which constitutes the basis of such action; ....
The trial court denied plaintiffs' motion for an award of attorney's fees pursuant to this provision as well as plaintiffs' Motion to Amend Judgment, filed in part on the grounds that the court failed to award a reasonable attorney's fee. The Court of Appeals ordered the trial court to "consider plaintiffs' entitlement to attorney's fees in light of the jury's verdict [on remand] on the issue of whether General Motors unreasonably refused to comply with the Warranty Act." We hold that this order was erroneous.
The statute places an award of attorney's fees within the discretion of the trial court. We will not second-guess a trial court's exercise of its discretion absent evidence of abuse. An abuse of discretion occurs only when a court makes a patently arbitrary decision, manifestly unsupported by reason. State v. Locklear, 331 N.C. 239, 248-49, 415 S.E.2d 726, 732 (1992); Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986). In reviewing the trial court's denial of plaintiffs' motion for attorney's fees, we must determine whether it could "have been the result of a reasoned decision." State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985). We conclude that the trial court exercised its discretion in a rational and reasonable manner. Both reason and the evidence supported denial of the motion.
As noted above, defendant responded to both plaintiff-husband and his attorney within two weeks of the attorney's letter to defendant. It arranged to have the Suburban inspected, conducted the inspection over a four-day period, and repaired all defects found during that inspection free of charge. It supplied a rental car for plaintiffs' use during those four days, also free of charge. A second inspection occurred after plaintiffs filed their lawsuit, during which the vehicle was test driven and visually examined. Finally, in December 1991 defendant offered to accept return of the Suburban and pay plaintiffs their refund under the Lemon Law. Defendant thus acted altogether reasonably from the time it learned of plaintiffs' complaints about their vehicle. No evidence tends to show an unreasonable refusal or failure to resolve the matter. The trial court thus did not abuse its discretion when it denied plaintiffs' motion for attorney's fees under N.C.G.S. § 20-351.8(3).
*299 Defendant also contends the Court of Appeals erred by vacating the portion of the trial court's judgment which conditioned plaintiffs' recovery of damages on their return of the vehicle to defendant. It argues that the Court of Appeals' ruling confers a double recovery and a windfall on the plaintiffs. We agree, and accordingly reverse the Court of Appeals on this issue.
A consumer who buys a new motor vehicle may exercise either of two options when that vehicle contains defects that the manufacturer cannot repair or correct: request a comparable new vehicle or request a refund of the contract price, finance charges, collateral charges, and incidental and consequential damages. N.C.G.S. § 20-351.3(a). If the consumer chooses a refund, he must return the vehicle to the manufacturer. Id. The manufacturer is entitled to a reasonable allowance for the consumer's use of the vehicle if the consumer chooses a refund. Id. § 20-351.3(c).
Plaintiffs argue that the recovery of damages pursuant to a jury verdict, unlike a manufacturer's refund, does not require the return of the vehicle. We disagree, and hold that when a consumer receives a refund under the Lemon Law, whether by request pursuant to section 20-351.3(a) or through judicial action, the consumer may not retain the defective vehicle. This result is consistent with the language of the Act, see id. § 20-351.3(a), and best achieves its purposes.
Plaintiffs rely on N.C.G.S. § 20-351.8 in support of their position. They contend they are entitled to keep their Suburban as well as the $20,766 in damages because this provision does not expressly condition the recovery of monetary damages on return of the defective vehicle. Section 20-351.8 provides, in pertinent part:
In any action brought under this Article, the court may grant as relief:
(1) A permanent or temporary injunction or other equitable relief as the court deems just;
(2) Monetary damages to the injured consumer in the amount fixed by the verdict. Such damages shall be trebled upon a finding that the manufacturer unreasonably refused to comply with G.S. 20-351.2 or G.S. 20-351.3. The jury may consider as damages all items listed for refund under G.S. 20-351.3....
The relevant portion of section 20-351.3 states:
(a) When the consumer is a purchaser..., if the manufacturer is unable, after a reasonable number of attempts, to conform the motor vehicle to any express warranty by repairing or correcting ... any defect or condition or series of defects or conditions which substantially impair the value of the motor vehicle to the consumer, ... the manufacturer shall, at the option of the consumer, replace the vehicle with a comparable new motor vehicle or accept return of the vehicle from the consumer and refund to the consumer the following:
(1) The full contract price including, but not limited to, charges for undercoating, dealer preparation and transportation, and installed options, plus the non-refundable portions of extended warranties and service contracts;
(2) All collateral charges, including but not limited to, sales tax, license and registration fees, and similar government charges;
(3) All finance charges incurred by the consumer after he first reports the nonconformity to the manufacturer, its agent, or its authorized dealer; and
(4) Any incidental damages and monetary consequential damages.
The remedies provision, section 20-351.8, by referring directly to section 20-351.3, fully incorporates the amount and type of relief available at the consumer's option into a jury's calculation of monetary damages. Plaintiffs attempt to avoid such incorporation by arguing that the directions to the jury in the last sentence of N.C.G.S. § 20-351.8(2) are only permissive, and therefore do not mandate return of the vehicle. We disagree. That subsection is ambiguous to the extent it does not expressly address the subject of retention of the vehicle. Therefore, we must use rules of statutory construction to resolve the ambiguity. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d *300 134, 136-37 (1990) ("[W]here a statute is ambiguous, judicial construction must be used to ascertain the legislative will."); N.C. Baptist Hospitals, Inc. v. Mitchell, 323 N.C. 528, 532, 374 S.E.2d 844, 846 (1988) (same principle).
We begin this process by determining the intent underlying the legislation. Black v. Littlejohn, 312 N.C. 626, 630, 325 S.E.2d 469, 473 (1985); In re Kapoor, 303 N.C. 102, 106, 277 S.E.2d 403, 407 (1981); In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371 (1978) (The "primary rule of construction [is] that the intent of the Legislature controls."). We determine that intent not only from the express language used, "but also from the [provision's] nature and purpose, and the consequences which would follow its construction one way or another." Art Society v. Bridges, State Auditor, 235 N.C. 125, 130, 69 S.E.2d 1, 5 (1952).
The Lemon Law has several purposes. It protects consumers who purchase defective new vehicles. It also encourages private settlement between such consumers and manufacturers, as revealed by section 20-351.3(a). The reference in section 20-351.8(2) to section 20-351.3(a) discloses a legislative intent to treat jury verdicts as refunds. Finally, the Act seeks a fair result that neither unduly benefits nor unduly burdens either party to a dispute.
Having determined the legislative intent, we must avoid a "construction ... which operates to defeat or impair the object of the statute" if we can do so consistently with the statutory language itself. N.C. Baptist Hospitals, 323 N.C. at 532, 374 S.E.2d at 846; see also In re Hardy, 294 N.C. at 96, 240 S.E.2d at 371. We will eschew a strictly literal construction of a statute that will contravene or impair the goals of the legislation if we can reasonably avoid such a construction without distorting the language. N.C. Baptist Hospitals, 323 N.C. at 533, 374 S.E.2d at 847; In re Banks, 295 N.C. 236, 240, 244 S.E.2d 386, 389 (1978); In re Hardy, 294 N.C. at 95, 240 S.E.2d at 371. Finally, "[w]hether a particular provision in a statute is to be regarded as mandatory or directory depends more upon the purpose of the statute than upon the particular language used." Bridges, 235 N.C. at 130, 69 S.E.2d at 5 (1952); see also Puckett v. Sellars, 235 N.C. 264, 268, 69 S.E.2d 497, 500 (1952) ("`Whether [the word "may" is] merely permissive or imperative depends on the intention as disclosed by the nature of the act in connection with which the word is employed and the context.'" (quoting 2 Lewis' Sutherland, Stat. Const. 1153 § 640)).
Mindful of both the purposes of the statute and these rules of construction, we hold that a consumer may not retain a vehicle for which he has received a refund under the Lemon Law. This rule applies whether the refund arises out of a request by the consumer pursuant to section 20-351.3(a) or out of a judgment for monetary damages. We further hold that the last sentence of N.C.G.S. § 20-351.8(2) requires a jury to refer to the factors listed in § 20-351.3(a) in determining the amount of its award for monetary damages which, as provided in § 20-351.3(a), must provide for the return of the defective vehicle to the manufacturer.
Our conclusions comport with the nature and purpose of the Lemon Law and avoid the undesirable consequences of alternative interpretations. To allow a jury to award both monetary damages and ownership of the vehicle to victorious plaintiffs because of purportedly permissive language in section 20-351.8(2) would impair the goals of the legislation. For example, it would overcompensate successful consumers to the detriment of the manufacturer, and almost certainly to the detriment of other consumers to whom the manufacturer would likely pass the additional expense. Plaintiffs' interpretation of the statute would allow a consumer to receive treble damages and attorney's fees as well as continued ownership of the defective vehicle. Such a recovery would represent an unintended windfall to the consumer, which contravenes the notion that the statute seeks to protect the interests of both consumers and manufacturers. Additionally, such double recovery would create a disincentive to negotiate a private settlement. Consumers who realize they may keep their vehicle and receive a refund if they sue the manufacturer, but not if they resolve the issue without judicial action, would decline to pursue private *301 negotiations with the manufacturer. This would defeat a major purpose of the Lemon Law, the resolution of disputes over defective vehicles without court action. We should avoid such an undesirable result when possible. "If an act is susceptible to more than one construction, the consequences of each are a potent factor in its interpretation, and undesirable consequences will be avoided if possible." Little v. Stevens, 267 N.C. 328, 336, 148 S.E.2d 201, 206 (1966), quoted in Utilities Commission v. Duke Power Co., 305 N.C. 1, 15, 287 S.E.2d 786, 794-95 (1982); see also Commissioner of Insurance v. Automobile Rate Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978) ("In construing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the presumption being that the legislature acted in accordance with reason and common sense and did not intend untoward results."); Puckett, 235 N.C. at 268, 69 S.E.2d at 500 (Courts will not impute a legislative intent "fraught with injustice" when a different construction of the language used "serves to effectuate the objective of the legislation."). Our conclusions, informed by the policies underlying the Lemon Law, are consistent with both the language and the purpose of the statute.
We would reach the same result even without exercising our power of statutory construction. Section 20-351.8(1) provides that a court may grant "equitable relief as the court deems just" in addition to the monetary damages and attorney's fees available to successful plaintiffs. The return of a defective vehicle in exchange for an award of money damages qualifies as equitable relief. Thus the portion of the trial court's judgment requiring plaintiffs to return the Suburban fell squarely within the broad discretion granted trial courts by the statute. We cannot say, given the facts of the case, that the trial court abused its discretion.
The trial court's judgment, which conditioned plaintiffs' receipt of damages on their return of the Suburban, was thus correct under our interpretation of the statute. It protected plaintiffs' interests without awarding them an undeserved windfall or double recovery. Therefore, the Court of Appeals erred when it vacated the judgment.
Defendant further contends the Court of Appeals erred by vacating the trial court's supplemental judgment entered on 11 May 1992. In that judgment the trial court ordered that plaintiffs' award of damages "shall be off-set by the difference between the book value of a 1989 Chevrolet Suburban as of April 6, 1992 and the book value of a 1989 Chevrolet Suburban as of the date on which the vehicle and proper title are tendered to defendant pursuant to the judgment [of 6 April 1992]." The Court of Appeals vacated this judgment because it was entered outside the session during which the case was heard, without the consent of the parties. The defendant contends this was error. We agree, and accordingly reverse the Court of Appeals on this issue.
A superior court generally must enter its judgment "during the term, during the session, in the county and in the judicial district where the hearing was held." State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552, 555 (1984). However, this Court has consistently recognized the authority of the legislature to provide for judicial action out of term. Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, 156, 446 S.E.2d 289, 293 (1994); State v. Humphrey, 186 N.C. 533, 535, 120 S.E. 85, 87 (1923) ("[E]xcept by agreement of the parties or by reason of some express provision of law," judgments may not be entered out of term or out of county.) (emphasis added). There is both statutory and common law authority for the trial court's entry of its supplemental judgment.
First, as noted and discussed in Capital Outdoor, N.C.G.S. §§ 7A-47.1 (1989) and 1A-1, Rule 6(c) (1990) both authorize the entry of judgment out of session. Capital Outdoor, 337 N.C. at 156-58, 446 S.E.2d at 293-95. Section 7A-47.1 provides, in relevant part,
in all matters and proceedings not requiring a jury ... any regular resident superior court judge of the district or set of districts and any special superior court judge residing in the district or set of districts ... may hear and pass upon such *302 matters and proceedings in vacation, out of session or during a session of court.
Defendant's motion for a supplemental judgment did not require a jury. Therefore, the trial court had authority under section 7A-47.1 to enter the judgment outside the 30 March 1992 session in which the case was heard.
The North Carolina Rules of Civil Procedure provide:
The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a session of court. The continued existence or expiration of a session of court in no way affects the power of a court to do any act or take any proceeding, but no issue of fact shall be submitted to a jury out of session.
N.C.G.S. § 1A-1, Rule 6(c) (1990). Under this rule, expiration of the 30 March 1992 session of Superior Court, Forsyth County, had no impact on the trial court's jurisdiction to enter a supplemental judgment on 11 May 1992.
This Court's decision in Housing, Inc. v. Weaver, 305 N.C. 428, 290 S.E.2d 642 (1982), offers further support for the action. We unanimously held in that case that "a trial court may alter or amend a judgment pursuant to Rule 59 ... after the adjournment of the term during which the judgment was entered." Id. at 440, 240 S.E.2d at 649. Rule 59 requires that a motion for a new trial or to amend a judgment be made within ten days of the judgment, but does not prescribe the time for judicial action on the motion. The legislature could not have "intended that [this] specific period[ ] might be curtailed by the adjournment of the term of court at which judgment was rendered. To attribute any such intent to the legislature would vitiate the purpose of [Rule 59]." Id. The trial court entered its original judgment in this case on 6 April 1992. Defendant moved to amend the judgment on 13 April 1992, within the ten-day window provided by Rule 59(e). Thus the trial court had authority, under Housing, Inc., to enter its supplemental judgment based on that motion on 11 May 1992.
Finally, defendant contends the Court of Appeals erred by granting a partial new trial on the issue of whether General Motors unreasonably refused to comply with the Lemon Law. Having determined that plaintiffs are not entitled to a new trial, we need not address this issue.
Accordingly, we reverse the Court of Appeals' decision. The case is remanded to the Court of Appeals with instructions to remand it to the Superior Court, Forsyth County, for reinstatement of that court's judgment and its order and supplemental judgment.
REVERSED AND REMANDED.
WEBB, J., did not participate in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327603/ | 684 S.E.2d 144 (2009)
300 Ga. App. 112
TREFREN et al.
v.
FREEDOM BANK OF GEORGIA.
No. A09A1344.
Court of Appeals of Georgia.
September 17, 2009.
Schreeder, Wheeler & Flint, Philip R. Green, Atlanta, for appellants.
Strickland, Chesnutt & Lindsay, Samuel L. Chesnutt, Winder, for appellee.
DOYLE, Judge.
This case arises from an application for confirmation of a foreclosure sale filed pursuant to OCGA § 44-14-161 by Freedom Bank of Georgia against Robert Trefren, Jennifer Trefren, and Skitts Mountain Development, LLC (collectively "Skitts Mountain"). Skitts Mountain appeals the trial court's final order confirming the sale in the amount of $570,000, challenging the trial court's valuation of the property. Finding no error, we affirm.
The record reveals that Freedom Bank loaned Skitts Mountain $924,446.84 in exchange for a deed to secure debt, conveying a first priority security interest to the Bank in a tract of land consisting of 19 lots in a 32-lot subdivision in Hall County, Georgia.[1] Skitts Mountain defaulted on the loan, and Freedom Bank elected to declare the outstanding debt immediately due and payable. Freedom Bank thereafter foreclosed on the property under a power of sale provision *145 contained in the deed to secure debt. On August 5, 2008, the property was sold at auction to Freedom Bank, the highest bidder, for $570,000.
Freedom Bank then filed the instant application for confirmation of the sale, asking the trial court to find that the foreclosure proceeding was regular and that the property sold for true market value. After a hearing, the transcript of which does not appear in the record, the trial court confirmed the sale, finding that $570,000.00 was fair market value for the property based on the testimony of Freedom Bank's expert.
Value on the date of sale is a factual question to be resolved by the trier of fact. In a proceeding for confirmation of a foreclosure sale of real property, the judge sits as a tri[e]r of fact, and his findings and conclusions have the effect of a jury verdict. Where the trial judge, sitting as the tri[e]r of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.[2]
"A trial court cannot confirm a foreclosure sale . . . unless it is satisfied that the property so sold brought its true market value[]the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so."[3]
1. Skitts Mountain argues that the trial court clearly erred by relying on the valuation testified to by Freedom Bank's expert, who used the bulk-sale valuation method to reach his figure, which deducted carrying costs and expenses before reaching the value. Skitts Mountain maintains that because the expert's valuation was erroneous, there was no competent evidence upon which the trial court could confirm the sale. We disagree.
This Court previously has affirmed confirmation of foreclosure sales even though expenses and carrying costs were used in determining true market value of a property and even when a bulk sale analysis resulted in a lower true market value than an analysis of each individual lot contained on the property.[4]
On appellate review, the test is not whether this court would have accepted appellant's expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.[5]
To support its argument that carrying costs and expenses should not have been considered by the expert in reaching the true market value, Skitts Mountain relies on this Court's decisions in First Nat. Bank, etc. v. Childress-Ross Properties[6] and Wheeler v. Coastal Bank.[7] In Wheeler, this Court reversed the trial court's confirmation of a foreclosure sale because the expert had testified that the value of the property was between $140,000 and $145,000, reasoning that there was no evidence to support the trial court's finding that $127,000 was the true market value.[8] In that case, the expert had also testified that the seller probably would pay $13,000 in closing costs, but the trial court determined that those costs were irrelevant to determine the true market value.[9]
*146 In Childress-Ross, we affirmed a trial court's denial of an application for confirmation because the expert testimony supported the trial court's finding that the foreclosure bid was not true market value.[10] That case involved 12 condominium units, which were handled by 17 different security instruments.[11] The expert testified that the true market value of each of the lots totaled more than the foreclosure sale if sold separately, but the value would be lower if they were sold to a single buyer.[12] This Court explained in a later decision that
the true market values of properties held by multiple security instruments could not be wholesaled in order to compensate for additional expenses incurred in selling the properties individually. Because the properties were handled by separate security instruments, separate loans, separate legal descriptions[,] and separate appraisals, the properties involved in each of the seven foreclosure sales would have to be considered separately.[13]
Essentially, in Childress-Ross and Wheeler, the trial courts lacked expert testimony that would show that the foreclosure bid was equivalent to the true market value of the property at the time of the sale. In this case, however, both Freedom Bank's expert and Skitts Mountain's expert testified to the true market value of the property, and both experts calculated the value by deducting various costs associated with carrying the property. Skitts Mountain's expert testified to a higher true market value, but the trial court gave explicit reasons as to why it found Freedom Bank's expert more credible than Skitts Mountain's expert. Because credibility is the purview of the trial court, we do not disturb credibility determinations on appeal.[14]
As this Court has explained numerous times, "[a]lthough [Skitts Mountain] presents a serious challenge to the means by which [Freedom Bank]'s expert arrived at his opinion as to value, the expert provided the court with the basis for his opinions."[15] Because "it appears that his opinion was not based on sheer speculation, [we] cannot second guess any methodology utilized to reach the opinion."[16] Accordingly, Skitts Mountain's enumeration is without merit.
2. Skitts Mountain argues that we should overrule Fayette Promenade and Marett Properties, because the bulk-sale valuation method does not calculate the true market value of the property, which the trial court is required to do under OCGA § 44-14-161(b).
OCGA § 44-14-161(b) simply states that "[t]he court shall require evidence to show the true market value of the property sold [in foreclosure] and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale." The statute does not preclude any specific method of property appraisal and does not prohibit the deduction of carrying costs or other expenses in calculating the true market value of a property.[17] Although Skitts Mountain argues that Wheeler and Childress-Ross create a blanket rule that under no circumstances may expenses be used in calculating true market value, as explained above, the property involved in those cases differs from the property involved in this case.
Moreover, we note that at the confirmation hearing, Skitts Mountain's expert also deducted carrying costs and other expenses when he appraised the property. Although his estimate of the value of the property was higher than that of Freedom Bank's expert $640,000 as compared to $570,000it supports the trial court's determination that *147 such costs must be accounted for when determining the fair market value of this property, which was comprised of 19 lots in a subdivision, some of which contain partially finished homes.
Accordingly, we decline to overrule Fayette Promenade, and Marett Properties.
Judgment affirmed.
BLACKBURN, P.J., and ADAMS, J., concur.
NOTES
[1] The Trefrens also executed personal guaranties on the loan, upon which they later defaulted.
[2] (Footnote omitted.) Fayette Promenade v. Branch Banking etc. Co., 258 Ga.App. 323, 324, 574 S.E.2d 319 (2002).
[3] (Citations and punctuation omitted.) Cartersville Developers v. Ga. Bank etc., 292 Ga.App. 375, 377, 664 S.E.2d 783 (2008).
[4] See Fayette Promenade, 258 Ga.App. at 325-327, 574 S.E.2d 319; Marett Properties v. Centerbank Mtg. Co., 204 Ga.App. 265, 267, 419 S.E.2d 113 (1992); Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga.App. 646, 340 S.E.2d 216 (1986).
[5] (Punctuation omitted.) Marett Properties, 204 Ga.App. at 267, 419 S.E.2d 113.
[6] 189 Ga.App. 765, 377 S.E.2d 533 (1989).
[7] 182 Ga.App. 112, 354 S.E.2d 694 (1987).
[8] See id. at 113-115(1), 354 S.E.2d 694.
[9] See id. at 113(1), 354 S.E.2d 694.
[10] See Childress-Ross, 189 Ga.App. at 766-767, 377 S.E.2d 533.
[11] See id. at 765-766, 377 S.E.2d 533.
[12] See id. at 766, 377 S.E.2d 533.
[13] (Punctuation omitted.) Fayette Promenade, 258 Ga.App. at 326, 574 S.E.2d 319.
[14] See Wilson v. Prudential Indus. Properties, 276 Ga.App. 180, 181(1), 622 S.E.2d 890 (2005).
[15] Echols v. Edwards, 185 Ga.App. 688, 690(2), 365 S.E.2d 844 (1988).
[16] (Punctuation omitted.) Fayette Promenade, 258 Ga.App. at 327, 574 S.E.2d 319.
[17] See OCGA § 44-14-161(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645947/ | 9 So.3d 626 (2009)
MORGANSTERN
v.
STATE.
No. 2D08-216.
District Court of Appeal of Florida, Second District.
May 22, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262369/ | 900 F.Supp. 663 (1995)
Glenn JONES, Plaintiff,
v.
Donna E. SHALALA, Secretary of Health and Human Services, Defendant.
No. 93 Civ. 7023(DC).
United States District Court, S.D. New York.
September 29, 1995.
*664 *665 Brecher, Fishman, Feit, Heller, Rubin & Tannenbaum, P.C., by Barbara Doblin Tilker, Garden City, New York, for Plaintiff.
Mary Jo White, United States Attorney for the Southern District of New York by Susan D. Baird, Assistant U.S. Attorney, New York City, for Defendant.
MEMORANDUM DECISION
CHIN, District Judge.
Plaintiff Glenn Jones ("Jones") brings this action under section 205(g) of the Social Security Act, as amended (the "Act"), 42 U.S.C. § 405(g), challenging a final determination of the Secretary of Health and Human Services (the "Secretary") that Jones is not entitled to disability insurance benefits under the Act. The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Secretary's determination denying benefits is affirmed.
I. BACKGROUND
A. Prior Proceedings
Jones filed an application for disability insurance benefits on March 5, 1992 (Tr. 50-53),[1] alleging disability due to a lower back injury and other impairments. The application was denied initially and on reconsideration. (Tr. 63-65, 68-70). Jones then requested a hearing before an administrative law judge. This request was granted and a hearing was held on May 20, 1993 before Administrative Law Judge Mark Hecht (the "ALJ"), who considered Jones's petition de novo. (Tr. 23-49). Jones was represented by counsel at the hearing. On June 8, 1993, the ALJ issued a decision finding that Jones was not disabled under the Act and therefore was not entitled to disability insurance benefits. (Tr. 9-17). This decision became the Secretary's final decision when the Appeals Council denied Jones's request for review on August 26, 1993. (Tr. 4-5). Jones then commenced this action seeking a reversal of the *666 Secretary's decision or remand for a new hearing.
B. Facts
Jones was born on April 2, 1955 and is a high school graduate with two years of college credit. (Tr. 27, 29). He has worked as a bus operator, street vendor, tow truck operator, census worker and construction worker. (Tr. 30-31). On September 8, 1988, Jones injured his back when the bus he was operating hit a pothole causing the driver's seat to collapse. (Tr. 32). Upon sustaining the injury, he immediately went to Metropolitan Hospital emergency room, where he was told that he had stiffness and swelling, and was then released. (Id.).
Jones was next treated for his injuries on September 23, 1988 by Dr. Joseph C. Polifrone. (Tr. 117). In his examination, Dr. Joseph Polifrone found limitation of plaintiff's range of motion of the lumbar spine in all directions, limitation in neck movement, spasm in the paravertebral lumbar muscles, pain on movement of the lumbar spine, absence of right Achilles tendon reflex, right calf atrophy, S1 hypalgesia in both feet, loss of normal lordotic lumbar curve, and positive straight leg raising on the right at 45 degrees. (Id.). Dr. Joseph Polifrone conducted follow-up examinations on October 5, November 11, December 9, and December 28, 1988. (Tr. 111-12). During these examinations, Dr. Joseph Polifrone saw signs of S1 radiculopathy, and the doctor's diagnosis was midline disc protrusion or herniation. (Tr. 111). A CT scan performed on January 20, 1989 was inconclusive due to Jones's obesity. (Tr. 116).
Upon referral, Dr. Annarose Polifrone performed a consultative examination upon Jones on December 13, 1988. (Tr. 121-22). This examination revealed a loss of normal lumbar lordotic curve and bilateral paravertebral spasm. (Tr. 121). However, Dr. Annarose Polifrone also noted that Jones had a full active range of motion and good strength in both lower extremities. (Id.).
Dr. Joseph Polifrone saw Jones again two years later on August 8, 1990. After that examination, he diagnosed Jones with lumbar radiculopathy which resulted in "permanent partial disability." Dr. Joseph Polifrone indicated that Jones's injury would preclude him from doing his "usual work" at that time. (Tr. 113). On October 16, 1990, in response to a CUNA Mutual Insurance Society questionnaire, Dr. Joseph Polifrone changed his assessment of Jones's diagnosis to "permanently disabled." (Tr. 93-95). In this questionnaire, Dr. Joseph Polifrone stated that Jones was capable of lifting up to ten pounds occasionally, and was able to sit, stand and walk for up to one hour in an eight-hour work day. (Tr. 94).
Two years after this diagnosis, on December 12, 1992, Dr. Joseph Polifrone evaluated Jones again. (Tr. 109-111). At that time, Dr. Joseph Polifrone stated that Jones could lift or carry five pounds, and could sit, stand, or walk for a total of three hours in an eight-hour day. (Tr. 109). According to Dr. Joseph Polifrone, Jones could not perform any postural activities, such as climbing, crouching, or kneeling, and Jones was restricted from humidity and extreme temperatures. (Tr. 110).
Dr. Joseph Polifrone's medical report four months later, on April 28, 1993, stated that Jones had limited movement of the lower back, spasm in the lumbar muscles, S1 hypalgesia of the feet, lack of right Achilles reflex, right calf atrophy, positive straight leg raising at 45 degrees on the right, loss of normal lordotic curve, and neck injury. (Tr. 139-40). He diagnosed Jones with a herniated lumbar disc at the L5-S1 level, S1 radiculopathy and cervical sprain. (Tr. 141-42). Dr. Joseph Polifrone opined that physical therapy and analgesics gave Jones little temporary relief, and that his condition was permanent and precluded him from being gainfully employed. (Tr. 142). In this report, Dr. Joseph Polifrone also stated that EMG studies revealed S1 radiculopathy and that a CAT scan could not rule out a herniated disc due to plaintiff's large size. (Tr. 141).
In addition to Dr. Joseph Polifrone, four other doctors examined Jones subsequent to his back injury. As noted, Dr. Annarose Polifrone saw Jones in 1988, and while her examination was inconclusive, she did report that Jones had full range of motion and good *667 strength in his lower extremities. (Tr. 121). Dr. Wolchonok examined Jones on behalf of the Worker's Compensation Board on June 5, 1990. (Tr. 114). He indicated that Jones's neck motion was unrestricted and that the cranial nerves were intact. Jones, however, felt discomfort and his neck reflexes were hypo-reflexive bilaterally. (Id.). Although Jones could walk on his toes and heels, he felt pain in the mid-thoracic and lumbosacral regions, his back motions were restricted with pain, his reflexes were depressed on the right side, his straight leg raising was positive on both sides, his sensation was decreased to the lower right extremity, and he had calf atrophy. (Id.). Dr. Wolchonok diagnosed Jones as permanently partially disabled. (Id.).
Jones also received four separate orthopedic examinations from Dr. Robert Swearingen. (Tr. 96-104). On November 15, 1990, Dr. Swearingen found that Jones could flex and extend his neck without pain and it appeared that his biceps and triceps reflexes were present and normal. (Tr. 98). Upon flexing his leg to 45 degrees, claimant reported some pain in the lower right lumbar area but did not complain of pain in the leg. When pressure was applied to the top of Jones's head, he complained of mild back pain. (Id.). Dr. Swearingen reported that both of Jones's legs could be extended at the knees while sitting without pain and his reflexes were normal. (Tr. 96, 99). Further, Jones's right big toe did not exhibit the numbness he complained about during the exam; rather, his toe extensors appeared strong on both sides. (Tr. 99). Dr. Swearingen concluded that Jones was not disabled, and that "based on the clinical findings, this man would be expected to be able to operate a bus." (Tr. 100).
In Dr. Swearingen's October 1, 1991 examination of Jones, he again reported that there were no objective medical findings supporting Jones's complaints of back and leg pain. (Tr. 101-04). Dr. Swearingen reported that Jones's gait appeared normal and he stood on his heels with no problem as well as on each foot independently. (Tr. 103). When Jones flexed 45 degrees in his legs, he felt a pulling in his back, but there was no mention of any right leg pain. (Id.). Jones had some mild pain with rotation related to the right sacroiliac area, but when seated, straight leg raising remained normal. His knee and ankle reflexes were normal, toe extensors were strong, and numbness was confined to a small area on the medial side of the right big toe. (Id.). Dr. Swearingen again concluded that the claimant was not disabled. (Tr. 104).
Jones made intermittent visits to a Health Insurance Plan ("HIP") Center between March 1991 and November 1992 for other medical problems, including hypertension, gout and diabetes mellitus. (Tr. 39-43, 124-37). He was prescribed a cane for walking on March 19, 1991 and was noted to be uncompliant with his medication on April 16, 1991. (Tr. 125, 127). Jones did not go to his January 31, 1992 or February 20, 1992 appointments with the HIP Center.
Jones's final examination before the hearing was with Dr. Daoud Karam on June 20, 1992. (Tr. 105-106). Dr. Karam reported that there was no evidence of spasm, muscle atrophy, or loss of sensory modality in Jones's upper extremities. (Tr. 106). In fact, all reflexes were present and both upper extremities had normal power, control and coordination. (Id.). As for his lower extremities, there was also no spasm or muscle atrophy, and muscle power was normal. (Tr. 107). Jones did have pain when moving his back in any direction and a mild spasm upon palpation of his lower back. (Tr. 106). There was no pain upon movement of his hip, knee or ankle joints and toes. (Tr. 106). Dr. Karam reported that Jones had excellent coordination and control of both lower extremities and all sensory modalities were intact. (Tr. 107). Dr. Karam concluded that Jones's ability to do work-related activities was limited by his low back pain which restricted him from lifting or carrying heavy objects, pushing, pulling, and bending. (Tr. 107).
Other background information was adduced at the hearing through Jones's testimony. Jones lives on the second floor of an apartment building with his wife and six children. (Tr. 28-29). He drives his car occasionally, but only for about 5-10 miles *668 comfortably, and rarely uses the subways or buses. (Tr. 29). Jones does minimal activities outside his home, as he primarily stays in the house, lays in bed, and watches his baby. (Tr. 45).
Jones testified that he has severe pain on a daily basis. To relieve the pain, he received physical therapy until January 1991. (Tr. 34-35). He also takes Motrin and Darvocet to help him sleep and to "get the pain off [his] mind." (Tr. 36). Jones also felt that his condition was worsening because he was not "getting around" as much as before. (Tr. 38).
Jones has not attempted to return to work since his injury in September 1988. (Tr. 37). He testified that he can sit comfortably in a regular position for about 15 minutes and stand for about 20 minutes. (Tr. 43). He said he could walk about 5-10 blocks if necessary and uses a cane to do so. (Id.). He believes that he is unable to return to any of his previous work, and he also does not think that he could perform a sedentary job because he cannot sit in a seated position for a long period of time. (Tr. 47-48).
II. DISCUSSION
A. Determining Disability
A claimant is entitled to disability benefits under the Act if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment must be of such severity that the claimant
is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
The Secretary has promulgated regulations establishing a five-step procedure for evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit summarized this procedure as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987).
The claimant bears the burden of proof with regard to the first four steps; the Secretary bears the burden of proof as to the last step. Berry, 675 F.2d at 467.
B. Scope of Review
The standard of review in evaluating disability claims is whether the Secretary's decision is supported by substantial evidence. 42 U.S.C. § 405(g); see also Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir.1983). Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citations omitted). Also, the Secretary's failure *669 to apply proper legal standards or to provide a full and fair hearing are grounds for judicial review. Berry, 675 F.2d at 467.
Thus, the Secretary's decision is afforded considerable deference; the reviewing court should not "substitute its own judgment for that of the Secretary, even if it might justifiably have reached a different result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991) (quoting Valente v. Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).
C. The Secretary's Determination
The ALJ complied with each of the five steps enunciated in Berry. Ultimately, the ALJ concluded that, although Jones could not return to his past work, he had the residual functional capacity to perform sedentary work. Based on this finding and Jones's age, education, and work experience, the ALJ determined that regulations promulgated by the Secretary directed a conclusion that Jones was not disabled within the meaning of the Act. (Tr. 15). Jones's principal arguments in this appeal are that the ALJ committed legal error by (1) misapplying the treating physician rule and (2) finding that Jones had a residual functional capacity for sedentary work.
1. Treating Physician Rule
Under the treating physician rule, more weight is accorded a treating physician's opinion than a consulting physician's opinion as long as the treating physician's opinion is supported by medical evidence and is not inconsistent with substantial other evidence in the record. 20 C.F.R. § 404.1527(d)(2); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993). In determining whether a doctor is a treating physician, consideration will be given to the nature of the doctor-patient relationship, including the length of that relationship. Diaz v. Shalala, 59 F.3d 307, 313 n. 5 (2d Cir.1995); Schisler, 3 F.3d at 568. Opinions of consultative physicians may override those of treating sources only if supported by substantial evidence in the record. Diaz, 59 F.3d at 313 n. 5.
Here, the ALJ found that the objective medical evidence and the opinions of three consulting physicians provided substantial evidence to override Dr. Joseph Polifrone's opinion that Jones was permanently disabled. Based on my review of the record, this decision is supported by the record. First, it is important to note that the ALJ applied the appropriate legal standard, stating that Dr. Joseph Polifrone's opinion would be accorded binding weight "in the absence of substantial contradictory medical evidence." (Tr. 14).
Second, there is ample objective medical evidence in the record to support the ALJ's conclusion that Dr. Joseph Polifrone's opinion was not persuasive. Dr. Karam reported that there was no evidence of spasm, muscle atrophy, loss of sensory modality, or loss of muscle power in Jones's upper or lower extremities. (Tr. 106-07). Dr. Karam also noted that Jones could walk and stand up from a chair without any difficulty. (Tr. 106). Similarly, after multiple examinations, Dr. Swearingen was not able to find any objective symptoms supporting Jones's subjective complaints of pain. (Tr. 101). Dr. Swearingen concluded that Jones was not disabled and could be expected to return to his prior work. (Tr. 104). Finally, Dr. Wolchonok found that Jones's neck motion was unrestricted and cranial nerves were intact and concluded that Jones was permanently, but only partially, disabled. (Tr. 114).
These reports from other doctors constitute substantial evidence that is inconsistent with Dr. Joseph Polifrone's conclusion that Jones is permanently disabled. See 20 C.F.R. § 404.1527(d)(2); Schisler, 3 F.3d at 567. Given this evidence, the ALJ was entitled to reject Dr. Joseph Polifrone's opinion. Accordingly, the ALJ committed no legal error in applying the treating physician rule.
2. Residual Functional Capacity
It is the responsibility of the Secretary to determine a claimant's residual functional capacity. 20 C.F.R. § 404.1527(e)(2). In making this determination, the Secretary refers to physical exertion requirements of various types of employment available in the national economy. 20 C.F.R. § 404.1567. *670 Here, the ALJ found that Jones had a residual functional capacity to do sedentary work. Under regulations promulgated by the Secretary, sedentary work requires
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
Although the ALJ could have made a more specific finding in support of his conclusion that Jones could perform sedentary work, such as stating how many hours in a day Jones could sit, the record contains substantial evidence supporting that conclusion. Specifically, Dr. Swearingen found no objective evidence of a potentially disabling low-back or other musculoskeletal disorder. (Tr. 100-01). Further, Dr. Swearingen's concluded that Jones could resume his prior work as a bus operator plainly supports the ALJ's finding that Jones could perform sedentary work. (Tr. 104). Similarly, with respect to Jones's ability to do work-related activities, Dr. Karam found that Jones was limited only in "lifting or carrying heavy objects, pushing and pulling and bending." (Tr. 107). Dr. Karam also found that Jones had no trouble walking without a cane. (Tr. 106). Also, as noted above, Dr. Wolchonok found that Jones was permanently, but only partially, disabled and that Jones could walk on his toes and heels. (Tr. 114). Finally, Jones testified at the hearing that he could lift up to ten pounds without aggravating his condition. (Tr. 44). In sum, the record contains substantial evidence supporting the ALJ's conclusion that Jones retains the residual functional capacity to perform sedentary work.
III. CONCLUSION
For the reasons set forth above, Jones's motion for judgment on the pleadings is denied and defendant's cross-motion for judgment on the pleadings is granted. The final determination of the Secretary is affirmed. The Clerk of the Court is directed to enter judgment accordingly.
SO ORDERED.
NOTES
[1] "Tr." refers to the transcript of the administrative record filed by the Secretary as part of her answer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327466/ | 684 S.E.2d 77 (2009)
300 Ga. App. 45
ZUNIGA
v.
The STATE.
No. A09A1245.
Court of Appeals of Georgia.
August 17, 2009.
Reconsideration Denied September 9, 2009.
*78 Linda T.F. Day, Karlyn Skall, Lilburn, for appellant.
Gwendolyn Keyes Fleming, Dist. Atty., Daniel J. Quinn, Asst. Dist. Atty., for appellee.
MILLER, Chief Judge.
A DeKalb County jury convicted Jose Zuniga of a single count of aggravated child molestation (OCGA § 16-6-4(c)). He filed a motion for new trial, which was denied. Zuniga now appeals, arguing that the trial court erred in denying his motion for directed verdict because the State failed to prove the facts alleged in the indictment and challenging the sufficiency of the evidence. Concluding that the evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we affirm.
Viewed in the light most favorable to the jury's verdict (Drammeh v. State, 285 Ga. App. 545, 546(1), 646 S.E.2d 742 (2007)), the evidence shows that in late March 2007, the then four-year-old victim, C.F., complained to her mother, Gloria Ceron, that "it hurts when pee comes out." Concerned, Ceron checked her daughter's genital area but did not observe anything. When C.F.'s pain continued, Ceron took her daughter to the doctor who prescribed some medication for her; however, very painful blisters began to develop on C.F.'s vagina. Ceron returned with C.F. to the doctor and received a prescription for cream to alleviate the pain, but the cream did not help, so she took her daughter to the emergency room at Egleston Hospital. A doctor there checked C.F., and Ceron heard the doctor ask C.F. if someone had touched her on the vagina. After the visit, Ceron made an appointment for C.F. to visit Scottish Rite Children's Hospital ("Scottish Rite") the following day for further evaluation.
The following day, on April 12, 2007, Ceron brought C.F. to Scottish Rite for an appointment with nurse practitioner, Karen Rapkin. Rapkin examined C.F. and observed red inflamed sores on the outer lips of her genital area, and upon separating the lips, she also observed sores inside the lips of the vaginal opening and at the entrance to C.F.'s vagina. Based on her observations of the sores and upon verifying with a colposcope that the sores were fluid-filled or "vesicles," Rapkin diagnosed C.F. with herpes of the genital area.
Rapkin asked C.F. if anyone had touched her on her private parts, and C.F. stated that Papi had hurt her in bed with his hand and identified Papi as her father. When Rapkin asked C.F. if anyone else had touched her there, she stated that Jose touched her vaginal area with his hand and that the incident occurred at Jose's house when he hugged her. Thereafter, C.F. repeatedly stated that "Papi and Jose touched me here," pointing at her genital area.
At the time of the incident, C.F. was living in Decatur with her parents, Ceron and Jesus Facio-Martinez, and her little brother. Zuniga, who is C.F.'s father's uncle, and two other men lived with the family. According to Ceron, Zuniga had lived with them for a year and a half prior to the incident, and there were no other persons with Zuniga's first name living in their home. Ceron testified that she occasionally observed her daughter in Zuniga's room with the door open halfway, even though she told her daughter to not enter anyone else's room.
On April 12, 2007, after learning from DeKalb County police that her daughter had herpes and had named her father as her assailant, Ceron wanted to get tested for herpes and asked her husband and Zuniga to get tested as well. Ceron got tested, and her results were negative. Her husband also got tested, but the results of his test are not included in the record. Zuniga refused to get tested, but the parties ultimately stipulated at trial that he suffered from herpes simplex II. Ceron testified at trial that she had sexual intercourse with her husband after C.F. had reported that he had molested her, but Ceron denied having any herpes symptoms.
On May 8, 2007, Dr. Danielle Levy, clinical director with the Georgia Center for Child Advocacy, conducted a forensic interview with C.F. Levy testified that while C.F. had some difficulty communicating, she repeatedly *79 stated that her dad and her uncle touched her, pointed to her own body, used the Spanish word "cola" to refer to her genital area, and repeatedly stated that it hurt.
C.F. testified at trial, but she denied having a father or an uncle named Jose. When asked if she had ever been to the hospital, she responded, "yes," but denied seeing or talking to a doctor or a nurse there. C.F. also disclaimed any physical condition which caused her severe pain or required any medication, and indicated that the only time she had to apply cream to herself, was to her arm.
1. Zuniga contends that the evidence was insufficient to prove the physical injury element of aggravated child molestation alleged in the indictment. Zuniga argues that the State was required to prove that C.F. contracted the same type of herpes for which he tested positive, herpes simplex II, and therefore, the trial court erred in denying his motion for directed verdict. We disagree.
The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. We view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.
(Citation omitted.) Level v. State, 273 Ga. App. 601, 602(1), 615 S.E.2d 640 (2005).
Here, the indictment alleged that Zuniga committed the act of aggravated child molestation by doing "an immoral and indecent act to [C.F.], a child under 16 years of age, with intent to arouse and satisfy the sexual desires of said accused; said acts being that the accused touched the vagina of said child with his fingers and such act resulted in a physical injury, to-wit: said child contracted herpes." OCGA § 16-6-4(c) (aggravated child molestation is committed when such person "commits an offense of child molestation which act physically injures the child").
Inasmuch as the indictment did not specify the type of herpes C.F. contracted, and Zuniga concedes that the language in the indictment only required the State to prove that he transmitted herpes to C.F., it was unnecessary for the State to produce any evidence concerning which type of herpes C.F. contracted. Rapkin's testimony that she diagnosed C.F. with herpes of the genital area sufficed to prove the offense of aggravated child molestation. OCGA § 16-6-4(c). Thus, we conclude that the trial court did not err in denying Zuniga's motion for directed verdict.
2. Zuniga argues that the evidence was circumstantial and failed to exclude all reasonable hypotheses save that of his guilt. Zuniga contends that because Martinez, C.F.'s father, was also present in the home two weeks prior to C.F. exhibiting symptoms of herpes, he could not be found guilty of aggravated child molestation. We are not persuaded.
"To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6. Where a jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except that of guilt, its findings will not be disturbed unless the verdict is insupportable as a matter of law. Foster v. State, 273 Ga. 34, 35(1), 537 S.E.2d 659 (2000).
The evidence was in conflict regarding the dates that Martinez was present in the home. Ceron indicated that she told a police detective that her husband was in the home in March 2007 after returning from Arizona; however, she also testified that her husband worked out of state in Arizona for three months, from January until March 2007. Construing her testimony in the light most favorable to the verdict, the evidence establishes that Martinez was returning home from Arizona on April 12, 2007, the day that Ceron went to Scottish Rite to talk to law enforcement. Given Rapkin's testimony that herpes symptoms appear anywhere between two weeks to two months from exposure to the virus, the State presented sufficient evidence to exclude the hypothesis that Martinez *80 was present in the home for at least three months prior to the onset of C.F.'s symptoms in late March 2007.
Further, the evidence showed that Zuniga had access and opportunity to infect C.F. at least two weeks prior to her exhibiting symptoms of painful urination and vaginal sores since he continuously resided in the home with her, and she would sometimes enter and remain in his room. Zuniga's refusal to be tested for herpes also presented circumstantial evidence of his guilt by concealment. In addition, C.F.'s immediate outcry to Rapkin was consistent with her statement to Dr. Levy, identifying Jose as someone who had inappropriately touched her vagina. "Concordance of name is some evidence of identity." (Footnote omitted.) Pierce v. State, 251 Ga.App. 600, 602(1), 554 S.E.2d 787 (2001).
Rapkin also testified that herpes is a sexually transmitted disease that can spread by exchange of body fluids if a man infected with herpes touches his semen with his hand and then touches another person's genitals. C.F.'s statement to Rapkin that Jose touched her vagina with his hand was consistent with this method of transmission and Rapkin's diagnosis that C.F. had genital herpes. Although C.F.'s trial testimony was inconsistent with her previous statements to Rapkin and Dr. Levy, any conflicts in the victim's testimony were for the jury to resolve. Hutchinson v. State, 287 Ga.App. 415, 417, 651 S.E.2d 523 (2007); OCGA § 24-9-80. As such, we conclude that the verdict was supported by the evidence and the jury could reasonably have found that the circumstantial evidence excluded every reasonable hypothesis except that of Zuniga's guilt. Foster, supra, 273 Ga. at 35(1), 537 S.E.2d 659; OCGA § 24-4-6.
Based on the foregoing, we affirm the trial court's order denying Zuniga's motion for a new trial.
Judgment affirmed.
ANDREWS, P.J., and BARNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327471/ | 684 S.E.2d 147 (2009)
300 Ga. App. 109
COX
v.
The STATE.
No. A09A1160.
Court of Appeals of Georgia.
September 17, 2009.
*148 Solomon A. Amusan, Savannah, for appellant.
Larry Chisolm, Dist. Atty., Ian R. Heap, Jr., Asst. Dist. Atty., for appellee.
DOYLE, Judge.
A Chatham County jury found Michael Bruce Cox guilty of one count of possession of tools for the commission of a crime (a mixing bowl),[1] three counts of possession or delivery of controlled substances (alprazolam, diazepam, and hydrocodone) with the intent to distribute,[2] one count of possession of less than one ounce of marijuana,[3] one count of trafficking in cocaine over twenty-eight grams,[4] and one count of possession of a sawed-off shotgun.[5] On appeal, Cox contends that the trial court erred by denying his motion for directed verdict because there was insufficient evidence to support the guilty verdicts. For the reasons that follow, we affirm.
"In determining the sufficiency of the evidence, we consider whether the evidence, viewed in a light most favorable to the verdict, would have authorized a rational trier of fact to find [Cox] guilty."[6]
So viewed, the evidence shows that on July 29, 2006, officers executed a search warrant at an apartment based on two controlled buys of narcotics made by a confidential informant ("CI") at the location. The CI had made purchases from Chedrick Chaney, but Cox was at the apartment during one of the buys, and the CI thought that the apartment was Cox's.[7] When the officers entered the small efficiency apartment, they apprehended Cox, who told them that he had been in the bathroom (the only separate room in the apartment), where the officers found marijuana and currency with serial numbers matching those used during the controlled buys. Cox admitted that the marijuana was his, and he was going to smoke it when the officers arrived at the apartment. Cox's key ring had a key to the apartment as well as a key to the vehicle he drove to the scene.
The officers also discovered a glass bowl with cocaine residue and crack cocaine in plain view in the kitchen area of the apartment. In a kitchen cupboard, officers discovered a Quaker Oats grits bag containing 28 grams of crack cocaine. Under the bed, the officers found in a shoebox large amounts of alprazolam, diazepam, and hydrocodone in manufacturers' bottles without prescriptions. In the night stand beside the bed, the officers discovered a shotgun with a barrel shorter than 18 inches, more prescription narcotics, numerous pieces of paperwork with Cox's name, an insurance document dated April 10, 2006, with Cox's name, and several picture identification cards with Cox's name and photograph. While the officers were attempting to check the shotgun for ammunition, Cox told them that the weapon was unloaded.
On appeal, Cox contends that the trial court erred by denying his motion for directed verdict because the State provided insufficient evidence to support the guilty verdicts. Specifically, Cox contends that the State did not present sufficient evidence to exclude the hypothesis that he had vacated the apartment *149 (leaving some personal items) and was merely visiting to collect the rent from Chaney, who actually possessed the narcotics and weapons. We disagree.
Possession may be either actual or constructive. Constructive possession exists where a person though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing [, and it] must be based upon some connection between the defendant and the contraband other than spatial proximity. When a constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.[8]
Reasonable hypotheses, however, do not include "bare possibilities that the crime could have been committed by someone else."[9] "Whether any given hypothesis is reasonable is a question for the jury, and we will not disturb the jury's finding in this regard unless it is unsupportable as a matter of law."[10]
In support of his argument that there was not sufficient evidence beyond spatial proximity to link him to the narcotics and weapon, Cox cites to Fluker v. State;[11] however, that case is distinguishable from the facts presented here. In Fluker, this Court reversed a conviction for trafficking in ecstasy because it was based on the vehicle passenger's mere spatial proximity to hidden contraband, and the defendant in that case did not own or control the vehicle in question, which precluded a presumption that the defendant possessed the narcotics found in the vehicle.[12] Additionally, there was no testimony or other circumstantial evidence linking the defendant to the narcotics.[13] Here, in comparison to Fluker, the State presented evidence linking Cox to the narcotics in addition to his mere presence in the apartment.
In this case, the evidence presented showed that Cox was in the bathroom with the marijuana found at the scene and that he admitted that he possessed and intended to smoke the marijuana. The shotgun was found in the night stand along with his personal papers, permitting an inference that Cox had ownership and control over the shotgun and the area surrounding the bed under which the prescription narcotics were discovered. Additionally, the fact that Cox's personal papers were found in the apartment, and the fact that he had a key to the apartment support the jury's finding that Cox possessed control over the apartment and, thus, the narcotics found in the kitchen area. The verdict also is supported by Cox's possession of the currency used in the controlled buys and his appearance on the recording of one of the buys.
In light of the foregoing, sufficient evidence was presented to support the jury's findings. Cox's argument that the evidence did not rule out his reasonable hypothesis of mere presence at the scene is meritless because he testified and presented his argument to the jury, which determined that Cox was not merely present and instead, possessed the narcotics and weapon.
Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is *150 insupportable as a matter of law. If the totality of the evidence is sufficient to connect defendant to possession of drugs, even though there is evidence to authorize a contrary finding, the conviction will be sustained.[14]
Thus, because the jury's determination is supported by the evidence and because they were able to hear evidence of and to exclude Cox's alternative hypothesis, we will not disturb the verdicts.[15]
Judgment affirmed.
BLACKBURN, P.J., and ADAMS, J., concur.
NOTES
[1] OCGA § 16-7-20(a).
[2] OCGA § 16-13-30(b).
[3] OCGA § 16-13-30(j).
[4] OCGA § 16-13-31(a).
[5] OCGA § 16-11-122.
[6] Johnson v. State, 248 Ga.App. 454(1), 546 S.E.2d 562 (2001). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hicks v. State, 285 Ga. 386, 388(2), 677 S.E.2d 111 (2009) ("[a] trial court's denial of a motion for directed verdict of acquittal is reviewed by applying the sufficiency of the evidence test of Jackson v. Virginia") (punctuation omitted).
[7] Neither Chaney nor Cox leased the apartment, which was leased by Cox's uncle.
[8] (Citations and punctuation omitted.) Prather v. State, 293 Ga.App. 312, 313(1), 667 S.E.2d 113 (2008); see also OCGA § 24-4-6.
[9] (Punctuation omitted.) Slaughter v. State, 282 Ga.App. 276, 280(3), 638 S.E.2d 417 (2006).
[10] Id.
[11] 296 Ga.App. 347, 674 S.E.2d 404 (2009).
[12] See id. at 349, 674 S.E.2d 404.
[13] See id.
[14] (Citations and punctuation omitted.) Blair v. State, 216 Ga.App. 545, 546(1), 455 S.E.2d 97 (1995).
[15] See id. at 546-547(1), 455 S.E.2d 97; Slaughter, 282 Ga.App. at 280(3), 638 S.E.2d 417. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327472/ | 96 Ga. App. 664 (1957)
101 S.E.2d 217
GRIGSBY
v.
FLEMING et al.
36849.
Court of Appeals of Georgia.
Decided October 29, 1957.
Rehearing Denied November 12, 1957.
*665 Haas, White & Douglas, for plaintiff in error.
Augustine Sams, contra.
NICHOLS, J.
1. One of the grounds of Grigsby's motion for directed verdict, on which motion his motion for a judgment non obstante veredicto is based, is that the evidence showed that the defendant Phillips was not "the contractor" but was a member of a partnership composed of himself and one Bill Taylor, and that the contract to improve the real estate was held by the partnership; that since Taylor had not been sued nor was the plaintiff relieved from suing him under Code (Ann.) § 67-2002 (3), the trial court should have granted his motion for a judgment non obstante veredicto.
The plaintiff's petition alleged that Grigsby, the property owner, employed Phillips to improve the real estate. This allegation was admitted by Grigsby in his answer. For further plea and answer Grigsby alleged, in part, "This defendant shows that he entered into a contract with the defendant Phillips by the terms of which contract the defendant Phillips agreed to supply all labor and materials for gypsum wallboard installation in the building of a house at 615 West Wesley Road, N.W., Atlanta, Georgia, . . ."
It is well settled in Georgia, as was stated in Plymouth Record Corp. v. Books, Inc., 92 Ga. App. 753, 756 (90 S. E. 2d 336), that: "A party to a suit will not be allowed to disprove an admission made in his pleadings without withdrawing it from the record. Florida Yellow Pine Co. v. Flint River Co., 140 Ga. *666 321 (78 S. E. 900); Alexander Hamilton Institute v. Van Landingham, 44 Ga. App. 606 (1) (162 S. E. 304)." Therefore, where under the pleadings of the defendant Grigsby it was admitted that he contracted with the defendant Phillips and such pleadings were not withdrawn, the contention on appeal that Phillips had a partner who was neither sued nor shown to be in that class of persons which the plaintiff need not have sued, is without merit.
2. The remaining ground of Grigsby's motion for a directed verdict is that the evidence did not make it affirmatively appear that the material allegedly sold Phillips was used in the improvement of his property. The evidence that the material was delivered to the "job" is uncontradicted; therefore the real question presented is whether there was evidence showing that the material was actually used to improve Grigsby's property after it was delivered. One witness, Rex Nelson, testified positively on direct examination for the plaintiff that such material was used to improve Grigsby's property, and although this same witness testified on cross-examination that he did not see each piece of such material installed, his positive testimony that it was so used was uncontradicted. There was no evidence that the material was not used for this purpose. Therefore it is immaterial whether Phillips' testimony to the same effect, that it was used to improve Grigsby's property and did not leave the job, was impeached or not, since Nelson's testimony was uncontradicted by any other witness. Accordingly, a finding that the material was used to improve the real estate of the defendant Grigsby was demanded.
3. Grigsby's remaining contention is that the account under which the plaintiff furnished Phillips materials to be used in improving his real estate was so mingled with other accounts under which the plaintiff furnished Phillips material for construction work for other land owners that a verdict for the plaintiff against him was unauthorized. This was not a ground of the plaintiff in error's motion for a judgment non obstante veredicto but was a ground on which he placed his contention that a directed verdict for the plaintiff was error.
The evidence adduced with reference to this contention shows that prior to, during, and after the material was sold to Phillips *667 to be used in improving Grigsby's property the plaintiff kept one ledger card on its customer, Phillips, that such ledger card showed, with reference to material sold, the date that such materials were sold, the delivery ticket number, the gross sales price, and the sales tax, and with reference to payments the date of such payment, a reference number, which was not explained, and the amount of such payment. After each entry the balance then due on the account was shown, and at the time the entries were made this ledger sheet was the only original record kept by the plaintiff showing its account with the defendant Phillips. On February 1, 1954, 20 days after the last "payment" was made on the account and 26 days after the last delivery of material to Phillips to be used in improving Grigsby's property, the ledger card was replaced by several ledger cards, each showing material sold to Phillips for a particular "job." The payments which had previously been applied to the "general account" were then applied to certain jobs only and no credit was given for such payments on the material delivered to the "job" for Grigsby performed by Phillips although a majority of the material delivered to this "job" was the first material delivered after a date when the account had been paid in full. There was evidence that Phillips instructed the plaintiff to credit the payments made after the material was delivered to the "job" for the defendant Grigsby to a particular account; however, it does not appear that such credit was given until the "general account" was replaced by the separate accounts.
In Williams v. Willingham-Tift Lumber Co., 5 Ga. App. 533, 535 (63 S. E. 584), it was said: "When a materialman is furnishing at the same time material to one contractor for the improvement of property belonging to different persons, and has full knowledge of the separate contracts, and money is paid to the materialman by the contractor from time to time on account of the material so furnished, it is incumbent upon the materialman to keep separate accounts and to find out from the contractor on what contract the money is paid, and to what account it should be applied. If he does not do so, but applies the money as a credit on a general account against the contractor, he thereby waives his right to a lien on the owner's property, and must look alone to the contractor."
*668 In the present case the evidence shows conclusively that it was only after Phillips got into financial difficulties that the plaintiff stopped using this one account in its dealings with Phillips and began charging materials to individual accounts and even went back to the general account and broke this account down to separate accounts so as to attempt to have its books in shape to pursue the liens on the property improved with material sold by it to Phillips. Therefore, under the decision in Williams v. Willingham-Tift Lumber Co., 5 Ga. App. 533, supra (see also Colonial Oil Co. v. United States Guarantee Co., 56 Fed. Supp. 545), this court is bound to hold that the direction of the verdict against Grigsby was error.
The grounds urged by Grigsby in the trial court in support of his motion for a directed verdict, were insufficient to require a judgment in his favor; therefore the trial court did not err in denying his motion for a judgment non obstante veredicto. However, since the direction of the verdict against Grigsby was error, the judgment denying his motion for new trial must be reversed.
Judgments affirmed in part and reversed in part. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327417/ | 684 S.E.2d 682 (2009)
300 Ga. App. 272
CONSUMER SOLUTIONS FINANCIAL SERVICES, INC.
v.
HERITAGE BANK.
No. A09A1562.
Court of Appeals of Georgia.
September 30, 2009.
*683 Brown & Gill, Angela B. Dillon, Max C. Richardson Jr., for appellant.
Bryan, Cave, Powell & Goldstein, William B. Brockman, Atlanta, for appellee.
BERNES, Judge.
Heritage Bank sued Consumer Solutions Financial Services, Inc. after two Consumer Solutions checks were deposited into the account of a Heritage customer and then were dishonored by the drawee bank. The trial court granted summary judgment to Heritage on its claims with respect to one of the checks for enforcement of drawer and signer obligations under Article III of the Georgia Uniform Commercial Code (the "UCC"), OCGA § 11-3-414(b), and for violation of the "bad check" statute, OCGA § 13-6-15. Consumer Solutions appeals, and we affirm for the reasons set forth below.
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak *684 v. Pruitt, 232 Ga.App. 680, 682(1), 503 S.E.2d 581 (1998).
So viewed, the evidence showed that Consumer Solutions sold used automobiles to the public, specializing in high-end brands. Consumer Solutions purchased automobiles, individually and in lots, from Auto Haus Atlanta, LLC for resale.
This case centers on two checks, numbered 1006 and 1007, respectively, that were written by Consumer Solutions to Auto Haus. Auto Haus indorsed and deposited Check 1006 into its business checking account with Heritage on or about February 13, 2008. Check 1006 was made payable to Auto Haus in the amount of $608,150 and was drawn on Consumer Solutions's banking account with Bank of America. Check 1006 was signed by Terri Cavaness, an authorized representative of Consumer Solutions.
Auto Haus indorsed and deposited Check 1007 into the same business checking account the following day. Check 1007 was payable to Auto Haus in the amount of $661,002 and also was drawn on Consumer Solutions's account with Bank of America. Check 1007 was signed by Elgin Bennett, co-owner of Consumer Solutions.
At the time Check 1006 and Check 1007 were deposited, or shortly thereafter, Heritage credited Auto Haus's business checking account in amounts equal to that shown on the two checks. Auto Haus then made withdrawals against the increased balance in its account.
Heritage subsequently presented Check 1006 and Check 1007 for payment through a check clearinghouse. Bank of America dishonored Check 1006 on February 19, 2008, and dishonored Check 1007 the following day. The dishonoring of the two checks, combined with smaller credits and debits, caused Auto Haus's business checking account to become overdrawn by $916,831.24. Heritage demanded the amount of the dishonored checks from Consumer Solutions, which failed to respond. This lawsuit followed in which Heritage asserted claims against Consumer Solutions for breach of contract; fraud; negligent misrepresentation; breach of loan agreement; enforcement of UCC drawer and signer obligations under OCGA § 11-3-414(b); violation of the bad check statute, OCGA § 13-6-15; and attorney fees.
Heritage moved for partial summary judgment on its claims for enforcement of drawer and signer obligations under the UCC and for violation of the bad check statute. The trial court granted the motion as to Check 1006 and denied it as to Check 1007, and then entered a partial final judgment against Consumer Solutions.
1. Consumer Solutions contends that the trial court erred in granting Heritage's motion for partial summary judgment because a genuine issue of material fact remained as to whether Consumer Solutions was the drawer signer of Check 1006. We disagree.
OCGA § 11-3-414(b), which sets forth certain drawer and signer obligations under the UCC, provides:
If an unaccepted draft is dishonored, the drawer is obliged to pay the draft (i) according to its terms at the time it was issued or, if the instrument was not issued, at the time it first came into possession of a holder; or (ii) if the drawer signed an incomplete instrument, according to the instrument's terms when completed, to the extent stated in Code Sections 11-3-115 and 11-3-407. The obligation is owed to a person entitled to enforce the draft or to an indorser who paid the draft under Code Section 11-3-415.
In turn, the bad check statute, OCGA § 13-6-15(a), provides in relevant part:
Notwithstanding any criminal sanctions which may apply, any person who makes, utters, draws, or delivers any check, draft, or order upon any bank, depository, person, firm, or corporation for the payment of money, which drawee refuses to honor the instrument for lack of funds or credit in the account from which to pay the instrument or because the maker has no account with the drawee, and who fails to pay the same amount in cash to the payee named in the instrument within ten days after a written demand therefor, as provided in subsection (c) of this Code section, has been delivered to the maker by certified *685 mail, or statutory overnight delivery shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of double the amount so owing, but in no case more than $500.00, and any court costs incurred by the payee in taking the action.
The uncontroverted evidence of record shows that Consumer Solutions was the drawer and signer of Check 1006 for purposes of the UCC and bad check statute. Under the UCC, a "drawer" is "a person who signs or is identified in a draft as a person ordering payment." OCGA § 11-3-103(a)(3). Under the bad check statute, liability extends to "any person who . . . draws" the dishonored check, if the other requirements of the statute are satisfied. See OCGA § 13-6-15(a).
Consumer Solutions admitted in its answer that Check 1006 "was signed by Terri Cavaness as an authorized representative of Consumer Solutions."[1] Since Cavaness signed in that capacity, the UCC provides that
the represented person is bound by the signature to the same extent the represented person would be bound if the signature were on a simple contract. If the represented person is bound, the signature of the representative is the "authorized signature of the represented person" and the represented person is liable on the instrument.
OCGA § 11-3-402(a). This principle also applies to the bad check claim. See Peterson v. Holtrachem, Inc., 239 Ga.App. 838, 840, n. 3, 521 S.E.2d 648 (1999) (OCGA § 13-6-15 should be construed in pari materia with OCGA § 11-3-402). It follows that because Consumer Solutions admitted that Cavaness was the actual signatory of Check 1006 and that she possessed representative authority to sign checks on its behalf, there was no genuine issue of material fact as to whether Consumer Solutions was the drawer and signer of that instrument.
Consumer Solutions contends, however, that Cavaness was induced to sign Check 1006 through the fraudulent means of Christopher M. Hill, a principal of Auto Haus. See OCGA §§ 11-3-305(a)(1)(iii) (the right to enforce an obligation is subject to the obligor's defense that fraud induced the obligor to sign the instrument without knowledge or reasonable opportunity to learn of its terms); 11-3-305(a)(2) (obligor may raise any defense that would be available if person seeking to enforce the instrument were seeking to enforce a simple contract); 13-6-15(e) (the specified affirmative defenses are "in addition to other defenses"). To support this contention, Consumer Solutions relies upon the affidavit of its co-owner, Elgin Bennett, and a notarized letter written by Hill. Neither the affidavit nor the letter, however, establishes Consumer Solutions's contention.
According to the affidavit of Bennett, "Check number 1006 and check number 1007 were drawn through the fraudulent means of. . . Hill." But the assertion that checks were issued through "fraudulent means" is simply a legal conclusion and of no probative value. "[W]here an affidavit contains conclusions which would not be admissible in evidence, the conclusions are to be disregarded in considering the affidavit in connection with the motion for summary judgment." Love v. Love, 259 Ga. 423, 424(1), 383 S.E.2d 329 (1989). Nor does Bennett's affidavit otherwise contain specific facts which show that Hill either signed Check 1006 without authority or fraudulently procured the issuance of Check 1006.
As for Hill's letter, it is true that it contains Hill's signature and an additional signature with an adjacent notary seal, and thus appears to have been notarized. Significantly, however, there is no indication either in the body of the letter or before the notary's signature that Hill swore to the contents of the letter. See Hughes v. Dulock, 207 Ga.App. 492, 493(1), 428 S.E.2d 406 (1993) (concluding that the document, although signed and notarized, did not contain a sworn admission of fact). Thus, Hill's letter was not an "affidavit" for purposes of summary judgment. "[A]n affidavit must be sworn to in person before a notary public or other officer empowered to administer oaths." *686 Keane v. Annice Heygood Trevitt Support Trust, 285 Ga.App. 155, 157, 645 S.E.2d 641 (2007). See OCGA § 9-11-56(e). "The contents of the letter therefore amount to no more than factual allegations additional to those in the pleadings." Barber v. Threlkeld Ford, 199 Ga.App. 787, 788, 406 S.E.2d 249 (1991). Furthermore, even if Hill's letter could be viewed as a competent affidavit for purposes of summary judgment, the only check he specifically addresses is Check 1007, and Hill does not dispute that Cavaness signed Check 1006 or disclose any facts that show or create a reasonable inference that she was fraudulently induced to sign Check 1006.
For these reasons, there was no genuine issue of material fact over whether Consumer Solutions was the drawer and signer of Check 1006 for purposes of the UCC and the bad check statute. The trial court did not err in granting partial summary judgment to Heritage on this issue.
2. Consumer Solutions also contends that a genuine issue of material fact remains as to whether Heritage was a holder in due course of Check 1006 that could enforce the drawer and signer obligations imposed by the UCC, OCGA § 11-3-414(b). We conclude that even if Heritage was not a holder in due course of Check 1006, it was entitled to summary judgment on its UCC claim under the facts of this case.
Heritage was entitled to enforce the drawer and signer obligations imposed upon Consumer Solutions because it was the "holder" of Check 1006 as that term is used in OCGA § 11-3-414(b). It is undisputed that Check 1006 was indorsed in blank by Consumer Solutions and was submitted to Heritage for deposit.[2] Since Heritage was the depository bank and it is also undisputed that the amount of the check was deposited to its customer's account, Heritage became the holder of the instrument when it received the check for collection.[3] See OCGA § 11-4-205; Maine Family Fed. Credit Union v. Sun Life Assur. Co. etc., 727 A.2d 335, 338-339(II) (Me.1999). Notably, "the holder of the instrument" is included within the definition of a "[p]erson entitled to enforce" the drawer and signer obligations imposed by OCGA § 11-3-414(b). See OCGA § 11-3-301.
By establishing that it was the holder of Check 1006, Heritage made a prima facie showing that it could enforce the drawer and signer obligations imposed upon Consumer Solutions. Nevertheless, "the right to enforce the obligation of a party to pay an instrument" is subject to defenses. OCGA § 11-3-305(a). If Heritage were not merely a holder, but also a "holder in due course,"[4]*687 then it would be shielded from certain defenses that Consumer Solutions potentially could assert against Heritage. See OCGA § 11-3-305(b). But Consumer Solutions failed to come forward with any admissible, competent evidence to support any such defenses with respect to Check 1006. Hence, Heritage did not need to show that it was also a holder in due course in order to establish its right to recover. See generally Maine Family Fed. Credit Union, 727 A.2d at 345(IV)(B) (the drawer was liable to the depository bank, which was a holder of the instrument but not a holder in due course). It follows that we need not determine whether genuine issues of material fact remain as to Heritage's status as a holder in due course of Check 1006.
Judgment affirmed.
SMITH, P.J., and PHIPPS, J., concur.
NOTES
[1] Consumer Solutions also confirmed in its appellate brief that "[i]t is undisputed that [C]heck 1006 was . . . signed by Terry Cavaness, a [Consumer Solutions] employee."
[2] OCGA § 11-3-205 provides in part:
(a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a "special indorsement." When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Code Section 11-3-110 apply to special indorsements.
(b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a "blank indorsement." When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.
* * *
[3] The depository bank becomes a holder "if the customer at the time of delivery was a holder of the item" and "[t]he depositary bank warrants. . . that the amount of the item was paid to the customer or deposited to the customer's account." OCGA § 11-4-205(1), (2). Check 1006 was indorsed in blank by the payee, Auto Haus, and so Heritage received the instrument from a holder. See Gerber & Gerber, P.C. v. Regions Bank, 266 Ga.App. 8, 10(1), 596 S.E.2d 174 (2004). Heritage then deposited the amount of the check to Auto Haus's account.
[4] OCGA § 11-3-302 provides in relevant part:
(a) Subject to subsection (c) of this Code section and subsection (d) of Code Section 11-3-106, "holder in due course" means the holder of an instrument if:
(1) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
(2) The holder took the instrument:
(i) For value;
(ii) In good faith;
(iii) Without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;
(iv) Without notice that the instrument contains an unauthorized signature or has been altered;
(v) Without notice of any claim to the instrument described in Code Section 11-3-306; and
(vi) Without notice that any party has a defense or claim in recoupment described in subsection (a) of Code Section 11-3-305. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327444/ | 684 S.E.2d 348 (2009)
300 Ga. App. 214
LEE
v.
The STATE.
No. A09A2097.
Court of Appeals of Georgia.
September 24, 2009.
Peter D. Johnson, Augusta, for appellant.
Rebecca A. Wright, Dist. Atty., Madonna M. Little, Asst. Dist. Atty., for appellee.
ELLINGTON, Judge.
A Columbia County jury found Jerry Lee guilty beyond a reasonable doubt of aggravated sexual battery, OCGA § 16-6-22.2(b), of his nine-year-old daughter. Following the denial of his motion for a new trial, Lee appeals, contending that the evidence was insufficient and that the trial court erred in accepting an inconsistent verdict and in denying his motion for a new trial based on the ineffective assistance of counsel. For the reasons explained below, we affirm.
*349 Viewed in the light most favorable to the jury's verdict,[1] the evidence shows the following. The victim testified that, while her mother was away from the house getting food for dinner on May 11, 2005, Lee called the victim into his and his wife's bedroom and asked her to comb his hair. Lee starting talking to the victim about keeping herself clean, locked the bedroom door, and then told the victim to pull down her pants and underwear. As the victim lay on a couch with her legs apart, Lee began touching and rubbing the victim's genitals while he continued talking about keeping clean. Lee took the victim into the bathroom, had her stand with her legs apart, had the victim put personal lubricant on her genitals, and then inserted his lubricated finger into the victim's vagina. Lee did not wear examination gloves. The victim told Lee that it hurt. The next day, the victim told her mother (Lee's wife) what happened.
Lee's wife testified that, after their children went to bed that evening, Lee told her that the victim had told him that some of her friends had been touched sexually and that he was concerned that the victim had also been touched. Lee told his wife that he used a medical book with illustrations of the reproductive system to explain to the victim about keeping herself clean and also talked to her about not letting anyone touch her private parts. Lee's wife became suspicious, because Lee chose to have such a conversation with the victim during the brief interval she was away from the house, rather than involving her, as the little girl's mother, and because he kept returning to the topic. Afterward, Lee's wife asked the victim about the conversation, and the victim told her about what happened, including the digital penetration.
Lee, who is a former gynecologist, took the stand and testified that he examined the victim "as a father and a physician." According to Lee, his wife was worried about the possibility of the victim being abused by older boys. He testified that his wife wanted him to talk with the victim and to examine her because he was a gynecologist and because she was too busy. Lee confirmed that, after locking the bedroom door, he looked at the victim's genitals as she lay back on a chaise lounge in the "frog leg" position, with her feet together and knees apart. He testified that he then took her into the bathroom, showed her anatomical illustrations in a medical book, had her stand with one foot on a stool and pull up on her genital area, used his lubricated fingers to spread the outer labia slightly so he could visually check the victim's hymen using a mirror, and instructed her about keeping herself clean. Lee denied penetrating the victim's vagina with his little finger or in any other way. At the time of this incident, Lee was not a practicing physician, having surrendered his medical license in May 2003 in connection with pleading guilty to four counts of obtaining controlled substances by fraud or theft.[2]
In rebuttal, the State called Maureen Claiborne, a pediatrician who is the medical director of the child abuse team at the Medical College of Georgia.[3] Dr. Claiborne testified from her specialized training and her experience over 18 years of examining thousands of children for evidence of sexual or physical abuse. Dr. Claiborne described a typical genital examination of a young girl. She places the child in the "frog leg" position, reclining on an examination table with the feet together and knees apart. Using gloved hands, she uses a thumb and index finger on either side of the genitals to pull the outer labia slightly apart so that the inner labia and hymen can be inspected. She does not perform internal examinations of preadolescent children and knows of no medical procedure where the doctor's little finger is inserted into a girl's vagina. She testified that, *350 although a lubricant should be used for an internal examination of a sexually mature patient, an external examination of a child is properly and more easily performed without using lubricant. Dr. Claiborne testified that she had never seen or heard of any doctor performing a medical examination of a female's genitals, either child or adult, in the position described by Lee, that is, with the patient standing with one foot on a stool.
1. The jury found Lee guilty of aggravated sexual battery based on evidence that, without the consent of the victim, he intentionally penetrated the victim's vagina with his finger. Lee contends that there is no evidence that he committed the act with the requisite criminal intent. Lee contends that he is entitled to be acquitted because the evidence demands a finding that he did not intend to harm the victim but, rather, that he manually manipulated the victim's genitals in connection with his medical examination of his daughter for evidence of sexual abuse and in the course of a "lesson he was trying to impart [to her] about the importance of female hygiene." According to Lee, he "acted as a concerned parent, worried about the possibility that his child was vulnerable [to sexual abuse] and would be less so if armed with some basic, necessary knowledge about her body."
"A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person." OCGA § 16-6-22.2(b).[4] By its plain terms, this Code section does not require the State to prove that the defendant intended to harm the victim. On the issue of intent, the State must prove that the defendant's act of penetrating the victim's sexual organ or anus was intentional and that the defendant knew or should have known that the victim did not consent or lacked the capacity to consent. See Hilliard v. State, 298 Ga.App. 473, 475(2), 680 S.E.2d 541 (2009); Melton v. State, 282 Ga.App. 685, 690-691(2)(b), 639 S.E.2d 411 (2006). As detailed above, the evidence authorized the jury to find that Lee digitally penetrated the victim's vagina without her consent.
On the issue of Lee's defense, Georgia law recognizes that a parent has the authority to consent on behalf of the parent's minor child to medical treatment or procedures "by a duly licensed physician." OCGA § 31-9-2(a)(2).[5] Medical procedures that involve penetrating a minor child's sexual organ or anus with a foreign object are not excluded by the statute. In this case, however, the evidence is undisputed that Lee was not a licensed physician at the time of the act of aggravated sexual battery alleged in the indictment. Pretermitting whether a licensed physician could validly assert such a parental consent/medical procedure defense to a charge of sexual battery of the physician's own child, Lee was not such a licensed physician. Furthermore, contrary to Lee's argument, the evidence does not demand a finding that he touched the victim's genitals as part of a medical treatment or procedure; rather, the evidence authorized the jury to find that, when he penetrated the victim's vagina, he did not do so as part of a medical treatment or procedure but for some other reason. As a result, his sufficiency argument fails.
2. Lee contends that the jury's guilty verdict on the charge of aggravated sexual battery was inconsistent with its not guilty verdicts on three charges of child molestation, which were all based on the same May 11, 2005 incident involving the "examination" and hygiene lesson, and that the trial *351 court therefore erred in accepting the guilty verdict.
The Supreme Court of Georgia abolished the rule that inconsistent verdicts in criminal cases must be reversed, based on its conclusion that the necessary "individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that the courts generally will not undertake." (Citations and punctuation omitted.) Turner v. State, 283 Ga. 17, 20(2), 655 S.E.2d 589 (2008). The Court recognizes, however,
an exception to the abolition of the inconsistent verdict rule: when instead of being left to speculate about the unknown motivations of the jury the appellate record makes transparent the jury's reasoning why it found the defendant not guilty of one of the charges, there is no speculation, and [the reason for abolishing the rule] does not apply.
(Citations and punctuation omitted.) Id. at 20-21(2), 655 S.E.2d 589.
Lee contends that the exception applies in this case, but he fails to specify how the appellate record makes transparent the jury's reasoning. Lee contends that the guilty verdict as to the charge of aggravated sexual battery must mean that the jury found that the State proved that he touched the victim's vagina. Lee contends that the child molestation charges were based on the same act of touching the victim's vagina and that, inconsistent with the jury's guilty verdict on the aggravated sexual battery charge, the not guilty verdicts on the child molestation charges must mean that the jury found that the State failed to prove that he touched the victim's vagina. Lee fails, however, to show anything in the appellate record that supports his analysis. The verdict form shows no more than "guilty" or "not guilty" as to each count of the indictment.[6] One could as easily conclude that the jury found beyond a reasonable doubt that Lee digitally penetrated the victim's vagina, and rejected his parental consent/medical procedure defense, but did not find beyond a reasonable doubt that he committed the act "with the intent to arouse or satisfy the sexual desires of either the [victim] or [himself]," as required for a child molestation conviction under OCGA § 16-6-4(a). Because the appellate record does not make transparent the jury's reasoning, the exception to the abolition of the inconsistent verdict rule does not apply in this case. Artis v. State, 299 Ga.App. 287, 292(5), 682 S.E.2d 375 (2009). Accordingly, this argument presents no basis for reversal. Id.
3. Lee contends that his trial counsel rendered ineffective assistance when he failed to object to the expert opinion testimony of Dr. Claiborne. See Division 1, supra. Lee contends that, with the exception of Dr. Claiborne's testimony, the evidence showed that his conduct constituted a medical examination and that "[i]t is only the testimony of Dr. Claiborne that characterized this incident as sexual abuse."
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for 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)[.] The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.
(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76, 586 S.E.2d 313 (2003).
*352 Lee contends that Dr. Claiborne's testimony that she knows of no medical procedure where the doctor's little finger is inserted into a girl's vagina was objectionable on the bases that it bolstered the victim's credibility, commented negatively on Lee's credibility, and went to the ultimate question of whether the victim was sexually abused. This is incorrect. Dr. Claiborne's testimony was limited to describing how she and doctors in the medical community generally perform genital examinations of female patients. Her testimony did not touch on whether either Lee or the victim was telling the truth[7] or whether Lee committed aggravated sexual battery on May 11, 2005. Thus, the record does not support Lee's argument that the testimony was objectionable.[8]
Lee contends that Dr. Claiborne's testimony that she had never seen or heard of a doctor examining a female patient's genitals while the patient was standing was objectionable on the bases that she merely served "as a conduit for the opinions of others" and bolstered the State's case as to the ultimate issue. Again, the record does not support Lee's argument. Dr. Claiborne testified, inter alia, as to her own opinion, as an expert, that a medical examination of a preadolescent girl's genitals should be performed, and typically is performed, while the patient lies on an examining table in the "frog leg" position. This testimony was relevant to the issues raised by Lee's defense and was not objectionable.
Because any objection to Dr. Claiborne's testimony would have been without merit, Lee cannot establish the deficiency prong of his ineffective assistance claim. Metts v. State, 297 Ga.App. 330, 339-340(9)(b), 677 S.E.2d 377 (2009).
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] Jackson v. Virginia, 443 U.S. 307, 318-319(III)(B), 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[2] "It is unlawful for any person: ... [t]o acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or theft[.]" OCGA § 16-13-43(a)(3).
[3] Lee contends that Dr. Claiborne's expert opinion testimony was "improper and inadmissible." As the trial court found, however, Lee failed to preserve any error for appellate review by failing to object contemporaneously at trial. Hunter v. State, 273 Ga.App. 52, 54(2), 614 S.E.2d 179 (2005). See Division 3, infra.
[4] For the purposes of OCGA § 16-6-22.2(b), the term "foreign object" means "any article or instrument other than the sexual organ of a person." OCGA § 16-6-22.2(a). "[A] finger constitutes a `foreign object' for purposes of this crime." (Citation omitted.) Johnson v. State, 276 Ga. 57, 58(1), 573 S.E.2d 362 (2002).
[5] In addition to such other persons as may be authorized and empowered, ... the following person[] is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed, or directed by a duly licensed physician: [i]n the absence or unavailability of a living spouse, any parent, whether an adult or a minor, for his or her minor child[.]
OCGA § 31-9-2(a)(2).
[6] Cf. Turner v. State, 283 Ga. at 21(2), 655 S.E.2d 589 (reversing felony murder and aggravated assault convictions, where the verdict form showed that the jury expressly found that the defendant had been justified in firing the shot that killed the victim, and thus returned a not guilty verdict on the charge of malice murder, and that the jury also expressly found that the defendant had not been justified in firing the shot that killed the victim, and thus returned a guilty verdict on the charges of felony murder and aggravated assault).
[7] Under Georgia law, a witness may not opine "that a party or victim is lying or telling the truth, for under OCGA § 24-9-80 credibility is a matter solely within the province of a jury." (Citation, punctuation and footnote omitted.) Patterson v. State, 278 Ga.App. 168, 171, 628 S.E.2d 618 (2006). In particular, "[a]n expert witness may not testify as to his opinion of the victim's truthfulness." (Citation, punctuation and footnote omitted.) Id.
What is forbidden is expert opinion testimony that directly addresses the credibility of the victim, i.e., "I believe the victim; I think the victim is telling the truth," or expert opinion testimony that implicitly goes to the ultimate issue to be decided by the jury, when such issue is not beyond the ken of the average juror, i.e., "In my opinion, the victim was sexually abused."
(Citations and punctuation omitted.) Odom v. State, 243 Ga.App. 227, 228(1), 531 S.E.2d 207 (2000).
[8] See Ogburn v. State, 296 Ga.App. 254, 257(4), 674 S.E.2d 101 (2009) (a police investigator's expert testimony that, in his opinion and based upon his experience and training, a large quantity of pseudoephedrine tablets, aerosol cans of starter fluid, and other items found in the defendant's truck were going to be used for the manufacture or distribution of methamphetamine was not objectionable on the basis that the testimony invaded the province of the jury or improperly expressed an opinion as to an ultimate fact). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327455/ | 684 S.E.2d 395 (2009)
300 Ga. App. 263
BAUMAN
v.
HUMPHRIES.
No. A09A1096.
Court of Appeals of Georgia.
September 29, 2009.
*396 Deming, Parker, Hoffman, Green, Campbell & Daly, David C. Cole, Norcross, for appellant.
Allen W. Bodiford, Stockbridge, for appellee.
ADAMS, Judge.
We granted Leslie Bauman's application for a discretionary appeal of a trial court's order incarcerating her for contempt arising out of her divorce decree. Bauman argues that the trial court lacked grounds for the order because the only evidence of her alleged contempt came in the form of a letter to the court from her former husband's attorney whereas she was entitled to an evidentiary hearing. Her former husband contends this appeal is barred by res judicata and that Bauman waived any evidentiary hearing. We reverse.
The record shows that on October 15, 2008, following a hearing held September 22, 2008, Bauman was found in wilful contempt of court for failing to enroll the parties' minor children at a private school and failing to pay the tuition and registration fees as required by the terms of a consent order dated March 14, 2008.[1] The court explained that Bauman could purge herself of the contempt by enrolling the children at the specified private school "no later than October 21, 2008" and that failure to do so and to pay the tuition and fees would result in her incarceration until she complied with the order. Bauman's application for discretionary review of that decision was denied on November 13, 2008.
The record shows that following the denial of Bauman's application for appeal, the attorney for her former husband sent a letter to the judge, in which he asserted that Bauman had not complied with the terms of the October 15 order; the letter also included a proposed order for Bauman's incarceration. The record contains no evidence of a hearing on the matter and it would appear that none was held. The trial court signed the proposed order on November 25, 2008. We granted Bauman's discretionary appeal on December 24, 2008.
First, res judicata is inapplicable as Bauman has appealed an order entered subsequent to her prior appeal.
Second, the fact that Bauman did not request a hearing is beside the point. Rulings of the Supreme Court of Georgia make clear that Bauman's incarceration based only upon a letter from opposing counsel was erroneous. "[I]n Georgia, a trial court cannot order incarceration pursuant to a self-effectuating order, regarding future acts, without benefit of a hearing." (Citations and punctuation omitted.) Smith v. Smith, 280 Ga. 620, 621, 632 S.E.2d 83 (2006). And even when "a hearing has been held and the party has been adjudged in contempt for failure to make payments adjudicated as being owed" and when the court has ordered that the person can purge himself of contempt by paying the arrearage, the court may only act, at a minimum, on an "affidavit. . . from a neutral and disinterested court official or other officer based upon objective information." Hall v. Doyle-Hall, 284 Ga. 325, 326, 667 S.E.2d 81 (2008). "The fact that an incarceration order for failing to pay ordered [amounts] is self-executing is not, in and of itself, problematic; ordering incarceration at a later time unless payment . . . has been made is not violative of due process." (Citations and punctuation omitted.) Id. at 326, 667 S.E.2d 81. See also Floyd v.Floyd, 247 Ga. 551, 553-554(2), 277 S.E.2d 658 (1981). But "the incarceration of the contumacious party [may not] depend upon merely the averments of an interested party, like the former spouse bringing the contempt action, rather than upon the review of objective information provided by one not tied to the litigation or standing to benefit from it." Hall, 284 Ga. at 326, 667 S.E.2d 81 See also Moccia v. Moccia, 277 Ga. 571, 572(2), 592 S.E.2d 664 (2004). Otherwise, "the order place[s] the keys to the jail in the [father's] *397 hand." (Punctuation omitted.) Hall, 284 Ga. at 326, 667 S.E.2d 81.
Judgment reversed.
BLACKBURN, P.J., and DOYLE, J., concur.
NOTES
[1] The court also found her in willful contempt for failure to pay the cost associated with the parties' children attending a prior private school as required by the parties' original divorce decree. But that finding is not relevant to this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262381/ | 900 F.Supp. 1174 (1995)
UNITED STATES of America, Plaintiff,
v.
Walker LABRUNERIE, Defendant.
Crim. A. No. 95-00125-02-CR-W-8.
United States District Court, W.D. Missouri, Western Division.
October 13, 1995.
*1175 *1176 Paul Becker, United States Attorney's Office, Organized Crime Strike Force, Kansas City, MO, for plaintiff.
James R. Hobbs, Wyrsch, Atwell, Mirakian, Lee & Hobbs, Kansas City, MO, for defendant.
ORDER GRANTING MOTION TO SEVER COUNTS
LARSEN, United States Magistrate Judge.
Before the court is defendant's motion to sever counts one through seven from the remaining counts on the ground that they are improperly joined. I find that all of the offenses charged in the indictment are not part of the same series of acts or transactions; therefore, defendant's motion will be granted.
I. BACKGROUND
On July 25, 1995, an eleven-count indictment was returned charging defendant with conspiracy, bribery and money laundering. Specifically, count one charges defendant and codefendants Morgan and Weber with conspiracy to commit bribery and money laundering by paying $20,000 to City Councilman Michael Hernandez in exchange for his support in dropping a condition from a proposed ordinance which would have required Morgan and LaBrunerie to pay for one half of the cost of building Line Creek Parkway along the proposed Line Creek Meadows subdivision. Count two charges all three defendants with bribery, and counts three through seven charge Morgan and LaBrunerie with money laundering dealing with the Line Creek Parkway conspiracy.
Count eight charges Morgan and LaBrunerie with conspiracy to commit bribery and money laundering by paying $50,000 to City Councilman Michael Hernandez for his assistance in the sale of property near the intersection of Barry and Baughman Roads which was owned by Morgan and LaBrunerie to the City of Kansas City for use as a Water Department maintenance facility. Count nine charges Morgan and LaBrunerie with bribery, count ten charges LaBrunerie with money laundering, and count eleven charges Morgan and LaBrunerie with money laundering, all in relation to the Barry/Baughman project.
On September 5, 1995, defendant LaBrunerie filed a motion to sever counts on the grounds that the facts alleged in counts one through seven are completely separate from the facts alleged in counts eight through eleven, and neither matter is interrelated or dependent upon one another.
On September 26, 1995, the government filed a response in opposition to the motion, arguing that even if the two groups of charges were severed, "the Government would still be required to present evidence of how Councilman Hernandez first approached the defendants and a logical sequence of events following the first bribery payment." The government further argues that even if the evidence were not deemed "inextricably intertwined," the proof of one bribe would be admissible in evidence of the trial of the other bribe pursuant to Federal Rule of Evidence 404(b) to show motive, intent, preparation, plan and knowledge.
II. JOINDER
Rule 8, Federal Rules of Criminal Procedure, establishes the requirements for joinder of offenses or defendants in the same indictment. The objective of Rule 8 is to balance the prejudice inherent in joint trials against the interests in judicial economy. Whether counts are properly joined under *1177 Rule 8 is a question of law. United States v. Rodgers, 732 F.2d 625, 628 (8th Cir.1984). The propriety of joinder must appear on the face of the indictment. United States v. Bledsoe, 674 F.2d 647, 655 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). See also United States v. Grey Bear, 863 F.2d 572, 573-578 (8th Cir.1988) (en banc) (statement of Lay, J.), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990).
Defendant argues that counts one through seven are improperly joined with counts eight through eleven pursuant to Federal Rule of Criminal Procedure 8(a).[1] However, unless all defendants are charged in all counts of the indictment, joinder of offenses in multiple-defendant cases is judged by Rule 8(b)[2] rather than 8(a). United States v. Southwest Bus Sales, 20 F.3d 1449, 1454 (8th Cir.1994). This is significant because the language of Rule 8(a) does not allow joinder on the same basis as 8(b); the words "same or similar character" are omitted from 8(b). The rationale for applying 8(b) rather than 8(a) in multiple defendant cases is stated in United States v. Jones, 880 F.2d 55, 61 (8th Cir.1989):
When similar but unrelated offenses are jointly charged to a single defendant, some prejudice almost necessarily results, and the same is true when several defendants are jointly charged with a single offense or related offenses. Rule 8(a) permits the first sort of prejudice and Rule 8(b) the second. But the Rules do not permit cumulation of prejudice by charging several defendants with similar but unrelated offenses.
(citing Cupo v. United States, 359 F.2d 990 (D.C.Cir.1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967)). Therefore, there are definite limits to what the government can put together in a single indictment. United States v. Nicely, 922 F.2d 850, 853 (D.C.Cir.1991).
For joinder of defendants under Rule 8(b) to be proper, there must be some common activity involving all of the defendants which embraces all the charged offenses even though every defendant need not have participated in or be charged with each offense. United States v. Sazenski, 833 F.2d 741, 745 (8th Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988). Furthermore, to be part of the "same series of acts," the offenses charged must be part of one overall scheme about which all joined defendants knew and in which they all participated." Id.; United States v. Bledsoe, 674 F.2d 647, 656 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). Rule 8(b)'s language "may not be read to embrace similar or even identical offenses, unless those offenses are related.... [T]here must be a logical relationship between the acts or transactions within the series." United States v. Nicely, 922 F.2d at 853 (quoting United States v. Perry, 731 F.2d 985, 990 (D.C.Cir.1984)). This depends upon the relatedness of the facts underlying each offense.
"[W]hen the facts underlying each offense are so closely connected that proof of such facts is necessary to establish each offense, joinder of defendants and offenses is proper." United States v. Gentile, 495 F.2d 626, 630 (5th Cir.1974). When there is no "substantial identity of facts or participants between the two offenses, there is no `series' of acts under Rule 8(b)." [United States v.] Marionneaux, 514 F.2d [1244,] 1249 [(5th Cir.1975)].
United States v. Lane, 735 F.2d 799, 804 (5th Cir.1984), rev'd on other grounds, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986).[3]
*1178 In order to determine whether the facts underlying each offense are "so closely connected that proof of such facts is necessary to establish each offense," it is necessary to recite in more detail the charges in the indictment.
Count one, the Line Creek Parkway conspiracy (from July 1992 to January 19, 1993), alleges the following facts:
On May 28, 1992, an ordinance was introduced to rezone 90 acres of land from agricultural and low density residential use to medium density residential use and to approve a development plan. The purpose of the rezoning was to allow the construction of 269 single family homes. This land was held in the name of Real Properties Holding, Inc., for the true owners who included codefendant Mark Morgan and the Walker LaBrunerie Trust. Pursuant to standard written City regulations and policies, the developers would be required to pay for one half of the construction cost of proposed Line Creek Parkway which was estimated at $521,400.
While the ordinance was pending before the Plans and Zoning Committee, City Councilman Michael Hernandez solicited $20,000 from defendant and codefendant Mark Morgan in exchange for Hernandez' support in dropping the above-mentioned condition from the ordinance. Codefendant Chuck Weber, Jr., delivered the bribe offer from Hernandez to defendant and Morgan, and then delivered the acceptance of that offer back to Hernandez. Weber then assisted in putting Hernandez in touch with defendant. On July 16, 1992, Hernandez and Weber (then a member of the City Council) voted in favor of the substitute ordinance which did not require the developers to pay any construction costs of proposed Line Creek Parkway.
On October 16, 1992, Morgan wrote a $5,000 check to a third party as partial payment of the bribe to Hernandez. On October 27, 1992, defendant directed a third party to exchange the $5,000 check for a disbursement check payable to Walkin Westport, Inc., and defendant delivered that check to Hernandez.
On November 24, 1992, Morgan wrote a $5,000 check to a third party. On December 2, 1992, defendant directed the third party to exchange the check for a disbursement check payable to Hispanic Planning Project, and defendant delivered the check to Hernandez.
On December 10, 1992, Morgan wrote a $5,000 check to a third party. On December 16, 1992, defendant directed the third party to exchange the check for a disbursement check payable to Hispanic Planning Project, and defendant delivered the check to Hernandez.
On December 21, 1992, Morgan wrote a $2,500 check to a third party. On December 24, 1992, defendant directed the third party to exchange the check for a disbursement check payable to Hispanic Planning Project, and defendant delivered the check to Hernandez.
On January 14, 1993, Morgan directed one of his partners to write a $2,500 check to a third party. On January 19, 1993, defendant directed the third party to exchange the check for a disbursement check payable to Hispanic Planning Project, and defendant delivered the check to Hernandez.
All of the checks were thereafter converted to cash by Hernandez and used for his own benefit.
Count eight, the Barry/Baughman conspiracy (from January 1993 to July 5, 1993) alleges the following facts:
Since the late 1980's the City of Kansas City, Missouri, had been seeking to purchase land north of the Missouri River to serve as a site for a Water Department maintenance facility. One site under consideration was located at the intersection of Barry and Baughman Roads. In February 1992, the purchase of this site was considered by the City Council. On February 27, 1992, the ordinance authorizing the purchase was sent back to committee by the full City Council for further study of alternative sites due to vocal opposition by adjoining homeowners.
*1179 In January 1993, defendant offered to give $50,000 to the Hispanic Planning Project in exchange for Hernandez' assistance in the sale of the Barry/Baughman property. Hernandez agreed to accept the money, and thereafter met with city staff and neighborhood groups to overcome the objections of the homeowners to the maintenance facility. In April 1993, Hernandez testified at a committee meeting and recommended the purchase of the Barry/Baughman site.
On April 22, 1993, the City Council passed the ordinance which authorized the expenditure of $560,000 for acquisition of the Barry/Baughman site. Councilman Hernandez voted in favor of the ordinance.
On May 7, 1993, $548,081.54 was transferred to M.T. Investment Company/Barry Special Account on behalf of defendant and codefendant Morgan for the purchase of the property.
On May 8, 1993, defendant directed a third party to exchange a $20,000 check for a disbursement check payable to the Hispanic Planning Project, and defendant delivered the check to Hernandez.
On June 29, 1993, codefendant Morgan wrote a $30,000 check to a third party. On July 5, 1993, defendant directed the third party to exchange the check for a disbursement check payable to the Hispanic Planning Project, and defendant delivered the check to Hernandez.
Both of the checks were thereafter converted to cash by Hernandez and used for his own benefit.
In this case, the government has failed to show either a common scheme connecting the two conspiracies or any participation by Weber in the Barry/Baughman conspiracy. The mere fact that two conspiracies have overlapping memberships will not authorize a single indictment if the conspiracies cannot be tied together into one common plan or scheme. United States v. Nicely, 922 F.2d at 853; United States v. Velasquez, 772 F.2d 1348, 1353 (7th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986); United States v. Lane, 735 F.2d at 805. Furthermore, mere similarity of offenses is not sufficient. Otherwise, "the government could take any two counts, however disconnected, and join them in one trial so long as they involved the same type of crime and some of the same defendants." United States v. Lane, 735 F.2d at 805. The requirement of a common scheme ensures that the offenses are actually part of a series of transactions. Id.
In United States v. Lane, 735 F.2d 799 (5th Cir.1984), the government charged James and Dennis Lane with a conspiracy to commit mail fraud and mail fraud after they purchased a building, had it destroyed by fire and collected the insurance money, then purchased another building for the purpose of burning it and collecting the insurance money. In addition, James Lane was charged with another count of mail fraud for collecting insurance money after having his failing restaurant torched by an arsonist. The court held that the latter count was improperly joined.
The following facts led to the six count indictment. During the summer of 1978, James Lane was operating an unsuccessful restaurant. He hired Sidney Heard to burn the building in order to get out of his lease and his partnership with the cook. The restaurant was burned and Lane collected the insurance money. In 1980, James Lane contacted Heard and offered to pay him to burn a duplex Lane had just purchased with his brother, Dennis. The building was burned and insurance money was collected. Several weeks after the duplex fire, the Lanes met with Heard again, paid Heard for the duplex fire, and discussed opening a flower shop in order to burn it for the insurance money. After the shop was set up but before it could be burned, the defendants were caught and indicted.
James Lane was charged in count one with mail fraud relating to the 1979 fire at his restaurant. Counts two through four charged both Lanes with mail fraud relating to the 1980 fire of the duplex. Count five charged both Lanes with conspiracy to burn the flower shop.
The court held that count one was improperly joined with the remaining counts.
*1180 There is no substantial identity of facts between Count 1 and the other counts. The [burning of the restaurant] involved events that were entirely separate from the other crimes and that were completed before the other crimes began. There was no fact that could be proved to establish guilt under Count 1 which would also establish any of the other offenses.... The government points us to no evidence at trial showing that there was a greater plan to commit a series of arsons for profit when the [restaurant] fire was planned and carried out. On the contrary, when J.C. Lane first approached Signey Heard and proposed the [restaurant] fire, Lane stated that he was in a losing restaurant business and wanted to get out of his lease and his partnership with Jack Stotts. The other two fires, by contrast, did not involve legitimate ongoing businesses with innocent partners; both the duplex and the flower shop were set up purely for an insurance scam.
United States v. Lane, 735 F.2d at 804-805.
In United States v. Sazenski, 833 F.2d 741 (8th Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988), Dennis Sazenski and Edward MacDonald were charged with conspiracy to possess marijuana with intent to distribute, and Sazenski was charged with three counts of distributing cocaine. These charges resulted from the following facts:
A DEA informant made three purchases of cocaine from Sazenski on January 22, April 15, and April 18, 1986. On August 30, 1986, Sazenski asked the informant if he wanted to buy more cocaine. The informant declined but said he was putting together a sale of 2,000 pounds of marijuana. At a meeting on September 17, 1986 (the conspiracy was alleged to have begun on September 16, 1986), Sazenski was introduced to an undercover DEA agent, and introduced MacDonald as his partner. The court, in holding that the conspiracy count was improperly joined with the cocaine counts, stated:
MacDonald had absolutely no connection to the cocaine transactions that took place between Dennis Sazenski and the government informant five months before the marijuana conspiracy was alleged to have begun. The government argues that there is a sufficient connection between the defendants' offenses because the cocaine dealings "provided the genesis" of the marijuana operation and because the same informant was involved in both the cocaine and marijuana transactions. We must disagree. The former argument is irrelevant; it fails to address how MacDonald was connected to the cocaine dealings. The latter argument would support joinder for trial of every defendant with whom a government informant had transacted.
United States v. Sazenski, 833 F.2d at 745.
In United States v. Nicely, 922 F.2d 850 (D.C.Cir.1991), four defendants were convicted of conspiracy in relation to a scheme to defraud the SCT Corporation. In addition, those four defendants and defendant Nicely were convicted of conspiracy to launder money provided by an undercover IRS agent.
The scheme to defraud SCT Corporation involved the following facts: Officers of SCT Corporation met with defendants Smith and Blankenship who convinced SCT to retain their company (Kelgre) to help SCT obtain federal government contracts. The retainer agreement provided that SCT would pay Kelgre $10,000 per month. Smith then attempted to get SCT to become involved with a European Arabian Trust whose principal officers were defendants Johnson and Koral.
While all of this was happening, IRS agent Wallace was undertaking a money laundering investigation. He was introduced to defendant Nicely and told Nicely he had large amounts of cash to move and that the names of the owners must never be disclosed. Nicely provided a letter to Agent Wallace indicating that Kelgre (owned by defendants Smith and Blankenship) could deposit the money in an account it had just opened at the Leeward Islands Bank & Trust (a subsidiary of the European Arabian Trust run by defendants Johnson and Koral).
The court held that the two conspiracies were improperly joined:
The government's position on appeal is that the record shows two substantially interrelated conspiracies, insofar as the appellants *1181 constructed a sophisticated apparatus to maintain the illusion that they were involved in legitimate, well-funded projects associated with United States intelligence groups. Misrepresentations made in the course of both schemes included claims that some of the appellants were employed by the CIA, that an Asian trust held vast gold reserves which EAT could invest, and that there was a still-secret currency reform proposal. The government insists that a necessary component of both schemes was the "symbiotic" ... relationship between Kelgre (run by Smith and Blankenship) and EAT (and its subsidiary Leeward, both run by Johnson and Koral), whereby each lent credibility to the other via fraudulent misrepresentations. The currency reporting violations occurred at the height of the ongoing fraud of SCT, and all the defendants (except Nicely) were involved in both frauds, whose common objective, according to the government, was to make money by charging fees for the performance of services.
... Beyond the similarity in membership, the government points to nothing in common between the two conspiracies more specific than the common use of falsehoods to make money.... [I]dentifying the common objective as making money and the shared modus operandi as telling lies are patently insufficient grounds for joinder.
United States v. Nicely, 922 F.2d at 853-855.
In United States v. Schweihs, 971 F.2d 1302 (7th Cir.1992), Schweihs and Daddino were charged jointly with one count of conspiracy to commit extortion and with substantive acts of extortion. Schweihs was also charged with two counts of extortion unrelated to the conspiracy and against an unrelated victim. The court held that those two counts were improperly joined since there was no evidence that Daddino was in any way connected with the second extortion; and although the offenses were both extortions, there was no evidence that Schweihs' extortion was part of the plan by Schweihs and Daddino to extort money from the first victim.
In this case the government argues that the facts underlying each offense are "inextricably intertwined" because "[s]hould the charges be severed, the Government would still be required to present evidence of how Councilman Hernandez first approached the defendants and a logical sequence of events following the first bribery payment." I disagree that the government would be required to present this evidence at severed trials. It would be irrelevant in a trial of the Line Creek Parkway conspiracy what occurred after the bribery payments. Once the evidence of the bribery payments was introduced, the story would be complete. Furthermore, in a trial of the Barry/Baughman conspiracy, it would not be necessary to introduce evidence of the entire Line Creek Parkway conspiracy in order to show the jury how Hernandez first approached the defendants. The indictment itself is proof of that. Read alone, count eight tells a story by itself.
The government cannot show that these charges are all part of one overall scheme about which all joined defendants knew and in which they all participated. Charles Weber is not named in any of the counts dealing with the Barry/Baughman conspiracy. The indictment does not even allege that Weber, as a member of the City Council, voted in favor of the purchase of that property. There is no indication that Weber had anything to do with this scheme, or that he knew anything about this scheme. If the charges were all part of one overall scheme, the government no doubt would have charged one conspiracy rather than the two separate conspiracies charged in this indictment.
The government cannot show that the facts underlying each offense are so closely connected that proof of those facts is necessary to establish each offense. In the Line Creek Parkway conspiracy, Hernandez solicited the bribe through fellow councilman Charles Weber; however, in the Barry/Baughman conspiracy, defendant allegedly approached Hernandez and offered a bribe. The services of Hernandez were completely different in each case. The purposes of the bribes were completely different in each *1182 case. The time frames of the conspiracies have no overlap.
The government cannot show that there was a greater plan to commit a series of bribes when the original bribe was accepted. The fact that the first bribe "provided the genesis" of the second bribe is irrelevant. United States v. Sazenski, 833 F.2d at 745. There is no common objective between the two conspiracies. The shared modus operandi as bribing Hernandez is insufficient as a basis for joinder. United States v. Nicely, 922 F.2d at 855.
The government argues alternatively that proof of one bribe would be admissible in evidence of any trial of the other bribe pursuant to Rule 404(b) and therefore severance would not remedy the underlying claim by defendant LaBrunerie that he is unfairly prejudiced by the joinder of these two bribes in a single indictment. The problem with this analysis is that LaBrunerie's claim is not that he is unfairly prejudiced by joinder. LaBrunerie's claim is that the two sets of counts are improperly joined.
Rule 8 establishes the requirements for joinder of offenses or defendants in the same indictment. Rule 14 allows the trial court to order severance, even though joinder of offenses or defendants is proper under Rule 8, if it appears that the defendant or government is prejudiced by the joinder. Rule 8 does not take prejudice into consideration at the pretrial stage.[4] Either the counts are properly joined or they are not. Courts look to whether a defendant will be unduly prejudiced when determining whether properly joined counts should be severed under Rule 14.
Whether evidence of other crimes is admissible under Rule 404(b) is a factor in determining whether a defendant will be prejudiced by joint trial of properly joined counts. It is not a factor in determining whether counts are properly joined. In addition, whether evidence of an entire conspiracy along with several substantive crimes will be admissible under Rule 404(b) is completely discretionary with the trial judge who must balance the probative value of that evidence against the danger of unfair prejudice, confusion of the issues, or misleading the jury, and considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
III. CONCLUSION
Because all of the offenses charged in the indictment are not part of the same series of acts or transactions, counts one through seven are improperly joined with counts eight through eleven. Therefore, it is
ORDERED that defendant's motion to sever counts one through seven from counts eight through eleven is granted.
Counsel are reminded that objections to this order on the ground that it is clearly erroneous or contrary to law must be filed and served within ten days.
NOTES
[1] Two or more offenses may be charged in the same indictment or information 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 transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
[2] Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
[3] The Supreme Court held that improper joinder of defendants does not, in itself, violate the Constitution; rather, misjoinder arises to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial. The Court therefore held that the harmless error rule applies to improper joinder.
[4] Courts of appeals require reversal only if misjoinder resulted in actual prejudice. See United States v. Sazenski, 833 F.2d at 745-746. The Courts of Appeals are necessarily dealing with cases after error has been committed. However, at the pretrial stage, the question is not whether a conviction should be reversed the question is whether improperly joined counts should be severed thereby preventing error from occurring. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327457/ | 684 S.E.2d 892 (2009)
Christopher A. MUSI and Pamela Sabalos, Plaintiffs,
v.
The TOWN OF SHALLOTTE and The Town of Shallotte Board of Aldermen, Defendants.
No. COA08-1522.
Court of Appeals of North Carolina.
October 20, 2009.
*893 The Brough Law Firm, by Thomas C. Morphis, Jr., Chapel Hill, for Plaintiffs.
Jess, Isenberg & Thompson, by Laura E. Thompson, Southport, for Defendants.
BEASLEY, Judge.
Plaintiffs (Christopher Musi and Pamela Sabalos) appeal the denial of their summary judgment motion and entry of summary judgment in favor of Defendant, Town of Shallotte. We affirm.
This appeal arises from a zoning decision of the Board of Alderman of the Town of Shallotte, in Brunswick County, North Carolina. The property that was rezoned (the subject property) consists of fifteen separate *894 tracts with six different owners. The subject property is located on the west side of the Shallotte River, between the Town of Shallotte and the Atlantic Ocean, each a little over a mile away. In 2006 the subject property was subject to the zoning authority of Brunswick County, and had an R-7500 zoning designation.
In June 2006 owners of the subject property applied to the Town of Shallotte for satellite annexation and rezoning under several town zoning categories. The Town of Shallotte Planning Board voted to recommend to the Board of Aldermen that the application be denied. In September 2006 the applicants withdrew their request and filed a second application, which was also withdrawn before it was presented to the Board of Aldermen for consideration.
In October 2006 the owners and agents for the subject property submitted a third application for satellite annexation and rezoning by the Town of Shallotte. The zoning designations requested by the applicants permit a higher density of housing units than the Brunswick County R-7500 zoning to which the applicants were then subject. After consideration of the request at its November 2006 meeting, the Planning Board voted to recommend that the Board of Aldermen approve this application. On 6 March the Town of Shallotte Board of Aldermen conducted a public hearing to consider the application and voted to annex the subject property and to rezone it as requested in the application.
On 2 May 2007 Plaintiffs filed a Declaratory Judgment action against the Town of Shallotte and Shallotte's Board of Aldermen. Plaintiffs sought a declaration that the rezoning was invalid, but did not challenge the Board's annexation of the subject property. The parties each moved for summary judgment, and a hearing was conducted on 13 May 2008. On 9 June 2008 the trial court granted summary judgment in favor of Defendants, from which order Plaintiffs appealed to this Court. Plaintiffs have dismissed their claims against the Town of Shallotte Board of Aldermen, which is not a party to this appeal.
Standard of Review
Plaintiffs appeal from the trial court's entry of summary judgment. Summary judgment is properly entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2007). On appeal, "[w]e review a trial court's order granting or denying summary judgment de novo. `Under a de novo review, the court considers the matter anew and freely substitutes its own judgment' for that of the lower tribunal." Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (other citations omitted)).
The present case was appropriate for entry of a summary judgment order, because it presents issues of law rather than fact:
Each party based its claim upon the same sequence of events[, and] ... [n]either party has challenged the accuracy or authenticity of the documents establishing the occurrence of these events. Although the parties disagree on the legal significance of the established facts, the facts themselves are not in dispute. Consequently, we conclude that there is no genuine issue as to any material fact surrounding the trial court's summary judgment order.
Adams v. Jefferson-Pilot Life Ins. Co., 148 N.C.App. 356, 359, 558 S.E.2d 504, 507 (2002) (internal quotations omitted). We next determine whether the trial court properly granted summary judgment for Defendants.
Preliminarily, we address the issue of standing. Defendants argue that Plaintiffs lacked standing to challenge the validity of the Defendants' rezoning.
Standing "refers to whether a party has a sufficient stake in an otherwise justiciable controversy so as to properly seek adjudication of the matter." Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C.App. 110, 114, 574 S.E.2d 48, 51 (2002) *895 (citations omitted). "Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction." Aubin v. Susi, 149 N.C.App. 320, 324, 560 S.E.2d 875, 878 (2002). "Standing is a question of law which this Court reviews de novo." Cook v. Union Cty. Zoning Bd. of Adjust., 185 N.C.App. 582, 588, 649 S.E.2d 458, 464 (2007) (citation omitted).
Defendants argue that, for Plaintiffs to have standing to file a declaratory judgment action challenging the rezoning, they must allege and prove that the rezoning caused them special damages. "[S]pecial damage[s] are defined as a reduction in the value of his [petitioner's] own property." Sarda v. City/Cty. of Durham Bd. of Adjust., 156 N.C.App. 213, 215, 575 S.E.2d 829, 831 (2003) (internal quotations and citations omitted).
This Court previously has held:
A party has standing to challenge a zoning ordinance in an action for declaratory judgment only when it "has a specific personal and legal interest in the subject matter affected by the zoning ordinance[.]" The standing requirement for a declaratory judgment action is therefore similar to the requirement that a party seeking review of a municipal decision by writ of certiorari suffer damages "distinct from the rest of the community." When a party seeks review by writ of certiorari, however, our courts have imposed an additional requirement that the party allege special damages in its complaint. This requirement arises from [certain statutes] which allow only "aggrieved" persons to seek review by writ of certiorari. In contrast, the Declaratory Judgment Act ... does not require a party seeking relief be an "aggrieved" person or to otherwise allege special damages[.] [N.C. Gen.Stat. § 1-254 (2007), and] ... we hold it is not required.
Village Creek Prop. Owners' Ass'n, Inc. v. Town of Edenton, 135 N.C.App. 482, 485-86, 520 S.E.2d 793, 795-96 (1999) (quoting Taylor v. City of Raleigh, 290 N.C. 608, 620, 227 S.E.2d 576, 583 (1976), and Heery v. Town of Highlands Zoning Board of Adjustment, 61 N.C.App. 612, 614, 300 S.E.2d 869, 870 (1983)) (footnotes omitted and other citations omitted). We find Village Creek applicable to the facts of this case, and hold that Plaintiffs had standing to challenge Defendants' rezoning of the subject property.
Plaintiffs argue first that Defendants' rezoning "is illegal spot zoning and is, therefore, void." Accordingly, we must determine whether the rezoning at issue constituted spot zoning:
Spot zoning is defined, in pertinent part, as a zoning ordinance or amendment that "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 ... relieve the small tract from restrictions to which the rest of the area is subjected."
Good Neighbors of S. Davidson v. Town of Denton, 355 N.C. 254, 257, 559 S.E.2d 768, 771 (2002) (quoting Blades v. City of Raleigh, 280 N.C. 531, 549, 187 S.E.2d 35, 45 (1972)). "An essential element of spot zoning is a small tract of land owned by a single person and surrounded by a much larger area uniformly zoned." Covington v. Town of Apex, 108 N.C.App. 231, 237, 423 S.E.2d 537, 540 (1992). We conclude that the subject property meets neither of these criteria for spot zoning.
The subject property does not have a common owner, but is comprised of fifteen (15) parcels, with six (6) owners. Plaintiffs allege that "a rezoning of property owned by more than one person can still constitute spot zoning." In support of this proposition, Plaintiffs cite three cases. Two of these, Alderman v. Chatham County, 89 N.C.App. 610, 366 S.E.2d 885 (1988); and Lathan v. Bd. of Commissioners, 47 N.C.App. 357, 267 S.E.2d 30 (1980), involve the rezoning of property with a common owner, and thus shed no light on this issue. The third case cited by Plaintiffs is Budd v. Davie County, 116 N.C.App. 168, 447 S.E.2d 449 (1994), which addressed rezoning of (1) a tract of land owned by one person and, (2) a "strip of land" running from the tract, and owned by that person's son. We do not find Budd persuasive, for several reasons.
Firstly, Budd's holding is internally inconsistent. After quoting the same definition of *896 spot zoning given above, and even noting that an "essential element of spot zoning is a small tract of land owned by a single person", the Court then holds that the rezoning in question, involving property with two different owners, was spot zoning.
Additionally, in Good Neighbors, a Supreme Court of North Carolina case decided after Budd, the Court reiterates the definition in Blades and Chrismon, including the requirement that the rezoning be of a parcel with one owner. To the extent that Good Neighbors conflicts with Budd, we are bound to follow Good Neighbors.
The judicial policy of stare decisis is followed by the courts of this state. Under this doctrine, "[t]he determination of a point of law by a court will generally be followed by a court of the same or lower rank[.]" ... Moreover, this Court has no authority to overrule decisions of our Supreme Court and we have the responsibility to follow those decisions "until otherwise ordered by the Supreme Court."
Dunn v. Pate, 106 N.C.App. 56, 60, 415 S.E.2d 102, 104 (1992), rev'd on other grounds by Dunn v. Pate, 334 N.C. 115, 431 S.E.2d 178 (1993) (quoting 20 Am.Jur.2d Courts § 183 (1965), and Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985)). Consequently, this Court is bound to adhere to the rule set out in Good Neighbors and other Supreme Court of North Carolina cases.
Plaintiffs acknowledge that the subject property has multiple owners, but assert that the rezoning can properly be analyzed as spot zoning, because (1) the owners of most of the tracts are members of the same extended family, and (2) the owners of the tracts have a "common interest." Plaintiffs cite no authority for these exceptions to the general definition and we find none.
We also conclude that the subject property is not "surrounded by a much larger area uniformly zoned," as required by Blades, 280 N.C. at 549, 187 S.E.2d at 45, and subsequent cases citing Blades. There is no precise definition of the area to be analyzed to determine whether a rezoned property is surrounded by a "much larger area" of uniform zoning. In this case, Plaintiffs chose to focus on the area within a one-mile radius of the subject property, and submitted a map of the zoning designations in this area. The map reveals that the one mile area around the subject property includes several zoning categories, including Brunswick County R-6000 and R-7500, and Shallotte Town R-10, RA-15, and Commercial Waterfront.
Moreover, Plaintiffs do not articulate the reason for their choice of a one mile radius around the subject property, and we note that a significant part of this area consists of the waters of the Shallotte River. Examination of either a larger area around the subject property, or of the nearest mile of dry land reveals additional zoning designations.
In sum, the subject property was not the property of a single owner, and was not surrounded by a uniformly zoned area. We conclude that the rezoning did not constitute "spot zoning" as this term has been defined, and we do not reach the question of whether it was illegal spot zoning. This assignment of error is overruled.
Plaintiffs also argue that "the Board of Aldermen failed to consider the suitability of the subject property for the entire range of uses permitted in the MF-10, RM-10 and R-10 zoning districts, and the rezoning is, therefore, void." We disagree.
Re-zoning is considered a legislative act. Accordingly, zoning decisions are typically afforded great deference by reviewing courts and "[w]hen the most that can be said against such ordinances is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere[ ]" and in most circumstances, "will not substitute its judgment for that of the legislative body[.]"
Childress v. Yadkin Cty., 186 N.C.App. 30, 34, 650 S.E.2d 55, 59 (2007) (quoting In re Appeal of Parker, 214 N.C. 51, 55, 197 S.E. 706, 709 (1938)) (other citation omitted). "`A duly adopted rezoning ordinance is presumed to be valid and the burden is upon the plaintiff to establish its invalidity.'" Kerik v. Davidson Cty., 145 N.C.App. 222, 231, 551 S.E.2d 186, 192 (2001) (quoting Nelson v. City of Burlington, 80 N.C.App. 285, 288, 341 *897 S.E.2d 739, 741 (1986)). However, "when rezoning property from one general use district with fixed permitted uses to another general use district with fixed permitted uses, a city council must determine that the property is suitable for all uses permitted in the new general use district[.]" Hall v. City of Durham, 323 N.C. 293, 305, 372 S.E.2d 564, 572 (1988).
Plaintiffs argue that the Board of Aldermen voted to rezone the subject property without considering the various uses permitted by the zoning designation. Their position is based primarily on the fact that the request for rezoning was associated with a proposal to build multifamily condominiums. Plaintiffs assert that the Aldermen who voted in favor of the rezoning "believed that the Rezoning would result in high-density multi-family dwellings being built" in the rezoned area. Plaintiffs stress that the prospective developers "made no attempt to disguise their plans," suggesting that it is improper for rezoning to be considered in the context of a specific request or development proposal. However, it seems probable that most rezoning matters arise from a specific request by a party who hopes to build a particular building or development. Plaintiffs articulate no reason that if the Aldermen anticipated that a certain development would likely follow rezoning, this expectation would be inconsistent with the Board's consideration of other uses, in addition to the proposed development. Nor do Plaintiffs explain the reason proponents of rezoning should keep their proposals a secret or would be expected to "disguise" their plans.
We have examined the record and conclude that there is ample evidence that the Board of Aldermen gave adequate consideration to the possible uses under the rezoning. The subject property was Brunswick County land that was annexed by the Town of Shallotte. Accordingly, the town replaced the county zoning categories with Shallotte's zoning designations. Rezoning allowed a greater density of housing, and it is undisputed that the issue of housing density was thoroughly addressed. However, most of the uses permitted by rezoning were already allowed by the previous Brunswick County zoning. Further, when the Aldermen were deposed, each one testified that he had considered the full range of permitted uses.
In Parker, 214 N.C. 51, 197 S.E. 706, the North Carolina Supreme Court discussed the courts' role in reviewing zoning ordinances, and stated, in part:
The courts will not invalidate zoning ordinances duly adopted by a municipality unless it clearly appears that in the adoption of such ordinances the action of the city officials "has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense."
Id. at 55, 197 S.E. 706 (quoting Nectow v. Cambridge, 277 U.S. 183, 187-88, 48 S. Ct. 447, 448, 72 L. Ed. 842, 844 (1928) (internal citation omitted)). In the instant case, we conclude that Plaintiffs failed to establish that the Board of Aldermen did not conduct the proper assessment of the range of permitted uses in the rezoned areas, and that the rezoning is not void on this basis. This assignment of error is overruled. Finally, Plaintiffs argue that the trial court erred by excluding Exhibits BB and CC from the evidence at the summary judgment hearing. We disagree.
"We review the trial court's decision to exclude evidence for an abuse of discretion." Media Network, Inc. v. Long Haymes Carr, Inc., ___ N.C.App. ___, ___, 678 S.E.2d 671, 687 (2009) (citing Barham v. Hawk, 165 N.C.App. 708, 721, 600 S.E.2d 1, 9 (2004). (2009)). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citations omitted).
The exhibits that Plaintiffs sought to include in the evidence consist of letters from citizens opposed to certain construction plans that had been proposed for the subject property. *898 Plaintiffs appeal from the Board of Aldermen's rezoning at its March, 2007 meeting. It is undisputed that these letters were not made a part of the record at this meeting. Moreover, Plaintiffs failed to argue on appeal that exclusion of these letters affected the outcome of the summary judgment proceeding:
[E]ven assuming, arguendo, that this testimony was inadmissible, plaintiffs have not shown prejudice. "The burden is on the appellant not only to show error, but to show prejudicial error, i.e., that a different result would have likely ensued had the error not occurred. G.S. § 1A-1, Rule 61 [ (2007) ]."
O'Mara v. Wake Forest Univ. Health Scis., 184 N.C.App. 428, 440, 646 S.E.2d 400, 407 (2007) (quoting Responsible Citizens v. City of Asheville, 308 N.C. 255, 271, 302 S.E.2d 204, 214 (1983)). This assignment of error is overruled. We conclude that the court did not err by entering summary judgment for Defendants and that its order should be
Affirmed.
Judges WYNN and STROUD concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327458/ | 96 Ga. App. 652 (1957)
101 S.E.2d 148
LIMBERT
v.
BISHOP.
36884.
Court of Appeals of Georgia.
Decided November 8, 1957.
Greene & Neely, B. Hugh Burgess, for plaintiff in error.
Bruce B. Edwards, Robert W. Cagle, William H. Whaley, Thomas O. Davis, contra.
NICHOLS, J.
1. The first special ground of the amended motion for new trial contends that the trial court erred, even without a proper written request having been submitted, in failing to charge the jury on "comparative negligence," on the duty of the plaintiff to "exercise ordinary care for his own safety," and on the plaintiff's duty to exercise "ordinary care to prevent the negligence of the defendant after such negligence was discovered."
The evidence showed without dispute, that the defendant's truck was driven into the service station where the plaintiff was employed, and parked, that thereafter the defendant's employee got into such truck and backed it into the plaintiff while the plaintiff was standing with his back to such truck and in front of an automobile which he was servicing, and that the plaintiff had no knowledge of the negligence of the defendant's employee until the actual moment of impact of the defendant's truck with the plaintiff's person. There was no evidence that the plaintiff was in any way negligent, or that he had any knowledge of the *653 negligence of the defendant's employee prior to the injury so that he could have taken any action to prevent such injury.
While the defendant's answer may have authorized the introduction of evidence as to the failure of the plaintiff to exercise ordinary care for his own safety, either before or after the negligence of the defendant's employee became apparent, or on comparative negligence, no such evidence was introduced. "It is the duty of the court to instruct the jury as to the law applicable to every material issue in the case, even in the absence of any request; but where an issue, though raised in the pleadings, is not supported in the evidence, it is error to charge upon any issue which is not supported by evidence." Investors Syndicate v. Thompson, 172 Ga. 203 (2b) (158 S.E. 20). See also Jackson v. Camp & Brown Produce Co., 92 Ga. App. 359 (3) (88 S.E.2d 540).
It might be well to state at this point that a verdict for the plaintiff was authorized under the evidence. However, the contention of the defendant that the verdict was excessive will be considered later.
2. Special ground 2 alleges that the trial court erred in charging the jury on the following allegation of negligence contained in the plaintiff's petition: "In backing the defendant's truck down, over and across a public sidewalk."
At the time this allegation of negligence was given in charge to the jury the trial court was reading those allegations of negligence from the plaintiff's petition which had not been stricken by the plaintiff or removed as issues of the case by the trial court.
"It is not improper, in charging the jury, to state the contentions made by the allegations of the petition (Barbre v. Scott, 75 Ga. App. 524, 534, 43 S.E.2d 760), or to give them by a narrative reading of the petition (McGee v. Bennett, 72 Ga. App. 271, 273, 33 S.E.2d 577), even though some of the contentions in either instance be unsupported by the evidence (Armour & Company v. Roberts, 63 Ga. App. 846, 847, 12 S.E.2d 376)." Moffett v. McCurry, 84 Ga. App. 853, 858 (67 S.E.2d 807). The excerpt from the charge complained of would not have been error even if there had been no evidence in support of such contention; however, in the present case there was evidence adduced that the defendant's truck had been parked where it was at least *654 partially across the sidewalk, and that the defendant's employee backed the truck from this parked position to the point of impact with the plaintiff.
3. In special ground 3 error is assigned on the following excerpt from the charge: "Now, gentlemen, if at this point in the case you determine that the defendant was not negligent you would cease your deliberations and return a verdict in favor of the defendant, but if you find that the defendant acting through his servant or agent was negligent in one or more of the particulars which I have read to you, you would look further and ascertain whether or not such negligence, if any there was, was the proximate cause of the injury and damage to the plaintiff. And I charge you, gentlemen, that if you find that the defendant was so negligent in some of these particulars read to you and that such negligence was the proximate cause of injury and damage to the plaintiff that the plaintiff would be entitled to recover in the case."
In support of the contention that such charge was reversible error the defendant relies on the recent Supreme Court decision in Executive Committee of the Baptist Convention v. Ferguson, 213 Ga. 441 (99 S.E.2d 150), and the cases cited therein. In that case the jury was instructed with reference to the allegations of negligence contained in the plaintiff's petition, whereas here the charge limited the jury to the consideration of the allegations of negligence read to the jury. In that case one of the allegations of negligence had been stricken on demurrer; however, that allegations still appeared in the petition and had not been physically stricken from it. In the case sub judice, according to the record before this court, there had been no demurrer sustained to any allegation of negligence contained in such petition so as to require a finding that such allegation of negligence would not constitute a legal basis for a recovery.
The trial court read to the jury those allegations of negligence which remained in the case after the plaintiff, by amendment, struck some of the allegations of negligence, and after the trial court ruled out others, and the jury was instructed to consider only those allegations of negligence which had been read to it by the trial court. Therefore, this case is, as shown herein, distinguishable from those cases relied on by the defendant and the *655 charge complained of was not error for any reason assigned.
4. Special ground 4 alleges that the trial court erred in charging that the defendant denied the allegation of agency in the plaintiff's petition when there was no dispute as to the fact that the driver of the truck was the employee of the defendant and was operating such truck within the scope of his employment at the time the plaintiff allegedly received the injuries sued for.
While it is true that the defendant, when called for the purpose of cross-examination by the plaintiff, freely admitted that the driver of the truck was his employee and was acting within the scope of his employment at the time such truck struck the plaintiff, his answer was not so clear for he "denied as alleged" those paragraphs of the petition which would, if admitted, have bound him with the negligence of the driver of the truck. "`A trial judge may, in his discretion (and at his peril), state, in his charge to the jury, that a certain fact which is admitted or wholly undisputed has been proved, but he is not required, even though so requested, to state to the jury that an issuable fact is true or has been sufficiently proved, even though it be undisputed in the evidence. The better practice is to allow the jury to determine the question whether any issuable fact proved by either party is uncontradicted or undisputed.' Scott v. Valdosta &c. R. Co., 13 Ga. App. 65 (1) (78 S.E. 784); New Ware Furniture Co. v. Reynolds, 16 Ga. App. 19 (1a) (84 S.E. 491); Elrod v. Chamblee, 26 Ga. App. 703 (1) (106 S.E. 915); Barbre v. Scott, 75 Ga. App. 524, 535 (43 S.E.2d 760); Williams Bros. L. Co. v. Meisel, 85 Ga. App. 72, 76 (68 S.E.2d 384); Sammons v. Webb, 86 Ga. App. 382, 389 (71 S.E.2d 832)." Ballentine Motors of Ga. v. Nimmons, 93 Ga. App. 708, 712 (92 S.E.2d 714). Accordingly, this ground of motion for new trial is without merit.
5. Special ground 5 complains that the trial court erred in charging the jury on the right of the plaintiff to recover "reasonable medical expenses" arising from the incident since there was no evidence that the bills, introduced in evidence without objection, were reasonable.
The plaintiff, two physicians who treated him, and the plaintiff's employer testified with reference to these bills and the plaintiff and the two physicians testified as to the treatment furnished the plaintiff for which these bills were rendered, and although *656 no witness testified that it was his opinion that the bills were reasonable, the defendant, if he desired, could have cross-examined these witnesses as to the reasonableness of such medical expenses. "In a suit for a personal injury, where the nature and extent of the injury, the character of the treatment administered, the services rendered by physicians, and the amount paid therefor were fully proved, a charge to the effect that the plaintiff, if entitled to recover, would be entitled to recover such reasonable amount of physicians' bills and necessary expenses incurred in consequence of the injury as might have been proved to the satisfaction of the jury, was not without evidence to support it, although no witness expressed the opinion that the charges were reasonable." Georgia Railway &c. Co. v. Tompkins, 138 Ga. 596 (8) (75 S.E. 664). See also Southeastern Express Co. v. Chambers, 33 Ga. App. 44 (125 S.E. 507), and Georgia Power Co. v. Clark, 69 Ga. App. 273, 278 (25 S.E.2d 91). There is no merit in this assignment of error.
6. Special ground 6 complains of the following excerpt from the charge: "Now, gentlemen, that is the basis upon which you find reduced earning capacity if you find that the plaintiff will have reduced earning capacity extending into the future, but if you find that such disability will cease at some future date and is a temporary disability." (Italics ours). Immediately preceding this charge the jury was instructed as to how to arrive at the measure of damages for a temporary reduced earning capacity, and immediately after such charge the jury was instructed as to how it should arrive at this same item of damages if it found that the plaintiff had suffered a permanent loss of earning capacity to some extent.
From what has been said it is apparent that the italicized word in the above excerpt of the charge should have been followed by the word "only" or that in lieu of such word the word "and" should have been used, and that the use of the word "but" was at most a lapsus linguae, and could not have been misleading to the jury in view of the entire charge. "It is not to be presumed that the jury paid more attention to the incorrect charge than to the others; and if they paid equal attention to all, and understood all, they must have understood that the use of the word . . . in the charge complained of was a mere slip *657 of the tongue, and the defendant could not have been prejudiced by the incorrect charge." Southern Ry. Co. v. Merritt, 120 Ga. 409, 410 (47 S.E. 908). "A verbal inaccuracy in a charge, resulting from a palpable `slip of the tongue,' and which clearly could not have misled the jury, is not cause for a new trial." Turner v. Elliott, 127 Ga. 338 (4) (56 S.E. 434).
7. Special ground 7 complains of the following excerpt from the charge: "I charge you, gentlemen, if the evidence discloses to you that the plaintiff's employer or anyone else has advanced him any money during such period of time as a loan or as a gift, that whether or not you determine the plaintiff is obliged to repay the money, that you would not be authorized to deduct such moneys from any award made to him for lost earnings, unless an employer is legally bound by a contract under the law to make payments to an employee who is not working, if such appears from the evidence. Any sums advanced under any other terms would not be deducted from any sum awarded for lost earnings, if the jury finds that the plaintiff is entitled to recover for lost earnings."
There was uncontradicted evidence that the plaintiff's employer, who was not a party to the case, had paid the plaintiff's hospital bills and doctors' bills or had obligated himself to pay them, and had "furnished" the plaintiff with approximately $2,000 to live on between the time the plaintiff was struck by the defendant's truck and the trial. The defendant contends that under the testimony of the employer, that one reason he had done this was because the plaintiff was injured while working for him, he was entitled to have this money deducted from any damages which the jury might find the plaintiff was entitled to recover because of having been struck by his truck.
"The fact that a person other than the wrongdoer, as a mere gratuity, pays to one injured as the result of his negligence a sum of money equal to the amount he would have earned had he been able to work during the period of disability, will not mitigate the damages due by the wrongdoer to the injured party for lost time. The rule just stated is applicable though the person making the payment is the employer of the injured party." Nashville, Chattanooga &c. Ry. Co. v. Miller, 120 Ga. 453 (1, 2) (47 S.E. 959, 67 L. R. A. 87, 1 Ann. Cas. 210).
*658 While it is true in the present case that the plaintiff was working for the person who had "furnished" him money on which to live, and that this was one reason that the employer had "furnished" him this money, there was no evidence that this money was anything other than a gratuity or a loan. Therefore there is no merit in this special ground of the motion for new trial.
8. Special ground 8 complains that the trial court charged the jury so as to confuse it as to "impaired ability to labor" and "impaired capacity to earn money," the first being an element of pain and suffering and the latter an item of recovery for a pecuniary loss resulting from a physical injury. See City of Atlanta v. Jolly, 39 Ga. App. 282 (146 S.E. 770).
The plaintiff sought a recovery for an "impaired capacity to earn money" and presented evidence to support this allegation of his petition (his earnings before the injury and his reduced earnings after the injury), and the charge complained of in this special ground of the motion for new trial instructed the jury as to how to arrive at this item of damages if it found that there had been a permanent reduction in the plaintiff's capacity to earn and not, as the defendant contends, a permanent impairment in his "ability to labor." This ground of the motion is without merit.
9. At the time the defendant filed its original motion for new trial on the usual general grounds he added an additional ground that the verdict was so "excessive as to show bias and prejudice of the jury." Inasmuch as the usual general grounds have already been passed on the question here presented is whether the "amount of the verdict for the plaintiff was authorized."
There was evidence, although all of it was not uncontradicted, that the plaintiff had suffered permanent injuries to his back and leg, that he was totally disabled for some 7 months, that his earnings were permanently reduced as a result of such injuries, that he spent approximately a week in the hospital when his leg was operated on as a result of the injuries received, and that both his back and leg continued to give him pain and would continue to give him pain in the future.
Under the decision of this court in City of Commerce v. Bradford, 94 Ga. App. 284, 291 (94 S.E.2d 160), it cannot be said that the verdict of the jury finding for the plaintiff in the sum *659 of $25,000 was, as a matter of law, so excessive as to show bias and prejudice.
The judgment of the trial court denying the motion for new trial as amended was not error for any reason assigned.
Judgment affirmed. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327492/ | 96 Ga. App. 800 (1957)
101 S.E.2d 770
COOPER, by Next Friend
v.
ANDERSON et al.
36812.
Court of Appeals of Georgia.
Decided December 4, 1957.
Rehearing Denied December 18, 1957.
*804 Wilson, Branch & Barwick, M. Cook Barwick, Thomas S. Bentley, for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., B. Hugh Burgess, contra.
QUILLIAN, J.
For the sake of convenience the plaintiff in error will be referred to as the plaintiff and the defendants in error as the defendants, the parties having occupied those respective positions in the trial court.
The initial question for decision is whether the alleged conduct of the defendants, if both were responsible for the installation and operation of the fan, amounted to actionable negligence.
The question is comprehensive; it invokes consideration of the degree of care owed by the defendants to the plaintiff, *805 whether that duty was violated, and whether the violation proximately caused the plaintiff's alleged injuries.
Liability in every tort case rests on the breach of a duty and resultant injury or damage to him to whom the duty is owed. Code § 105-203.
The same duty may arise from different basic obligations imposed by law upon several defendants. In the situation related by the petition that is true in the case at bar. While the requirements of the law in reference to the owner and proprietor of the bakery are not identical, the factual situation alleged both the owner and the proprietor of the bakery, defendants Anderson and Scarboro Enterprises, Inc., owed the plaintiff the duty of exercising the same care to avoid injuring him, when he was lawfully upon the premises owned by the one and occupied by the other.
The law demands of the owner of premises that he neither create upon the property nor permit after reasonable opportunity to learn of its existence a structural condition of static danger which with foreseeable probability may be activated by the negligence of another and imperil persons lawfully upon the property.
The proprietor must refrain from creating, maintaining, or employing in the conduct of his business a device or instrumentality which is apt in the ordinary course of human events to injure persons lawfully coming into his establishment. Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (116 S.E. 57).
From reading the briefs filed in the case, the court is impressed that both the plaintiff and defendants regard the plaintiff's status on the occasion when he was injured as that of a licensee. The duty generally owed a licensee by the owner or proprietor of premises is not to wilfully and wantonly injure him (Cobb v. First National Bank of Atlanta, 58 Ga. App. 160 (2), 198 S.E. 111), which includes the obligation not to lay for him or permit to exist pitfalls or mantraps in which it may be reasonably anticipated he will become ensnared (Bohn v. Beasley, 51 Ga. App. 341, 180 S.E. 656), that is concealed perils to which it may be reasonably anticipated he may become a victim. Rollestone v. Cassirer & Co., 3 Ga. App. 161 (2) (59 S.E. 442); Leach v. Inman, 63 Ga. App. 790 (5) (12 S.E.2d 103); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490 (118 S.E. 697). And *806 after a proprietor or owner of property becomes aware, or should anticipate the presence of the licensee, the duty rests upon the owner or proprietor to exercise ordinary care to avoid injuring him. Banks v. Watts, 75 Ga. App. 769 (44 S.E.2d 510); Georgia Southern & Fla. Ry. Co. v. Wilson, 93 Ga. App. 94 (1) (91 S.E.2d 71).
In Petree v. Davison-Paxon-Stokes Co., supra, at p. 496, allusion is made to the duty of the owner or proprietor of premises to exercise ordinary care in keeping a way along which the licensee is permitted to pass and where his presence should be anticipated free from hidden dangers, whether upon or suspended above such way and that the presence of a child who accompanies his parent into a store must be anticipated by the proprietor and owner of the property.
It follows that had the parties been correct in the assumption that the plaintiff was a mere licensee, under the rules we have stated, the defendant should have used ordinary care to avoid injuring him when he came into the bakery.
The preceding discussion assumes but does not decide that the plaintiff upon entering the bakery occupied the status of a licensee. We now consider the question as to whether in the circumstances alleged in the petition the plaintiff must be classified as an invitee in the bakery.
In Coffer v. Bradshaw, 46 Ga. App. 143 (6, 7) (167 S.E. 119) it is held: "Where one enters the premises of another for purposes connected with the business of the owner, conducted on the premises, he is an invitee, and the owner of the premises is liable in damages to him for a failure to exercise ordinary care in keeping the premises safe. The duty to keep the premises safe for invitees extends to all portions of the premises which it is necessary for the invitee to use in the course of the business for which the invitation was extended, and at which his presence should therefore be reasonably anticipated, or to which he is allowed to go." See also Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 S.E. 415). The view of counsel that the plaintiff, on entering the bakery was a licensee, is based on the holding of this court in the Petree case that a child who enters a store in company with his parent is a licensee. We are of the opinion that the holding was not a correct pronouncement of the law *807 in the year 1923 when the case was reported, and are more firmly convinced, that if then sound, it is inapplicable to conditions prevailing in the year 1956, and at present. By the year 1956 it had become the universal custom of children to accompany or be carried by parents into stores where provender and clothes were purchased. This is a fixed business usage recognized and encouraged by trades people and one so general that we are constrained to take judicial cognizance of its existence. Not only is it customary for small children to be carried into stores, bakeries, and similar shops, but it is done in connection with the proprietor's business, because the patronage of the parents depends upon the privilege of bringing the children. While we believe this has to some extent always been true, in this day when both parents are more frequently employed in commercial or industrial enterprises it is seldom that both are free to attend the children. At any rate, whether there be a reason for it or not, a casual observation of the assemblies in stores and bakeries on any busy day will attest to the accuracy of the statement that children generally accompany or are carried by their parents where the latter trade. That the custom is recognized by merchants is conclusively shown by the devices designed for the amusement of children commonly found in the stores. A casual conversation with almost any parent will substantiate the verity of the statement that the parent would not trade in a store that did not permit the presence of the children. It is apparent that a child who accompanies his parent customer into a store, or similar establishment does not come within the definition of a licensee contained in Code § 105-402, for he does not enter such establishment "merely for his own interest, convenience, or gratification," but his presence is essential and vital to the business conducted on the premises by the owner or proprietor. So while we pay homage to the great and gifted jurist who was the author of the opinion in the Petree case, that opinion is overruled, as to the single principle to which we have referred.
Our opinion in this regard is fortified by similar holdings in many other jurisdictions. Custer v. Atlantic & Pacific Tea Co. (D. C. Mun. App.), 43 A. 2d 716; Milliken v. Weybosset Pure Food Market, 71 Rawle I. 312 (44 A. 2d 723); Crane v. Smith, *808 23 Cal. 2d 288 (144 P.2d 356); Weinberg v. Hartman, 45 Del. 9 (65 A. 2d 805); Kennedy v. Phillips, 319 Mo. 573 (5 S.W.2d 33); Montgomery v. Allis-Chalmers Mfg. Co. (Tex. Civ. App.), 164 S.W.2d 556; L. S. Ayres & Co. v. Hicks (Ind.), 40 N.E.2d 334; Wheaton v. Goldblatt Bros., Inc., 295 Ill. App. 618 (15 N.E.2d 64); Carlisle v. J. Weingarten, Inc., 137 Tex. 220 (152 S.W.2d 1073); Walec v. Jersey State Electric Co., Inc., 125 N. J. L. 90 (13 A. 2d 301); Lewin v. Ohrbach's, Inc., 14 N. J. Super., 193 (82 A. 2d 4); Takashi Kataoka v. May Department Stores Co., 60 Cal. App. 2d 177 (140 P.2d 467).
The plaintiff as he entered the bakery had the status of an invitee to whom the law requires ordinary care to be accorded.
The ultimate result so far as the question of the degree of care due the plaintiff is the same under the peculiar circumstances pleaded whether he was a licensee or an invitee, but since question of proof necessary to his recovery might be slightly varied, we feel that the determination of his relationship to the defendants is of such importance that it should be decided. It is well to observe that where, as in this case, an owner of property leases it to be used in the conduct of a business, those coming upon the premises in connection with the conduct of the business are invitees of the owner and proprietor alike. "A guest of a tenant is an invitee upon the premises of the landlord where he is invited by the tenant and visits him in such premises." Rothberg v. Bradley, 85 Ga. App. 477 (2) (69 S.E.2d 293).
We have stated the duties which, according to the petitioner, devolved upon the owner and proprietor in the installation, maintaining, and operating the fan, and defined the degree of care owed by the defendants to the plaintiff. We now consider the sufficiency of the petition to show the defendants were negligent in the installation, maintaining, and operation of the fan. Code § 105-401 provides: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe."
The petition alleged that the fan was a dangerous device, and that it was installed by both the defendants in a concealed position, *809 where one entering the bakery could not observe and avoid coming in contact with it. The allegation was not a mere conclusion of the pleader, unsupported as contended by the defendants, but was a direct declaration of fact that needed no support from other averments. Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388 (1) (80 S.E. 916); Seaboard Air-Line R. Co. v. Stoddard, 82 Ga. App. 743 (62 S.E.2d 620); Colonial Stores, Inc. v. Brewster, 89 Ga. App. 564 (80 S.E.2d 81). There were facts alleged upon which the allegation referred to could have been based. Morgan v. Crowley, 91 Ga. App. 58 (6) (85 S.E.2d 40); Georgia, Southern & Fla. Ry. Co. v. Williamson, 84 Ga. App. 167, 176 (65 S.E.2d 444); Richardson v. Pollard, 57 Ga. App. 777 (4) (196 S.E. 199). The rather minute description of the fan's placement set out in the petition supported the averment that the fan was in a concealed position.
The question as to whether the placement and operation of the fan suspended seven feet above floor level was negligent, depends on whether the defendants should have reasonably anticipated that in the ordinary course of events persons lawfully entering the bakery would come in contact with it and sustain injury. The question cannot be resolved as a purely legal question because obviously it is one concerning which reasonable men might differ. Wright v. Southern Ry. Co., 62 Ga. App. 316 (3) (7 S.E.2d 793). The jury in passing on the question might well reach the conclusion that children are commonly carried in the fashion the petition alleged the plaintiff was being borne by his father when he came in contact with the fan. The jury could logically conclude that reasonably prudent persons when entering the bakery were apt to raise their hands above their heads so as to be struck by the revolving blades of the fan. Hands are often raised aloft in gestures of salutation or in other usual gestures.
If injury to others should have been anticipated, it was not necessary that the exact event resulting in the plaintiff's injury be foreseeable. Williams v. Grier, 196 Ga. 327, 337 (26 S.E.2d 698).
The defendants insist that the plaintiff's father, in carrying the child in the fashion described in the petition and failing to observe the fan, was guilty of negligence that constituted the para *810 mount cause of the plaintiff's injury and served to insulate the defendants from liability. The plaintiff being of the tender age of nine months no question as to his want of care is involved. City Ice Delivery Co. v. Turley, 44 Ga. App. 32 (160 S.E. 517); Christian v. Smith, 78 Ga. App. 603, 606 (51 S.E.2d 857). Nor is the negligence of his father imputable to him. Code § 105-205; Atlanta, Birmingham & Coast R. Co. v. Loftin, 67 Ga. App. 601 (21 S.E.2d 290); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, supra. The contention of the defendants is, however, predicated on the assumption that the father's conduct was the sole proximate cause of the plaintiff's injuries. The question is disposed of by our conclusion stated in the preceding division of this opinion that it would be a question of fact for the jury as to whether the fan was so situated that one entering the bakery might in the exercise of ordinary care have failed to discern its existence, and that it was likewise a question for the jury to decide whether it might be reasonably anticipated that an ordinarily prudent person might carry the child in the fashion described in the petition. The position of the fan was, according to the averments of the petition, so concealed that one entering the bakery could not discern its existence in time to avoid coming in contact with it. As was held in the preceding division of this opinion, the description of the fan's placement supported the allegation that an ordinarily prudent person might, before observing its presence, come in contact with it. In Lane Drug Stores v. Brooks, 70 Ga. App. 878, 884 (29 S.E.2d 716) it is said: "A duty rests upon the occupier of land to exercise ordinary care to keep the premises safe for persons coming thereon by his invitation. Code § 105-401. The invitee, in coming upon the land, may rely upon the discharge of this duty by the person occupying the land and in control of it, and therefore is not necessarily, and as a matter of law, guilty of negligence in failing to discover the existence of a patent defect in the premises which renders it unsafe for persons coming upon the premises. If the defect, though patent, is not of such a nature and character as necessarily to be seen in the exercise of ordinary care by a person coming upon the premises, and who has the right to rely upon the duty of the occupier of the premises to keep the premises safe, as where the defect is such as is here alleged, an invitee *811 coming upon the premises and using the alcove as a walkway, who, without observing the defect, is tripped by it and injured, is not, as a matter of law guilty of negligence in not observing the defect in the walk. The jury was authorized to find that the occupier of the premises was guilty of negligence in knowingly maintaining the premises in the described condition. Rogers v. Sears, Roebuck & Co., 45 Ga. App. 772 (166 S.E. 64)."
Both defendants contend that the allegations of the petition that the "defendants" installed the fan stated an impossibility. We cannot agree with this contention. We conceive of no reason why it would be impossible or inherently improbable that the defendants by their joint act installed the fan.
A landlord is liable for constructional defects in the premises which he creates, including snares, pitfalls and mantraps. Cook v. Southern Ry. Co., 53 Ga. App. 723 (187 S.E. 274); Cobb v. First National Bank of Atlanta, 58 Ga. App. 160 (2), supra.
The defendant, Scarboro Enterprises, Inc., insists that no cause was alleged as to it because nothing it did was shown to have been the proximate cause of the plaintiff's injuries. It insists that the petition discloses that the fan, idle as it was when installed, was quite harmless; that its operation alone entailed the danger to those who might come in contact with it. The use of the fan in the precise manner employed by the defendant, Anderson, must have been contemplated by both defendants when it was installed, for indeed, it could hardly have been effective operated in a different way. Anderson-McGriff Co. v. Meisel, 85 Ga. App. 58, 67 (68 S.E.2d 377); Milton Bradley Co. v. Cooper, 79 Ga. App. 302, 307 (53 S.E.2d 761, 11 A. L. R. 2d 1019). So, according to the averments of the petition, one of the defendants was, under the principles discussed and authorities referred to, as much responsible for the plaintiff's injuries as was the other, such injuries having been proximately caused by their joint negligence.
We are of the opinion that the petition alleged facts which if proved would entitle the plaintiff to recover of both defendants, and disclosed no defense to his suit, which set forth a cause of action and was not subject to general demurrer.
Judgment reversed. Felton, C. J., Gardner, P. J., Townsend, Carlisle, and Nichols, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2212669/ | 233 Cal. App. 2d 279 (1965)
THE PEOPLE, Plaintiff and Respondent,
v.
BENNIE JAMES JEFFREY, Defendant and Appellant.
Crim. No. 10122.
California Court of Appeals. Second Dist., Div. Two.
Mar. 29, 1965.
Hirsch Adell, under appointment by the District Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, Edsel W. Haws and Ronald W. Tochterman, Deputy Attorneys General, for Plaintiff and Respondent.
FOX, J. [fn. *]
Defendant was convicted of burglary in the second degree in that he entered the factory and building occupied by Dumas of California with intent to commit theft *280 on February 23, 1964. He admitted a prior conviction. Probation was denied and defendant was sentenced to the state prison.
The building occupied by Dumas of California is located on San Pedro Street between 8th and 9th Streets in Los Angeles. It is about 25 feet north of 9th Street. Duke's Liquor Store is also located on San Pedro Street. It is north of the Dumas building. There are two lots separating the two buildings. There is an alley with entrances on 8th and 9th Streets behind the Dumas building and Duke's Liquor Store.
On February 23, 1964, at approximately 6:21 p.m., someone broke into the rear of the Dumas building, activating a burglar alarm; three rear windows were broken; four bolts of cloth belonging to Dumas were taken from the building; they were found outside near one of the broken windows.
When the burglar alarm was activated, the police were notified immediately. Officer Rupe of the Los Angeles Police Department was in his car on San Pedro Street when he received a report of the burglary. He drove to the Dumas building. He observed another police car was approaching the front of the building so he proceeded to the alley.
As he approached the 9th Street entrance to the alley, he saw defendant and another man coming out of the alley. Defendant was walking behind the other man. Only a minute or two had passed since the receipt of the burglary report. Officer Rupe questioned the men briefly and then drove into the alley to the rear of the Dumas building where he discovered the broken windows. Upon making this discovery, he got out of his car and ran back to the entrance of the alley. He saw defendant, who was then alone, about 100 feet away on 9th Street. He called to defendant who stopped. They met at the intersection of 9th and San Pedro Streets. Rupe again questioned defendant about his presence in the alley. Defendant said he had been drinking wine there. Rupe arrested defendant and took him to the police car in front of the Dumas building and handcuffed him to the door. He then returned to the rear of the building.
Some white material that had been in a box under one of the broken windows had been scattered about inside the building, apparently by the person who had entered through the window. Officer Rupe took a sample of this material. He had observed some similar white material clinging to defendant's head when he arrested him and had taken a *281 sample of it also. Both samples were later analyzed and found to be white wool.
A green hunting cap was found in the Dumas building under one of the broken windows. Later when defendant was taken to the police station for questioning, the cap was placed on a table at the station. After approximately a half hour defendant noticed the cap, claimed it, and admitted ownership of it, although he maintained he had been wearing it when he was brought into the station.
Defendant testified in his own behalf. He raised the defense of alibi. He testified that he was in the alley behind Duke's Liquor Store when he first saw Officer Rupe; that he had been sitting there for two or three hours drinking wine with a number of other men; the other men had just left; he was alone in the alley at that time; Officer Rupe ran past him with a flashlight in his hand; defendant stood up; the officer turned around, came back, and arrested him. Defendant further testified that he had the hunting cap on when he was arrested; that it was later knocked off his head by the arresting officer; he denied entering the Dumas building and denied that he removed or helped remove the bolts of material from the building.
Eugene Moore was called on rebuttal. He testified that he was among the group of men drinking wine in the alley behind Duke's Liquor Store. Defendant left the group before Moore did. Moore left when he saw Officer Rupe's car enter the alley. Officer Rupe stopped him near the 9th Street entrance to the alley. When the officer stopped him near the 9th Street entrance to the alley. When the officer stopped him, Moore looked around and saw defendant about 25 feet behind him--almost directly behind the Dumas building.
In seeking a reversal defendant contends that the court committed prejudicial error in permitting witness Moore to testify as a rebuttal witness. We find no merit in this contention.
[1a] In the instant case the prosecution had presented in its case in chief ample evidence to justify and support defendant's conviction. Alibi was raised as an issue in the case for the first time by defendant on his direct examination. He testified that he was in the alley behind Duke's Liquor Store when Officer Rupe entered the alley a minute or two after the burglary. Officer Rupe, however, had testified that defendant was near the 9th Street entrance to the alley, which is substantially closer to the Dumas building than Duke's Liquor Store. Thus, an important item in the officer's testimony had been disputed by the defendant. *282 [2] In such circumstances the statement of the court in People v. Harrison, 59 Cal. 2d 622, 629 [30 Cal. Rptr. 841, 381 P.2d 665], is apposite: "While it is improper for the prosecutor to withhold evidence which is properly a part of his case in chief and offer it after the defense has closed its case, such evidence may be used by the prosecutor where it comes within the rules of impeachment and may be admitted on rebuttal to meet evidence upon a point put into dispute by the testimony of the defense." [1b] Moore's testimony was offered for the sole purpose of impeaching by contradiction (Code Civ. Proc., 2051) defendant's testimony concerning his whereabouts, which was raised for the first time by him on his direct examination. The prosecutor having made a clear case before resting "It was not necessary," as this court pointed out in People v. Williams, 164 Cal. App. 2d 285, 292 [330 P.2d 942], "for him to anticipate and disprove every possible defense or alibi of the defendant." He was entitled to meet this issue on rebuttal by whatever evidence he had available. In People v. Marino, 176 Cal. App. 2d 163, 166 [1 Cal. Rptr. 302], the court pointed out that "Two recent cases have sanctioned the introduction upon rebuttal of testimony refuting an alibi, although proof of defendant's presence at the place of the crime is necessarily a first element of the principal case." (Citing People v. Williams, supra, and People v. Nye, 38 Cal. 2d 34 [237 P.2d 1].)
Marino involved a knifing in a prison television room. Prosecution witnesses placed the defendant in the room at the time in question. Defense testimony, however, raised the issue of alibi, namely, that the defendant was in another part of the prison when the knifing occurred. The prosecution was allowed to introduce in rebuttal the testimony of another inmate who placed defendant in the television room. In Williams, supra, a robbery case, prosecution testimony placed the defendant in a restaurant where the victim had been immediately before the crime. The defendant took the stand and denied having been there. Rebuttal evidence of an out-of-court admission that defendant was in fact at the restaurant was admitted. In upholding the ruling of the trial judge this court held: "... the People did not withhold a material part of the case until rebuttal, but offered rebuttal testimony to support their case in chief after it had been controverted by the defendant. The evidence was properly admitted." (P. 292.)
In Nye, supra, defendant was accused of assaulting two women with intent to commit rape. The People's case consisted *283 of the testimony of the victims and the testimony of a police officer as to admissions made by the defendant. In his testimony, however, the defendant raised the issue of alibi. In rebuttal the prosecution was permitted to introduce the testimony of a third woman placing the defendant at the scenes of the assaults on the dates in question. The ruling was sustained by the Supreme Court. It is thus apparent that under the decisions in Williams, Marino and Nye, witness Moore's testimony was properly admitted in evidence.
Defendant relies heavily upon People v. Carter, 48 Cal. 2d 737 [312 P.2d 665], and People v. Rodriguez, 58 Cal. App. 2d 415 [136 P.2d 626]. In Carter, which was a murder case, the prosecution was permitted to show in rebuttal that defendant's cap was found near the place where the murder weapon had been abandoned. The court took the view that this was improper rebuttal evidence. In Rodriguez it was held improper to permit the prosecution to withhold the defendant's confession until rebuttal. Later cases have distinguished Carter and Rodriguez limiting their application to evidence that is "crucial," i.e., "directly probative of the crimes charged" (People v. Pike, 58 Cal. 2d 70, 92 [22 Cal. Rptr. 664, 372 P.2d 656]) or "essential to the case in chief, ..." (People v. Harrison, 59 Cal. 2d 622, 630 [30 Cal. Rptr. 841, 381 P.2d 665].)
It is obvious that Moore's testimony was not in the category of that involved in the Carter and Rodriguez cases and those decisions are, therefore, not controlling in the instant case.
The judgment is affirmed.
Roth, P. J., and Herndon, J., concurred.
NOTES
[fn. *] *. Retired Presiding Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262391/ | 240 P.3d 735 (2010)
237 Or. App. 342
STATE of Oregon, Plaintiff-Respondent,
v.
Hezakiah Benjamin BAKER, Defendant-Appellant.
071766AFE; A137073.
Court of Appeals of Oregon.
Submitted August 25, 2009.
Decided September 22, 2010.
*736 Garrett A. Richardson, Multnomah Defenders, Inc., filed the brief for appellant.
John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
ARMSTRONG, J.
Defendant appeals his convictions for unlawful delivery of marijuana, ORS 475.860(2) (2007), and endangering the welfare of a minor, ORS 163.575. He assigns error to the trial court's denial of his motion to suppress evidence that police officers obtained after entering his residence without a search warrant. We review the suppression ruling for legal error and conclude that the officers' entry into defendant's residence violated Article I, section 9, of the Oregon Constitution. We therefore reverse and remand.
The trial court made few findings. However, its findings are supported by the record, and, thus, we accept them. State v. Salisbury, 223 Or.App. 516, 518, 196 P.3d 1017 (2008). We presume that other pertinent facts were decided in a manner consistent with the trial court's ultimate conclusion. State v. Burdick, 209 Or.App. 575, 577, 149 P.3d 190 (2006). We relate the facts accordingly.
In April 2007, Officer Venables of the Medford Police Department responded to a call from dispatch about a domestic disturbance. According to the dispatcher, a person claiming to be Turnage's neighbor had called 9-1-1 to report that she could hear yelling or screaming coming from Turnage's house and that Turnage had used a prearranged code word to tell the neighbor that she was in trouble and needed immediate police assistance. The caller also reported the possibility that a two-and-one-half-year-old child was at the residence. Based on that information, Venables believed that there was an emergency that required a quick response, and he sped in his patrol car to Turnage's house using emergency lights and sirens.
A second officer, Wileman, was also dispatched. Wileman had used code words while growing up with his family and understood them to be used only in situations that were "pretty important."
The officers parked their patrol cars down the street from Turnage's house and walked to it. As they approached, they saw two people, a man and a woman, sitting on the front porch of the house; the officers could hear yelling coming from inside, but they could not make out what was being said. The pair on the porch was not involved in the disturbance, but they reported that they had been inside the house. Venables asked the pair questions in order "to figure out * * * exactly what was going on." However, the record indicates only that the people confirmed that an argument "was going on inside the residence." They did not say anything about weapons, injuries, or threats of violence, nor did they express any concern for the well-being of the people inside the house. Venables could not recall whether he *737 had asked the pair if anyone inside the house had been hurt.
Venables tried the front door but found it locked. He did not knock on the door or ring the doorbell, for fear of aggravating the situation. Instead, he asked the people on the front porch how he could get into the house, and they told him that he could get in through the back door. Both officers testified that, at that point, they believed that there was an emergency and that they needed to make contact with the people inside the house as quickly as possible. Wileman testified that "it sounded to [him] like [it] was one of those fights that could escalate into something possibly violent." Similarly, Venables testified that, based on the dispatch report of a woman possibly in danger, the yelling in the house, and the possible presence of a young child, he felt it necessary to ensure that "the parties were okay inside."
The officers then walked around toward the back of the house. On their way to the back door, the officers were able to see Turnage and defendant through a side window of the house. At that point, Wileman "could still hear yelling" between the couple, however he "couldn't hear words * * * [and] couldn't tell * * * what they were saying."
On reaching the back door, Venables could see Turnage and defendant through a window in the door. Defendant's back was turned to the officers; however, Turnage saw the officers and shouted, "Cops!" Defendant reacted quickly and began taking buds off of what appeared to be a marijuana plant, placing them in a box near the door. The officers then opened the door, identified themselves, and entered the house.
The officers separated the two and questioned them. After speaking with them, the officers quickly determined that there had been no assault between Turnage and defendant and saw that both were free of any red marks or bruises. The officers asserted that their first priority was ascertaining the safety of all of the affected people, including the two-and-one-half-year-old child who might have been in the house. Once they were satisfied that no one was injured, they turned their attention to the marijuana. In addition to the marijuana plants in the kitchen, the officers found several more in other rooms in the house.
Defendant was charged with five crimes, all related to the presence of the marijuana plants. Before trial, he moved to suppress evidence of the marijuana plants. Defendant raised several arguments, including that there was no true emergency or exigency justifying entry into the rear of the residence. The court denied the motion, concluding that the officers' entry into defendant's home was lawful under the emergency aid exception to the warrant requirement.
Article I, section 9, of the Oregon Constitution requires the police to obtain a warrant before conducting a search unless a recognized exception to the warrant requirement applies. See, e.g., State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991). One such exception is the emergency aid exception. Under that exception, police are authorized to make a warrantless entry into property if:
"(1) the police have reasonable grounds to believe that there is an immediate need for their assistance for the protection of life; (2) there is a `true emergency'that is, the circumstances giving rise to the police's belief that action is necessary actually exist; (3) the search is not primarily motivated by an intent to arrest a person or seize evidence; and (4) the police reasonably believe that, by making the warrantless entry, they will discover something that will alleviate the emergency."
State v. Bentz, 211 Or.App. 129, 135, 158 P.3d 1081 (2007). Suspicious circumstances or an officer's "gut instinct" are insufficient to establish the reasonableness of an officer's belief that immediate action is necessary to protect life. Burdick, 209 Or.App. at 581, 149 P.3d 190. Further, when the emergency aid doctrine is invoked to justify a warrantless entry into a home, "the state must make a strong showing that exceptional emergency circumstances truly existed." State v. Miller, 300 Or. 203, 229, 709 P.2d 225 (1985), cert. den., 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986).
Here, only the first two elements of the emergency aid doctrine are at issue. To satisfy those elements, the police officers *738 must have believed that immediate intervention by them was necessary to protect a person's life and their belief of that, evaluated at the time of entry, must have been objectively reasonable. See, e.g., State v. Martin, 222 Or.App. 138, 148, 193 P.3d 993 (2008), rev. den., 345 Or. 690, 201 P.3d 910 (2009). As explained below, we conclude that those requirements were not satisfied in this case. That is because, even assuming without deciding that, when the officers arrived at the home, sufficient objective indicia of an emergency existed to justify a warrantless entry, by the time that the officers entered the house, their belief that there was a life-threatening emergency requiring their intervention was not objectively reasonable.
We recognize that, if objective indicia of a life-threatening emergency were present up to the point that the officers reached the back door of the house, then their entry into the house and seizure of the marijuana plants conceivably could have been justified under the plain view and exigent circumstances doctrines. See, e.g., State v. Walle, 52 Or. App. 963, 967, 630 P.2d 377 (1981). However, if the officers' belief about a life-threatening emergency became unreasonable after they saw defendant and Turnage arguing through the side window of the house, then the officers lacked authority under the emergency aid doctrine to proceed to the back door. See State v. Ohling, 70 Or.App. 249, 252, 688 P.2d 1384, rev. den., 298 Or. 334, 691 P.2d 483 (1984) (noting that an officer ordinarily may not approach the side or rear of a home without a warrant or some other legal justification). Thus, our examination of the purported emergency focuses on the totality of the circumstances that existed when the officers looked into the house through the side window.[1]
To review, on arriving at the side of the house, the officers knew the following. A person claiming to be a neighbor had called 9-1-1 to report yelling and screaming at Turnage's house and that a two-and-one-half-year-old child might be present. The person had reported that Turnage had used a prearranged code word indicating that she was in trouble and needed immediate police assistance. When the officers arrived, they heard yelling from inside the house but could not describe what was being said. There is no indication in the record that any of the sounds that the officers heard were suggestive of a physical struggle. Also, on their arrival, the officers met a woman and man on the front porch of the house who explained that they had previously been inside the house. In response to questioning about "exactly what was going on," the people on the porch did not provide any information about weapons, injuries, or threats of violence, nor did they indicate that police intervention was necessary to prevent harm. Subsequently, while en route to the back door, the officers stopped at the side of the house where they could see through a window that defendant and Turnage were arguing inside. At that point, the officers still could not make out what was being said. Significantly, nothing indicates that the officers saw any signs of physical conflict, visible injuries, brandished weapons, or a fearful victim.
We appreciate that those facts present a close question, to which the trial court was duly sensitive. However, on those facts, we conclude that the officers' belief that a danger to life existed, which necessitated their immediate intervention, was not objectively reasonable. Specifically, once the officers reached the side of the house, their belief that immediate intervention was necessary was no longer supported by objective indicia that a life-threatening emergency existed. Rather, the circumstances demonstrated only that defendant and Turnage were engaged in a verbal, albeit heated, argument. Accordingly, we conclude that the state has failed to carry its burden to "make a strong showing that exceptional emergency circumstances truly existed." Miller, 300 Or. at 229, 709 P.2d 225.
On appeal, the only exception to the warrant requirement that the state advances to support affirmance of the trial court's suppression ruling is the emergency aid doctrine. *739 Specifically, the state asserts that, because "the evidence supporting the emergency aid-exception can be inferential," here, "the loud arguing coming from inside the house, combined with the report of a `code word,' was sufficient to support the officer's belief that assistance was needed to protect life." We disagree. When the officers saw through the side window that the couple was engaged in only a verbal, nonviolent argument unaccompanied by other evidence indicative of life-threatening violence, it ceased to be objectively reasonable for the officers to believe that immediate intervention by them to protect life was necessary.
Furthermore, the addition of the code word does not affect that conclusion. No evidence in the record indicates what the code word or phrase was or the range of circumstances that would precipitate Turnage's use of it. Without more information to indicate otherwise, Turnage's use of the code indicates only that she wanted police assistance, not that a life-threatening emergency existed. Hence, in the circumstances presented here, the combination of the yelling and use of a code word are insufficient to support an objectively reasonable inference that immediate intervention was necessary to protect life.
The trial court relied, in part, on State v. Agnes, 118 Or.App. 675, 848 P.2d 1237 (1993), in concluding that the officers permissibly entered the premises under the emergency aid doctrine. In Agnes, police officers responded to a neighbor's call, in which the neighbor described "banging, yelling and screaming" coming from a house. When they knocked on the front door, a man told them to go away and a woman told them to leave her alone. The officers persisted in knocking, while the man screamed obscenities, yet they still did not enter. Finally, the woman opened the door a few inches, and the officers could see that "[s]he was wrapped in a quilt and her hair was in disarray," and though "[s]he said that she was fine, * * * she appeared to be frightened." The officers could also see that furniture was in disarray, that "the television was `halfway falling off the counter,'" and that the defendant was intoxicated, lying on a couch. Only then did the officers push open the door and enter the home, where they discovered cocaine on the defendant's table. We concluded that, under those circumstances, the officers' entry was a reasonable response to "a true emergency that created an immediate need for their assistance for the protection of life." Id. at 679, 848 P.2d 1237 (internal quotation marks omitted).
The circumstances presented in this case are markedly different from those in Agnes, and the differences indicate that the trial court's reliance on Agnes was misplaced. First, the neighbor in Agnes told the police that, in addition to "yelling and screaming," the neighbor specifically heard "banging" sounds coming from the residencethat is, sounds that could be consistent with a physical struggle. Here, the officers were not told by the neighbor or the couple on the porch that they had heard any sounds of a physical struggle, and, further, the officers themselves never heard any noises indicating violence. Second, unlike the officers in Agnes, here the officers did not knock on the front door but merely proceeded to the back of the house after finding it locked. Finally, contrary to the circumstance in Agnes, once the officers did get a view inside the house and saw the arguing couple, they saw none of the signs of violence present in Agnes. There was no upset furniture, no intoxicated person, and no disheveled, frightened victim. In short, in Agnes there were indicia of prior and potential violence while, here, the officers had no evidence of a violent situation beyond "yelling and screaming" and the knowledge that a code word had been used to request police assistance.
In sum, we conclude that the trial court erred in concluding that the officers' entry into defendant's residence was justified under the emergency aid doctrine. Accordingly, the officers' entry was unlawful, and defendant's motion to suppress the evidence seized as a result of that entry should have been granted.
Reversed and remanded.
NOTES
[1] Venables testified that he did not see the marijuana plants in the kitchen until he had reached the back door of the house. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262393/ | 900 F.Supp. 1574 (1995)
Henry W. KREHLING, Jr., Plaintiff,
v.
Eli BARON, John N. Brugger, Jr., John F. Forsyth, Forsyth, Brugger, Reina & Bourgeau, P.A., Barclay Building Corp., Deauville Lake Development Corp., Montclair Building Corp., Chatham Square Development Corp., Elba Development Corp., Attorney's Title Insurance Fund, Inc., and Commonwealth Land Title, Defendants.
No. 93-347-CIV-FTM-17D.
United States District Court, M.D. Florida, Fort Myers Division.
June 23, 1995.
*1575 W. Donald Cox, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, FL, Allen I. Saeks, Michael J. Wurzer, Patrick M. O'Brien, Leonard, Street & Deinard, P.A., Minneapolis, MN, for plaintiff.
Mark V. Silverio, Cynthia Byrne Halle, Law Office of Mark V. Silverio, Miami, FL, for defendants except Brugger, Forsyth, Brugger, Reina & Bourgeau, P.A.
Bruce McLaren Stanley, Henderson, Franklin, Starnes & Holt, P.A., Ft. Myers, FL, for defendants John N. Brugger, Jr., Forsyth, Brugger, Reina & Bourgeau, P.A.
Michael S. Pasano, Zuckerman, Spaeder, Taylor & Evans, Miami, FL, Melissa Hammersley Clark, Zuckerman, Spaeder, Taylor & Evans, Tampa, FL, for defendant John F. Forsyth.
Dwight A. Whigham, Winesett, Avery, Dupree & Whigham, P.A., Ft. Myers, FL, for *1576 defendant Attorney's Title Insurance Fund, Inc.
Mark A. Brown, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, FL, for defendant Commonwealth Land Title Insurance Company.
KOVACHEVICH, District Judge.
ORDER ON MOTION TO DISMISS
This cause is before the Court on Defendant John F. Forsyth's Motion to Dismiss (Dkt. 87) and response (Dkt. 96).
STANDARD OF REVIEW
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
BACKGROUND
Plaintiff filed his Complaint against Defendants on December 7, 1993 (Docket No. 1). This Complaint was amended on February 22, 1995 (Docket No. 81). It contains the following facts as pled:
Defendant John F. Forsyth was an attorney at the law firm of Forsyth, Brugger, Reina & Bourgeau, P.A. (hereafter, the "Firm"). In the spring of 1991, Defendant was informed by an employee that another attorney for the Firm was writing fraudulent title insurance policies, and closing the sale of certain properties without paying or satisfying all the lienholders. The attorney named was Brugger. Defendant informed the employee that he would look into the situation. However, Defendant took no action.
In January of 1992, Defendant was again informed that Brugger was committing fraud. However, Defendant again did not take any affirmative steps to look into the allegations made against Brugger. Plaintiff alleges that as a result, Defendant, through his financial interest in the firm received a benefit from Brugger's allegedly fraudulent activity.
These allegedly fraudulent activities were connected with land developments in which Plaintiff was defrauded by Brugger, through one or more of the corporate defendants, of over $2.4 million. The alleged fraud perpetrated against Plaintiff was made possible by the Firm in several ways. First, Brugger and the Firm were counsel to both Plaintiff and Corporate defendants; Brugger had advised Plaintiff that recording mortgages Plaintiff held over the properties was unnecessary. Second, Brugger and the Firm were responsible for forwarding the proceeds of the sales of the property to Plaintiff, who held mortgages on these properties; the proceeds were allegedly not forwarded to Plaintiff. Third, Brugger acted as title insurance agent by acquiring title insurance for the property; Brugger, because he had advised against recording Plaintiff's mortgages, knew that the properties had liens held against the property by Plaintiff.
The allegations against Defendant Forsyth are contained in Count Seven of Plaintiff's First Amended Complaint (Docket No. 81). It alleges the following:
First, Defendant owed a duty to Plaintiff to prevent Brugger from continuing the fraud being committing when informed of Brugger's activities. Second, Defendant breached his fiduciary duties to Plaintiff by failing to take any action to prevent Brugger from committing any further fraud upon Plaintiff, once Defendant was apprised of its activity. Third, this breach was the proximate cause of the injuries suffered by Plaintiff. Based on these Counts in Plaintiff's Complaint, Defendant moves for dismissal (Docket No. 87).
DISCUSSION
Defendant proffers two theories for dismissal. The first is to dismiss for failure to state a claim. The second is that the Court does not have jurisdiction over this claim, and in the alternative, that the Court should elect not to exercise supplemental jurisdiction over this claim.
Defendant's first theory alleges that Plaintiff has "[failed] to state a claim upon which relief can be granted." Rule 12(b)(6). *1577 The threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation, 711 F.2d 989 (11th Cir.1983). Federal Rule of Civil Procedure 8 outlines the standard by which the adequacy of pleadings are to be judged. Rule 8(a)(2) requires the Plaintiff to provide in the complaint a "short and plain statement of the claim showing that the pleader is entitled to relief." The plaintiff need not set forth all the facts upon which the claim is based; rather, a short and plain statement is sufficient if it gives the Defendant fair notice of what the claim is and the grounds upon which it rests. Id. In addition to Rule 8(a), Rule 8(e)(1) states that each "averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required."
Taken together, Rules 8(a) and 8(e)(1) underscore the emphasis placed on clarity and brevity by the Federal pleading rules. These rules reflect the basic philosophy of the Federal Rules that simplicity, flexibility, and the absence of legalistic technicality are the touchstones of a good procedural system. 5 Wright & Miller, Federal Practice and Procedure: Civil 2d § 1217 at p. 169. The true test of the sufficiency of the complaint is whether it provides adequate notice to Defendant to make Defendant aware of the basis of the claims. The theory is that more detailed information should be developed through the discovery process.
Plaintiff's First Amended Complaint alleges that Defendant committed a wrongful act by failing to take action when informed by an employee of the Firm of Brugger's activity. Florida Statute § 621.07 establishes limited liability for members of a professional service corporation. However, it also creates several exceptions.
An individual will be personally liable for any negligent or wrongful act or misconduct committed by them, or by any person under that person's direct supervision regardless of their membership in a professional service corporation. Fla.Stat.Ann. § 621.07 (1995). Defendant contends that his failure to act does not bring his conduct within the exceptions created by the statute.
However, the weight of authority renders Defendant's argument unpersuasive. Assuming all the allegations in the First Amended Complaint as true, Defendant is subject to Rule 4-5.1(c)(2) of the Rules Regulating the Florida Bar, which provides that:
A lawyer shall be responsible for another lawyer's violation of the Rules of Professional conduct if: the lawyer is a partner in the law firm in which the other lawyer practices, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Rules Regulating the Florida Bar, 4-5.1(c)(2) (1994).
Therefore, Defendant Forsyth, through his knowledge of Brugger's activity, violated Rule 4-5.1(c)(2) by his failure to either report or stop the conduct once he was apprised of its existence. Furthermore, the Supreme Court of Florida has specifically rejected Defendant's attempt to use the professional association as a shield to prevent personal liability. The Court said that "[t]he corporate entity as a method of doing business will not be permitted to protect the unfaithful or unethical." In re The Florida Bar, 133 So.2d 554, 556 (Fla.1961).
Accordingly, the First Amended Complaint has set forth sufficient facts to show that Defendant committed a wrongful act within the meaning of § 621.07, and if proven would leave the Defendant personally liable for his misfeasance. The pleadings establish sufficient evidence to defeat Defendant's Motion to Dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6).
The second prong of Defendant's Motion to Dismiss, based on Rule 12(b)(1), is a dismissal for lack of jurisdiction over the subject matter. Defendant attacks Plaintiff's use of 28 U.S.C. § 1367 to establish supplemental jurisdiction. The Court has original jurisdiction over Plaintiff's Racketeer Influenced and Corrupt Organization Act (hereafter "RICO") claim. 18 U.S.C. § 1964 (1995). To establish supplemental jurisdiction over claims against Defendant, Plaintiff must meet the requirements of 28 U.S.C. § 1367 (1994). Section 1367 provides:
*1578 [I]n any civil action of which the district courts have original jurisdiction, the district court shall have supplemental jurisdiction over all claims that are so related to claims in that action that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. § 1367.
Moreover, in United Mine Workers v. Gibbs, the Supreme Court established that "[t]he state and federal claims must derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Applying this test to Plaintiff's claim against Defendant, both claims share common elements. First, they revolve around the central fraud involving the federal RICO claim. Second, the evidence for the non-federal claim will involve the same witnesses and evidence as the federal RICO claim. These parallel connections create the same case or controversy within the meaning of Article III of the United States Constitution. Therefore, supplemental jurisdiction should be correctly exercised under § 1367.
Defendant argues in the alternative that even if supplemental jurisdiction over Plaintiff's complaint is proper, the Court should nonetheless decline to exercise it. There are four examples, under § 1367, wherein the court should exercise its discretion. These are:
(1) the claim raises a novel or complex issue of State law;
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction;
(3) the district court has dismissed all claims over which it has original jurisdiction; or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367 (1994)
Applying these to Plaintiff's claim, first, the breach of fiduciary duty is not such a novel or complex issue of State law that this court should not exercise jurisdiction. Second, this claim does not predominate over the RICO claim. Third, this court has not dismissed all claims over which it has original jurisdiction.
Regarding the fourth exception of § 1367, in Palmer v. Hospital Authority of Randolph County, such factors as "judicial economy, convenience, fairness to the parties, and whether all the claims would be expected to be tried together" should be used in determining whether to decline to exercise supplemental jurisdiction. Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1569 (11th Cir.1994).
In this case, because it was previously determined that the federal and non-federal claims arise out of the same case or controversy, judicial efficiency would be more properly served by the inclusion of the state claim. With the broad approach of "judicial economy" on this matter, this Court views the following reasons as persuasive. First, the evidence and witnesses for the claims are the same. Second, not exercising supplemental jurisdiction would require the simultaneous presentation of two trials which would require those same witnesses to be present at both. These offer strong motivation to not decline supplemental jurisdiction. Therefore, the Court will not decline to exercise proper supplemental jurisdiction over the non-federal claim. Accordingly, it is
ORDERED that Defendant's Motion to Dismiss (Docket No. 87) be DENIED as to all Counts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262456/ | 306 A.2d 729 (1973)
The STATE of Delaware, Plaintiff Below, Appellant,
v.
Ralph DENNIS, Defendant Below, Appellee.
Supreme Court of Delaware.
June 5, 1973.
Myron T. Steele, Deputy Atty. Gen., Dover, for plaintiff below, appellant.
Nicholas H. Rodriguez, Schmittinger & Rodriguez, Dover, for defendant below, appellee.
WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.
*730 CAREY, Justice:
The appellee herein, Ralph Dennis, was found guilty of violating 21 Del.C. § 2746 by driving an automobile upon a public highway at a time when his driving privilege was revoked. The revocation was the result of a prior conviction of driving while under the influence of alcoholic liquor. He was found guilty of the § 2746 violation in a Justice of the Peace Court, from which he appealed to the Superior Court. In the latter Court, leave to amend the information was denied by the trial Judge, who then dismissed the original information. The State has appealed from that ruling.
The first information filed in the Superior Court charged that the appellee unlawfully drove a motor vehicle upon a public highway "... while his chauffeur's license had been revoked by the Motor Vehicle Department of the State..." At the trial, during the testimony of the first State's witness, it appeared that the appellee's license was a Pennsylvania license, whereupon the State moved to file an amended information charging that the appellee drove a motor vehicle upon a public highway of the state "... while his driving privileges ... had been revoked by the Motor Vehicle Department." The Court refused to permit this amendment on the theory that the amended information charged a different offense than that charged in the original information. The prosecuting attorney declined to dismiss the case, whereupon the Court entered an order of dismissal for the failure of the State to present evidence to *731 prove revocation of the chauffeur's license.
I
We are convinced that error was committed in denying the application to amend. The Act under which the charge was made (21 Del.C. § 2746) provides that "any person whose driver's license or driving privileges has been suspended or revoked .. and who drives any motor vehicle upon the highways of this State during the period of suspension or revocation ..." is guilty of an offense. The original information indicated that the appellee drove during a period when his chauffeur's license had been revoked by the Motor Vehicle Department. This of course was incorrect; in fact, his driving privileges in this state had been revoked. The appellee contends that the two informations charged different offenses, even though both of such offenses would fall within the prohibition of § 2746.
We disagree with appellee's contention. The object of this statute is to prohibit the operation of a car on our highways by one who has no driving privileges, as was the case here. Whether the appellee's chauffeur's license or merely his driving privileges had been revoked is of little moment; the important consideration is whether he had or did not have the privilege of driving on our roads. The proposed amendment did nothing more than correct a mistaken averment concerning the language by which appellee's right to drive in this state had been withdrawn. Superior Court Crim.Rule 7(e), Del.C.Ann., permits amendment of an information if no new or additional offense is charged and if no substantial right of the defendant is prejudiced. The appellee makes no suggestion that he was taken by surprise, or that he would have been unduly harmed by the change. The motion was simply one to make the information conform to the evidence. We see no reason why this change should not have been allowed. State v. Ruggiere, 180 Neb. 869, 146 N.W.2d 373 (1966); State v. Coffield, Del.Super., 3 Storey 406, 171 A. 2d 62 (1961).
II
The appeal filed by the State in this case is based upon 10 Del.C. § 9902, which gives the State an absolute right to appeal the final Order of a lower Court dismissing an information under certain conditions. During oral argument, we questioned the State's right of appeal in this case because the Order entered below, while called a dismissal, was in effect a judgment of acquittal because the trial Judge had commenced the hearing of testimony. A witness had been sworn and had answered a number of questions before the application to amend was made. The trial had thus commenced and defendant was entitled to a judgment of acquittal. In a non-jury case, jeopardy attaches when the Court has begun to hear the evidence. 1 Antieau, Modern Constitutional Law § 5:21 (1969); 21 Am.Jur.2d, Criminal Law § 175 (1965); People v. Laws, 29 Ill.2d 221, 193 N.E.2d 806 (1963). If the correct judgment had been entered, the State could appeal only under 10 Del. C. § 9903, for which this Court's permission is a necessary prerequisite. In any event, following this discussion during the argument, the State made an oral application, at our suggestion, for such permission, which we granted.
We accordingly must dispose of the case as a judgment of acquittal. We cannot send the case back for retrial in a § 9903 appeal, the function of which is to provide guidance for future cases, State v. Clark, Del.Supr., 270 A.2d 371, 372 (1970), notwithstanding our agreement with the State's view as to the issue we have herein decided; the appellee cannot be retried for this same offense.
To perfect the record, the case will be remanded for the entry of a judgment of acquittal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262475/ | 900 F.Supp. 749 (1995)
In re RESIDENTIAL DOORS ANTITRUST LITIGATION.
This Document Relates to All Cases.
Master File No. 94-CV-3744. MDL Docket No. 1039.
United States District Court, E.D. Pennsylvania.
September 18, 1995.
*750 Harold E. Kohn, Kohn, Savett, Klein & Graf, P.C., Philadelphia, PA, Steven A. Asher, Leonard Barrack, Barrack, Rodos & Bacine, Philadelphia, PA, for Lumco Industries, Inc.
Gary M. Marek, Kittredge, Donley, Elson, Fullem & Embick, Philadelphia, PA, and Margaret M. Zwisler, Washington, DC, for Premdor Corporation.
Richard L. Bazelon, Bazelon & Less, Philadelphia, PA, Daniel A. Rezneck, Arnold and Porter, Washington, DC, for Steves & Sons, Inc.
William H. Roberts, Blank, Rome, Comisky & McCauley, Philadelphia, PA, for Ledco, Inc.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Pending before the Court are several motions related to discovery in these consolidated class action proceedings. Defendant Premdor Corporation ("Premdor") has filed a motion pursuant to Fed.R.Civ.P. 26(c), which Defendants Steves & Sons, Inc. ("Steves") and Ledco, Inc. ("Ledco") have joined, requesting a protective order staying certain discovery proceedings. Defendants seek to stay this discovery until any criminal proceedings arising out of a related federal antitrust investigation are complete "or until such time as the employees, agents and officers of the defendants are no longer at risk of criminal prosecution." Plaintiffs oppose Defendants' motion for a protective order, and have also filed a motion pursuant to Fed.R.Civ.P. 37 seeking to compel Defendants to respond to interrogatories seeking information about communications between Defendants and their competitors related to pricing and other business activities. Defendants have opposed Plaintiffs' motion to compel, maintaining that they have answered Plaintiffs' interrogatories to the extent possible at this time and cannot compel their employees with personal knowledge of the facts to provide any additional information in light of the federal criminal investigation.
On August 11, 1995, Defendant Premdor filed an additional motion for a protective order seeking to stay certain class certification deposition discovery by Plaintiffs, contending that Plaintiffs are attempting to engage in the further discovery proceedings that Defendants have sought to stay through the earlier motions. Defendant Steves has filed a motion renewing its earlier motion for a protective order and incorporating Premdor's August 11, 1995 motion, and Defendant Ledco, Inc. ("Ledco") has filed a similar motion incorporating Premdor's August 11, 1995 *751 motion. Plaintiffs have filed a response opposing any such protective orders.
For reasons discussed below, Defendants' motions for protective orders will be denied. In addition, Plaintiffs' motion to compel Defendants to answer interrogatories and respond to requests for production of documents will be granted.
I. Background
A. Prior Proceedings
In the civil actions presently before the Court, Plaintiffs allege that the Defendants, who are manufacturers of residential flush doors, engaged in conspiratorial activity to raise, maintain, stabilize, and fix prices of residential flush doors throughout the United States. Plaintiffs and members of the class they seek to represent are purchasers of residential flush doors, and filed these actions after each defendant entered guilty pleas to one-count informations charging each defendant with violating Section 1 of the Sherman Act, 15 U.S.C. § 1.
Two of the actions, Lumco Industries v. Premdor Corp, Civil Action No. 2:94-3744, and Dubell Lumber Co. v. Premdor Corp., et al., Civil Action No. 2:94-4174, were originally filed in the Eastern District of Pennsylvania. On December 1, 1994, the Judicial Panel on Multidistrict Litigation transferred two actions from the Middle District of Florida to this Court for coordination and consolidation of pretrial proceedings: Norwood Sash & Door Mfg. Co. v. Premdor Corp., et al., Civil Action No. 8:94-975, and Tonka Building Supplies, Inc. v. Premdor Corp., et al., Civil Action No. 8:94-1127. Another action, Derr Lumber & Millwork Co. v. Premdor Corp., et al., Civil Action No. 2:95-2078, was filed in the Eastern District of Pennsylvania on April 10, 1995.
In the criminal proceedings charging each defendant with violating the Sherman Act, the United States filed a separate information against each defendant and did not identify any co-conspirators. Each defendant subsequently entered into a separate plea agreement. Defendant Premdor was sentenced by the Honorable Susan C. Bucklew, United States District Judge, Middle District of Florida, on June 22, 1994, and Defendant Steves was sentenced by Judge Bucklew on July 1, 1994. In conjunction with pleas of guilty to one count of price fixing, Defendant Premdor paid a fine of $6,000,000.00, and Defendant Steves paid a fine of $650,000.00. Defendant Ledco was sentenced by the Honorable Elizabeth A. Kovachevich, United States District Judge, Middle District of Florida, on January 30, 1995 and paid a fine of $250,000.00.
In its plea agreement with the United States, Defendant Premdor agreed to the following:
7. Factual Basis
Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those facts beyond a reasonable doubt:
A. FACTS
The defendant is a major producer of residential flush doors made and sold in the United States. The defendant and others engaged in a conspiracy to fix, raise, and maintain the prices charged to certain U.S. customers for residential flush doors, in unreasonable restraint of trade in violation of the Sherman Antitrust Act. As a result of the conspiracy, from at least as early as January 1993 through at least December 1993, prices for residential flush doors sold to certain U.S. customers were fixed, raised and maintained. The business activities of the defendant and co-conspirators that are the subject of this information were within the flow of, and substantially affected, interstate commerce.
The plea agreements entered into by the other Defendants and the United States include similar certifications of facts. Each plea agreement also includes similar sections regarding cooperation and immunity for its officers, agents, and employees. For example, the plea agreement between Premdor and the United States includes the following sections:
5. Cooperation
The Defendant (including its parent, affiliates and subsidiaries) agrees to cooperate *752 fully with the United States in the conduct of any federal grand jury or other federal criminal investigation of antitrust violations in the residential flush door industry, and in litigation arising from such investigations. This cooperation shall include, but is not limited to, defendant's using its best efforts to secure the full and candid cooperation of all of its present or former officers, agents and employees who may have knowledge or information that might be of assistance to any federal grand jury or other criminal investigation of antitrust violations in the residential flush door industry, and providing the United States with all requested documents and physical evidence in its possession, custody or control.
6. Individuals Who May Qualify for Immunity
The United States agrees that each present officer, agent or employee of Premdor Inc. (other than its current President and Chief Executive Officer), its affiliates, or subsidiaries, who may have knowledge that might be of assistance to any federal grand jury or other federal criminal investigation of antitrust violations in the residential flush door industry may, within 60 days from the date of entry of the plea, unless extended by the United States in writing, provide the Antitrust Division with all information in his or her possession which might assist the grand jury investigation and not attempt to protect any person or entity by giving false information or by omission, and not falsely implicate any person or entity. If, in the judgment of the staff, the individual is fully honest, candid and truthful, the attorneys will, at their option, either request authority from the Assistant Attorney General in charge of the Antitrust Division to obtain a court order compelling the testimony of such officer, agent or employee before an appropriate grand jury pursuant to 18 U.S.C. § 6001 et seq., or inform the officer, agent or employee in writing that he or she will not be prosecuted based on the information provided or information derived therefrom. In any testimony before the grand jury pursuant to 18 U.S.C. § 6001, such officer, agent or employee shall be granted an opportunity to testify concerning the information provided to the Antitrust Division. The determination whether the individual has been fully honest, candid and truthful may be made after the investigation has been completed and is conditioned on a determination that the information provided was fully truthful and complete on all material points. If the individual has not been fully honest, candid and truthful, he or she will not be entitled to any non-prosecution agreement or immunity of any kind under this plea agreement. In that event, the United States agrees only that no statement made by the individual will be used directly against that individual in any proceeding arising out of this investigation, except to impeach his or her testimony, or in a prosecution for making a false statement. The Antitrust Division is free to use leads derived from information provided by the individual to pursue its investigation and any subsequent prosecution of that individual or others. In no event will any agent, officer or employee receive immunity from charges of perjury, obstruction of justice, or making a false statement in connection with this investigation after the date of the agreement.
Prior to the transfer of actions by the Judicial Panel on Multidistrict Litigation, this Court entered an Order consolidating actions in the Eastern District of Pennsylvania and establishing various pretrial procedures. This Court also entered an Order approving a schedule agreed upon by the parties for discovery. Following transfer of the Florida actions, this Court entered an Order approving an updated discovery and briefing schedule agreed upon by the parties. Notably, both the original and updated discovery and briefing scheduling agreed upon by the parties provided for extensive "merits" discovery while "class" discovery was also proceeding. The parties are in agreement that Defendants have produced over 100,000 documents in the course of discovery and identified numerous individuals who possess relevant information for possible deposition.
*753 B. Defendants' Motion for a Protective Order and Plaintiffs' Motion to Compel
Plaintiffs submitted the following interrogatories numbered 10, 11, and 12 to Defendants Premdor and Steves:
10. State whether any of your officers or employees entered into any understanding, agreement, plan or scheme, express or implied, formal or informal, with any other person or any other residential door manufacturer, marketer, distributor, or supplier, concerning residential flush doors pertaining to prices, published prices, quoted prices, prevailing prices, discounts, future business, bids, territories, customers, allocation of business, discontinuation of any type or category of doors or other competitive activity. If the answer is affirmative, state separately as to each understanding, agreement, plan or scheme:
(a) the identify of each such officer or employee;
(b) the identity of each person with whom it was made;
(c) when it was entered into;
(d) where it was entered into;
(e) its terms;
(f) the identity of each document constituting, referring or relating thereto.
11. Did any of your officers or employees agree with any officer or employee of any other defendant or any other residential flush doors manufacturer, distributor, marketer or supplier to stagger the issuance of price sheets or bulletins relating to residential flush doors? If so, state:
(a) the identity of your officer or employee;
(b) the identity of any other person involved;
(c) when such agreement was made;
(d) the substance of the agreement;
(e) identify each price sheet or bulletin that was issued to such agreement;
(f) identify any other documents referring or relating in any way to said agreement or agreements.
12. Identify each of your officers or employees who was present at any meeting with competitors pertaining to prices, pricing of doors, customers, bids to customers, or territories, and, as to each:
(a) identify the meeting;
(b) identify the person or persons who initiated, called or organized the meeting;
(c) describe every action taken by you as a result of the meeting.
In a supplemental response to interrogatory No. 10, Defendant Premdor asserted that it had previously identified its officers and employees engaged in the sales and marketing of residential doors and referred Plaintiffs to customer files, apparently already released through discovery, which purportedly contain pricing agreements between Premdor and its customers. In response to interrogatory No. 11, Premdor contended that the interrogatory was "unduly burdensome and duplicative" in light of the other interrogatories, but that, to the best that it understands the interrogatory, its answer was "no." In response to interrogatory No. 12, in addition to an objection based upon the purported burdensome nature of the interrogatory, Premdor asserted that its employees "may" have met employees or representatives of other residential door manufacturers, but that "most" such meetings would not be responsive to Plaintiffs' request.
In response to interrogatories No. 10 and No. 12, Premdor also stated as follows:
As already disclosed, Premdor also entered a Plea Agreement with the United States Department of Justice which recites each of the facts admitted by Premdor in that proceeding. The individuals involved in the activities referred to in the Plea Agreement may have additional information responsive to this interrogatory but as the Department of Justice investigation is not yet complete and these individuals cannot be compelled to be witnesses against themselves by supplying information either directly to plaintiffs or indirectly through Premdor, Premdor states that it will supplement its response to this interrogatory as and when additional information becomes available to it.
The responses to these interrogatories by Defendant Steves are similar. Steves promised *754 that it would produce documents describing terms of the agreements between its customers and distributors, stated that it was not aware of any of its officers or employees agreeing to "stagger the issuance" of price sheets, and stated that there were two "chance" meetings between Steves and competitors at trade shows with no subsequent action by Steves. Steves also asserted, in response to interrogatories No. 10 and 12, that
[t]his Interrogatory is premature at this time, since the Department of Justice investigation is not yet complete and these persons cannot be compelled to be witnesses against themselves by supplying information either directly or indirectly through the corporation by which they are employed. Steves states that it will supplement its response to the Interrogatory as and when additional information becomes available to it.
After submitting these answers to Plaintiffs, Defendant Premdor moved for a protective order. In this motion, Premdor asserts that the Government's grand jury investigation of the residential flush door industry is continuing and that the Government had not yet extended immunity to any employees, officers or agents of the Defendants in this case. Premdor contends that:
In order to answer plaintiffs' latest interrogatories, Premdor would have to obtain information from the personal knowledge of its officers, agents, or employees involved in the events that led to the corporate guilty pleas. Every one of those individuals is subject to the risk of criminal prosecution, and will continue to be in jeopardy until the government investigation is completed. As a result of their fear of prosecution, these individuals have refused to provide Premdor with the information it needs to answer the interrogatories. For the same reason, these individuals would not provide the information in depositions on the merits. Premdor is in an impossible dilemma, because it cannot fully respond to plaintiffs' discovery requests without the information known only to certain individuals, and it cannot at present compel those individuals to divulge that information.
Premdor Motion for a Protective Order, at 3. Premdor asserts that its dilemma is "temporary," and seeks a stay of further merits discovery until the criminal proceedings are completed. Subsequently, Defendants Steves and Ledco moved to join in Premdor's motion.
In its response to this motion for a protective order, Plaintiffs assert that any such stay of merits discovery until the completion of criminal proceedings would be inappropriate in that Defendants have already pled guilty and criminal proceedings as to the Defendants are complete. Plaintiffs numerous contentions include an assertion that Defendants' motion is an attempt to avoid negative inferences which may be drawn against Defendants in civil proceedings from any invocation of Fifth Amendment rights by Defendants' employees.
Plaintiffs have also filed a motion to compel Defendants Premdor and Steves to respond to Interrogatories No. 10, 11 and 12. In addition to the similar contentions made in their response to Defendants' motion for a protective order, Plaintiffs assert that their interrogatories seek to narrow issues for trial and that Defendants' responses require them to "search for the proverbial `needle in the haystack'" in the over 100,000 documents Defendants have produced. Plaintiffs also assert that Defendants must presently possess information responsive to the interrogatories in light of their guilty pleas in federal court, and should not be able to avoid providing full and complete answers by "alluding generally to the knowledge that unnamed employees may have but may be unwilling to impart for fear of incriminating themselves."
C. The August 11, 1995 Motion for a Protective Order
On August 11, 1995, Defendant Premdor filed a motion for a protective order to stay discovery of certain subjects referred to in a notice of class discovery deposition served by the Plaintiffs on July 26, 1995. In response to a similar notice of deposition, Defendant Steves filed a motion renewing its earlier motion for a protective order and Ledco filed *755 a motion joining and incorporating Premdor's August 11, 1995 motion.
The notice of deposition requested Defendants to produce one or more officers, agents or representatives who could testify concerning a variety of issues. Defendants specifically objected to seven issues described as follows in the notice of the deposition of Defendant Premdor:
6. With respect to Defendant Premdor, its officers, employees, agents or representatives, any understanding, agreement, plan or scheme, express or implied, formal or informal, with any other person or any other residential flush door manufacturer, marketer, distributor or supplier, concerning residential flush doors pertaining to prices, published prices, quoted prices, prevailing prices, discounts, future business bids, territories, customers, allocation of business, discontinuation of any type or category of doors or other competitive activity.
7. The identity of any officer, employee, agent or representative of defendant Premdor who entered into any understanding, agreement, plan or scheme, express or implied, formal or informal, with respect to the items set forth in paragraph 6 above.
8. The identity of any person or any other residential flush door manufacturer, marketer, distributor or supplier who entered into any understanding, agreement plan or scheme, express or implied, formal or informal, with respect to the items set forth in paragraph 6 above with any officer, employee, agent or representative of defendant Premdor.
9. The date and terms of any understanding, agreement, plan or scheme, express or implied, formal or informal, with respect to the items set forth in paragraph 6 above and the states of the United States in which the participants and the customers affected were located.
10. The identity of any documents which refer or relate to any understanding, agreement plan or scheme, express or implied, formal or informal, with respect to the items set forth in paragraph 6 above.
11. Meetings with competitors pertaining to prices, pricing of doors, customers, bids to customers, or territories, the identity of all persons who initiated, called, organized or attended such meetings and all actions taken by defendant Premdor as a result of any such meeting.
12. The internal investigation undertaken by Howrey & Simon referred to at page 33 of the Transcript of Rearraignment and Sentencing before the Honorable Susan C. Bucklew, United States District Court Judge dated June 22, 1994, in United States v. Premdor Corporation, Case No. 94-120-CR-T-24(C) (M.D.Fla.).
In the notice of depositions of Defendants Steves and Ledco, Plaintiffs did not refer to a specific internal investigation but sought only information relating to "any internal investigation" undertaken by each Defendant "with respect to its involvement in price fixing in the residential flush doors industry."
Premdor contends that Plaintiffs are merely seeking to discover information that is already the subject of its earlier motion for a protective order. Premdor also asserts that it agreed to an extension of class discovery from June 23, 1995 to August 8, 1995 only to permit Plaintiffs' completion of certain discovery requests, and not to engage in a "new wave" of class depositions.
In their response to Defendant Premdor's August 11, 1995 motion, Plaintiffs assert that the information they seek in specifications 6 through 12 are necessary to address potential arguments related to the scope and duration of the alleged price-fixing conspiracy by defendants in upcoming class certification proceedings. Plaintiffs also assert that, regardless of whether the depositions go forward as part of "class" discovery, they may take the depositions in accordance with established scheduling orders related to "merits" discovery, and that Defendants are not entitled to a stay of such discovery.
II. Discussion
A. Stay of Discovery Proceedings
"Special problems are presented when conduct that is the basis for civil antitrust claims is also the subject of criminal or administrative proceedings. Indeed, disclosure of a criminal or administrative investigation frequently *756 triggers the filing of civil actions ... The criminal charges should ordinarily be tried first, not only because of the requirements of the Speedy Trial Act but also because Fifth Amendment claims tend to disrupt civil discovery. A general stay of all activities in the civil litigation pending completion of the criminal case will rarely be appropriate, however." Manual For Complex Litigation 3d, § 33.14 at 306.
Courts have noted that "the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with the economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." Texaco, Inc. v. Borda, 383 F.2d 607, 608 (3d Cir.1967) (quoting Landis v. North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936)). In considering a stay, courts have looked to the five factors discussed in Golden Quality Ice Cream Co. v. Deerfield Specialty, 87 F.R.D. 53 (E.D.Pa.1980): plaintiffs' interest and potential prejudice, burden on the defendants, burden on the Court, burden on non-parties, and the public interest.
After considering the interests of the parties, together with the Court's effort to bring complex litigation to an early disposition, as well as the factors set forth in Golden Quality Ice Cream, supra, the Court concludes that any stay of discovery would be inappropriate in these proceedings. The parties do not dispute that the criminal proceedings have concluded for each defendant in these civil actions, and Defendants have not identified any pending criminal proceedings against any of their officers, agents, or employees. Defendants' contention that discovery can nevertheless be stayed without prejudice to Plaintiffs until the completion of the Government's criminal investigation of unspecified others at an unknown future date is without merit. Defendants' additional contention that this Court will be overburdened by assertions of privilege as yet unmade is likewise without merit. Similarly, the Court finds that there is no merit to Defendants' prediction that the individual interests of Defendants' officers, agents, and employees might be prejudiced in the absence of a stay of discovery. Furthermore, the Court believes that the public interest may be prejudiced by any delay in discovery proceedings in these actions.
The Court has given particular consideration to Defendants' assertion that a stay would be appropriate on the ground that Defendants' officers, agents, and employees have allegedly refused to provide Defendants with the information needed to respond to Plaintiffs' discovery requests and also prepare Defendants' own case. Defendants' rely on United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970), in which the Supreme Court reviewed the conviction of two corporate officials who were convicted of violations of the Federal Food, Drug and Cosmetic Act on the basis of evidence obtained in a contemporaneous civil condemnation proceeding initiated by the United States Government against the corporation and the officials. Although the Supreme Court reversed the Court of Appeals decision reversing the judgments of conviction, Defendants emphasize the Supreme Court's statement that:
The respondents press upon us the situation where no one can answer the interrogatories addressed to the corporation without subjecting himself to a "real and appreciable" risk of self-incrimination. For present purposes we may assume that in such a case the appropriate remedy would be a protective order under Rule 30(b), postponing civil discovery until termination of the criminal action.
Kordel, supra, at 8-9, 90 S.Ct. at 768. Notably, the Supreme Court continued:
But we need not decide this troublesome question. For the record before us makes clear that even though the respondents had the burden of showing that the Government's interrogatories were improper, they never even asserted, let alone demonstrated, that there was no authorized person who could answer the interrogatories without the possibility of compulsory self-incrimination. To the contrary, the record shows that nobody associated with the corporation asserted his privilege at all.
*757 Id. In the instant actions, unlike in Kordel, each defendant has already entered a guilty plea in a criminal proceeding and has been sentenced to pay a substantial fine. Each defendant has stated in its plea agreement that it engaged in a conspiracy with others to fix, raise, and maintain the prices charged to certain U.S. customers for residential flush doors, in unreasonable restraint of trade in violation of the Sherman Antitrust Act. Again, unlike in Kordel, these plea agreements were executed by an officer of the corporation with the approval of the corporation. In light of the record, where Defendants agreed to a factual basis for their guilty pleas, a stay of merits discovery would be inappropriate. Moreover, as Wright, Miller and Marcus have observed:
Suppose that interrogatories are directed at a corporation. The officer designated to answer them cannot object because the answers will tend to incriminate the corporation but he or she cannot be required to answer if the answers would tend to incriminate him or her personally. In this situation the burden on the corporation is to designate someone to answer on its behalf who can furnish as much of the requested information as is available to the corporation without fear of self-incrimination. The Supreme Court has suggested, without deciding, that if there should be a case in which no one can answer interrogatories addressed to the corporation without subjecting himself or herself to a risk of self-incrimination, the remedy would be a protective order, under what is now Rule 26(c), postponing civil discovery until termination of the criminal action. It is far from clear how this would work if no criminal action is pending and it is unlikely that a criminal action would actually be brought. In any event, the case is unlikely ever to arise since Rule 33(a) allows any agent of the corporation, even its attorney, to answer interrogatories on behalf of a corporation.
8A Wright, Miller & Marcus, Federal Practice and Procedure, § 2018 at 276.
For the above reasons, the Court will deny Defendants' motions for a protective order staying further discovery. As the motions for protective orders submitted in August 1995 rest on the same grounds as the earlier motions and incorporate those motions, the August 1995 motions for protective orders will also be denied.
B. The Motion to Compel Answers to Interrogatories
In addition to many of the issues and contentions raised in the pleadings related to the protective orders, Plaintiffs' motion to compel also asserts that Defendants have failed to provide full and complete answers to interrogatories Nos. 10, 11, and 12 in that Defendants have failed to provide Plaintiffs with information they presently possess, given no specific details as to how Defendants have tried to obtain additional information, and referred Plaintiffs to over 100,000 pages of documents without further detail. In response to this assertion, Defendants contend that they have answered Plaintiffs' interrogatories as fully as possible and in sufficient detail, and will supplement their answers when their officers, agents and employees are able to testify without fear of criminal prosecution following the completion of any criminal investigation. In the instant actions, awaiting the completion of possible criminal investigations would only create an unnecessary delay in the discovery process and seriously interfere with the Court's efforts to bring this complex litigation to an early disposition. In light of the discussion supra and the Court's review of Defendants' answers to Plaintiffs' interrogatories, the Court will grant Plaintiffs' motion to compel answers to interrogatories.
ORDER
AND NOW, this 18th day of September, 1995; Defendant Premdor having filed a motion to stay merits discovery; Defendant Steves & Sons having joined in this motion, and Defendant Ledco having also filed a motion to join; Plaintiffs having filed a motion to compel Defendants Premdor and Steves to respond to several interrogatories; Defendants Premdor, Steves, and Ledco having filed additional motions for protective orders related to class discovery depositions; *758 for reasons discussed in this Court's Memorandum of September 18th, 1995;
IT IS ORDERED:
1. Defendant Ledco's motion to join Defendant Premdor's motion for a protective order staying further merits discovery is GRANTED.
2. Motions by Defendants Steves & Sons, Premdor, and Ledco for protective orders staying merits discovery are DENIED.
3. Motions by Defendants Steves & Sons, Premdor, and Ledco for protective orders staying class discovery depositions related to specifications 6-12 in the notices of depositions served by Plaintiffs are DENIED.
4. Plaintiffs' motion to compel answers to interrogatories is GRANTED and Defendants Premdor and Steves shall serve full, complete and truthful responses to Plaintiffs' merits interrogatories Nos. 10, 11, and 12 by Monday, October 2, 1995. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262485/ | 900 F.Supp. 1055 (1995)
ENVIROPLAN, INC., Plaintiff,
v.
WESTERN FARMERS ELECTRIC COOPERATIVE, Defendant.
No. IP94-2061-C-B/S.
United States District Court, S.D. Indiana, Indianapolis Division.
September 19, 1995.
*1056 *1057 Sue Figert Meyer, Rubin & Levin, P.C., Indianapolis, Indiana, for plaintiff.
Mark A. Palmer, Gretchen L. Doninger, Johnson Smith Pence Densborn Wright & Heath, Indianapolis, Indiana, Stephen G. Solomon, Tamara Beam Cain, Derryberry, Quigley, Parrish, Solomon & Blankenship, Oklahoma City, Oklahoma, for Defendant.
ENTRY
BARKER, Chief Judge.
Defendant Western Farmers Electric Cooperative ("Western Farmers") moves to dismiss this cause of action for lack of personal jurisdiction, improper venue, forum non conveniens, and failure to state a claim, or in the alternative to transfer the case to the Western District of Oklahoma. The Court denies Defendant's motion in its entirety.
I. FACTUAL BACKGROUND
This diversity action is for breach of contract. Western Farmers is an Oklahoma cooperative that generates and distributes *1058 electricity to cooperative members in Oklahoma. (Def.'s Mot. to Dismiss at 1) Plaintiff Enviroplan, Inc. ("Enviroplan"), is a New Jersey corporation with places of business in Roseland, New Jersey, and in Indianapolis, Indiana. (Complaint ¶ 1) Western Farmers solicited bids for the design, manufacture, and installation of a so-called Continuous Emission Monitoring System ("CEMS") and a so-called Data Acquisition System ("DAS") at Western Farmers' headquarters in Anadarko, Oklahoma, and at its electrical generating plants in Mooreland and Hugo, Oklahoma. (Def.'s Reply at 5) The two systems would be designed to collect emission discharge from the stacks at Defendant's Oklahoma plants, to analyze the emissions, to log the data results, to transmit the data from the plants to Defendant's headquarters, and to generate an emissions data report for transmittal to the U.S. Environmental Protection Agency and the Oklahoma Department of Environmental Quality. (Def.'s Reply at 5) Western Farmers solicited a bid from Enviroplan and on May 24, 1993 entered into a contract with Enviroplan ("the Contract") under which the New Jersey corporation would design, manufacture, and install both systems. (Complaint ¶¶ 4, 5) The contract price was $572,978. (Complaint, Exhibit A at 8A)
Enviroplan now alleges that it has fully performed under the terms and conditions of the Contract by providing all goods and services required thereunder, and that Defendant has breached the Contract by having failed to pay an amount of $126,450.38 plus interest after Plaintiff demanded such payment. (Complaint ¶¶ 4, 7, 10, 11)
II. PERSONAL JURISDICTION
A. Standard of Review
A federal district court sitting in diversity may exercise personal jurisdiction over a nonresident defendant only if a court of the state in which the district court sits would have such jurisdiction. Nucor v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 580 (7th Cir.1994); Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1243 (7th Cir.1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1415, 113 L.Ed.2d 468 (1991); Fed. R.Civ.P. 4(e) (A federal court sitting in diversity can exercise personal jurisdiction only so far as allowed by the law of the state in which it sits). In the case of a defendant foreign corporation that is not generally doing business in Indiana, an Indiana court may exercise personal jurisdiction over the defendant where both of the following obtain: (1) Indiana's long-arm statute authorizes the exercise of such jurisdiction; and (2) exercise of such jurisdiction complies with the due process clause of the fourteenth amendment to the United States Constitution. Nucor, 28 F.3d at 580; Wilson, 916 F.2d at 1243. In the case of Indiana's long-arm statute, the twin inquiries collapse into a single due-process inquiry, because the scope of Indiana's long-arm statute, Trial Rule 4.4(A), has been deemed to extend the State's personal jurisdiction to the constitutional limit.[1]Wilson, 916 F.2d at 1243; Oddi v. Mariner-Denver, Inc., 461 F.Supp. 306, 308 (S.D.Ind.1978). See also Brokemond v. Marshall Field & Co., 612 N.E.2d 143, 145 (Ind.App.1993). Thus, we analyze whether personal jurisdiction over Defendant is permissible solely with regard to the due process clause.
The due process clause protects a defendant from being subject to binding judgments of a forum with which the defendant has established no meaningful "contact, ties or relations." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. State of Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945)). The Supreme Court has construed the due process clause to entitle a person to "fair warning" as to what conduct will subject the person to a foreign jurisdiction. *1059 Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens, J. concurring in judgment). The Supreme Court has stated that a defendant receives such "fair warning" so as to be amenable to specific jurisdiction of a foreign court where the defendant engages in some purposeful or deliberate activity effecting the forum, and where the litigation results from injuries that "arise out of or relate to" those activities.[2]Burger King, 471 U.S. at 472, 105 S.Ct. at 2182. The necessary contacts may not result solely from the unilateral activity of the plaintiff. Instead personal jurisdiction exists where the defendant "purposefully direct[s]" his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984); where the defendant engages in "some act by which [it] purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its law," Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958); and where the defendant "deliberately" engages in significant activities within the forum state that create a "substantial connection" with the forum, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985). See Nucor v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 580 (7th Cir.1994) (using "purposeful availment" wording as standard test for specific jurisdiction). This requirement of some deliberate or purposeful conduct or availment on the defendant's part ensures that a defendant will not be hailed into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183 (quoting respectively Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984); and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S.Ct. 559, 568, 62 L.Ed.2d 490 (1980)). In evaluating contract actions, the Supreme Court has rejected a rigid, mechanical test for determining personal jurisdiction.
Instead, we have emphasized the need for a "highly realistic" approach that recognizes that a "contract" is "ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction." It is these factors prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985).
In determining what constitutes sufficient contact with a forum to allow a court to exercise personal jurisdiction, a court must examine the facts and circumstances on a case by case basis. See Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 1143 (7th Cir.1975). The court may consider affidavits and other documents outside the pleadings in reaching its decision on jurisdiction, see Nelson by Carson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir.1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1278, 79 L.Ed.2d 682 (1984), but must construe all facts concerning jurisdiction in favor of the non-movant, including disputed or contested facts. Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1215 (7th Cir.1984).
B. Analysis
Plaintiff asserts that this Court has personal jurisdiction over Defendant because Defendant has significant contacts with the Southern District of Indiana. Enviroplan *1060 manufactures CEMS equipment at its facility in Indianapolis, Indiana, by purchasing manufactured components and then by designing and manufacturing a finished product. (Affidavit of Christopher Farrell at 2) Plaintiff alleges that representatives of Western Farmers traveled to Indianapolis, which is located in this district, on matters related to the Contract on two occasions. First, Western Farmers manager Richard Bogers traveled to Enviroplan's Indianapolis facility in August 1993 to discuss Enviroplan's alleged failure to meet contract deadlines. (Plaint.'s Br. in Opp. at 1; Affidavit of Richard Bogers ¶ 9) Bogers was a Western Farmers' environmental specialist who was responsible for the CEMS project management, bid selection, design, installation, certification, and operation. (Affidavit of Ray Walters, Attachment B) This first visit alone might not be a sufficient contact to support jurisdiction, because, arguably, this contact does not evince a deliberate or purposeful enough act to qualify as "fair warning" that Defendant would be subjecting itself to jurisdiction in Indiana. However, it is equally arguable that Defendant would clearly have foreseen delays in a project the size of the CEMS and the DAS, which would have necessitated the kind of negotiations that occurred here.
Whatever sufficiency the first visit may have lacked, we believe the second visit in December 1993 clearly establishes minimum contacts. At that time a group of four Western Farmers employees spent approximately one week in Indianapolis to participate in a factory acceptance test of CEMS and DAS equipment at Plaintiff's plant and to participate in Enviroplan's CEMS and DAS training program. (Plaint.'s Br. in Opp. at 2; Affidavit of Thomas W. Surfus ¶ 10; Bogers Aff. at ¶ 9) Defendant admits to both visits. (Def.'s Mot. to Dismiss at 5) The visiting group that came to Indianapolis was comprised of high-level Western Farmers personnel, including Richard Bogers, environmental supervisor Gerald Butcher, and two supervisors. (Bogers Aff. ¶ 9; Walters Aff. Attachment B) Defendant describes Butcher's responsibilities as consisting of "contract negotiations, bidding, project start, project scheduling, factory acceptance visit, installation of hardware, discussions on software, [and] negotiations with Enviroplan President & V.P. upon their lack of response to contract violations." (Walters Aff. Attachment B) Defendant admits that "[i]t is common practice within the industry for the purchaser of the air quality system to witness the factory acceptance test before the system is installed on site." (Def.'s Reply at 4) Plaintiff further alleges that the Western Farmers representatives prepared notes during their time in Indianapolis as to what Enviroplan would need to correct or to complete before shipping the CEMS to Oklahoma. (Plaint.'s Br. in Opp. at 3; Surfus Aff. ¶ 10) The Court finds that because of the length of the group's time in Indianapolis, the seniority of those in the Western Farmers group, and the interactive role taken by the group in both critiquing the equipment and in receiving systems training, Defendant's contacts with this forum are in no way "random," "fortuitous," or "attenuated." Instead, it is clear that Western Farmers purposefully availed itself of the benefit of conducting business in the forum.
The Seventh Circuit has found personal jurisdiction to exist in cases where a defendant had lesser contacts with the forum than Western Farmers has established with this forum. In Nucor v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572 (7th Cir.1994), the Seventh Circuit held that a district court properly exercised jurisdiction over a defendant foreign corporation where the defendant's only contact with the forum was the visit by its president to negotiate a contract, which the district court subsequently declared unenforceable. As the court reasoned, "[b]y its conduct Aceros had purposefully availed itself of the privilege of conducting business in Indiana; by that same conduct it invoked the benefits and protections of the laws of Indiana." Id. at 580-81. See also Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1215-16 (7th Cir.1984) (holding that discussions in Illinois leading to contract sufficient for specific jurisdiction); Neiman v. Rudolf Wolff & Co., 619 F.2d 1189, 1193 (7th Cir.), cert. denied, 449 U.S. 920, 101 S.Ct. 319, 66 L.Ed.2d 148 (1980) (holding that personal jurisdiction existed where employee of defendant came to forum *1061 for lunch meeting, and meeting constituted bulk of negotiations that led to formation of contract); Wisconsin Electrical Manufacturing Co., Inc. v. Pennant Products, Inc., 619 F.2d 676, 677 (7th Cir.1980) (holding that personal jurisdiction over nonresident defendant existed where agents of defendant made two visits to forum that were significant in formation of contract). While the visits to this forum by the Western Farmers group involved negotiations relating to performance under the Contract, rather than leading to the formation of the Contract, the Court determines that to be an immaterial distinction and concludes Defendant's visits constituted minimum contacts. A party purposefully avails itself of the laws and benefits of a forum state no less when it is engages in the kind of activities the Western Farmers group undertook in Indianapolis than when it engages in pre-contractual negotiating in a forum office or hotel. Pre-contractual negotiations as well as visits necessitated by issues relating to performance of the Contract represent significant aspects of the parties' overall business relationship. And Western Farmers' participation in the factory acceptance test was a contemplated future consequence of the Contract. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985).
Finally, Plaintiff has alleged that Western Farmers employees made telephone calls and sent letters and memoranda and at least one facsimile transmission into Indiana (Plaint.'s Br. in Opp. at 2; Surfus' Aff. ¶¶ 3-9, 11, 12) While there is some dispute over the number of actual communications between Defendant in Oklahoma and Plaintiff in Indiana, quantifying these contacts is not in itself dispositive. It is true that the Court would be wary of basing personal jurisdiction solely on such communications. See, e.g., Federated Rural Electric Insurance Corp. v. Inland Power and Light Co., 18 F.3d 389, 395 (7th Cir.1994) (citing cases) These contacts, however, further support an assertion of personal jurisdiction when considered in light of Defendant's actual visits to the forum.
Defendant's contention that it is not subject to the Court's personal jurisdiction because, among other reasons: (1) Enviroplan initiated the parties' business relation in Oklahoma by soliciting Western Farmers' business; (2) Defendant drafted both its CEMS and DAS bid documents and the resulting Contract in Oklahoma; (3) the Contract was executed in Oklahoma; (4) the Contract called for performance in Oklahoma in the form of Enviroplan's installation of the CEMS and DAS; and (5) the CEMS and DAS installation was an improvement to real property in Oklahoma (Def.'s Mot. to Dismiss at 2-4; Bogers Aff. ¶¶ 1-5; Affidavit of James D. Pendergrass ¶ 4; Walters Aff. ¶ 2), rely on the kind of mechanical contract interpretation that the Supreme Court rejected in Burger King.
Examining the Plaintiff's and Defendant's actual course of dealing, the Court finds that subjecting Western Farmers to its jurisdiction would not offend traditional notions of fair play and substantial justice. It would be disingenuous for Defendant to claim that it was a mere passive purchaser of services from an out-of-state vendor and that it could not foresee being haled into this forum. Defendant entered into a contract for the manufacture and installation of environmental monitoring systems costing more than half a million dollars. (Complaint, Exhibit A, at 8A) Defendant admits that it has had dealings, if not contractual relations, with Plaintiff on numerous occasions during the past few years. It was Defendant that requested bids for an environmental monitoring system and Defendant that selected the bid of an out-of-state corporation. Defendant further admits that it acted as scrivener in drafting the bid documents and the Contract. (Def.'s Mot. to Dismiss at 4) Defendant may have hoped to structure its relationship with Plaintiff so as to avoid subjecting itself to the jurisdiction of a foreign court, but, in traveling to Indiana and in working in Indiana under the terms of the Contract, Defendant has subjected itself to the jurisdiction of this Court.
Having concluded that Western Farmers purposefully availed itself of the benefits and protections of Indiana law and that Western Farmers reasonably would have anticipated being haled into this forum to resolve the instant dispute, this Court's assumption of *1062 jurisdiction over Defendant comports with due process, and the motion to dismiss on personal jurisdiction grounds is denied.
III. VENUE
The Court next addresses Defendant's motion to dismiss for improper venue. Venue in a diversity case is controlled by 28 U.S.C. § 1391(a), which states that in a diversity action venue is proper only in:
(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or
(3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
Turning first to clause (2), Defendant argues that venue is improper in the Southern District of Indiana because the Contract at issue was "negotiated, drafted, entered and to be performed in Oklahoma." (Def.'s Reply Brief at 7) Thus, Defendant argues, under 28 U.S.C. § 1391(a)(2) a substantial part of the events or omissions giving rise to the action occurred in Oklahoma rather than in Indiana. Defendant appears to contend that venue in Indiana is improper because venue is proper in Oklahoma, or stated otherwise, that venue is only proper in one district. This argument consistently has been repudiated. As another federal district court explained:
Section 1391 was amended in 1990. Under the previous statute, venue was proper in the district "in which the claim arose," and was usually limited to only one judicial district. The revised statute allows for venue in any district in which a substantial part of the events or omissions giving rise to the claim occurred. Thus, venue can be proper is several districts.
Key Industries, Inc. v. O'Doski, Sellers & Clark, 872 F.Supp. 858, 864-65 (D.Kan.1994) (citations omitted). See also Sacody Technologies, Inc. v. Avant, Inc., 862 F.Supp. 1152, 1157 (S.D.N.Y.1994) ("The amendment [to section 1391] evinces Congress' intent that venue may be proper in more than one federal district in a given case"); Chemical Waste Management, Inc. v. Sims, 870 F.Supp. 870, 875 (N.D.Ill.1994) ("venue is proper in the Northern District of Illinois notwithstanding the possibility that defendants' activities may have been more substantial elsewhere"); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3806 (Supp.1995) ("Under the amended statute it is now absolutely clear that there can be more than one district in which a substantial part of the events giving rise to the claim occurred").
The plain meaning of the section leads the Court to conclude that venue in the Southern District of Indiana is proper. A review of the facts of the controversy establishes the statutorily required nexus with this forum. Plaintiff alleges that a substantial part of the events giving rise to this dispute occurred in Indianapolis. Plaintiff alleges that it expended 45% of its labor in performing the Contract at its Indianapolis facility, specifically in the design and manufacture of the CEMS, and expended the balance of its labor nearly equally on tasks relating to software customization in New Jersey and certification and support work in Oklahoma. (Surfus Aff. ¶¶ 2, 13) Caselaw from other jurisdictions supports this finding. See, e.g., Sacody Technologies, Inc. v. Avant, Inc. 862 F.Supp. 1152, 1157 (S.D.N.Y.1994) (venue was proper in suit for breach of confidentiality agreement where the agreement was transmitted from and to manufacturer's offices within the district); National Cathode Corp. v. Mexus Co., 855 F.Supp. 644, 648 S.D.N.Y.1994) (suit by a New York corporation against a Massachusetts corporation for, among other things, breach of contract was properly venued because defendant's representative attended a trade show in the forum).
Even if Plaintiff could not satisfy the provision relating to where a substantial part of the events or omissions occurred, Plaintiff can still satisfy clause (1) of 28 U.S.C. § 1391(a), also excerpted above. Clause (1) allows venue in "a judicial district where any defendant resides, if all defendants reside in the same State." (Id.) Defendant resides in *1063 this district because, as the Court has previously determined, it is subject to personal jurisdiction here and was so subject when Plaintiff commenced this action. The Court bases its conclusion regarding Defendant's residence on section 1391(c), which states in part as follows:
For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district ... such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State....
28 U.S.C. § 1391(c). Thus the Court concludes that venue in this district is proper under 28 U.S.C. § 1391(a)(1) and 28 U.S.C. § 1391(c). See Bohler-Uddeholm Corp. v. Cloeren Co., 1995 WL 106473, *3 (N.D.Ill. March 9, 1995); WPC Machinery Corp. v. Periodical Graphics, Inc. et al., 1994 WL 643249, *3 (N.D.Ill. Nov. 9, 1994) (dictum); Heller Financial, Inc. v. Summit Bank of Indianapolis, 1992 WL 178651, *4 (N.D.Ill. July 16, 1992). Having concluded that jurisdiction is proper under the first two provisions of section 1391(a), the Court need not address the third option which applies only "if there is no district in which the action may otherwise be brought."
IV. FAILURE TO STATE A CLAIM
Defendant's next contention is that Plaintiff has failed to state a claim upon which relief can be granted. It, too, is without merit. In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all facts alleged, together with all reasonable inferences which may be derived from those facts. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). Dismissal is proper only if it appears beyond a doubt that a plaintiff can prove no set of facts that would entitle it to the requested relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991).
Defendant argues that it does not owe Plaintiff any payment under the terms of the Contract because "the invoices [pursuant to which Plaintiff seeks to collect] were not approved for payment as required by Article III of the Contract."[3] (Def.'s Mot. to Dismiss at 12) In its Complaint, however, Plaintiff alleges that "Defendant has inspected and accepted the equipment and systems provided under the Contract, and has been using the equipment and systems." (Complaint ¶ 9) Plaintiff further asserts that the CEMS and the DAS were properly installed at Defendant's plants and headquarters and were certified in accordance with U.S. Environmental Protection Agency standards. (Surfus Aff. ¶ 14) The Court concludes that the parties' dispute necessitates too great a factual inquiry to be determinable as a matter of law. Therefore the Court cannot conclude that the Complaint, taken as true, would entitle Plaintiff to none of the relief requested.
V. FORUM NON CONVENIENS or TRANSFER
Last, Defendant argues that even if Plaintiff's suit is properly venued in the Southern District of Indiana, the Court should either dismiss the case on the grounds of forum non conveniens or transfer the case pursuant to 28 U.S.C. § 1404(a) to the Western District of Oklahoma. Before addressing either of these issues, the Court must distinguish the doctrine of forum non conveniens from the statutory transfer provision. Both the doctrine and the statute apply to situations in which a suit is properly venued but *1064 where there is clearly a more convenient forum. Where the more convenient forum is another federal district, a district court should transfer the suit to that other district. Accordingly, a district court should dismiss a suit on the grounds of forum non conveniens only where the clearly more convenient forum is a state court, a territorial court, or a foreign court. See American Dredging Co. v. Miller, ___ U.S. ___, ___ n. 2, 114 S.Ct. 981, 986 n. 2, 127 L.Ed.2d 285 (1994) (As a consequence of federal venue transfer statute, federal doctrine of forum non conveniens has continuing application only in cases where alternative forum is abroad); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3828 (1986) ("It is only when the more convenient forum is in a foreign country or perhaps, under rare circumstances, in a state court or a territorial court that a suit brought in a proper federal venue can be dismissed on grounds of forum non conveniens"). Because Defendant argues that there is a more convenient forum to which the Court could transfer the case pursuant to 28 U.S.C. § 1404(a), namely the Western District of Oklahoma, the Court denies Defendant's motion to dismiss on the grounds of forum non conveniens.
The Court now addresses the propriety of transferring the suit under section 1404(a). A party seeking transfer pursuant to this section must establish: (1) that venue is proper in both the transferor court and the transferee court, and (2) that the transfer is for the convenience of the parties and witnesses and in the interest of justice. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 n. 3 (7th Cir.1986); K & F Mfg. Co., Inc. v. Western Litho Plate & Supply Co., 831 F.Supp. 661, 664 (N.D.Ind.1993); Heller Financial, Inc. v. Riverdale Auto Parts, Inc., 713 F.Supp. 1125 (N.D.Ill.1989). The movant bears the burden of showing that the transferee court is clearly more convenient. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir.1986); K & F Mfg. Co., Inc. v. Western Litho Plate & Supply Co., 831 F.Supp. 661, 664 (N.D.Ind.1993); Heller Financial, Inc. v. Riverdale Auto Parts, Inc., 713 F.Supp. 1125 (N.D.Ill.1989). Where transfer merely would shift convenience (and conversely, inconvenience) from one party to another, transfer should not be granted. K & F Mfg. Co., Inc. v. Western Litho Plate & Supply Co., 831 F.Supp. 661, 664 (N.D.Ind. 1993).
In support of its motion to transfer this case to the Western District of Oklahoma, Defendant states that "the majority of witnesses are located in Oklahoma." (Def.'s Mot. to Dismiss at 11) Defendant states that it expects to require the testimony of at least ten fact witnesses who reside in Oklahoma and two fact witnesses who reside in Texas. (Walters Aff. ¶ 5) The Oklahoma fact witnesses are Western Farmers employees and include an environmental specialist, a project director, an instrument and electrical supervisor, an instrument technician, an instrument and control supervisor, a systems operations supervisor, and a project engineer. (Walters Aff. Attachment B) One of the Texas witnesses is president of a company that allegedly "[s]truggled for payment for work performed for Enviroplan." (Id.) Defendant also has identified as a witness an air quality engineer with the Oklahoma Department of Environmental Quality. (Id.) Defendant also asserts that expert witnesses and possibly jurors may need to view the CEMS equipment in Oklahoma. (Def.'s Reply at 9) Enviroplan, on the other hand, asserts that it may call as witnesses as many as six current or past Enviroplan employees who reside in Indianapolis or elsewhere in Indiana. (Affidavit of Christopher Farrell ¶¶ 3, 4) These witnesses would include a vice president, a service engineer, a service project manager, and a service manager. (Id.) The Court is not persuaded that justice will be ill served unless every witness that Defendant has identified actually testifies at trial. Nor is it significant that the CEMS is located in Oklahoma. Nor does testimony from a former contractor for Enviroplan or from a state engineer appear relevant to a private contract dispute.
Finally, Defendant states that "it would appear that Oklahoma has a greater interest than Indiana in the outcome of this litigation" because the Contract will be interpreted according to Oklahoma law and because the rules requiring monitoring of plant emissions *1065 are enforced by an Oklahoma administrative agency. (Def.'s Reply at 8). This suit, however, is not for the enforcement of an Oklahoma state regulation. The Court believes that in a private contract dispute between residents of Oklahoma and Indiana, neither state has a greater interest in the outcome. Nor is the possibility that Oklahoma contract law will apply to this dispute a sufficient reason to deny the Plaintiff its choice of forum. The Court therefore finds that transferring venue to the Western District of Oklahoma would be just as inconvenient to Plaintiff as it would be convenient to Defendant. Accordingly, Defendant has not borne its burden of establishing that the Western District of Oklahoma would be clearly more convenient.
VI. CONCLUSION
For the reasons stated above, Western Farmers' motion to dismiss on the grounds of lack of personal jurisdiction, improper venue, forum non conveniens, and failure to state a claim, or in the alternative to transfer venue to the Western District of Oklahoma, is denied in its entirety.
It is so ORDERED.
NOTES
[1] Indiana's long-arm statute provides in part:
A) Acts Serving as a Basis for Jurisdiction. Any person or organization that is a nonresident of this state, a resident of this state who has left the state, or a person whose residence is unknown, submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent:
(1) doing any business in this state;
* * * * * *
[2] Plaintiff implicitly argues that the Court has specific jurisdiction over Western Farmers because Plaintiff bases its jurisdictional argument on Indiana's long-arm statute. Whenever a court relies on a long-arm statute to establish jurisdiction, the court is exercising specific jurisdiction. Where a cause of action does not arise out of or relate to a defendant's activities in a forum, a court may still exercise general jurisdiction over the defendant if the defendant has "continuous and systematic" contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 1872 n. 9, 80 L.Ed.2d 404 (1984).
[3] Section 1.1 of Article III of the contract states:
Milestone payments shall be made in accordance with the milestone schedule identified in Section 1.2 and payments shall not become due prior to the completion and acceptance by Owner of each milestone. No payment shall be made until all tasks associated with a milestone have been completed, unless the completion of such task is waived by [Western Farmers Electric Cooperative].
(Complaint, Exhibit C). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3028345/ | Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-8-2007
Jackson v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3221
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ALD- 191 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3221
________________
RONNIE LEE JACKSON,
Appellant
v.
UNITED STATES OF AMERICA;
THOMAS MARINO
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 05-cv-01948)
District Judge: Honorable Christopher C. Conner
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
April 19, 2007
Before: SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES
(Filed: May 8, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Ronnie Lee Jackson, a federal prisoner proceeding pro se, appeals from an order of
the United States District Court for the Middle District of Pennsylvania denying his
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We will dismiss
Jackson’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).1
On March 13, 2002, Jackson was sentenced in Pennsylvania state court to a term
of one to two years in prison. While serving his state sentence, Jackson was placed in the
custody of federal authorities to respond to unrelated criminal charges. Jackson was
convicted of the federal charges, and on March 19, 2003, he was sentenced to 84 months
in prison. On March 22, 2003, Jackson was released on parole from state custody, and
federal authorities assumed custody. Jackson received prior custody credit pursuant to 18
U.S.C. § 3585(b) for four days of time served that were not applied to another sentence.
In his habeas petition, Jackson sought credit toward his federal sentence for the
time he served on his state court sentence. Jackson relied on statements by the federal
sentencing judge, which he believed established an intent to afford him such credit.
Jackson cited United States Sentencing Guideline § 5G1.3(c) and our decision in
Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002), in support of his habeas petition.
As recognized by the District Court, we held in Ruggiano that a federal sentencing
court had authority under U.S.S.G. § 5G1.3(c) to adjust a sentence for time served on a
state conviction. Ruggiano, 307 F.3d at 131. In concluding that the sentencing court
exercised this power in sentencing the defendant, we noted that the defendant requested
the application of § 5G, and that the sentencing court stated at the hearing that it would
recommend that the federal sentence “be served concurrently and that [the defendant]
1
This appeal was previously terminated for a failure to pay the filing fee. We hereby
grant Jackson’s motion to reopen his appeal and his motion to proceed in forma pauperis.
2
receive credit for the amount of time that he had served there.” Id. (citation omitted).
The written judgment stated, “Sentence imposed to run concurrent with State sentence.
Defendant to receive credit for time served.” Id.
Similar directives are not present in this case. As set forth more fully in the
District Court’s opinion, prior to imposing sentence, Jackson’s counsel made several
requests, including a request that Jackson be credited for time served. The sentencing
judge replied, “All right.” Ex. to Response to Habeas Petition at 18. The sentencing
judge then recounted Jackson’s significant criminal history, and stated that he intended to
impose a sentence of seven years, noting that the sentence was within the guidelines and
very reasonable. Counsel again raised the request for credit for time served, and the
sentencing judge replied, “Yes, Indeed.” Ex. to Response to Habeas Petition at 20.
Jackson’s written judgment reflects a prison term of 84 months (or seven years). Unlike
in Ruggiano, § 5G was not discussed at Jackson’s hearing. In addition, the sentencing
judge did not state orally or in the written judgment that the sentences should run
concurrently, or that Jackson should receive credit for time served on the state sentence,
as opposed to the credit that could be (and ultimately was) afforded pursuant to 18 U.S.C.
§ 3585(b).
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).2
2
Application Note 3(E) to U.S.S.G. § 5G1.3 now states that subsection (c) does not
authorize an adjustment for time served on a prior undischarged term of imprisonment,
and a court may consider a downward departure in extraordinary cases. This amendment
became effective November 1, 2003, after Jackson’s sentence was imposed. To the
3
extent the amendment may be viewed as a clarifying amendment that is retroactively
applicable, see United States v. Diaz, 245 F.3d 294, 301 (3d Cir. 2001), the result in this
case would be the same.
4 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/826588/ | Order Michigan Supreme Court
Lansing, Michigan
September 20, 2011 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra,
Justices
142759(78) SC: 142759
COA: 299471
In re C.I. MORRIS, Minor. Wayne CC Family Division:
08-483987
________________________________
On order of the Chief Justice, the motion by respondent appellant for extension of
the time for filing his brief is considered and, it appearing the brief was filed August 23,
2011, the time for filing is extended to that date.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 20, 2011 _________________________________________
Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327483/ | 684 S.E.2d 673 (2009)
300 Ga. App. 136
HENSLEY
v.
The STATE.
No. A09A1593.
Court of Appeals of Georgia.
September 21, 2009.
*674 Edward P. Dettmar, for appellant.
T. Joseph Campbell, District Attorney, Stewart D. Bratcher, Assistant District Attorney, for appellee.
BARNES, Judge.
Lance Hensley appeals his convictions for aggravated assault on a peace officer, felony obstruction of an officer, and two counts of removal of a weapon from a peace officer. Hensley contends that the trial court erred in failing to grant a mistrial after an officer violated a court order by testifying about the charge underlying a previous arrest warrant. Finding that the trial court did not abuse its discretion in denying the mistrial motion, we affirm.
On June 20, 2004, as two officers were discussing the service of an arrest warrant on Hensley, another officer on patrol spotted Hensley in a nearby parking lot. When Hensley saw the patrol car, he fled on foot. The patrolling officer chased him into a wooded area, and when the officer caught up with him, Hensley wrapped his hands around a tree and would not lie on the ground as the officer directed. The officer pried Hensley's hands loose with his baton, but Hensley snatched the baton away and the two men fell to the ground. The officer drew his service pistol and forced Hensley to release the baton, but after the officer holstered his pistol and took Hensley's arm, Hensley twisted around and grabbed the weapon. As the men struggled over the pistol, Hensley threatened to kill the officer, who finally fired the weapon two inches from Hensley's head in an unsuccessful attempt to subdue him. Hensley held onto the gun and prevented the officer from firing again, and would not release his hold until two backup officers arrived and aimed their weapons at Hensley until he let go.
The trial court granted Hensley's motion in limine to exclude any reference to the content of the charge underlying the arrest warrant. Later, however, one of the arresting officers testified that he had been looking for Hensley pursuant to an "outstanding aggravated assault warrant." Hensley immediately moved for mistrial. The trial court denied the motion, concluding that, while the officer referred to the content of the arrest warrant against court orders, the testimony was no more than a "passing comment" and its effect was not prejudicial enough to warrant a mistrial. The court offered to give the jury curative instructions, but Hensley declined the offer for strategic reasons.
A trial court has the discretion to grant a mistrial or to give curative instructions, and this court will only interfere with that discretion when granting a mistrial is "essential to the preservation of the right to fair trial." Smith v. State, 244 Ga.App. 165, 168, 534 S.E.2d 903 (2000). When determining whether the trial court abused its discretion, we consider the statement itself, other evidence against the accused, and the actions of the trial court and counsel dealing with the impropriety. Martin v. State, 240 Ga.App. 901, 902, 525 S.E.2d 728 (1999).
First, the officer's statement that the authorities were in the area looking for Hensley to execute an outstanding aggravated assault warrant was not enough to unduly prejudice the jury. The parties agreed that informing the jury that the warrant existed was appropriate. The existence of the underlying warrant was the reason the police were chasing Hensley and without knowing that, the context of the incident would have been incomplete and confusing. Although the prosecutor failed to instruct the officer to limit his testimony, the officer did not give any details about the underlying aggravated assault charge. The comment was fleeting and incomplete, and the witness was immediately redirected before his testimony continued. *675 See Gordian v. State, 261 Ga.App. 75, 77, 581 S.E.2d 616 (2003) (fleeting reference to possible criminal history is harmless). Compare with Smith v. State, 296 Ga.App. 608, 675 S.E.2d 310 (2009) (in-depth testimony about prior bad acts unrelated to the event in question warranted mistrial).
Second, the evidence against Hensley was so overwhelming that the impact of the statement on the jury, if any, was minimal. Hensley admitted running from the officer, and the jury served as the trier of fact regarding the details and sequence of the ensuing struggle. See Martin v. State, supra, 240 Ga.App. at 903, 525 S.E.2d 728 (strong evidence of defendant's guilt substantially lessened prejudicial impact of improperly admitted character evidence).
Finally, the trial court halted the testimony immediately upon Hensley's objection. Although it considered the testimony only a passing comment, the court offered to provide immediate curative instructions. Hensley declined the offer, fearing that highlighting details about the warrant would only enhance the prejudicial effect on the jury. No further mention was made during trial about the underlying nature of the previous warrant. In its final charge to the jury, the court instructed it not to "concern itself in any way with the fact that there was a warrant out there nor . . . with speculating on what that warrant concerned," emphasizing that the jury's sole duty was to decide if Hensley committed the offenses charged. See Gordian v. State, supra, 261 Ga.App. at 77, 581 S.E.2d 616 (curative instruction enough to avoid prejudice).
The trial court did not abuse its discretion in denying the motion for a mistrial. Accordingly, Hensley's convictions are affirmed.
Judgment affirmed.
MILLER, C.J., and ANDREWS, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3072584/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER WITHDRAWING MEDIATION ORDER
Cause number: 01-15-00335-CV
Style: Centerpoint Houston Electric, LLC v. 5433 Westheimer, LP;
5433 Westheimer, GP LLC and Songy 5433 Westheimer GP LLC
Date motion filed: May 19, 2015
Type of Motion: Objection to Mediation
Party filing motion: Appellee
It is ordered that Appellee=s objection to mediation is granted. We withdraw our
Mediation Order dated May 15, 2015.
Judge's signature: /s/ Harvey Brown
x Acting individually
Date: June 4, 2015
*
Absent emergency or a statement that the motion is unopposed, must wait ten days before acting on motion except for
motion to extend time to file a brief. See TEX. R. APP. P. 10.3(a).
Note: Single justice may grant or deny any request for relief properly sought by motion, except in a civil case a single justice
should not: (1) act on a petition for an extraordinary writ or (2) dismiss or otherwise determine an appeal or a motion
for rehearing. TEX. R. APP. P. 10.4(a). | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1327499/ | 684 S.E.2d 370 (2009)
300 Ga. App. 247
FARR et al.
v.
RICE.
No. A09A2016.
Court of Appeals of Georgia.
September 25, 2009.
*371 Raley & Sandifer, Kathleen E. Sullivan, Atlanta, Charles R. Floyd, Jr., Peachtree City, for appellants.
Lamberth, Cifelli, Stokes, Ellis & Nason, Gary D. Stokes, Robert B. Campos, Atlanta, for appellee.
ELLINGTON, Judge.
Michael and Cynthia Farr appeal from the trial court's order awarding Linda Rice $1,300,000, plus post-judgment interest, in this contract suit. Because there is no merit to the Farrs' arguments on appeal, we affirm.
The underlying facts are simple and undisputed. In 2007, the Farrs executed two promissory notes in favor of a private lender, Orbach Waters, LLC ("OWA"). The principal amount of the notes totaled $1,300,000. OWA agreed to lend the Farrs the money only if Michael Farr's stepmother, Linda Rice, personally guaranteed their obligations. Rice executed both notes as a "Contingent Guarantor," who would be liable only if the Farrs failed to pay the notes in full when they matured on September 12, 2007. OWA then wired the proceeds of the notes to a corporation owned and operated by Michael Farr.
The Farrs failed to pay off the notes when they matured and, in fact, have failed to make any payment on the notes since September 2007. After the Farrs ignored OWA's demand for payment on the notes, the lender filed suit against the Farrs as borrowers and Rice as a guarantor. OWA obtained a $1,908,459 judgment against Rice on November 21, 2007. In December 2007, Rice and OWA entered into a settlement agreement in which she agreed to pay OWA $1,590,000, plus interest and legal fees, to satisfy the judgment. Once Rice paid OWA in full pursuant to the agreement, OWA assigned its rights, title and interest in the notes to Rice.
After the Farrs rejected Rice's demand that they reimburse her for the amount she paid OWA as a guarantor of their loans, Rice filed the instant indemnification suit against them. Although Rice originally sought reimbursement for the amount she had paid to OWA, she amended the complaint and ultimately sought reimbursement only for the principal amount of the loans, $1,300,000. Following a hearing, the trial court granted Rice summary judgment on her claim, awarding her $1,300,000 plus post-judgment interest.
1. On appeal, the Farrs claim that Rice was not entitled to summary judgment because the principal payments to OWA on the promissory notes were not really "past due," notwithstanding the express terms of the notes showing a maturity date of September 12, 2007, and the Farrs' admission that they had not paid anything toward the principal as of the date of the summary judgment hearing. The Farrs also argued below that Rice's decision to settle with OWA was unreasonable because it foreclosed their opportunity to raise possible defenses to their liability on the notes. The Farrs have failed to identify any possible defense, however; they suggested only that they may have tried to renegotiate the terms of the loans with OWA, which is clearly not a defense to their liability. Further, there is nothing in the record that would suggest that OWA would have been willing to renegotiate the terms of the loans. Thus, there is no merit to the Farrs' arguments on appeal.
2. Because the Farrs have failed to cite to any evidence demonstrating that they had a meritorious defense to their liability on the notes or their refusal to reimburse Rice, and because their arguments on appeal lack merit, it is clearly apparent to this Court that *372 the Farrs filed this appeal for the sole purpose of delaying Rice's collection of the $1,300,000 judgment against them. Therefore, in addition to the judgment below, we order the Farrs to pay Rice ten percent of the judgment amount, to wit: $130,000, as a frivolous appeal penalty, pursuant to OCGA § 5-6-6.[1]
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] "When in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed. The award shall be entered in the remittitur." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327643/ | 411 S.E.2d 444 (1991)
Mark Edward COX
v.
COMMONWEALTH of Virginia.
Record No. 1426-90-3.
Court of Appeals of Virginia.
November 26, 1991.
John S. Hart, Jr. (Law Office of St. Clair & Associates, on brief), for appellant.
Kathleen B. Martin, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BARROW, BRAY and ELDER, JJ.
*445 BARROW, Judge.
This appeal is from a finding by the trial court that the appellant is an habitual offender under Code § 46.2-351. We hold that the trial court erred in finding that a West Virginia ordinance substantially conforms to provisions of Code § 18.2-266 because it permits convictions for acts which could not be the basis for convictions under Code § 18.2-266.
The Circuit Court of Alleghany County found that the appellant is an habitual offender. This finding was based on a certified abstract from the Virginia Division of Motor Vehicles showing that appellant had one Virginia conviction and two West Virginia convictions for driving while intoxicated. The West Virginia convictions were obtained under a city ordinance of Lewisburg, West Virginia. Records introduced of the West Virginia convictions reflect only that the appellant "did unlawfully operate" an automobile "upon a public street or highway ... and ... commit[ted] ... D.U.I. 1st" in violation of both state statute and local ordinance.
At the hearing, appellant argued that the Lewisburg ordinance did not conform to the Virginia statutes regarding driving while under the influence of alcohol because the Lewisburg ordinance was substantially broader, encompassing additional offenses. The trial court ruled that the Lewisburg ordinance was substantially similar to Virginia Code §§ 18.2-266 and 18.2-269, and declared the appellant an habitual offender.
Copies of the applicable Lewisburg city ordinance were submitted to the trial court and were made a part of the record of this appeal. Article IV of the Lewisburg city code addresses driving while under the influence of alcohol or drugs, reckless driving and related provisions. Certain conduct not described by Code § 18.2-266 is declared unlawful by Article IV of the Lewisburg City Code:[1] (1) driving a vehicle while being a habitual user of any controlled substance; (2) knowingly permitting one's vehicle to be driven by another who is under the influence of alcohol; and (3) knowingly permitting one's vehicle to be driven by another who is an habitual user of a controlled substance.
In Shinault v. Commonwealth, 228 Va. 269, 321 S.E.2d 652 (1984), the Supreme Court held that two state statutes are not substantially conforming where one, a North Carolina statute, required a conclusive presumption of guilt when the offender possessed a blood-alcohol level of .10, while the other, a Virginia statute, allowed for a rebuttable presumption of guilt under the same circumstances.[2]
*446 The rationale in Shinault is instructive. Although two statutes may have "a general likeness" to one another, the effect of the differing presumptions is substantial. Under the North Carolina statute, one would necessarily be guilty of an offense if found to have been driving with a bloodalcohol content of .10. However, under the Virginia statute, one would not necessarily be found guilty of an offense even though having been found to have committed the same act. In other words, if a person may be convicted of an offense under another jurisdiction's statute for conduct which might not result in a conviction under Code § 18.2-270, the statutes are not "substantially conforming."
Moreover, to allow a conviction in another state to be the basis for a finding that a person is an habitual offender would expand Code § 46.2-351 beyond its stated limits if the conviction in the other state was based on an act which would not be a violation of Code § 18.2-266. The General Assembly expressly designated certain traffic offenses which should be considered in determining if one is an habitual offender. See Code § 46.2-351. One of these is driving or operating a motor vehicle while under the influence in violation of Code § 18.2-266. See Code § 46.2-351(1)(b). If a conviction in another state is based on conduct which is not a violation of Code § 18.2-266, then to consider it under Code § 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized. Therefore, another state's law permitting a conviction for an act not constituting an offense under Code § 18.2-266 is not substantially conforming under Code § 46.2-351.
This does not mean that another state's law regarding driving while under the influence of intoxicants or drugs must substantially conform in every respect to Code § 18.2-266. Only that prohibition of the other state's law under which the person was convicted must substantially conform.
In this case, the record of appellant's convictions in West Virginia indicates only that he was convicted under a state statute and a city ordinance. This description permits us to conclude only that the appellant committed the offense while operating a motor vehicle. It does not identify the specific provision of the ordinance he violated. Consequently, we must examine the entire statutory prohibition to see if it permits convictions not permitted under Code § 18.2-266.
The Lewisburg city ordinance includes several prohibitions against conduct which would not be violations of Code § 18.2-266; therefore, we are unable to say that the conduct upon which the appellant's convictions were based was that which is not included within the prohibitions of Code § 18.2-266. Thus, for the purposes of determining whether the appellant is an habitual offender, the applicable provisions of the Lewisburg city ordinance are not in this case substantially conforming.
The trial court erred in concluding that the ordinance was substantially conforming and in finding the appellant an habitual offender. The judgment declaring the appellant an habitual offender is reversed and the information filed is dismissed.
Reversed and dismissed.
NOTES
[1] Code § 18-85 of the Lewisburg City Code provides in pertinent part:
Sec. 18-85. Persons driving under influence of alcohol, controlled substances or drugs.
(a) It is unlawful and punishable as provided in subsection (d) of this section for any person to drive any vehicle in this city while:
(1) He is under the influence of alcohol; or
(2) He is a habitual user of or under the influence of any controlled substance or he is under the influence of any other drug to a degree which renders him incapable of safely driving; or
(3) He is under the combined influence of alcohol and any controlled substance or any other drug to a degree which renders him incapable of safely driving, and ...
(c) It is unlawful and punishable as provided in subsection (d) of this section for the owner of any vehicle to knowingly permit his vehicle to be driven in this city by any other person who is under the influence of alcohol, or who is a habitual user of or under the influence of any controlled substance or who is under the influence of any other drug to a degree of (sic) in the manner set forth in subsection (a) and (b) of this section. (Emphasis added.)
[2] Unlike the present case which involves punishment as an habitual offender under Virginia Code § 46.2-351, the defendant in Shinault was convicted for drunk driving and punished as a third offender under Virginia Code § 18.2-270. Although the decision in Shinault addresses a different statutory section, it is nevertheless useful for comparison since the statutory sections are essentially the same. Not only do Code §§ 18.2-270 and 46.2-351 both concern subsequent offenses of and prior convictions for driving while intoxicated, they embody almost identical language with respect to prior convictions in other states. Specifically, Code § 18.2-270 states that "[f]or the purposes of this section a conviction ... under ... the laws of any other state substantially similar to the provisions of §§ 18.2-266 through 18.2-269 of this Code, shall be considered a prior conviction." Code § 46.2-351 states that "[t]he offenses ... of this section [which include driving under the influence of intoxicants in violation of § 18.2-266] shall be deemed to include offenses under ... any law of another state or any valid county, city, or town ordinance of another state substantially conforming to the aforesaid state statutory provisions." (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328302/ | 106 S.E.2d 461 (1959)
249 N.C. 300
NANTAHALA POWER AND LIGHT COMPANY, Petitioner,
v.
Oze E. HORTON and wife, Bessie G. Horton; J. G. Stikeleather, Jr., and wife, Dorothy Stikeleather; Ruth Lane Atkinson and husband, Frank C. Atkinson; Herman G. Nichols and wife, Elizabeth Shuford Nichols; and Andrew Gennett, Executor of the Estate of Carter T. Gennett, Deceased, Respondents.
No. 22.
Supreme Court of North Carolina.
January 14, 1959.
Morgan, Ward & Brown, Waynesville, for respondents Horton, appellants and appellees.
Ward & Bennett, Asheville, for respondents Stikeleather and others, appellants and appellees.
BOBBITT, Justice.
Whatever rights the grantors in said deed of May 10, 1938, reserved by the "exceptions, limitations and reservations" therein set forth, vested in respondents Horton when the condemnation proceeding was instituted. Subject thereto, respondents Stikeleather, et al., owned the 557-acre tract in fee simple.
*465 Unquestionably, said reservations and exceptions severed the minerals and mining rights from the surface rights. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117, and cases cited; English v. Harris Clay Co., 225 N.C. 467, 35 S.E.2d 329.
Respondents Stikeleather, et al., on their appeal, challenge the validity of said "exceptions, limitations and reservations" in respect of water power rights. We accept, for purposes of this appeal, the referee's conclusion of law, adopted by the court, to which respondents Horton did not except, to wit, that said reservations and exceptions were sufficient, "in form and substance, in law, to withdraw from the grant and to reserve in the grantors the water power on said land, within its boundaries, and together therewith the easements recited in connection therewith."
At February Term, 1954, all respondents, by stipulation, deferred their controversy, inter se, and made common cause against the Power Company in the trial that resulted in jury award of $11,500. It is noted that the evidence upon which the jury based its verdict is not before us, nor was it before the referee or court below. What elements of damages were considered by the jury? The record provides no answer.
Under these circumstances it was incumbent upon the contestants to establish their respective interests in the $11,500 fund.
Upon plenary competent and uncontradicted evidence, the referee found, inter alia, that the remainder of the 557-acre tract, after excluding the 90.4 acres, consisted of forest lands with marketable timber of the fair market stumpage value of $24,000 and with wood of the fair market stumpage value of $10,704, and that the only means of access thereto had been destroyed by the flooding of roads within the 90.4 acres. Based largely on these particular findings, the referee found that the damage to the fee in the remaining 466.6 acres caused by the condemnation of the 90.4 acres was $37,280. (Note: The referee found that there was no marketable timber on the 90.4 acres but made no finding as to the fair market value of the 90.4 acres.)
The referee found "that the taking and appropriating of the 90.4 acres and its inundation" by the Power Company destroyed all mineral and water power rights of respondents Horton therein. But the referee also found: (1) "* * * there is no evidence of any actual value of the mineral interest condemned and appropriated or on the remainder of the 557-acre tract." (2) "* * * the portions of the East Fork Tuckaseegee River and Robinson Creek, either separately or jointly, within the boundaries of the 557-acre tract alone, was not susceptible of practical economical hydro-electric water power development and * * * as such had no actual marketable value."
Respondents Horton complied carefully with all procedural requirements to reserve their right to a jury trial. Bartlett v. Hopkins, 235 N.C. 165, 69 S.E.2d 236; Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842; Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635. They were entitled to a jury trial "upon the written evidence taken before the referee" (G.S. § 1-189) if it contained evidence that the easement condemned by the Power Company caused more than nominal damages in respect of mineral and water power rights.
1. As to minerals and mining rights, the only evidence offered in behalf of respondents Horton was the testimony of respondent Oze E. Horton. He testified that he had leased a mica mine, "located on a little knob not far below the Island Ford," (within the 90.4 acres) to one R. G. Parker "about 1939 and 1940"; that he thought Parker "had it about two years," but did not know how long it was actually operated or whether the operation was profitable or unprofitable; that he received a *466 straight rental; and that he received such rental (no amount stated) during the years "1938, 1939 or 1940."
He testified: "I testified today that there had been no operation at all on mica since approximately 1939, and that I didn't know how much mica they got out. It is correct that I don't know anything about how long they mined there and didn't find any mica. It is correct that I said that I didn't know whether or not there was any mica up there that could be found on April 4, 1952. "Again: "I said that I don't know that there was a stick of mica in that mine that could be gotten out." Again: "I have not tested elsewhere on the place for minerals."
There was no evidence that the Island Ford Mine contained a mica deposit of value or that the mine had ever been operated profitably or was susceptible of profitable operation.
Booth Wood, a witness for respondents Stikeleather, et al., testified that he worked for Parker when he had the lease but "we quit on account of we couldn't get any mica."
2. No evidence was offered in behalf of respondents Horton as to the value of their water power rights. Evidence offered by respondents Stikeleather, et al., tended to show the course and fall of the East Fork of the Tuckaseegee River and of Robinson Creek, the character of the terrain, etc., within the boundaries of the 557-acre tract. T. A. Cox, witness for respondents Stikeleather, et al., whom the court found to be an expert hydro-electrical engineer, testified that in his opinion there was "no practical commercial water power that could be developed on the Horton tract on the Tuckaseegee River."
Careful scrutiny of the evidence impels the conclusion that there was no evidence sufficient to support a finding that respondents Horton sustained more than nominal damages on account of the destruction of their mineral and water power rights.
Even so, respondents Horton stress their contention that, since they owned the water power rights within the 557-acre tract, all that the Power Company acquired by condemnation were the identical rights they owned. Hence, their argument runs, they should receive all of the $11,500 the Power Company was required to pay. While ingenious, this contention rests on a false premise.
The said "exceptions, limitations and reservations," when considered in the light most favorable to them, vested in respondents Horton only such water rights as were susceptible of development within the boundaries of the 557-acre tract. The easement condemned gave the Power Company the right to build a dam on its property downstream from the 557-acre tract and thereby impound waters which would flood the 90.4 acres and other upstream lands. Respondents Horton owned no such property and had no such rights. In this connection, it is noted that respondents Horton were entitled to compensation solely on the basis of the loss they sustained by reason of the condemnation. Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 205, 17 S.E.2d 10.
In the absence of evidence sufficient to support a finding that respondents Horton sustained more than nominal damages, respondents Stikeleather, et al., owners of the fee, were entitled to the $11,500 fund.
Each assignment of error made by respondents Horton has been carefully considered. None discloses prejudicial error. It is noted that respondents Horton, in their brief, do not direct their argument to each of their several assignments of error but generally to the matters discussed in this opinion.
It is noted that none of the assignments of error raise, hence we do not pass upon, this interesting question: Whether, under *467 the circumstances, the adjudication of the rights of the respective respondents to the $11,500 should have been based on the evidence on which the jury at February Term, 1954, based its verdict.
The basis of decision obviates discussion and decision of serious questions raised on the appeal of respondents Stikeleather, et al., as to the validity of said "exceptions, limitations and reservations," in respect of water power rights; for the judgment, which is in their favor, is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327965/ | 411 S.E.2d 197 (1991)
Walter Post SMITH, Jr., Plaintiff,
v.
Linda Otto SMITH, Defendant.
No. 9128DC210.
Court of Appeals of North Carolina.
December 17, 1991.
*198 Riddle, Kelly & Cagle, P.A., by E. Glenn Kelly, Asheville, for plaintiff-appellant.
Gum & Hillier, P.A. by Howard L. Gum, Asheville, for defendant-appellee.
JOHNSON, Judge.
Plaintiff first contends (arguments I and II) that there is no evidence to support the trial court's finding that the value of the BASF 401(k) retirement plan was $103,455.69. He contends that the testimony by Mr. Kledis, a C.P.A., established that the value of the account was $77,806 at the time of separation. We disagree.
Mr. Kledis testified that the vested value of the account was $103,445.69 at the end of March 1987 (the date of separation) and that if one assumed the application of the maximum tax rates and a total withdrawal at that time, the value was reduced to $77,806. The court found that the BASF retirement account was marital property and awarded it entirely to plaintiff. There is no evidence in the record and plaintiff does not argue that he was or would be forced to withdraw all or any part of the fund to comply with any distribution ordered by the court; thus, the fact of withdrawal and the possible tax consequences are purely speculative. See Weaver v. Weaver, 72 N.C.App. 409, 324 S.E.2d 915 (1985). Plaintiff's contention that the court failed to consider the tax consequences to either party in violation of G.S. § 50-20(c)(11) *199 is not supported by the record. The court specifically noted the evidence that plaintiff advanced but found that it was "unable to determine any reduction in value as a result of the tax implications and has found the value of this asset to be $103,445.69." We find no error.
Plaintiff next contends (arguments III, IV and V) that adjustments ordered by the trial court for certain payments made by both parties with regard to marital property after the date of separation, constitute an unequal division of the marital properties, contrary to the conclusion of the court that an equal division was equitable and in violation of the requirement that the court make findings of fact based on the factors listed in G.S. § 50-20(c) to support an unequal distribution.
The trial court found that an equal division of marital assets is equitable and awarded each party one-half of the net marital assets. The court also found that during the separation, plaintiff had made payments totaling $9,160.08 for various taxes, insurance and reduction of principal as to marital property and awarded him a credit in that amount. The court further found that defendant had made similar type payments totaling $4,488.02 and awarded her a credit in that amount. In conclusion of law number 4 the court stated: "The total net value of the marital assets of the parties is $389,273.82. After awarding the appropriate credits, each party should be entitled to $194,636.91." (Emphasis added.)
Moneys expended by a spouse on marital property during the period between separation and the distribution of marital property is properly credited to the paying spouse. Bowman v. Bowman, 96 N.C.App. 253, 385 S.E.2d 155 (1989); McLean v. McLean, 88 N.C.App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988). In the case sub judice, however, we cannot determine from the judgment whether plaintiff properly received the full credit he is due. We note that $194,636.91 is exactly one-half of $389,273.82, the net value of the marital assets. Since plaintiff's total credit is larger than defendant's and he was awarded exactly half of the net marital assets "after awarding the appropriate credits," it appears that he did not receive the full amount he is due. We remand for clarification, and if necessary, an adjustment.
Plaintiff's related argument is that the trial court's failure to make findings of fact to support an unequal distribution is reversible error.
In any order for the distribution of property made pursuant to this section, the court shall make written findings of fact that support the determination that marital property has been equitably divided. (Emphasis added.)
G.S. § 50-20(j). In Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988) our Supreme Court interpreted this statute to require written findings of fact in every case in which a distribution of marital property is ordered under the Equitable Distribution Act and expressly disapproved several of our cases in which we held that a trial court need not make findings of fact when marital property is equally divided. Id. at 403, 368 S.E.2d at 599. In argument IV, plaintiff contends that a new trial is required because the trial court failed to make findings of fact to support its conclusion that an equal distribution is equitable. We find that under the facts of this case, this failure does not require a new trial.
The trial court expressly concluded that an equal distribution is equitable. Plaintiff does not contend otherwise. In fact, his argument with regard to the credits is based upon his belief that an equal distribution is equitable and the trial court's treatment of the credits constituted error because it resulted in an "unequal" distribution. Because the issue of the credits can be resolved by a remand and because nowhere does plaintiff argue that the equal distribution is not equitable, we will not order a new trial despite the failure of the trial court to enter findings of facts as required by G.S. § 5020(j) and Armstrong.
Plaintiff next contends (argument VI) that the trial judge erred in failing to credit plaintiff for $2,000 which plaintiff gave to defendant from marital funds after the separation and to which fact both parties have stipulated. Defendant admits as much. *200 This error can also be corrected on remand without the need for a new trial.
Plaintiff next contends (argument VII) that there is no evidence to support the trial judge's valuation of the Candler and Pendleton properties. We disagree.
The values adopted by the trial judge for the two properties were each within the range of the plaintiff's and defendant's valuations. "This Court is not here to second-guess values of marital and separate property where there is evidence to support the trial court's figures. Counsel is cautioned that such arguments are a waste of this Court's time." Mishler v. Mishler, 90 N.C.App. 72, 74, 367 S.E.2d 385, 386, disc. review denied, 323 N.C. 174, 373 S.E.2d 111 (1988). This assignment is overruled.
Finally, plaintiff contends (argument VIII) that the trial court erred in failing to account for stock dividends received by defendant from marital stock in her possession between the date of separation and the final distribution. There is testimony in the transcript as to the total amount of dividends received by defendant wife during this period. Since one-half of the stock was awarded to plaintiff, the dividends received from them are his separate property and should have been awarded to him in the final accounting. This can be accomplished on remand also.
In conclusion, we find no error which would require a new trial; however, we remand this case to the trial court to (1) clarify, and if necessary, correct the distribution of credits to each party, (2) award plaintiff proper credit for the $2,000 advanced to defendant from marital assets, and (3) award plaintiff as separate property one-half of the stock dividends received by defendant from the marital stock during the period of separation. These adjustments may be made from the existing record and the trial court is not required to receive new evidence.
Remanded.
EAGLES and WALKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327968/ | 201 Ga. App. 658 (1991)
411 S.E.2d 891
MORRIS
v.
CHEWNING et al.
A91A1183.
Court of Appeals of Georgia.
Decided October 29, 1991.
*661 William N. Robbins, Gerald P. Ruleman, for appellant.
Beck, Owen & Murray, Samuel A. Murray, Sullivan, Hall, Booth & Smith, Timothy H. Bendin, Mark A. Bayless, for appellees.
SOGNIER, Chief Judge.
Judy Morris, as temporary administrator of the estate of her child, Kimberly Ann Morris, brought suit against a hospital and a physician alleging negligence during the birth of Kimberly Ann which resulted in the child's death. Thirteen months later, Morris moved for leave to amend the complaint to add as plaintiffs herself and her husband, Wayne Morris, in their individual capacities as parents of the decedent. The trial court denied the motion, and Morris appeals.
The original complaint filed in this action alleged that appellant was admitted to appellee hospital on January 11, 1988, that she gave birth to twins by Cesarean section the following morning, and that one twin, Kimberly Ann, died on January 14 as a result of conditions arising from the knotting of the umbilical cord before delivery, which appellant alleged would have been detected through proper fetal monitoring. Appellant filed the lawsuit on October 2, 1989, alleging appellees' negligence proximately caused the death of the child and praying for "a judgment against [appellees] in an amount to exceed $10,000.00, and all damages as allowed by Georgia Law." She then filed her motion to amend the complaint on November 14, 1990, and the trial court denied the motion on January 4, 1991.
As appellant acknowledges, the right to recover for the full value of the life of the decedent, a minor child, lies in her parents, not in the administrator of her estate, OCGA §§ 51-4-4; 19-7-1 (c) (2) (A), which is why appellant sought leave to amend the complaint. The Civil Practice Act provides that a person who claims an interest in an action and is so situated that the disposition of the action in her absence may impair her interest shall be joined as a party if feasible, OCGA § 9-11-19 (a), and parties may be added by order of the court upon motion "at any stage of the action and on such terms as are just." OCGA § 9-11-21. Complaints may be amended to change the capacity of the plaintiff, Atlanta Newspapers v. Shaw, 123 Ga. App. 848, 852-853 (182 SE2d 683) (1971), as well as to add new plaintiffs. Gordon v. Gillespie, 135 Ga. App. 369, 374-375 (217 SE2d 628) (1975). *659 If leave is sought to change or add plaintiffs after the expiration of the statute of limitation, provided "the claim ... asserted in the amended [complaint] arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original [complaint], the amendment relates back to the date of the original [complaint]." OCGA § 9-11-15 (c). See Gordon, supra. Additionally, for relation back to occur in such circumstances, there must be such an identity of interest between the old and new parties that relation back will not prejudice the defendant, Gordon, supra at 375, and there must have been no unexcused delay or laches prejudicial to the defendant. Id. at 376-377 (2); see Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984). OCGA § 9-11-15 (c) should be liberally construed to effect its purpose of ameliorating the impact of the statute of limitation. Rich's v. Snyder, 134 Ga. App. 889, 892-893 (216 SE2d 648) (1975).
We agree with appellant that the amendment she proposed met these requirements. The claim sought to be asserted by the new plaintiffs clearly arose out of the same occurrence as that alleged in the original complaint i.e., the death of Kimberly Ann Morris as a proximate result of the alleged negligence of appellees. Although, as appellees argue, the original ad damnum clause, which was pleaded in the form required by OCGA § 9-11-8 (a) (2) for medical malpractice actions, did not expressly pray for damages for the full value of the decedent's life, see OCGA §§ 51-4-1 (1); 19-7-1 (c) (1), the original pleading "`gives fair notice of the general fact situation out of which the claim arises'" and "`specifie[s the] conduct of [appellees] upon which [appellant] relies.'" Gordon, supra at 375. Thus, allowing the amendment would not deprive appellees of any protection provided by the statute of limitation. Id. Whether bringing suit in her individual or representative capacity, appellant had the same beneficial interest in the subject matter of the litigation and was asserting a claim for recovery of damages resulting from the same alleged acts or omissions, see Weldon v. Williams, 170 Ga. App. 589, 591-592 (3) (317 SE2d 570) (1984), and the same is true of the decedent's father, Wayne Morris, the new party sought to be added. See Gordon, supra at 369-370, 375-376 (plaintiff sought to amend action for wrongful death of father to include siblings).
Moreover, there was no prejudicial delay. Appellant did not propose the amendment as a dilatory measure but instead sought in good faith to correct an inadvertent oversight. See MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 43-44 (3) (230 SE2d 26) (1976). Allowance of the amendment would not place appellees at a disadvantage because they were on notice of the conduct and occurrence upon which the new complaint arose. "`(I)n and of itself, delay is not enough to warrant the denial of such a motion. It must be shown that *660 to allow the amendment will result in prejudice to the opposite party. (Cits.) "... [W]hile laches and unexcused delay may bar a proposed amendment, the mere fact that an amendment is offered late in the case is not enough to bar it if the other party is not prejudiced." That the amendment might relate back and bar the application of the statute of limitation is not the prejudice referred to in that statement. ...' [Cit.]" Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 735 (307 SE2d 530) (1983). "Mere delay in seeking leave to amend is not a sufficient reason for its denial. `(D)elay is not the sole controlling factor. It should not be permitted to defeat the policy of liberality in permitting amendment unless it will have prejudiced the plaintiff in some way.' [Cit.] ... `The Court does not take the position that [appellant] should be penalized because of an apparent oversight on behalf of [her] counsel. The sporting element of pleading is no longer with us.' [Cit.]" MCG Dev. Corp., supra at 43 (2), 44 (3). Accord Unicover, Inc. v. East India Trading Co., 154 Ga. App. 161, 162-163 (1) (267 SE2d 786) (1980). Under these circumstances, we hold the trial court abused its discretion by denying leave to amend. See MCG Dev. Corp., supra.
Judgment reversed. McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, JJ., and Judge Arnold Shulman concur. Andrews, J., dissents.
ANDREWS, Judge, dissenting.
Since I find nothing in the record that shows the plaintiff's lack of laches or lack of unexcusable delay, I cannot agree that the trial judge, who heard all that was presented at the hearing which was not recorded for our review, abused his discretion in denying the motion to amend.
The complaint was filed October 17, 1989. The motion to amend was not filed until November 15, 1990.
"`"The burden is on the party seeking amendment to show lack of laches or lack of unexcusable delay." (Cit.) The record reveals no attempt by (appellant) to satisfy this burden in the case sub judice ... . As the record contains no showing of a lack of laches or inexcusable delay, we find no abuse of the trial court's discretion in its denial of (appellant's) motion to amend.' Mulkey v. Gen. Motors Corp., 164 Ga. App. 752, 754-755 (3) (299 SE2d 48); rev'd on other grounds, 251 Ga. 32 (302 SE2d 550)." Ostroff v. Coyner, 187 Ga. App. 109, 113 (2) (369 SE2d 298) (1988).
"`(T)his court will not presume the trial court committed error where that fact does not affirmatively appear.' [Cits.]" Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (3) (399 SE2d 712) (1990).
Therefore, I must respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327918/ | 201 Ga. App. 320 (1991)
411 S.E.2d 324
THE STATE
v.
CORLEY.
A91A1352.
Court of Appeals of Georgia.
Decided September 25, 1991.
Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellant.
William E. Frey, for appellee.
BIRDSONG, Presiding Judge.
This is a prosecution for possession of marijuana. The State appeals the trial court's grant of the motion to suppress of appellee Joseph Mitchell Corley. Held:
When we review a trial court's decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639); State v. Combs, 191 Ga. App. 625, 627 (382 SE2d 691).
The evidence is disputed in some aspects, but construed in favor of the trial court's ruling, it shows that appellee Corley and Tim Tanner were in the parking lot of a convenience store near a pickup truck which Tanner had been driving and to which he claimed ownership. Tanner was sitting in another vehicle and appellee was standing in the parking lot when police, including a narcotics officer whom appellee knew, stopped their vehicle alongside appellee and began to talk *321 to him. Tanner got out of the vehicle where he was sitting and went towards the pickup truck. The officer testified that when he and his partner pulled into the parking lot, appellee walked over to their car and spoke to them; and that he detected a slight slurring in appellee's speech. Appellee denied having done this, and testified, "What would I want to walk over to a narcotics car for when we've got marijuana in [the] truck for to talk to him when [sic] I know he's a narcotics agent." The police directed both Tanner and appellee to empty their pockets; they did so, emptying their pockets on the hood of the pickup truck. According to the police, they asked Tanner if they could "look inside" his truck, and Tanner said yes. According to appellee and Tanner, consent to search was never asked; the police simply went inside the truck and started looking around. The searching officer saw a closed drawstring "Crown Royal" bag "laying on the seat in the middle of the driver's [side]." He could not see inside it, but suspected it contained illicit drugs, and he opened it and discovered less than an ounce of marijuana. The officer further testified that after the search appellee stated, "Tanner didn't have anything to do with it, that it was his." (Emphasis supplied.)
Appellee, who was the passenger in Tanner's vehicle on that evening but was standing outside it when the police drove up, contends he never gave permission to search, he was not under arrest, the marijuana was not in plain view, and he had a reasonable expectation of privacy in the searched premises; the State contends appellee, as a mere passenger, had no standing to complain of the search because he had no reasonable expectation of privacy in the passenger compartment of Tanner's vehicle, citing McGhee v. State, 253 Ga. 278, 279 (319 SE2d 836) and Mecale v. State, 186 Ga. App. 276, 277-278 (367 SE2d 52).
Appellee testified that he did not approach the officer's car because "what would I want to walk over to a narcotics car for when we've got marijuana in [the] truck . . . when I know he's a narcotics agent." He thus again, albeit in a sarcastic manner, asserted an interest in the marijuana which was in the closed bag in the front seat, and for reasons hereafter discussed, had a reasonable expectation of privacy in the premises such that the search not incident to arrest violated his constitutional rights. See Mecale, supra; State v. Scott, 176 Ga. App. 887, 888-889 (339 SE2d 276). See Rakas v. Illinois, 439 U.S. 128, 148 (99 SC 421, 58 LE2d 387).
This is an appeal by the State of the trial court's granting of appellee's suppression motion; and it is our obligation on appeal to construe the evidence most favorably to support the trial court's ruling. See Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). Immediately following the search and also at the suppression hearing, appellee readily asserted an interest in the contraband; at no time did appellee *322 expressly deny that the marijuana was his. This critical fact pattern clearly distinguishes the case at bar from Rakas, supra, McGhee, supra, and Mecale, supra. Further, the bag containing the contraband was not in the trunk, the glove compartment or under the passenger seat, areas where appellee conceivably might not enjoy a reasonable expectation of privacy. Rakas, supra at 148. Rather, the contraband in this case was in a closed Crown Royal bag "laying on the seat in the middle of the driver's seat" of a pickup truck, an area within an arm's reach of the appellee passenger and clearly not outside the range of his reasonable expectation of privacy. In Rakas, the Supreme Court of the United States had an opportunity to declare that all passengers of vehicles would henceforth lack sufficient expectation of privacy to challenge the search of the automobile in which they were riding; the majority made no attempt to assert such a broad holding. Rather a reading of Rakas reveals that repeatedly the Supreme Court noted the defendants had failed to assert, at any time, that they owned or possessed the rifle or shells seized, that is, defendants never asserted an interest in the property seized; moreover, the Court expressly determined that the areas such as a glove compartment, under the car seat, and the trunk are storage areas in which a passenger qua passenger simply does not normally have a legitimate expectation of privacy. Rakas, supra at 148-149.
As stated, in this case the seized property was not found in any area normally used by the vehicle owner for storage, but was found lying in a bag on the pickup truck seat in the approximate location of the middle of the driver's seat. Under the circumstances here presented, we are satisfied appellee was vested with that reasonable expectation of privacy necessary to authorize him to contest whether the police violated his Fourth Amendment rights during the course of their search and seizure. In this regard, a subjective expectation of privacy is reasonable if it is one that society is prepared to recognize as reasonable. Rakas, supra at 143-144. In this instance, viewing the facts and drawing all reasonably permissible inferences therefrom to support the trial court's ruling, as we are required to do, we find: (a) appellee claimed an interest in the contraband and from appellee's assertion of the broad claim that he owned "it," it may reasonably be inferred he also was asserting ownership in the bag in which the contraband was being carried (not that that is essential in the disposition of this case); and, (b) appellee either owned or partially owned the vehicle (as discussed below) or was in the vehicle as a passenger with the owner's consent. Although not necessary to the disposition of this case, it also reasonably may be inferred (a) that at some point in time appellee carried marijuana and scales into the vehicle with him, and these contraband items were carried in a Crown Royal bag the closed bag in which the items were found during the search; and (b) *323 appellee placed the bag on the front seat of the pickup truck where the closed bag was found, lying in the open, by the officer.
It is apparent beyond doubt that society is prepared to accept as reasonable that both vehicle owners and their authorized passengers may carry bags and parcels with them into the automobile; it is further our view that society is prepared to recognize a right of privacy in the contents of those closed packages and bags, which legitimate passengers and vehicle owners carry with them into the vehicle at least to the extent of vesting the passenger or owner with lawful authority to assert a violation of Fourth Amendment rights due to an illegal search or seizure of those objects. We cannot comprehend that society is willing to give up the reasonable expectation of a right of privacy to closed packages and bags, placed in plain view and within reasonable proximity of the person asserting a legitimate interest therein thereby in essence vesting the police with virtual carte blanche authority to conduct illegal searches and seizures thereof with impunity merely because those items must be transported in an automobile to travel from point A to point B in the company of the owner or person claiming an interest therein. Accordingly, we find appellee did enjoy a subjective expectation of privacy in the bag and its contents in this instance within the meaning of Rakas. Rakas, supra at 143-144, citing Katz v. United States, 389 U.S. 347, 361 (88 SC 507, 19 LE2d 576) (Harlan, J., concurring).
Incidentally, although the weight of evidence in this case is that the vehicle belonged to the co-defendant Tanner, appellee's suppression motion referred, at least twice, to the vehicle as the "defendant's vehicle." Also during the suppression hearing, appellee testified that the officer "told both of us to stand over there, while he searched our car," and that he did not protest the search because "what am I supposed to say to him? You can't search my car." (Emphasis supplied.) The trial court made no express finding of fact other than to hold that "there is a conflict in the testimony." Thus, conceivably the trial court could have found as fact that the pickup was either jointly or exclusively owned by appellee. Regardless of who owned the vehicle, however, for the reasons stated above, we find that appellee had the requisite reasonable expectation of privacy to contest the legality of this particular search and seizure.
Even assuming the officer asked for and obtained a consent to search, his question to Tanner, the avowed owner of the truck, was: "Do you care if I look inside of it"; whereupon, Tanner having said "no, go ahead," the officer proceeded to open the closed drawstring bag in the front seat. It is apparent that, according to the officer's own testimony, as in State v. Diaz, 191 Ga. App. 830, 832 (383 SE2d 195), the officer asked merely for permission to "look inside" the vehicle and "gave . . . no indication that he intended to seize and examine *324 the contents of any items or containers therein. `This was the outer extent of investigation consented to; the scope of the consent clearly did not extend to a full-blown search of the interior and [containers found therein]. ... We know of no case which has allowed police officers arbitrarily to expand the scope of a consent search.'"
Where the validity of the search is dependent on the consent of a defendant and the evidence shows without dispute that the scope of the search exceeded the scope of the consent, the search is unlawful. Amato v. State, 193 Ga. App. 459, 460 (388 SE2d 54). The basis for the search in this case was the consent given by the owner of the vehicle, Tanner, and it is plain that the officer's search of the closed container in the front seat exceeded the scope of the consent given by Tanner, and was unlawful.
Judgment affirmed. Cooper, J., concurs. Pope, J., concurs specially.
POPE, Judge, concurring specially.
While I agree with the result reached by the majority, I feel compelled to write separately to express my opinion that the only statement contained in the record, which justifies a finding that the defendant asserted a possessory interest in the contraband, is the testimony of the arresting officer that: "Mr. Corley later stated, during the time that they were sitting outside the vehicle, that Mr. Tanner didn't have anything to do with it, that it was his." When this statement is considered in context, it is probable that defendant was referring to the marijuana found in Mr. Tanner's truck. The other statements quoted in the majority opinion are either obviously sarcastic remarks or are otherwise irrelevant to the standing issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327934/ | 306 S.C. 260 (1991)
411 S.E.2d 424
James Thomas YARBOROUGH, Sr., Appellant
v.
John I. ROGERS, III, Respondent.
23499
Supreme Court of South Carolina.
Heard April 3, 1991.
Decided October 28, 1991.
*261 Frederick K. Jones, Hartsville, for appellant.
Brown W. Johnson, Florence, for respondent.
Heard April 3, 1991.
Decided Oct. 28, 1991.
GREGORY, Chief Justice:
This is a legal malpractice action in which the trial judge granted respondent Rogers summary judgment. We reverse.
Appellant Yarborough argues summary judgment was improperly granted on the issue of Rogers' negligence. Yarborough's complaint alleges he retained Rogers to represent him in his 1983 divorce action and that at the family court hearing held on March 28 and 29, 1983, Rogers negligently represented him by failing to call Yarborough as a witness or present evidence on his behalf, by failing to accurately prepare his financial declaration, and by failing to negotiate with opposing counsel. Yarborough alleged Rogers' poor preparation and representation proximately caused damages to his person, business, and reputation.
Rogers moved for summary judgment and submitted two affidavits to support his motion. The first is his affidavit stating he represented Yarborough in the 1983 divorce action and in a subsequent action in 1985 wherein he succeeded in having Yarborough's alimony reduced. He also represented Yarborough in two other matters. Rogers states, "During all of this time and during all of these proceedings [Yarborough] continued to be most appreciative and frequently expressed *262 his high regard for my assistance in all of these matters."
Rogers' second affidavit is by a family court judge stating that at the 1985 hearing on the reduction in alimony, Rogers "made a strong showing of changed condition" and as a result alimony was reduced. He further states Yarborough praised and thanked Rogers for his work.
Based on Rogers' affidavits, the trial judge ruled he was entitled to judgment as a matter of law. We disagree. None of the facts alleged in Rogers' affidavits, even if true, supports the conclusion he was entitled to judgment as a matter of law. The fact that Rogers succeeded in a 1985 action on Yarborough's behalf or that Yarborough appreciated his work is irrelevant to the issue of Rogers' negligence at the 1983 divorce hearing.
Rogers contends, however, that Yarborough failed to raise any factual issue regarding negligence in opposition to the motion for summary judgment and therefore Rogers is entitled to prevail. Rule 56(e), SCRCP, provides that an adverse party may not rest upon the mere allegations or denials of his pleadings to withstand summary judgment but must set forth specific facts showing there is a genuine issue for trial. As we have recently held, however, a moving party who fails to show the absence of a genuine issue of material fact is not entitled to summary judgment even though his adversary does not come forward with opposing materials. Standard Fire Insurance Co. v. Marine Contracting and Towing Co., 301 S.C. 418, 392 S.E. (2d) 460 (1990). The party opposing summary judgment need not come forward in any way if the moving party has not supported his motion to the point of showing the issue is a sham. Title Insurance Co. v. Christian, 267 S.C. 71, 226 S.E. (2d) 240 (1976). Accordingly, under the facts presented we find Rogers is not entitled to summary judgment. The judgment of the circuit court is
Reversed.
HARWELL, FINNEY and TOAL, JJ., and ALEXANDER M. SANDERS, JR., Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327935/ | 451 S.E.2d 663 (1995)
Heather M. FAIN
v.
STATE RESIDENCE COMMITTEE OF the UNIVERSITY OF NORTH CAROLINA.
No. 9310SC911.
Court of Appeals of North Carolina.
January 3, 1995.
*664 Atty. Gen. Michael F. Easley by Associate Atty. Gen. Thomas O. Lawton III, for the State.
Bailey & Dixon by J. Ruffin Bailey and Alan J. Miles, Raleigh, for the plaintiff.
McCRODDEN, Judge.
Relying on three assignments of error, the Committee presents one argument for our consideration. The Committee contends that the superior court erred in reversing its decision because that decision was legally correct, was supported by substantial evidence, and was not arbitrary or capricious.
The facts of the case are these. In September 1991, petitioner applied for admission for the fall 1992 term of the University of North Carolina at Chapel Hill (the University) and for classification as a North Carolina resident for tuition purposes. Her application for in-state residence status showed that she was born in Charlotte on 27 January 1974 and had lived in Charlotte her entire life. Although the application listed 2000 Dilworth Road East, Charlotte, as her family's permanent residence, it also indicated that her father would begin working for a power company in Vermont by the end of September 1991. In a supplementary statement, received by the admissions office on 8 October 1991, petitioner indicated that her parents were moving to Vermont by the end of 1991, and that she would remain in Charlotte at 3832 Sedgewood Circle and finish high school.
On 4 December 1991, petitioner's father executed a medical consent form authorizing Mr. and Mrs. Benjamin Seagle, III to act in place of petitioner's parents in case of a medical emergency. The form indicated that petitioner's father had financial responsibility for petitioner and that petitioner was covered by a health plan that was based in Vermont and sponsored by the father's employer in Vermont. The form also listed a doctor in Vermont as petitioner's primary care physician.
In December 1991, petitioner submitted a second application, which listed 3832 Sedgewood Circle as her current mailing address and Shelburne, Vermont as her and her parents' permanent residence. The application stated that her parents had moved to their permanent residence in Vermont on 8 December 1991. According to this second application, petitioner's father would claim her as a dependent on 1992 tax returns for both North Carolina and Vermont. The application also indicated that petitioner had acquired a North Carolina driver's license in February 1990, drove a car registered in North Carolina, maintained 95% of her personal property in Charlotte, and worked at *665 two summer jobs that provided her with 0.5% of her living expenses.
In January 1992, the Office of Undergraduate Admissions denied petitioner's application for resident status for tuition purposes. She appealed this decision to the Resident Status Committee and then to the State Residence Committee (Committee). Both upheld the decision classifying her as an out-of-state resident. Petitioner then appealed to the superior court, which reversed the agency decision.
This Court's review of a trial court's consideration of a final agency decision is to determine whether the trial court properly applied the review standard articulated in N.C.Gen.Stat. § 150B-51 (1991) of the Administrative Procedure Act. Walker v. N.C. Dept. of Human Resources, 100 N.C.App. 498, 502, 397 S.E.2d 350, 353 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). The superior court may reverse or modify an agency decision if:
[T]he substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence...
(6) Arbitrary or capricious.
N.C.G.S. § 150B-51(b).
The proper standard the trial court applies depends on the issues presented on appeal. Walker, 100 N.C.App. at 502, 397 S.E.2d at 354. A de novo review is required for allegations that error of law affected an agency decision. Brooks, Com'r. of Labor v. Rebarco, Inc., 91 N.C.App. 459, 463, 372 S.E.2d 342, 344 (1988). The trial court reviews allegations that an agency decision is not supported by the evidence or is arbitrary or capricious under the whole record test. Id. That test requires the trial court to examine the entire record to determine whether there is substantial evidence in the record to support the agency's conclusions. Walker, 100 N.C.App. at 503, 397 S.E.2d at 354. Substantial evidence is evidence which a "reasonable mind would regard as adequately supporting a particular conclusion." Id.
The standard of review for administrative decisions is the same in the Court of Appeals as in superior court. Teague v. Western Carolina University, 108 N.C.App. 689, 691, 424 S.E.2d 684, 686, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993). We do not defer to the superior court's decision. Id. at 691-92, 424 S.E.2d at 686.
The Committee first claims that there was no error of law in its classification of petitioner as an out-of-state resident for tuition purposes. "To qualify as a resident for tuition purposes, a person must have established legal residence (domicile) in North Carolina and maintained that legal residence for at least twelve months immediately prior to his or her classification as a resident for tuition purposes." N.C.Gen.Stat. § 116-143.1(b) (Supp.1993). In asserting that petitioner does not qualify as a resident, the Committee relies upon the common law presumption that a minor's domicile is the same as that of the minor's parents, see Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307 (1924), and N.C.G.S. § 116.143.1.
For purposes of determining residence status for tuition purposes, the legislature has supplanted the common law presumption cited by the Committee by enactment of N.C.G.S. § 116-143.1. See Biddix v. Henredon Furniture Industries, 76 N.C.App. 30, 34, 331 S.E.2d 717, 720 (1985) ("[w]hen the General Assembly legislates with respect to the subject matter of a common law rule, the legislation supplants the common law"). Thus, we must confine our analysis of the question on appeal to N.C.G.S. § 116-143.1.
Sections 116-143.1(e), (j), and (k) establish criteria whereby an applicant whose parent or parents do not live in this state may obtain residency status. Only section 116-143.1(e) is relevant, providing:
When an individual presents evidence that the individual has living parent(s) or court-appointed *666 guardian of the person, the legal residence of such parent(s) or guardian shall be prima facie evidence of the individual's legal residence, which may be reinforced or rebutted relative to the age and general circumstances of the individual by the other evidence of legal residence required of or presented by the individual; provided, that the legal residence of an individual whose parents are domiciled outside this State shall not be prima facie evidence of the individual's legal residence if the individual has lived in this State the five consecutive years prior to enrolling or reregistering at the institution of higher education at which resident status for tuition purposes is sought.
(Emphasis added).
The Committee argues that, according to N.C.G.S. § 116-143.1(e), the residence of petitioner's parents is prima facie evidence of petitioner's own legal residence. This subsection, however, contains an exception for individuals whose parents are domiciled outside of the state but who, themselves, have lived in the state for five consecutive years prior to enrolling in an institution of higher education. Under this exception, the legal residence of the parents is not prima facie evidence of the individual's domicile, and the individual must then present evidence to "establish that his or her presence in the State... is ... for purposes of maintaining a bona fide domicile rather than ... a ... temporary residence." N.C.Gen.Stat. 116-143.1(c). Here, although petitioner's parents are domiciled outside North Carolina, the legal residence of her parents is not prima facie evidence of her legal residence since she has lived in this state five consecutive years prior to enrolling at the University.
We conclude that error of law affected the Committee's reliance on the presumption that petitioner's domicile was that of her parents and on the prima facie case which N.C.G.S. § 116-143.1(e) allows.
Although the record contains evidence that bears on petitioner's legal residence, we believe that it is the duty of the Committee to determine petitioner's status based upon a correct understanding of the law. Consequently, we vacate the order of the Superior Court and remand the case to it with directions to remand to the Committee for a determination of petitioner's legal residence in light of the principles of this case.
Vacated and remanded.
ARNOLD, C.J., and GREENE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328074/ | 599 S.E.2d 822 (2004)
215 W.Va. 399
Max CROW and Gary Wroblewski, Appellants Below, Appellants
v.
WAYNE COUNTY BOARD OF EDUCATION, Appellee Below, Appellee
No. 31626.
Supreme Court of Appeals of West Virginia.
Submitted April 27, 2004.
Decided June 17, 2004.
*823 Charles F. Donnelly, Esq., Jeffrey G. Blaydes, Esq., Donnelly & Carbone, PLLC, Charleston, for Appellants.
David A. Lycan, Esq., David Lycan, L.C., Wayne, for Appellee.
PER CURIAM.
This is an appeal by Max Crow and Gary Wroblewski from a decision of the Circuit Court of Kanawha County in a school teacher grievance case. The appellants, who were ordered to perform duties which they claimed were non-professional and outside the scope of their job definitions, filed grievances with the Wayne County Board of Education. Those grievances were denied at the administrative level, and the Circuit Court of Kanawha County affirmed the denials. On appeal, the appellants claim that the Wayne County Board of Education illegally modified their employment responsibilities and that their grievances should be granted. They also claim that the Wayne County Board of Education has taken retaliatory action against them. They pray that this Court order that they be restored to their former teaching positions, and that the Wayne County Board of Education be directed to desist from further retaliatory action.
I.
FACTS
The appellant, Max Crow, is a certified math teacher, and the appellant, Gary Wroblewski, is a certified social studies and special education teacher. Both held teaching positions at the Wayne County Alternative Education Center during the 2000-2001 school year.
In March 2001, the Wayne County Board of Education, which had determined that school bus aides needed to accompany students on school buses going to and from the Wayne County Alternative Education Center, requested that the appellants either agree to ride school buses daily, in addition to performing their teaching duties, or that they be placed on the teacher transfer list.
The appellants refused to accept the additional duties, and they were placed on the teacher transfer list. Additionally, the Wayne County Board of Education modified the job descriptions for the appellants' 2001-2002 positions to require the holders of the positions in the future to serve as school bus aides or chaperones.
The appellants, who did not apply for the modified positions, were transferred from the Wayne County Alternative Education Center to the Crum Middle School. Shortly thereafter, however, they were transferred back to their former positions, as modified, at the Wayne County Alternative Education Center. *824 The transfer included the requirement that they perform school bus aide duties.
Following their transfer back to the Wayne County Alternative Education Center, the appellants filed grievances in which they claimed that school bus aide duties were outside the professional teacher duties for teachers as prescribed by West Virginia law. They also, in essence, claimed that the school bus aide duties were service personnel duties. They took the position that it was improper for the Wayne County Board of Education to require them to perform service personnel duties, in addition to professional teaching duties, without their consent.
The appellants' grievances were denied at the administrative levels. The administrative law judge who ultimately considered the case recognized that a school bus aide was normally in the service personnel category, but went on to conclude that the joinder of aide duties with the appellants' professional responsibilities was proper and that any error committed by the school board was harmless.
The appellants appealed the administrative law judge's decision to the Circuit Court of Kanawha County.
While the appeal was pending in the circuit court, the appellants claimed that the Wayne County Board of Education took retaliatory action against them. They stated that they were reprimanded for filing grievances and that they were instructed to discuss only "appropriate topics" and not grievances and "disgruntled" issues. They also claimed that they were subjected to dress codes and other conditions not applicable to other teachers. Finally, they asserted that they had received unsatisfactory performance evaluations in sharp contrast to what they had received before they filed their grievances. On October 29, 2002, the appellants moved that the circuit court enjoin or issue a writ of mandamus prohibiting further retaliatory action.
On March 18, 2003, the circuit court, without ruling on the motion to enjoin or prohibit retaliatory action, affirmed the denial of the appellants' grievances.
The appellants now appeal from the circuit court's decision claiming that the joinder of school service personnel duties to their professional teaching duties without their consent was inappropriate and that the circuit court erred in holding that it was appropriate. They also claim that the circuit court erred in ruling in their case without ruling on their motions to enjoin or prohibit retaliatory action.
II.
STANDARD OF REVIEW
Recently, in Syllabus Point 1 of Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000), this Court stated:
Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.
Additionally, in W. Va.Code 18-29-7, the Legislature has indicated that the decision of a hearing examiner should be final unless it is contrary to the law or that the hearing examiner acted in excess of his statutory authority, or that the decision was a result of fraud or deceit, or was clearly wrong in view of the probative and substantial evidence in the record as a whole, or, finally, was arbitrary, capricious or characterized by an abuse of discretion or by a clearly unwarranted exercise of discretion.
III.
DISCUSSION
As has previously been indicated, the appellants claim that the Circuit Court of Kanawha County wrongfully merged school service personnel duties into their school teaching positions.
*825 West Virginia Code 18A-1-1(a) specifically provides that: "School personnel shall be comprised of two categories: Professional personnel and service personnel." The two types of personnel are defined in different ways. Professional personnel are described as persons who meet certification requirements of the state or licensing requirements of the state, or both, and include professional educators or other professional employees. It is also states that "professional educators" has the same meaning as teacher as defined by the Code. W. Va.Code 18A-1-1(b) and (c). "Service personnel," on the other hand, are defined by W. Va.Code 18A-1-1(e), which states: "`Service personnel' means those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and as aides."
In Martin v. Randolph County Board of Education, 195 W.Va. 297, 465 S.E.2d 399 (1995), this Court analyzed West Virginia's school personnel classification scheme. It noted the creation of the two classifications discussed previously, and analyzed the situation of the individual whose position was in issue. The Court concluded that the two classes of personnel were distinct, and stated: "[U]nder our statutory scheme, [a school employee] ... must be either one or the other." Martin v. Randolph County Board of Education, id. at 312, 465 S.E.2d at 414. In the later case of Akers v. Board of Education of the County of Raleigh, 214 W.Va. 337, 589 S.E.2d 221 (2003), the Court again noted that all school personnel positions must be either service or professional under our statutory scheme.
In Martin v. Randolph County Board of Education, supra, the Court indicated that at the heart of the classification process was the character of work to be performed in a job. The clear implication of the Court's decisions is that the Legislature contemplated that school jobs be either of a professional or of a service type character, and that they cannot be both. The logical extension of this is that the melding of professional and service duties into one job, regardless of whether it is formally designated "professional" or "service," is counter to the legislative design of the classification system. In line with this, this Court believes that positions within school systems must be designed and described in such a way as to encompass either professional duties covered by the legislative provisions governing professional positions or service duties governed by the provisions relating to service positions, but not both.
By definition, teachers such as the appellants in the present case, are "professional personnel." W. Va.Code 18A-1-1(b). Conversely, aides are "service personnel." See, W. Va.Code 18A-4-8.
In examining the facts of the present case, it appears to the Court that the Wayne County Board of Education did attempt to merge service position duties into the appellants' professional position descriptions, and that in so doing the Wayne County Board of Education acted contrary to the law. The Court also believes that the Circuit Court of Kanawha County erred in affirming the decision of the administrative law judge relating to this.
The Court notes that the appellants claim that the trial court erred in ruling in the case without addressing their rights to injunctive relief and a writ of mandamus.
It goes without saying that this Court has recognized that retaliatory action by an employer is inappropriate against an employee who has sought to protect his or her legal rights. See, e.g., State ex rel. Hawkins v. Tyler County Board of Education, 166 W.Va. 363, 275 S.E.2d 908 (1980). However, the grievances in the present case were prosecuted pursuant to the grievance procedure established by the Legislature in W. Va.Code 18-29-1, et seq. The appeal before the circuit court was taken pursuant to the provisions of W. Va.Code 18-29-7. Such appeals are similar to appeals under West Virginia's Administrative Procedure Act, W. Va.Code 29A-5-4. Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). Where an appeal of an administrative decision is taken pursuant to W. Va.Code 29A-5-4, the Court has held that relief by extraordinary remedy, such as by mandamus, is not authorized. One seeking relief by extraordinary remedy must follow the *826 specific procedures prescribed by statute permitting such remedies. See, State ex rel. Stewart v. Alsop, 207 W.Va. 430, 533 S.E.2d 362 (2000). In light of this, the Court concludes that the circuit court, in the present case, did not err in refusing to act on the appellants' motions for mandamus and injunctive relief.
For the reasons stated, the judgment of the Circuit Court of Kanawha County is reversed, and it is directed that the appellants be restored to their professional positions without the requirement that they perform school bus aide duties in conjunction with the performance of their professional duties.
Reversed and remanded with directions.
STARCHER, Justice, dissenting.
In schools all over West Virginia, teachers are regularly assigned to do their share of duty as hall monitors, bathroom monitors, and lunchroom monitors during their normal work day. No one argues that school boards cannot legally assign teachers to do this monitoring work. Legally, there is no difference between this monitoring work and monitoring children on a bus.
The majority opinion cites no authority for its conclusion that requiring a teacher to do student monitoring (on a bus, or anywhere else) during the teacher's regular work day is an illegal "merger" of tasks.
The majority opinion also omits any discussion of the fact that assigning these teachers in the instant case to do bus monitor duty occurred in order to stop incidents on the school bus that were caused by Alternative School students. These teachers work at the Alternative School, know these students, and are in a good position to monitor and influence the students' behavior.
I believe in creating and using Alternative Schools to help keep "kids in trouble" in the school system. If we make it harder to run Alternative Schools, we will have less of them but the fact is, we need more of them.
Circuit Judge King wrote a thoughtful and well-reasoned opinion upholding the Grievance Board decision. I would affirm Judge King's decision.
I caution teachers, school service personnel, and the Grievance Board against relying on the per curiam opinion in the instant case especially to try to restrain school boards from requiring teachers to monitor students as part of a teacher's daily work duties. The majority opinion, as I see it, is sui generis, result-oriented, limited to its facts, and has no precedential value. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328335/ | 478 S.E.2d 444 (1996)
223 Ga. App. 639
DEPARTMENT OF PUBLIC SAFETY
v.
BAFFORD.
No. A96A2298.
Court of Appeals of Georgia.
November 20, 1996.
Michael J. Bowers, Attorney General, Mary B. Westmoreland, Deputy Attorney General, Neal B. Childers, Senior Assistant Attorney General, Carol A. Callaway, Assistant Attorney General, for appellant.
Spruell & Dubuc, Brian M. Dubuc, Atlanta, for appellee.
JOHNSON, Judge.
The Georgia Department of Public Safety suspended the nonresident driving privileges of Jeffery K. Bafford, an Illinois resident, after he was arrested for DUI in Atlanta.[1] The superior court reversed. We granted *445 the department's petition for discretionary review. We now reverse the superior court, and reinstate the suspension of Bafford's Georgia driving privileges.
A police officer observed Bafford sitting at the wheel of his car, stopped in an intersection and shouting at a pedestrian. The officer administered field sobriety tests and, based on the results, arrested Bafford for DUI. The officer read Bafford an implied consent warning regarding blood testing. Bafford asked what would happen to his Illinois license if he refused to take the test. Bafford testified the officer replied: "[A]s far as he knew I could drive ... he wasn't for surehe did say `I'm not for sure' but the State of Illinois would not find out and the only state you will not be able to drive in is the State of Georgia." The officer's account of the conversation did not differ materially from Bafford's.
Bafford refused the test. He later challenged the suspension of his Georgia driving privileges before an administrative hearing officer, contending he had been misled about the effect a refusal would have on his Illinois license. The hearing officer upheld the suspension. That decision was apparently affirmed in an administrative review, though the decision is not in the record on appeal. The superior court reversed, finding that an implied consent warning was required to be "meaningful and unambiguous," while the officer's advice to Bafford had been "contradictory and confusing," and contained statements that were "false and/or misleading."
When the Court of Appeals reviews a superior court judgment in a case under the Administrative Procedure Act, our function "is to determine whether the ... superior court has in [its] own final ruling committed an error of law." DeWeese v. Ga. Real Estate Comm., 136 Ga.App. 154, 155(1), 220 S.E.2d 458 (1975). The Department of Public Safety contends the superior court committed legal error in finding that the officer's statement to Bafford was false or misleading. We agree.
"[T]he State of Georgia cannot control or know for certain what other states will do [in response to a refusal to submit to an alcohol test] ... and the rule regarding warnings for out-of-state residents certainly should not depend on which foreign state the driver is from and how that state handles such situations." State v. Coleman, 216 Ga.App. 598, 599, 455 S.E.2d 604 (1995). The officer was therefore correct to tell Bafford that he did not know how officials in the State of Illinois would handle his refusal to be tested, and Bafford's own testimony shows that he understood the officer's uncertainty. Bafford's "argument that a warning that refusal to submit to the test would `possibly' result in suspension did not permit him to make an intelligent choice in the matter strains credulity." Ivie v. State, 151 Ga.App. 496, 498(3), 260 S.E.2d 543 (1979). Compare Coleman, supra, and Deckard v. State, 210 Ga.App. 421, 423, 436 S.E.2d 536 (1993), in which we held it was unlawfully coercive for officers to tell non-residents that test refusal would cause their home states to revoke or suspend their driver's licenses.
Judgment reversed.
McMURRAY, P.J., and RUFFIN, J., concur.
NOTES
[1] We affirmed Bafford's DUI conviction in an unpublished opinion. Bafford v. State, Case No. A96A1504, July 16, 1996. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328147/ | 200 Va. 325 (1958)
JOHN CARLTON HUDSON, JR., ET AL.
v.
ETHEL H. CLARK, ETC., ET AL.
Record No. 4839.
Supreme Court of Virginia.
December 1, 1958.
William L. Parker, for the appellants.
Edward L. Breeden, Jr. and Robert R. MacMillan (Breeden, Howard & MacMillan; Shelby Fitze, on brief), for the appellees.
Present, All the Justices.
1. The conclusions of a commissioner in chancery based on evidence taken ore tenus should be sustained unless it plainly appears that the weight of the evidence is contrary to his findings.
2. J. Carlton Hudson, executor under the will of his father George P. Hudson and under the will of his mother Anna M. Hudson, sought the advice of the court as to certain matters involved in the handling of these estates. One such matter was the ownership of the stock of Maury Court, Inc., a corporation formed by George P. Hudson to construct an apartment house on land bought by the corporation from Anna M. Hudson. This stock, if part of her estate, passed to her husband for life and then to their three children; if part of George P. Hudson's estate it would, after certain life estates, pass to his grandchildren. It was originally issued in the names of George P. Hudson and others of the family, and was in his possession and endorsed in blank at his death, nor had it been listed as part of Anna M. Hudson's estate. But the evidence showed she received no other consideration for the land, that George P. Hudson's income tax returns indicated the dividends from it were considered by him as from a fiduciary source (namely the life tenancy under her will), and there was no evidence he ever claimed ownership. Nor did the corporate books show payment for the stock by the listed stockholders. Therefore the commissioner's finding that the stock formed part of Anna M. Hudson's estate was in accord with the evidence, particularly in light of the rule that when a husband takes title in his own name to property purchased with his wife's money a resulting trust is created in her favor, unless it be shown the money was a gift or loan to the husband.
3. The fact that Maury Court, Inc., filed a statement with the Corporation Commission that its stock would be issued only for money did not render void its issuance for Anna M. Hudson's property. Though this was a violation of relevant provisions of the Code, the statute in terms protected the validity of the issue.
4. At his death George P. Hudson owned all the stock of New Home Corporation, a land development corporation whose real estate comprised its only assets and whose only source of income was the sale of its lands. Under subsections 1 and 2 of section 55-259 of the Code and under the terms of George P. Hudson's will, such profits were income to be distributed to the life tenants. The remaindermen had no right to demand their accumulation.
5. There was no merit in the contention of appellants that the entity of Maury Court, Inc. and New Home Corporation should have been disregarded in the interest of justice.
Appeal from a decree of the Circuit Court of the city of Norfolk. Hon. Clyde H. Jacob, judge presiding. The opinion states the case.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
This proceeding was instituted in August, 1953, by John Carlton Hudson, as co-executor of the last will and testament of George P. Hudson, deceased, and as surviving executor of Anna Mary Hudson, deceased, against Ethel H. Clark, in her own right and as co-executor of the last will and testament of George P. Hudson, Helen K. Hudson, in her own right and as executrix of the last will and testament of George P. Hudson, Jr., deceased, Maury Court, Incorporated, and New Homes Corporation, both Virginia corporations, John Carlton Hudson, Jr., Barbara Hudson Bond Pincus, *327 formerly Barbara Hudson Bond, and Janet Florence Hudson Judge, formerly Janet Florence Hudson, then an infant, but now of age. The complainant alleged that a controversy existed between him and the defendants as to whether certain property and assets belonged to the estate of Anna Mary Hudson or to the estate of George P. Hudson, and as to the rights and liabilities of the several parties. He prayed for the advice, guidance and direction of the court with respect to his duties and obligations as executor of the estates of the two deceased persons and for declaratory judgments adjudicating the respective rights and liabilities of the parties.
The defendants, both individuals and corporations, filed answers to the bill. Ethel H. Clark and Helen K. Hudson filed an answer and cross-bill naming all other parties as cross-defendants, and praying for the removal of J. Carlton Hudson as executor, because of improper and illegal conduct in his fiduciary capacity. Answers were filed to the cross-bill, and thereafter Ethel H. Clark and Helen K. Hudson filed an amended and supplemental bill, to which all cross-defendants filed answers.
The cause was referred to Thomas H. Willcox, Sr., Commissioner in Chancery, to inquire into and report to the court, among other matters: (1) The ownership of the capital stock of Maury Court, Inc., and the liabilities of that Corporation; (2) An account of the assets, receipts, and disbursements of New Home Corporation, and what part of the assets of that Corporation constituted profits distributable as dividends, and what part constitued capital; (3) What was the liability, if any, of J. Carlton Hudson, Jr., to New Home Corporation; (4) Whether any of the parties occupying a fiduciary relationship had been guilty of misconduct and breach of duty; and (5) All other matters deemed pertinent by the Commissioner or requested by any party to the cause.
The evidence was heard ore tenus before the Commissioner, and after the case was argued before him, he filed a report upon all of the issues involved. While numerous exceptions were taken to the report by both parties, the findings of the Commissioner on only the first three inquiries are presented to us. The Commissioner found that all of the issued and outstanding capital stock of Maury Court, Inc., was owned by the estate of Anna Mary Hudson; that the net income of New Home Corporation, as net income is defined in | 55-259, Code of Virginia, 1950, was distributable income to the life tenants, and that J. Carlton Hudson, Jr., was indebted to New *328 Home Corporation in the sum of $1712, with interest from October 20, 1950, until paid. The Commissioner further reported that if the trial court should be of opinion that Mrs. Anna Mary Hudson was not the beneficial owner of the stock, then she was entitled to the benefit of a lien of a deed of trust upon land conveyed by her to Maury Court, Inc., for the unpaid balance of its purchase price, and that such indebtedness was not barred by the statute of limitations.
The trial court approved and confirmed the Commissioner's report in all respects, and directed him to further proceed to have certain accounts audited and report to the court. From that decree, J. Carlton Hudson, Jr., Barbara Hudson Bond Pincus and Janet Florence Hudson Judge, seeking a reversal of the court's decree on the three issues above mentioned, applied for and were granted this appeal.
Anna Mary Hudson died June 2, 1935, testate, and by her will left her entire estate to her husband, George P. Hudson, for life, with remainder in fee simple to her three children, J. Carlton Hudson, Ethel H. Clark and George P. Hudson, Jr., share and share alike. She named her husband and her sons, J. Carlton Hudson and George P. Hudson, Jr., as executors, and her husband and J. Carlton Hudson qualified as such.
George P. Hudson died testate on September 16, 1950, leaving his estate to his three children above named for and during their natural lives. He specifically directed that the "income received" from the life estate devised to his three children should after "the payment of taxes, insurance, repairs and other necessary expenses," be "divided equally between" those children. He then provided that upon the death of one of his children, his two surviving children should, during the term of their natural lives, receive the net income above mentioned, share and share alike; but that in the event J. Carlton Hudson, Sr., should "not be the longest liver of" his then two surviving children, one-half of his estate was to go to the last survivor of his children, for his or her life, and the remaining one-half to the children of J. Carlton Hudson, Sr., "equally to be divided between them," until his "last surviving child" died; and that upon the death of his "last surviving child," all of the rest, residue and remainder of his estate should go to the three children of John Carlton Hudson, Sr., their heirs and assigns forever, share and share *329 alike. He appointed his three children executors of his last will and testament, and they qualified as such.
George P. Hudson, Jr., survived both his mother and father, and died testate on May 26, 1953. He left surviving his widow and executrix, Helen K. Hudson, as his sole beneficiary. One child born to George P. Hudson, Jr., is still living; but is not a necessary party to this proceeding. John Carlton Hudson, the original complainant, is married to Lillian B. Hudson. Ethel H. Clark is a widow without children. George P. Hudson and John Carlton Hudson, his son, will be hereinafter respectively designated as George P. Hudson, Sr., and John Carlton Hudson, Sr. It will be noted that both George P. Hudsons are dead, and that both J. Carlton Hudsons are alive.
There are several assignments of error; but the controlling questions are whether the evidence was sufficient to sustain the findings of the Commissioner and whether the law was properly applied thereto.
The evidence was heard, as we have heretofore said, in the presence of the Commissioner. It is voluminous and includes a large number of exhibits. It is apparent from the report of the Commissioner, an able and experienced attorney at law, that he gave full and careful attention to all matters presented to him. His report is exhaustive and comprehensive. He fully recognized that the facts were in conflict, and in certain respects circumstantial.
It is well to note at the outset that it is established in Virginia that the conclusions of a commissioner, where the evidence has been taken in his presence, should be sustained unless it plainly appears, upon a fair and full review, that the weight of the evidence is contrary to his findings. Although the trial court is given power of review over his findings, it cannot arbitrarily disturb the report, if it is supported by sufficient proof. Virginia Code | 8-250. Leckie Lynchburg Trust, Etc., Bank, 191 Va. 360, 364, 60 S.E.2d 923; Reese Reese, 196 Va. 1028, 1036, 1037, 87 S.E.2d 133; 16 M.J., References and Commissioners, | 33, pages 29, 30, 31, and numerous cases cited.
It appears that in or about 1930, Anna Mary Hudson inherited some real estate from her mother, and later acquired more. She and her husband had a happy home life, and each enjoyed the full confidence of the other. From time to time he made valuable gifts *330 to her, and she, in turn, entrusted her business affairs to him, and made available her resources in his business ventures.
In 1919, Lots numbers 19, 20 and 21, in Block "A", in the City of Norfolk, Virginia, were acquired by Anna M. Hudson in fee simple by two deeds. It is not shown whether she purchased the lots with her own funds or from money supplied by her husband. It is clear, however, that she became vested absolutely with full title to the property as her sole and separate estate, regardless of the source of the purchase price.
In 1927, George P. Hudson, Sr. obtained a certificate of incorporation for Maury Court, Inc. The purpose for which it was formed was stated to be to acquire, own, hold, lease, mortgage, and sell improved or unimproved real estate, to construct, erect, and operate houses, buildings, etc. Its capital stock was to be not less than $1500 nor more than $25,000, divided into shares of the par value of $100 each. Its officers were named as George P. Hudson, Sr., George P. Hudson, Jr., and Lillian B. Hudson, respectively, President, Vice-President, and Secretary-Treasurer. The same individuals constituted the Board of Directors. The pertinent portions of the minutes of the first meeting of the incorporators, held on October 21, 1927, show that a resolution was adopted authorizing the purchase "for cash or stock" from Anna M. Hudson for the sum of $20,000, three lots designated as "Lots 19, 20 and part of 21, in Block 'A'," in the City of Norfolk. It was also further resolved that the Board of Directors of the Corporation authorize the issue of capital stock "for cash or property" to the amount of fifteen hundred dollars. The minutes further recited that it was the purpose and intent of the Corporation to erect an apartment house on the three lots; that it was "necessary to execute a deed of trust to the Prudential Insurance Company of America for the sum of $32,000, constituting a first mortgage, a second deed of trust for the sum of approximately $ , and a third deed of trust for the sum of $18,500;" and that the Board of Directors and officers of the Corporation were authorized to "make and issue" the said deeds of trust securing the above amounts upon the entire property to be conveyed to it by Anna Mary Hudson.
On the same day, the Board of Directors of Maury Court, Inc., at their first meeting, authorized the President and Secretary of the Corporation to enter into contracts or deeds to purchase the above mentioned three lots for $20,000, "for cash or stock of this Company *331 from Anna M. Hudson," in accordance with the resolution of the stockholders. Then, by further resolution, the Board authorized and directed the issue of certificates of the capital stock of the Corporation "to the aggregate amount of Fifteen Hundred Dollars ($1500.00)," and authorized and directed the proper officers of the Corporation "to enter into contracts, execute deeds of trust, and all other deeds or documents incidental to the business of the Corporation," with Anna M. Hudson, George P. Hudson, Prudential Insurance Company, and other parties, "in accordance with the written option submitted" by George P. Hudson, his wife, and Prudential Insurance Company, and other parties. The officers were then directed to file with the State Corporation Commission a report and statement with reference to the basis of the proposed issue of stock. The minutes of both meetings were unsigned; but were kept in the minute book of the Corporation, and admitted to be a true record of what took place.
The books of the Corporation, which contain a partial record of its financial affairs, show an original indebtedness of $18,500 to Anna M. Hudson by "installment contract," of which sum $690 was repaid during her lifetime. No other obligation is shown to be due Mrs. Hudson, and no entry shows the receipt of $1500, or any other sum for stock, or that any asset came into the Corporation except the above three lots which were conveyed to the Corporation by Mrs. Hudson by deed dated October 22, 1927, and duly recorded.
N. C. Hoffler, Jr., a certified public accountant, who examined the books and records of Maury Court, Inc., and testified on behalf of the appellees, said, referring to the transaction in connection with the purchase of Mrs. Hudson's lots by Maury Court, Inc., and the consideration therefor, that:
"It is an entry set up for land, buildings, furniture and equipment with offsetting entries to a mortgage, first deed of trust note, payable to George P. Hudson, Sr., capital stock, and so far as the land is concerned, I would say it is set up to be $20,000 of credits to installment contract due Anna M. Hudson, $18,500, and capital stock of $1,500.00."
Upon being asked if that was "just an inference from the fact that the figures balance?", he replied: "To me that was what actually happened."
W. P. Sellers, a registered public accountant, who testified on behalf of the appellants, said that George P. Hudson, Sr., told him, *332 after the death of Mrs. Hudson, that the debt of $18,500 was owed to him and not to the estate of Anna Mary Hudson.
On cross-examination, Sellers testified in response to questioning by counsel for Mrs. Clark as follows:
"Q. And $20,000.00 for the land, and offsetting entries for those two items are the installment contract due Mrs. Anna M. Hudson, $18,500.00, and $1,500.00 in capital stock. It adds up to that?"
"A. Yes, it adds up to $20,000.00."
Upon the organization of Maury Court, Inc., seven shares of stock were issued in the name of Lillian B. Hudson, wife of J. Carlton Hudson, Sr.; one share to George P. Hudson, Jr.; and seven shares to George P. Hudson, Sr. At the time of the trial, the seven shares issued to George P. Hudson, Sr. and the one share to George P. Hudson, Jr., were endorsed in blank. The seven shares issued to Lillian B. Hudson were transferred by assignment to George P. Hudson, Sr., on April 22, 1941, six years after Anna Mary Hudson's death. Attached to that stock was a note addressed by Mrs. Lillian B. Hudson to her husband, which recited: "This is to authorize you to use my stock in Maury Court, Inc., for whatever purpose you desire." Mrs. Lillian B. Hudson did not claim, during this proceeding, any right or interest in that stock. Her husband testified that the stock belonged to George P. Hudson, Sr., from the time of the organization of the Corporation. All of the certificates for the shares of the above stock were in the physical possession of George P. Hudson, Sr., at his death.
The deed of trust authorized to be executed to secure Anna M. Hudson was never recorded, and so far as the record shows never executed. There is nothing on the books of the Corporation to show that she ever received $1500 in cash from the Corporation.
It further appears that on March 15, 1928, Maury Court, Inc., filed with the State Corporation Commission of Virginia a statement relating to the basis upon which its stock was to be issued, setting forth that it proposed to issue fifteen shares of the aggregate par value of $1500 to be paid for in "money," and added "Fifteen shares, $1500.00 cash money."
Appellants contend that the books of the Corporation reveal only that it was indebted to Mrs. Hudson on an open account for $17,890, and that said debt is barred by the statute of limitations; that the statement filed with the State Corporation Commission of the intention of the Corporation to issue its capital stock for "money" *333 proves that the fifteen shares which were issued could not have belonged to Mrs. Hudson, or have constituted a part of the purchase of the real estate; and that the fact that the certificates for the shares of stock issued were in the physical possession of George P. Hudson at his death shows conclusively that his estate owned the stock.
There is no evidence that George P. Hudson, Sr., claimed ownership of the stock before the death of his wife. The dispute as to its ownership arose in 1950 or 1951, between the children and grandchildren of George P. Hudson, Sr.
It is true that the stock was not listed in the inventory of the estate of Anna Mary Hudson, filed by George P. Hudson, Sr., and J. Carlton Hudson, Sr., as executors of her will, and that, at all times, it was held, endorsed in blank, by George P. Hudson, Sr., and is still so held by his executors. However, there are two written instruments, which show that upon the death of Mrs. Hudson both her husband and her son, J. Carlton Hudson, Sr., considered the stock as an asset of her estate.
In 1935, shortly after the death of his mother, J. Carlton Hudson, Sr., as co-executor and attorney for her estate, sent to Ethel H. Clark and her brother, George P. Hudson, Jr., a list of the assets of the estate of Anna M. Hudson, which contained the following item:
}" MAURY COURT, INCORPORATED $18,500 Installment Contract -- Present Value Probably Nil."
Asked why that was put on the list as an asset of his mother's estate, J. Carlton Hudson, Sr., replied: "Father asked me to." At the hearing before the Commissioner, he first denied making or sending out any statement or list; but later at the trial, he admitted the verity of the above statement and the fact that it was approved by himself and his father. He also admitted that he had taken no steps to collect the balance of $18,500, shown on the books of Maury Court, Inc., to be due the estate of his mother.
The second written instrument was the income tax return of George P. Hudson, Sr., for the year 1936. In that return, he reported as follows: "Income from fiduciaries, Maury Court, Inc., Norfolk -- $2,500.00." If he owned the Corporation by virtue of holding its entire stock, there was no reason for him to treat the income received from Maury Court, Inc., as arising from a fiduciary source. As life tenant, under his wife's will, he was entitled to the net rents earned from the operation of Maury Court, Inc. His action showed that he considered Maury Court, Inc., an asset of his wife's estate, *334 from which he was entitled to the income under her will. The stock not having been included in the inventory of Mrs. Hudson's estate, escaped inheritance and estate taxation, for which it might have been liable.
It is settled law generally where a confidential relationship exists between the parties, especially where they are husband and wife, that when a husband takes title in his own name to property purchased with his wife's money, a resulting trust is created in her favor, unless it be shown that the money was a gift or loan to her husband. If it be claimed that she intended the purchase money as a gift or loan to him, the burden of showing that fact is on the husband or those claiming under him. 19 M.J., Trusts and Trustees, | 33, pages 85, 86; 89 C.J.S., Trusts, sections 105, page 955, 127(b), page 987, and 132, page 997, Cf. Mumpower Castle, 128 Va. 1, 18, 19, 104 S.E. 706.
The records of the Corporation and the evidence of appellees make it reasonably clear that a credit of $1500 on the purchase price of the land of Mrs. Anna Mary Hudson was the sole consideration for the fifteen shares of stock issued by Maury Court, Inc. As we have said, there is no evidence that George P. Hudson, his son, or daughter-in-law ever paid a penny for the stock. From the confidential relationship which existed between George P. Hudson, Sr., and his wife, and their complete trust in each other, it may be readily implied that the manner in which the stock was issued was merely a matter of convenience for the parties involved.
There is ample evidence supporting the finding that Mrs. Anna Mary Hudson was, at all times, the beneficial owner of the stock issued by Maury Court, Inc., and that her estate cannot be deprived of it by the failure of the officers of the Corporation and her executors to properly act. In view of this, we need not consider the questions whether Anna Mary Hudson is entitled to the benefit of a lien of a deed of trust upon the property of Maury Court, Inc., and whether such indebtedness is barred by the statute of limitations. These questions are moot, since Mrs. Hudson was vested, at all times, both with title to the said debt and was the beneficial owner of the entire capital stock of Maury Court, Inc.
There is no merit in the contention that the issue of the capital stock of Maury Court, Inc., in exchange for property rendered the transaction void because the Corporation filed a statement signifying its intention to issue stock only for cash or money. *335
Section 13-97 of the Code of 1950, prior to its amendment in 1956, Acts of Assembly, 1956, Chapter 428, now Code, | 13.1-16, provided that no stock should be issued for property unless in a statement to the State Corporation Commission, there was set forth fully and accurately the basis upon which such stock was to be issued other than for money. It further required that the statement should accurately specify and disclose the property and the valuation at which it was to be received, and fixed a penalty against an offending corporation for violation. As amended in 1956, | 13.1-16 provides that such verified statement shall be filed and the corporation fined for failure to properly file the same, and then adds the provision: "but failure to file such a statement shall not impair the legality or validity of the issue." The filing of the statement with the State Corporation Commission was merely evidence of the intention of the directors of Maury Court, Inc. What Maury Court, Inc. really did is shown by the resolutions of the stockholders and directors.
The following citation from 13 Am. Jur., Corporations, | 218, is pertinent in this connection:
"Statutory provisions regarding the consideration for which stock may be issued or the manner of payment thereof are considered to be intended for the benefit of the corporation; and stock issued in violation of the statute is held to be not void, but voidable at the instance of the corporation."
We come next to the question as to what part of the assets of New Home Corporation constituted profits distributable as income to the life tenants under the will of George P. Hudson, Sr., and what part constituted capital to be held for the remaindermen.
Two of the executors, George P. Hudson, Jr., during his lifetime, and Ethel H. Clark, contended that the net income from the sale of the developed lots of the Corporation, or so much thereof as the directors of the Corporation thought advisable, should be distributed to the life tenants as a cash dividend. J. Carlton Hudson, Sr., on the other hand, claimed that such net income was not distributable as dividends; but should be credited to the principal of the Corporation and upon the death of the life tenants should pass to the remaindermen, that is, his three children, the appellants here. He did concede that the life tenants were entitled to the interest on net profits invested by the Corporation, as dividends.
The question is not a new one. It has come before the courts of many states, and the decisions are widely in conflict. It is discussed *336 at length and the reasons for the various rules stated in Volume 12, Fletcher's Cyclopedia of Law of Private Corporations, (1957), | 5393 to | 5405, inclusive, | 5404.1 and | 5411, and annotations entitled "Right as between life beneficiaries and remaindermen, or surviving life beneficiaries, in corporate dividends or distributions during the life interest," in 130 A.L.R. 492, and 44 A.L.R. 2d 1277. However, the question is now settled in Virginia by statute under the provisions of the Uniform Principal and Income Act, Code 1950, sections 55-253 to 55-259, inclusive.
Appellants rely specifically upon subsection (2) of | 55-255 and subsection (3) of | 55-257, neither of which we think applicable to the situation here. The issue before us is resolved by subsections (1) and (2) of | 55-259. *
* "(1) Whenever a trustee or a tenant is authorized by the terms of the transaction by which the principal was established, or by law, to use any part of the principal in the continuance of a business which the original owner of the property comprising the principal had been carrying on, the net profits of such business attributable to such principal shall be deemed income."
"(2) When such business consists of buying and selling property, the net profits for any period shall be ascertained by deducting from the gross returns during and the inventory value of the property at the end of such period, the expenses during and the inventory value of the property at the beginning of such period."
George P. Hudson, Sr., organized New Home Corporation in 1923, for the purpose of acquiring a large tract of land near Norfolk, in Princess Anne County, Virginia, to be thereafter subdivided and developed into residential lots and streets for sale to the public. Thirty shares of stock were issued to George P. Hudson, Sr.; five shares to George P. Hudson, Jr.; five shares to J. Carlton Hudson, Sr.; and fifteen shares to H. L. Lowery. At the time of his death, George P. Hudson, Sr., had acquired, by assignment and transfer, all of the capital stock of the Corporation. The Corporation never had any assets except land and the proceeds from the sale thereof. Its real estate was its "goods, wares, and merchandise," just as groceries and food products constitute the assets of a groceryman. The only income, revenue or profits New Home Corporation received from any source came from the sales of its lands, and this was the only source from which the stockholders could receive dividends. The object of the Corporation being to obtain a profit for its stockholders, they necessarily looked to the proceeds from sales to produce income available as dividends.
New Home Corporation was a separate entity, organized and *337 created to conduct, through its officers, the sale of real estate, separate and apart from the individual affairs of its stockholders. It did not become extinct upon the death of George P. Hudson, Sr., and there was nothing to indicate that he intended it to be then liquidated. The fact that he invested his money in the Corporation showed that he chose that manner of business operation, the liabilities and responsibilities involved therein, and the permanency of the organization. While his executors controlled the Corporation by reason of stock ownership, such ownership did not constitute a carrying on of the business by them as fiduciaries of their decedent. Upon the death of George P. Hudson, Sr., the officers of the Corporation continued its business in a manner in all respects similar to that in which it was theretofore conducted and in accordance with the purpose for which it was organized. All of the interested parties were aware of that fact and none protested. Some of them organized another corporation for the specific purpose of contracting with New Home Corporation for the further development and sale of real estate of New Home Corporation.
By reason of location and demand, the land of the Corporation constantly increased in value. In 1950, upon the death of George P. Hudson, Sr., the stock of the Corporation was valued by the appraisers of his estate at $21,435.79. By continued operations and taking advantage of the demand since 1941, subdivided lots have been sold at an estimated net profit of $45,000, and the remaining land is valued as worth between $15,000 and $20,000 at present prices. During Hudson's lifetime, many lots were sold by the Corporation and profits on the sales were declared as dividends and paid to him. It is manifest that the surplus money of the Corporation as of December 31, 1954, was more than ample to provide sufficient funds for working capital and to allow the payment of a cash dividend to stockholders. The failure to distribute the earnings withheld from the life tenants what was properly income.
George P. Hudson, Sr., was also interested in a number of other corporations of like nature, some of them engaged in buying and selling real estate, and it is apparent that he preferred to employ corporate entity for such purposes, regardless of any income tax liability upon the Corporation, and upon dividends received by stockholders.
It is clear from the language of the will of George P. Hudson, Sr., that he intended the income from the estate devised in life to be *338 enjoyed by the life tenants. Had he intended his grandchildren to receive absolutely his corporate stock, carrying all accumulations and profits of the Corporation, he would have left that stock directly to those grandchildren. Had he intended to liquidate New Home Corporation, he could have done so at any time he desired, or directed dissolution by his last will and testament.
The trial court approved the finding of the Commissioner that the net profits of New Home Corporation should be considered as income inuring to the benefit of the life tenants, as ascertained under Code, | 55-259, and that it was the duty of the directors of the Corporation to distribute such net income to the stockholders in view of the fact that there were earnings and surplus more than sufficient for the needs of its business. Penn Pemberton & Penn, 189 Va. 649, 658, 53 S.E.2d 823. Thereupon, it decreed that net income of New Home Corporation, as net income is defined in Code, | 55-259, for the periods specified in the decree, should be distributed as dividends to the life tenants under the will of George P. Hudson, Sr.
For application of the above principle, see: In re Gartenlaub (1921) 185 Cal. 375, 197 P. 90; Reed v. Head (1863) 6 Allen (88 Mass.) 174; Balch Hallet (1858) 10 Gray (76 Mass.) 402; Matter of James (1895) 146 N.Y. 78, 48 Am. St. Rep. 774, 40 N.E. 876 Washington County Hospital Association Hagerstown Trust Co., (1914) 124 Md. 1, 91 A. 787; Krug
Merchantile Trust & Deposit Co., (1918) 133 Md. 110, 104 A. 414; Oliver's Estate (1890) 136 Pa. 43, 20 A. 527; Thomson's Estate (1893) 153 Pa. 332, 26 A. 652; Fletcher, Cyclopedia of Law of Private Corporations, Vol. 12, section 5411.
The evidence justified the finding that J. Carlton Hudson, Jr., is indebted to New Home Corporation in the sum of $1,712, with interest thereon from October 30, 1950, until paid. This debt resulted from the allowance of a credit to J. Carlton Hudson, Jr., against New Home Corporation in a transaction and accounting relating to property known as Hartford Apartments, title to which was first taken in the name of New Home Corporation, and subsequently conveyed to J. Carlton Hudson, Jr., whereby a balance was due J. Carlton Hudson, Sr., of $1,712, a debt long barred by the statute of limitations. J. Carlton Hudson, Sr., executor of the estate of George P. Hudson, Sr., allowed his son to credit the above named *339 sum due him against sums due by J. Carlton Hudson, Jr., to New Home Corporation.
In conclusion, the evidence showed the very loose manner in which the fiduciary parties undertook to perform their services. It also disclosed their respective personal interest in the advancement of their contentions. J. Carlton Hudson, Sr., was the personal advisor and attorney for his mother and father, a co-executor of each of their estates, an officer of Maury Court, Inc., and New Home Corporation, and general counsel for both. He was remainderman under the will of his mother and life tenant under his father's will, and his children are remaindermen under his father's will. While he agreed to borrow no money from his father's estate, he did borrow the sum of $15,000 to assist in the purchase of a farm for his personal use, without the knowledge or consent of his co-executors. This sum he repaid after this proceeding was instituted. He also loaned his son, J. Carlton Hudson, Jr., money of Maury Court, Inc., and New Home Corporation to purchase the Hartford Apartments. There were other instances in which he was charged with non-feasance in performing his duty as executor of the estates of his mother and father.
While J. Carlton Hudson, Sr., instituted this proceeding, and was the main witness for appellants in the trial court, he did not join in the appeal which was sought by his three children. His testimony was uncorroborated and contradicted on many pertinent points. The Commissioner having accepted the evidence of the appellees, we must give that acceptance the weight it is entitled to.
We find no merit in the claim of appellants that the entity of the corporations mentioned should have been disregarded in the interest of justice. No facts, reason or authority are cited to support the claim. The only reason assigned is that it was the duty of the executors to have liquidated New Home Corporation, upon the death of George P. Hudson, Sr., its sole stockholder, invest its net assets in some form of interest-bearing security, and then distribute the income therefrom, thereby obviating the payment of a tax on the net earnings of the Corporation and a further tax upon a portion of those earnings distributed as dividends to life tenants.
All of the evidence and circumstances point to the desire of George P. Hudson, Sr., to operate the Corporations formed by him as separate entities, and his will clearly showed that he gave to the life tenants the income from the property devised to them for life. *340 It would be, in our view, contrary to the ends of justice to hold otherwise.
Because of the controversy between the parties and their inability to agree as individuals or co-executors, and because J. Carlton Hudson, Sr., had been more or less careless, indifferent, and incompetent in handling the affairs of the Corporation, upon the Commissioner's recommendation, the trial court removed J. Carlton Hudson, Sr., as co-executor. Ethel H. Clark was removed because she was a non-resident. George P. Hudson, Jr., had already departed this life. The National Bank of Commerce of Norfolk and Robert R. MacMillan have qualified as co-executors d.b.n.c.t.a. of George P. Hudson, Sr.'s, estate. No exception has been taken by either party to these actions.
For the reasons stated, the decree appealed from will be modified by eliminating therefrom the unnecessary adjudication that the property of Maury Court, Inc., should be considered as impressed with a lien in favor of the estate of Anna Mary Hudson for $17,890, balance of the purchase price of the lots mentioned, and that the said indebtedness is not barred by the statute of limitations. As so modified, it is affirmed and remanded to the trial court for such further proceedings as may be necessary and proper. Appellees will recover their costs.
Modified and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328153/ | 214 Ga. 634 (1959)
106 S.E.2d 781
WEIMER
v.
CAUBLE.
20273.
Supreme Court of Georgia.
Submitted November 10, 1958.
Decided January 12, 1959.
*636 Weldon Shows, for plaintiff in error.
Roland Neeson, contra.
HEAD, Justice.
Where two city lots adjoin, the lower owes a servitude to the higher to receive the water which naturally flows upon it, provided the owner of the higher lot has done no act to increase such flow. Goldsmith v. Elsas, May & Co., 53 Ga. 186. The owner of the higher lot, however, would have no right to concentrate and collect surface water by the erection of buildings and cause it to be discharged upon the lower lot in a greater quantity or in a different manner from that in which the water would have flowed upon it by the law of gravitation. Hendrix v. McEachern, 164 Ga. 457, 459 (139 S.E. 9); Cox v. Martin, 207 Ga. 442 (62 S.E.2d 164).
Notice to the alience of property causing a nuisance or trespass that he will be held responsible for damages subsequently caused by it is tantamount to a request to abate the nuisance or trespass. Central of Ga. Ry. Co. v. Americus Construction Co., 133 Ga. 392, 393 (2) (65 S.E. 855). "General damages are such as the law presumes to flow from any tortious act, and may be recovered without proof of any amount." Code § 105-2006. "The law infers some damage from the invasion *637 of a property right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms `nominal damages'." Williams v. Harris, 207 Ga. 576 (2) (63 S.E.2d 386).
Under the foregoing rules, in so far as the general demurrers sought to attack the petition for want of notice and demand to abate the nuisance, or because the damages alleged were not specifically described, the demurrers were properly overruled.
An allegation that a party is the owner of described real estate is an allegation of an ultimate fact and is not a conclusion of law. Foster v. Rowland, 194 Ga. 845 (4) (22 S.E.2d 777). In the present case, however, there is no description of the plaintiff's property, nor are there any descriptive averments which might afford a key to a description of his lands. The allegation that the plaintiff "is the owner of valuable real property lying immediately southeasterly of, adjoining and adjacent to," described property of the defendant, "is too vague and indefinite to be the basis of an action to enjoin an alleged trespass upon the land, and the question of such defective description may be raised by general demurrer." Hamilton v. Evans, 208 Ga. 780 (4) (69 S.E.2d 739), and cases cited.
There being no adequate description of the plaintiff's property to sustain an action for trespass, the court erred in overruling the general demurrers.
It is suggested by counsel for the plaintiff that, if this court should find the petition insufficient for any reason, it should grant the right of amendment. The right of amendment is controlled by law. Where a general demurrer is overruled in the trial court, and the judgment is reversed by this court, an amendment may be allowed before the remittitur is made the judgment of the trial court. Whiddon v. Southern Auto Finance Co., 188 Ga. 340 (3 S.E.2d 889); Milton v. Milton, 195 Ga. 130, 131 (23 S.E.2d 411).
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328739/ | 95 Ga. App. 622 (1957)
98 S.E.2d 214
FEDERAL INSURANCE COMPANY et al.
v.
CORAM.
36616.
Court of Appeals of Georgia.
Decided April 8, 1957.
Rehearing Denied April 25, 1957.
*623 Forester & Calhoun, Marcus B. Calhoun, for plaintiffs in error.
B. B. Earle, Jr., contra.
FELTON, C. J.
The finding that the accident arose out of and in the course of employment was authorized. The parking facilities *624 were furnished by the employer for the use of the claimant employee and were furnished as an incident of employment. Where an employer furnishes an employee parking facilities on the employer's premises, it is, of course, necessary for the employee, before he can commence his actual employment duties, to park his automobile and walk from that portion of the employer's premises to that other portion of the premises where he performs his actual employment duties. We think this situation is analogous to one where the employee first reports to one part of the employer's premises for instructions, assignment, clock punching, drawing tools, etc. and then must proceed to another portion of the premises to begin his actual duties. See Employers Ins. Co. of Alabama v. Bass, 81 Ga. App. 306 (58 S.E.2d 516). The "rest period" and "lunch hour" cases are not applicable here. The reasoning behind such cases is that during a rest period or lunch hour, an employee is spending such time for his personal benefit and pleasure. In the instant case it cannot be said that in proceeding from that portion of the premises where she parked, to her immediate work area and in returning therefrom, the claimant was on a purely personal mission. We think that going to and from the parking lot in order to reach and leave her immediate working area was a necessary incident to the claimant's employment. See Travelers Ins. Co. v. Smith, 91 Ga. App. 305 (85 S.E.2d 484). We are well aware of the cases which hold that while an employee is traveling to and from the employer's premises in transportation furnished solely by the employee and over a route chosen solely by the employee, he is not in the course of his employment and an accident occurring during such time is not a compensable one. However, those cases are clearly not applicable here because the claimant here had not yet departed from the employer's premises and started traveling a route of her choosing wholly disconnected with her employment. While this particular set of facts presents a case of first impression in this State, we think the question of law involved has been well established and followed in most jurisdictions. See 58 Am. Jur. 726, Workmen's Compensation, § 221; 49 A.L.R. 425; 82 A.L.R. 1043. For two "parking lot" cases, see Murphy v. Miettinen, 317 Mass. 633 (59 N.E.2d 252) and Rogers's Case, 318 Mass. 308 (61 N.E.2d 341).
*625 The majority opinion in Gay v. Aetna Casualty & Surety Co., 72 Ga. App. 122 (33 S.E.2d 109) is disapproved and the dissent in that case is approved as being the law in this State.
The fact that the claimant left the walk and "cut across" the hospital grounds to reach the parking area or the fact that she may have been negligent, does not prevent the accident from being one arising out of and in the course of her employment.
The court did not err in affirming the award.
Judgment affirmed. Quillian and Nichols, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328736/ | 548 S.E.2d 634 (2001)
248 Ga. App. 748
PARKER
v.
The STATE.
No. A01A0071.
Court of Appeals of Georgia.
March 23, 2001.
*635 Gerald L. Olding, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., Thomas M. Cerbone, Asst. Dist. Atty., for appellee.
JOHNSON, Presiding Judge.
A jury found Herman Lee Parker guilty of selling cocaine. Parker appeals, contending (1) the weight of the evidence is contrary to the verdict, (2) the trial court erred in its pre-charge to the jury, (3) the state inadvertently failed to disclose his statement prior to trial, (4) the trial court erred in refusing to order that he be produced for his motion for new trial, and (5) the trial court erred in allowing the state to replay an audiotape four times during the course of the trial. Because *636 each of these enumerations of error lacks merit, we affirm Parker's conviction.
1. Viewed in a light most favorable to support the jury's verdict, the evidence shows that Parker approached a car driven by an undercover narcotics agent. The agent asked if he could get "a twenty," referring to $20 worth of crack cocaine. Parker walked around the front of the agent's car, got in the passenger side, reached into a small plastic bag, and handed the agent a piece of crack cocaine. The agent handed Parker two $10 bills which had previously been photocopied. The agent then left the parking lot, but watched Parker. Within 20 seconds, a second agent arrested Parker. No one had approached Parker prior to his arrest.
The buy money was recovered from Parker's possession. A digital audiotape of the conversation between the undercover agent and Parker was admitted into evidence and played for the jury. The state also introduced and played for the jury a video tape with Parker identified as the person approaching the agent's car.
Parker testified that he was wearing the clothes described by the agents at trial, that he had the buy money on him and that he was in the parking lot where the incident took place. However, Parker claimed that his height and weight did not match that described by the undercover agent. He also testified that a larger man dressed like him asked him for a $20 bill in exchange for two $10 bills, and he obliged. He further pointed out an alleged inconsistency in the agents' testimony concerning whether he dropped some drugs.
When reviewing a criminal conviction, this Court must determine whether, after viewing the evidence in a light most favorable to support the jury's verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[1] This Court only determines the legal sufficiency of the evidence; we do not weigh the evidence or judge the credibility of the witnesses.[2] In light of the agents' testimony identifying Parker as the individual who sold the cocaine, as well as the taped evidence and Parker's possession of the buy money, the evidence was sufficient to enable a rational trier of fact to find Parker guilty beyond a reasonable doubt of sale of cocaine.[3] The jury was authorized to resolve the conflicts in the evidence and reject Parker's testimony.
2. In its pre-charge to the jury, the trial court gave an illustration to help show the jury what constitutes evidence in the case. In part, the court charged as follows:
You will be reassured to know that among the twelve of you you can remember all of the testimony. One person may remember one part of it well. Another person may have notes on another part. When you put your heads together you can remember it all. Notice that you will hear thousands of words which are not evidence. What I say is not evidence. What the lawyers say is not evidence. You want to listen to everything of course, but it is as if you need to have two different filing cabinets in your head. And when you hear words spoken that are evidence, you put them in one place. And when you hear words spoken that are not evidence, you put them in another part of your brain. And you try to keep them separate. This is very difficult to do. But it's important because at the end of the trial you're supposed to use only the words that are in your evidence filing cabinet plus the exhibits to decide the facts. One complication of that is that sometimes the lawyers use what I call the yellow rose technique. They ask the first witness well did you see the yellow roses there that day. And the witness says what, I don't know anything about any yellow roses. Then they ask the *637 next witness did they tell you about the yellow roses. The witness says I don't know anything about any yellow roses. By the end of the trial, half the jury is convinced the place was covered with yellow roses even though there hasn't been one single smidgen of testimony to that effect from the witness stand. See what I mean? Now the way our trials work, after I finish speaking the lawyers will make an opening statement to you. These statements by the lawyers are predictions of what they think the evidence is going to be. We encourage these predictions because they can help you to fit the stories together better. And also sometimes they can alert you that a seemingly insignificant piece of information may later turn out to be critical. It goes without saying, ladies and gentlemen, that you decide the case according to what the evidence actually turns out to be and not according to what the lawyers predict that it's going to be. Now after the opening statement, then the Stateby that I mean the assistant district attorney seated at the front table with a police officer. I think we call them drug agents these days, but it's still a police officer. The State has the burden, the task, of proving each essential element of its case by the introduction of evidence...
Parker contends that the illustration amounted to an intimation of opinion by the trial court in violation of OCGA § 17-8-57. However, the illustration was not an unauthorized expression of an opinion by the trial court as to what actually had been proven in the case or as to Parker's guilt. Rather, the illustration was a preliminary reference to what the jury could expect to hear once the evidence began and a warning to differentiate between words that are evidence and words that are not. Moreover, Parker failed to object to the trial court's pre-charge or move for a mistrial on the basis of the pre-charge. Hence, he waived the right to contend that the trial court violated OCGA § 17-8-57.[4]
Parker also alleges that the same pre-charge by the trial court violated his due process rights. He argues that the illustration used by the trial court essentially instructed the jury that the attorneys might ask questions that introduce irrelevant evidence into the trial, undermining the effectiveness of cross-examination of the state's witnesses and minimizing the state's burden of proof. However, as with his contention concerning OCGA § 17-8-57, Parker did not raise this issue at trial and, therefore, has forfeited the right to subsequently assert it.[5] Moreover, we find that the trial court's attempt to explain the difference between words that constitute evidence and words that do not, using "yellow roses" as an illustration, was proper, correctly illustrated the evidentiary concepts, neither misled nor confused the jury, and in no manner resulted in an unfair statement of the law.[6]
When a trial court correctly instructs the jury on the law, but an objection is made to a hypothetical illustration offered by way of explanation, this Court will not narrowly scrutinize that illustration unless a showing is made that the illustration confused or misled the jury.[7] Here, no such showing has been made. There was no error.
3. Parker maintains the state "may have inadvertently failed to disclose" his statement to police. However, the record shows that Parker did not make a statement to police and no statement was used to prosecute him. One agent testified that he could not recall if he questioned Parker, but believed that he did not, and no evidence has been presented to show that any statement exists. This enumeration of error lacks merit.
4. Parker alleges the trial court erred by refusing to have him brought to court for his motion for new trial. However, it is well settled that a defendant's right to be present during the course of his trial does *638 not extend to post-verdict proceedings such as a motion for new trial.[8]
5. Parker contends the trial court erred in allowing the state to replay the digital audiotape four times during the course of the trial. The record shows that the audiotape was played, without objection, during the undercover agent's testimony for authentication purposes. The audiotape was replayed, without objection, to establish how many seconds passed between the time Parker exited the car and his arrest. The audiotape was again played, this time over objection, when the state cross-examined Parker. The audiotape was played the fourth time when the jury requested to hear it again during their deliberations. Parker asserts that the audiotape should not have been replayed during his cross-examination or when the jury requested to hear it again because the replaying was repetitive. We disagree.
Regarding the state's cross-examination of Parker, it is well established that the scope and extent of cross-examination rest within the trial court's sound discretion and will not be disturbed absent an abuse of that discretion.[9] Moreover, whether to permit the replaying of a portion of testimony is within the discretion of the trial court.[10] Here, the state had a right to cross-examine Parker regarding the audiotape of the controlled buy between the undercover agent and Parker. It was within the trial court's discretion to permit the state to do this by first replaying the audiotape and then questioning Parker about the contents of the audiotape and the circumstances surrounding the controlled buy. We find no abuse of the trial court's discretion by permitting the replay of the audiotape.
Parker's contention that the trial court erred in allowing the jury to again hear the audiotape after commencing deliberations is without merit.
"It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations."[11]
The tape was admissible, and the trial court did not err in allowing its replay.[12]
Judgment affirmed.
RUFFIN and ELLINGTON, JJ., concur.
NOTES
[1] Holzendorf v. State, 235 Ga.App. 462, 463, 509 S.E.2d 737 (1998); Little v. State, 230 Ga.App. 803, 804(1), 498 S.E.2d 284 (1998).
[2] Holzendorf, supra at 464, 509 S.E.2d 737; Little, supra.
[3] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[4] Cammon v. State, 269 Ga. 470, 475(8), 500 S.E.2d 329 (1998); Walker v. State, 258 Ga. 443, 444(3)(a), 370 S.E.2d 149 (1988).
[5] Walker, supra at 444(3)(b), 370 S.E.2d 149.
[6] Druitt v. State, 225 Ga.App. 150, 153-154(4), 483 S.E.2d 117 (1997).
[7] Grimes v. State, 245 Ga.App. 277, 278(1), 537 S.E.2d 720 (2000).
[8] Dobbs v. State, 245 Ga. 208, 209(2), 264 S.E.2d 18 (1980); Pena v. State, 247 Ga.App. 211, 217(4), 542 S.E.2d 630 (2000).
[9] See Timley v. State, 268 Ga. 611, 612(2), 492 S.E.2d 214 (1997).
[10] See Stephens v. State, 261 Ga. 467, 468(4), 405 S.E.2d 483 (1991).
[11] (Citation and punctuation omitted.) Brown v. State, 239 Ga.App. 674, 677(2), 522 S.E.2d 41 (1999).
[12] See McGee v. State, 205 Ga.App. 722, 728(11), 423 S.E.2d 666 (1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328744/ | 548 S.E.2d 802 (2001)
STATE of North Carolina,
v.
Bryant Edward WILLIAMS.
No. COA00-582.
Court of Appeals of North Carolina.
July 3, 2001.
*803 Attorney General Michael F. Easley, by Assistant Attorney General K.D. Sturgis, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.
WALKER, Judge.
Defendant appeals his conviction of first degree murder on 9 July 1999. The State's evidence at trial tended to show the following: On 19 April 1997, the victim, Kenny Gregory (Gregory) attended a cookout with several friends including Sam Jackson (Jackson), Marvin Kee (Kee), Michelle Brooks Shearin (Shearin) and Tegra Turner (Turner). At approximately 11:00 p.m., the group went to the Fireside Disco in Littleton. While inside the club, Jackson, who had been drinking heavily, walked between a man and a woman who were dancing. An argument ensued which resulted in the house lights being turned on. However, the argument soon ended and the rest of the evening proceeded without incident until the club closed.
After the club closed, patrons began to leave. As Jackson, Shearin and Turner approached the door, Jackson saw the man with whom he had argued earlier. Jackson pursued the man outside the club and their argument soon turned into a fight. Another man known as June Man, who had been seen with defendant earlier that night, attempted to break up the fight and told Jackson to stop fighting. June Man and Jackson then began to fight and a crowd gathered to watch. Defendant and a man known as Conrad began to push people back in an attempt to allow the two to fight. After about fifteen or twenty minutes, Shearin and Turner saw Gregory and Kee walking from the club. Shearin called out to Gregory in an attempt to get him to break up the fight. As Gregory and Kee approached the scene, defendant pushed Gregory back with his hands and told him to allow a "one on one fight." Gregory *804 then punched defendant in the jaw, causing him to stagger backwards several feet. Defendant produced a handgun and fired a shot which struck Gregory in the neck.
Kee testified that the series of events "didn't take no time. [Defendant] [j]ust pushed him, that's when [Gregory] hit him, like a chain reaction. He pushed him, he hit him, he shot him." Gregory's wound was fatal. Defendant fled the scene immediately after the shooting but turned himself in to the Halifax County Sheriff's Department the next day.
We first address defendant's contention that the trial court erred in failing to dismiss the charges because his constitutional right to a speedy trial was violated.
Defendant was indicted for murder on 25 August 1997 and awaited trial for nearly two years while in custody before his case was brought to trial on 28 June 1999. During that time, he filed four motions for a speedy trial, all of which were heard and denied. On 22 June 1999, defendant filed a fifth motion, asking for dismissal of the charges due to the failure to grant a speedy trial. This motion was heard on 28 June 1999, the first day of trial. After hearing evidence, the trial court found, in pertinent part:
5. That this matter has been calendered for trial during six sessions of Halifax County Superior Court.
6. That the [d]efendant during none of those sessions of court or any other session of court has ever requested a continuance.
7. That since the defendant was indicted, there have been eighteen sessions of felony Superior Court, only thirteen of which were available for the trial of this matter.
8. That during the pendency of this matter three capital trials have taken place. Those trials consumed a total of thirty-three weeks.
9. That the Assistant District Attorney has announced that this matter is scheduled for trial to be held during the next session of Superior Court to be held on June 28, 1999.
On the basis of these findings, the trial court concluded:
1. That the delay in calling this matter for trial has not been unreasonable.
2. That the relief sought in the [d]efendant's motion for Speedy Trial is denied.
Furthermore, in denying defendant's motion, the trial court stated that "the evidence in the record amply shows that the dockets in this county are congested and that has, through no particular purpose directed towards this defendant, has [sic] resulted in the time that has gone by before this case has been called for trial." While the trial court acknowledged that the delay in bringing defendant's case to trial had been unusually long, it also concluded that there was a lack of "any purposeful intent or any arbitrary actions on the part of the State that resulted in this delay, and certainly no evidence that the State was seeking any tactical advantage against this particular defendant by the delay."
In State v. Lundy, 135 N.C.App. 13, 519 S.E.2d 73 (1999), our Supreme Court set out the balancing test to be used when considering whether a defendant's constitutional right to a speedy trial has been violated. In applying the test, this Court must balance four factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) whether the defendant has been prejudiced by the delay. Lundy at 19, 519 S.E.2d at 79. "The issue of whether a transgression of defendant's right to a speedy trial has occurred is not resolved by any one factor; `rather, the factors must be examined as a whole, with such other circumstances as may be relevant.'" Id.
Here, the evidence reflects that the district attorney diligently worked throughout the time at issue to deal aggressively with an overflowing docket. The district attorney made numerous requests for additional criminal terms of superior court. He had tried three other capital cases during this time. Each of these three cases was older than defendant's case. Further, we find no infringement of defendant's rights has occurred because he has failed to show what he recognizes as the most important factorprejudice due to the delay. There is an absence of evidence that the delay impaired *805 defendant's ability to prepare his defense through the loss of evidence, fading of memories or any other risk inherent in a delayed trial. Thus, in accordance with the balancing test required by Lundy, we find defendant's constitutional right to a speedy trial has not been violated.
Defendant next contends that the trial court erred in denying his motion to dismiss the charge of first degree murder because insufficient evidence existed to show he shot Gregory with a premeditated and deliberated intent to kill.
First degree murder consists of the unlawful killing of a another with malice, premeditation and deliberation. State v. Misenheimer, 304 N.C. 108, 113, 282 S.E.2d 791, 795 (1981). "`Premeditation' means that the defendant thought about killing for some length of time, however short, before he killed." State v. Fields, 315 N.C. 191, 200, 337 S.E.2d 518, 524 (1985). "`Deliberation' means that the intent to kill was formulated in a `cool state of blood', `one not under the influence of a violent passion suddenly aroused by some lawful or just cause or legal provocation.'" Id. "The phrase `cool state of blood' means that the defendant's anger or emotion must not have been such as to overcome the defendant's reason." State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996). "Although there may have been time for deliberation, if the purpose to kill was [sic] formed and immediately executed in a passion, especially if the passion was aroused by a recent provocation or by mutual combat, the murder is not deliberate and premeditated." Misenheimer at 113, 282 S.E.2d at 795.
A non-exclusive list of factors to be considered in determining whether the defendant committed the crime after premeditation and deliberation are:
(1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.
State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 843 (1984). An examination of these factors reveals that insufficient evidence was presented to show that defendant acted with premeditation and deliberation.
In State v. Corne, 303 N.C. 293, 278 S.E.2d 221 (1981), the victim entered defendant's house in an intoxicated state, approached the couch and insulted defendant. Defendant asserted that the victim initiated a physical confrontation with him and attempted to hit him but was unsuccessful. Defendant then pulled a rifle from behind the cushion of his couch and shot the victim eight to ten times in the chest, killing him. After the shooting, defendant walked across the street and called the police. Defendant contended there was insufficient evidence of premeditation and deliberation to support his conviction of first degree murder. After considering the aforementioned factors, our Supreme Court agreed, stating "[t]here is no evidence that defendant acted in accordance with a fixed design or that he had sufficient time to weigh the consequences of his actions." Corne at 298, 278 S.E.2d 221, 278 S.E.2d at 224.
Similarly, in the case at bar there was no evidence that defendant and Gregory knew each other before the altercation at the club. There also was no evidence of animosity or that defendant had made threatening remarks to Gregory. Furthermore, the defendant was provoked by Gregory's assault to which defendant immediately retaliated by firing one shot resulting in the immediate cessation of the altercation after Gregory fell. Finally, defendant's actions before and after the shooting did not show planning or forethought on his part. After committing the crime in front of a crowd of bystanders, defendant left the scene immediately but turned himself in the next day. In light of these factors, the evidence fails to show that defendant acted in a "cool state of blood" or that he was "not under the influence of a violent passion" at the time of the shooting. Given the absence of the requisite premeditation and deliberation by defendant, his conviction *806 of first degree murder must be reversed.
Although we determine that insufficient evidence exists to support the conviction of first degree murder, we conclude the evidence supported the crime of second degree murder. In State v. Vance, 328 N.C. 613, 403 S.E.2d 495 (1991), the trial court submitted possible verdicts finding the defendant guilty of second degree murder, guilty of the lesser included offense of involuntary manslaughter or not guilty. The jury convicted the defendant of second degree murder; however, the judgment for second degree murder was later vacated by our Supreme Court. Nevertheless, the Court found that by convicting the defendant of second degree murder, "the jury necessarily had to find the facts establishing the lesser included offense of involuntary manslaughter." Id. at 623, 403 S.E.2d at 502. Accordingly, the defendant's case was "remanded for judgment as upon a verdict of guilty of involuntary manslaughter." Id. See also State v. Barnett, 113 N.C.App. 69, 437 S.E.2d 711 (1993).
Here, the trial court submitted possible verdicts finding the defendant guilty of first degree murder, guilty of the lesser included offenses of second degree murder or voluntary manslaughter or not guilty. Second degree murder is a lesser included offense of first degree murder but without premeditation and deliberation. Thus, in finding defendant guilty of first degree murder, the jury necessarily found all the elements of second degree murder were met. Accordingly, we vacate the judgment for first degree murder and remand the case to the trial court for sentencing and entry of judgment finding defendant guilty of second degree murder.
After careful review, we find defendant's remaining assignment of error to be without merit.
Reversed and remanded.
Judge HUNTER concurs.
Judge TYSON concurs in part and dissents in part.
TYSON, Judge, concurring in part, dissenting in part.
I. Speedy Trial
I concur with that portion of the majority opinion which holds that defendant failed to establish the prejudice necessary to show a violation of his right to a speedy trial. While length of delay is not alone determinative of whether a defendant has been deprived of this right, State v. Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 721 (2000) (delay of 3 years, 326 days held not to violate right to speedy trial absent showing of prejudice), post-accusation delay becomes presumptively prejudicial at approximately one year. Id. (citing Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). A year's delay triggers application of the balancing test set forth in the majority opinion, as enumerated in Lundy and Grooms.
I agree with the majority's holding that defendant failed to show facts to meet the fourth requirement from Lundy: that the delay was prejudicial. I note, however, that (1) the length of defendant's incarceration was presumptively prejudicial; (2) that the State's justification for the delay: (a) that three older capital trials had occurred during the pendency of this matter, and (b) that the district attorney requested additional sessions of court, and "that the dockets in this county are congested," and the trial court's findings that the delays were not "purposeful" or for "tactical advantage," should not affect defendant's own constitutional right to a speedy trial; and (3) that defendant properly and timely asserted his right to a speedy trial by never requesting a continuance and by filing five separate motions for a speedy trial during his incarceration.
II. Reversal of Conviction for First-Degree Murder
I dissent from that portion of the majority opinion which holds "that insufficient evidence was presented to show that defendant acted with premeditation and deliberation" to sustain defendant's conviction for first-degree murder. The majority lists six non-exclusive factors from State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 843 (1984) which are to be considered in determining whether defendant committed murder with *807 premeditation and deliberation. I would find sufficient evidence in "(2) the conduct and statements of the defendant before and after the killing," and "(3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased." Id.
Viewed in the light most favorable to the State, as required on such a motion to dismiss, see State v. Miller, 142 N.C.App. 435, 543 S.E.2d 201 (2001), the evidence shows that defendant initiated the event when he stepped towards the victim, Gregory, pushed him back with his hands, and held Gregory to let Jackson and June Man continue fighting. After being pushed and held by defendant, Gregory struck defendant in the mouth. Defendant, without warning, then escalated the encounter by introducing a deadly weapon into the fist fight. Defendant pulled out a pistol, extended his arm, aimed at Gregory's head, and shot him. After the shooting, defendant did not attempt to assist Gregory himself, or call for assistance. See State v. Hunt, 330 N.C. 425, 428, 410 S.E.2d 478, 481 (1991). Rather, defendant fled the scene by jumping into the trunk of a vehicle. The vehicle then stopped at the end of the driveway to the Fireside Disco. Defendant exited the trunk of the vehicle, entered the driver's seat, and drove away from the scene.
After the murder, defendant was not at his residence when Sheriff's Captain Charles E. Ward went there, nor was defendant at Jack Clanton's residence where the vehicle was parked that defendant used to flee the scene. Only after the officer left word for defendant to go to the Sheriff's office did defendant turn himself in to authorities the following afternoon. Such actions before, during and after the murder are consistent with the jury's finding of premeditation and deliberation. See Hunt at 428, 410 S.E.2d at 481 (evidence supported finding of premeditation and deliberation where, during scuffle with the victim, the defendant took out his pistol, aimed, and shot the victim several times, after which the defendant "left the deceased to die without attempting to obtain assistance for the deceased.").
After hearing and considering all the evidence, and judging the credibility of the witnesses, the jury found the defendant guilty of first-degree murder. I would hold that defendant received a fair trial free from prejudicial error. Accordingly, I respectfully dissent from the majority's holding to reverse defendant's conviction of first-degree murder, and to remand this case for entry of a judgment for second-degree murder. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328155/ | 599 S.E.2d 319 (2004)
267 Ga.App. 368
WELLS FARGO HOME MORTGAGE, INC.
v.
COOK.
No. A04A1136.
Court of Appeals of Georgia.
May 11, 2004.
*320 Baker, Donelson, Bearman & Caldwell, Michael J. Powell, Atlanta, for appellant.
Sidney L. Storesund, Marietta, for appellee.
ELDRIDGE, Judge.
Robert A. Cook sued Wells Fargo Home Mortgage, Inc. for breach of contract, conversion, wrongful foreclosure, and libel. After service, Wells Fargo went into default *321 and had a default judgment entered against it. After notice to Wells Fargo and without it present, on February 3, 2003, the trial court held a hearing on the liquidated damages and awarded $6,933.99 in special damages. Subsequently, after notice and in the absence of Wells Fargo, a jury trial was held on the unliquidated damages in the action for wrongful foreclosure and libel, and the jury returned $125,000 in general damages; on May 13, 2003, judgment was entered. No trial transcript was either ordered or made. After Wells Fargo received notice of the entry of judgment, on June 20, 2003, it moved for a new trial on damages. On September 15, 2003, after a hearing, the motion for new trial was denied. On October 15, 2003, Wells Fargo filed its notice of appeal to the entry of judgment, requesting the entire record. Since there was no trial transcript, we affirm, because there is nothing to review on the incomplete record of the proceedings and trial.
1. Wells Fargo's first enumeration of error is that the jury verdict was excessive.
Unless it is clear from the trial transcript that the verdict of the jury was prejudiced or biased, the appellate court lacks the power to consider the verdict as excessive when the trial court with its broad discretionary power after hearing the evidence and observing the witnesses denied a motion to set aside the verdict and for a new trial on such grounds. Smith v. Milikin, 247 Ga. 369, 372(3), 276 S.E.2d 35 (1981). Where there is no direct proof of prejudice or bias on the part of the jury, the appellate court can set aside the verdict as excessive only when the amount, considered in connection with all the facts in evidence at trial, shakes the moral senses, i.e., the verdict must carry its death warrant on the verdict's face; however, such issues must be determined from the trial transcript. OCGA § 51-12-12; Reliance Ins. Co. v. Bridges, 168 Ga.App. 874, 888-890(16), 311 S.E.2d 193 (1983). Where the verdict was within the range of trial testimony evidenced by the transcript, it will not be disturbed on appeal. C & S Nat. Bank v. Haskins, 254 Ga. 131, 136(1), 327 S.E.2d 192 (1985). Questions of damages are ordinarily for the jury; the appellate court should not interfere with the jury's verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence, which must be determined from the trial transcript. Wood v. Browning-Ferris Indus. of Ga., 206 Ga.App. 707, 708(5), 426 S.E.2d 186 (1992). Such issues cannot be determined absent a trial transcript from which all the evidence may be evaluated in light of the verdict; the cryptic statements in the amended judgment are inadequate to serve as a transcript of the trial proceedings or to apprise this Court as to the evidence presented and as to the issues tried. Further, Wells Fargo made no attempt to have the trial court make a transcript or a reconstructed transcript of the proceedings approved by the trial judge; therefore, we must assume that the judgment was correct and supported by the evidence. OCGA § 5-6-41(g), (i); Moss v. Flav-O-Rich, 231 Ga.App. 288, 498 S.E.2d 361 (1998).
In the absence of a trial transcript, there is nothing to review, and we cannot determine if the verdict is excessive, because the trial record does not provide a complete record of what transpired in the trial of the case. Garrett v. McDowell, 242 Ga.App. 78-79(1), 527 S.E.2d 918 (2000). Where the record did not contain a transcript of evidence adduced upon trial, questions of whether or not there was any merit in the enumeration of error could not be determined, so the judgment must be affirmed. Lankford v. Lankford, 225 Ga. 147, 166 S.E.2d 354 (1969). Where all of the evidence is not before the appellate court in a transcript of the evidence, the judgment is assumed to be correct. Forio v. Forio, 217 Ga. 813, 814(2), 125 S.E.2d 486 (1962).
2. Wells Fargo contends that the award of attorney fees was improper.
In the absence of a trial transcript, whether or not the award of attorney fees was improper cannot be determined, because the judgment does not indicate that such damages were awarded or what evidence was considered. Further, neither the judgment nor the amended judgment indicates that attorney fees were awarded as part of the *322 general verdict. Division 1 controls this division.
3. Wells Fargo contends that the trial court impermissibly allowed the addition of Ms. Sharon Cook and Mr. James Cook as parties to this case without notice to Wells Fargo in contravention of OCGA § 9-11-5.
Neither the pleadings nor the judgment indicates that either Ms. Sharon Cook or Mr. James Cook were ever made parties to this action and received an award from the jury. There is no trial transcript to indicate what Ms. Cook testified about; the reference in the judgment to Ms. Cook's testimony is too fragmented and too inadequate for review by this Court. Wells Fargo seeks to speculate as to what transpired at the trial, which it did not attend and from which no transcript was made or reconstructed of the evidence. Division 1 controls this division.
Judgment affirmed.
RUFFIN, P.J., and ADAMS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262364/ | 900 F.Supp. 726 (1995)
Michael and Erna LAKE, and All Others Similarly Situated, Plaintiffs,
v.
FIRST NATIONWIDE BANK, Defendant.
Civ. A. No. 93-21.
United States District Court, E.D. Pennsylvania.
September 14, 1995.
*727 *728 *729 Jeffry B. Herman, Cary L. Flitter, Lundy, Flitter & Beldecos, P.C., Narberth, PA, Charles S. Zimmerman, Barry G. Reed, Zimmerman, Reed, Minneapolis, MN, for plaintiffs.
Arthur Newbold, M. Frances Ryan, Dechert, Price & Rhoads, Philadelphia, PA, Alan N. Salpeter, Jeffrey M. Strauss, Mayer, Brown & Platt, Chicago, IL, for defendant.
Garry W. Walden, Miami, FL, pro se.
*730 MEMORANDUM
EDUARDO C. ROBRENO, District Judge.
Plaintiffs Michael and Erna Lake have filed this motion seeking the Court's approval of the settlement in this class action, final certification of the class, attorneys' fees, and class representative fees. Having preliminarily approved the certification of the class and the settlement, the Court is now called upon to issue final findings. For the reasons set forth below, the motion shall be granted.
I. BACKGROUND
Plaintiffs Michael and Erna Lake brought this action on behalf of current and former customers of First Nationwide Bank ("First Nationwide" or "Bank"), a holder and servicer of residential mortgages. As part of its mortgage service agreement with homeowners, First Nationwide required its customers to deposit funds into an escrow account to pay for insurance premiums, property taxes, and other items as they became due. Plaintiffs contend that the amount required in the escrow accounts by First Nationwide has led to surpluses being carried in excess of the amount required by law and by First Nationwide's mortgage agreements, in violation of the standards set forth in § 10 of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C.A. § 2609(2) (West 1989).[1] Additionally, plaintiffs assert state law claims for breach of contract, misrepresentation, breach of fiduciary duty, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Pa.Stat. Ann. tit. 73, §§ 201-1 201-9.2 (1993).
The plaintiffs moved the Court to certify conditionally a class consisting of customers of First Nationwide who presently or formerly had their mortgages serviced by the Bank, and also asked the Court to grant preliminary approval to a class-wide settlement. As part of its obligations under the negotiated settlement, First Nationwide agreed to alter its method of operation so that a reduced surplus will be held in customer escrow accounts in the future. Moreover, First Nationwide agreed to refund to the class all funds that it currently holds in excess of the amount required by the settlement.[2]
In addition, the settlement shall afford the plaintiffs retrospective relief in the form of a one-time monetary award meant to compensate the class for the lost use of their money. Class members who have a mortgage currently being serviced by First Nationwide will share an interest award totalling $156,771. Meanwhile, class members who held or are holding mortgages formerly serviced by First Nationwide will also share an interest award not exceeding $10,000.[3] In return for the refund, the interest award, and First Nationwide's agreement to change its future escrow requirements, the class agreed to release all claims against the Bank pertaining to its mortgage practices and procedures. The parties further agreed that attorneys' fees in an amount not exceeding $110,000 are to be awarded to plaintiffs' counsel, and that a $2,000 payment shall be made to Michael *731 and Erna Lake for their duties as class representatives.
A hearing was held to consider conditional certification of the class and preliminary approval of the settlement on February 1, 1994. After entertaining arguments from counsel on the issues, the Court conditionally certified the class, granted preliminary approval to the settlement and the requested fees, and issued findings to that effect. See Lake v. First Nationwide Bank, 156 F.R.D. 615 (E.D.Pa.1994) [hereinafter Lake I]. Notice was given to the class of the proposed settlement. Approximately eighty-seven individuals responded by objecting to the settlement or by asking to be excluded from the plaintiff class. Upon the conclusion of the notice and opt-out period, the plaintiffs filed a motion seeking final certification of the class and final approval of the settlement, counsel's fees, and the class representative fee to the plaintiffs. A hearing to consider these issues was held on November 29, 1994. Having received additional material and further briefing on the relevant issues, the Court now sets forth its conclusions.
II. DISCUSSION
1. Certification of the Class
This class action was conditionally certified for the purpose of concluding the settlement between the parties. The Third Circuit has declared that class actions created for the sole purpose of settlement are recognized under the general scheme of Federal Rule of Civil Procedure 23. See In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 792-97 (3d Cir.), cert. den., ___ U.S. ___, 116 S.Ct. 88, 133 L.Ed.2d 45 (1995). The Third Circuit has also directed district courts to "make findings because the legitimacy of settlement classes depends upon fidelity to the fundaments of Rule 23." Id. at 794. Since the Court has already made preliminary findings in this case, the issue is whether these findings should be made final.
A plaintiff seeking class certification under Rule 23 must demonstrate that the action satisfies the four threshold requirements of paragraph (a), and that the action qualifies under one of the three subdivisions of subsection (b). Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163, 94 S.Ct. 2140, 2145, 40 L.Ed.2d 732 (1974). Paragraph (a) of Rule 23 specifies that:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). The plaintiffs also contend that the class action is qualified to proceed under Rule 23(b)(3). That section provides that a class action may be maintained if a court finds
that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3). This Court earlier found the criteria of Rule 23(a) and 23(b)(3) to be fully satisfied and gave its conditional approval to the class. Lake I, 156 F.R.D. at 622-26.
The parties allege that the facts subsequent to the Court's conditional certification have not changed, and the Court, after conducting a hearing, is not aware of any additional information which would alter its initial findings. Therefore, for the reasons given in the Court's memorandum opinion of July 29, 1994, see Lake I, 156 F.R.D. 615, the criteria *732 of Rules 23(a) and 23(b)(3) are deemed satisfied and the class shall be granted final certification.
2. Approval of Settlement
The parties seek final court approval of their settlement now that the class has been afforded notice of the settlement's proposed terms and an opportunity to comment on them. Prior to granting final approval to the settlement, the Court must find it to be "fair, adequate, and reasonable." Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 965 (3d Cir.1983). Significant weight should be attributed "to the belief of experienced counsel that settlement is in the best interest of the class." Austin v. Pennsylvania Dep't of Corrections, 876 F.Supp. 1437, 1472 (E.D.Pa.1995). However, due to the risk that a collusive settlement agreement may be reached that fails to satisfy the class, a reviewing court must ascertain that the settlement was the product of "good faith, arms length negotiations" before granting its approval. Fisher Bros. v. Cambridge-Lee Indus., Inc., 630 F.Supp. 482, 487 (E.D.Pa. 1985).
"In order for the determination that the settlement is fair, reasonable, and adequate `to survive appellate review, the district court must show it has explored comprehensively all relevant factors.'" In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d at 805 (citing Malchman v. Davis, 706 F.2d 426, 434 (2d Cir.1983)). In conducting this analysis, the Third Circuit has instructed district courts to inform their decisions by the factors outlined in the leading case of Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975):
(1) the complexity, expense and likely duration of the litigation;
(2) the reaction of the class to the settlement;
(3) the stage of the proceedings and the amount of discovery completed;
(4) the risks of establishing liability;
(5) the risks of establishing damages;
(6) the risks of maintaining the class action through the trial;
(7) the ability of the defendants to withstand a greater settlement;
(8) the range of reasonableness of the settlement fund in light of the best possible recovery;
(9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
Girsh, 521 F.2d at 157.
A number of reasons weigh in favor of approving this settlement. First, due to the relative complexity of the issues involved and the amount of data that would need to be processed, the costs of litigating this matter through trial would likely be high. With the excessive overages in this case alleged to have occurred in thousands of homeowner accounts which involve millions of computer entries, the task of poring through the relevant records would clearly be a significant undertaking.
Second, of the thousands of plaintiffs comprising this class, a relatively small number, less than ninety total, have either objected to the settlement or asked to be excluded from the class.[4] The Court is wary of placing too much emphasis on the lack of a large numerical opposition, particularly where much of the plaintiff class was given notice by way of publication. Nonetheless, the low number of objections or requests for exclusion bolsters the contention that this is not an unreasonable settlement.
Third, the Court is persuaded that the opinions of counsel on the issue of settlement were well informed. This is based primarily on factual investigation which was conducted by counsel over the one year period prior to the parties' submission of their settlement for preliminary approval.
Fourth, liability and damages will be difficult to establish. First Nationwide strongly disputes the merits of the plaintiff's *733 position and claims that it has complied both with its mortgage agreements and with § 10 of RESPA. Moreover, as the Court has previously emphasized, it is not certain whether the plaintiffs have stated a viable claim under federal law, since it now appears increasingly clear that there is no private right of action under § 10 of RESPA. See Louisiana v. Litton Mortgage Co., 50 F.3d 1298 (5th Cir.1995) (holding that no private right of action exists under § 10 of RESPA); Allison v. Liberty Sav., 695 F.2d 1086, 1091 (7th Cir.1982) (same); Herrmann v. Meridian Mortgage Corporation, 901 F.Supp. 915, 923 (E.D.Pa.1995) (Pollak, J.) (holding that § 10 of RESPA does not provide for a private right of action and declining to follow this Court's prior opinion in this case, see Lake I, 156 F.R.D. at 621-22, on the basis of authorities decided since the issuance of that opinion); Campbell v. Machias Sav. Bank, 865 F.Supp. 26, 31 (D.Me.1994) (holding that no private right of action exists under § 10 of RESPA); Michels v. Resolution Trust Corp., Civ. No. 4-93-1167, 1994 WL 242162, at *3 (D.Minn. April 13, 1994) (same); Bloom v. Martin, 865 F.Supp. 1377 (N.D.Cal.1994) (same); Bergkamp v. New York Guardian Mortgagee Corp., 667 F.Supp. 719, 723 (D.Mont.1987) (same). But see Allison v. Liberty Sav., 695 F.2d at 1091-93 (7th Cir. 1982) (Posner, J., dissenting from denial of rehearing en banc) (concluding that private right of action existed); Vega v. First Federal Sav. & Loan Ass'n of Detroit, 622 F.2d 918, 925 n. 8 (6th Cir.1980) (finding private right of action to exist).[5] Finally, while the actual monetary recovery will be slight, the settlement's injunctive relief ensures that excessive surpluses will not be held in escrow in the future.
Notwithstanding the above, factors exist which militate against approval of the settlement. Most notably, the parties contend that they have estimated First Nationwide's liability by using a sampling of homeowner accounts in order to determine the average amount by which those accounts exceeded a two month surplus for the payment of taxes, premiums, and other items.[6] Yet, the estimated damages extrapolated from this sampling were not submitted to the Court. Thus, both the maximum liability which could be found in this case and, more importantly, whether the settlement compares favorably to that perceived maximum remain unclear. Ordinarily, this factor alone would give the Court pause, warranting at least a fuller evidentiary showing. In this case, however, because the plaintiffs are unlikely to prevail on the issue of liability under RESPA, the calculation of damages becomes an exercise in conjecture.
Finally, public policy favors settlement. Factors which the Court has taken into consideration include the conservation of litigants' and judicial resources, the benefit, however slight, to the plaintiff class through the receipt of a refund, and the promise of corrective action by First Nationwide. These combined circumstances outweigh the minimal rights being surrendered by the absentee parties, in light of the likelihood that RESPA does not provide a private right of action.
Two additional factors, the possible inability to sustain the status of the class, and First Nationwide's ability to withstand a greater judgment, disfavor approval of the settlement. Yet, since the former appears rather unlikely and the latter is unclear based on the pleadings, given the Court's judgment that the plaintiffs are unlikely to establish a *734 private right of action under RESPA, these factors evoke little concern.
Thus, the Court concludes that the settlement is fair, adequate, and reasonable.
3. Approval of Attorneys' Fees
The amount of attorneys' fees requested by class counsel in this case, $110,000, was reached by way of an agreement between the parties. Under the agreement, any amount disapproved by the Court will revert to the defendant and will not be shared by the class. Furthermore, counsel for both parties have stated that the attorneys' fees were bargained for after they had reached an accord. Despite these stipulations, the Court is obligated to review the fees before granting its approval. See In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d at 819-20; see also Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 522 (1st Cir.1991) ("When a fee application is submitted ancillary to, or as part of, the termination of a class action, the district court should ordinarily determine the reasonableness of the fees, notwithstanding that the source of payment does not directly impair the class recovery.").
The first step in considering the approval of attorneys' fees in a class action settlement is to determine under which method counsel seeks its fees. Attorney fees may be sought under a statutory fee shifting context or recovery may be derived as a percentage of the common fund shared with the class plaintiffs. In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d at 821.
In statutory fee-shifting cases, the usual basis for awarding fees is the lodestar method. This method calculates the number of hours spent by counsel in the litigation, multiplied by a reasonable hourly rate. See id. The lodestar method may also be appropriate where "the nature of the settlement evades the precise evaluation needed for the percentage of recovery method." Id.
In situations where counsel and the class share a common fund, or where the fee and settlement are claimed to be independent of each other, but actually derive from the same source, a percentage of the total recovery is more appropriate. Id. The percentage method prevents unjust enrichment of the class at the expense of counsel's time and resources, while rewarding counsel for success and penalizing it for failure. Id.; see also Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 250, 255 (1985).
Neither the lodestar method nor the percentage of recovery method, however, is mandatory. Thus, the district court has wide discretion to decide which method of fee calculation to apply. In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d at 821.
Plaintiffs' counsel asks the Court to approve its requested fees which were obtained through the percentage of recovery method. With the fee agreement in place, it would appear at first glance that there is no common fund from which to apportion attorneys' fees. The separate fee agreement between counsel in this case does not, however, oblige the Court to ignore the economic reality that a de facto common fund may exist. See id. ("[P]rivate agreements to structure artificially separate fee and settlement arrangements cannot transform what is in economic reality a common fund situation into a statutory fee shifting case."). The fact that the amount to be recovered by the class plus the attorneys' fees come from the same source indicates that the requested fees may be analyzed as if they were derived from a common fund.
Yet, where a de facto common fund exists, awarding fees based on a percentage of the class's recovery may not be the best course of action if the settlement involves "hard-to-value intangible rights." Id. at 822. Therefore, where such rights are part of a class settlement, the lodestar analysis better ensures that a class counsel's fee award is neither over- nor undervalued. See Cooperstock v. Pennwalt Corp., 820 F.Supp. 921, 926 (E.D.Pa.1993) (applying lodestar method where benefits to class were "unquantifiable").
*735 In this case, the greatest benefit to the class members provided by the settlement agreement is First Nationwide's promise to take corrective action requiring fewer funds in customer escrow accounts. This result, however, is difficult to monetize. The future financial value of First Nationwide's promise to the class relies heavily on a number of currently unknown and nebulous variables, including interest rates, future property tax rates in different locales, and the time remaining on class members' mortgages. Class counsel has admitted that such an appraisal is difficult, if not impossible, to make with any certainty. The Court therefore will not undertake such a seemingly fruitless exercise. Instead, as it is plain that the precise evaluation required to determine a fee award based on the percentage of recovery method is unavailable here, the Court shall exercise its discretion and employ the lodestar method for calculating the appropriate amount of counsel fees.
Determining the lodestar is merely a starting point from which to analyze counsel's fee request. The Court must first multiply the number of hours spent by class counsel in this litigation by a number representing a reasonable hourly rate. Lindy Bros. Builders Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir.1973). After this amount, the lodestar, is determined, the Court may make adjustments as necessary. See In re Fine Paper Antitrust Litig., 751 F.2d 562, 583 (3d Cir.1984).
Counsel has submitted fairly detailed time sheets identifying the type of work done by its various attorneys, as well as the amount of time spent on each task. None of the time entries appear inflated nor do the entries appear extraneous or intended merely for the purpose of inflating the fees. Accordingly, the Court concludes that all hours claimed by class counsel shall be used for the lodestar calculation.
Counsel has also submitted a schedule of the attorneys who worked on the case and their respective billing rates. While the rates appear on the "high side" based on the Court's experience, they are not out of line with the market rate in the community for counsel of similar experience and skill.[7] Accepting as reasonable both the number of hours spent and the rates, the Court concludes that the amount submitted by counsel for the plaintiffs, $59,586.25, is the lodestar amount.[8]
The lodestar may be increased by way of a quality multiplier if a court finds that the settlement was "achieved with unusual efficiency, and with little expenditure of attorney time and expense." In re Fine Paper Antitrust Litig., 751 F.2d at 589. However, "the overall quality of performance ordinarily should not be used to adjust the lodestar, [so as to remove] any danger of double counting." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 566, 106 S.Ct. 3088, 3099, 92 L.Ed.2d 439 (1986). In the present case, the Court will not enhance the lodestar with a quality multiplier. To the extent that counsel's skill and experience helped shepherd the case efficiently, this factor has already been taken into account in approving counsel's high hourly rate. See Rainey v. Philadelphia Hous. Auth., 832 F.Supp. 127, 130 (E.D.Pa.1993) ("Normally the higher the allowed hourly rate commanded based upon skill and experience, the shorter the time it should require an attorney to perform a particular task."). Applying a quality multiplier in this case would result, therefore, in double counting. In any event, the Court does not agree that the litigation of this case reflected "unusual" efficiency on the part of counsel.
The Court may also augment the lodestar by using a contingency multiplier. A contingency multiplier was previously used to reflect "the contingent nature of [the lawsuit's] *736 success" and the "delay in the receipt of payment for services rendered." Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 117 (3d Cir.1976). In City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), the Supreme Court ruled that a contingency multiplier based on the risk of the plaintiff's success could not be used to increase the lodestar under two federal fee-shifting statutes. This prohibition has subsequently been extended to common fund cases, making the likelihood that the plaintiffs would not succeed irrelevant for purposes of enhancing the lodestar. See In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d at 822 (stating that the relevance of Dague to a de facto common fund "was patent"); In re Nineteen Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 619 (1st Cir.1992) (Lay, J., concurring) (applying Dague to a common fund case). But see Florin v. Nationsbank of Georgia, 34 F.3d 560, 564-65 (7th Cir.1994) (refusing to extend Dague to common fund cases); In re Washington Public Power Supply Sys. Litig., 19 F.3d 1291, 1299-1301 (9th Cir.1994) (same).
The Supreme Court's decision in Dague did not, however, rule out a multiplier based upon a delay in counsel's receipt of its fees. The parties initially petitioned the Court for preliminary approval of the attorneys' fees on December 28, 1993, after which the necessary steps for approval were taken. Given the time spent in the finalization process, a multiplier of 0.1 will be used to increase the fee award. Thus, the amount to be awarded to plaintiffs' counsel shall be $5,888.37 in costs and expenses and $65,544.88 in fees, for a sum total of $71,433.25.[9]
4. Approval of Class Representative Fees
Having determined the award of attorneys' fees, the Court now turns to the class representative fees sought by plaintiffs Michael and Erna Lake. Like the attorneys' fees in this case, if the Lakes do not receive a class representative fee, the fee will not be distributed to the class.
The Lakes seek a fee of $2,000 as compensation for the risk of retaliation by First Nationwide, for the time they spent assisting counsel, and for the fact that they would have been liable for costs incurred if this matter had not resulted in an award to the plaintiff class. Furthermore, they claim that they risked an invasion of privacy "by revealing their financial history to the public and risked acquiring public attention and public notoriety." Memorandum in Support of Plaintiffs' Motion for Approval of Application for Fees for Class Counsel and the Class Representatives at 12.
The Court disagrees that the Lakes were exposed to a realistic threat of retaliation, given their contractual relationship to the Bank under their mortgage. Yet, some allowance for the time that the Lakes spent prosecuting this matter and reimbursement for the actual costs they incurred would be reasonable.
Despite the Court's prior admonition that these fee requests would be subject to considerable scrutiny,[10] the Lakes have not provided an adequate indication of either the actual time they invested or the costs they incurred as a result of their involvement in this case. The Court's independent review of class counsel's time records discloses some reference, on three separate occasions, to counsel's conferences with what appear to be the Lakes. Yet, the amount of time during those three conferences which was spent with the Lakes remains unclear. Furthermore, class counsel stated at the November 29, 1994, hearing that both plaintiffs came to Philadelphia from the suburbs to discuss certain *737 escrow records and that the plaintiffs spent time answering phone calls from class members and being prepared for depositions.
Based on this record, the Court finds no justification in awarding a $2,000 fee to these plaintiffs. Instead, based on the time records and the comments by counsel, and making a slight adjustment for costs, the Court shall approve a class representative fee totalling $500 ($250 each) to both plaintiffs to compensate them for their actual time and expenses. No other fee shall be paid to the class representatives.
III. CONCLUSION
The Court grants final certification to the proposed class and approves the settlement agreement between the parties. The Court further finds that attorneys' fees and costs in the amount of $71,433.25 are reasonable in light of the circumstances. A class representative fee in the amount of $500 is awarded to Michael and Erna Lake to account for the time and costs they spent during their involvement with this litigation.
Appropriate findings and an order shall be entered.
FINDINGS AND ORDER
This matter came on for a hearing before the undersigned on Tuesday, November 29, 1994 on the motion of plaintiffs for final approval of the class action settlement entered into between the parties to the action. Defendant First Nationwide Bank ("First Nationwide") appeared in support of said motion.
The plaintiff class was represented by Charles S. Zimmerman and Barry G. Reed of the law firm Zimmerman Reed, 5200 Norwest Center, 90 South Seventh Street, Minneapolis, Minnesota; and Cary L. Flitter of the law firm of Lundy, Flitter & Beldecos, 450 N. Narberth Avenue, Narberth, Pennsylvania. First Nationwide was represented by Alan N. Salpeter and Jeffrey M. Strauss of the law firm of Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois; and Arthur E. Newbold of the law firm of Dechert, Price & Rhoads, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia, Pennsylvania. The issues with respect to the fairness of the proposed settlement and the attorneys' fees and costs sought by plaintiffs' counsel were briefed and argued. Based upon such briefs and arguments, and upon the other files and records in this matter, the Court FINDS and ORDERS as follows:
1. This action was commenced against First Nationwide in the United States District Court, Eastern District of Pennsylvania, on January 4, 1993.
2. The claims asserted by plaintiffs consist of one cause of action under § 10 of the Real Estate Settlement and Procedures Act ("RESPA"), and four causes of action asserting remedies under several statutes and common law.
3. This action may for all purposes be maintained as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3), with the class consisting of all persons who have or had escrowed mortgage loans that are now, or were, serviced or subserviced by the defendant or its predecessors at any time from January 4, 1983 up to and including the date of the settlement agreement. This class includes subclasses of:
(a) "Open loan class members": subject to the last sentence of paragraph 25 of the settlement agreement, all persons who have escrowed mortgage loans that are being serviced or subserviced by defendant as of the date of the settlement agreement ("open loans"); and
(b) "Closed loan class members": all persons who had escrowed mortgage loans that were serviced or subserviced by defendant or its predecessors between January 4, 1983 and the date of the settlement agreement (the "closed loan period"), which loans were paid off, transferred or otherwise removed from defendant's books and records, or whose escrow accounts were waived by defendant or its predecessors during the closed loan class period ("closed loans"). The term "closed loan class members" shall include persons treated as closed loan class members pursuant *738 to the last sentence of paragraph 25 in the settlement agreement.
4. The plaintiffs as class representatives fairly and adequately represent the interests of the class.
5. The notice previously given to class members in this action satisfies the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.
6. The settlement agreement is fair, adequate, and reasonable as to each member of the class.
7. Each member of the class (except those who have excluded themselves from the class pursuant to Rule 23 of the Federal Rules of Civil Procedure) is bound by the terms of the settlement agreement, including those regarding the ongoing servicing of their mortgage escrow accounts, and the release and covenant not to sue provided for in the settlement agreement between the parties. The mortgage contract of each member of the class is amended, as provided for in the settlement agreement, to expressly include the provisions for ongoing servicing of the mortgage escrow impound account in the manner provided for in the settlement agreement.
8. By September 12, 1996, or earlier at the election of First Nationwide, First Nationwide shall institute, or to the extent it has already been instituted, continue to use, the methodology for servicing the escrow accounts of the class members as set forth in the settlement agreement.
9. All sums to be paid under the terms of the settlement agreement shall be credited or paid to members of the class, as provided in the settlement agreement.
10. All claims in the litigation against First Nationwide are DISMISSED on the merits and with prejudice. Each member of the class is permanently ENJOINED from bringing against First Nationwide or any of its shareholders, directors, officers, employees or other released parties, as identified in the settlement agreement, any claim regarding the matters released in this litigation, as identified in the settlement agreement.
11. The Court hereby retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of the settlement agreement between the parties.
12. The Court has reviewed the petition for attorneys' fees submitted by Zimmerman Reed and Lundy, Flitter & Beldecos and has determined that counsel shall receive, as and for compensation for their legal services, $71,433.25, to be paid by First Nationwide in accordance with the terms of the settlement agreement.
13. The Court has reviewed the request for class representative fees and has concluded that a fee totalling $500 is appropriate, and shall be paid in accordance with the terms of the settlement agreement. No other fee shall be paid to the class representatives.
14. The case shall be marked CLOSED for statistical purposes.
NOTES
[1] Section 10 of RESPA provides that a lender may not require a borrower
to deposit in any such escrow account in any month beginning with the first full installment payment under the mortgage a sum (for the purpose of assuring a payment of taxes, insurance premiums and other charges with respect to the property) in excess of the sum of (A) one-twelfth of the total amount of the estimated taxes, insurance premiums and other charges which are reasonably anticipated to be paid on dates during the ensuing twelve months ... plus (B) such amount as is necessary to maintain an additional balance in such escrow account not to exceed one-sixth of the estimated total amount of such taxes, insurance premiums and other charges to be paid on dates, as provided above, during the ensuing twelve month period: Provided, however, That in the event the lender determines that there will be or is a deficiency he shall not be prohibited from requiring additional monthly deposits in such escrow account to avoid or eliminate such deficiency.
12 U.S.C.A. § 2609(2) (West 1989).
[2] Based on his experience in other similar litigation, plaintiff's counsel has submitted that this refund will be approximately $5,000,000. Tr. of 11/29/94, at 4. This refund, of course, simply returns to class members money that they advanced to First Nationwide and is not a net gain to the plaintiffs.
[3] As the class appears to number more than 100,000, members are expected to receive just a few dollars each as interest.
[4] The objections asserted were by and large uninformed, based on the misapprehension that the formation of the class would interfere with the objector's contractual relationship with First Nationwide, or consisted of a general complaint against lawyers in general making large fees in these types of cases.
[5] The fact that various courts have issued opinions, including a highly persuasive one in this district, which have found no private right of action under § 10 of RESPA, does not signify that this Court is without jurisdiction to approve this settlement. "A district court has federal question jurisdiction in any case where a plaintiff with standing makes a non-frivolous allegation that he or she is entitled to relief because the defendant's conduct violated a federal statute." Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1281 (3d Cir.1993). Because the Third Circuit has not decided whether an implied right of action exists under § 10 of RESPA, and given that there is some appellate authority supporting its existence, "the cause of action asserted by the Lakes is a non-frivolous cause of action sufficient to invoke this Court's federal jurisdiction under 28 U.S.C. § 1331." Lake I, 156 F.R.D. at 621-22.
[6] The two months surplus is the maximum permitted by § 10 of RESPA. See supra note 1.
[7] Billing rates range from $65 an hour for temporary law clerks to $275 an hour for attorney Charles Zimmerman. The bulk of the time attributed to this case was billed by attorney Barry Reed, who provided his legal services at $250 an hour. Local counsel Cary Flitter, who also spent some time on this case, billed at a rate of $200 an hour.
[8] This amount consists of the total fees billed by Zimmerman, Reed and Lundy, Flitter & Beldecos.
[9] Local counsel shall be awarded $8,712 in fees and $677.88 in costs and expenses for a total of $9,389.88.
[10] Previously, this Court stated:
Though the Court will preliminarily approve the settlement proffered by the parties, it views the proposed payment to the Lakes with a good deal of skepticism, and the parties will need to make a stronger showing at the final hearing if they expect the Court's approval of this bounty. See In re Continental Ill. Sec. Litig., 962 F.2d 566, 571-72 (7th Cir.1992); In re U.S. Bioscience Sec. Litig., 155 F.R.D. 116, 121, slip op. at 8-14 (E.D.Pa. May 27, 1994).
Lake I, 156 F.R.D. at 627 n. 14. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262402/ | 900 F.Supp. 784 (1995)
In re PHAR-MOR, INC. SECURITIES LITIGATION.
PHAR-MOR, INC., Plaintiff,
v.
COOPERS & LYBRAND, Defendant.
Civ. A. Nos. 92-1938, 92-2108. MDL No. 959, Misc. No. 93-96.
United States District Court, W.D. Pennsylvania.
June 1, 1995.
*785 Mary-Jo Rebelo, Joseph F. McDonough, James P. Hollihan, Paul A. Manion, Manion, McDonough & Lucas, Pittsburgh, PA, for plaintiff.
Kathryn L. Simpson, Vincent J. Grogan, Grogan, Graffam, McGinley & Lucchino, Richard Wile, Wile, Georgiades, Homyak & Norkus, Pittsburgh, PA, Robert J. Sisk, Theodore V.H. Mayer, Robb W. Patryk, Hughes, Hubbard & Reed, New York City, for defendant.
OPINION
ZIEGLER, Chief Judge.
Pending before the court are the motions of defendant, Coopers and Lybrand ("Coopers"), and third-party defendants, Corporate Partners, L.P., Corporate Offshore Partners, L.P., The State Board of Administration of Florida, Lazard Freres & Co., Lester Pollack and Jonathan Kagan (collectively "Corporate Partners"), for summary judgment with respect to the claims asserted by plaintiff, Phar-Mor, Inc. ("Phar-Mor"), against Coopers.[1] The central issue raised in the motions is whether the wrongful acts of certain Phar-Mor officers and employees should be imputed to the corporation as a matter of law so as to bar Phar-Mor's claims.
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, we must examine the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
This civil action is one of over forty civil actions that have been consolidated in this court as part of the multidistrict litigation styled In re Phar-Mor, Inc. Securities Litigation, MDL No. 959. Phar-Mor, a deep discount drugstore chain, has alleged claims of negligence, misrepresentation, outrageous conduct and breach of contract against Coopers, its former auditors, for alleged accounting malpractice during the fiscal years 1989 through 1991. In essence, the company contends that Coopers failed to perform audits of Phar-Mor's financial statements in accordance with generally accepted auditing standards and, consequently, failed to detect the financial fraud perpetrated by several officers and employees of Phar-Mor. Coopers issued "clean" audit opinions after each of the audits during the fiscal years 1989 through 1991. The evidence of record establishes that the financial statements for those fiscal years falsely portrayed Phar-Mor as a profitable concern by overstating its financial performance by approximately $500 million. Shortly after the fraud was revealed in 1992, Phar-Mor filed for protection under Chapter 11 of the Bankruptcy Code.
Phar-Mor admits that the fraud was masterminded by its former Chief Operating Officer (Michael Monus), and was directed by its former Chief Financial Officer (Patrick Finn). Other high level officers who allegedly *786 participated in the fraud include the Vice President of Finance (Jeffrey Walley), and the Corporate Controller (Stanley Cherelstein). On the other hand, Phar-Mor denies that David S. Shapira, its Chief Executive Officer during the period of the fraud, and the Board of Directors were involved in or had any knowledge of the fraud.
The movants contend that the knowing participation of certain officers of Phar-Mor in the fraud must be imputed to the corporation, and because "a participant in a fraud cannot also be a victim entitled to recover damages," Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 454 (7th Cir.1992), cert. denied, 459 U.S. 880, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982), Phar-Mor's claims against Coopers cannot stand.[2] Phar-Mor rejoins that summary judgment is inappropriate because genuine issues of material fact exist concerning whether the wrongdoers were acting within the scope of their employment and whether such actions were adverse to Phar-Mor's interests.[3]
The general rule of imputation provides that "the fraud of an officer of a corporation is imputed to the corporation when the officer's fraudulent conduct was (1) in the course of his employment, and (2) for the benefit of the corporation." Rochez Bros., Inc. v. Rhoades, 527 F.2d 880, 884 (3d Cir. 1975), cert. denied, 425 U.S. 993, 96 S.Ct. 2205, 48 L.Ed.2d 817 (1976). This rule is premised on the principle that a corporation is merely "a creature of legal fiction," Lokay v. Lehigh Valley Coop. Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405, 408 (1985), and can operate only through its officers, agents, and employees. As the Court of Appeals explained in F.D.I.C. v. Ernst & Young, 967 F.2d 166 (5th Cir.1992):
Because a corporation operates through individuals, the privity and knowledge of individuals at a certain level of responsibility must be deemed the privity and knowledge of the organization, else it could always limit its liability. Where the level of responsibility begins must be discerned from the circumstances of each case.
967 F.2d at 171 (citations and internal quotations omitted).
There is, however, a well-established exception to the imputation rule. A corporation is not imputed with the "knowledge of an agent in a transaction in which the agent secretly is acting adversely to the [corporation] and entirely for his own or another's purposes." F.D.I.C. v. Shrader & York, 991 F.2d 216, 223 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994) (quoting Restatement (2d) of Agency § 282(1) (1957)). The exception "focusses on whether the misdeeds of the corporate employee worked to the benefit or detriment of the corporation." Comeau v. Rupp, 810 F.Supp. 1127, 1139 (D.Kan.1992).
The cases cited by the parties in support of their positions merely establish that the inquiry into the application of the adverse interest exception is fact-intensive. See, e.g., Cenco, supra (fraud imputed to corporation where corrupt officers were also stockholders in the company); F.D.I.C. v. O'Melveny & Meyers, 969 F.2d 744 (9th Cir.1992), rev'd on other grounds, ___ U.S. ___, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994) (fraud by high level officers cannot be imputed to savings and loan where "disaster, not benefit" accrued to the S & L and recovery by bankrupt S & L would serve to compensate the victims of the fraud and not the wrongdoers).
In the instant action, we hold that genuine issues of material fact preclude the entry of summary judgment in favor of Coopers. From the evidence of record, we cannot conclude as a matter of law that the fraudulent acts of Monus, Finn and others *787 were intended to benefit Phar-Mor. While we recognize that Finn, Walley and Cherelstein have all testified that the motivation behind the fraud and resultant cover up was to provide time for management to resolve Phar-Mor's underlying business problems, such a motivation does not, in our judgment, necessarily equate to a finding that the fraudulent actors intended to benefit Phar-Mor. Indeed, a reasonable trier of fact could conclude that the true motive of the wrongdoers was the preservation of their employment, salaries, emoluments and reputations, as well as their liberty, at the expense of Phar-Mor's corporate well-being.
Pat Finn's testimony also supports denial of the motion. He testified that he knew that, during the cover up and proliferation of the fraud, Phar-Mor's directors were making critical business decisions based on false financial information. One such decision included the implementation of an aggressive expansion program in which Phar-Mor opened new and larger stores, most of which were unprofitable and increased Phar-Mor's losses. Finn testified that, had the Board of Directors known of the true financial condition of Phar-Mor, it would not have authorized the ill-fated expansion program. He also acknowledged that the opening of the new stores merely dug Phar-Mor "a bigger grave." Based on this testimony, a jury could conclude that the officers purposely acted in a manner that was contrary to Phar-Mor's business interests.[4]
Finally, we note that, under the proposed Reorganization Plan and Disclosure Statement filed by Phar-Mor in the bankruptcy action, Phar-Mor's claims against Coopers will be assigned to a litigation trust established by the plan, and any recovery by Phar-Mor in the case sub judice would inure to the benefit of the secured and unsecured creditors having an interest in the trust. Neither the fraudulent actors nor Phar-Mor's equity holders would benefit from a recovery by Phar-Mor in this action. Thus, the objectives of tort liability, to-wit, compensation of victims of the wrongdoing and deterrence of future wrongdoing, would arguably be served should Phar-Mor ultimately prevail and recover on its claims. F.D.I.C. v. O'Melveny & Meyers, 969 F.2d at 750.
In sum, we hold that genuine factual issues exist which preclude the entry of summary judgment in favor of the movants based on Coopers' imputation defense, and the motion will be denied.[5]
Coopers has also moved for summary judgment on Phar-Mor's claim of fraudulent misrepresentation. Coopers contends that, under the facts of record, Phar-Mor cannot establish that Coopers acted with scienter. Both parties agree that, in order to establish a claim of fraudulent misrepresentation, the plaintiff must prove that the false representation was made "knowingly, or in conscious ignorance of the truth, or recklessly without caring whether it be true or false." Delahanty v. First Pa. Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243, 1252 (1983) (emphasis added). We find that Phar-Mor has raised a triable issue of fact as to whether Coopers performed its audits in a reckless manner on the basis of the report of its expert, the Barrington Consulting Group. Barrington Consulting reviewed all of Coopers' audits for fiscal years 1989, 1990 and 1991. The review concentrated on two specific areas: the audit of inventory and the audit of procurement and "Power Plan" income. With respect to all three of the audits, the expert concluded that:
Coopers' numerous failures, including inappropriate reliance on management's representations and the insufficient and inappropriate application of procedures, leads us to conclude that Coopers' failure to discover and report the fraud and material misstatements to Phar-Mor's financial statements *788 was wantonly deficient and recklessly indifferent to the rights of Phar-Mor.
In view of this report, we hold that Phar-Mor has presented sufficient evidence to avoid summary judgment on its fraud claim. Similarly, Coopers' motion to dismiss Phar-Mor's claims for punitive damages is also denied because, as Coopers acknowledged in its brief, punitive damages may be awarded where a defendant acts with reckless indifference to the rights of others. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097-98 (1985).
An appropriate order will follow denying the motions for summary judgment.
ORDER OF COURT
AND NOW, this 1st day of June, 1995,
IT IS ORDERED that the motion (document no. 1437) of defendant, Coopers & Lybrand, for summary judgment on the claims asserted by plaintiff, Phar-Mor, Inc., be and hereby is denied.
IT IS FURTHER ORDERED that the motion (document no. 1429) of third-party defendants, Corporate Partners, L.P., The State Board of Administration of Florida, Lazard Freres & Co., Lester Pollack and Jonathan Kagan, for summary judgment on Phar-Mor's claims against Coopers be and hereby is denied.
NOTES
[1] Corporate Partners is a party to this action by way of third-party claims and cross-claims asserted against it. Because dismissal of Phar-Mor's claims against Coopers would necessarily result in dismissal of the claims against Corporate Partners, Corporate Partners has moved for judgment in favor of Coopers pursuant to Fed. R.Civ.P. 14(a), which provides that a "third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim."
[2] The rule that a participant in a fraud cannot also be a victim and entitled to recover damages is derived from the fact that one of the elements of a fraud claim, namely, reliance on the truth of the fraudulent misrepresentation, is absent. Cenco, at 454.
[3] We note that state law controls the issue before us. O'Melveny & Meyers v. F.D.I.C., ___ U.S. ___, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). A choice of law analysis is not necessary, however, because the imputation laws of the two states with the most significant contacts to this action, Ohio and Pennsylvania, are consistent. See Gordon v. Continental Casualty Co., 319 Pa. 555, 181 A. 574 (1935); First Nat'l. Bank of New Bremen v. Burns, 88 Ohio St. 434, 103 N.E. 93 (1913).
[4] Finn testified that the opening of the new stores was intended to assist the wrongdoers out of the problem by increasing sales volume, and that it was not their intent to lose more money. Again, however, it is for a jury to determine whether an intent to save the wrongdoers from their own fraud is equivalent to an intent to benefit the corporation.
[5] For the same reasons, we also hold that genuine issues of material fact preclude a summary finding that Phar-Mor's officers were acting within the scope of their employment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262412/ | 306 A.2d 844 (1973)
Frances M. NARDOLILLO
v.
The BIG G SUPERMARKET, INC.
No. 1929-Appeal.
Supreme Court of Rhode Island.
July 11, 1973.
*845 Louis A. Geremia, Providence, for petitioner.
Higgins & Slattery, William C. Dorgan, Providence, for respondent.
OPINION
ROBERTS, Chief Justice.
This is an employee's original petition for benefits under the Workmen's Compensation Act. General Laws 1956 (1968 Reenactment) § 28-29-1. After hearing, the trial commissioner found that the petitioner, as of February 24, 1972, became totally incapacitated as a result of an injury sustained while employed by the respondent on January 15, 1972. The trial commissioner entered a decree ordering the respondent to pay the petitioner compensation for total incapacity from February 24, 1972, to March 7, 1972, and compensation for partial incapacity from March 7, 1972, at a rate not to exceed the maximum amount. Upon the respondent's appeal, the full commission affirmed the findings and orders contained in the decree of the trial commissioner. The respondent is now prosecuting in this court an appeal from the decree of the full commission.
*846 The respondent is not challenging the propriety of the findings as to total and partial incapacity. Rather, it raises a single question which, in our opinion, is dispositive of the issue here raised. The respondent is contending that an employee who refuses to accept beneficial rehabilitative employment which he is capable of performing is not entitled to partial compensation, and consequently § 28-33-18, as amended, has no application in this case.
The respondent relies principally upon the language in our prior decisions, particularly School House Candy Co. v. Ferrucci, 88 R.I. 109, 113, 143 A.2d 304, 306 (1958), which imposed a "* * * duty * * * [on the] employee to attempt in good faith to perform the specific work which has been offered her by the employer and which the commission has found she is able to do." See also Narragansett Hotel, Inc. v. Mallozzi, 81 R.I. 389, 103 A.2d 355 (1954); Interlaken Mills v. Poling, 81 R.I. 309, 102 A.2d 710 (1954); Tool & Findings Co. v. Duffy, 81 R.I. 61, 98 A.2d 849 (1953). Each of those cases arose in the context of the Act before its substantial revision in 1969.
Prior to the 1969 amendments, § 28-33-18 provided a rather complex system for determination of partial benefits. The amount of the partial weekly compensation was computed as 60 per cent of the difference between the employee's average weekly wages, earnings, or salary before the injury and the amount he was able to earn weekly after the injury, not to exceed $22. However, two provisos supplemented this formula. The first provided that if the employee was unable to obtain work after the injury, the commission was empowered to fix the dollar value of the employee's weekly earning capacity in order to compute the amount to be paid as partial compensation. The second proviso required payment of compensation for total incapacity where the employee demonstrated a bona fide effort without success to find work he was able to perform, and the employer was unable to demonstrate that he was able to provide such work or that suitable work was available elsewhere. Both provisos require difficult factual determinations by the trial commissioner.
Experience under this provision apparently demonstrated that many employers regarded a partially incapacitated employee as a bad risk and, therefore, refused to hire him. In an effort to remedy some of the difficulties which arose under § 28-33-18 and to create a more equitable approach, that section was changed substantially in 1969. Now that section simply provides that partial weekly compensation shall be 60 per cent of the difference between the average weekly pre-injury wages, earnings, or salary and the weekly earnings after the injury. Both provisos were eliminated. If a partially incapacitated employee has not returned to work, his post-injury average weekly compensation is zero.
We have held that the amendment strips the commission of any authority to fix an earning capacity for a partially incapacitated employee who has not actually worked since his injury. Podborski v. William H. Haskell Mfg. Co., 109 R.I. 1, 9-10, 279 A.2d 914, 918 (1971). It is the clear intent of the Legislature, we said in Podborski, that a partially disabled employee who has not returned to gainful employment as a result of work-connected injuries receive the same compensation as is payable for full incapacity. Furthermore, the 1969 amendment has eliminated the bona fide search for suitable work requirement of the second proviso. Desjardin v. Miller Electric Co., 110 R.I. 184, 185, 291 A.2d 420, 421 (1972); Davol Rubber Co., v. Lafoe, 108 R.I. 499, 506, 277 A.2d 128, 132 (1971). With the elimination of the second proviso, there is nothing in § 28-33-18 which would require an employee, while he remains partially incapacitated, either to seek work which he is capable of performing or to accept such work from his former employer.
The respondent obviously is of the opinion that the rule set out in School House Candy Co. v. Ferrucci, supra, requires as a *847 condition precedent to receiving any compensation that the partially incapacitated employee attempt in good faith to perform work offered by the employer. In so arguing, however, we think that respondent fails to grasp the significance of the amendment to § 28-33-18 in 1969. There is no doubt that the decision in that case was a sound interpretation of § 28-33-18 as it stood prior to its amendment in 1969. It does not follow, however, that that section as amended in 1969 imposes such a duty on the partially incapacitated employee.
The rights that accrue to an employee or an employer under the Workmen's Compensation Act are purely statutory, Podborski v. William H. Haskell Mfg. Co., supra, and this is equally true with respect to obligations imposed upon an employee or an employer by the Act. The determination of policy with respect to the Act is entirely within the legislative prerogative. In amending § 28-33-18 in 1969, the Legislature intended to remove the bona fides of the employee entirely from the determination of the amount of compensation to be paid for partial incapacity. We are persuaded from an examination of that section, as amended, that the Legislature intended to declare its policy to be that so long as a partially incapacitated employee remains out of work, whatever the reason, he is entitled to the compensation ordinarily paid for total incapacity.
It is true that we have frequently said that one of the purposes of compensation legislation is to afford relief and provide rehabilitation for those who are casualties of the modern industrial world. Izzi v. Royal Electric Corp., 100 R.I. 380, 216 A.2d 363 (1966); Warwick Brass Foundry Co. v. Universal Winding Co., 97 R.I. 474, 199 A.2d 29 (1964). However, as we said in Geigy Chemical Corp. v. Zuckerman, 106 R.I. 534, 541, 261 A.2d 844, 848 (1970), the primary object of the Workmen's Compensation Act is to provide economic assistance to an employee who has been injured and has thereby suffered a loss of earning capacity. The overriding thrust of the legislation is to impose upon an employer the burden of taking care of the casualties occurring in his employment and thus preventing the injured employee from becoming a public charge.
In short, the Workmen's Compensation Act is humane legislation designed to afford a modicum of economic shelter to one who has sustained an industrial injury. We are constrained, then, to hold that the purpose of the Legislature in amending § 28-33-18 was to provide a partially incapacitated employee, who for whatever reason is not receiving any wage, with compensation equal to that paid for total incapacity. We feel that the establishment of such policy is consistent with the fundamental purpose of workmen's compensation.
The appeal of the respondent is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the Workmen's Compensation Commission for further proceedings.
JOSLIN, J., did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262413/ | 900 F.Supp. 419 (1995)
PUBLIX SUPERMARKETS, INC., Plaintiff,
v.
UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO & CLC, a voluntary, unincorporated labor organization, and United Food & Commercial Workers Local 1625, an affiliated labor organization, and others, unnamed persons JOHN DOES, Defendants.
No. 94-1891-CIV-T-17C.
United States District Court, M.D. Florida, Tampa Division.
April 17, 1995.
*420 James Paul Hahn, Hahn, Breathitt, Watson & Miller, P.A., Lakeland, FL, John-Edward Alley, Alley & Alley, Chartered, Tampa, FL, for plaintiff.
Howard S. Susskind, Sugarman & Susskind, P.A., Miami, FL, for defendants.
ORDER OF REMAND
KOVACHEVICH, District Judge.
This cause is before the Court on Plaintiff's Motion to Remand this cause (Dkt. 12), filed December 27, 1994, and response thereto (Dkt. 17), filed January 12, 1995.
The Complaint (Dkt. 2) in this cause was filed in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida. The cause was removed to this Court by Defendants (Dkts. 1, 7). Defendants predicate removal jurisdiction on 28 U.S.C. § 1441, § 1446.
BACKGROUND INFORMATION
Plaintiff is a Florida corporation engaged in the retail sale of consumer goods through its approximately 425 stores. Plaintiff alleges that Defendant United Food and Commercial Workers Local 1625, acting as an agent for Defendant United Food and Commercial Workers International Union, AFL-CIO, CLC, engaged in trespassing at over 250 of Plaintiff's stores. Plaintiff also alleges that Defendants have conspired to commit additional trespasses in the future "for the purpose of disrupting, interrupting and harming Plaintiff's business and property and to deny Plaintiff free use of its property."
Plaintiff seeks an injunction enjoining Defendants and their non-employee union agents from entering Plaintiff's retail stores in Florida. In the Motion to Remand, Plaintiff asserts that the Court has no subject matter jurisdiction over this action, and that remand is required. Plaintiff has also requested that the Court enter an award of attorney's fees for the expenses necessitated by Defendant's improper removal of the instant action to this Court.
DISCUSSION
I. PLAINTIFF'S MOTION FOR REMAND
Defendant argues that the Court has subject matter jurisdiction under 28 U.S.C. § 1441, § 1446 pursuant to Subsection 301(b) of the Labor-Management Relations Act (codified at 29 U.S.C. § 185(b)). Subsection 301 states, in part:
(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
(b) Any labor organization which represents employees in an industry affecting commerce ... and any employer whose activities affect commerce ... shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States....
29 U.S.C. § 185 (emphasis added).
Subsection 301(b) must be read within the context of the entire subsection. Any other reading is without authority. It is clearly established that a suit engendering § 301 "must be a suit either for violation of a contract between an employer and a labor organization representing employees in an industry affecting commerce or for violation of a contract between such labor organizations." Wooddell v. International Brotherhood of Electrical Workers, Local 71, et al., 502 U.S. 93, 98, 112 S.Ct. 494, 498, 116 L.Ed.2d 419. There is no employer-union contract or agreement of any kind involved here.
*421 Section 301 does not, as Defendant argues, preempt every suit involving unions or unionized employees or strip state courts of their standard jurisdiction. Tisdale v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 704, 25 F.3d 1308, 1310 (6th Cir.1994). In Tisdale, the United States Court of Appeals for the Sixth Circuit recalled that "[f]ederal law has monopolized certain aspects of labor relations, but where a suit does not center on the terms of a labor contract ... it is not preempted because it is not within the area of labor relations which Congress has nationalized ..." A suit bearing no association to a collective bargaining contract is not preempted by § 301.
Further, federal preemption does not alter the procedural rules which govern removal:
[T]he presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount polices embodied in the well-pleaded complaint rule that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court. When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal is at the defendant's option. But, a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. If a defendant could do so, the plaintiff would be master of nothing. Congress has long since decided that federal defenses do not provide a basis for removal.
Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 2432-33, 96 L.Ed.2d 318 (1987).
In this case, Plaintiff's Complaint raises a claim for trespass under § 810.08, Fla.Stat., and seeks an injunction to prevent future trespasses. Applying the Supreme Court's reasoning in Caterpillar, the Court finds that Plaintiff's state law claim may not be removed because it emanates from a separate body of state substantive rights, and the claim does not raise any legal cause that has been preempted under federal labor law.
The Court finds that Subsection 301(b) of the Labor-Management Relations Act has no application in this case. Further, even if this case could somehow be construed to fall within the purview of § 301, the case would still not be removable to this Court for the reasons discussed in Caterpillar. The Court lacks subject matter jurisdiction. The Notice of Removal is defective and remand is proper.
II. PLAINTIFF'S MOTION FOR ATTORNEY'S FEES
The Motion for Attorney's Fees is regulated by 28 U.S.C. § 1447(c), as amended in 1988, which provides that:
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgement it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal....
The award of attorney's fees and costs under this section is completely discretionary with the trial court. IMCO USA, Inc. v. Title Insurance Company of Minnesota, 729 F.Supp. 1322 (M.D.Fla.1990).
Prior to the amendment of § 1447(c) in 1988, a showing of bad faith was required before attorney's fees would be awarded under this section since attorney's fees were not expressly provided for under the statute. Schmidt v. National Organization for Women, 562 F.Supp. 210 (N.D.Fla.1983). In addition, the former § 1447(c) required a finding that the Notice of Removal was improvidently filed before costs could be awarded. Id. The 1988 amendment to this statute, however, expressly provided for the award of attorney's fees and eliminated the requirement *422 that a Notice of Removal be improvidently filed before costs could be awarded. In Liebig v. DeJoy, 814 F.Supp. 1074 (M.D.Fla. 1993), this Court adopted the standard applied by two Circuit Courts that a showing of bad faith is no longer necessary as a predicate to the award of attorney's fees, since the intent of the statute is to reimburse Plaintiffs who have incurred expenses in attacking improper removals. Moore v. Permanente Medical Group, Inc., 981 F.2d 443 (9th Cir. 1992); Morgan Guaranty Trust Company of New York v. Republic of Palau, 971 F.2d 917 (2d Cir.1992).
Although Defendant may have acted in good faith in filing the Notice of Removal, the Court has already determined that removal was improper because federal subject matter jurisdiction is patently lacking. Therefore, as a matter of fairness, Plaintiff is entitled to recover from the Defendants the actual amount of the expenses incurred as a result of the improper removal of this action, including attorney's fees, subject to the approval of such award by this Court. Accordingly, it is
ORDERED that the Order of December 2, 1994 (Dkt. 7) be vacated; Plaintiff's Motion to Remand is GRANTED; and the Clerk of the Court for the Middle District of Florida is directed to transfer this case to the Circuit Court in and for Polk County, Florida. Plaintiff's Motion for Attorney's Fees is GRANTED, and Plaintiff shall have ten (10) days from this date to submit to this Court a Bill of Costs and Attorney's Fees, indicating the actual expenses and attorney's fees incurred by the Plaintiff with respect to resisting the improper removal of this action. Defendant shall have five (5) days to respond to the request.
DONE and ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/765538/ | 186 F.3d 770 (7th Cir. 1999)
United States of America, Plaintiff-Appellee,v.Thomas D. Manske, Defendant-Appellant.
Nos. 98-4245, 99-1850
United States Court of Appeals, Seventh Circuit
Argued April 7, 1999Decided July 9, 1999
Appeals from the United States District Court for the Western District of Wisconsin. No. 98-CR-51-S--John C. Shabaz, Chief Judge.
Before Flaum, Ripple and Rovner, Circuit Judges.
Flaum, Circuit Judge.
1
In 1996, Thomas Manske was convicted by a jury of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. sec. 846, and sentenced to 151 months in prison. Manske appealed, seeking a new trial based on limitations the district court placed on his cross-examination of the government's key witnesses. Although we cannot definitively conclude that allowing him to make the prohibited inquiries would have changed the jury's verdict, the exclusion of this information undermines our confidence in the outcome, and thus, Manske's conviction is reversed.1
Facts
2
The defendant was indicted as part of an on- going investigation of cocaine trafficking in northern Wisconsin. Before Manske's trial, the government had persuaded Stephen Pszeniczka and Daniel Knutowski to plead guilty to charges including distribution of cocaine, and, with their cooperation, successfully prosecuted Patrick Menting and Dennis Tushoski for similar crimes. See United States v. Menting, 166 F.3d 923 (7th Cir. 1999); United States v. Knutowski, 165 F.3d 33 (7th Cir. 1999) (unpublished order). Pszeniczka and Knutowski fingered Manske as their drug source--a contention Manske vigorously denied. At Manske's trial, both men testified that between 1993 and 1996, the defendant was their primary supplier of cocaine. They claimed that Manske delivered one to two ounces of cocaine to them at a time, either to Knutowski's home, or at various other locations, including a McDonald's parking lot. According to Knutowski, these deliveries occurred nearly every Wednesday over the course of three years. Pszeniczka and Knutowski also testified that on two occasions, they received cocaine from Manske at his home. In sum, the two painted a fairly detailed and consistent picture of their dealings with the defendant. Pszeniczka and Knutowski alleged that Manske sold them 5.78 kilograms of cocaine during the three years he was their supplier.
3
This testimony made up the bulk of the government's case, with the remainder supplied by tertiary witnesses. One of them, Mary Colburn, testified that on three occasions she either saw Manske deliver cocaine to Pszeniczka and Knutowski, or was nearby when such drug transactions occurred. Another witness, Jackie Campbell, had no direct knowledge of Manske's involvement in drug deals, but was able to provide inculpatory details against the defendant that were consistent with Knutowski and Pszeniczka's story. The government had no physical evidence to corroborate the witness testimony against Manske. There were no surveillance recordings implicating Manske, no cocaine found on his person or property, no money the government could trace to illegal drug transactions and no admissions by the defendant. The government presented telephone records showing calls between Manske and Knutowski, but because their lines were not wire-tapped the substance of the conversations was not identifiable.
4
Manske testified on his own behalf, acknowledging that he knew Knutowski and Pszeniczka. He also confessed to having engaged in illegal sports betting and bookmaking with them. According to Manske, the weekly Wednesday night meetings and phone calls between him and the two principal witnesses against him involved these gambling related activities. Like the government, Manske's case relied on oral testimony; he had no physical or documentary evidence with which to exonerate himself. Thus, his defense strategy hinged entirely on destroying the credibility of the witnesses against him. Manske was able to impeach Knutowski, Pszeniczka, Colburn and Campbell with the fact that they were receiving leniency from the government in return for their testimony, and with their extensive history of drug use and drug dealing. Manske also sought to cross-examine Pszeniczka about past acts of witness intimidation which the government acknowledged had taken place, arguing that these acts were probative of Pszeniczka's truthfulness. The defendant additionally expressed his desire to cross-examine other witnesses to explore whether they were biased against him and in favor of the government because they had previously been threatened by Pszeniczka or knew of these threats. Pursuant to a pre-trial motion in limine the district court barred the defendant from inquiring into these areas, thus keeping this evidence from the jury. Thus, the defendant was not able to delve into acts of witness intimidation and potential subornation of perjury which Pszeniczka had previously engaged in, nor was he able to ask Colburn and Campbell about occasions unrelated to his trial when Pszeniczka allegedly intimidated them and others into lying to law enforcement and in judicial proceedings.
5
After a three day trial, the jury retired for deliberations. Although the jury sent the district court a note that it was stalemated, it eventually convicted the defendant. Manske appealed, primarily on the grounds that the district court's limitations on his cross- examination of government witnesses were improper.
Motion in Limine
6
Because it is at the center of the defendant's appeal, we now return to the government's pre- trial motion in limine, and give it a fuller explication.
7
No doubt sensing that the defendant would be eager to inquire into Pszeniczka's background, the government made a pre-trial motion in limine to prevent Manske from exploring certain areas at trial. This motion sought to block the defendant from introducing any evidence relating to threats Pszeniczka made to various witnesses who testified in a related case, United States v. Tushoski, CR-96-83-C (W.D. Wisc. 1997).2 The motion asked for limitations on Pszeniczka's cross-examination as well as that of Colburn and Campbell. Although the government did not identify the particular threats it sought to exclude, it is apparent from reading the motion in limine and the defendant's response to the motion which included the relevant portions of the transcript in Tushoski, that the parties and the court were familiar with the subject matter.
8
What the government sought to keep out was mention of roughly half a dozen incidents where Pszeniczka, or people acting on his behalf, allegedly threatened potential witnesses in an effort to keep them from incriminating him. (Collectively, this is referred to as "the threat evidence.") For example, an associate of Pszeniczka, Jeffrey Matter, gave a sworn statement averring that after having told the police that Pszeniczka was involved in drug dealing, Pszeniczka threatened him over the phone, and allegedly told him "if you don't change your statement you might as well be dead. Either I'll kill you or my friends will." As his statement indicates, after the threat, Matter changed his story. When Pszeniczka found out about the changed story, he supposedly called Matter and said "if you go back to what you first said, I'll put a cap in your head." Similarly, another individual, Leslie Ostrowski, had testified in a previous trial that Pszeniczka confronted her and verbally threatened her for speaking to the police about his cocaine activities.
9
Yvonne Pospahala, who was also familiar with Pszeniczka, told a Wisconsin law enforcement officer that Pszeniczka came by her house asking for Mary Colburn on one occasion, and, when Pospahala told Pszeniczka that Colburn had left town for fear of him, Pszeniczka allegedly said "good, if [Colburn] hadn't [she'd] be dead." Don Peeper, a customer and associate of Pszeniczka, had previously testified that he lied before a grand jury at Pszeniczka's urging and because of thinly veiled threats Pszeniczka leveled at him. In addition, the defendant wanted to question Jackie Campbell about Pszeniczka's statements to her about his mob connections and his willingness to use violence against people who "crossed him." A final piece of relevant threat evidence, which the government alluded to in its own trial against Pszeniczka, was an incident where Colburn and her boyfriend Harold Johnson (who testified at Manske's trial), found dolls with ropes around their necks hanging from a tree in Ms. Colburn's front yard adjacent to signs saying "Narcs Live Here" and "You're Dead." Apparently Colburn and Johnson took these to be threats from Pszeniczka warning them against their impending cooperation with the government against him.3
10
The government's argument for limiting cross- examination of Pszeniczka was that under Fed. R. Evid. 608(b),4 this evidence related to specific instances of conduct not probative of truthfulness or untruthfulness. Rather than dealing with truthfulness (or a lack thereof), the government argued that the threat evidence only went to show Pszeniczka's propensity for violence, and therefore could not be admitted. Manske responded by asserting that threats calculated to encourage people to break the law were in fact probative of Pszeniczka's truthfulness or untruthfulness. As to the bias evidence, the government argued that it was irrelevant and a waste of time. The defendant countered that the threat evidence supported his theory that the prosecution's case was based on an elaborate set-up relying on Pszeniczka's testimony and bolstered by other witnesses telling similar tales because of their fear of contradicting him.
11
The district court granted the government's motion in limine. The trial judge observed that FRE 608(b) did not allow Manske to use the threat evidence to cross-examine Pszeniczka because the threats "[did] not impact upon his credibility." The court also stated that "the fact that there was a threat offered by Pszeniczka does not go to his character for truthfulness," but rather, to the "character [for] violence and [Pszeniczka's] threatening nature." Viewed in this light, the district court held that the evidence Manske wished to use to cross-examine Pszeniczka was irrelevant. The district court also prohibited Manske from inquiring into other witnesses' potential bias in favor of Pszeniczka, because it believed that there was no link between the threat evidence and any fear one of the witnesses might have had.
Analysis
12
The defendant raises a number of issues on appeal, related both to his conviction and to his sentence; however, for our purposes, the only relevant question focuses on the government's pre-trial motion in limine. Because we reverse the district court's ruling on that motion, we need not address the defendant's other arguments.5
The Pszeniczka Cross-Examination
13
Federal Rule of Evidence 608(b) is a rule of limited admissibility. Other than certain criminal convictions allowed into evidence by FRE 609, a witness's specific instances of conduct may only be raised on cross-examination if they are probative of truthfulness or untruthfulness. As noted, the district court felt that the threat evidence was probative of Pszeniczka's tendencies toward violence, and had no bearing on his probity or lack thereof. The defendant argues that these threats deal with more than mere violence--Pszeniczka's willingness to threaten violence was a means to achieve an end of dissuading people from testifying truthfully in legal proceedings--and thus clearly implicates Pszeniczka's truthfulness.
14
As a leading treatise notes, there are three ways of looking at 608(b): a broad one, a narrow one, and a middle one. See Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, 154-55 (2d ed. 1994). The broad view holds that "virtually any conduct indicating bad character indicates untruthfulness, including robbery and assault." Id. This view is untenable, as it would open the door to a potentially mind-numbing array of questions on every cross-examination. It would also "pave the way to an exception [to 608(b)'s limitations] that swallows the rule . . . [because it] adopts the hypothesis that all bad people are liars, which is an unverifiable conclusion." Joseph M. McLaughlin, Weinstein's Federal Evidence, sec. 608.12[4][c] 608-39 (2d ed. 1999). The narrow reading of the rule, which the government essentially urges on us, considers a crime as bearing on veracity only if it involves falsehood or deception, such as forgery or perjury. Mueller & Kirkpatrick at 154. The middle view "is that behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity." Id. While this generally does not cover "personal crimes" involving violence, it does not necessarily exclude all such acts. Id. The threat evidence would clearly be allowed in under the broad view, and probably excluded under the narrow one. Whether it would fit under the middle view is a more vexing question.
15
Mueller and Kirkpatrick note that "[u]nder some circumstances, it seems wise to allow questions that would not be embraced by the more focused view but would pass muster under the middle view, and there appears to be a trend in this direction [among courts]." Id. at 159-160. Their treatise discusses a circumstance nearly identical to this one, where although the specific instance of conduct may not facially appear relevant to truthfulness, closer inspection reveals that it bears on that issue. "[W]hen [a party's question is] specific and well-founded, the cross-examiner should be allowed to ask . . . questions on acts better described as dishonest than false. . . . [including questions related to] concealing or frightening off witnesses or suborning perjury (even in unrelated cases.)" Id. at 160-161 (emphasis added).
16
We have not had many occasions to address the scope of 608(b); however, when we have our approach has been closest to the middle view. For example, in Varhol v. National RR Pass. Corp., we rejected the plaintiff's contention that 608(b) only allowed questioning about acts involving fraud or deceit, such as perjury, subornation of perjury, false statements, embezzlement and false pretenses. 909 F.2d 1557, 1566 (7th Cir. 1990) (en banc) (per curiam). We held that although "receiving stolen goods [fell] into a gray area," the plaintiff could be questioned about buying stolen railroad tickets because "people generally regard stealing (and receiving and using stolen property) as acts that 'reflect adversely on a [person's] honesty and integrity.'" Id. (quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)); see also United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996) (under 608(b) witness could be cross-examined regarding prior thefts for which he was not charged because "acts of theft . . . are, like acts of fraud or deceit, probative of a witness's truthfulness or untruthfulness."); United States v. Zizzo, 120 F.3d 1338, 1355 (7th Cir. 1997) (cross- examination about defendant's receipt of stolen tires not precluded under 608(b)); United States v. Wilson, 985 F.2d 348, 351 (7th Cir. 1993) (allowing questions on defendant's failure to file federal income tax returns and bribery as probative of untruthfulness under 608(b)); United States v. Fulk, 816 F.2d 1202, 1206 (7th Cir. 1987) (improper for district court to prevent questioning on whether defendant lost his chiropractor's license because of deceptive practices). In Varhol, the full court observed that "if the witness has no compunctions against stealing another's property . . . it is hard to see why he would hesitate to obtain an advantage for himself or a friend in trial by giving false testimony. . . . As a practical matter, it is difficult to distinguish between untruthfulness and dishonesty." 909 F.2d at 1567 (per curiam).
17
Although the factual context of Varhol differs, the relationship between the specific acts of misconduct and truthfulness is, if anything, more compelling in this case. Threatening to cause physical harm to a person who proposes to testify against you is at least as probative of truthfulness as receiving stolen tires or a stolen railroad ticket. Also, because Stephen Pszeniczka had no compunction about intimidating potential witnesses in previous legal proceedings, "it is hard to see" why he would hesitate to obtain an advantage for himself in Manske's trial by giving false testimony against Manske. The advantage he hoped to obtain, it appears, was leniency from the government in return for his testimony. Pszeniczka had already been given ten years off of his sentence for cooperation in a prior prosecution, and acknowledged that if the remaining thirty years of his sentence was not reduced, he would likely die in prison. Because of the sum of these facts, we conclude it was legally erroneous for the district court to conclude that the threat evidence was irrelevant under 608(b).6
18
The government urges us to reject the defendant's argument that this was error because the district court is entitled to great deference. See FRE 608(b) (specific instances of conduct may be inquired into "in the discretion of the court."). Recognizing that a district court's decision as to 608(b) is ordinarily reviewed for an abuse of discretion, United States v. Nelson, 39 F.3d 705, 709-10 (7th Cir. 1994), does not change our view of this matter. The usual deference does not apply when a district court incorrectly categorizes the nature of the evidence.7 Here, the trial court construed the threat evidence too narrowly: its error was in perceiving the threats as probative only of violence (which--if correct--would have been a proper reason to grant the government's motion in limine). However, because the threat evidence also implicated Pszeniczka's truthfulness, the government's motion should have been denied. Thus, this is not the prototypical case where we give deference to a district court's decision to exclude evidence because it was repetitive, see United States v. Covelli, 738 F.2d 847, 856 (7th Cir. 1984), unfairly prejudicial, see United States v. Davis, 838 F.2d 908, 916 (7th Cir. 1988), or might cause confusion. See United States v. Fruth, 36 F.3d 649, 653 n.7 (7th Cir. 1994).8
19
The government maintains that even if the district court's decision was erroneous, the error was harmless. While we might have accepted this argument if 608(b) was the only issue the defendant raised on appeal, because of the inter- relatedness of Manske's two claims, we cannot assess the level of harm this error caused in a vacuum. Instead, we can only determine whether it was harmless in conjunction with our discussion of the district court's ruling prohibiting the defendant from using the threat evidence to probe the biases of other witnesses.
Limitations on Establishing Witness Bias
20
The defendant's theory of the case was that Pszeniczka fabricated his testimony to frame him, and that other witnesses--including Mary Colburn and Jackie Campbell--corroborated this false story because they feared what Pszeniczka or his associates would do to them if they contradicted him. Had the district court not barred him from doing so, Manske hoped to probe this matter through cross-examination, thus undermining these other witnesses' testimony.
21
Unlike the Rule 608(b) issue discussed above, no federal rule of evidence is directly pertinent. However, it is well established that a witness may be cross-examined for bias. We have noted that "bias is one of five acceptable methods of attacking a witness's credibility." United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir.), cert. denied, 117 S.Ct. 392 (1996); see United States v. Abel, 469 U.S. 45, 50 (1984) (despite absence of explicit mention of bias in federal rules, bias is "permissible and established basis of impeachment."). Indeed, it is the "quintessentially appropriate topic for cross-examination." Bachenski v. Malnati, 11 F.3d 1371, 1375 (7th Cir. 1993). Bias is always relevant, and parties should be granted reasonable latitude in cross-examining target witnesses. United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir. 1978). This latitude is wide enough, we believe, to encompass the case before us, where the defendant's theory was that the witnesses were biased against him because they feared for their personal safety, even though the incidents upon which they based that fear arose outside the context of this case. See Muller and Kirkpatrick, Federal Evidence, 401-02 (2d ed. 1994) ("[P]arties should be given considerable leeway, by wide-ranging inquiry on cross . . . . Proof of bias may properly show the following . . . fear by the witness for his [or her] personal safety or the safety of friends or family, relating to the parties or issues in suit."). See also Abel, 469 U.S. at 52 ("Bias may be induced by a witness's likes, dislikes, [or] fear . . . or by the witness's self-interest."); United States v. Shyllon, 10 F.3d 1, 3-4 (D.C. Cir. 1993) (District court erred when it prohibited defendant from calling a witness (Mr. Tessamichael) and cross-examining a government investigator about whether investigator had attempted to intimidate Tessamichael into testifying a certain way--even though the government never called Tessamichael at trial: "[s]urely testimony that the investigator had intimidated Tessamichael bears on the probability that he had also intimidated the government's witnesses.") In reaching our conclusion, we emphasize how closely this point and the 608(b) issue are entwined. If the bias question arose alone and was not, in combination, so central to the case, we might not consider it relevant.
22
As it did regarding the 608(b) issue, the government argues that even if the district court construed the defendant's right to inquire into witness bias too narrowly, its decision is saved by the deferential standard we use in reviewing the district court's limitations on cross- examination. See United States v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995), cert. denied, 516 U.S. 1131 (1996) (trial court's restrictions on cross- examination normally reviewed for abuse of discretion). Indeed, this court gives district courts "wide latitude" and "allows [them] to set reasonable limits on the scope and extent of cross-examination based on concerns about . . . harassment, prejudice, confusion of the issues, the witness's safety [and] marginal[ ] relevance." United States v. Graffia, 120 F.3d 706, 712 (7th Cir. 1997). However, when a restriction impacts a defendant's Sixth Amendment right to confrontation, review is de novo. United States v. Scott, 145 F.3d 878, 887-88 (7th Cir. 1998). The line between de novo and deferential review is marked by, on one side "the core values of the confrontation right," and on the other "more peripheral concerns which remain within the ambit of the trial judge's discretion." Graffia, 120 F.3d at 712.
23
As we noted, exposing witness bias is at the "core" of the confrontation right. However, the Sixth Amendment is not implicated every time a limit is placed on a defendant's right to expose bias. When a defendant is allowed to expose an individual's particular motive to lie, "it is of peripheral concern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point down to the jury." United States v. Sasson, 62 F.3d at 882. If, however, "the defense is completely forbidden from exposing the witness's bias or motive to testify," then the constitution is implicated. Id. at 883 (footnote omitted). When such a prohibition occurs, there may be insufficient information presented to the jury for its appraisal of a witness. Id. In this case the district court entirely prevented the defendant from asking Colburn and Campbell about their fear of Pszeniczka and its relationship, if any, to their testimony against Manske. This complete ban cut off an important avenue for the defendant to expose those individual's alleged bias and motive to testify as they did, leaving the jury short of potentially essential information.
24
The government only makes a perfunctory legal argument on this issue. Nevertheless, to satisfy our judicial obligations, we must examine relevant precedent to ensure the correctness of our conclusion. A recent case in this area, United States v. Scott, 145 F.3d 878 (7th Cir. 1998), would, at first blush, appear to bolster the government's general contention that no Sixth Amendment violation occurred. However, careful analysis reveals important distinctions. In Scott, the district court allowed the defendant to ask a litany of questions about a government witness's potential biases, but limited her ability to ask questions about the witness's past drug use. Id. at 887. The defendant argued on appeal that these limitations deprived her of a fair trial, and that her conviction should be reversed. Id. We held that "because the district court allowed Scott's attorney to expose [the witness's] motives and biases," no Sixth Amendment violation occurred. Id. at 888. However, the limits the district court imposed on cross-examination in Scott were far less onerous than they are here. Importantly, the district court allowed a number of questions about the defendant's drug use, only imposing restrictions on questions which were patently irrelevant. Id. at 887-88. See also United States v. Aguilar, 948 F.2d 392, 397 (7th Cir. 1991) (no Sixth Amendment violation because only one question was blocked on cross-examination, and the next question "appears to have elicited much of the same information. Any bias of [the witness] was brought out on cross-examination."); United States v. Muelbl, 739 F.2d 1175, 1185-86 (7th Cir. 1984) (despite limitations on cross- examination, it was "apparent that defense counsel was able to establish [the defendant's] defense, that is, the apparent motives and biases of [the witnesses against him].") Given the particular facts before us, none of these cases dictate a different result.
25
As an alternative argument, the government asserts that the district court's ruling was correct because Manske did not lay a "proper foundation" for asking the bias-related questions. At trial, when Manske renewed his objection to the district court's limitations on his cross-examination of Colburn and Campbell, the trial judge reaffirmed his earlier decision, noting that because the defendant had not established a clear nexus between the threats and his theory of the case by asking specific kinds of questions, cross-examination could not proceed into this area. However, we find no support for such a requirement in our case law.
26
Indeed, one commentator has expressly noted "[t]here are no special foundational requirements for bias evidence; the [party] may prove any fact or event logically relevant to show bias." Erwin J. Imwinkelreid, Evidentiary Foundations, 164 (4th ed. 1998). As we have already noted, the questions Manske sought to ask were "logically relevant to show bias." Thus, the only "necessary" questions the defendant need ask are the "who, what, why, where and when" of the specific incidents he claims give rise to bias. Id.9 If accepted, the government's argument in its brief that the defendant needed to explicitly ask questions like: "are you presently afraid of Steve Pszeniczka?" or "do you feel pressured to testify a certain way because of Steve Pszeniczka?" would dramatically limit the effectiveness of many cross-examinations. See Id. at 164-65 (Most experienced counsel avoid attempts to obtain a direct concession from a witness that he is biased, because the witness rarely makes the concession, and "in the attempt to force the concession, the counsel might become argumentative. Experienced counsel prefer to invite the jury to draw the inference of bias during closing arguments."); see also Thomas A. Mauet, Fundamentals of Trial Techniques, 254-59 (2d ed. 1988) (cross-examiner should not ask directly about bias, but instead should make point through suggestion that a witness has a motive or bias to lie). Thus, since such a "foundation" was not required, its absence cannot be used as a reason to deny the defendant the opportunity to ask these questions about bias.
27
As with the 608(b) issue, the government claims that any error was harmless. A constitutionally improper denial of cross-examination is subject to harmless error analysis, and does not necessarily undermine the integrity of a jury's verdict. United States v. Scott, 145 F.3d at 888 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). However, as we noted above, because the two errors are inextricably connected, the errors cannot be analyzed separately--instead we must examine their cumulative effect.
28
The Cumulative Effect of the District Court's Rulings
29
The government argues that even if, as we have found, the trial court erred in its evidentiary rulings, the errors were harmless. To determine whether a trial judge's rulings were harmless, this court inquires into: the importance of a witness's testimony in the government's case; the presence or absence of corroborating or contradictory evidence; and the extent of cross- examination permitted during the trial. We also must assess the overall strength of the prosecution's case against the defendant. Scott, 145 F.3d at 888 n.4 (citing Van Arsdall, 475 U.S. at 684).
30
The most important issue factor in this case is the centrality of "a witness's testimony in the government's case." Here, the district court's errors impacted the cross-examination of three of the government's key witnesses. Because of the lack of physical evidence against the defendant, the jury's assessment of Pszeniczka's credibility had to have been critical to its verdict. As we recently noted, "when the credibility of a witness plays a pivotal role in a conviction, it may become an issue upon which we will reverse [that] conviction." Crivens v. Roth, 172 F.3d 991, 998 (7th Cir. 1999). In Crivens, we observed that a "propensity to lie to police officers, prosecutors and even judges" is especially damaging to a witness's credibility. Id. There, one of the state's key eye-witnesses had such a propensity, which the fact-finder in the defendant's trial did not know about. Id. Crivens held that if the witness's propensity for lying to these figures had been known, "it would have perhaps given [the fact-finder] the reason it did not find to decide that [the witness] might have been lying again." Id. at 999. If the fact-finder had reached such a conclusion, "the state's case would have been severely damaged" and a different outcome may have resulted. Id.
31
We believe that a bent toward threats and intimidation of potential witnesses in a judicial proceeding (or those considering cooperating with law enforcement) is as serious as the tendencies noted in Crivens. We cannot say for certain that, on its own, this would have been enough for the jury to change its mind. However, Pszeniczka's threatening actions could plausibly have biased other witnesses who were either targets of those threats, or who were familiar with them. Because both strands of this evidence were kept from the jury, we lack confidence in the ultimate soundness of Manske's conviction. We think it possible that this information could have given the jury strong grounds to find that Pszeniczka was lying, and that the other witnesses' testimony was suspect. As in Crivens, such a conclusion would have badly damaged the government's case, potentially leading to a different outcome. Accordingly, in these circumstances, this factor tilts heavily in favor of finding that the error was not harmless.
32
Another issue we must address is the presence or absence of corroborating evidence. Scott, 145 F.3d at 888. In this case, aside from the testimony of witnesses whose cross-examinations we have held were improperly restricted, the evidence is limited. Thus, this is far different from our recent decision in United States v. Spann, where we found that if the district court had erred in limiting cross-examination of a prosecution witness, it was harmless. 170 F.3d 798, 803 (7th Cir. 1999). There, in addition to having a witness testify that he purchased drugs from the defendant, the government presented evidence through two police officers about their "extensive monitoring" of the defendant's drug transactions. Id. One of the officers testified that through a drug buyer's body wire, he heard the defendant conducting a drug sale. Id. No such independent corroboration exists in this case.
33
The issue of the strength of the prosecution's case is essentially subsumed in our discussion of the centrality of these witnesses to the government, and the general lack of independent corroborating evidence. Like the first two issues we have examined, it too counsels for a finding that this was not harmless error.
34
The final factor to be considered is the extent of cross-examination allowed at trial. The government is correct that the district court allowed Manske to impeach Pszeniczka, Colburn and Campbell by pointing out their past drug use, their prior records of conviction and the fact that each were receiving leniency in this case, or had received leniency from the government in the past. In the harmless error analysis, this is clearly the government's strongest argument. However, as we have already discussed, because the threat evidence provided such potentially important insight into these witnesses, we cannot agree with the government's assertion that "there was little more that the threat evidence could have added to proving or disproving [the witnesses'] truthfulness." Thus, we reject the government's argument that the district court's errors were harmless.
Conclusion
35
While it is a most unusual case in which we order a new criminal trial based on a district court's evidentiary rulings, this is such a case. Accordingly, for the reasons we have discussed, the defendant's conviction is Reversed and this case is Remanded to the district court for a new trial consistent with this opinion.
Notes:
1
Because we reverse Manske's conviction, we dismiss his motion of April 9, 1999, to stay this appeal pending the briefing and argument of his appeal from the district court's denial of his motion for a new trial.
2
Judge Shabaz, the district court judge in this case, also presided over Tushoski's trial.
3
These details come from the defendant's offer of proof, which was before the district court, and is part of the record on appeal. We note this because the government asserts in its brief that one ground for affirming the district court's ruling on the motion in limine is the defendant's failure to make such an offer. As the government acknowledged at oral argument, its assertion was incorrect. We reiterate the paramount importance we place on accuracy in submissions to this court. See United States v. Hach, 162 F.3d 937, 948 (7th Cir. 1998).
4
"Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness' credibility, [other than what is allowable under FRE 609] may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . ."
5
In the absence of specificity on Manske's part, we construe his request for a new trial as asking only to allow questioning of these witnesses on the threat evidence. He clearly would be prohibited under 608(b) from using extrinsic evidence of specific instances of conduct against Pszeniczka. On the issue of bias, any determinations on the admissibility of extrinsic evidence must be made by the district court based on the factors laid out in Young v. Rabideau, 821 F.2d 373, 378 & n.3 (7th Cir. 1987).
6
Although it is of no precedential value, we note that the only other Court of Appeals to directly address this issue found that "alleged incidents of witness intimidation were certainly probative of truthfulness and pertinent under Rule 608(b)." United States v. Phillips, 48 F.3d 1218, 1995 WL 82503 at *3 (4th Cir. 1995) (unpublished order). See also United States v. Smith, 792 F.2d 441, 443 (4th Cir. 1986) (on cross-examination, government could show that defendant had previously sought to obtain absence of a material prosecution witness).
7
Assuming deference, our conclusion might not differ, as appellate courts sometimes reverse convictions based on evidentiary rulings even when those rulings are reviewed under the abuse of discretion standard. See United States v. Amerson, 185 F.3d 676 (7th Cir. 1999) (Posner, C.J., dissenting) (collecting cases).
8
We also note that the questions Manske sought to ask were not part of a broad fishing expedition. The district court, government and defense were all familiar with the threat subject matter. This is salient, in light of Mueller & Kirkpatrick's point referenced above--which we endorse--that questions such as those asked by Manske should be allowed when they are "specific and well founded."
9
Of course, a district court may require some showing that the answers the cross-examination hopes to elicit are relevant, but the "who, what, why" questions are designed to achieve this result. Moreover, in this case, the relevance of Pszeniczka's prior threats seems readily apparent. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/765539/ | 186 F.3d 781 (7th Cir. 1999)
In Re Brand Name Prescription Drugs Antitrust Litigation.
No. 99-1167
United States Court of Appeals, Seventh Circuit
Argued June 9, 1999Decided July 13, 1999Rehearing and Suggestion for Rehearing En Banc Denied August 9, 1999*
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 897--Charles P. Kocoras, Judge.[Copyrighted Material Omitted]
Before Posner, Chief Judge, and Bauer and Easterbrook, Circuit Judges.
Posner, Chief Judge.
1
Retail pharmacies brought suit under section 1 of the Sherman Act, 15 U.S.C. sec. 1, against manufacturers and wholesalers of brand-name prescription drugs, charging that the defendants had conspired to deny discounts to the pharmacies. An additional claim emerged during the course of the litigation--that the defendants had conspired to peg price increases to changes in the Consumer Price Index. After an earlier decision by this court resolved some of the issues, see 123 F.3d 599 (7th Cir. 1997), the plaintiffs settled with a number of the defendants and went to trial before a jury against the rest. At the conclusion of the plaintiffs' case in chief on liability, which took eight weeks to present, the district judge granted judgment as a matter of law for the defendants. The appeal challenges both the judge's "bottom line" and a number of his subsidiary rulings.
2
The evidence shows that the manufacturers of brand name (as distinct from generic) prescription drugs engage in price discrimination in the economic sense, selling the identical product to different customers at different prices even though the manufacturers' cost of selling to them is the same. The favored customers are primarily hospitals, health maintenance organizations, and nursing homes; the disfavored are pharmacies. Price discrimination implies market power, that is, the power to charge a price above cost (including in "cost" a profit equal to the cost of equity capital) without losing so much business so fast to competitors that the price is unsustainable. The reason price discrimination implies market power is that assuming the lower of the discriminatory prices covers cost, the higher must exceed cost. There is no general rule against the possession of market power or the use of price discrimination to exploit it, but the plaintiffs argue that the source of the drug manufacturers' market power manifested in their discriminatory pricing is collusion, and if this is right they have a case under section 1.
3
Manufacturers of brand name prescription drugs generally do not sell directly to the retailers of their drugs, that is, to hospitals, HMO's, nursing homes, and pharmacies, but instead sell to wholesalers for resale to the retailers. A wholesaler is compensated for the warehousing and other functions that he performs in the distribution of his drugs through the difference between the price that he pays his supplier and the price at which he resells to retailers. The danger to a price-discriminating drug manufacturer is that a wholesaler might buy at the discounted price more than he needed to supply his hospital, HMO, and nursing home customers and sell the surplus to pharmacies at a price below the nondiscounted price that the manufacturer wanted them to pay. The industry calls this "diversion" (economists call it "arbitrage") and of course dislikes it. Suppose the manufacturer's profit-maximizing price to an HMO for some drug were $40, his price to a pharmacy for the same drug $65, and the wholesaler tacked on $10 to compensate him for his services in distribution. Suppose that the HMO wanted 10 units of the drug and the pharmacy 2 units. If the wholesaler sold 10 units to the HMO at $50 and 2 units to the pharmacy at $75, as the manufacturer intended, the latter's total revenue would be $530 and the wholesaler's $120 (12 x $10). If instead the wholesaler told the manufacturer that he needed 12 units for the HMO and none for the pharmacy, and the manufacturer therefore sold him 12 units at $40, two of which the wholesaler resold to the pharmacy at some price between $50 and $75 (say, $60), then although the wholesaler's revenue would increase to $140 ($120 plus the added profit from selling 2 units to the pharmacy for $20 above cost rather than $10) and the pharmacy would save $30, the manufacturer would be worse off; his revenue would decline to $480.
4
Manufacturers could prevent this evasion of their discriminatory pricing scheme by selling directly to the retailers, thus bypassing the wholesalers. The plaintiffs argue that fear that this would happen led the wholesalers to adopt a chargeback system--the focus of this litigation-- under which the manufacturer sets a uniform price to the retailers, contracts directly with the favored retailers for discount prices to them, and reimburses the wholesaler for the difference between that and the full, uniform price. In the previous example, the price to the wholesaler would be a flat $65 regardless of whom he was reselling to. But upon proof by him that he had resold to an HMO at, say, $60 ($50, the price agreed upon between the manufacturer and the HMO, plus the wholesaler's service fee, negotiated with the retailer, for performing the wholesale function, and assumed in this example consistent with the previous one to be $10), the manufacturer would reimburse him $15. And so he would net the $10 service fee to compensate him for performing the wholesaling function. The chargeback system eliminates diversion (arbitrage) by requiring the wholesaler, in order to avoid a loss when he resells at a discounted price, to report to the manufacturer his sales to that customer, so that the manufacturer can determine whether the customer is indeed one entitled to a discount. With the chargeback system in place, the manufacturers were content to sell through the wholesalers rather than directly to the retailers. The latter prefer, other things being equal, to deal with a single supplier who stocks the drugs of the different manufacturers (namely a wholesaler) than with each manufacturer separately. And if the manufacturers took over the wholesaling function, they would have to charge a higher price to the retailers to recover the cost of performing that function.
5
The plaintiffs presented evidence that the wholesalers adopted the chargeback system collectively rather than individually. Even so, the system would be a per se violation of the Sherman Act--and only per se violations are charged in this case--only if it were either a device for eliminating competition among wholesalers, which is not charged, or an instrument of a conspiracy among the manufacturers to eliminate or reduce competition among themselves. If, instead, each manufacturer was engaged in lawful, noncollusive price discrimination, it would no more be illegal per se for the wholesalers to devise collectively a system by which each manufacturer could engage in discriminatory pricing while selling through wholesalers than it would be illegal per se for them to agree on a standard form for inventorying drugs or a common method of inspecting drugs to make sure they are safe. Competitors are permitted by the antitrust laws (and certainly by the per se rule) to engage in cooperative behavior, under trade association auspices or otherwise, provided they don't reduce competition among themselves, e.g., National Collegiate Athletic Ass'n v. Board of Regents, 468 U.S. 85, 100-04 (1984); Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1(1979); Polk Bros., Inc. v. Forest City Enterprises, Inc., 776 F.2d 185, 188-89 (7th Cir. 1985), or help their suppliers or customers to reduce competition. Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 727-30 (1988); United States v. General Motors Corp., 384 U.S. 127 (1966); Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600 (1914); JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 179 F.3d 1073 (7th Cir. June 22, 1999); Morrison v. Murray Biscuit Co., 797 F.2d 1430, 1438 (7th Cir. 1986); Rossi v. Standard Roofing, Inc., 156 F.3d 452, 462 (3d Cir. 1998). If the wholesalers in this case were merely helping individual manufacturers maximize their profits by methods permitted by antitrust law, which include noncollusive price discrimination, there was no violation of antitrust law at either the manufacturer or the wholesaler level.
6
The plaintiffs had therefore to prove that the defendant manufacturers agreed to deny discounts to them. When last this case was before us, the district judge had denied summary judgment for the manufacturers and so we were required to assume for purposes of the appeal that the manufacturers had indeed colluded. On remand the assumption fell away and the plaintiffs had to prove that the manufacturers had colluded. There were two ways in which they might have been able to do this: by presenting direct evidence (admissions or eyewitness accounts) that the manufacturers had agreed to collude; or by presenting circumstantial evidence, economic in character, that their behavior could better be explained on the hypothesis of collusion than on the hypothesis that each was embarked on an individual rather than a concerted course of action--that each, in other words, was merely exploiting the market power it had, rather than seeking to create or amplify such power through an agreement with competitors not to compete. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984); JTC Petroleum Co. v. Piasa Motor Fuels, Inc., supra, at 1076-77; Serfecz v. Jewel Food Stores, 67 F.3d 591, 599 (7th Cir. 1995); Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 48-49 (7th Cir. 1992); Market Force Inc. v. Wauwatosa Realty Co., 906 F.2d 1167, 1171-73 (7th Cir. 1990); Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, Inc., 176 F.3d 1055, 1060-62 (8th Cir. May 7, 1999); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1233 (3d Cir. 1993).
7
The direct evidence that the plaintiffs emphasize is testimony about a meeting of wholesalers at which representatives of some drug manufacturers, though none who remain in the case after several settled, were present. The subject was the formation of buying groups by pharmacies that hoped they could obtain discounts by forming leagues which would bargain collectively with manufacturers and wholesalers. The participants in the meeting expressed hostility toward such endeavors and indicated a disinclination to grant these groups any discounts. None of the manufacturer defendants was present, as we have said, and there is no evidence that the manufacturers who were represented at the meeting were acting as agents of the defendants. While the testimony might be evidence that the wholesalers agreed not to discount their own service fees to the buying groups, such an agreement is not among the unlawful acts charged. The complaint is not that the wholesalers were trying to eliminate competition among themselves, by fixing prices or credit terms or other competitive dimensions of the wholesale market, as in Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643 (1980) (per curiam), but that they were agents of a manufacturers' conspiracy. The joint adoption of a business method or standard, that is, the chargeback system, independent of any design to reduce competition at either the manufacturer or the wholesaler level, would not raise questions under the per se rule.
8
The only other direct evidence of a manufacturers' conspiracy that merits consideration is a scattering of internal company documents indicating anxiety that competitors might decide to grant such discounts. All firms worry about price cutting by their competitors; these worries are not evidence of price fixing. Monsanto Co. v. Spray-Rite Service Corp., supra, 465 U.S. at 763. Here they were, if anything, evidence of the contrary, since there is no indication that anyone employed by a manufacturer thought that such price cutting to pharmacies as occurred was in violation of an agreement among the manufacturers. Most of the anxiety about price, moreover, was expressed not by the manufacturers but by the wholesalers. Remember that there are two kinds of price involved in the distribution of brand name prescription drugs-- the prices negotiated between the manufacturers and the retailers, and the wholesalers' service fees. The wholesalers feared the shaving of their service fees by aggressively bargaining buyer groups. That fear has nothing to do with the issues in this case.
9
The plaintiffs' principal economic evidence was that brand name prescription drugs are indeed priced discriminatorily, to the detriment of the pharmacies; that discrimination requires (and thus demonstrates the existence of) market power; and that the chargeback system facilitates discrimination. The defendants spent days cross- examining the plaintiffs' principal economic witness, Professor Robert Lucas, and ultimately persuaded the district judge to exclude most of his testimony under the rule of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). But what was objectionable about his evidence actually had nothing to do with Daubert; it was that the evidence mainly concerned a matter not in issue--that the manufacturers of brand name prescription drugs engage in price discrimination, showing that they have market power. Everyone knows this. The question is whether that market power owes anything to collusion. (Even if it did, we remind that to obtain damages the plaintiffs would have to separate the price effects of collusion from the price effects of the plaintiffs' lawful market power. Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, 152 F.3d 588, 593-94 (7th Cir. 1998).) On that, Lucas had virtually nothing to say. It is irrelevant, therefore, that, as the plaintiffs point out, the district judge erred in excluding Lucas's testimony on the grounds that he did--that Lucas had not studied the prescription drug industry in depth and had formulated his tentative opinion after working on the case for only 40 hours. His opinion that there is price discrimination in the prescription drug industry is one that an economist of Lucas's distinction should have been able to reach in even less time. Indeed the existence of price discrimination should have been removed as an issue at trial by a stipulation of the parties.
10
The judge also excluded the evidence of another of the plaintiffs' economic experts, Professor Jeffrey Perloff, on an erroneous ground. Perloff's evidence was that the chargeback system is designed to prevent arbitrage. True--and it should have been stipulated as true--but irrelevant for the reasons explained earlier. The judge thought Perloff had given insufficient weight to the fact that federal law limits the resale of prescription drugs by some of the favored retailers; but we had discussed that law in our previous opinion and explained that it could not be relied upon to prevent arbitrage. 123 F.3d at 603. The important point is that since the unilateral exercise of a firm's individual market power does not violate the antitrust laws, preventing the frustration of that exercise through arbitrage is not a violation either.
11
Paradoxical as this may seem, market power is found in many highly competitive markets, for example the markets for scholarly books and journals. (The phenomenon is sometimes referred to as "monopolistic competition.") Publishers of scholarly books commonly publish the same book in hardcover and paperback versions at prices that differ by far more than the difference in costs, and publishers of scholarly journals commonly charge a much higher price to libraries than to individuals even though the cost of making and selling the journal is identical to both classes of purchaser. These price differences are possible because the book, or journal, lacks perfect substitutes (copyright law prevents the sale of identical substitutes without the copyright holder's consent). Brand name prescription drugs ordinarily are patented, and, though the patent may have expired, the physicians who prescribe the drug may continue to prescribe the branded version rather than the generic substitute, whether out of inertia, or because they think the branded version may be produced under better quality control (the rationale for trademarks), or because the patient may feel greater confidence in a familiar brand. The same thing is true if the original brand, whether or not still protected by a patent, now has a therapeutically close substitute sold under a brand name that is less familiar to physicians or patients than the original brand.
12
It would not be surprising, therefore, if every manufacturer of brand name prescription drugs had some market power. If so, every manufacturer would charge different prices depend on the elasticity of demand of different classes of purchaser with respect to price (that is, the responsiveness of quantity demanded to a change in price). The least elastic demanders are the pharmacies, because they must stock a full range of drugs in order to be able to fill prescriptions. They can therefore be expected to be charged the highest prices. In contrast, a hospital, nursing home, or HMO or other managed- care enterprise has a more elastic demand because it can influence (for example through a "formulary," a list of approved or recommended drugs) the physician's choice of which brand (or no brand--a generic) to prescribe. A slight increase in the price of one brand to such a purchaser might cause the manufacturer's sales of that brand to plummet. That manufacturers of brand name prescription drugs grant discounts to the enterprises we have listed but refuse to grant discounts to pharmacies is thus consistent with unilateral profit-maximizing behavior by the manufacturers.
13
The alternative hypothesis is that the manufacturers refuse to grant discounts to pharmacies because they have agreed among themselves not to. As there is neither an a priori reason nor direct evidence to suppose this hypothesis more likely than the first, and as the plaintiffs bore the burden of persuasion, it was necessary for them to present economic evidence that would show that the hypothesis of collusive action was more plausible than that of individual action. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 571-72 (11th Cir. 1998). They did not, however, as the defendant manufacturers rather absurdly argue, have to exclude all possibility that the manufacturers' price discrimination was unilateral rather than collusive. That would imply that the plaintiff in an antitrust case must prove a violation of the antitrust laws not by a preponderance of the evidence, not even by proof beyond a reasonable doubt (as indeed is required in criminal antitrust cases), but to a 100 percent certainty, since any lesser degree of certitude would leave a possibility that the defendant was innocent.
14
The plaintiffs are equally wide of the mark, however, when they argue that proof of price discrimination shifts to the defendants the burden of proving that the discrimination was unilateral rather than collusive. Because price discrimination is as consistent with individual as with collusive behavior, mere proof that discrimination exists does not support, even weakly, an inference of collusion. The plaintiffs have the burden of rebutting, by the normal civil standard of a preponderance of the evidence, the hypothesis of individual maximizing action. They failed to come up with any evidence. Lucas did testify that he thought the demand by pharmacies no less elastic than that by hospitals, HMO's, and nursing homes, and if so-- if the manufacturers of brand name prescription drugs have no significant market power individually, since they appear to have no significant market power with respect to those other customers--this would suggest that higher prices to pharmacies are the product of collusion. But this part of Lucas's testimony was properly excluded, or alternatively entitled to no weight, because it rested on a demonstrated lack of knowledge about the competitive significance of formularies--the lists of approved or recommended drugs that hospitals, nursing homes, and HMO's and other managed-care enterprises issue. He said that a pharmacy could issue a formulary. It could, but no one would pay any attention to it, because a pharmacy, unlike a hospital, nursing home, or other provider of medical care, has no clout with doctors, the ones who actually order prescription drugs. There is no evidence that pharmacies issue formularies.
15
The record does contain a study by a consulting firm which found that many branded drugs have close therapeutic substitutes; this of course is true, but most books also have close substitutes, yet individual books are sufficiently distinctive to enable the publisher to price his books on a discriminatory basis even though he is not colluding with any other publisher. A consumer may rationally pay more for a trademarked product than for its physically identical substitute merely for the greater assurance of quality that a trademark conveys. 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition sec. 2:5, p. 2-8 (4th ed. 1996); Power Test Petroleum Distributors, Inc. v. Calcu Gas, Inc., 754 F.2d 91, 98 (2d Cir. 1985); Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 303 (9th Cir. 1979). And all that really matters is that physicians, for whatever reason, in writing prescriptions tend to write a brand name rather than the generic (chemical) name. It is this practice that forces pharmacies to carry a full line of brands and thus prevents them from credibly threatening a manufacturer with refusing to stock his brand unless he offers a discount.
16
Since the market power conferred by a patent or trademark would vary across brands, evidence of uniform discounts (for example, that all HMO's received a 20 percent discount from the full price on all brands) might be indicative of a conspiracy. The plaintiffs contended in rebuttal at the oral argument of the appeal that this was the case here, but their brief does not make the argument or point to evidence in the record that might support it, so it is forfeited.
17
All this leaves of the plaintiffs' case is their claim that in the early 1990s the defendant manufacturers agreed among themselves to peg future price increases to the Consumer Price Index. There is enough evidence of such an agreement to create a triable fact. For example, an internal memorandum of defendant Burroughs Wellcome, dated September 1993 and entitled "Price Escalation Proposal," states that "the industry has generally agreed to informally keep its prices in line with CPI or CPI plus 1 to 2 %." The document is subject to interpretation (as is the other evidence, unnecessary to describe, that also supports the claim), but the interpretation of ambiguous documentary evidence of collusion is for the jury. Monsanto Co. v. Spray-Rite Service Corp., supra, 465 U.S. at 765- 66 and n. 11; In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 614 (7th Cir. 1997); Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, Inc., 176 F.3d 1055, 1061-62. The district judge threw out the CPI claim not because it was unfounded but because he thought it barred by the Noerr-Pennington doctrine, which exempts from antitrust law collusive efforts to obtain governmental protection against the winds of competition. E.g., Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965); Premier Electrical Construction Co. v. National Electrical Contractors Ass'n, Inc., 814 F.2d 358, 371 (7th Cir. 1987); Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 471 (7th Cir. 1982). During the period of the alleged CPI conspiracy, the prescription drug industry was under political pressure to limit price increases. Had the industry wanted to obtain a law that would limit annual increases to the rate of inflation as measured by the CPI, plus modest additions, they could without antitrust liability have negotiated the proposal among themselves even though this would have involved their agreeing on how much to seek from government in the way of permitted price increases.
18
But they didn't want a law; they wanted (they say) to ward off a price-control law by being good boys and keeping their price increases moderate. The distinction is not critical; opposing legislation is a way of participating in the legislative process just as proposing legislation is. It would not make sense to interpret Noerr-Pennington in such a way as to encourage industries to channel all their legislative activity into proposing laws (here perhaps a law against passing a price-control law!). But the doctrine does not authorize anticompetitive action in advance of government's adopting the industry's anticompetitive proposal. The doctrine applies when such action is the consequence of legislation or other governmental action, not when it is the means for obtaining such action (or in this case inaction). FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 425 (1990); Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 503 (1988); Sandy River Nursing Care v. Aetna Casualty, 985 F.2d 1138, 1142-43 (1st Cir. 1993). Otherwise every cartel could immunize itself from antitrust liability by the simple expedient of seeking governmental sanction for the cartel after it was up and going.
19
The district judge thus erred in throwing out the CPI claim on Noerr-Pennington grounds, and he also erred in treating the doctrine as a rule of evidence that forbids the introduction of evidence (specifically, testimony by a corporate executive named David Landsidle) relating to efforts to obtain governmental protection to show that the industry has indeed jumped the gun and begun to cartelize before getting governmental sanction for cartelization. United Mine Workers v. Pennington, supra, 381 U.S. at 670 and n. 3; MCI Communications Corp. v. American Telephone & Telegraph Co., 708 F.2d 1081, 1160 (7th Cir. 1983). Such evidence can be excluded under Fed. R. Evid. R. 403 if confusing or unduly prejudicial, Weit v. Continental Illinois National Bank & Trust Co., 641 F.2d 457, 466-67 (7th Cir. 1981), but there is no blanket rule of inadmissibility.
20
There is, however, a potential issue of waiver that beclouds the charge of a CPI conspiracy. In one of their briefs the last time this case was here, the plaintiffs told us that none of them intended to assert a claim for damages based on such a charge, that the evidence of the conspiracy would be used only to establish the existence of a "culture of collusion" in the industry. To establish damages the plaintiffs would have to prove that the price of brand name prescription drugs would have been higher (and by how much) had the defendants not agreed to peg price increases to the CPI. Since the defendants may have been seeking to moderate their price increases in order to ward off price controls, the price-fixing conspiracy (if there was one) may have resulted in lower rather than higher prices, in which event the defendants' customers were not harmed and cannot obtain damages. Israel Travel Advisory Service, Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250, 1256-57 (7th Cir. 1995).
21
What is more, in our previous opinion we held that the indirect-purchaser doctrine, which limits the right to bring antitrust overcharge suits to buyers who buy directly from the overcharging sellers rather than indirectly through middlemen, Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), would bar the plaintiffs from recovering damages unless the wholesalers were members of the manufacturers' conspiracy. 123 F.3d at 604-07. The plaintiffs point to no evidence that any of the defendant wholesalers were members of a CPI conspiracy, so it's difficult to see how the plaintiffs could recover any damages even if they could prove that they paid higher prices as a result of such a conspiracy. They did present evidence (albeit insufficient, as we have seen) that the wholesalers were part of a manufacturers' conspiracy to charge discriminatory prices, but that is separate from the alleged CPI conspiracy and anyway the wholesalers are now out of the case.
22
In the present appeal, however, the plaintiffs argue that the conspiracy did result in higher prices, and the defendants do not let out a peep about the indirect purchaser doctrine. And while reminding us that the plaintiffs had previously foresworn a claim of damages based on that alleged conspiracy they do not argue that the claim is waived, barred by the doctrine of judicial estoppel or by the law of the case doctrine, or otherwise unavailable. They thus have waived waiver. E.g., United States v. Woods, 148 F.3d 843, 849 n. 1 (7th Cir. 1998); Riemer v. Illinois Dept. of Transportation, 148 F.3d 800, 804 n. 4 (7th Cir. 1998); United States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996). (This is an almost incomprehensible lapse, since several of the district judge's evidentiary rulings, which he'll now have to revisit, indicate that he assumed that there was no CPI price-fixing charge.) They put all their eggs in the Noerr-Pennington basket--mistakenly, because as we have seen there is no tenable defense based on the doctrine of those cases.
23
The judgment is therefore vacated so far as the CPI charges are concerned, and otherwise affirmed (which means that the wholesalers are dismissed from the case), and the case is remanded for further proceedings in conformity with this opinion. We suggest that before proceeding to trial on the CPI issue, the district judge require the plaintiffs to show that they have (in light of the doubts we've expressed) a viable theory of damages; if they do not, there would be no point in a trial on liability, as they do not appear to be seeking injunctive relief against the alleged CPI conspiracy. But these details remain to be sorted out on remand.
24
Affirmed in Part, Vacated in Part, and Remanded.
Notes:
*
Hon. Joel M. Flaum and Hon. Diane P. Wood did not participate in the consideration of the petetions. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1328291/ | 106 S.E.2d 229 (1958)
249 N.C. 279
J. Archie CANNON, Jr., Trustee for Miller Motor Line of North Carolina, Inc.,
v.
H. Bryce PARKER, Administrator of the Estate of Annie J. Young, Deceased, and Claudie Black, Administratrix of the Estate of Edgar McLee Black, Deceased.
No. 602.
Supreme Court of North Carolina.
December 10, 1958.
Frazier & Frazier, Greensboro, for plaintiff, appellant.
James J. Booker, Winston-Salem, for defendant, appellee.
BOBBITT, Justice.
Parker, Administrator, answered. He did not demur to the complaint either in writing or ore tenus. He demurred to the evidence. "A demurrer to a complaint, G.S. § 1-127, and a demurrer to the evidence, G.S. § 1-183, are different in purpose and result. One challenges the sufficiency of the pleadings, the other the sufficiency of the evidence." Lewis v. Shaver, 236 N.C. 510, 512, 73 S.E.2d 320, 321; Gantt v. Hobson, 240 N.C. 426, 431, 82 S.E. 2d 384. The words "ore tenus" have no significance in relation to a demurrer to the evidence, i. e., a motion for judgment of nonsuit, under G.S. § 1-183.
Copies of Exhibits A and B were attached to the reply. Yet nothing appears in the record to indicate that the demurrer ore tenus was directed to the reply or that defendant moved for judgment on the pleadings. The record is explicit that the court's ruling was on defendant's demurrer to the evidence.
By the terms of the release (Exhibit A), Parker, Administrator, for and in consideration of $900 to him paid by Robert R. Cothran and Miller Motor Line of N.C., Inc., fully released and discharged them from liability on account of the collision referred to in the pleadings, particularly on account of the death of Annie J. Young as a result thereof. A further provision set forth an agreement that the payment of the $900 should not be construed as an admission on the part of Robert R. Cothran and Miller Motor Line of N. C., Inc., of any liability whatsoever in consequence of said injuries and accident.
We are confronted by the fact that the release shows on its face that Robert R. Cothran and Miller Motor Line of N. C., Inc., paid the release consideration of $900 to Parker, Administrator, and obtained the release. Nothing else appearing, plaintiff's action is barred. Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805, and cases cited; Houghton v. Harris, 243 N.C. 92, 89 S.E.2d 860.
In Snyder v. Kenan Oil Co., supra, on motion of the original defendants (Kenan Oil Company and Keen, its driver), Dixon *232 was made a party defendant as an alleged joint tort-feasor for the purpose of enforcing contribution as provided by G.S. § 1-240. Answering the allegations of the original defendants, Dixon pleaded, inter alia, that Kenan Oil Company had settled her claim against it for damages caused by the collision. It was held that the motion by the original defendants to strike Dixon's allegations as to such settlement was properly denied.
In opinion by Barnhill, J. (later C. J.), the Court said:
"The settlement by the corporate defendant of the claim of defendant Dixon against it for personal injuries and property damages resulting from the collision of the truck being operated by Keen, the agent and employee of the oil company, and the automobile being operated by defendant Dixon, as effectually adjusted and settled all matters which arose or might arise out of said collision, as between the oil company and Dixon, as would a judgment duly entered in an action between said parties. By said compromise settlement each party bought his peace respecting any liability created by the collision. The adjustment of said claim by the payment of the amount agreed constituted an acknowledgment, as between the parties, of the liability of the oil company, and the nonliability, or at least a waiver of the liability, of the defendant Dixon." [235 N.C. 92, 68 S.E.2d 806]
According to the evidence, Robert R. Cothran and Miller Motor Line of N. C., Inc., discharged their liability (whether admitted or controverted) to Parker, Administrator, on account of said collision, by their payment to him of $900 for a full release. They thereby released whatever rights they may have had to recover from Parker, Administrator, on allegations that the collision was caused by the negligence of Annie J. Young. The payment and release extinguished the liabilities of the parties thereto, inter se, on account of said collision. Nothing appears to dispel the clear implication that the parties, in reaching said compromise settlement, took into consideration their conflicting contentions as to the cause(s) of the collision.
We do not reach the question as to whether the facts alleged in the reply, if true, are sufficient to exempt plaintiff from the legal consequences which flow, nothing else appearing, from the release offered in evidence by plaintiff. Suffice to say, plaintiff offered no evidence to support the allegations in the reply relating to said release.
The judgment, according to the record, must be considered solely as a judgment of nonsuit under G.S. § 1-183. So considered, it must be affirmed.
Affirmed.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328340/ | 478 S.E.2d 563 (1996)
197 W.Va. 713
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Scotty Gene PHELPS, Defendant Below, Appellant.
No. 23254.
Supreme Court of Appeals of West Virginia.
Submitted September 18, 1996.
Decided October 11, 1996.
*566 Scott E. Johnson, Assistant Attorney General, Charleston, for Appellee.
Travers R. Harrington, Jr., Jesser & Harrington, Fayetteville, for Appellant.
PER CURIAM:
This is an appeal by the appellant herein and defendant below, Scotty Gene Phelps, from his conviction of first degree murder and sentence to life imprisonment without possibility of parole. The defendant was convicted by a jury in the Circuit Court of Fayette County on December 13, 1994. The defendant has assigned as error the following: (1) the admission of testimony of other outstanding charges against him; (2) the failure to give the Defendant's Jury Instructions Nos. 3 and 4; (3) the admission of testimony of conversations the police had with others not present at trial; (4) the failure to allow the defendant to cover up tattoos on his hands; (5) the admission of certain physical evidence; (6) the failure to appoint a co-counsel; and (7) the failure to bifurcate the trial and sentencing proceeding. The defendant further asserts that the cumulative effect of these errors requires reversal of the conviction and sentence.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case are entangled in the relationship the defendant had with Kathy Agent. In June of 1993, the defendant and Ms. Agent were living together in Oak Hill, West Virginia. At that time, the defendant had outstanding arrest warrants against him for kidnapping, sexual assault, and malicious wounding. The record indicates that law enforcement officials attempted on four occasions to arrest the defendant on the outstanding charges but to no avail. On June 12, 1993, the defendant and Ms. Agent concocted a plan that would get him a car so he could escape arrest for the charges pending against him. The plan called for Ms. Agent to hitchhike along the road and lure a motorist back to her home, where the defendant would be waiting to ambush the unsuspecting motorist. At about 2:00 p.m. on June 12, Ms. Agent left her home to carry out her part of the plan. Not long after Ms. Agent began hitchhiking, she was picked up by John T. Moran, a Pennsylvania resident who was on his way to a computer convention in North Carolina. Ms. Agent convinced Mr. Moran to drive her home so they could "party." Prior to reaching Ms. Agent's home, Mr. Moran stopped at a store and purchased a bottle of vodka, a pack of cigarettes, and a package of condoms. Mr. Moran arrived at Ms. Agent's home at about 4:00 p.m. Within a short time, Mr. Moran and Ms. Agent were sitting on her couch drinking and talking about sex. While this was taking place, the defendant was hiding in the bedroom. Eventually Mr. Moran and Ms. Agent found their way into her bedroom. As Mr. Moran and Ms. Agent were on her bed, the defendant stealthily approached them carrying a knife. The defendant pinned Mr. Moran to the bed and began stabbing him.[1] While stabbing Mr. Moran, the defendant began laughing and said: "He's almost dead." There was testimony that after repeatedly stabbing Mr. Moran, the defendant then dragged Ms. Agent through his blood. The defendant then placed Ms. Agent's face next to Mr. Moran's face and said: "I want to show you what death looks like, and I don't want you to forget it."
*567 The defendant eventually wrapped Mr. Moran's body in a blue tarp and two blankets. Mr. Moran's body was then placed in the trunk of his car. Ms. Agent testified the defendant threatened her with a hammer if she did not accompany him out of the State. Ms. Agent consented after being threatened. The record indicates that Ms. Agent drove Mr. Moran's car, while the defendant sat in the passenger's side, to an area called Garden Ground and disposed of the body. Ms. Agent testified that the blankets and the tarp were removed from the body and an old refrigerator was thrown on top of Mr. Moran's corpse. The blankets and tarp were eventually thrown off a bridge into a river, as the defendant and Ms. Agent drove Mr. Moran's car to Florida.
An investigation into Mr. Moran's whereabouts was launched after his family members alerted authorities they believed he was missing. The investigation eventually led authorities to Florida where they arrested the defendant and Ms. Agent. Authorities were able to find Mr. Moran's body after Ms. Agent informed them where it was dumped. After extradition back to West Virginia, Ms. Agent and the defendant were indicted for first degree murder and aggravated robbery. Ms. Agent entered a plea of guilty to first degree murder, with mercy, and agreed to testify against the defendant. The defendant was tried on the first degree murder charge and found guilty of the same by a jury. The jury did not recommend mercy. The trial court sentenced the defendant to life without possibility of parole. The defendant appeals his conviction and sentence on the grounds that the trial court committed error in: (1) admitting testimony of other outstanding charges against him; (2) failing to give Defendant's Instructions Nos. 3 and 4; (3) admitting testimony of conversations the police had with others not present at trial; (4) failing to allow the defendant to cover up tattoos on his hands; (5) admitting certain physical evidence; (6) failing to appoint a co-counsel; and (7) failing to bifurcate the trial and sentencing proceedings. He further contends that the cumulative effect of these errors requires a reversal of the conviction and sentence.
II.
ADMISSION OF PRIOR CHARGES
The defendant's first argument is that the trial court committed error in denying his pretrial motion to preclude witnesses from giving testimony that he had prior charges pending against him at the time Mr. Moran was killed. We note at the outset that "[r]ulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). See also, Syl. Pt. 4, State v. Farmer, 185 W.Va. 232, 406 S.E.2d 458 (1991) (per curiam). In other words, the defendant has a tall leap to make in order to have this Court disturb an evidentiary admissibility ruling. The rule applicable to the issue raised by the defendant is Rule 404(b) of the West Virginia Rules of Evidence.[2] This Court observed in State v. Nelson, 189 W.Va. 778, 784, 434 S.E.2d 697, 703 (1993), that Rule 404(b) was an "`"inclusive rule" in which all relevant evidence involving other crimes or acts is admitted at trial unless the sole purpose for the admission is to show criminal disposition.'" Quoting State v. Edward Charles L., 183 W.Va. 641, 647, 398 S.E.2d 123, 129 (1990). More recently we provided further guidance on Rule 404(b) evidence. In Syllabus Point 1 of State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), we held:
"When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is *568 not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction."
We stated further in Syllabus Point 2 of McGinnis:
"Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence."
McGinnis instructs us that six steps should be engaged in by a trial court in making a Rule 404(b) evidence ruling: (1) a hearing must be held outside the presence of the jury; (2) the State must identify a specific purpose for which the evidence will be used; (3) the trial court must be satisfied by a preponderance of the evidence that the act or conduct occurred and that the defendant committed the same; (4) the trial court must determine that the evidence is relevant; (5) the trial court must perform the Rule 403 balancing test; and (6) the trial court should instruct the jury on the narrow purpose of the evidence. The defendant contends that McGinnis was not complied with during his trial, in that the trial court failed to perform the balancing test requirement and failed to make a preponderance of the evidence finding. During the pretrial hearing on the defendant's motion to preclude evidence of prior pending charges, the following exchange between counsel and the trial court occurred:
"[PROSECUTOR]: Theas the Court is probably aware from past proceedings in this matter, thethe charges pending against Mr.Mr. Phelps at the time Mr. Moran was murdered form thepart of the State's case as it relates to motive.
"The evidence in this case is going to be that at the time that Mr. Moran was lured to his death, that Mr.Mr. Phelps was a fugitive from justice on certain charges that had been brought against him. The police, at the time of Mr. Moran's death, were actively seeking Mr. Phelps and had warrants for his arrest.
"The evidence in this case indicates that that was the motiveor one of the prime motives for Mr. Phelps wanting out of the state of West Virginia.
And, althoughand thatthat charge against him relates to the Elizabeth Milam case wherewhich is the other indictment in this case thatthatwhereby it is alleged that he took this young lady to ato this home where Mr. Moran was ultimately murderedtook this young lady to that home, did unspeakable atrocities to her body and then released her at some point, and that he was seeking to evade the police and toto leave the state of West Virginia, to keep from facing those charges.
"Now, I certainly realize the obligation on the State to set a tone of fairness toward this defendant, and I don't want to try the Elizabeth Milam case. Although it would be very prejudicial to thisto this defendant, I realize that that prejudicial *569 effect greatly outweighs the probative value of that case.
"But, nevertheless, I think it is important to show motive for this defendant, to show that he was wanted in connection with that case, without going into actual facts and circumstances of that case, which
"THE COURT: Simply that there were pending in Fayette County, felony charges for this defendant.
"[PROSECUTOR]: That's correct. And he was being actively sought. I think that Deputy Burke and others are going to testify thatthat onthat they had made several attempts to try to locate Mr. Phelps, either here in Fayette County or in Raleigh County in connection with this warrant, and had been unsuccessful.
"[DEFENSE]: That's exactly the type of evidence I'm trying to exclude from this trial.
"THE COURT: Well, I think the State is entitled to make an effort to try to show motive in regard to the theft of the car and the murder of Moran, and I would allow the State to present evidence that there was, at the time of these alleged incidents, pending in Fayette County one or more felony warrants against Phelps, but I'm not going to let them get into all theas the prosecutor describes them, "unspeakable" details, whatever they might be.
"I certainly wouldn't permit him to do that, but it's sufficient for them to show and to say simply thatby competent evidence that those charges were pending."
As an initial matter, we take note of the fact that the State sought to establish as the motive in this case that the defendant murdered Mr. Moran for the purpose of taking his car to flee arrest for the crimes of sexual assault, malicious wounding, and kidnapping.[3] Next, the State takes the position that the trial court did in fact perform a balancing test, based, in part, on its agreement with statements by the prosecutor. Additionally, the State argues the trial court balanced the propriety of allowing testimony regarding the underlying facts of the prior charges as opposed to merely allowing testimony that the defendant was actively being sought by authorities for other felony charges and concluded that the former was too prejudicial but the probative value of the latter was not outweighed by its prejudicial effect. We agree with the State's position. It is clear to us that the trial court, perhaps not in an ideal manner, complied with the balancing requirement of McGinnis.
The State also contends that a preponderance of the evidence finding "is not a required finding under Rule 404(b) when outstanding warrants are the issue for the jury to consider in establishing motive." In support of its position, the State cites State v. Smith, 868 S.W.2d 561, 577 (Tenn.1993), cert. *570 denied, ___ U.S. ___, 115 S.Ct. 417, 130 L.Ed.2d 333 (1994), wherein the Tennessee Supreme Court held:
"[T]he defendant argues that this proof [of warrants] should not have been admitted because the prior crimes were not established by `clear and convincing evidence' under the guidelines of State v. Parton, 694 S.W.2d 299 (Tenn.1985). Strictly speaking, the evidence of which Defendant complains is not `other crimes evidence' as discussed in Parton. The relevant fact was that the charges were pending, and exposed the Defendant, who knew of them, to possible prosecution and punishment regardless of their validity. Proof establishing the charges' truthfulness might have been relevant to increase the strength of the State's theory that avoiding prosecution and conviction was the Defendant's motive but was unnecessary to establish the admissibility of the outstanding warrants."
We express no opinion on the merits of the position taken by the court in Smith. We pause briefly to point out that at issue in Smith was the standard of "clear and convincing evidence" and the admissibility of outstanding warrants. In the instant case, the matter at issue is the preponderance of the evidence standard and evidence that charges were pending against the defendant, not the introduction of the actual outstanding warrants. The evidence proffered by the State at the pretrial hearing, and the evidence that was given at the trial, was testimony by witnesses that the defendant was being sought in connection with pending charges. A review of the record in this case indicates the defendant did not challenge, during the pretrial hearing, the assertion that authorities were looking to arrest him prior to Mr. Moran's death. In fact, the evidence shows the defendant conceded this issue and was merely attempting to prevent introduction of this uncontested fact. The record also informs us that the defendant did not challenge at the pretrial hearing the allegation that he was evading arrest by authorities prior to Mr. Moran's murder. We believe that based upon all the arguments at the pretrial hearing, there was a sufficient basis for the trial court to find by a preponderance of the evidence that the crimes of kidnapping, sexual assault, and malicious wounding occurred and that the defendant committed the same.
III.
JURY INSTRUCTIONS
The second assignment of error by the defendant involves the trial court's denial of Defendant's Instruction Nos. 3 and No.4. We recently pointed out in State v. Guthrie, 194 W.Va. 657, 671, 461 S.E.2d 163, 177 (1995), that "when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review [the matter] under an abuse of discretion standard." We have held that "[i]nstructions that are repetitious or are not supported by the evidence should not be given to the jury by the trial court." Syl. Pt 5. State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990). See Syl. Pt. 7, State v. Cokeley, 159 W.Va. 664, 226 S.E.2d 40 (1976); Syl. Pt. 6, State v. Meadows, 172 W.Va. 247, 304 S.E.2d 831 (1983).
Defendant's Instruction No. 3 stated: "The Court instructs the jury that the testimony of Kathy Agent must be received with great care and caution, and if you believe the testimony of her as an alleged accomplice was false, and that she was induced to testify falsely either by fear of punishment or hope of reward, you must disregard that testimony in its entirety." The trial court rejected this instruction on the grounds that it was covered in the trial court's charge.[4] The State *571 argues the defendant waived any objections he had to the trial court's ruling on Defendant's Instruction No. 3 because the trial court asked the defendant to "please speak up" if he had anything to say regarding the rejection of the instruction, but the defendant offered nothing in response. We need not decide whether a waiver occurred based upon a lack of response by the defendant to the trial court's question. This issue is decided against the defendant because we are not persuaded that the trial court abused its discretion in rejecting Defendant's Instruction No. 3 on the grounds that the matter was covered in the trial court's charge. We believe the trial court's charge fully covered the area of concern expressed in Defendant's Instruction No. 3.
The next issue involves the trial court's rejection of Defendant's Instruction No. 4. In Syllabus Point 12 of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994), we stated: "Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard. In criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution." Defendant's Instruction No. 4 provided: "The Court instructs the jury that if you believe from the evidence that Kathy Agent took the life of John Moran as charged in the indictment, and that Scott Phelps was not present at the time of the killing of John Moran, and did not aid therein, but that Scott Phelps did aid and abet Kathy Agent in the suppression or concealment of the fact of the killing of John Moran then the jury should find Scott Phelps not guilty as charged in the indictment." The primary argument urged by the State[5] is that the trial court rejected Defendant's Instruction No. 4 on the grounds that no evidence was presented which warranted the instruction.[6] Our review of the record in this matter supports the State's position. In fact, when the defendant proffered Instruction No. 4, he conceded that not a scintilla of evidence was introduced on the issue urged in the instruction. The trial court did not abuse its discretion in denying this instruction.
IV.
HEARSAY TESTIMONY
The defendant's third assignment of error is that the trial court should have sustained his objections to testimony by three law enforcement agents as hearsay.[7] This Court has held that "[t]he hearsay rule excludes such testimony only when offered `as evidence of the truth of the matter asserted'; and does not operate against such testimony *572 offered for the mere purpose of explaining previous conduct." Maynard, 183 W.Va. at 4, 393 S.E.2d at 224. (Citations omitted). Each proffered testimony objected to involved matters the officers learned during the course of the investigation of Mr. Moran's death. This testimony in each instance was offered merely to "explain previous conduct" by the officers in carrying out their investigations. The State argues the testimony by the officers was not hearsay in that the testimony was not presented to prove the truth of the matter asserted. We agree with the State that this evidence was not hearsay. However, "[t]he receipt of this type evidence should be determined under principles of relevancy pursuant to Rules 401-403." 2 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 8-1(A)(5) (3rd ed.1994). We addressed this issue in Maynard. In that case, the prosecution maintained that testimony by police officers that they received an anonymous phone call that identified the defendant as a suspect, which led them to place his photograph in a photo array, was not hearsay. We agreed with the prosecutor in Maynard that the reason for the introduction of the testimony was not for the truth of the matter asserted, but was instead to explain why the police included the defendant's photo in a photo array that was shown to the robbery witness. We went further, however, and found that the question of why the defendant became a suspect was not an issue in the case. "Therefore, since the issue was not relevant to the prosecution, nor the defense, it was error to allow [the police officers] to testify about the anonymous phone call which implicated the defendant." 183 W.Va. at 5, 393 S.E.2d at 225. We did not end our analysis in Maynard upon making the determination that it was error to admit the officers' testimony regarding the anonymous phone call. We went further:
"West Virginia Rule of Criminal Procedure 52(a), however, provides that `[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' In interpreting this rule, we have previously held in Syl. Pt. 6, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987) that:
"`Where improper evidence of a non-constitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must be made to determine whether the error had any prejudicial effect on the jury.'
"In Smith, this Court found that a hearsay statement made by the victim of a crime was inadmissible hearsay and improperly admitted. We concluded that no reversible error had been committed by the admission of this hearsay at trial, however.
"Similarly, in the present case, we find no reversible error....
"Therefore, although error was committed by the lower court in allowing the officers' testimony regarding the anonymous phone caller and her implication of the defendant in the robbery, we conclude that the error was harmless error." 183 W.Va. at 5-6, 393 S.E.2d at 225-26.
Maynard instructs us that in the instant matter we must determine whether the officers' testimony was relevant and, if not, did introduction of the testimony amount to harmless error. A review of the defendant's two objections to testimony from Agent Mark Sykes of the Federal Bureau of Investigation indicates that this testimony was relevant, as it related to how authorities were able to track a call made from Florida on Mr. Moran's telephone credit card, after he was killed, and how this information lead authorities to Florida where the defendant was located. The defendant also objected twice to testimony by Officer Matthew Jeffries of the Beckley Police Department. The testimony objected to involved communication by authorities with Norma Warwick, the *573 person who received the telephone call in West Virginia that was made from Florida on Mr. Moran's telephone credit card, and information by Ms. Warwick that Kathy Agent made the call to her and also indicated that the defendant was in Florida with her. We find this testimony was also relevant. The defendant objected next to testimony by Lieutenant John Mowen of the Daytona Beach Police Department regarding communication that lead to the identification in Florida of Kathy Agent and introduction into evidence of credit card bills that were signed by Kathy Agent. The relevancy of the latter testimony and accompanying exhibit present a close call. Assuming the evidence was not relevant, we have no doubt that its introduction was harmless error. The sum total of the State's evidence against the defendant, after extracting the assumed erroneously admitted evidence, was clearly sufficient for the jury to find the defendant guilty beyond a reasonable doubt. We also do not find that the assumed erroneously admitted evidence affected the jury's decision in this case. In fact, the only effect this evidence might have had in this case was that of causing the jury to be cautious about the testimony eventually proffered by Kathy Agent, which, of course, would have benefited the defendant.
V.
TATTOOS
The defendant's next assignment of error is that the trial court committed error in denying his pretrial motion to allow him to place bandages on tattoos that were on the back of his hands.[8] The tattoos contained words such as "Grim Reaper" and "devil." The defendant contends that he had a right under Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979), to have his tattoos covered. The defendant misconstrues Estelle and Brewster. Neither case addresses the issue of tattoos on a defendant's hands. Those cases address a defendant's right not to be forced to wear identifiable prison garb at his trial and the right to be free of unnecessary physical constraints at trial. "The mere fact that a defendant has tattoos is not inherently prejudicial." State v. Smith, 170 Ariz. 481, 482, 826 P.2d 344, 345 (1992). Accord Silvestre v. State, 893 S.W.2d 273, 275 (Ct.App. 1st Dis. Tex.1995). The defendant offers no evidence to establish how he was prejudiced in having the self-imposed tattoos on his hands.[9] This situation is distinguishable from State v. Ballantyne, 128 Ariz. 68, 623 P.2d 857 (1981), where, during rebuttal, the prosecutor asked the defendant to roll up his shirt sleeve to show a tattoo. The tattoo was a skull with a swastika enclosed by a scroll and a circle of wings with the words "Harley-Davidson" written on the scroll. Over objection, the tattoo was shown to the jury. The prosecutor asked if the tattoo was one commonly worn by the Hell's Angels motorcycle gang. The defendant said no. On appeal of his conviction for assaulting a police officer and resisting arrest, the defendant contended that forced display of the tattoo and the prosecutor's questions linked him to the Hell's Angels motorcycle gang and deprived him of a fair trial. The appellate court in that case agreed with the defendant that the questioning was improper because, if proven, an affiliation with the Hell's Angels would have been evidence of bad character. Such *574 evidence was not admissible to prove that the defendant acted in conformity therewith because he did not put his character in issue. In the instant case, the State did not offer to display the defendant's tattoos to the jury nor was the defendant ever questioned regarding the same. We find no abuse of discretion by the trial court on this issue.
VI.
ADMISSION OF IRRELEVANT AND UNNECESSARY EVIDENCE
The defendant's next assignment of error as set out in his brief is as follows:
"THE COURT ADMITTED SEVERAL UNNECESSARY AND IRRELEVANT ITEMS INTO EVIDENCE WHICH WERE NOT CONNECTED WITH THE MURDER CASE
"The Court admitted into evidence a paper bag containing a ponytail, an axe handle and a claw hammer, all of which had nothing to do with the murder of John Moran. These items had nothing to do with the case other than inferring the Defendant was a `bad' person. They were prejudicial and should not have been admitted."
The defendant objected at trial to each of the items now complained of on the basis of relevancy.[10] The State urges that, since the defendant did not argue "prejudice" below, he may not raise the issue of prejudice now. Rule 401 of the West Virginia Rules of Evidence provides that relevant evidence refers to "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." We stated in McDougal v. McCammon, 193 W.Va. 229, 236, 455 S.E.2d 788, 795 (1995), that "[u]nder Rule 401, evidence having any probative value whatsoever can satisfy the relevancy definition." The record indicates that the ponytail was found by investigators under a mattress in Ms. Agent's home. There was testimony that the defendant had worn a ponytail. Ms. Agent testified that the ponytail was the defendant's and that she cut it a few days before Mr. Moran was killed. The axe handle was found by investigators at Ms. Agent's home. Ms. Agent testified the axe handle was the instrument the defendant had initially indicated he would use to render the robbery victim unconscious during his planned escape. The claw hammer was found by authorities in Mr. Moran's car. Ms. Agent testified the claw hammer was used by the defendant to threaten her while they fled to Florida. We believe the evidence objected to was relevant in this case. Moreover, the probative value of this evidence outweighed any prejudice that may have been associated with the introduction of this evidence. See W.Va.R.Evid. 403.
VII.
APPOINTMENT OF CO-COUNSEL
The defendant next argues the trial court should have granted his request to have co-counsel appointed in the case. The State refers the Court to language in State v. Chamberlain, 112 N.M. 723, 819 P.2d 673, 683-84 (1991), wherein the Supreme Court of New Mexico pointed out that "we have not been directed to, nor have we found, authority requiring as a constitutional minimum the appointment of more than one attorney." See also Bell v. Watkins, 692 F.2d 999 (5th Cir.1982), cert. denied, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983) (holding no constitutional right to have co-counsel appointed in a capital offense prosecution); Hatch v. Oklahoma, 58 F.3d 1447 (10th Cir. 1995) (holding no equal protection violation in denying defendant appointment of co-counsel in a capital offense prosecution, even though a co-defendant was appointed co-counsel); Riley v. Snyder, 840 F.Supp. 1012 (D.Del. 1993) (affirming denial of appointment of co-counsel in a capital offense case where it was found that the case did not present any complex factual or legal issues); Spranger v. State, 650 N.E.2d 1117, 1123 (Ind.1995) (no *575 constitutional right to appointment of co-counsel); Smith v. State, 445 So.2d 227, 230 (Miss.1984) (no constitutional right to appointment of co-counsel). The defendant has not drawn our attention to any authority holding there is a federal or state constitutional right to appointment of co-counsel or to authority showing he had a right to appointment of co-counsel under a statute or court rule. Our research has found no such authority. The State contends the trial court did not abuse its discretion in denying the request for co-counsel. The trial court stated in a correspondence denying the request:
"I have reviewed your letter request ... and your verbal request ... seeking appointment of co-counsel for the defendant in the above-styled case. Knowing of your legal abilities, having presided in trials in which you participated as lead counsel and considering the number of years you have actively engaged in the practice of law, I have concluded that you are clearly qualified to fully represent this defendant without the assistance of co-counsel."
We are of the opinion that the State is correct in asserting that the trial court did not abuse its discretion in denying the defendant appointment of co-counsel. The trial court's decision was grounded upon its knowledge of the trial experience of the defendant's counsel. Adding to this is the fact that this case did not present any complex factual or legal issues. The heart of the State's case was the testimony of the co-defendant.
VIII.
BIFURCATION
The defendant next assigns as error the trial court's denial of his motion to bifurcate the guilt phase and penalty phase proceedings in this case. We recently held in State v. LaRock, 196 W.Va. at 313, 470 S.E.2d at 632, "that a unitary criminal trial in a first degree murder case meets muster under both the United States and West Virginia Constitutions." In Syllabus Point 4 of LaRock, we held: "A trial court has discretionary authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding as to mercy." LaRock also held that:
"To demonstrate that the trial court abused its discretion, a showing of `compelling prejudice' is required. `Compelling prejudice' exists where a defendant can demonstrate that without bifurcation he or she was unable to receive a fair trial regarding the finding of mercy and that the trial court could afford no protection from the prejudice suffered. In short, this Court will grant relief only if the appellant can show prejudice amounting to fundamental unfairness." 196 W.Va. at 315, 470 S.E.2d at 634..
During the trial in the instant proceeding, the following exchange occurred regarding the issue of bifurcation:
"[DEFENSE]: I'd like to make one other objection, too.
"THE COURT: Yes, sir.
"[DEFENSE]: Not that I'm saying that this does not correctly state what the law is, but I think thethe statute isand the law in the State of West Virginia is to whether or not to grant mercy isis constitutionally flawed, in that we have only one proceeding in which to present guilt or innocence and whether or not they ought to have mercy.
"I think thethe betterthe better way to do it is the way other states do it, which is a proceeding where the jury finds guilt or innocence and then the defendant is able to show mitigating circumstances after that, to let the jury find a recommendation.
"I'm kind of in a quandary here when I can only represent the defendantor in the same proceeding I've got to representguilt or innocence and then I really can't do a very good job of presenting mitigating circumstances in that same proceeding without, in effect, admitting some sort of guilt. So I ask that the Court to declare the whole thing unconstitutional.
"THE COURT: Well, you'reand I'll consider that, also, the motion to bifurcate guilt and the punishment. As to the motion to bifurcate, I deny the motion. As to the constitutionality of the statute, I find it *576 is constitutional and has been so held by our State Supreme Court of Appeals.
"And unless and until the State Supreme Court of Appeals passes down an opinion requiring two separate phases dealing with those issues, I believe that the manner in which I will do this one is, under the current state of the law, appropriate."
The trial court's decision to deny bifurcation in the instant proceeding was not an abuse of discretion. Further, at the time of the instant proceeding, our decision in LaRock had not been handed down. We also point out that in LaRock we refused to apply the new bifurcation rule retroactively to the defendant in that case.
IX.
CUMULATIVE EFFECT OF ALL THE ASSERTED ERRORS
Finally, the defendant argues that the cumulative effect of the asserted errors are prejudicial and requires reversal. Under State v. Walker, 188 W.Va. 661, 425 S.E.2d 616 (1992), a conviction may be set aside where the cumulative effect of numerous errors prevent a defendant from receiving a fair trial, even though any one of such errors standing alone would be harmless. In view of the Court's assumed finding of error on only one issue in this case, which assumed error was found to be harmless, if indeed it was error, we see no bases for applying the cumulative error doctrine.
X.
CONCLUSION
For the foregoing reasons, the defendant's conviction is affirmed.
Affirmed.
NOTES
[1] Dr. Irwin Sopher, the State's Chief Medical Examiner, testified that Mr. Moran was stabbed at least thirteen times.
[2] Rule 404(b) of the Rules of Evidence provides, in relevant part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]"
[3] We also note that the hearing on the motion was held outside the presence of the jury and the trial court found the evidence to be relevant. The State's brief points out that the defendant did not request a limiting instruction be given to the jury during the trial and none was given sua sponte by the trial court. However, the State notes that the trial court included in its jury instructions the following: "You are here to determine the guilt or innocence of this defendant from evidence in this case. This defendant is not on trial for any act or conduct or crimes not charged in the indictment." Ideally, we prefer that trial courts give limiting instructions on Rule 404(b) evidence contemporaneously with the admission of such evidence at the trial. However, in the absence of a request for the same by a defendant, we do not disapprove of such an instruction being given in the first instance during the trial court's general charge to the jury. The defendant noted in his brief that the trial could should have given a limiting instruction on the Rule 404(b) evidence like that proffered in his Instruction No. 2, which stated: "The Court instructs the jury that evidence of other offenses that the defendant may have been involved with should not be considered as proof that he committed or is guilty of the murder as charged in Fayette County." The State notes that the trial court rejected Defendant's Instruction No. 2 on the grounds that the issue was already covered in the trial court's instructions. Further, the State notes that the trial court asked the defendant to "please speak up" if he had anything to say regarding the rejection of Instruction No. 2, but the defendant responded: "Well, I just wanted to offer these." The State argues that any error in rejecting Instruction No. 2 was waived for appellate review purposes by the defendant's silence. The issue of waiver on Instruction No. 2 need not be decided by this Court because the defendant did not assign as error the failure to give Instruction No. 2.
[4] The trial court's charge stated:
"The testimony of an accomplice is admissible in evidence, yet in considering such testimony as to matters connecting the defendant with the commission of the crime which are not supported by other evidence or circumstances, you should examine such testimony with great care and caution in determining what weight to give such testimony.
"You may, however, find the defendant guilty on the evidence of an accomplice standing alone and not supported by any other evidence if you are convinced beyond a reasonable doubt by such evidence of the defendant's guilt."
[5] The State also argues this issue was not properly presented for appellate review in the defendant's brief. The State correctly points out that the defendant merely mentions that Instruction No. 4 was not accepted, without more. This Court noted in State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996): "Although we liberally construe briefs in determining issues presented for review, issues which are ... mentioned only in passing but are not supported by pertinent authority, are not considered on appeal." See also State v. Lilly, 194 W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) ("casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal") (Citation omitted).
[6] The following exchange occurred concerning Defendant's Instruction No. 4:
"[PROSECUTOR]: Well, but there's nothe evidence in this case doesn't show he was an accessory after the fact. There's no evidence in this case that he came upon the scene after the fact. He was
"[DEFENSE]: There's actually no evidence in this case that he came upon the scene during the fact either, except Kathy Agent
"THE COURT: Well, that's evidence. I'm going to refuse Defendant's No. 4."
[7] The defendant objected twice, on hearsay grounds, to testimony by Mark Sykes of the Federal Bureau of Investigation. The trial court overruled the objections as testimony involving matters Agent Sykes uncovered during his investigation. The defendant also objected twice on hearsay grounds to testimony by Matthew Jeffries of the Beckley Police Department. The trial court overruled both objections as also concerning matters uncovered by Officer Jeffries during his investigation. The defendant also objected to the introduction into evidence of bills from the Hilton Hotel in Florida and the testimony of Lieutenant John Mowen of the Daytona Beach Police Department regarding the same. The trial court overruled the objections on the grounds that the bills and testimony regarding the same where matters uncovered by Lieutenant Mowen during his investigation.
[8] The trial court addressed the issue as follows:
"Tattoos arewhy people put tattoos on their body, I have never figured out, but the defendant has them and he'll have to wear them.
"And I'm not going to allow the State to parade him in front of the jury and say, `Look at all those tattoos,' because they don't show anything other than he was silly enough to desecrate his body. But I'm not going to have his hands bandaged to cover any tattoos. He can wear a long-sleeved shirt, but that'swe take the defendant as we find, I suppose."
[9] An issue not raised or argued by the defendant in his brief but argued in the State's brief involves the defendant's motion for a new trial based upon the defendant having to keep his hands in his pockets throughout the trial. The defendant argued during the motion that the defendant was prejudiced by having to keep his hands in his pockets throughout the trial. The trial court ruled there was no prejudice caused to the defendant: "But at the trial of this case the State neither sought, nor was it done, any exhibition of the defendant's arms and hands. There was mention made of it, but the jury never saw any of those tattoos, and I don't think that's any ground at all to grant a motion for a new trial."
[10] The State contends the defendant's failure to cite to the record and to cite pertinent authority in support of this assignment of error renders appellate review of this particular assignment of error waived. The State is correct that this matter is not set out sufficient to satisfy our standards on appellate review. However, we will take up this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328199/ | 98 Ga. App. 597 (1958)
106 S.E.2d 191
HUGGINS et al.
v.
ATLANTA TILE & MARBLE COMPANY.
37355.
Court of Appeals of Georgia.
Decided November 12, 1958.
Ward, Brooks, Parker & Daniel, William W. Daniel, for plaintiffs in error.
Albert E. Mayer, contra.
*598 FELTON, Chief Judge.
1. The contract between the plaintiffs and the defendant provided that the work done by-the defendant would be subject to the approval or disapproval of "the architect." The contract named "A. Thomas Bradbury" as "architect." The evidence showed that the tile work in the kitchen was disapproved by Ralph Slay, an architect and an associate of Mr. Bradbury. Concerning the kitchen tile work, Mr. Bradbury testified in part: "Q. Do you recall the construction of the Josephine Wells School? A. Yes, I do. Q. Do you recall the tile work or anything about the tile work which was performed in the kitchen? A. Well, Mr. Slay was handling that particular job. I did check the job over when it was finally completed on final, and I had been out several times, but I did not check the particular tile. Q. Did you have any occasion to discuss that tile work with Mr. Slay? A. Yes, I did, on several occasions. Q. What was your decision about the acceptability of this tile which was originally installed by Atlanta Tile & Marble Company? A. Well, I left that up to Mr. Slay's judgment after he explained to me the situation, and I let him handle it, because he was familiar with it. Q. What did you discover as far as the tile floor in the kitchen was concerned when you went out there, Mr. Bradbury? A. Well, I had been out several times before the tile was set, but I wasn't there during the interim of the trouble that they had with the tile. Q. Did you see the first tile that was put down by Atlanta Tile & Marble? A. I don't recall seeing the first tile. I saw the finished job, and it was a nice job; I mean on the final inspection. I always go out on finals and several times during the course, but it so happens that that part just wasn't being done during the time I was making trips. It usually doesn't take but probably a couple of days to put a floor in like that, and even if I visit a job once a week, I could miss it. But I do know that and maybe I shouldn't make this statement I have confidence in Mr. Slay; he has been with me since 1935. Q. Is he authorized to make those decisions for you? A. Yes, he is. Q. What type of business arrangement do you have between yourself and Mr. Slay, Mr. Bradbury? A. Mr. Slay is an associate, and he participates in the profits of the firm. Q. If *599 you have any losses, would he participate in those? A. He would automatically, because, if we don't make anything, he doesn't get anything. We have to pay it out. Except for basic salary; he gets that. Q. Did you acquiesce in Mr. Slay's determination about the tile work? A. Yes."
An architect is selected and agreed upon to exercise his personal skill, discretion and judgment and his duty to exercise such skill, judgment and discretion cannot be delegated. See Code § 4-103; Springfield Fire &c. Ins. Co. v. Price, 132 Ga. 687, 692 (64 S. E. 1074). "The person agreed upon by the parties to pass upon the work has no right to delegate his authority to another, and if he attempts to do so, the decision of such other person is not conclusive on the parties, unless they agree to such substitution." 9 Am. Jur. 25, Building and Construction Contracts, § 35. Under the contract the defendant had the right to have its work passed on by A. Thomas Bradbury personally and Mr. Bradbury could not delegate his duties as architect to another so as to bind the defendant without his consent such as would amount to a novation of the contract. The only evidence which tended to show that the defendant looked upon Mr. Slay as the architect was a notation on the bottom of a letter written by the defendant to the plaintiffs, the notation being as follows: "cc: A. Thomas Bradbury, Architect, Att: Mr. Ralph Slay." This standing alone is not sufficient to authorize a finding that the defendant ever agreed to a substitution of Mr. Slay for Mr. Bradbury as architect or that there had been a novation of the contract to this effect or an acquiescence on the part of the defendant or an estoppel against the defendant. The defendant's officer who wrote that letter explained that he had not directed that such notation be placed at the bottom of the letter but that it must have been placed thereon by his secretary.
Since the plaintiffs tore out the defendant's tile work without its having been disapproved by the architect named in the contract thereby depriving the defendant of the right to have such work approved or disapproved by that named architect, the plaintiffs cannot recover for the costs of such tearing out and the relaying of a new tile floor, and the defendant is entitled to the remainder of the contract price being withheld by the plaintiffs.
*600 2. Since Mr. Bradbury was the architect charged with approval or disapproval of the work and since he never personally inspected the defendant's tile work on the kitchen floor, the treatment in division 1 of the opinion disposes of the questions presented in special grounds 4 and 5 of the amended motion for a new trial.
3. On direct examination, one of the plaintiffs testified: "Q. Did Mr. Attaway here ever raise any objection to you, or say that Mr. Slay had no authority to make this decision? A. No." The following question was then propounded: "Q. Have you ever heard anything about it before you got here in court? A. No, sir." An objection that the question and answer were immaterial was sustained. The court properly sustained the objection. It was not clear as to what "it" was that was heard and the question did not state from whom "it" was heard, and, so phrased, the question and the answer thereto were subject to the objection made. Special ground 6 of the amended motion is without merit.
4. Special ground 7 of the amended motion is without merit. The writer of a letter may testify that he remembers the contents of the letter and that the allegations contained in such letter are true. If the opposite party desires, he may, on cross-examination, go into the details of the letter and the allegations and contentions contained herein.
5. Special ground 9 of the amended motion for new trial complains that the court allowed one of the defendant's officers to testify that the defendant never "acquiesced" in Mr. Slay's acting as architect on the ground that the answer was a conclusion of law. We agree that such answer was a conclusion of law but it was one that was demanded under the evidence of this case and the plaintiff was not harmed thereby, assuming that it was error.
6. Since the judgment was demanded for the defendant in both the main and cross-actions, the findings of fact made by the trial court were inconsequential.
The court did not err in denying the amended motion for a new trial.
Judgment affirmed. Quillian and Nichols, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328230/ | 233 S.C. 561 (1958)
106 S.E.2d 169
Mrs. Ethel WARD, Respondent,
v.
FEDERAL INSURANCE COMPANY, Appellant.
17480
Supreme Court of South Carolina.
December 9, 1958.
*562 Messrs. Nelson, Mullins & Grier, of Columbia, for Appellant.
Messrs. Nash & Wilson, of Sumter, for Respondent.
*563 December 9, 1958.
STUKES, Chief Justice.
Respondent obtained judgment by default against Roger Miller for damages for personal injuries negligently inflicted in a motor vehicle accident which occurred while Miller was in the course of his employment by a subcontractor upon State Highway Department construction. Unsuccessful appeal of the judgment is reported as Ward v. Miller, 230 S.C. 288, 95 S.E. (2d) 482. There is a companion case which involves a similar judgment based on verdict for property damages and counsel have agreed that this opinion shall govern both cases.
Sloan Construction Company was awarded the construction contract by the Highway Department and to perform it engaged the subcontractor whose employee Miller was. Appellant furnished its bond to the Department which guaranteed the faithful performance of the contract, including the payment of all lawful claims by reason of injuries received in and about the construction. A similar surety bond or contract was construed, and liability thereon indicated, in Cantey v. Newell Contracting Co., 175 S.C. 74, 178 S.E. 342, 345. (Perhaps apropos to the result which we reach here is the following from that case: "This is a hard case on the surety company. However, our sole inquiry is in the words of the classics: `Is it so nominated in the bond?' It is so nominated in the bond, and this court so holds." Per Graydon, A.A.J.)
Upon Miller's failure to pay the judgment respondent brought this action against appellant upon its liability under its bond. In its answer appellant alleged that "the said Roger Miller was not responsible for said accident and the defendant further alleges that said judgment is not binding on this *564 defendant." Respondent moved to strike these allegations which the circuit court did, whence this appeal.
Appellant cites our decisions which hold that a judgment obtained against an agent is not conclusive against his principal, at least when the latter was not a party to the action and not vouched or given opportunity to defend it. Logan v. Atlantic & C.A. Ry. Co., 82 S.C. 518, 64 S.E. 515. Rookard v. Atlantic & C. Air Line Ry. Co., 84 S.C. 190, 65 S.E. 1047, 27 L.R.A., N.S., 435. Those authorities are not applicable to the present controversy because agency is not involved here. This is not an action respondeat superior against the subcontractor, employer of Miller. The liability here asserted arises from the bond or contract obligation of appellant in which it agreed to pay all lawful claims arising from injuries received in and about the construction (this is the allegation of the complaint, admitted by the answer the bond itself is not before the court) and respondent's such claim has been duly adjudicated by a court of competent jurisdiction in her action against Miller, who was engaged in the construction. There is no contention of fraud or collusion in the procurement of the judgment. We are here concerned with the law of suretyship, not agency.
Reference may be had to 72 C.J.S., Principal and Surety, § 261, p. 706, from which we quote the following:
"As a general rule, in all cases where the liability of a surety is dependent on the outcome of litigation in which his principal is or may be involved, a judgment against the principal is binding and conclusive on the surety, and the surety may not interpose defenses which should or might have been set up in the action in which the judgment was recovered, or require proof of the facts on which the judgment rests, or attack the validity of the judgment, except for fraud or collusion or want of jurisdiction. The rule is applicable even though the surety had no notice of the suit or opportunity to defend, * * *."
*565 See also Whisenhunt v. Sandel, 177 S.C. 207, 181 S.E. (2d) 61, 100 A.L.R. 376.
Implicit in appellant's argument is reference to the fact that respondent's judgment against Miller was obtained after his default in the action against him, although the amount of the damages was determined by the verdict of a jury. That is of no importance. 50 Am. Jur. 1039, Suretyship, Sec. 202. Applicable are the following extracts from the opinion in Sauer v. Detroit Fidelity & Surety Co., 237 Mich. 697, 213 N.W. 98, 99, 51 A.L.R. 1485:
"While, as contended, there may exist some conflict of authority upon the proposition, we have no hesitancy in holding that, in the absence of fraud, mistake, collusion, or conspiracy between the principal and other persons, a surety is not released from his obligation to pay the amount found due in a decree or upon judgment, because his principal did not contest the same, or because he consented thereto; that such a decree or judgment is in fact and effect a finding by the court. And in this holding we find support in the great weight of authority. * * *
"If, where a surety for hire, as in the instant case, undertakes in bond to pay a judgment or decree rendered against his principal, he can only be held if the suit be contested, the question naturally arises, To what extent must the contest be carried? Obviously no line of demarcation can be established. And, if the principal be in fact indebted to the obligee, must he testify that he is not, or must he stand mute and compel proof of the indebtedness to be made, or may he be permitted to concede the indebtedness and save the trouble and expense of a trial? The answer seems apparent that, if there be no fraud or mistake, the surety is in no way injured by his principal's acknowledgment of liability, and no good reason presents itself for releasing him because thereof."
Affirmed.
TAYLOR and MOSS, JJ., concur.
OXNER and LEGGE, JJ., dissent.
*566 LEGGE, Justice (dissenting).
All that the pleadings disclose concerning the bond in question is contained in the allegation in the complaint, admitted by the answer, that it was given "for the faithful performance of said contract (i. e. the contract between State Highway Department and Sloan Construction Company), including the payment of all lawful claims by reason of injuries received in and about said construction." I think that the motion to strike should have been refused because the pleadings do not sufficiently disclose the terms and conditions of the bond to enable the court to determine the issue here presented. In addition, it would appear from the quoted allegation that this was an ordinary performance bond. If so, the liability of the surety is no greater than that of the principal. 9 Am. Jur., Building and Construction Contracts, Section 88, p. 57; 50 Am. Jur., Suretyship, Section 2, p. 904, Section 30, p. 921; Greenville Airport Commission v. United States Fidelity & Guaranty Co. of Baltimore, Md., 226 S.C. 553, 86 S.E. (2d) 249. Also, upon payment of any loss, the surety is entitled to reimbursement from the principal. 43 Am. Jur., Public Works and Contracts, Section 143, p. 884; 50 Am. Jur., Subrogation, Section 49, p. 714; and cf. St. Paul-Mercury Indemnity Co. v. Donaldson, 225 S.C. 476, 83 S.E. (2d) 159.
The leading opinion assumes, as did the order of the circuit court, that the bond involved here is similar to that which was construed in Cantey v. Newell Contracting Co., 175 S.C. 74, 178 S.E. 342, 343. In that case this court said that "it was the intention and purpose of the highway department to see that all people who had legal claims against the contractor were properly and promptly paid." This language would seem clearly to imply that the surety should have no liability beyond that of the principal.
I can see no sound basis for the holding, in the circuit court order, that Miller "was in effect the principal on the bond executed by the defendant." If, as appears to be conceded, this is an ordinary performance bond, liability of the *567 principal contractor or of the subcontractor is essential to liability of the surety. Certainly, liability of either the principal contractor or of the subcontractor for the acts of Miller must be founded upon the doctrine of respondeat superior. But the leading opinion holds, in effect, that the judgment obtained against appellant is not dependent upon liability of either the subcontractor or the principal contractor; and it would logically follow that had either or both been made parties to the cause and absolved from liability, appellant would nevertheless be liable for payment of a judgment against Miller alone. Such a proposition does not, in my opinion, accord with the principles of suretyship.
OXNER, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328233/ | 106 S.E.2d 717 (1959)
249 N.C. 340
Levy L. OVERTON
v.
R. O. TARKINGTON and wife, Mary Marsh Tarkington (Original Defendants), and Starlite Theatres, Inc. (Additional Defendant).
No. 162.
Supreme Court of North Carolina.
January 14, 1959.
Rom B. Parker, Enfield, and J. C. Taylor, Halifax, for plaintiff appellee.
Daniel R. Dixon, Raleigh, for original defendants, appellants.
George C. Hampton, Jr., Greensboro, for additional defendant, appellee.
RODMAN, Justice.
It is not asserted the contract sued on is a negotiable instrument. Plaintiff seeks to recover as an assignee of a chose in action. The rights of the parties are to be determined on that assertion.
Plaintiff, as an assignee, is by statute, G.S. § 1-57, given the right to maintain the action in his name but that right is circumscribed by the express provision that it shall be without prejudice to any offset or other defense existing at the time of the assignment.
Plaintiff does not challenge the right of defendants to assert a usurious charge included in the instrument sued on with the right to have the evidence of the debt reduced to the extent of such charge. Guaranty *720 Bond & Mortgage Co. v. Fiar Promise A. M. E. Zion Church, 219 N.C. 395, 14 S.E.2d 37; Faison v. Grandy, 126 N.C. 827, 36 S.E. 276; Ward v. Sugg, 113 N.C. 489, 18 S.E. 717, 24 L.R.A. 280. Plaintiff denies defendants have a right to assert defensively or affirmatively the penalty for usurious interest collected by his assignor.
Defendants, in the answer as originally filed, asserted a liability imposed on the assignee for usurious payments made to the assignor; but by amendment to the answer they no longer claim such payments as a sword which they can use to attack the plaintiff. So far as plaintiff is concerned they now merely claim the right to use it as a buckler to shield and protect them from the attack made by plaintiff. The order striking the allegations deprived defendants of this asserted right. By the express language of the statute if the allegations could be asserted as a defense in an action by the assignor, they can be used for that purpose in this action.
Our statute, G.S. § 24-2, provides: "And in case a greater rate of interest has been paid, the person or his legal representatives or Corporation by whom it has been paid, may recover back twice the amount of interest paid in an action in the nature of an action for debt."
Plaintiff's position is that the statute provides a penalty and for that reason must be strictly construed. When so construed, the words "may recover back" provide a weapon which a debtor who has paid usurious interest may use for attack, as illustrated by Sloan v. Piedmont Fire Insurance Co., 189 N.C. 690, 128 S.E. 2; but its use is limited to that purposeit may not be used defensively. Our decisions are to the contrary. Stacy, C. J., said in Waters v. Garris, 188 N.C. 305, 124 S.E. 334, 336: "From an examination of the above section it will be seen that two remedies are provided for the enforcement of the penalties authorized by the statute: First, where a greater rate of interest than 6 per centum per annum has been paid, the person or his legal representatives or the corporation by whom it has been paid may recover back twice the amount of interest paid in an action at law in the nature of an action for debt. Planters National Bank of Virginia v. Wysong & Miles Co., 177 N.C. 380, 99 S.E. 199, 12 A.L.R. 1412. Second, in any action brought by the creditor to recover upon any usurious note or other evidence of debt affected with usury, it is lawful for the party against whom the action is brought to plead as a counterclaim or set off the penalties provided by the statute, to wit, twice the amount of interest paid, and also the forfeiture of the entire interest charged."
Authoritative interpretation given to the Federal statute, 12 U.S.C.A. § 86, accords with plaintiff's construction of our statute. McCollum v. Hamilton Nat. Bank, 303 U.S. 245, 58 S.Ct. 568, 570, 82 L.Ed. 819. This difference in interpretation is noted in the well considered opinion of Bobbitt, J., in Commercial Credit Corporation v. Robeson Motors, 243 N.C. 326, 90 S.E.2d 886, 54 A.L.R.2d 1337. The Court there reaffirmed the right to plead usurious interest paid as a defense. No sound reason is advanced for reversing the conclusion heretofore reached.
It follows that since defendants had a right to plead the usurious payments as a setoff or defense to any action brought by the original creditor, he could not evade the express language of the statute by assigning his debt to a third person. There was error in striking the allegations of the usurious payments made to Starlite. Standard Amusement Co. v. Tarkington, 247 N.C. 444, 101 S.E.2d 398; Iselin & Co. v. Saunders, 231 N.C. 642, 58 S.E.2d 614; North Carolina Bank & Trust Co. v. Williams, 201 N.C. 464, 160 S.E. 484; Pully v. Pass, 123 N.C. 168, 31 S.E. 478.
Our statute, G.S. § 1-73, makes it mandatory "when a complete determination of the controversy cannot be made without the presence of other parties" for these others to be made parties to the action. They *721 are necessary parties. Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843.
In a single instance our statute gives a party the right to bring in others not necessary parties, i. e., the right to bring in joint obligors for contribution. G.S. § 1-240.
When not regulated by statute the procedural processes which will best promote the administration of justice are left to the judicial discretion of the trial judge. He has plenary power with respect to those who ought to be made parties to facilitate the administration of justice. Childers v. Powell, 243 N.C. 711, 92 S.E.2d 65; Jackson v. Baggett, 237 N.C. 554, 75 S.E.2d 532; Marriner v. Mizzelle, 205 N.C. 204, 170 S.E. 650; Horne v. Horne, 205 N.C. 309, 171 S.E. 91.
The order making Starlite a party defendant so that the original defendants might have affirmative relief against Starlite was entered without notice to plaintiff or Starlite. It recites that Starlite is a necessary party. Starlite and plaintiff were entitled to be heard on the question of defendants' right to make Starlite a party. On the hearing on that question Judge Morris held that Starlite was not a necessary party. That holding is supported by carefully considered prior decisions. Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E.2d 659; Board of Education of Perquimans County v. Deitrick, 221 N.C. 38, 18 S.E.2d 704; Clark v. Pilot Freight Carriers, 247 N.C. 705, 102 S.E.2d 252; Hannah v. House, 247 N.C. 573, 101 S.E.2d 357; Kimsey v. Reaves, 242 N.C. 721, 89 S.E.2d 386.
Apparently Judge Morris recognized Starlite as a proper party on account of the implied warranty arising from the assignment. Bird v. Ross, 12 N.C. 472; Drennan v. Bunn, 124 Ill. 175, 16 N.E. 100, 7 Am.St.Rep. 354; Challis v. McCrum, 22 Kan. 157, 31 Am.Rep. 181; Carroll v. Nodine, 41 Or. 412, 69 P. 51; 6 C.J.S. Assignments § 101, p. 1159. The motion of defendants to make Starlite a party when it was not a necessary party but a proper party called on the presiding judge to exercise his discretion. His order recites he refused in the exercise of his discretion to make Starlite a party. His ruling in that respect is not reviewable. Horne v. Horne, supra.
Under the factual situation depicted in Standard Amusement Co. v. Tarkington, supra, the additional defendants were not merely proper parties; they were necessary parties. Therein lies the distinction between that case and this case.
The order reviewed will be modified to conform to this opinion, and as so modified is affirmed.
Modified and affirmed.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328237/ | 98 Ga. App. 786 (1958)
106 S.E.2d 836
MORRIS
v.
COCHRAN et al.
37364.
Court of Appeals of Georgia.
Decided December 5, 1958.
Rehearing Denied December 16 And December 19, 1958.
*788 Frank M. Gleason, for plaintiff in error.
Strang, Fletcher & Carriger, Shaw & Shaw, George Paul Shaw, Pittman, Kinney & Pope, contra.
GARDNER, Presiding Judge.
1. Insofar as the cause of action against the defendant Cochran is concerned, if she by negligence caused injuries to him as alleged in the petition, she would be liable to him for the resulting loss, regardless of the relationship between themselves (that is, whether she was his agent or engaged in a joint enterprise with him or not) so long as the *789 negligent act itself was not committed at his behest so as to make it his act rather than hers. If the act was an independent tort as to himself, he may recover irrespective of the fact that as to third parties the relationship might be such that the defendant's negligence would be imputable to the plaintiff against such third party. It is accordingly not necessary for the plaintiff to allege that he was a guest passenger in his own automobile. As stated in Central of Georgia Ry. Co. v. Macon Ry. & Light Co., 9 Ga. App. 628 (3) (71 S. E. 1076), although negligence may be imputable so as to make the parties joint wrongdoers as to another who is injured, yet as between themselves one may be the sole author of the wrong and compellable in damages as to the other. Negligence of a driver not caused or ratified by the owner of an automobile riding therein will not prevent an action by the owner against the driver under the common-law principles which render an agent liable to his principal or a servant to his master resulting from a personal tort. See Urquhart v. McEvoy, 204 Misc. 426, 126 N. Y. S. 2d 539.
The cases cited by the defendant Cochran do not hold to the contrary. King Bros. & Co. v. Passmore, 18 Ga. App. 514 (2a) (89 S. E. 1103), and Freeney v. Jones, 85 Ga. App. 1 (3) (67 S. E. 2d 783) hold merely that, where one acts by command of his principal, the principal, and not the agent, is liable to a third party for resulting injury. Watkins v. Brown, 14 Ga. App. 99 (2) (80 S. E. 212); Gallagher v. Gunn, 16 Ga. App. 600 (1) (85 S. E. 930), and Lytle v. Hancock County, 19 Ga. App. 193 (1) (91 S. E. 219) deal with imputable negligence as against innocent third parties. The case of Archer v. Aristocrat Ice Cream Co., 87 Ga. App. 567 (74 S. E. 2d 470) also deals with imputable negligence and holds that mere part ownership of an automobile by one who is the employee of the driver and subject to him creates no liability against the employee passenger, who cannot be presumed to be directing the operation of the vehicle.
Where the action is solely between the owner of an automobile and one who drives it in such a manner as to injure his person or property, the question of imputable negligence is not involved. Accordingly the petition, stripped of all conclusions alleged by the plaintiff as to the relationship between the parties, still sets *790 forth a cause of action against the driver on the ground that her lack of care, not caused by any act or direction of his own to her, inflicted injuries upon him. The trial court erred in sustaining the general demurrer of Betty Cochran.
2. The petition alleges, as against the defendant Bell, that his son was guilty of certain specified acts of negligence in attempting to pass the automobile ahead of him while approaching the plaintiff's car at a time and place where it was dangerous to do so, the road not being clear ahead, and that this negligence concurred with the negligence of Betty Cochran in causing the plaintiff's injuries. The demurrers of the defendant Bell were on the grounds that (a) the court had no jurisdiction of him, a nonresident, because no cause of action was set out against the defendant Cochran, and (b) no cause of action was set out against him. As we have seen, the petition does set out a cause of action against Cochran and the first ground of demurrer is without merit. As to the second ground, the petition presents a jury question under the facts alleged as to whether the negligence of both defendants concurred so as to cause the injury to the plaintiff.
The petition here was apparently drawn on the theory that the plaintiff was a guest passenger, for which reason the question of imputable negligence has not been fully developed in the briefs of counsel. Since, however, the general demurrer raises the question of the plaintiff's right to recover against Bell, and since he cannot recover against Bell if his negligence was equal to or greater than that of the defendant, it is necessary also to consider this issue. Unquestionably, the negligence of the driver, Cochran, is imputable to the owner Morris. Pollard v. Roberson, 61 Ga. App. 465 (3) (6 S. E. 2d 203); Rogers v. Johnson, 94 Ga. App. 666, 678 (96 S. E. 2d 285); Mayor &c. of Savannah v. Waters, 27 Ga. App. 813 (109 S. E. 918). Even so, the facts alleged do not reveal as a matter of law that the negligence of Miss Cochran imputable to the plaintiff was equal to or greater than that of Bell so as to absolutely bar him from recovery, but present a jury question on this issue. We are confronted with the proposition, however, that the plaintiff has in fact alleged that the acts of his driver constituted gross negligence and the *791 acts of Bell constituted ordinary negligence, and, if the plaintiff is bound by these legal conclusions, he obviously cannot recover as against one guilty of less negligence than that imputable to himself. Where it is necessary in order to support a recovery against a defendant to show gross negligence, and the facts alleged may amount to either gross or ordinary negligence, a petition which fails to allege that the negligence was gross is subject to demurrer. McBee v. Williamson, 96 Ga. App. 859 (3) (101 S. E. 2d 910). When, however, the plaintiff alleges facts which would support a recovery and then by way of conclusion alleges that which is unnecessary to the cause of action and which it is not incumbent upon him to prove, the conclusion may be disregarded and treated as surplusage. In Western Union Tel. Co. v. Harris, 6 Ga. App. 260 (2) (64 S. E. 1123) it was held: "Although the negligence with which a defendant is charged may be characterized in the plaintiff's petition as wilful and wanton, if the specific facts alleged do not warrant such conclusion the rule of duty which merely requires the exercise of ordinary care and diligence is not affected thereby; nor does it in such a case become incumbent upon the plaintiff, by reason of such allegation, to prove more than is required by law to entitle him to recover. The legal conclusions of the court are to be drawn from the statements of fact contained in the pleadings, unaffected by the conclusions of the pleader." See also Holland v. Boyette, 93 Ga. App. 497 (92 S. E. 2d 222); U. S. F. & G. Co. v. Sanders, 94 Ga. App. 904 (96 S. E. 2d 531). Since the plaintiff here did not need to allege or prove gross negligence against his driver in order to sustain his cause of action, and since the facts alleged do not demand the inference that the driver was more negligent than the defendant Bell, this conclusion may be disregarded. Accordingly, a jury question is presented as to whether the negligence of the defendant Cochran which is imputable to the plaintiff was equal to or greater than that alleged against the defendant Bell.
The petition sets forth a cause of action against both defendants, and the trial court erred in sustaining the general demurrers and dismissing the petition.
Judgment reversed. Townsend and Carlisle, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328240/ | 234 S.C. 1 (1959)
106 S.E.2d 447
J. F. EVATT, Plaintiff-Respondent,
v.
K.H. CAMPBELL, Defendant-Appellant.
17485
Supreme Court of South Carolina.
January 2, 1959.
*2 *3 J. Alex. Neely, Jr., Esq., of Anderson, for Appellant.
Messrs. Watkins, Vandiver & Freeman, of Anderson, for Respondent.
January 2, 1959.
MOSS, Justice.
This action was brought by J.F. Evatt, the respondent herein, against K.H. Campbell, the appellant herein, to recover the sum of Two Thousand Nine Hundred & 00/100 ($2,900.00) Dollars, being the balance alleged to be due on a salary contract. The complaint alleges that the appellant employed the respondent on June 18, 1953 for a period ending February 28, 1954, and agreed to pay the respondent for services rendered the sum of Three Thousand Six Hundred & 00/100 ($3,600.00) Dollars. The respondent asserts the performance of services and the appellant paid him only the sum of Seven Hundred & 00/100 ($700.00) Dollars, leaving the appellant indebted to him for the balance of Two Thousand Nine Hundred & 00/100 ($2,900.00) Dollars.
The appellant duly answered the complaint and denied the salary contract. The appellant also set up a counterclaim alleging that respondent and appellant were partners under a written agreement and demanded an accounting and for judgment against the respondent on the accounting.
*4 Upon motion of the appellant, this case was referred to a Special Referee to take and report the testimony, together with his findings of fact and conclusions of law. The Special Referee, after extended references and the taking of much testimony, filed a report finding the material allegations of the complaint to be true, and that the respondent was entitled to judgment against the appellant for the sum of Two Thousand Nine Hundred & 00/100 ($2,900.00) Dollars. The appellant duly excepted to the report of the Special Referee and, thereafter, the Honorable J.B. Pruitt, Resident Judge of the Tenth Circuit, issued an order concurring in the findings of fact made by the Special Referee and affirming the said report.
It is admitted by the parties to this action that on March 11, 1953, they entered into a partnership agreement which was to continue until February 28, 1954. The respondent contends that the said partnership agreement was terminated by mutual consent on or about June 18, 1953. The respondent also contends that upon the termination of the said partnership agreement by mutual consent, that the appellant agreed and promised to pay to him the sum of Three Thousand Six Hundred & 00/100 ($3,600.00) Dollars for his services as bookkeeper, salesman, office manager, and rent collector, and that the said agreement superseded the partnership agreement between the parties. The appellant denied that the partnership contract was terminated as contended by the respondent, and alleges that his only relationship with the respondent was that of a partner, and that the respondent should account to him for one-half of the losses sustained by the partnership. The pleadings admit that a partnership relation existed between the parties from March 11, 1953 until June 18, 1953. The pleadings put in issue whether or not the respondent was a partner or an employee for the latter part of the partnership contract period.
The respondent testified that on June 18, 1953, he entered into an oral agreement with the appellant to terminate the partnership contract because they did not have sufficient operating *5 capital. He testified also that "I was getting ready to leave, and Mr. Campbell told me that if I would stay on he would give me Three Thousand Six Hundred & 00/100 ($3,600.00) Dollars. So I stayed on. In other words, we didn't have no operating capital that is the reason this partnership wasn't carried out." He further testified "Mr. Campbell's agreement oral agreement with me was that if I would stay on and work collect his rent and look after his car lot that he would pay me the salary I was getting at Colonial Ice Company, which was Three Thousand Six Hundred & 00/100 ($3,600.00) Dollars." He further testified that this arrangement was to continue until February, 1954. The appellant, in his testimony, vigorously denied the foregoing agreement. The appellant objected to the testimony of the respondent and asserts that the Special Referee and the Circuit Judge were in error in finding that the written partnership agreement had been terminated by an oral agreement and converted to a salary agreement when "the partnership agreement was in writing and provided for the termination to be in writing."
The partnership agreement provides: "The partnership is to continue until February 28, 1954 and is to continue from year to year thereafter unless one partner gives notice in writing thirty (30) days before the close of a year that he desires to withdraw from the partnership."
The partnership contract upon which the appellant relies does not provide that its modification or termination by mutual consent be in writing. The provision above quoted provides the means whereby one partner may terminate the agreement without the consent of the other. We are concerned here with the question of whether a written contract may be changed, terminated or superseded by a subsequent parol agreement supported by a valuable consideration. It is clear, from the authorities hereinafter cited, that parties to a contract may supersede a written agreement by an oral one.
*6 In the case of Mebane v. Taylor, 164 S.C. 87, 162 S.E. 65, 67, it was said:
"It was competent for the parties to change, modify, or supersede the written agreement by an oral one.
"`The parties had a perfect right to change the terms of the contract, and when they agreed that, instead of the stock delivered November 1st, Auld would take the note of Searles for $500.00, and that agreement was consummated, they made a valid amendment to the original contract, and it became as if that provision had formed a part of it.' Searles v. Auld, 118 S.C. [430] 434, 111 S.E. 785, 786.
"`Parties to a written contract, after it has been executed and entered upon, may modify it. There is no need to cite authority for that postulate; the words of Lord Drenman thereabout, as quoted by Wigmore, Vol. 4, p. 3442, are sufficient.' Fass v. [South Atlantic Life] Ins. Co., 105 S.C. [107] 120, 89 S.E. 558, 562.
"`It is entirely competent for the parties to a contract to modify or waive their rights under it and engraft new terms upon it. * * *
"`It is true that a simple contract completely reduced to writing cannot be changed or modified by parol evidence of what was said or done by the parties at the time it was made, because the parties agree to put the contract in writing and to make the writing part, and evidence thereof. The very purpose of the writing is to render the agreement more certain, and to exclude parol evidence of it. Nevertheless, by the rules of the common law it is competent for the parties to a simple contract in writing before any breach of its provisions, either altogether to waive, dissolve, or abandon it, or vary or qualify its terms, and thus make a new one.' 6 R.C.L., page 914, § 299.
"`A written contract may in the absence of statutory provisions requiring a writing, be modified by a subsequent oral agreement. * * *
"`A written contract may be modified by the parties thereto in any manner they choose, notwithstanding, agreement *7 prohibiting its alteration except in a particular manner.' 13 C.J., page 593, § 609; page 594, § 611."
In the case of American Oil Co. v. Cox, 182 S.C. 419, 189 S.E. 660, 662, this Court said:
"The appellants interposed as one of their defenses that the written lease had been superseded or altered by a subsequent oral agreement entered into between the parties, supported by a valuable consideration, but testimony offered to establish the alleged oral agreement was excluded by the magistrate upon motion of the respondent. Because of this adverse ruling the defendants assign error. Unquestionably, it is true that a written contract may be changed by a subsequent parol agreement, supported by a valuable consideration, and evidence is admissible in proof of such parol agreement. * * *"
The appellant asserts that there was no consideration to support the verbal agreement substituted for the written partnership contract. The question to be determined is whether there was a valid legal consideration to support the termination of the partnership agreement and the making of a substituted contract therefor.
In the case of Rabon v. State Finance Corporation, 203 S.C. 183, 26 S.E. (2d) 501, 502 this Court said:
"It has been the established law of South Carolina since the commencement of its jurisprudence that a contract is an agreement on sufficient consideration, to do or not do a particular thing. Therefore, the consideration is one of the vital elements of a valid binding contract, and no contract is complete without a valid, legal consideration."
In the case of Shayne of Miami, Inc. v. Greybow, Inc., 232 S.C. 161, 101 S.E. (2d) 486, 489, it was said:
"An age-old definition of consideration is, `a benefit to the party promising, or a loss or detriment to the party to whom the promise is made.' 17 C.J.S., Contracts, § 70, p. 420. `A long series of decisions has established the rule that a benefit to the promisor or a detriment to the promisee is sufficient *8 consideration for a contract.' 12 Am. Jur. 570, Contracts, Sec. 79. For the last quoted text there are cited in the footnote our leading cases of Ferrell v. Scott, 2 Speers 344, 42 Am. Dec. 371, and Furman University v. Waller, 124 S.C. 68, 117 S.E. 356, 33 A.L.R. 615."
It appears from the evidence that the respondent, when there was a termination of the partnership agreement with the appellant, was planning to take other employment. The respondent testified that he was manager of Colonial Ice Company at the time he entered into the partnership agreement with the appellant. He aslso testified that he was offered a position with the company he now represents, but that the appellant told him he would give him Three Thousand Six Hundred & 00/100 ($3,600.00) Dollars if he would stay on and help him. This detriment to the respondent is sufficient consideration for the contract of employment. Theodore v. Mozie, 230 S.C. 216, 95 S.E. (2d) 173. Mutual promises also constitute a good consideration. Callaham v. Ridgeway, 138 S.C. 10, 135 S.E. 646.
The appellant asserts that the Special Referee and the trial Judge committed error in finding that the partnership agreement had been terminated and that the respondent had made a partnership accounting.
The testimony of the respondent was to the effect that the partnership agreement had been terminated and that he entered into an employer-employee relationship with the appellant. The appellant specifically denied this testimony. It became, therefore, a question of fact for determination upon the trial of the case before the Special Referee. The Special Referee has found as a fact that the partnership agreement was terminated and that the respondent remained as an employee of the appellant on the terms heretofore set forth. The Circuit Judge has concurred in this finding of fact. The appellant alleges that the respondent is not worthy of belief because of various discrepancies in his testimony. It is well here to observe that the Special Referee saw the witnesses, heard the testimony delivered from the *9 stand and had the benefit of that personal observation of and contact with the parties, which is of peculiar value in arriving at a correct result in a case of this kind. Meyerson v. Malinow, 231 S.C. 14, 97 S.E. (2d) 88. Credibility of the witnesses, of necessity, must be left with the Special Referee.
The record shows, with reference to the accounting by the respondent, that he employed an accountant who prepared and submitted a balance sheet and a profit and loss statement. It is further in the testimony that the books of the business were set up originally by an accountant, and that the appellant stated to the respondent that he would get a bookkeeper, but this was never done. The Special Referee sums up the situation, with reference to the accounting, in the following language:
"Many aspects of this situation make it most difficult to find what really constitute the facts of the case. The Defendant can neither read nor write. Three separate bank accounts were involved. In addition to the used car activities, these accounts were also used sometimes in connection with certain rental property and farm operations of the Defendant. Apparently some of the money used for these purposes was reimbursed and some was not. As the Plaintiff put it, he was to `put down the pay-outs and the come-ins and the balance.' No orthodox bookkeeping methods were used, nor was the Plaintiff capable of properly keeping books. The records were kept in a slipshod, informal manner which makes it a practical impossibility to render an accurate accounting or to reconstruct the business activities during the period in question. Considering his limitations in the field of accounting, it is felt that the Plaintiff has done his best to try to render a satisfactory accounting to the Court. He employed an accountant who prepared and submitted a balance sheet and profit and loss statement. This accountant testified that he could not vouch for the accuracy or completeness of his report because of the incompleteness of the records."
*10 The Special Referee accepted the accounting made by the respondent. This accounting was prepared by one Garrison, who had been in the accounting business since 1923. The accounting showed a net profit of Two Thousand Nine Hundred Thirty-six & 58/100 ($2,936.58) Dollars. The accountant testified that he had made the report as best he could but he did not vouch for the accuracy or completeness of same because he did not have complete records. The appellant insists that there should be accepted a profit and loss statement made on a net worth basis, which shows a loss to the partnership. In this connection it should be pointed out that the appraisal of the inventory and the receivables on hand, upon which the net worth statement was based, was made on May 4, 1954, after the appellant had requested the respondent to join with him in appointing appraisers to fix the value of the partnership assets. The respondent, in response to such request, advised the appellant that he would have no part in fixing said valuation as he had no interest in the partnership. The Special Referee did not accept the statement of the appellant prepared on the net worth basis, but approved the accounting as made by the respondent. The Special Referee's conclusions have been concurred in by the Circuit Judge.
An action for an accounting is equitable in nature. This being true, we are bound by the rule that in an equity case the findings of fact by a Special Referee and concurred in by the Circuit Judge are conclusive upon this Court, and will not be disturbed unless it is shown that such findings are without any evidence to support them, or are against the clear preponderance of the evidence. Wise v. Picow, 232 S.C. 237, 101 S.E. (2d) 651. We have carefully studied the record and find that the facts amply support the holdings of the Special Referee, and such findings of fact have been affirmed and concurred in by the Circuit Judge. We are, therefore, bound by the same.
The complaint sets forth an action at law for the recovery of a balance due upon an alleged salary contract. The order of reference directed the Special Referee *11 to determine all issues of fact. The Special Referee has found that the respondent was entitled to recover the amount he alleged to be due for salary. This finding has been concurred in by the Circuit Judge. There is evidence to support the finding. Where an action at law is tried before a Special Referee, or a Judge, without a jury, the findings of fact have the same force and effect as the verdict of a jury, unless the trial officer has committed some error of law leading him to an erroneous conclusion, or unless the evidence is reasonably susceptible of the opposite conclusion only, his finding of fact must be accepted by this Court. Robinson v. Carolina Casualty Ins. Co., 232 S.C. 268, 101 S.E. (2d) 664. There is evidence to sustain the conclusion reached by the Special Referee and the Circuit Judge upon the issue made by the complaint and denied by the answer.
The record shows that after the Special Referee had made and filed his report, and the Circuit Judge had, by order, affirmed such report, that the appellant moved before the Circuit Judge for a new trial on after discovered evidence. Attached to the notice of such motion was an affidavit by one Jones that the respondent had offered to pay him the sum of Five Hundred & 00/100 ($500.00) Dollars to testify that he had witnessed a verbal agreement between the respondent and the appellant to the effect that the partnership agreement between the parties had been terminated, and that the respondent was to work for the appellant for Seventy-five & 00/100 ($75.00) Dollars per week. It appears by affidavit of the appellant that he did not know of this evidence until after the rendition of the order by the Circuit Judge.
It is well to state the law regulating the consideration and determination of motions for a new trial based on after discovered evidence. The rule is fully stated in the case of McCabe v. Sloan, 184 S.C. 158, 191 S.E. 905, 908, as follows:
"In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear, (1) that the evidence is such as will probably change the result. *12 if a new trial is granted. (2) That it has been discovered since the trial. (3) That it could not have been discovered before the trial by the exercise of due diligence. (4) That it is material to the issue. (5) That it is not merely cumulative or impeaching. 20 R.C.L., 290, § 72."
The motion made by the appellant on after discovered evidence was heard by the Circuit Judge and refused on the ground that the affidavit upon which such motion was based shows that the testimony would be impeaching. He held that in order to warrant a new trial on the ground of after discovered evidence it must appear that such evidence is not merely impeaching. The Circuit Judge also held that the motion for a new trial was one addressed to his sound discretion and in the exercise of such he refused the motion.
While the respondent was on the witness stand and under cross examination by counsel for the appellant, the following questions and answers were given:
"Q. When did you first think about calling for a salary instead of the partnership? A. Mr. Campbell told me that he would pay me this salary down on Earle Street in June.
"Q. How many people did you ask to come up here and testify that they heard that conversation? A. Not anyone.
"Q. Did you get any statements from anyone? A. Mr. Bryant over there he voluntarily said he heard Mr. Campbell tell me.
"Q. So, Mr. Bryant quit when did he voluntarily tell you he heard that? A. He told me on two or three different occasions.
"Q. How come did he tell you? A. We were talking, and he just said he heard it.
"Q. Where were you then the first time? A. Over on Earle Street.
"Q. How come you had to have witness then to it? A. Well, it was an oral agreement he volunteered to be a witness to it.
*13 "Q. You said this morning it was oral because you just thought Mr. Campbell's word was good did you not? A. Yes, sir.
"Q. But right then and there you were discussing it with somebody A. No, sir he just come up.
"Q. Why would he come up and tell you he heard the conversation if you haven't talked about it? A. Well, I don't know how it came around, but he came up there and said he heard it.
"Q. You must have told him you thought you were going to have trouble A. No, sir.
"Q. Did you subpoena him up here today? A. Yes, sir.
"Q. Did you promise him anything to come? A. No, sir not a penny.
"Q. Who was in the office when you and Bud had this conversation? A. Bud and myself Robert was standing there at the door.
"Q. Who else was there? A. No one.
"Q. Have you talked to anyone else about testifying for you that they heard the conversation? A. No, sir."
We have quoted the foregoing testimony so that the record will show that the respondent was fully cross-examined as to whether he had talked to anyone about testifying in his behalf that they had heard the conversation between the respondent and the appellant by which the employment contract was made. We should point out that the witness Bryant referred to in the quoted testimony denied that he had heard any such conversation.
Is the after discovered evidence, as is contained in the affidavit of one Jones, impeaching evidence? If it is impeaching, then it cannot be the basis for a new trial.
In Johnston v. Belk-McKnight Co. of Newberry, Inc., 188 S.C. 149, 198 S.E. 395, 399, this Court said:
"* * * Impeaching must mean that which is outside the evidence already given, and impeaches that evidence; it *14 may be by attacking the character, the motives, the integrity, or veracity of those who gave the testimony.
"Black's Law Dictionary, Third Ed., page 922, gives this definition of the word `impeach':
"`In the Law of Evidence To call in question the veracity of a witness by means of evidence adduced for that purpose. The adducing of proof that a witness is unworthy of belief.'"
It is readily apparent from the affidavit heretofore referred to that the affiant Jones does not know anything about the merits of this case. It is likewise apparent that the sole purpose of offering the affiant as a witness would be to discredit the testimony of the respondent as a witness, and to contradict and impeach him as to whether or not he had talked to anyone else about testifying in the case that they had heard the conversation with reference to the agreement between the appellant and respondent.
We agree with the Circuit Judge that a new trial should not have been granted because the after discovered evidence tended merely to impeach the evidence of the respondent by disproving facts to which he has testified by proof of other inconsistent facts.
The motion for a new trial is addressed to the sound discretion of the Judge hearing it, and his refusal to grant such motion will not be interfered with by this Court unless an abuse of discretion is shown, amounting to error of law. This the appellant has failed to show. Johnston v. Belk-McKnight Co. of Newberry, Inc., supra, and State v. Johnson, 187 S.C. 439, 198 S.E. 1.
In view of the fact that we have disposed of this case upon the merits, it becomes unnecessary for us to determine whether timely notice of intention to appeal was given by the appellant.
All exceptions of the appellant are overruled and the judgment of the lower Court is affirmed.
STUKES, C.J., and TAYLOR, OXNER and LEGGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328242/ | 106 S.E.2d 164 (1958)
249 N.C. 263
John H. GALES and wife, Juliette S. Gales
v.
J. O. SMITH.
No. 611.
Supreme Court of North Carolina.
December 10, 1958.
E. J. Prevatte, Southport, for plaintiffs, appellants.
Herring & Walton, Southport, for defendant, appellee.
BOBBITT, Justice.
Evidence offered by plaintiffs tends to show, inter alia, that from October, 1951, until October, 1956, plaintiff John H. Gales successfully cultivated and substantially improved the J. O. Smith farm; that, by his efforts, a tobacco barn and a packhouse were built thereon and new and improved farm machinery of substantial value was acquired; and that the feme plaintiff did the housework and cared for her invalid mother until her death on January 13, 1956. In short, plaintiffs' evidence tends to show that they fully performed all obligations imposed on them by their alleged contract with J. O. Smith.
Did J. O. Smith, in October, 1951, enter into an agreement with plaintiffs, as alleged in the complaint? This issue was raised by the pleadings. The determinative question now presented is whether plaintiffs' evidence was sufficient to require submission of this issue to the jury.
*167 The testimony of plaintiffs tends to show the following:
Plaintiffs were married on September 2, 1950. The feme plaintiff, youngest child of J. O. Smith, was then living with her parents in the J. O. Smith home. After their marriage, John H. Gales, who had been living with his brother in Shallotte, completed a crop, worked for a month in a fish factory near Southport, and thereafter worked on a dredge, first in Wilmington, then in Georgetown, South Carolina, then in Brunswick, Georgia. (For his work on the dredge, he "cleared on the average over $60.00 per week.") Meanwhile, except for occasional week-end trips to Wilmington and Georgetown, the feme plaintiff continued to stay in the home of her parents.
In September, 1951, John H. Gales obtained leave to come home. He stayed until their first child was born. After completion of the job at Brunswick, the dredge was to be transferred to Florida for work that would take more than a year. The feme plaintiff wanted to go to Florida with her husband. It was decided that when he got to Florida he would get an apartment and send for her.
When J. O. Smith "found out" that plaintiffs were going to leave, he "talked it over" with John H. Gales. After their conversation, John H. Gales went back to Brunswick; but upon completion of the Brunswick job he notified the Captain that he was going home to farm. He then went to the home of J. O. Smith, where his wife and child were staying, and began farming with J. O. Smith in October, 1951.
Danny Gales, a brother of John H. Gales, testified that, on his way home from Southport, "while John was still on the dredge," he stopped at the home of J. O. Smith. He testified that, in the course of their conversation, Mr. Smith stated: "Danny, I am too old to be working like I am working. Juliette, here, she's here waiting on her mother and tending to her mother. John is supposed to be here. He ought to quit that dredge and come home. At my death I am going to give Juliette the place. John ought to be here working for his interest; it will be something for him in the future; he ought to be here working instead of me working like I am working." Danny Gales testified further that he told Mr. Smith that he agreed with him and that John would be a big help to him and it would mean something to John and Juliette in the future. Whereupon, so Danny Gales testified, Mr. Smith stated: "Well, at my death I'm going to give them the place, if he will come home; he ought to come on home and go to work and help me and do that much for his interest." Danny Gales testified that he visited Mr. Smith again, about three weeks after the conversation referred to, at which time he found that John had quit the dredge and had come in and gone to work at Mr. Smith's.
Danny Gales also testified: "Several months after the death of Mrs. Orin (Mrs. J. O.) Smith, I met Mr. Smith on the highway close to where he lived and I stopped and shook hands with him. I had not seen him in a couple of months and I asked him how they were all getting along and he did not seem to say much, until finally he said, `Danny, I am sorry not to give Juliette and John the place.' I asked him why he had decided not to give them the place, and I said that Juliette was mighty good to her mother and that she and John had worked there with him. Mr. Smith then said: `Well, I am afraid that if I go ahead and give the place to John, that he will mortgage the place and destroy it, do away with the place; I want to keep the place in the Smith family; I don't want it to get out of the Smith family.' I then told him that he ought to have thought about that before he made John and Juliette that offer and they could have got out somewhere else and would not have been hooked up there. Mr. Smith dropped his head and did not answer me."
The foregoing evidence, when considered in the light most favorable to plaintiffs, was sufficient to require submission of the case to the jury.
*168 It is noted that discrepancies and contradictions in the evidence, even though such occur in the evidence offered in behalf of plaintiff, are to be resolved by the jury, not by the court. White v. Lacey, 245 N.C. 364, 369, 96 S.E.2d 1.
An oral agreement to devise realty is within the statute of frauds and therefore unenforceable. Humphrey v. Faison, 247 N.C. 127, 134, 100 S.E.2d 524, and cases cited.
Assuming, without deciding, that the family relationships, nothing else appearing, raise the presumption that the services performed by plaintiffs were gratuitous, Francis v. Francis, 223 N.C. 401, 26 S.E.2d 907, and cases cited, such presumption is rebutted if and when plaintiffs establish that the services were performed in consideration of defendant's agreement to pay therefor by conveyance or devise of his farm, effective as of the date of his death.
The applicable rule is stated by Stacy, C. J., in Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764, 765, as follows: "When services are performed by one person for another under an agreement or mutual understanding (fairly to be inferred from their conduct, declarations and attendant circumstances) that compensation therefor is to be provided in the will of the person receiving the benefit of such services, and the latter dies intestate or fails to make such provision, a cause of action accrues in favor of the person rendering the services."
Plaintiffs do not seek to enforce the alleged contract. They seek to recover on quantum meruit. Allegations and evidence as to the alleged contract are relevant, not as the basis of recovery, but to rebut any presumption that the services were gratuitous, Wells v. Foreman, 236 N.C. 351, 72 S.E.2d 765, and as facts and circumstances permitting the inference that payment was intended on the one hand and expected on the other, Nesbitt v. Donoho, 198 N.C. 147, 150 S.E. 875.
It is noted that, while plaintiffs offered evidence as to the nature and extent of their services, no evidence was offered as to the reasonable value of such services. However, implied assumpsit (contract) is the basis for recovery on quantum meruit; and, if such contract was breached by J. O. Smith, plaintiffs were entitled at least to nominal damages. Sineath v. Katzis, 218 N.C. 740, 756, 12 S.E.2d 671; Bowen v. Fidelity Bank, 209 N.C. 140, 144, 183 S. E. 266. This is sufficient to eliminate said deficiency in plaintiffs' evidence as a ground for judgment of involuntary nonsuit.
It appears from the testimony of the feme plaintiff that she had three sisters and four brothers, all living except one brother. Although it appears that plaintiffs introduced, without objection, the last will and testament of John Orin Smith, dated August 20, 1956, and probated March 1, 1957, the provisions thereof are not set forth in the record. However, since the arguments in both briefs proceed on the assumption that J. O. Smith did not convey or devise the said realty to plaintiffs, we are disposed, for present purposes, to act on the same assumption.
In holding that the court was in error in granting defendant's motion for nonsuit, we have considered only the admitted evidence. It is not necessary to decision, and we deem it inadvisable on the present record, to discuss plaintiffs' assignment of error directed to the exclusion by the court of a portion of the testimony of Mrs. Cora Smith wherein she undertook to testify to declarations made to her by Carmen Smith, a son of J. O. Smith.
The judgment of involuntary nonsuit is reversed.
Reversed.
PARKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328244/ | 98 Ga. App. 792 (1958)
106 S.E.2d 807
DAWSON et al.
v.
HOSPITAL AUTHORITY OF AUGUSTA.
37429.
Court of Appeals of Georgia.
Decided December 5, 1958.
Rehearing Denied December 16, 1958.
*793 John F. Hardin, Isaac S. Peebles, Jr., for plaintiffs in error.
Fulcher, Fulcher, Hagler & Harper, contra.
CARLISLE, Judge.
1. The statement of facts and the opinion written by Judge Quillian on the previous appearance of this case in this court (96 Ga. App. 705, 101 S. E. 2d 207) set forth the material allegations of the petition and the material provisions of the hospital lien law as codified in Code (Ann.) § 67-2207 et seq. Accordingly, no useful purpose would be served by restating the pleadings or the provisions of this law. It is sufficient to say that under this law any hospital authority or corporation operating the hospital has a lien upon any and all causes of action accruing to the person to whom such care is furnished on account of injuries giving rise to such causes of action, and which necessitated such hospital care, the law providing the manner and method for enforcing such lien. The petition in the instant case shows that the plaintiff is the Hospital Authority of the City of Augusta; that it is operating as the University Hospital, and it shows that Dora Boyd was hospitalized in the hospital as the result of injuries received in an automobile accident; that she filed suit against Henry Dawson and Viola E. Dawson, which suit was subsequently settled by the Dawsons or by their insurance carrier by the payment to Dora Boyd of a sum in excess of the amount of the plaintiff's bill, and that, within ten days from the date of her discharge from the hospital and prior to the date of the alleged settlement of her claim, the hospital had filed its lien on her claim for damages against Viola Dawson. By Section 4 of the Act (Code, Ann., § 67-2210) no release of such cause of action or any covenant not to sue thereon shall be valid or effectual as against such lienholder unless the lienholder shall have joined therein in the execution of such release or covenant not to sue, and the lienholder may enforce the lien by an action against the person, firm or corporation liable for such damages.
There is nothing in this act which limits the right of the hospital to the enforcement of a lien against the claim of one who *794 would be legally liable to pay the hospital for the charges made, and the fact that the person treated in this case may have been a married woman and therefore not herself legally liable to pay for the necessary expenses of her treatment did not affect the hospital's right to enforce its lien on her claim for damages.
This action is purely statutory and it is only necessary to look to the terms of the statute itself to ascertain whether the petition sets forth a cause of action. It is, therefore, unnecessary when considering the petition on general demurrer that the petition alleged more than the specific elements set forth in the statute, and where the petition shows the treatment by the hospital of an injured person, the accrual of charges pursuant thereto, the filing of the lien by the hospital, the filing of a suit by the injured party, and its subsequent dismissal on the payment of a sum of money by or on behalf of the party alleged to have been liable, and the execution of a release to such party by the injured person, all the elements of the cause of action on behalf of the hospital and against the party alleged to have been liable are stated, and it is unnecessary for the hospital to allege in its petition facts showing negligence or liability to the injured party, independently of the settlement and release. This is especially so in view of the provisions of the act codified as Code (Ann.) § 67-2213, which provides that nothing in the act shall be construed as giving to the hospital an independent right of action to determine liability for injuries sustained by the injured person.
The petition was not subject to general demurrer, and any defects or minor discrepancies between the allegations of the petition and the lien would have to be reached by special demurrer, and, since there is no exception before this court as to the ruling on any of the special demurrers, these matters are not for our consideration.
2. The evidence introduced by the plaintiff proved the petition as laid. There was no issue of fact raised by the evidence. Whether or not the lien affidavit had been properly executed went only to the question of its admissibility (Williams v. State, 7 Ga. App. 33 (1), 65 S. E. 1097), and the affidavit having been admitted without any objection on the part of the defendant, and *795 it being complete and regular on its face, it was sufficient to prove the existence of the lien sought to be enforced, and, in the absence of a proper and timely objection to its admissibility, no question is presented as to its probative value.
The trial court did not err in directing the verdict for the plaintiff.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur. *796 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328245/ | 106 S.E.2d 470 (1959)
249 N.C. 357
E. L. BONN
v.
Raymond SUMMERS and wife, Elsie Summers.
No. 599.
Supreme Court of North Carolina.
January 14, 1959.
Hoyle & Hoyle, and J. Sam Johnson, Jr., Greensboro, for plaintiff.
J. Owen Lindley, Stedman Hines, and Benjamin Hines, Greensboro, for defendants.
DENNY, Justice.
There is no contention on the part of the defendants that the plaintiff did not procure a bona fide purchaser, who was ready, able, and willing to purchase the property of the defendants upon the terms offered by them. However, the defendants take the position that under the terms of their contract, the plaintiff's authority to sell the property involved expired at the end of three months from 21 May 1957 and that they were under no obligation to accept any contract of purchase submitted by the plaintiff after the expiration of that period. The contract is not so written. It provides for the listing to continue after the expiration of the three months' period fixed therein and until the defendants revoke the listing by giving ten days' written notice thereof to the plaintiff.
There is no contention that any written notice was given to the plaintiff revoking the listing prior to the procurement by the plaintiff of a bona fide purchaser.
It seems to be settled law that where a broker acts within the terms and authority given, and succeeds in procuring a contract of sale with a responsible purchaser, *472 he is entitled to his stipulated commission and his claim therefor is not affected because the vendors voluntarily fail to comply with their agreement to sell. Crowell v. Parker, 171 N.C. 392, 88 S.E. 497; House v. Abell, 182 N.C. 619, 109 S.E. 877; White v. Pleasants, 225 N.C. 760, 36 S.E.2d 227; Eller v. Fletcher, 227 N.C. 345, 42 S.E.2d 217; Carver v. Britt, 241 N.C. 538, 85 S.E.2d 888; 8 Am.Jur., Brokers, section 184, page 1097.
Where property is listed for sale with an agent and no time limit is set in the contract, notice of revocation of authority to sell must be given to the agent by the principal, otherwise the broker is entitled to his commission if he produces a purchaser who is ready, able, and willing to purchase the property listed with the agent. Reams v. Wilson, 147 N.C. 304, 60 S.E. 1124; Mechem on Agency, section 226, page 151, et seq.
It is true that where no time is fixed for the continuance of a contract between the broker and his principal, either party can terminate the contract at will, subject to the ordinary requisites of good faith. The only exception is an agency coupled with an interest, and that must be an interest in the subject of the agency and not merely a collateral interest, such as in commissions or compensation for making sale. However, a revocation will not be effective for the purpose of depriving the broker of his commission when a responsible purchaser is procured before the revocation. Abbott v. Hunt, 129 N.C. 403, 40 S.E. 119; Bolich-Hall Realty & Insurance Co. v. Disher, 225 N.C. 345, 34 S.E.2d 200; White v. Pleasants, supra.
This brings us to the gravamen of this appeal. The defendants contend the contract is ambiguous, contradictory, and unenforceable. They insist that in one sentence the agreement indicates that it might be in full force for a period of three months subsequent to the signing of the instrument and thereafter until revoked by giving the notice required therein by the defendants. However, in a subsequent paragraph the same document states, "if within three days after this listing expires you furnish me a list of prospects to whom you or your representative has actually shown the property * * * I will pay you full commission * * *."
They insist that the term "revocation" denotes the necessity for affirmative action on the part of the defendants, while the term "expires" indicates that the contractural relationship automatically ceased at a definite time, specifically after the three months' period stated in the contract.
We find no ambiguity in this contract or any irreconcilable provision therein. The contract does require affirmative action on the part of the defendants in order to effect its cancelation, unless such requirement had been waived by the plaintiff. Under the terms of the contract, the defendants had the right to give the plaintiff notice of revocation ten days before the expiration of three months. Greene v. Donner, 198 Wis. 122, 223 N.W. 427. If such notice had been given, the plaintiff's authority to sell would have been revoked at the expiration of the three months. Since this was not done, the contract, in our opinion, remained in full force and effect until notice of revocation was given as provided in the contract or the intention of the defendants not to comply therewith was brought to the attention of the plaintiff before he procured a purchaser.
In 12 C.J.S. Brokers § 16, p. 48, it is said: "Where the contract creates an exclusive agency for a certain period and provides that it may be revoked at the expiration of such period only by a specified written notice, the agency is exclusive for the period specified and continues thereafter until revoked by such notice; and such a contract is not objectionable as being for an indefinite or unreasonable term, since it may be revoked at any time, by written notice."
*473 In Reinke v. West, Tex.Civ.App., 303 S.W.2d 419, 420, the contract in question gave the broker authority to sell the land for a period of ninety days, "and thereafter from day to day until you are given written notice of the termination of this contract * * *" The contract in question was dated 11 July 1953 and a written cash offer for the sale of the land was presented to the principal on 11 April 1955. The principal contended "that the contract providing only for a 90-day listing and thereafter from day to day or until written termination must be limited to a reasonable duration and that a period of 22 months was unreasonable." The Court dismissed this contention, saying, "We do not agree that the rule contended for is applicable. The parties exercised their right to contract freely. They provided for a method of terminating the listing agreement which appellant failed to invoke. He is bound by the contract as written."
In the case of Hentges v. Wolff, 240 Minn. 517, 61 N.W.2d 748, 750, the contract granted the brokers the exclusive right to sell the property in question "until March 1, 1952, and thereafter until ten days' written notice terminating the agreement was received." The agreement was entered into on 2 January 1952 and contained this further provision: "It is further agreed that upon any sale or contract for the sale of said real estate made by me within three months next after the termination of this agreement to any person with whom you have had negotiations for the sale of the same and of which I shall have been advised, I will pay you the full rate of commission, as above indicated."
On 1 May 1952, negotiations for the sale of the property were begun by the brokers with one Dougherty, the ultimate purchaser, of which negotiations defendant was advised. On 23 June 1952, defendant sold the property to Dougherty. The Court held that the defendant must pay the commission, thus holding that the contract was in effect under the extension provision no notice having been given of its termination.
In Brownell v. Hanson, 109 Wash. 447, 186 P. 873, the contract in question provided that the authority of the broker to sell the land was "to continue in force for thirty days and thereafter until sold, unless revoked by a written notice at the expiration of the thirty days." The defendant sold the property involved through another broker, without having given the plaintiff any notice of the revocation of his authority to sell. The plaintiff procured a judgment against the defendant for commissions. The defendant appealed and contended in the appellate court that the provision that the agency should continue in force after the thirty days until the property was sold, unless revoked by written notice at the expiration of 30 days, in effect constituted an agreement in perpetuity. The Court said: "This contention is not meritorious. The agency could easily be revoked at any time, either at or after the fixed period had expired, by written notice as the contract provided, and there is certainly nothing in the nature of a perpetuity in such contracts."
Likewise in Gunning v. Muller, 118 Wash. 685, 204 P. 779, the contract provided, "I do hereby give and grant unto you for the period of 60 days from the date hereof and hereafter until withdrawal by ten days' written notice the exclusive right to sell said property * * *" In affirming the judgment of the lower court, awarding the broker his commissions, the Supreme Court of Washington said, "No notice of cancelation or withdrawal of the contract was ever given, therefore it was in force at the time of the sale." See also Howard & Brown Realty Co. v. Barnett, Mo.App., 206 S.W. 417, and Leslie v. Boyd, 124 Ind. 320, 24 N.E. 887. Cf. Wilson v. Franklin, 282 Pa. 189, 127 A. 609.
Whether the plaintiff, by his conduct or otherwise, waived the necessity of giving notice as required by the terms of the agreement under consideration, is for *474 the jury to determine. We have before us the plaintiff's evidence only. Even so, in our opinion, his evidence, when considered in the light most favorable to him, as it must be on motion for judgment as of nonsuit, is sufficient to require its submission to the jury. Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371; White v. Pleasants, supra. Hence, the judgment of the court below is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328249/ | 98 Ga. App. 446 (1958)
106 S.E.2d 87
NATIONAL AUTOMOBILE INSURANCE COMPANY
v.
VAUGHN.
37268.
Court of Appeals of Georgia.
Decided October 1, 1958.
Rehearing Denied October 23, 1958.
*447 Ginsberg & Haskins, for plaintiff in error.
Wotton, Long & Jones, Durham Schane, contra.
FELTON, Chief Judge.
The plaintiff did not prove that the market value of the automobile at the time of the loss was greater than $1,000, the amount that had been paid to the creditor beneficiary named in the policy.
The plaintiff testified that the market value at the time of the loss was $1,740 but he stated that he arrived at such figure because that was the price he paid for the automobile and he thought it was worth what he paid for it.
The evidence did show that the loss occurred six or seven weeks after the plaintiff purchased the car for $1,740 and the plaintiff testified that he had driven it very little. Ordinarily, a jury is authorized to make a finding as to market value based on the purchase price, the recentness of the purchase, the care given between the purchase and the loss, etc. (Atlantic Coast Line R. Co. v. Clements, 92 Ga. App. 451, 455, 88 S. E. 2d 809); however, such principle applies only where there has been no more than ordinary or average wear and tear on the automobile. Purchase price standing alone is not sufficient to establish market value. Collins & Glennville R. Co. v. Beasley, 36 Ga. App. 241, 243 (136 S. E. 167).
In this case the plaintiff testified: "Q. August 30th what happened to that car? A. Well, I had started out to the Old Highway and it started making a noise and it caught fire and it was burned, total loss."
Lewis Forrester testified for the defendant that he was an adjuster with the defendant; that he had been trained in automotive mechanics; that on the day after the loss he examined the automobile and made a mechanical inspection; that he *448 found the drive shaft, the front universal joints and the transmission destroyed; that such condition could not possibly have been caused by the fire; that the plaintiff had told him that as he, plaintiff, was starting across the bridge on the Old 41 Highway, he heard a loud noise; that the noise the plaintiff had heard was the drive shaft flapping up against the floorboard because it had become disengaged from the transmission some way and all of the mechanical damage occurred prior to the fire. This testimony was undisputed.
The evidence demanded a finding that the automobile was not in good mechanical condition at the time of the fire and, therefore, they could not by using the purchase price of the automobile determine the market value of the car at the time of the loss.
There was no other evidence as to market value which would have authorized the verdict.
The evidence demanded a verdict for the defendant, and the court erred in denying the defendant's motion for a judgment notwithstanding the verdict.
Judgment reversed with direction that the court enter a judgment in accordance with the motion.
Nichols, J., concurs. Quillian, J., concurs in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328253/ | 214 Ga. 525 (1958)
106 S.E.2d 14
FARR
v.
WILLIAMS, State Revenue Commissioner.
20211.
Supreme Court of Georgia.
Submitted October 14, 1958.
Decided November 7, 1958.
*528 W. Tom Veazey, T. Reuben Burnside, for plaintiff in error.
Eugene Cook, Attorney-General, Ben F. Johnson, Jr., Hugh Gibert, Robert H. Walling, Deputy Assistant Attorneys-General, contra.
CANDLER, Justice.
T. V. Williams, as State Revenue Commissioner, notified E. W. Farr that an assessment for delinquent sales taxes, together with interest and penalties, had been made against him, and that an execution would be issued for the collection of the assessed amounts after the expiration of ten days unless he settled the amounts due. Farr made no response to the notice, but within 15 days from the receipt of it filed an appeal with the commissioner, which was by him transmitted together with a certified copy of the record in due time to the Superior Court of Warren County, the county of his residence; and in connection with the appeal, he executed and filed the required bond with approved security. The commissioner made an oral motion to dismiss the appeal on the ground that it failed to state facts which would raise an issue to be decided by the court or by a jury. Farr then offered an amendment to his appeal, in which he alleged the date he received notice of the assessment, the several items making up the total assessment, and a denial that he owed the assessed amount or any part of it. By the amendment he specifically alleged that he was not indebted to the State of Georgia for any part of the tax, interest and penalties claimed. The commissioner objected to the allowance of the amendment *526 on the following grounds: (1) the original appeal does not constitute enough to amend by; (2) it states no facts which are sufficient to raise any question for decision by the court or a jury; and (3) it is merely a general denial that the assessed amount or any part of it is due. Over these objections, the trial judge allowed the amendment. On the same grounds, the commissioner then moved to dismiss the amended appeal and his motion was denied. The commissioner sued out a writ of error to the Court of Appeals, assigning error on the two rulings of the trial judge, and that court held that Farr's appeal was premature, and that the Superior Court of Warren County had no jurisdiction to hear and determine it, since he had failed to protest the assessment under the provisions of section 30 of an act providing for an integrated tax administration, which the legislature passed in 1938, and to secure a ruling on it by the commissioner before entering his appeal to the superior court; and it also held that the trial judge erred in not dismissing the appeal for that reason, even though no motion to dismiss it on that ground was made. To review that ruling, the writ of certiorari was granted by this court on Farr's application therefor. Held:
1. The taxes sought to be collected in this instance are sales taxes, interest and penalties, imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act of 1951 (Ga. L. 1951, p. 360). In part, section 18 of the act provides that, when a dealer coming under the provisions thereof fails to make a correct return and remittance of the taxes collected by him, or refuses to permit an examination of his books, records or papers, for the purpose of determining the amount of taxes he should account for, or to appear before the Revenue Commissioner or his assistants and answer questions respecting the amount of tax he should pay under the provisions of the act, the commissioner is authorized to make an assessment against him from such information as may be available to him and issue an execution for the collection of the assessed amount, and such an assessment is deemed by the act to be prima facie correct. Upon any claim of illegal assessment, the dealer, under section 19 of the act, has a right of appeal to the superior court of the county of his residence. His appeal must be filed with the commissioner within 15 days from the date of the assessment, and it is the duty of *527 the commissioner to transmit it together with a certified copy of the record to the clerk of the superior court of the county of the dealer's residence within 30 days from the date of the assessment. The procedure provided by the act for applying for and granting an appeal from the court of ordinary to the superior court applies as far as suitable to the appeal which the dealer has the right to make under the provisions of the Sales and Use Tax Act. There is no requirement in the act that the dealer file a protest with the commissioner to the assessment and secure a ruling by the commissioner on his protest as a prerequisite to his right of appeal to the superior court. The Sales and Use Tax Act simply provides for the dealer's right of appeal from the commissioner's assessment of sales and use taxes within 15 days from the date of the assessment to the superior court of the county of the dealer's residence. It is true that section 30 of an act which the legislature passed in 1938 (Ga. L. 1937-38, pp. 77, 93), providing for an integrated tax administration, in part provides: "Any taxpayer may contest any additional assessment or license made or determined by the Commissioner by filing with said Commissioner a written protest at any time within thirty (30) days from the date of notice of the assessment or license." That section expressly made the filing of a protest with the commissioner and a determination by the commissioner of the question thus raised a condition precedent to the taxpayer's right of appeal to the superior court. However, that section of the 1938 act deals only with final assessments against property for ad valorem taxes or the fixing of a final license fee; and the Court of Appeals erred in holding that section 19 of the Sales and Use Tax Act of 1951 is in pari materia with section 30 of the 1938 act and should be read in connection with it and considered as constituting a single body of law relating to the procedure for contesting all tax claims, and that for this reason the trial judge erred in not dismissing Farr's appeal. Hence, the judgment rendered by the Court of Appeals upon which error is assigned in the petition for certiorari is erroneous.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328260/ | 478 S.E.2d 611 (1996)
223 Ga. App. 501
WOMACK et al.
v.
COLUMBUS RENTALS, INC. et al.
No. A96A2205.
Court of Appeals of Georgia.
October 30, 1996.
Reconsideration Denied November 12, 1996.
Certiorari Denied February 28, 1997.
*613 Catherine Womack, pro se.
M.M. Womack, pro se.
Funderburk, Day & Lane, Joel P. Day, Bradford C. Dodds, Columbus, for appellees.
*612 McMURRAY, Presiding Judge.
Plaintiffs Columbus Rentals, Inc. and Kennon Realty Services, Inc. sought a writ of possession from the Municipal Court of Columbus, Georgia, alleging that defendants M.M. Womack and Catherine Womack were "tenant[s] at sufferance after foreclosure...." The summons informed defendants their "answer must be filed with the Clerk of the Municipal Court of Columbus, Georgia on or before the 19 day of January, 1996." On January 16, 1996, proceeding pro se, defendants filed a "Motion for Dismissal on the grounds of Lack of Merit[, ... contending they had a] [m]eritorious defense ... pursuant to [OCGA] § 11-3-104 and § 11-2-201 and § 11-3-107 and § 11-3-604 and Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 and Public Law 89-719." Defendants also filed a "CAVEAT TO THE COURT," "pray[ing] that the [Municipal] Court consider ALL the evidence provided in the response to the Dispossessory Warrant, in this Case Number 96CV216." Plaintiffs responded with a "MOTION TO STRIKE `CAVEAT TO THE COURT,' FOR JUDGMENT ON THE PLEADINGS AND FOR ISSUANCE OF WRIT OF POSSESSION INSTANTER." Plaintiffs also moved to compel defendants to pay rent into the registry of the court.
On January 29, 1996, defendants submitted their "ANSWER TO PLAINTIFF'S REQUEST FOR ADMISSIONS," and expressly denied that plaintiffs were the owner of the property, contending that they, "Defendants[,] possess Proof of Purchase of the property [at issue]...." On February 5, 1996, defendants submitted documents indicating that, as of July 28, 1995, the "TOTAL AMOUNT TO PAY LOAN IN FULL * * [was] $52,836.16." In support of their claim that the purchase money loan had been paid in full, defendants submitted a copy of a Thomas Cook Foreign Exchange draft, drawn on the Banca Commerciale Italiana in the amount of "58,000 ESP" and payable to "Great Financial Mortgage." This draft was returned unpaid to defendant M.M. Womack by Great Financial Mortgage on September 27, 1995, "due to `Not U.S. Dollars.' ... [Rather,] this check [was] still in the form of Spanish pesos estimated at $439.64 U.S. Dollars." Defendants also attempted payment by tendering to Great Financial Mortgage a second "PROMISSORY NOTE," dated October 23, 1995. This second promissory note recites that it constituted a complete and lawful discharge of the purchase money loan extended by Great Financial Mortgage. But this promissory note was "redeemable at the location of, c/o 1908 Manchester Expressway Columbus, Georgia state pz 31904, anytime within three (3) months of this date October 23rd, 1995, by appointment only. Such appointment is to be made only by a written request of Great Financial Mortgage, it's [sic] Officer's [sic] and/or State Licensed Attorney on Record, to the mailing address c/o 1908 Manchester Expressway Columbus, Georgia state pz 31904 and acknowledged by [defendant] Myrias M. Womack's written approval in response. No telephone correspondence will be permitted, as to keep all Communications in Written Form, as a Record of Evidence." This second promissory note "shall become Void if not redeemed within three (3) months of October 23, 1995."
On February 19, 1996, the Municipal Court found that defendants "admitted in open court that they did not file any document intended to Answer Plaintiffs' dispossessory affidavit on or prior to January 19, 1996," and ordered defendants' Caveat to the Court stricken from the record and "further granted a judgment by default ... [awarding] Plaintiffs a writ of possession immediately...." On February 21, 1996, defendants filed a notice of "APPEAL TO THE SUPERIOR COURT." Nevertheless, on February 27, 1996, defendants filed a "MOTION TO SET ASIDE JUDGMENT," as well as notice of filing "CHAPTER 13 BANKRUPTCY," that same day. On April 10, 1996, the United States Bankruptcy Court for the Middle District of Georgia, Columbus Division, lifted the automatic stay and granted permission to proceed "with the pending litigation concerning title to the property in question and entitlement to possession ... in the courts of *614 the State of Georgia...." On May 23, 1996, defendants filed a "MODIFIED AMENDMENT TO NOTICE OF APPEAL ... APPEAL TO THE GEORGIA COURT OF APPEALS." This amendment allegedly was necessitated "based on a 1983 City Ordinance prohibiting the Municipal Court to allow an appeal to the Superior Court." Defendants appeal "from the order and judgment in the Municipal Court of Columbus, Georgia, entered on February 19, 1996." Held:
1. The February 21, 1996 notice of appeal from the February 19, 1996, judgment is timely and valid, for purposes of this Court's appellate jurisdiction, even though that notice ostensibly pursues a nonexistent remedy in the superior court. See, e.g., Brumby v. State, 264 Ga. 215, 443 S.E.2d 613. After the filing of a valid notice of appeal, the Municipal Court was deprived of jurisdiction over the case and had no authority to grant defendants' motion for reconsideration or otherwise alter the judgment appealed from.
2. Defendants enumerate as error the Municipal Court's granting judgment by default, contending their Motion for Dismissal on the Grounds of Lack of Merit was a legally sufficient answer to the dispossessory action and created a triable issue as to the existence of the landlord-tenant relationship. We agree.
(a) The absence of a landlord-tenant relationship is a proper defense to a dispossessory action and if the defendant so answers, a trial of the issues shall be had in a civil court of record. Thomas v. Wells Fargo Credit Corp., 200 Ga.App. 592, 593(3) 594, 409 S.E.2d 71. The instant appeal turns on whether defendants filed a timely and adequate answer.
(b) "If the tenant fails to answer [within seven days] as provided in subsection (b) of Code Section 44-7-51, the court shall issue a writ of possession instanter notwithstanding Code Section 9-11-55 or Code Section 9-11-62[.]" OCGA § 44-7-53(a). "It is[, however,] clear that what constitutes an `answer' in a dispossessory action is to be liberally construed. An oral answer is sufficient to [require a trial of the issues in accordance with the procedures prescribed for civil actions in courts of record except where ... the action is tried in the magistrate court.... Former] Code Ann. §§ 61-302(b), 61-303 [now OCGA §§ 44-7-51(b) and 44-7-53 (a),( b) ]. Hill v. Hill, 241 Ga. 218, 244 S.E.2d 862 (1978)." Rucker v. Fuller, 247 Ga. 423, 424, 276 S.E.2d 600.
In the case sub judice, the Motion for Dismissal invoked OCGA § 11-3-104 (Form of Negotiable Instruments), former § 11-3-107 (Money) now § 11-3-107 (Foreign Money), § 11-2-201 (Statute of Frauds in the Title on Sales of Goods), and former § 11-3-604 now § 11-3-603 (Tender of Payment). A liberal construction of this timely pro se response in a dispossessory action authorizes the conclusion that defendants dispute the plaintiffs' allegations of ownership and the existence of the tenancy at sufferance. Consequently, the Municipal Court erred in failing to treat defendants' Motion of Dismissal, filed January 16, 1996, as a timely filed answer in this dispossessory action.
3. The question remains whether the Municipal Court further erred in granting plaintiff a judgment on the pleadings, in light of defendants' submission. A judgment that is correct for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86, 377 S.E.2d 673.
"The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. Walker v. Camp, 121 Ga.App. 765, 175 S.E.2d 53." McKinney v. South Boston Savings Bank, 156 Ga.App. 114, 115(2), 274 S.E.2d 34. It is not germane to a dispossessory proceeding to allege "that a contract under which the plaintiff claims to derive title from the defendant is void and should be canceled." Crawford v. Crawford, 139 Ga. 394, 77 S.E. 557. "If the sale of the premises under the power of sale in the loan deed ... was void on account of its improper exercise, or because the loan was not mature, this could not be set up as a defense to a [dispossessory] proceeding under the [former] Code [Ann.], §§ 61-301, 61-303 [now OCGA §§ 44-7-50, 44-7-53]. Crawford v. Crawford, 139 Ga. 394, 77 S.E. 557 [supra]. *615 A tenant can not dispute the title of his landlord. [In the case sub judice,] the relation of landlord and tenant did exist between the plaintiff[s] and the defendants in the form of a tenancy at sufferance. This principle is applicable in a dispossessory proceeding by the grantee in a security deed against the grantor or his heirs or assigns in possession, after the property has been sold under the deed and purchased by the grantee. Willis v. Harrell, 118 Ga. 906[, 911(10) ], 45 S.E. 794." Ryals v. Atlantic Life Ins. Co., 53 Ga.App. 469, 470, 186 S.E. 197.
In the case sub judice, the essence of defendants' answer is that plaintiffs' purchase is void because foreclosure by Great Financial Mortgage, the purchase money lender, was not authorized. This defense is not germane to the dispossessory proceeding became plaintiffs, as buyers at a foreclosure sale, are the owners unless and until that foreclosure is set aside. Consequently, the Municipal Court did not err in granting judgment on the pleadings awarding plaintiffs the writ of possession.
Judgment affirmed.
JOHNSON and RUFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328370/ | 212 Ga. 135 (1956)
91 S.E.2d 9
CHURCH
v.
YORK et al.
19149.
Supreme Court of Georgia.
Submitted November 14, 1955.
Decided January 9, 1956.
R. C. Scott, for plaintiff in error.
Kimzey & Kimzey, Herbert B. Kimzey, Irwin R. Kimzey, contra.
ALMAND, Justice.
Mrs. George C. Church sought by an equitable petition to enjoin Massey Concrete Company, a partnership, and another, from constructing a sidetrack that would interfere with the free passage over a private right-of-way running from the plaintiff's residence across the property of Massey Concrete Company. On the hearing of the prayer for an interlocutory injunction, the trial judge found as a matter of fact that, more than 15 years ago, the plaintiff and the predecessor in title of Massey Concrete Company made an agreement whereby a private right-of-way for the purpose of ingress and egress to and from her property was relocated, and such relocated way had been used since that time by the plaintiff over property now owned by Massey Concrete Company; that the present right-of-way is over 15 feet in width, and at some places approximately 30 feet in width, over the property of said company; that said company desires to build a sidetrack for the loading and unloading of cars, and in order to do so it would be necessary to block the south portion of the private way, leaving about 16 feet on the north side of the private way contiguous to the plaintiff's property. That Massey Concrete Company has prepared a private way on the north side of the present private way and graveled the same and placed it in as good condition as the center and south sides of the private way were at the time this action was brought, and such change did not interrupt or interfere with the plaintiff's easement or right-of-way, nor interfere with her ingress or egress to and from her property.
These findings on the part of the trial court are supported by the evidence. It does not appear from the evidence how the plaintiff's predecessor in title obtained the original right-of-way over the property now owned by Massey Concrete Company, *136 whether it was by order of the court of ordinary or by prescription, or how wide was the way. It appears that the change in the location of the private way was by consent of the then owners of the dominant and servient tenements, but it does not appear how wide was the relocated way. It is apparent from the pleadings and evidence that the plaintiff is now claiming the right to use such right-of-way by prescription. The evidence shows without dispute that the relocated way is at some places more than 15 feet in width, and is therefore insufficient to show a prescriptive right-of-way. Code §§ 83-102, 83-112. It also appears without dispute that Massey Concrete Company, in order to construct its railroad track on a portion of the present private way, has laid out a new way 16 feet in width and put it in condition for travel, and has prepared a way 16 feet in width over its property, whereby the plaintiff can travel to and from her property. This right is confirmed in the court's order. This record showing that the plaintiff in the ultimate obtained more comprehensive relief than she was entitled to, no reasonable grounds exist for complaining of the court's refusal to grant an interlocutory injunction.
It was not error to refuse to grant the interlocutory relief prayed for.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4203956/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MGM MIRAGE SECURITIES No. 16-15534
LITIGATION,
D.C. No.
------------------------------ 2:09-cv-01558-GMN-VCF
LUZERNE COUNTY RETIREMENT
SYSTEM; PHILADELPHIA BOARD OF
PENSIONS AND RETIREMENT; MEMORANDUM*
ARKANSAS TEACHER RETIREMENT
SYSTEM; STICHTING
PENSIOENFONDS METAAL EN
TECHNIEK, Lead Plaintiffs,
Plaintiffs-Appellees,
v.
NICKOLAS A. KACPROWSKI,
Objector-Appellant,
v.
MGM MIRAGE, AKA MGM Resorts
International; JAMES J. MURREN;
DANIEL J. D'ARRIGO; ROBERT C.
BALDWIN; DEBORAH HOWER LANNI,
Co-Executor of the Estate of J. Terrence
Lanni,
Defendants-Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted September 13, 2017**
San Francisco, California
Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,*** Senior
District Judge.
Objector Nickolas Kacprowski appeals the district court’s approval of a $75
million settlement in a securities fraud class action related to a construction on the
Las Vegas strip. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Kacprowski has standing to appeal the issues raised because he timely
objected to the approval of the settlement, see Churchill Vill., LLC v. Gen. Elec.,
361 F.3d 566, 572–73 (9th Cir. 2004), and we examine the settlement taken as a
whole, rather than its individual component parts, for overall fairness, Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).1
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert H. Whaley, Senior United States District Judge
for the Eastern District of Washington, sitting by designation.
1
Although he has not filed a claim form, Kacprowski also has standing to
appeal the fee award because he appeals the settlement as a whole, and not only the
fee award. Cf. Stetson v. Grissom, 821 F.3d 1157, 1163–64 (9th Cir. 2016)
(objector who fails to participate in settlement and objects only to class counsel’s
fees generally does not have standing to appeal the fee award); Knisley v. Network
Assocs., Inc., 312 F.3d 1123, 1126 (9th Cir. 2002) (standing issues arise when
objector fails to participate in settlement and appeals only the fee award); see also
2
2. The extensive notice efforts here satisfied the requirements of due
process and Federal Rule of Civil Procedure 23(c)(2). See Torrisi v. Tucson Elec.
Power Co., 8 F.3d 1370, 1374 (9th Cir. 1993). The claims administrator, Gilardi &
Co. LLC, mailed over 200,000 notices of the proposed settlement to potential class
members, including 252 institutions holding securities for the benefit of their
clients (i.e., nominee holders), approximately 4,200 financial institutions registered
with the SEC, and 456 institutions that monitor securities class actions for their
investor clients and regularly act on their behalf. Before mailing notices, Gilardi
checked the potential class members’ names and addresses against the U.S. Postal
Service’s National Change of Address database to identify any address changes.
And, it re-mailed notices returned as undeliverable after investigating the potential
class members’ alternative or updated address information using private databases
and address locator services.
Gilardi also published the settlement notice in the national edition of
Investor’s Business Daily, over a national newswire service, PR Newswire, and on
the Depository Trust Company’s Legal Notice System, and it established and
actively maintained a settlement-specific website (www.mgmmiragesecurities
litigation.com). Lastly, the parties sought and obtained a continuance of the
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 948–49 (9th Cir. 2011)
(“[T]he class recovery and the agreement on attorneys’ fees should be viewed as a
‘package deal.’”).
3
settlement hearing and an extension of the deadlines to permit more time for absent
class members to receive notice, opt out, object, and submit their claims. 2 We
conclude that these procedures gave sufficient time and adequate notice “to all
class members whose names and addresses may be ascertained through reasonable
effort,” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974), and provided “the
best practicable notice under the circumstances,” Silber v. Mabon, 18 F.3d 1449,
1454 (9th Cir. 1994).
3. The district court did not clearly abuse its discretion in approving the
settlement here. See Allen v. Bedolla, 787 F.3d 1218, 1222 (9th Cir. 2015). In
determining that the settlement was fair, reasonable, and adequate, the district
court sufficiently considered the Churchill factors, 361 F.3d at 575, found that the
settlement was not the product of collusion among the negotiating parties, and gave
“a reasoned response to all non-frivolous objections.” Allen, 787 F.3d at 1224; see
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011).3
2
The district court also continued the settlement hearing a second time sua
sponte.
3
For example, the district court found that the parties had sufficient
information to make an informed decision about the settlement because, among
other things, discovery produced over nine million pages of documents that the
parties “reviewed and analyzed significantly.” And, in objecting to the
settlement’s approval, Kacprowski conceded that he did not have access to that
information.
4
In addition, the parties reached a settlement after extensive negotiations
before a nationally recognized mediator, retired U.S. District Judge Layn R.
Phillips. Among other things, the district court properly relied on Judge Phillips’s
declaration stating that the settlement “represent[ed] a well-reasoned and sound
resolution of highly uncertain litigation” and was “the product of vigorous and
independent advocacy and arm’s-length negotiation conducted in good faith.”
Lastly, the district court’s approval of the settlement withstands the higher level of
scrutiny that we apply “when a settlement is negotiated absent class certification”
because none of the subtle signs of collusion we identified in Allen and Bluetooth
were present here.4 Allen, 787 F.3d at 1224; see Bluetooth, 654 F.3d at 947.
4. Nor did the district court abuse its discretion in approving the allocation
plan, which set a minimum threshold of $10 to receive a distribution from the
settlement fund. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir.
2000). It was not clearly erroneous for the district court to find that issuing very
small checks to class members would cause a disproportionate administrative
4
We reject Kacprowski’s argument that “evidence of collusion between the
parties was present in the form of a clear sailing provision,” because the settlement
provision providing that Defendants “shall take no position” as to Plaintiffs’ fee
application, neither set a ceiling for the amount of fees Plaintiffs could request, see
Allen, 787 F.3d at 1224, nor provided for the payment of fees separate and apart
from class funds, see Bluetooth, 654 F.3d at 947; see also id. at 948 (stating that
the presence of a neutral mediator is “a factor weighing in favor of a finding of
non-collusiveness”).
5
expense to the fund because of the costs of mailing the checks, tracking and
accounting for each payment, following up on uncashed checks, and reissuing
checks not cashed during their valid periods. The district court properly relied on
uncontroverted evidence showing that smaller checks, such as those under $10, in
many instances are never cashed. In addition, the court cited numerous cases that
have approved similar or higher minimum thresholds. See, e.g., Destefano v.
Zynga, Inc., No. 12-CV-04007-JSC, 2016 WL 537946, at *15 (N.D. Cal. Feb. 11,
2016) ($10 threshold); In re Merrill Lynch & Co., Inc. Research Reports Sec.
Litig., No. 02-MDL-1484JFK, 2007 WL 4526593, at *12 (S.D.N.Y. Dec. 20,
2007) ($50 threshold).
5. Lastly, the district court did not abuse its broad discretion in awarding
class counsel the benchmark award of 25% of the settlement fund as attorneys’
fees. See Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000). There were no
special circumstances here indicating that the 25% benchmark award was either
too small or too large. See Torrisi, 8 F.3d at 1376–77.
Objector shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).
AFFIRMED.
6 | 01-03-2023 | 09-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4203960/ | NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRISTOPHER MCINTYRE, No. 15-35234
Plaintiff-Appellant, D.C. No. 3:13-cv-00149-RRB
v. MEMORANDUM*
BP EXPLORATION & PRODUCTION,
INC., BP AMERICA PRODUCTION
COMPANY, JOHN DOES 1-20,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Senior District Judge, Presiding
Submitted September 11, 2017**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2). Therefore, McIntyre’s
motions for oral arguments are denied. McIntyre’s Motion For Judicial Notice is
granted.
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and BENNETT,*** District
Judge.
1. We review de novo the Rule 12(b)(6) dismissal of McIntyre’s claims
that he gave BP the idea that BP used to cap the blowout of an undersea oil well.
Lacey v. Maricopa Cty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc).
McIntyre’s quasi-contract and unjust enrichment claims are insufficiently
pleaded. There was no plausible factual basis for his allegation that he conferred
an actual benefit on BP. See Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130,
1143 (Alaska 1996) (per curiam) (Reeves I). His ideas were not sufficiently
developed or concrete to be ready for immediate use. Id. Indeed, McIntyre
concedes that BP extensively modified or completely changed any ideas he may
have provided.
McIntyre’s claims of use of confidential information fail to allege any
plausible factual basis to believe that he disclosed any ideas in confidence, see
Reeves v. Alyeska Pipeline Serv. Co., 56 P.3d 660, 666 (Alaska 2002) (citing
Reeves I, 926 P.2d at 1137), let alone in the course of a fiduciary relationship, see
Munn v. Thornton, 956 P.2d 1213, 1220 (Alaska 1998). He also pleads no
plausible factual basis for his claim that he took reasonable steps to maintain the
***
The Honorable Mark W. Bennett, Senior United States District Judge
for the Northern District of Iowa, sitting by designation.
2
secrecy of his ideas. ALASKA STAT. § 45.50.940. McIntyre has cited no authority
to support his contention that disclosure of ideas to address a “national emergency”
imposes confidentiality requirements or relieves him of the obligation to take
reasonable steps to maintain the secrecy of his ideas, and we know of none.
McIntyre’s fraud claims also fail. McIntyre did not plausibly allege how BP
induced him to rely on representations by BP. There is no plausible factual basis
for his contention on appeal that BP induced him to believe that his ideas were not
patentable, thus causing him to delay or forgo seeking a patent. Shehata v.
Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010) (common law fraud requires
inducement of justifiable reliance).
Because McIntyre does not challenge dismissal of his other claims, we do
not address them. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n
appeal, arguments not raised by a party in its opening brief are deemed waived.”).
2. The district court did not abuse its discretion by concluding that there
were defects in McIntyre’s complaint that could not be cured by amendment. See
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1034 (9th Cir. 2008).
We have no more reason than the district court did to believe that a third amended
complaint would fix the glaring weaknesses in his position. He has not pleaded
any plausible factual basis for his additional claim for negligent misrepresentation/
3
misrepresentation by omission. Arctic Tug & Barge, Inc. v. Raleigh, Schwarz &
Powell, 956 P.2d 1199, 1202 (Alaska 1998).
AFFIRMED.
4 | 01-03-2023 | 09-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2361662/ | 69 Md. App. 405 (1986)
518 A.2d 137
ROSECROFT TROTTING & PACING ASSOCIATION, INC.
v.
ELECTRONIC RACE PATROL, INC.
No. 275, September Term, 1986.
Court of Special Appeals of Maryland.
December 5, 1986.
Ellis J. Koch (O'Malley, Miles, McCarthy & Harrell, on the brief), Upper Marlboro, for appellant.
Kenneth A. Lechter (Fisher & Walcek, on the brief), Marlow Heights, for appellee.
Argued before WEANT, BISHOP and WENNER, JJ.
BISHOP, Judge.
Rosecroft Trotting & Pacing Association, Inc., (Rosecroft) appeals from an Order of the Circuit Court for Prince George's County (Perry, J.) that granted appellee's Motion for Summary Judgment and dismissed appellant's complaint to stay arbitration.
Rosecroft asks whether the trial court erred:
I. When it determined that the amended arbitration claim fell within the scope of the arbitration clause; and
II. In finding that the timeliness issue was for the arbitrators, and not the court, to decide.
FACTS
On December 31, 1974, appellee, Electronic Race Patrol, Inc. (ERP) entered into a contract with Rosecroft to provide audio visual services at Rosecroft Raceway. The contract contained no arbitration clause. To remedy disputes which arose during the performance of the contract, Rosecroft and ERP entered into a written agreement on October 19, 1979, by which the parties agreed to modify particular terms of the 1974 contract and to resolve by arbitration all past and future disputes pertaining to the contract.
Paragraph 4 of the 1979 agreement prohibited the officers and directors of Rosecroft from making any communications to anyone, either oral or written, that would tend to degrade or disparage the business reputation of ERP. After the expiration of the contract, ERP filed a demand for arbitration of five contractual claims against Rosecroft, none of which related to paragraph 4 of the 1979 agreement. In July of 1985, however, ERP amended its claim, alleging that Rosecroft also had breached paragraph 4, and sought damages totalling almost four and one-half million dollars.
Contending that disputes arising under paragraph 4 were not arbitrable, Rosecroft declined to submit that matter to arbitration. After both parties had the opportunity to comment fully on the arbitrability of the issue, the arbitrators determined that, pursuant to the 1979 agreement, the amended claim was arbitrable. Rosecroft then filed its Petition to Stay Arbitration, raising the issues of applicability of the arbitration clause and timeliness. The trial court granted ERP's Motion for Summary Judgment on both issues.
I.
Scope of the Arbitration Clause
In arbitration, parties voluntarily agree to substitute an impartial private arbitrator in place of the public tribunal. Gold Coast Mall v. Larmar Corp., 298 Md. 96, 103, 468 A.2d 91 (1983). The advantages of this substitution are clear; parties are able to minimize the formalities, delay, expenses, and vexation of ordinary litigation. Schreiber v. Pacific Coast Fire Insurance Company, 195 Md. 639, 647, 75 A.2d 108 (1950); Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., 21 Md. App. 307, 315, 320 A.2d 558 (1974). If a party has not bound itself contractually to arbitration, a court cannot compel the party to submit the dispute to arbitration. Gold Coast Mall, 298 Md. at 103, 468 A.2d 91. United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 582-83, 80 S. Ct. 1347, 1352-53, 4 L. Ed. 2d 1409 (1960).
Since its enactment in 1965, the Maryland Uniform Arbitration Act[1] has established a legislative policy that favors the enforcement of executory agreements to arbitrate. Gold Coast Mall, 298 Md. at 103, 468 A.2d 91; Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 448, 450 A.2d 1304 (1982). By providing that executory agreements to arbitrate are "valid, enforceable and irrevocable," MD. CTS. & JUD.PROC.CODE ANN. § 3-206 (1984), the function of the court was strictly limited to the resolution of a single issue: whether the parties intended to submit the subject matter of the dispute to arbitration. Gold Coast Mall, 298 Md. at 103-04, 468 A.2d 91; Bel Pre, 21 Md. App. at 320, 320 A.2d 558.
We are asked in the case sub judice to address this precise issue: the scope of an executory agreement to arbitrate. The parties disagree as to whether the arbitration provision contained in paragraph 11 of the 1979 agreement applies to the covenant not to disparage or degrade set out in paragraph 4. The arbitration clause provides in pertinent part:
Rosecroft and the Patrol agree that any dispute or disagreement concerning, pertaining, or relating to the performance of the Contract from January 1, 1980, and thereafter shall be submitted to arbitration by an impartial arbitrator selected by the parties.
(emphasis added). The arbitrator and the trial court classified this as a "catch-all" clause that authorizes the arbitration of any and all disputes relating to the performance of the contract. We agree with this characterization.
As a general rule, "[w]here there is a broad arbitration clause, calling for the arbitration of any and all disputes arising out of the contract, all issues are arbitrable unless expressly and specifically excluded." Gold Coast Mall, 298 Md. at 104, 468 A.2d 91; Bel Pre, 21 Md. App. at 321, 320 A.2d 558. The language of the 1979 agreement created a broad arbitration clause with no specific exclusions. Accordingly, all disputes arising from the original contract as well as the modified terms originating in the 1979 agreement fall within the ambit of the arbitration clause. The covenant not to disparage or degrade contained in paragraph 4 is one such contractual provision. Since this covenant was an attempt to regulate the manner in which Rosecroft and ERP dealt with one another during the performance of the contract so as to ensure the smooth transaction of business, it is clearly a contractual matter subject to arbitration.
Although no explicit exclusion exists, Rosecroft contends that we should nevertheless read one into the arbitration clause. Specifically, Rosecroft points to paragraph 10 of the 1979 agreement as evidence of the parties' intent to limit the applicability of the catch-all clause. Paragraph 10 pertains to the disposition of ERP's cable in place at the Rosecroft facility, after the termination of the service contract. This provision incorporated a separate arbitration provision, establishing that an arbitrator shall determine compensation if the parties fail to agree on a purchase price. Rosecroft argues that a broad construction of the arbitration clause would render the specific arbitration provision of paragraph 10 as surplusage. Citing Jeffrey Sneider-Maryland, Inc. v. Lavay, 28 Md. App. 229, 345 A.2d 79 (1975), for the proposition that courts should construe contracts on a whole so as to avoid surplusage, Rosecroft concludes that inclusion of this arbitration provision is the clearest evidence that the parties did not intend paragraph 11 to apply broadly to the entire agreement.
We do not agree. First, Rosecroft provides no authority for limiting, without express exclusion, the scope of arbitration clauses. In light of the well-recognized preference to enforce fully executory agreements to arbitrate, Gold Coast Mall, 298 Md. at 103, 468 A.2d 91; Charles J. Frank, Inc., 294 Md. at 448, 450 A.2d 1304, a broad, rather than narrow, interpretation of paragraph 11 seems appropriate. Second, Rosecroft's surplusage argument is misguided. The agreement that the parties forged in October 1979 served several purposes: it authorized the sale of Rosecroft stock from ERP to Rosecroft; it provided for the disposition of ERP's cable upon termination of the contract; it amended the original contract by modifying and adding to the existing terms. The provisions pertaining to the sale of stock and disposition of cable upon termination of the agreement clearly fell outside the ambit of the service contract. As a result, the parties decided to incorporate an arbitration clause into the latter section. As to matters relating to the performance of the contract, such as the covenant not to disparage under paragraph 4, the catch-all arbitration provision applies without rendering as surplusage the separate arbitration clause for cable disposition.
II.
Timeliness of ERP's Amended Claim
ERP filed its demand for arbitration of five contractual claims on April 29, 1985. Pursuant to the arbitration clause in paragraph 11, Rosecroft agreed to submit these contractual disputes to arbitration. While arbitration was in full swing, ERP amended its demand by seeking damages for breach of the convenant not to disparage or degrade. In its Complaint to Stay Arbitration, Rosecroft opposed ERP's amended claim on the ground that "demand for arbitration was not timely made." On appeal, Rosecroft contends that the timeliness issue was for the court, and not the arbitrator, to decide.
As a general rule, "timeliness of demand is a threshold question, which is, in the first instance, for the courts ... [to decide]." Frederick Contractors, Inc. v. Bel Pre Medical Center, Inc., 274 Md. 307, 315, 334 A.2d 526 (1974); accord Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 450 A.2d 1304 (1981). Because the concept of "timeliness" is somewhat ambiguous, it is important to keep clearly in mind what was before the Court in Bel Pre and Charles J. Frank and what the Court in fact decided. In both cases, one party to a contractual dispute attempted to enjoin arbitration proceedings on the ground that the opposing party's delay in demanding arbitration constituted a waiver of that right. As Judge Wilner explained for this Court,
[T]he issue in both cases was whether, by its acts or omissions, the party seeking arbitration had waived its contractual right to that particular forum .... Because an inappropriate delay in demanding arbitration acts as a relinquishment of the contractual right to compel such a proceeding, where that matter is in dispute, its resolution constitutes, in effect, a determination of whether the agreement to arbitrate still exists; and, under the statute, that is a proper issue for the court.
Stauffer Construction Company, Inc. v. Board of Education of Montgomery County, 54 Md. App. 658, 668, 460 A.2d 609 (1983).
In its complaint to stay arbitration, Rosecroft sought to enjoin arbitration of the amended claim on the ground that "the demand for arbitration ... [was] not timely made." The complaint, however, failed to indicate the precise nature of this objection. If appellant had based its objection on the ground that an inappropriate delay in demanding arbitration amounted to ERP's relinquishment of its contractual right to arbitrate, then the courts would be obliged to resolve that issue. "[I]n an action to compel or stay arbitration, the court should consider but one thing is there in existence an agreement to arbitrate the dispute sought to be arbitrated?" Stauffer, 54 Md. App. at 665, 460 A.2d 609. In deciding whether a party has waived its right to arbitrate, the court is in effect determining whether the agreement to arbitrate still exists. This issue is within the province of the court.
From the facts of this case as well as from Rosecroft's own brief, the waiver issue which Rosecroft raised and attempted to litigate was not the waiver issue normally decided by the courts. First, the procedural posture of the parties logically precluded Rosecroft from raising that issue. At the time that the complaint was filed, the arbitration agreement was being carried out in full force and effect, without objection from Rosecroft. Rosecroft could have hardly objected to an arbitration to which it was already an active participant. Second, in its own brief, Rosecroft characterized the timeliness issue as unrelated to whether ERP had relinquished its contractual right to arbitrate: "Plainly the issue of timeliness is a question of fact as to when the incidents occurred and whether a specific incident constitutes a degrading or disparaging of ERP." This issue pertains only to the timeliness of the claim which is the subject of arbitration and not to the right to arbitrate.
Although Rosecroft ignores the distinction, timeliness of a claim to arbitrate is not equivalent to timeliness of the substantive claim to be arbitrated. The former requires a determination of whether an agreement to arbitrate still exists based on possible waiver and is a proper issue for the court. The latter requires factual determinations as to whether ERP was degraded or disparaged, when these specific incidents occurred, and whether, based on the time of the occurrences, they may be the subject of arbitration. The resolution of such matters falls within the province of the arbitrator, and not the court. Since Rosecroft raises a timeliness issue of the latter kind, we hold that the arbitrator must resolve that issue in the first instance.
JUDGMENT AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
NOTES
[1] 1965 Laws of Maryland, Ch. 231, § 2. Article 7 was repealed and reenacted as §§ 3-201-234 and § 12-303(c)(9) of the Courts Article. 1973 Laws of Maryland (Ex.Sess.), Ch. 2, § 1, Title 3, Subtitle 2 and Title 12, Subtitle 3. On the whole, the new Arbitration Subtitle either derives its language from Article 7 or uses language from Article 7 with minor changes in style. Revisor's Notes, Subtitle 2, Arbitration and Award, of the Court's Article. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1293009/ | STATE OF NORTH CAROLINA
v.
RUSSELL WAYNE REID II
No. COA09-22
Court of Appeals of North Carolina
Filed: August 4, 2009
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State.
Leslie C. Rawls for defendant-appellant.
BRYANT, Judge.
Defendant Russell Reid II appeals from judgments entered upon his convictions for felony possession of cocaine, misdemeanor possession of marijuana and resisting a public officer, and having attained habitual felon status. Defendant contends that the trial court erred when it denied his motion to suppress an oral statement he made to police officers. We find no error.
Facts
On 21 May 2007, the Forsyth County grand jury returned a three-count indictment against defendant for possession of cocaine, resisting arrest, and possession of marijuana. On the same date, the grand jury returned a separate indictment against defendant for having attained habitual felon status.
On 17 April 2008, defendant filed a motion to suppress oral statements he made to officers while in custody. Defendant contended that he made the statements before he was advised of his Miranda rights and as a result of police interrogation. The motion came on for hearing on 14 July 2008.
The State's evidence at the suppression hearing tends to show that on 9 September 2006, Winston-Salem police officers Todd Hart and Ralph Mason were dispatched to investigate reports of a pending drug transaction involving a red car with two kilograms of cocaine in it. When the officers arrived in the area where the transaction was supposed to occur, they found three people sitting in a red car. Defendant was sitting in the right, rear seat of the car. The officers approached the car, and the driver, Michael Hawkins, consented to a search of the car.
The officers had begun searching the car when Officer Keith Miller arrived. As defendant got out of the car, Officer Miller saw defendant drop something in the car and alerted the other officers. Officer Hart searched defendant and found marijuana in his right front pants pocket. Officers also found cocaine on the floorboard, under the front passenger seat. As defendant sat handcuffed about five feet away, Officer Hart and Officer Mason conferred to divide up investigative responsibilities. Officer Mason told Officer Hart he would weigh the drugs "to make sure it's not enough for trafficking." Defendant then said, "It's only nine grams." The officers were not speaking to defendant nor did they ask defendant any questions.
After hearing the evidence, the trial court entered an oral order denying defendant's motion to suppress. The trial court concluded that defendant's statement to the officers was made "freely and voluntarily, free from any coercion, threats, or duress," and that defendant's statement was "not made in response to any actions or questions from any law-enforcement officer."
The State's evidence at trial describing the incident was substantially the same as the evidence at the suppression hearing. In addition, a State Bureau of Investigation analyst testified that the substance seized by the officers was 9.3 grams of cocaine, and the State introduced defendant's statement into evidence. The State's evidence also shows that after the officers transported defendant back to the magistrate's office, defendant asked Officer Mason what charges he would face. Officer Mason told defendant that he would be charged with possession of cocaine, possession of marijuana, and delaying and obstructing an officer. Defendant said, "Man, you're a pretty straight guy. Man, I ain't no big-time player. I'm just trying to get by, just trying to survive. Yeah, that's mine."
The jury found defendant guilty of all three substantive charges and having attained habitual felon status. The trial court found defendant to have a prior record level of IV and imposed a term of 133 to 169 months in prison for the possession of cocaine conviction based on defendant's habitual felon status. The trial court also imposed terms of 60 days in prison for resisting a public officer and 20 days in prison for possession of marijuana. Defendant appeals.
Defendant's three arguments on appeal all relate to the trial court's denial of his motion to suppress the statement he made describing the weight of the cocaine. Defendant argues that some of the trial court's findings of fact and conclusions of law that his initial statement to police was voluntary are not supported by the evidence, and, therefore, the trial court's order denying his motion to suppress is not supported by valid findings of fact or conclusions of law. We disagree.
"A trial court's findings of fact following a hearing on the admissibility of a defendant's statements are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), cert. denied, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995). "Accordingly, we review the trial court's findings of fact to determine whether they are supported by competent record evidence, and we review the trial court's conclusions of law for legal accuracy and to ensure that those conclusions `reflect[] a correct application of [law] to the facts found.'" State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005)(quoting State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000) (citation omitted)).
If a defendant's statement is the result of a custodial interrogation, the State may not introduce the statement into evidence at trial unless the defendant was first advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). See State v. Barden, 356 N.C. 316, 331, 572 S.E.2d 108, 120 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). In the context of Miranda, however, "`the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.'" State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (quoting Rhode Island v. Innis, 446 U.S. 291, 301-02, 64 L. Ed. 2d 297, 308 (1980)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Thus, officers' statements that are "`normally attendant to arrest and custody'" are not interrogations for Miranda purposes. State v. Dent, 174 N.C. App. 459, 465, 621 S.E.2d 274, 278 (2005) (quoting Innis, 446 U.S. at 300-02, 64 L. Ed. 2d at 307-08).
In this case, we find that the challenged findings of fact are supported by ample evidence and that the conclusions of law are a correct application of the relevant legal principles to the facts. At the outset, we note that there is no evidence, nor is there any contention from defendant, that the officers asked him a single question or directly addressed him to prompt his statement. In fact, all of the evidence indicates that the officers were standing several feet away from defendant and speaking to each other, not to defendant, when defendant made his statement. Defendant asks this Court to speculate that the officers' intent was to provoke his statement, but we decline to do so. Instead, as the trial court found, the evidence demonstrates the officers were speaking to each other about distributing the tasks attendant to any drug case, including arresting suspects and collecting and weighing evidence, and they could not be expected to anticipate that defendant would respond to their conversation. See Dent, 174 N.C. App. at 464-65, 621 S.E.2d at 278.
Because we find no error in the findings of fact or conclusions of law, we conclude that the trial court properly denied defendant's motion to suppress the statement. Defendant's assignments of error, therefore, are overruled.
No error.
Chief Judge MARTIN and Judge ELMORE concur.
Reported per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262541/ | 240 P.3d 94 (2010)
237 Or. App. 434
KLAMATH OFF-PROJECT WATER USERS, INC.; Bar CL, Inc.; Carole D. Canevari; David M. Cowan; Bruce Hawkins; Earl Martin Kerns; Donald Rajnus; Robert J. Sanders; C. John Wells, Plaintiffs-Appellants,
v.
PACIFICORP, Defendant-Respondent.
0604877CV; A139104.
Court of Appeals of Oregon.
Argued and Submitted October 27, 2009.
Decided September 29, 2010.
*96 Melinda J. Davison, Portland, argued the cause for appellants. With her on the briefs were Jesse E. Cowell and Davison Van Cleve, P.C.
Bruce L. Campbell, Portland, argued the cause for respondent. With him on the brief were Joshua M.F. Sasaki, P.C., and Miller Nash LLP.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
LANDAU, P.J.
Half a century ago, plaintiffs entered into an agreement for the purchase of electric power from an electric utility, the predecessor to defendant Pacificorp. The agreement included no expiration clause. Fifty years later, Pacificorp sought from the Oregon Public Utility Commission (PUC) approval of an increase in the rate for power sold to plaintiffs. When the PUC granted the request, plaintiffs sued Pacificorp for breach of contract, and breach of implied duty of good faith and fair dealing under the common law and the Uniform Commercial Code (UCC), former ORS 71.2030 (2007), renumbered as ORS 71.3040 (2009). Their theory was that the contract guaranteed the sale of electricity at the stated price in perpetuity. Pacificorp moved to dismiss the complaint for failure to state ultimate facts sufficient to constitute a claim. ORCP 21 A(8). The trial court granted the motion on the ground that plaintiffs' claims are barred by issue preclusion, given the PUC's approval of the rate increase. We affirm, albeit on alternative grounds. We conclude that, on the facts as pleaded, plaintiffs' claims fail as a matter of law because nothing in the agreement even arguably forecloses Pacificorp from seeking a rate increase.
I. FACTS
When reviewing a court's decision to grant a motion to dismiss for failure to state a claim, "we consider only the facts alleged in the complaint[ ] * * *." Emmert v. O'Brien, 72 Or.App. 752, 754, 697 P.2d 222 (1985). We consider those allegations to be true and give the plaintiff the benefit of all favorable inferences. Granewich v. Harding, 329 Or. 47, 51, 985 P.2d 788 (1999). On appeal, our task is to determine whether the complaint adequately states a claim against defendant. Id. at 50, 985 P.2d 788.
In this case, the allegations of the complaint reveal the following: California Oregon Power Company (Copco) operated Klamath Basin hydroelectric facilities under a 50-year license that the Federal Power Commission issued in 1954. On April 30, 1956, Copco entered into an agreement to sell electric power to the Klamath Basin Water Users Protective Association, Inc. (the association), an association of individuals who reside in and around the Upper Klamath River Basin, but outside the boundaries of the Klamath Reclamation Project. The agreement is known as the "off-project agreement" or just "the agreement." That agreement specified, in part, that,
"[i]n consideration for an increased flow of water caused by the development of lands for agricultural purposes within the Upper Klamath River Basin * * * Copco agrees to provide power rates for agricultural pumping for all off-project users in the Upper Klamath River Basin, as follows:
"10 Horsepower motors or over * * * [0.75 cents] per KWH[.]"
The off-project agreement does not specify an expiration date. In fact, it says nothing one way or the other about its duration or about the authority of Copco to seek an increase in the rates for the power that it sold to the association. The PUC approved the off-project agreement on or about May 4, 1956. Pacificorp acquired Copco in 1961.
After the parties executed the agreement, Copco constructed dam improvements and hydroelectric facilities on the Klamath River below Keno, Oregon, and operated the facilities under its 1954 Federal Power Commission *97 license. Copco, and later Pacificorp, sold electricity to the association at the rate specified in the off-project agreement for the next 50 years.
In 2004, Pacificorp's 50-year Federal Power Commission license expired. It filed an application to renew that license with the Federal Energy Regulatory Commission, and that application is still pending.
Meanwhile, in November 2004, Pacificorp filed a request with the PUC, asking the commission to terminate the off-project agreement and to authorize Pacificorp to increase the tariff rate charged to plaintiffs. Pacificorp filed testimony, exhibits, and revised tariffs in support of its request to terminate the off-project agreement and to begin providing electric service to plaintiffs under standard tariff rates. Shortly after the filing of Pacificorp's request, plaintiff Klamath Off-Project Water Users, Inc. (KOPWU), was formed and succeeded the association's interest in the off-project agreement.
The PUC ultimately held hearings on Pacificorp's request for increased rates. After the hearing, the commission issued an order that established an increased rate of 0.991 cents per kwh, effective April 17, 2006 to April 16, 2007. Furthermore, the commission's order indicated that the rate would be revised upward each of the following seven years under the provisions of ORS 757.227. In November 2006, plaintiffsKOPWU and several individual membersfiled a complaint in Klamath County Circuit Court, alleging breach of contract and breach of the implied duty of good faith and fair dealing under the common law and the UCC, former ORS 71.2030. In brief, plaintiffs alleged that the off-project agreement was a valid and binding contract that, with no termination provision, was of perpetual duration; thus, Pacificorp's request that the PUC modify or terminate the agreement and increase the electric rates breached it, and also breached Pacificorp's common law and UCC duty of good faith and fair dealing. Plaintiffs sought damages of more than $86 million, which they calculated as the difference between the rates set in the off-project agreement, and the projected future rates they will be subjected to pursuant to the commission's order. Plaintiffs appended a copy of the off-project agreement to the complaint and incorporated it into the complaint by reference.
Pacificorp moved to dismiss the complaint for failure to state a claim under ORCP 21 A(8). The company advanced five grounds for its dismissal motion.
First, Pacificorp argued that issue preclusion barred plaintiffs' action because the prior PUC proceeding and order finally decided whether defendant could charge a rate higher than that contained in the off-project agreement. Pacificorp explained that plaintiffs' complaint, in effect, seeks to relitigate the PUC's ruling on rates.
Second, Pacificorp argued that granting plaintiffs the relief that they request would violate the filed rate doctrine, which holds that a utility service rate filed and approved by the commission is conclusively lawful unless and until the commission itself approves a different rate.
Third, and in a related vein, Pacificorp maintained that plaintiffs' claims fall within the commission's exclusive jurisdiction over utility rate-making proceedings. The company argued that plaintiffs' claims necessarily involved ratemaking because, if plaintiffs were to prevail, the practical effect would be to roll back the rate to the rate specified in the off-project agreement.
Fourth, Pacificorp contended that plaintiffs' claims failed to state a claim for relief because: (1) the off-project agreement was an indefinite contract and, consequently, terminable at will as a matter of law; (2) under the common-law implied covenant of good faith and fair dealing claim, plaintiffs could not have had an objectively reasonable expectation that Pacificorp would not seek to modify or terminate the rate in the off-project agreement; and (3) plaintiffs failed to allege that the company acted without good faith, which is required for a claim under former ORS 71.2030.
Finally, Pacificorp argued that, because the PUC has primary jurisdiction over the claims at issue, the trial court should dismiss them. In support of the motion to dismiss, Pacificorp attached the commission's order to *98 the motion and asked the court to take judicial notice of the order.
The trial court granted the motion to dismiss. The court concluded that issue preclusion barred plaintiffs' action. In reaching its decision, the court looked beyond the face of the complaint and considered the commission's order. In doing so, the court concluded that, even though plaintiffs' complaint was styled as an action for breach of contract and breach of the implied covenant of good faith and fair dealing, the true basis of the complaint was the fact that the PUC had approved higher electric power rates. Accordingly, the court determined that, because the commission's order dealt with the rate increase, the issues raised in plaintiffs' complaint were identical to the issues decided by the commission. The court then summarily indicated that the remaining four elements of issue preclusion were present and concluded that plaintiffs could not relitigate the claims in the action brought before the court. The court issued a general judgment of dismissal for failure to state a claim, and plaintiffs appeal.
II. ANALYSIS
On appeal, plaintiffs assign error to the trial court's ruling to grant Pacificorp's motion to dismiss.[1] As an initial matter, plaintiffs contend that the court impermissibly relied on information beyond the face of the complaintnamely, the commission's orderwhen evaluating the motion to dismiss. Furthermore, plaintiffs complain that the court failed to assume the truth of all well-pleaded facts in the complaint and neglected to give them the benefit of all favorable inferences from those facts.
Plaintiffs argue that, even assuming that judicial notice of the commission's order was proper, issue preclusion does not apply to this case because, although the PUC has authority to set public utility service rates, it lacks the authority to grant relief for breach of contract or breach of the implied covenant of good faith and fair dealing. Moreover, they argue, the trial court erred in concluding that all the prerequisites for applying issue preclusion are present in this case.
Pacificorp responds that the trial court properly took judicial notice of the commission's order and that consideration of the order in conjunction with plaintiffs' complaint establishes all of the elements of issue preclusion. In any event, the company argues, the court's decision may be affirmed on any of the other four grounds that it argued in support of its motion to dismiss.
As an initial matter, we note that the law is unsettled as to whether it is appropriate for a court to take judicial notice of a PUC order when evaluating a motion to dismiss for failure to state a claim under ORCP 21 A(8). See BoardMaster Corp. v. Jackson County, 224 Or.App. 533, 541 n. 3, 198 P.3d 454 (2008) (noting that "the propriety of referring to a tariff as the basis for a dismissal under ORCP 21 A(8) may be debatable"); Adamson v. WorldCom Communications, Inc., 190 Or.App. 215, 221, 78 P.3d 577 (2003), rev. den., 336 Or. 657, 92 P.3d 122 (2004) (stating that "the appropriateness of relying on a tariff that is not part of the complaint as a basis for a motion filed under ORCP 21 A(8) is at least debatable"); cf. Utility Reform Project v. PUC, 215 Or.App. 360, 364 n. 1, 170 P.3d 1074 (2007) (taking judicial notice of a commission order in the context of an appeal from a circuit court judgment reversing and remanding a commission order on judicial review). We need not resolve that issue in this case, however, because Pacificorp is correct that, even if it was erroneous to rely on the order, and even if it were further error to conclude on the basis of that order that plaintiffs' claims are subject to issue preclusion, the trial court's decision to dismiss the complaint was correct for other reasons. Specifically, even assuming the truth of all allegations in the complaint, plaintiffs have failed to state a claim.
*99 A. Breach of Contract Claim
We begin with plaintiffs' breach of contract claim. Plaintiffs contend that Pacificorp breached the off-project agreement by seeking the termination of the contract and PUC approval of higher rates than the contract provides. Pacificorp responds that no breach occurred, because the contract, being one of indefinite nature, was terminable at will.
Under Oregon law, "perpetual agreements are disfavored[.]" Coun. of Jewish Wom. v. Srs. of Charity, 266 Or. 448, 456, 513 P.2d 1183 (1973). But, where "clearly provided for" in the language of the agreement, they will be enforced according to their terms. Id. The question is whether a given contract has "clearly provided" for its perpetual duration.
In Andersen v. Waco Scaffold & Equip., 259 Or. 100, 485 P.2d 1091 (1971), the Supreme Court addressed the question in a case in which the parties entered into an equipment rental contract for a three-year term, renewable upon mutual agreement. When the three-year term expired, the parties did not agree to renew it; they simply continued on the same terms. Several months later, a dispute arose about the enforceability of the agreement. One party contended that the contract remained in effect because both parties had continued to abide by its terms even after its expiration. The Supreme Court rejected the argument, explaining that
"th[at] fact does not of itself establish a renewal of the contract. The contract itself provided for renewal only by mutual agreement; there is no evidence that the parties ever agreed to extend their contract for another non-cancelable period. At most, the evidence indicates an informal continuation under the terms of the contract; since no new agreement with a specific duration was reached, the relationship between the parties was terminable at the will of either."
Id. at 105, 485 P.2d 1091 (citations omitted; emphasis added).
In Lund v. Arbonne International, Inc., 132 Or.App. 87, 887 P.2d 817 (1994), we had occasion to apply Andersen in a dispute concerning a consulting contract between a beauty and skin care company and its registered consultant. The contract said nothing about a particular term. When a dispute arose between the company and its consultant, the company "deregistered" the consultant, who promptly sued for, among other things, breach of contract. The trial court dismissed the claim on summary judgment, and we affirmed. Notwithstanding the consultant's contentions that there were issues of fact about whether the parties intended the agreement to be terminable at will, we concluded the claim could not be maintained as a matter of law. Citing Andersen, we explained:
"[T]he rule in Oregon is that a contract for an indefinite period may be terminated at will when reasonable notice is given. Here, the only agreement * * * does not set out a definite period for the relationship. We conclude that the agreement established an `at will' relationship."
Lund, 132 Or.App. at 90-91, 887 P.2d 817 (citations and omitted).
The issue arose again in Paul Gabrilis, Inc. v. Dahl, 154 Or.App. 388, 394, 961 P.2d 865, rev. den, 327 Or. 553, 971 P.2d 409 (1998), a case in which a country club unilaterally terminated several memberships. The country club argued that, because the membership agreement said nothing about its duration, membership was terminable at will. We rejected the argument. We explained that, "[i]f there is nothing in the nature or language of a contract to indicate that the contract is perpetual, courts will interpret the contract to be terminable at will * * *." Id. at 394, 961 P.2d 865. The important consideration, we explained, is the wording of the contract. Citing Coun. of Jewish Wom., we added that, "where provided for, perpetual agreements will be enforced according to their terms." Paul Gabrilis, Inc., 154 Or. App. at 394, 961 P.2d 865. We concluded that several provisions of the membership agreementin particular, the transferability of memberships and provisions suggesting that memberships could be terminated only for causewere inconsistent with the notion *100 that the memberships were terminable at will. Id. at 395, 961 P.2d 865.
In this case, the off-project agreement is silent as to duration. Moreover, unlike the agreements in Coun. of Jewish Wom. and Paul Gabrilis, Inc., there is no wording in the off-project agreement that, when reasonably construed, is capable of even suggesting that the agreement was not terminable at will. Nor is there anything about the nature of the agreement that suggests that it was not intended to be terminable at will. Certainly plaintiffs have failed to cite a single provision or anything else related to the nature of the agreement that suggests that, as long as plaintiffs continued to supply consideration, the contract was intended to continue in perpetuity.[2]
To the contrary, the nature of the agreementthat is, an agreement concerning the provision of services subject to the general regulatory authority of the PUC suggests quite the contrary. The commission is charged with protecting utility customers and the public generally "from unjust and unreasonable exactions and practices and to obtain for them adequate service at fair and reasonable rates." ORS 756.040(1). In doing so, the commission has the "broadest authority" in the area of ratemaking. American Can Co. v. Davis, 28 Or.App. 207, 221, 559 P.2d 898, rev. den., 278 Or. 393 (1977). And the exercise of its regulatory function has been characterized as "`commensurate with that of the legislature itself[.]'" Id. (quoting Pacific N.W. Bell v. Sabin, 21 Or. App. 200, 214, 534 P.2d 984, rev. den., (1975)).
Of particular importance is that the commission is authorized to "`annul and supersede rates previously established by contract between utilities and their customers.'" Id. at 222, 559 P.2d 898 (quoting Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109, 113, 57 S.Ct. 345, 81 L.Ed. 540 (1937)). And it has long been settled law that private contracts with utilities are regarded as entered into subject to the reserved authority of the state to modify the contract in the public interest. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 248 U.S. 372, 375-76, 39 S.Ct. 117, 63 L.Ed. 309 (1919). Without such power, the
"whole public interest in utility regulation would become meaningless, since by making separate contracts with all or any of its individual customers, the utility and the customer could effectively bypass all or any relevant part of the public utility regulatory statutes and the regulations governing the public utility."
American Can Co., 28 Or.App. at 223, 559 P.2d 898.
Thus, plaintiffs' contention that the off-project agreement precludes Pacificorp from applying to the PUC for termination of the agreement and revisions of the utility service rates cannot be reconciled with the foregoing basic principles that form the regulatory backdrop against which the parties entered into it. The trial court did not err in dismissing plaintiffs' breach of contract claim as the off-project agreement was, as a matter of law, terminable at will.
B. Claims for Breach of Implied Duty of Good Faith
We turn, then, to plaintiffs' claims for breach of the implied duty of good faith and fair dealing. As we have noted, plaintiffs assert claims under both the common law and the UCC. Whether the UCC applies to a contract for the sale of electricity has not been addressed in Oregon, and the question lacks consensus across the country. Compare U.S. v. Consolidated Edison Co. of N.Y., 590 F.Supp. 266, 269 (S.D.N.Y.1984) (finding that "electricity is not considered `goods'" and the UCC is not applicable to contracts involving the sale of electricity), with In re Pacific Gas and Elec. Co., 271 B.R. 626, 639 (N.D.Cal.2002) (concluding that electricity is a good for the purposes of the UCC). We need not address that issue in this case, however; even assuming for the sake of argument that electricity is a good within the meaning of the UCC, plaintiffs' *101 claims fail as a matter of law under both the common law and the UCC.
In general, every contract has an obligation of good faith in its performance and enforcement under the common law. Elliott v. Tektronix, Inc., 102 Or.App. 388, 396, 796 P.2d 361, rev. den., 311 Or. 13, 803 P.2d 731 (1990). "[A] party may violate its duty of good faith and fair dealing without also breaching the express provisions of a contract." Id. In addition, a claim for breach of the duty of good faith and fair dealing "may be pursued independently of a claim for breach of the express terms of the contract." McKenzie v. Pacific Health & Life Ins. Co., 118 Or.App. 377, 381, 847 P.2d 879 (1993), rev. dismissed, 318 Or. 476, 869 P.2d 859 (1994). The purpose of that duty is to prohibit improper behavior in the performance and enforcement of contracts, and to ensure that the parties "will refrain from any act that would `have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.'" Iron Horse Engineering v. Northwest Rubber, 193 Or.App. 402, 421, 89 P.3d 1249 (2004) (quoting Perkins v. Standard Oil Co., 235 Or. 7, 16, 383 P.2d 107 (1963)). Yet, the duty "cannot contradict an express contractual term, nor otherwise provide a remedy for an unpleasantly motivated act that is expressly permitted by the contract." Zygar v. Johnson, 169 Or.App. 638, 645, 10 P.3d 326 (2000), rev. den., 331 Or. 584, 19 P.3d 356 (2001).
The duty "does not operate in a vacuum[,]" rather it "focuses on the `agreed common purpose' and the `justified expectations' of the parties, both of which are intimately related to the parties' manifestation of their purposes and expectations in the express provisions of the contract." OUS v. OPEU, 185 Or.App. 506, 515-16, 60 P.3d 567 (2002). The common-law implied duty of good faith and fair dealing serves to effectuate the objectively reasonable expectations of the parties.
In light of the foregoing principles, then, the dispositive question in this case is whether it is appropriate to imply a duty for Pacificorp to refrain from requesting an increase in the rate, in order to effectuate the parties' objectively reasonable expectations regarding the off-project agreement.
We agree with Pacificorp that plaintiffs could not have had an objectively reasonable expectation that the company would never seek to modify or terminate the rate in the off-project agreement. As we have already noted, there is a complete absence of wording in the agreement suggesting that the terms of the agreement are perpetual; to the contrary, the agreement was terminable at will. Given that, we do not understand how plaintiffs could possess an objectively reasonable expectation that Pacificorp would never seek to modify the rates. The absence of an objectively reasonable expectation in the perpetual operation of the agreement is especially clear in the light of the fact that it was entered into subject to the reserved authority of the state to modify the rates in the contract in the public interest. There can be no justified expectation by plaintiffs that, in the absence of express contract provisions to the contrary, Pacificorp would not ask the commission to exercise its jurisdiction to set just and reasonable rates. Accordingly, it would be inappropriate to imply a duty on the part of Pacificorp to never seek a change in rates. The trial court did not err in dismissing plaintiffs' common-law claim for breach of an implied covenant of good faith and fair dealing.
The same reasoning applies to plaintiffs' UCC claim. The duty of good faith contained in the UCC, as adopted by the Oregon legislature, contains both a subjective component of "honesty in fact" and an objective component regarding the reasonable expectations of the parties that mirrors the common law. Aylett v. Universal Frozen Foods Co., 124 Or.App. 146, 150, 861 P.2d 375 (1993). Because there is no objectively reasonable expectation that Pacificorp would never seek to modify or terminate the rate in the off-project agreement, we cannot imply such a duty on the company. As such, plaintiffs' UCC claim fails as a matter of law.
Affirmed.
NOTES
[1] Plaintiffs identify three "assignments of error," each of which targets what they contend is a legally erroneous basis for the trial court's decision on defendant's motion to dismiss. Actually, assignments of error must be directed at rulings by the court, not at components of the court's reasoning or analysis that underlie its rulings. See ORAP 5.45(3). We address all of plaintiffs' arguments, but we treat their multiple assignments of error as one.
[2] Plaintiffs' only response to this particular argument is to suggest that the law about the duration of agreements specifying no particular term is "uncertain" and should not be settled in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328309/ | 98 Ga. App. 394 (1958)
106 S.E.2d 45
BIGELOW-SANFORD CARPET COMPANY, INC.
v.
GOODROE et al.
37150.
Court of Appeals of Georgia.
Decided September 22, 1958.
Rehearing Denied October 21, 1958.
Troutman, Sams, Schroder & Lockerman, William H. Schroder, Tench C. Coxe, Kelley & Mobley, Sumter Kelley, Carlton C. McCamy, for plaintiff in error.
Nolan B. Harmon, Dudley B. Magruder, Douglas Mitchell, Jr., contra.
*395 CARLISLE, Judge.
This case began when Bigelow-Sanford Carpet Company, Inc., doing business as Hartford Rayon Company, filed suit against Charles Goodroe and Eleanor M. Goodroe, individually, and as trustee for Charlotte Goodroe, and as trustee for Stanley Goodroe, individually, and doing business as Laura Yarn Mills and/or Laura Mills, on an open account for $89,682.45 worth of yarn alleged to have been shipped to the defendants. Pending that suit, the defendants were placed in involuntary bankruptcy by the plaintiff and the original petition was dismissed. In the meantime, the defendants filed an answer and a cross-action against the plaintiff. Thereafter, the plaintiff made oral motions to strike certain paragraphs of the cross-action which alleged the damages claimed by the defendants and made an oral motion to dismiss the petition, and also filed a general demurrer to the cross-action. The trial court, overruled the oral motions to strike the separate paragraphs, overruled the motion to dismiss and overruled the general demurrer to the cross-action, and the exception here is to that judgment.
In the cross-action, the defendants alleged that on or about November 15, 1956, they were indebted to the plaintiff in the sum of $142,790.65 for merchandise purchased from the plaintiff, and of that amount $78,814.40 was due on said date; that on that date a representative of the plaintiff met with the defendant Charles Goodroe and entered into an agreement, the substance of which was that the plaintiff promised to ship and sell to the defendants 50,000 pounds of Hartford rayon staple per week, and that the defendants agreed to accept and purchase the staple and to manufacture it into Hartford rayon yarn exclusively at their mill and to pay for said staple at the specified price per pound; that as a part of the agreement, the plaintiff promised not to bring legal action against the defendants on the indebtedness until January 1, 1957, and not to bring it at that time if the defendants' account with the plaintiff was current, and defendants promised to have said account current by that date; that as a part of the agreement, the defendants agreed to convert their mill at Villa Rica, Georgia, to rayon production rather than cotton, and they alleged that they did convert the *396 mill at an expense of $23,000; that the defendants made financial arrangements for financing their business and bringing their account with the plaintiff to a current status and made arrangements to obtain the necessary funds; that notwithstanding the agreement and burden placed upon the defendants under the arrangement, the plaintiff refused to make the shipments of raw material as agreed, its representative stating in response to inquiry by Charles Goodroe that the reason for their failure to ship was a shortage of materials, which statement was false and known to be false by the said representative of the plaintiff; that this failure to supply the defendants with the agreed quantity of rayon staple forced the defendants to close down their mill at Douglasville, Georgia, and it was thereby rendered impossible for them to perform their obligation to bring their account with the plaintiff to a current status, which fact was well known to the plaintiff's agent and employees when they refused to ship said rayon staple; that on January 8, 1957, the plaintiff instituted this action and thereafter filed proceedings in the United States District Court of the Northern District of Georgia forcing the defendants into involuntary bankruptcy.
The defendants alleged (par. 24) that before the plaintiff caused their mills to be shut down, the mills were running at a net profit of approximately $3,000 per month and capable of running at a profit of approximately $8,000 per month, and that they have been deprived of the earnings of the mills since they were shut down; that (par. 25) the mill business in Douglasville was reasonably worth $125,000 before it was shut down, but only worth $70,000 afterwards, and that the mill business in Villa Rica was reasonably worth $140,000, but worth not more than $100,000 after it was shut down; that (par. 26) defendants were forced by the plaintiff into a financial position where they were unable to pay their debts; that their earning power has been destroyed; their credit reputation damaged to the extent that they are unable to borrow money, all to the extreme hurt, chargin, dismay and inconvenience of the defendants, and that the general reputation of the defendants has been grieviously damaged by the acts of the plaintiff and that they are entitled to recover compensatory damages in the *397 amount of $25,000 each; that (par. 27) by reason of the unlawful conduct of the plaintiff and the dismay and inconvenience which it caused the defendants to suffer, the defendants should be awarded punitive damages in the amount of $50,000, and (par. 28) that by reason of the bad faith of the plaintiff, the defendants have been forced to employ the services of an attorney and they asked that they be awarded reasonable attorney's fees in the amount of $5,000 and the prayer was that the defendants have and recover a judgment against the plaintiff in the amount of $225,000 together with $3,000 per month from January 1, 1957, together with the costs of this action, and that the said judgment be reduced and off-set by any recovery by the plaintiff.
The plaintiff orally moved to strike paragraphs 24, 25, 26, 27 and 28 of the petition on the ground that the damages set forth therein were not recoverable in the cross-action, and moved to dismiss the cross-action on the ground that it failed to set forth a cause of action.
1. It appears from the additional record sent to this court that the Honorable Oscar W. Roberts, trustee in bankruptcy for the parties named as defendants in error, intervened in the court below for the purpose of defending and prosecuting the action, and that his motion to intervene was granted by the trial court on October 8, 1957. It further appears that he was represented by the same counsel who represent the other defendants and upon whom service of all motions and pleadings in the court below and upon whom service of the writ of error in this court and all briefs in this court have been perfected, and who appeared by brief and oral argument for the named defendants in error. The bill of exceptions, however, failed to name the said Oscar W. Roberts as a defendant in error and counsel for the defendants in error have made a motion to dismiss the writ of error on the ground that it failed to name a necessary party as defendant in error. Counsel for the plaintiff in error have made a counter-motion to amend the bill of exceptions and to add the said Oscar W. Roberts, Jr., as a party defendant in this court. The motion to dismiss the writ of error is not meritorious under authority of Code (Ann.) § 6-1202, and, therefore, is denied. The motion to amend the bill of *398 exceptions so as to name the Honorable Oscar W. Roberts a party defendant in error is proper, and has been granted. Chatfield v. Dennington, 206 Ga. 762 (1) (58 S. E. 2d 842).
2. The defendant contends in this court that these motions were properly overruled by the trial court since they sought to attack individual paragraphs of the cross-action rather than the cross-action as a whole, and that the proper method of attacking the individual paragraphs of the cross-action is by special demurrer, which must be in writing and must be filed within 15 days after the cross-action is filed. Code (Ann.) § 81-301. This contention is not meritorious. A motion to strike is nothing more than a demurrer. It performs the office of a general demurrer. Holcombe v. Jones, 197 Ga. 825, 829 (30 S. E. 2d 903); Meads v. Williams, 55 Ga. App. 224 (1) (189 S. E. 2d 718); DuBois v. Smith, 76 Ga. App. 556, 557 (46 S. E. 2d 590). Like a general demurrer, such a motion may be made at any time and it may be addressed to particular paragraphs of a pleading. Ayers v. Young, 210 Ga. 441, 442 (80 S. E. 2d 801). A motion to strike is no less general merely because it is aimed at only one of the separate and distinct matters set up in a pleading. Ayers v. Young, supra, p. 444. The oral motions to strike the various paragraphs of the cross-action alleging the damages claimed by the defendant constituted a proper and permissible method of raising the question as to whether those elements of damages were recoverable in this action. Peoples Loan Co. v. Allen, 199 Ga. 537, 565 (34 S. E. 2d 811).
3. The oral motion of the plaintiff to strike the various allegations of damages from the defendants' cross-action and the exception to the order overruling those motions raise for this court's consideration the question of whether the various items of damages set forth in the cross-action are recoverable; and, finally, whether the cross-action itself stated a cause of action. Paragraph 24 of the cross-action alleges as an item of special damages that the defendants' mills were earning $3,000 per month, of which earnings the defendant has been deprived because of the acts of the plaintiff, and paragraph 25 alleges that the worth of the two mills has been diminished by a total of $95,000 on account of their ceasing to operate as a result of *399 the plaintiff's act. While both counsel for plaintiff in error and counsel for defendant in error treat these items as separate elements of damage, it would seem that they are one and the same thing, or at least that the profit derived from the operation of the mills is an element to be considered in arriving at the value of the properties as going businesses. Certainly, both profits and diminished worth would not be recoverable in the same action. However, we have come to the conclusion that neither is recoverable in this case.
Irrespective of whether it can be said that, under a proper allegation of fact, the profits to be realized by a manufacturing concern were within the contemplation of the parties to a contract of this nature (Code §§ 20-1406 and 20-1407; Firestone Tire & Rubber Co. v. Shore, 31 Ga. App. 644, 647, 121 S. E. 709), the petition in this case does not allege such facts as would authorize a recovery, but on the contrary shows affirmatively that the defendant did not take any action to minimize its damages. While ordinarily such things as recoupment, setoff and matters relating to the reduction of the damages alleged by the plaintiff are defensive in nature, and the burden is on the defendant to show these facts (Phillips v. Lindsey, 31 Ga. App. 479 (1), 482, 120 S. E. 923), and the failure of the plaintiff to diminish his damages is a matter to be affirmatively pleaded and proved by the defendant (Mimms v. Betts Co., 9 Ga. App. 718 (2), 72 S. E. 271); Branon v. Elbee Pictures Corp., 42 Ga. App. 293 (2), 155 S. E. 923; Speer v. Johnson, 48 Ga. App. 759, 761, 173 S. E. 449), the rule is otherwise where the petition, as in this case, affirmatively shows that the plaintiff has failed to take any efforts to minimize his damages. Aircraft Apartments v. Haverty Furniture Co., 71 Ga. App. 560, 561 (1) (31 S. E. 2d 419). It is alleged that the loss of the profits resulted from the acts of the plaintiff in failing to sell and deliver to the defendants yarn pursuant to the terms of the contract and that as a consequence the mills were forced to shut down, thus diminishing their value. It affirmatively appears from these allegations of the cross-action in this case when they are construed most strongly against the pleader, as they must be on general demurrer, that the defendants failed to make any effort *400 to minimize their damages by seeking to purchase other suitable yarn in order to operate their mills and permitted their mills to be shut down without making any effort to continue operating them. This construction of the cross-action is authorized by the fact that the allegations thereof fail to show what efforts, if any, the defendants made to obtain other and suitable fiber for manufacturing into yarn, and they fail to show that other suitable fiber was not available or obtainable by them or, that, if other suitable fiber was not available or obtainable by them, why it was not available and why the defendants could not obtain it in the open market and continue to operate the mills. On the contrary, the allegations of the answer and cross-action when considered on general demurrer show that the defendants made no effort to obtain other suitable fiber, and it fails to allege any facts showing that the defendants took any act to minimize their damages. Under these considerations, it cannot be said that the shutdown of the mill and the consequent loss of profits and diminution in their value was the reasonably anticipated result of the plaintiff's breach of the contract. See in this connection, Georgia Railroad v. Hayden, 71 Ga. 518 (51 Am. R. 274); Montgomery v. Alexander Lumber Co., 140 Ga. 51 (78 S. E. 413); Consolidated Phosphate Co. v. Sturtevant Co., 20 Ga. App. 474 (2) (93 S. E. 155).
The defendants rely on Levy Bro. & Co. v. Allen, 53 Ga. App. 246 (185 S. E. 369); Walker v. Jenkins, 32 Ga. App. 238 (5) (123 S. E. 161); Haas & Haas v. Marks, 158 Ga. 267 (123 S. E. 109); Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483 (60 S. E. 279). Each of these cases involved special facts where the profits which were the fruit of the contract could be said to have been within the contemplation of the parties in making the contract and where the damages by way of lost profits resulting from the breach could be said to have been the direct result of the breach. Each of these cases involved special circumstances such as a violation of a contract of employment or the violation of a lease contract for a specific piece of property and involving a long established and successful business where the facts alleged showed that there was nothing that the plaintiff failed to do to minimize his damages. These *401 cases do not require a ruling different from that made in this case.
The fact that the defendants had an exclusive contract to manufacture the plaintiff's rayon fibers into yarn did not justify the defendant's failure upon the breach of the contract by the plaintiff to take steps to minimize their damages by going into the market and obtaining other suitable fiber to manufacture into yarn. For these reasons, the oral motions to strike paragraphs 24 and 25 of the cross-action were meritorious and should have been granted by the trial court.
4. Paragraph 26 of the petition seeks to recover damages denominated as compensatory on account of the loss of the defendants' earning power, their credit, and on account of their extreme hurt, chagrin, dismay, and inconvenience and on account of the injury to their reputation as the result of the deterioration of their credit rating. Under the rules of law announced in the preceding division of the opinion, such damages are too remote to be recovered for the reason that they are not such as arise naturally and according to the usual course of things from the breach of the contract and therefore were not such as could be said to have been reasonably within the contemplation of the parties. Code §§ 20-1406 and 20-1407.
Paragraph 27 seeks the recovery of punitive damages and it is sufficient to quote Code § 20-1405 that, "Exemplary damages can never be allowed in cases arising on contract" to show that these damages were not recoverable. It follows that the trial court erred in overruling the motion to strike paragraphs 26 and 27.
5. The final element of damages claimed in the cross-action is attorney's fees. Whether or not attorney's fees can be recovered in an action ex contractu is not necessary for us to decide here, since, under the above holding that none of the other items of damages are recoverable, it necessarily follows that attorney's fees cannot be recovered. The court, therefore, erred in overruling the motion to strike paragraph 28.
6. Where the petition or cross-action, as the case may be, fails to allege any item of recoverable damages, a general demurrer thereto should be sustained unless the pleader amends *402 to supply these essential allegations. The defendants in error contend that they were at least entitled to recover general or nominal damages. However, the cross-action fails to allege or pray for general or nominal damages, and when construed most strongly against the pleader, as must be done on general demurrer, or on motion to dismiss, it is not apparent that the defendant is claiming or seeking to recover general or nominal damages, and, therefore, the rule relied on by the defendants is not applicable here. See Hadden v. Southern Messenger Service, 135 Ga. 372, 374 (69 S. E. 480); Strickland v. Flournoy, 95 Ga. App. 315 (2) (97 S. E. 2d 638).
Another contention made by counsel for the defendants is that the cross-action here involved could be construed as one ex delicto and that some of the items of damages claimed would be recoverable in such an action. The allegations of the cross-action, however, show that the sole basis for the defendants' claims against the plaintiff was the violation of the agreement to sell and deliver rayon staple under the terms of the contract set forth. Nothing in the cross-action even purports to show the violation by the plaintiff of any public duty owing the defendants. American Oil Co. v. Roper, 64 Ga. App. 743, 749 (14 S. E. 2d 145). The mere characterization of the breach of the contract as being in bad faith would not be sufficient to convert the action from one ex contractu to one ex delicto. Dawson Cotton Oil Co. v. Kenan, 21 Ga. App. 688, 691 (94 S. E. 1037). The cross-action in this case clearly was not an action in tort, but was an action to recover damages for breach of contract.
It follows from what has been said above that the trial court erred in overruling each of the motions to strike the various paragraphs of the cross-action alleging the items of special damage claimed by the defendants. However, the failure to allege the proper measure of damages was an amendable defect, and it would not have been proper for the court to have dismissed the petition after sustaining the motions to strike the allegations of special damages, but the court should have, if it had sustained the motions to strike these allegations, granted the defendants leave to amend by setting up a correct measure *403 of damages, and if they failed to so amend within the time allowed, then it would have been proper to have dismissed the entire petition since there are no allegations nor prayer for general or nominal damages.
Judgment affirmed in part and reversed in part. Felton, C. J., Gardner, P. J., Quillian and Nichols, JJ., concur. Townsend, J., dissents.
TOWNSEND, Judge, dissenting. The majority opinion recognizes that where a petition shows a breach of contract with consequent damages, failure to minimize the damages is a matter of defense, and the petition is not subject to demurrer for this reason unless it affirmatively appears that the plaintiff did not take steps which he should have taken and which would have reduced his damages. The opinion then construes the cross-action as showing that the defendants failed to take necessary steps to minimize the damages, and states: "This construction of the cross-action is authorized by the fact that the allegations thereof fail to show what efforts, if any, the defendant made to obtain other and suitable fiber for manufacturing into yarn, and they fail to show that other suitable fiber was not available or obtainable by them or that if other suitable fiber was not available or obtainable by them, why it was not available and why the defendants could not obtain it in the open market and continue to operate the mills." The contradiction in terms is this: if a mere failure to allege what steps were taken to minimize damages results in an inference that no such steps were taken, then the rule that the burden is not on the pleader to allege what steps he has taken is done away with in its entirety. It cannot be inferred from mere failure to allege minimization of damages that all reasonable efforts in that direction were not made any more than it can be inferred from mere failure of a plaintiff in a damage action to allege that he was in the exercise of ordinary care that he was not in the exercise of such care. The presumption is, in such cases, that the required degree of care was used, and that the required effort to minimize damages was made. That is the whole meaning of rulings to the effect that such situations, if they exist, are matters for the defense to plead and prove.
*404 The cross-action here alleges that under one of the contract terms the defendants converted to rayon staple, the yarn to be used by MyLue Corporation, a customer of the plaintiff without adequate facilities for the processing of raw materials; that the plaintiff failed to provide the staple as agreed, and "that the failure of plaintiff to supply defendants with the agreed quantity of rayon staple raw material forced defendants to close down their mill at Douglasville, Georgia." Accordingly, taking this allegation as true as against general demurrer it appears that the defendants at a cost of $23,000 outfitted themselves to supply one of the plaintiff's customers with a particular kind of yarn; that the plaintiff's breach of contract prevented them from so doing, and they thus lost, at least, the $23,000 spent in converting from cotton to rayon staple for this purpose. It is my opinion that the petition is not subject to general demurrer in that it affirmatively shows as stated in the majority opinion that the defendant failed to minimize his damages, nor do I believe it is subject to general demurrer for failure to allege a proper measure of damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262415/ | 269 Md. 390 (1973)
306 A.2d 534
SCOVILLE SERVICE, INC.
v.
COMPTROLLER OF THE TREASURY
[No. 322, September Term, 1972.]
Court of Appeals of Maryland.
Decided July 5, 1973.
*391 The cause was argued before MURPHY, C.J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.
Harold T. Grier for appellant.
Jon F. Oster, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
LEVINE, J., delivered the opinion of the Court.
This appeal by Scoville Service, Inc. (Scoville) is from a decision of the Maryland Tax Court affirming the Comptroller's disallowance of claims for certain tax refunds covering the years 1967-70. Scoville, which operates a parking lot serving the Laurel Raceway, says it paid the taxes on gross receipts derived from parking automobiles under the erroneous assumption that they were taxable pursuant to Maryland Code (1957, 1969 Repl. Vol.) Art. 81, § 402, commonly known as the "admissions" tax.[1] In our *392 summary, we shall make extensive use of the "Agreed Statement of Facts" that is contained in the joint record extract.
Scoville conducts the parking lot enterprise on land that it leases from Laurel Harness Racing Association (Laurel). The latter also owns the adjacent property on which it operates its racetrack. The track is enclosed by a fence and buildings, including a grandstand, and access is gained by a roadway running from U.S. Route 1 which encircles the enclosed track. Scoville leases the hard-surfaced parking area for the duration of the racing season, lasting forty-two days.
The outer perimeter of the parking area, except that part which extends to Route 1, is enclosed by fences or woods, principally the latter. There are no structures on the parking area. Signs stationed on Route 1 indicate the entrance to the track; the same entrance also leads to the parking area. Admission to the track itself is obtained at gates leading directly into the enclosed racetrack; and by paying to Laurel its admission fees. During the racing season, the parking area operated by Scoville is used exclusively by those attending the races.
A charge for admission is imposed by Laurel upon each racing patron who enters the enclosed track. Scoville collects a separate charge; it is apparently conceded that the sums collected by Scoville are charged uniformly on the basis of each automobile parking on its lot rather than upon the number of individual occupants in each car. The sums charged by Scoville afford no admission to the enclosed track; nor do they convey any other privilege to the automobiles owner. Whether the receipts from parking automobiles are within the ambit of § 402 is the sole question presented by this case.
In deciding that the receipts from parking automobiles are taxable as "admissions" under § 402, the tax court concluded:
*393 "The Court is likewise of the opinion that the parking lot is an ancillary use to the Raceway and that the parking of a car and the entrance to the Raceway is a continuous act, one supplementing the other."
We think the tax court erred in its ruling, and that the Comptroller should have allowed the refund claims.
In brief, Scoville contends that charges for parking automobiles are not included in the statute providing for admissions and amusement taxes, even though the parking lot is owned by and located on the same tract of land as the racetrack. It argues with considerable force that the charge is for the "privilege of parking the automobiles only," and is not part of the price of admission to the track itself the legitimate object of the statute. The Comptroller, on the other hand, insists that the parking fee is "an initial charge for admission" within the meaning of § 402, and should be considered "part of the gross receipts for admission to the race track."
Whether the legislature, in enacting this statute, intended that it should apply to charges of this type must initially be determined by a careful examination of the statute itself, since the cardinal rule of construction of a statute is to ascertain and carry out the real legislative intention, Silberman v. Jacobs, 259 Md. 1, 267 A.2d 209 (1970); Atlantic, Gulf v. Dep't of Assess. & Taxation, 252 Md. 173, 249 A.2d 180 (1969); Equitable v. Insurance Comm'r, 251 Md. 143, 246 A.2d 604 (1968). While this Court has not had occasion to previously consider § 402 in a context such as this, we think its language is quite clear.[2] We should therefore be mindful of the well-established rule that it is necessary and proper to construe a statute only when it is ambiguous and of doubtful meaning, Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968); Falcone v. Palmer Ford, 242 Md. 487, 219 A.2d 808 (1966). And if there is no *394 ambiguity or obscurity in the language of the statute, there is usually no need to look elsewhere to ascertain the intent of the legislature, Maryland Nat'l Bk. v. Comptroller, 264 Md. 536, 287 A.2d 291 (1972); Atlantic, Gulf v. Dep't of Assess. & Taxation, supra; Department v. Greyhound, 247 Md. 662, 234 A.2d 255 (1967); Md. Medical Service v. Carver, 238 Md. 466, 209 A.2d 582 (1965). As we said in Amalgamated Ins. v. Helms, 239 Md. 529, 212 A.2d 311 (1965):
"In other words, the courts, in the absence of ambiguity, should, as a general rule, confine themselves to a construction of a statute as written, and not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature." 239 Md. at 535-36.
The pertinent part of § 402 provides that a tax will be paid on the gross receipts charged for:
"... (1) admission to any place, whether such admission be by single ticket, season ticket or subscription, (2) admission within an enclosure in addition to the initial charge for admission to such enclosure. ..." (emphasis added).
Although the word "admission" is not defined in the statute, the part quoted above clearly imports a tax on charges paid *395 to enter the place itself. A term used in a statute, not there specifically defined, should be construed as having its ordinary and commonly-accepted meaning, Gaspin v. Browning, 265 Md. 552, 290 A.2d 507 (1972); Arundel Supply Corp. v. Cason, 265 Md. 371, 289 A.2d 585 (1972); Williams v. Loyola College, 257 Md. 316, 263 A.2d 5 (1970).
In Webster's Third New International Dictionary, Unabridged, 1971, the word "admission" is defined as:
"3a. an act of admitting: the fact of being admitted: permission or right to enter ... 4: price of entrance: fee paid at or for entering." (emphasis added).
While there is no case in Maryland interpreting this term, courts in other jurisdictions under statutes similar to the one here have held, either through judicial construction or by definitions in the statutes themselves, that "admission," as used in this context, means the charge for permission or right to enter a place, see Fritz v. Jarecki, 189 F.2d 445 (7th Cir.1951); Grauer v. Director of Revenue, 193 Kan. 605, 396 P.2d 260 (1964); Beach v. Livingston, 248 S.C. 135, 149 S.E.2d 328 (1966); Department of Revenue v. Pelican Ship Corporation, 257 So.2d 56 (Fla. Dist. Ct. App. 1972); see also dissent of Musmanno, J., in Fierro v. City of Williamsport, 384 Pa. 568, 120 A.2d 889 (1956). It logically follows that the legislature contemplated a tax on the "price of entrance" to "any place," and not on a service provided for one's convenience prior to entering.
That one may park on the lot has nothing whatever to do with his entry into the racetrack. Patrons must, in any event, pay to enter the track, and automobile passengers (other than the driver), as well as those traveling by public transportation or living nearby, pay no parking charge. Similarly one is free to park in Scoville's lot and not enter the racetrack at all. The situation here is the converse of that presented in Whitehall Township v. Male, 77 Pa. D. & C. 133 (1950), where the imposition of an admission tax was upheld in the case of a "drive-in" theater that collected a fee from each automobile as it entered, but made no further *396 charges. The fee for parking automobiles, therefore, is clearly not an "admission" charge under § 402.
That we deal here with a tax statute lends no particular support to the Comptroller's position. In interpreting a tax statute, we may not extend its provisions by implication beyond the clear import of the language employed; and even where there is doubt as to the scope of the statute, although we find none here, it should be construed most strongly in favor of the citizen and against the state, F. & M. Schaefer v. Comptroller, 255 Md. 211, 257 A.2d 416 (1969); McConihe v. Comptroller, 246 Md. 271, 228 A.2d 432 (1967); Fair Lanes v. Comptroller, 239 Md. 157, 210 A.2d 821 (1965); Comptroller v. Rockhill, Inc., 205 Md. 226, 107 A.2d 93 (1954).
For its final argument, appellee maintains that we should follow the "long uninterrupted and continuous construction of the statute by the Comptroller." While the interpretation placed by the State Comptroller upon a taxing statute is entitled to great weight as an administrative interpretation acquiesced in by the legislature, Palm Oil Recovery v. Comptroller, 266 Md. 148, 159, 291 A.2d 681 (1972); Comptroller v. Rockhill, Inc., supra, at 233; John McShain, Inc. v. Comptroller, 202 Md. 68, 73, 95 A.2d 473 (1953), an administrative interpretation contrary to the clear and unambiguous meaning of the statute will not be given effect, Atlantic, Gulf v. Dep't of Assess. & Taxation, supra, at 183; Department v. Greyhound, supra, at 669; Smith v. Higinbothom, 187 Md. 115, 132, 48 A.2d 754 (1946).
Having determined for the foregoing reasons that Scoville is entitled to refunds for the years in question, we shall reverse the order of the Maryland Tax Court, and remand the case with instructions to allow the claims in accordance with the provisions of Article 81 governing such refunds.
Order reversed; remanded for passage of an order conformable to this opinion; appellee to pay costs.
NOTES
[1] "§ 402. Levy and amount.
"There shall be levied, collected and paid a tax at the rate of four and one-half per centum (4 1/2%) of the gross receipts of every person, firm or corporation derived from the amounts charged for (1) admission to any place, whether such admission be by single ticket, season ticket or subscription, (2) admission within an enclosure in addition to the initial charge for admission, to such enclosure, (3) the use of sporting or recreation facilities or equipment, and (4) admission, cover charge for seats or tables, refreshment, service or merchandise at any roof garden, cabaret or other similar place where there is furnished a public performance when payment of such amounts entitles the patron thereof to be present during any portion of such performance. The term `roof garden or other similar place,' shall include any room in any hotel, restaurant, hall or other public place where music or dancing privileges or other entertainment, except mechanical music, radio or television, alone, and where no dancing is permitted, are afforded the patrons in connection with the serving or selling of food, refreshment or merchandise. It is further provided that this section shall not apply to bowling alleys or lanes." (emphasis added).
Although § 402 has undergone a number of changes in recent years, the language of the statute, as set forth here, was controlling during the period in question.
[2] In Villa Nova v. Comptroller, 256 Md. 381, 260 A.2d 307 (1970), the Court did consider the constitutionality of this statute. Answering the contention that § 402 amounted to a denial of equal protection, Judge Singley, speaking for the Court, said:
"The statute draws a distinction among four situations:
"1. The typical admission charge imposed by theaters, ball parks, skating rinks and the like;
"2. A second admission charge, such as that imposed for a reserved seat once a general admission charge has been paid;
"3. Charges made for the use of sporting or recreational facilities or equipment; and
"4. Charges for refreshment, service or merchandise at any place where there is music, dancing or other entertainment, whether or not there is an admission or cover charge, as well as for admission, if such a charge is imposed." 256 Md. at 389. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328328/ | 214 Ga. 513 (1958)
106 S.E.2d 28
SHARPE et al.
v.
LOWE.
20201.
Supreme Court of Georgia.
Argued September 9, 1958.
Decided October 10, 1958.
Rehearing Denied November 7, 1958.
*514 William T. Darby, Will Ed Smith, for plaintiffs in error.
Jackson & Graham, contra.
ALMAND, Justice.
The judgment under review is an order overruling general and special demurrers to a petition seeking damages for an alleged illegal arrest, and is before this court for the reason that the constitutionality of a State statute (Ga. L. 1958, p. 114) was drawn into question.
Ronald Lowe filed his action in Toombs Superior Court against W. Claude Sharpe, formerly the Sheriff of Montgomery County and now a resident of McIntosh County, Georgia, and United States Fidelity and Guaranty Company, alleged to have an agent, office, and place of business in Toombs County. The basis of the action, as finally amended, was that a deputy of Sharpe, while he was Sheriff of Montgomery County, illegally arrested and falsely imprisoned the plaintiff. Damages and attorneys' fees were sought to be recovered. It was alleged that the resident defendant was the surety on Sharpe's bond at the time of said arrest.
1. The original petition contained two counts, to which general and special demurrers were filed by the defendants. Before these demurrers were considered by the court, the plaintiff reduced his petition to one count. The defendants thereupon renewed their general and special demurrers, and among several additional grounds asserted that the court was without jurisdiction and that the Superior Court of McIntosh County had jurisdiction. The assertion and contention was based upon an act of the General Assembly of Georgia approved March 4, *515 1958 (Ga. L. 1958, p. 114), which amended Code § 56-601 (as amended by the act of 1957, Ga. L. 1957, p. 645), said amendment providing: "Provided further, that any action or suit on the bond of a sheriff, or other arresting or law enforcement officer, upon which any guaranty or surety company or fidelity insurance company is bound and obligated as surety, shall be instituted in the county of the residence of such officer, and not in any other county; and the county of the residence of such officer is hereby fixed as the venue of any action or suit on such bond . . ."
The plaintiff thereupon filed an amendment to his petition in which he alleged that the act of 1958 amending Code § 56-601 was not applicable because his action had been instituted on December 31, 1957, and the suit was pending at the time the amendment was approved on March 4, 1958. He further asserted that, if the amendment was applicable to pending actions, it was unconstitutional as being in violation of certain enumerated provisions of the Constitution of Georgia prohibiting retroactive laws, and of those provisions for suits against joint obligors and joint trespassers.
The trial court, in overruling the general demurrers to the amended petition, held that the amendment of 1958 was not applicable to the action and in the alternative that, even if it was applicable, it was unconstitutional and void as applied to plaintiff's suit.
The plaintiffs in error contend that the amendment of 1958 does apply to suits pending at the time of its enactment, and that the amendment affects the remedy only and is not retroactive so as to impair any rights of the plaintiff.
Code § 56-601, as amended by the act of 1957 (Ga. L. 1957, p. 645), relates to the venue of suits against insurance companies. At the time the instant action was filed, it provided that any person, having a claim or demand on any insurance company, "may institute suit . . . in any county where the company shall have an agent or place of doing business." This court in Carlan v. Fidelity & Casualty Co. of New York, 183 Ga. 715 (189 S. E. 527), held that a sheriff and the surety on his official bond could be sued for an alleged wrongful act of *516 the sheriff in any county where the surety had an agent, office, and place of business, though it not be the county of the sheriff's residence. Code § 56-601, as amended by the act of 1957 (Ga. L. 1957, p. 645), clearly shows that the statute had only a prospective operation. Laws prescribe only for the future. Code § 102-104. There are no words in the amendment of 1958 that require it to be given a retrospective application, and therefore it must be construed to have only a prospective application. Federal Deposit Ins. Corp. v. Beasley, 193 Ga. 727 (2) (20 S. E. 2d 23). The amendment of 1958 to Code § 56-601 having no application to suits pending at the time of its passage, it is unnecessary to pass on its constitutionality.
2. The defendants assert that the amended petition fails to set forth a cause of action for the alleged illegal arrest because it contains no allegations that, at the time of the arrest, the plaintiff (a) was not endeavoring to escape, and (b) there was not likely to be a failure of justice for want of an officer to issue a warrant. In his amended petition, the plaintiff alleged that, at the time he was arrested, he had not committed any act in violation of any law, had committed no act or crime in the presence of the officer who had no warrant for his arrest, and that his arrest and imprisonment were wrongful, illegal, malicious, and without probable cause. Whether any of the grounds for a legal arrest without a warrant, as provided for in Code § 27-207, existed at the time of the alleged arrest of the plaintiff, is a matter of defense. Franklin v. Amerson, 118 Ga. 860 (45 S. E. 698). "Whoever arrests or imprisons a person without a warrant is guilty of a tort, unless he can justify under one of the exceptions prescribed by law; and the burden of proving that the case lies within the exception rests upon the person making the arrest or inflicting the imprisonment." Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 680 (72 S. E. 51).
There is no merit to this ground of the demurrer.
3. In his amended petition the plaintiff alleged that he, "because of his said illegal arrest, and because of the false imprisonment and detention, and because of the conduct of the said officer, sustained little or no actual monetary damages, yet *517 he is entitled to damages for the breach of the said bond in such amount as may be reasonable and just, taking all the circumstances and facts into consideration, and also in addition to his said damages, he is entitled to recover his attorneys' fees, all as provided by law as described in section 89-421 of the Code of Georgia." The defendants by way of special demurrer assert that the plaintiff is not entitled to recover both smart money and the reasonable expenses of his suit.
Code § 89-421 provides: "The measure of damages recoverable in actions upon all official bonds for the misconduct of the officer, unless otherwise specially enacted, shall be the amount of injury actually sustained, including the reasonable expenses of the suit to the plaintiff besides the costs of court; but in all cases when little or no damage is actually sustained, and the officer has not acted in good faith, the jury may find for the plaintiff an amount as smart money, which, taking all the circumstances together shall not be excessive nor oppressive."
The amended petition alleged that the arresting officer acted in bad faith. In construing this Code section in the case of Glens Falls Indemnity Co. v. Dempsey, 68 Ga. App. 607, 612 (23 S. E. 2d 493), where a recovery of smart money and attorneys' fees was sustained, the court said: "The section does not demand the conclusion that where smart money is recoverable there cannot be a recovery for expenses of litigation and costs of court, but the section is susceptible of the construction that where the damages show so-called smart money there can still be a recovery for the reasonable expenses of the suit to the plaintiff, which necessarily include attorney's fees." In our opinion such construction is sound. The amended petition is not subject to the objection that, in a suit for smart money under Code § 89-421, attorneys' fees cannot be recovered.
It was not error to overrule the general and special demurrers of the defendants.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.
DUCKWORTH, Chief Justice, dissenting. I dissent as to division one and the corresponding headnote and to the judgment of affirmance, upon the grounds that I think the amendment deals *518 solely with jurisdiction and venue and is not retroactive, but is within the constitutional power of the legislature to enact, and does not impair the rights of any party in any cause. Mr. Justice Candler joins me in this dissent.
ON MOTION FOR REHEARING.
ALMAND, Justice. Counsel for the plaintiffs in error in their motion for rehearing insist "that the court in this case did not seek to find the legislative intent as expressed from the statute [Ga. L. 1958, p. 114], but erroneously applied a rule of statutory construction dealing with situations where parties have previously acquired [a] vested right."
The history of the act of 1958, amending Code § 56-601, may be referred to as tending to aid in the construction to be given the statute. Mayor &c. of Savannah v. Hartridge, 8 Ga. 23 (2). We take judicial notice of the journals of each branch of the General Assembly (Stanley v. Sims, 185 Ga. 518, 195 S. E. 439), it being the duty of the court in the construction of statutes to give effect to the intention of the legislature when it is ascertainable. Thompson v. Eastern Air Lines, 200 Ga. 216, 222 (39 S. E. 2d 225); Moore v. Baldwin County, 209 Ga. 541, 545 (74 S. E. 2d 449). Compare Mosley v. Lanier, 213 Ga. 373 (2) (99 S. E. 2d 118). Events occurring during the progress of the enactment of a statute as disclosed by the official journals of the General Assembly may be reviewed in seeking to find the intent of the legislature. 2 Sutherland, Statutory Construction, §§ 5001-5016 incl.
The official journals of the House and Senate for the 1958 session of the General Assembly disclose that the act approved March 4, 1958, amending Code § 56-601, designated as House Bill No. 984, in section 2 of the bill as originally introduced and passed by the House, provided: "The legislative intent and purpose of this Act is hereby declared to be wholly remedial, and it shall apply retroactively or retrospectively to all pending suits on the bonds of the officers herein designated." The journals further show that the Senate upon consideration of the House bill amended the same by striking section 2 of the bill and passed the bill as amended; and that the Senate amendment was agreed to by the House.
*519 There being no basis to assume that section 2 was stricken as surplusage, the rejection of this section as contained in the bill as originally introduced is strong evidence that the legislature did not intend for the omitted matter to be effective. Federal Trade Commission v. Raladam Co., 283 U. S. 643 (51 Sup. Ct. 587, 75 L. ed. 1324, 79 A.L.R. 1191); Wright v. Vinton Branch of the Mountain Trust Bank of Roanoke, Virginia, 300 U. S. 440 (57 Sup. Ct. 556, 81 L. ed. 736, 112 A.L.R. 1455); Mayo v. American Agricultural Chemical Co., 101 Fla. 279 (133 So. 885); State Board of Barber Examiners v. Walker, 67 Ariz. 156 (192 Pac. 2d 723); Nelson v. Westland Oil Co., 96 Fed. Supp. 656 (2).
In our opinion the legislative history of this statute discloses an intent on the part of the General Assembly not to make the act applicable to pending suits.
Motion for rehearing is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328329/ | 214 Ga. 485 (1958)
106 S.E.2d 6
SUPERIOR PINE PRODUCTS COMPANY
v.
WILLIAMS, Revenue Commissioner.
20101.
Supreme Court of Georgia.
Argued July 14, 1958.
Decided October 10, 1958.
Rehearing Denied November 7, 1958.
*489 Tillman & Brice, for plaintiff in error.
Wyatt & Morgan, Jackson & Graham, Ford & Houston, Connerat, Dunn, Hunter, Cubbedge & Houlihan, Malcolm Maclean, Bennett, Pedrick & Bennett, E. Kontz Bennett, Young, Hollis & Moseley, for parties at interest not parties to record.
Eugene Cook, Attorney-General, Ben J. Johnson, Jr., Hugh Gibert, Deputy Assistant Attorneys-General, contra.
HEAD, Justice.
Our income-tax law requires the payment annually of an income tax on the net income of property held or business done by corporations. Code § 92-3102 as amended. In the present case there is no contention that the taxpayer is not subject to the general provisions of the income-tax law, or that the tax claimed to be due the State was not in fact due under the provisions of § 92-3102 as amended. It is contended, however, that the taxpayer is entitled to calculate taxes due by it in the manner applicable to long-term capital gains pursuant to the provisions of Code (Ann.) § 92-3119 (Ga. L. 1952, p. 405, et seq.; Ga. L. 1953, Jan.-Feb. Sess., pp. 267-268).
Whether or not the "capital gains" provision of our income-tax law (enacted in 1952) was taken from the United States Internal Revenue Code, is not material as to the legal effect of the contract between the taxpayer and St. Regis Paper Company. The State law controls in determining the legal effect of a contract executed pursuant thereto (Poe v. Seaborn, 282 U. S. 101; Helvering v. Stuart, 317 U. S. 154, 162); and paragraph 24 of the contract provides that it shall be construed according to the laws of Georgia. The construction of such contract is a question *490 of law for the court. Code § 20-701. Where the terms of a contract are ambiguous, the intention of the parties is a question for the jury. Weems v. Georgia Midland &c. R. Co., 84 Ga. 356 (11 S. E. 503); Summerour v. Pappa, 119 Ga. 1 (45 S. E. 713).
In the absence of fraud, accident, or mistake, a complete, unambiguous contract can not be enlarged or varied by parol evidence which is inconsistent with the written instrument. DeLoach & Brother v. Smith & Anderson, 83 Ga. 665 (10 S. E. 436); Holloway v. Brown, 171 Ga. 481, 483 (155 S. E. 917); Thomas v. Eason, 208 Ga. 822 (69 S. E. 2d 729), and citations. It is not contended that there was fraud, accident, or mistake in the contract, or the execution thereof, between the taxpayer and St. Regis Paper Company. On the contrary, the contract is full, complete, and unambiguous, and it was the duty of the court to construe it. Bozarth v. Paschall, 158 Ga. 208, 209 (5) (122 S. E. 683). Allegations by the taxpayer in its appeal as to the nature, character, or extent of its business or operations prior to the execution of the contract are wholly irrelevant, and add nothing to the terms or legal effect of the contract. The stipulation by counsel (which includes the contract) as to compensation received for pulpwood sold amounts to nothing more than establishing that the pulpwood was derived from timber upon the lands described.
Possession of the lands, and the right of possession, for a term of sixty years under the contract having been acquired by St. Regis Paper Company, the Court of Appeals correctly held the contract to be a lease of the lands described. Code §§ 85-801, 85-806. Under the general law, which is in harmony with the rule in Georgia, the contract between the parties is a lease of the lands. 51 C. J. S. 804, § 202; 32 Am. Jur. 46, § 24. See also Black's Law Dictionary (3d ed.), p. 1081; 2 Bouvier's Law Dictionary (3d rev.), p. 1887.
The requirements of the lease that St. Regis Paper Company shall employ good forestry practices in restocking "lands cut over," by planting or otherwise, and limiting the amount of pulpwood to be removed annually to the "average annual growth," support the holding by the Court of Appeals that it was "the intention to lease the land for sixty years for the purpose of pinetree farming."
*491 Counsel for the taxpayer contend that in copying the language of the Federal law into the Georgia statute, it must be assumed that the language was intended to have the same meaning that it had been held to have under the Federal statute. A decision by a Federal court in point on its facts with the present case might be strongly persuasive, but not controlling, on the Georgia courts. Counsel have cited no case in point on its facts, and our extensive examination of Federal decisions has not revealed such a case. Counsel for the taxpayer cite and rely strongly upon Blodgett v. Commissioner of Internal Revenue, 13 U. S. Board of Tax Appeals, p. 1388; Stark v. Commissioner of Internal Revenue, 45 U. S. Board of Tax Appeals, p. 882; Carroll v. Commissioner of Internal Revenue, 70 Fed. 2d 806; and United States v. Robinson, 129 Fed. 2d 297.
As shown by the statement of facts in the Stark case, supra, the contract was one for the sale of standing timber, and the Board of Tax Appeals ruled against the contention of the Commissioner of Internal Revenue that the sale was from "property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business." In both the Stark and Blodgett cases the contract was limited to the sale of standing timber, and there was no lease of the property for the growing of trees over a long period of years.
In Carroll v. Commissioner of Internal Revenue, supra, the contract was one for the sale of standing timber, and it was held that, under the facts of that case, the standing timber was a capital asset. In United States v. Robinson, supra, the District Judge held that the timber was a capital asset and was not property held in the ordinary course of the taxpayer's trade or business. The Circuit Court, in affirming the District Judge, pointed out that the Government's claim was one extreme in its nature, in that the property in question was inherited by the taxpayer, was sold by her for the purpose of liquidation, and that she had never been engaged in any kind of business.
Based upon our consideration of cases, the decision by a Federal court nearest in point with the essential facts of the present case is that of Commissioner of Internal Revenue v. Boeing, 106 Fed. 2d 305. In the Boeing case independent contractors or agents *492 were engaged to cut and remove logs sold by the taxpayer. This was said to be insufficient for a holding that the respondent was not engaged in a trade or business. The court quoted with approval from Welch v. Solomon, 99 Fed. 2d 41, 43, as follows: "The personal attention which a taxpayer gives to a business is certainly not decisive as to whether a resulting profit is ordinary income or capital gain. One may conduct a business through others, his agents, representatives, or employees. The business is nonetheless his because he chooses to let others bear all of the burdens of management." In the Boeing case it was held that Boeing was engaged in the business of "selling logs," and that the income derived therefrom was income from a trade or business.
It is provided by the lease in the present case that no title shall pass until the wood is cut, that it is to be sold by the cord, and that a cord shall contain 128 cubic feet of rough, stacked wood. Counsel for the taxpayer in their brief quote headnote 3 from the decision of this court in Clarke Bros. v. McNatt, 132 Ga. 610 (64 S. E. 795), as follows: "A contract of sale in regard to timber which is attached to the soil, but which is presently to be severed therefrom and converted into personalty before the title is to pass to the purchaser, is an executory sale of personalty, and not of an interest in land." It is contended by counsel "that the contract is merely an executory contract to sell an executory contract to sell personalty, to wit, timber severed from the land." Counsel cite the provision of the lease that "title to timber shall pass from seller to purchaser when and only when such timber is severed from the land," and it is contended that, if this provision of the contract is to be given effect, it must be held to be a provision for an executory sale of timber upon its severance.
The contract is not one for the sale of timber, but is one for the sale of pulpwood, at so much per cord, after it is cut and stacked, and, as contended by counsel, is a sale when consummated of personal property, since wood when cut and stacked is personalty. Boyd v. Newton County, 23 Ga. App. 358 (98 S. E. 237). The terms of the lease in the present case bring it squarely within the language of Judge Sibley of the Circuit Court of Appeals in Brown v. Commissioner of Internal Revenue, 69 Fed. 2d *493 863, 865, as follows: "We are of opinion that the timber was not sold as a whole, that a sale of none of it occurred upon the execution of the contract, but that sales were accomplished only as the timber was cut and removed."
The taxpayer here wholly fails to show that the sales of pulpwood by the cord as personalty fall within the term "capital asset" as defined by Code § 92-3119, as amended, or that the pulpwood has been held for more than six months as a capital asset by the taxpayer as required by the statute. Standing timber is a part of the realty (Coody v. Gress Lumber Co., 82 Ga. 793, 10 S. E. 218; Balkcom v. Empire Lumber Co., 91 Ga. 651, 17 S. E. 1020; Foy v. Scott, 197 Ga. 138, 28 S. E. 2d 107; Shirling v. Hester, 201 Ga. 706, 40 S. E. 2d 743), and as such is a capital asset. When timber is severed from the soil and cut and stacked into cord wood, as contemplated by the contract in the present case, it becomes personalty, and loses its former status as a part of the realty.
Counsel for the taxpayer in their brief insist that, "It is common knowledge, which must be noticed by the court, that 15 to 25 years are required to grow a pulpwood tree." The lease in the present case runs for a period of 60 years; and if it should be conceded that this contention is true, the lessee might cut many thousand cords of pulpwood from trees planted by it upon the land after the execution of the lease, as clearly contemplated by the terms of the lease. If, however, the lease should be denominated an executory contract to sell, as contended by counsel for the taxpayer, then there can be no valid contract to sell timber that was not planted and growing. J. S. Noyes & Co. v. Jenkins, 55 Ga. 586; Huntington v. Chisholm, 61 Ga. 270; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485).
In so far as the 50 percent deduction from gross income as a "long term capital gain" may be construed as an exemption from income taxes, it falls within the principle that any exemption from taxation must be strictly construed in favor of the State; and the exception claimed will not be allowed unless it shall clearly appear that such was the intention of the General Assembly expressed in unambiguous terms. Mayor &c. of Macon v. Central R. &c. Co., 50 Ga. 620; Hightower v. Beall, Spears & *494 Co., 66 Ga. 102, 107; Mundy v. Van Hoose, 104 Ga. 292, 297 (30 S. E. 783); Standard Oil Co. of Kentucky v. State Revenue Commission, 179 Ga. 371, 372 (7) (176 S. E. 1).
Under the terms and conditions of the lease involved in the present case, the taxpayer has executed a long-term lease of lands for timber growing, cutting of pulpwood, saw timber, and turpentining, and this lease includes all improvements on the land, as well as all other surface rights, grazing and game rights, the proceeds of which, like the proceeds of any lease, are rent, or in the nature of rent, and constitute income under Code § 92-3107 as amended. See, in this connection, Palmer Brick Co. v. Woodward, 138 Ga. 289, 295 (75 S. E. 480), where it is held: "A lease may not only confer upon the lessee the right to occupy and cultivate and to remove the products of cultivation, but it may confer on him the power to occupy and remove a portion of that which constitutes the land itself."
Whether or not the taxpayer might be entitled to claim a reasonable allowance for depletion of timber under the provisions of subsection (f) of section 1-A of an act approved February 27, 1953 (Ga. L. 1953, Jan.-Feb. Sess., pp. 274, 278), is a question not now before this court.
Subsection (k) of § 117 of the Federal Revenue Code of 1939 was not adopted by the General Assembly, and is not of effect in this State, and the terms and provisions of this subsection have no application in the present case.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., and Candler, J., who dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328339/ | 98 Ga. App. 772 (1958)
106 S.E.2d 825
SKINNER POULTRY COMPANY et al.
v.
MAPP.
37314.
Court of Appeals of Georgia.
Decided November 5, 1958.
Rehearing Denied December 16, 1958.
*773 John M. Williams, for plaintiffs in error.
O. W. Roberts, Jr., contra.
QUILLIAN, Judge.
The award of the compensation board is predicated upon two findings of fact: (1) that the claimant failed to carry the burden of showing that he gave his employer the notice required by Code § 114-303; (2) that the claimant failed to carry the burden of proving he sustained an accidental injury arising out of his employment, because his testimony that the accident occurred on a certain day was in conflict with the employer's record, the records being the highest and best evidence.
The first finding is, in my opinion, supported by no evidence. The rule is stated in Davison-Paxon Co. v. Ford, 88 Ga. App. 890, 892 (78 S. E. 2d 257), "The required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so. Railway Express Agency v. Harper, 70 Ga. App. 795 (29 S. E. 2d 434)."
Here the claimant put the employer on notice of facts that he had a back trouble. The employer did not give him opportunity to present his claim that it arose out of an accident connected with his employment. Nevertheless the employer accepted the notice as sufficient, but, according to his own testimony, instituted an investigation on the basis of the notice to ascertain whether the claimant had sustained a compensable injury. He inquired of the claimant's physician as to whether the injury was one covered by his workmen's compensation insurance.
The Board of Workmen's Compensation showed by the statement in the finding of fact that it incorrectly applied a rule of evidence in weighing the evidence pertaining to the issue of whether the claimant sustained an accidental injury arising out of his employment. The finding of fact contains the conclusion: "The payroll records would be the highest and best evidence as to employment and in view of the conflict in the testimony of the claimant and the payroll records it would not be possible for the claimant to have incurred an injury on the 25th day of August since his employment ceased on August 20th."
*774 The assumption of the board that the employer's records, or the testimony of an employer's witness that the records showed the claimant was not working on the date of his injury was higher and better evidence than the testimony of the claimant and other witnesses that he was working on that particular day is obviously erroneous. The testimony of a party to a transaction is as high and good evidence as to a particular fact as the purported records of the opposite party. Walker v. State, 11 Ga. App. 251 (2) (74 S. E. 1100); Loughridge v. State, 201 Ga. 513 (3a) (40 S. E. 2d 544).
Therefore the finding of the board that the claimant did not carry the burden of showing he sustained an injury arising out of his employment was predicated upon an erroneous theory.
The Supreme Court has definitely settled the question that where there is competent evidence to support a particular finding of fact, though the compensation board predicates its finding upon an erroneous theory, the award will not be set aside. American Mutual Liability Ins. Co. v. Sisson, 198 Ga. 623 (32 S. E. 2d 295).
The claimant insists that the finding of the board that he did not sustain an accidental injury arising out of his employment was predicated upon the erroneous assumption that the proof that he was at work on the day he claimed to be injured was essential to his right of compensation.
The right of a claimant to compensation is not necessarily barred because he cannot definitely fix the date of the accident resulting in his disability, either because he cannot remember the precise time when the accident occurred or because the accident was of such nature that there is difficulty in ascertaining with complete accuracy when it happened. Ideal Mutual Ins. Co. v. Ray, 92 Ga. App. 273 (88 S. E. 2d 428); Carpenter v. Lockheed Aircraft Corp., 93 Ga. App. 213 (2) (91 S. E. 2d 199).
The essential element of proof as to the time when the accident happened is that it was within the statutory period prescribed by Code § 114-305. However, where as in this case, the claimant testified that he was injured on a particular day and describes in detail the manner in which the accident happened, proof that the accident did not occur on that date became a material, though *775 not necessarily controlling issue. Proof that on the date the claimant testifies he was injured he was not in the employer's service or was not performing the duties of his employment is evidence that may be considered in deciding whether he sustained an accidental injury arising out of his employment.
The evidence as it appears from the record would seem to preponderate rather pronouncedly in favor of the claimant's contention that he was present and at work in his employer's plant on August 25, 1956, the date on which he claims to have been injured. Nevertheless, the record or the bookkeeper's testimony, admitted without objection that the record was higher and better evidence as to the items or information contained therein, was some competent evidence that the claimant was not working on that particular day, and "some competent evidence", though slight and contradicted by both the evidence submitted by the claimant and even some of the employer's evidence, that the claimant did not sustain an accident arising out of his employment. There was yet other proof that constituted "some competent evidence" that the claimant did not sustain an injury while performing the duties of his employment.
While Dr. Boss testified that the claimant related to him the circumstances under which he was injured on August 25, 1956, he also testified that it could not for certain reasons have occurred on that date, and the doctor also at another point in his testimony gave the following evidence in reply to questions of counsel. "Q. When he came to you, what history did he give you? A. Well, he complained of having progressive back pain with leg radiation, as well as I remember of approximately four week duration. Q. Isn't it a fact that you questioned him specifically about involvement in any sort of accident? A. Yes sir, I did. Q. What was his reply? A. The only thing he could definitely remember and he wasn't sure about that, and he was very frank about it, was at one time, I think on pushing the cart to I have forgotten whether it was a little hole in the floor or something on the floor, on pushing the thing he felt that transient catch or something of that nature in his back that immediately cleared up and it didn't bother him much, I don't think, for the next few days but maybe four days later he began *776 to have this pain that he had and that it gradually became progressively worse and I believe he was able to work without consulting any help for approximately four weeks. Now, I'm not definitely sure of those dates but it is around that. The director: Four days or four weeks? A. Four weeks no, it was four days approximately after, approximately I think that he said after pushing the cart that he noticed that this thing began to bother him a little bit somewhere in the vicinity but it was around four weeks after this before he consulted any or any medical aid. Now, that was the only specific thing in his history that was brought out and he said the only thing he didn't remember, he paid no attention to that. Q. He paid no attention and did not attribute his injury to that accident? A. Well, no, I mean in a situation like that, of course, he didn't think that particular thing could have caused it because it was four days later, you see."
Dr. David S. Wexler testified that: "A. History well I asked him whether he had had any falls or accidents and he told me not that I remembered, I'm thinking of possibly some people working at such and such, you see, I'm trying to pinpoint as to where this thing might have happened."
The claimant testified: "A. And I went down to the doctor and he told me, he asked me how long my back been a bothering and I told him some time, you know like that; I said `I've been having trouble with my back and didn't know the cause'."
While, as stated, we think the record shows a strong case for the claimant, despite the evidence above quoted, we are compelled to hold there was some competent evidence in the record upon which the award denying compensation could be based.
Judgment reversed. Felton, C. J. and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328363/ | 93 Ga. App. 222 (1956)
91 S.E.2d 188
SMITH
v.
MARYLAND CASUALTY COMPANY et al.
35932.
Court Appeals of Georgia.
Decided January 19, 1956.
McCord & Cooper, Wm. H. Cooper, Jr., for plaintiff in error.
Richard D. Carr, Smith, Field, Doremus & Ringel, contra.
FELTON, C. J.
The claimant filed a claim for compensation against the defendants for a broken leg he suffered when a scaffold upon which he was working broke and he fell to the ground. The claimant was one of three employees hired by Copeland to do carpentry work. Long was a house builder. He contracted with Wilson for the framing and cornice work on the houses. Wilson in turn contracted with Copeland for the cornice work. The claimant claims that he was an employee of Copeland who was an employee of Wilson who was an employee of Long. The question is whether Wilson and Long so directed the time, manner and method of Copeland's work, or had a right to do so, as to render them employers under the principle stated in Banks v. Ellijay Lumber Co., 59 Ga. App. 270, 272 (200 S. E. 480).
Suffice it to say without setting out the evidence that the evidence authorized the finding that Long could not and did not so direct the work of Wilson or Copeland, and that Wilson could not and did not so direct the work of Copeland. The evidence authorized the finding that Long could only require Wilson to adhere to the plans and specifications contracted for so that the houses would pass a Veteran's Administration inspection. Similarly, the evidence authorized the finding that Wilson could only require of Copeland compliance with the contract for the cornice work. It is true that Long would tell Wilson when a foundation was ready for the framing and cornicing and that in turn Wilson could *223 notify Copeland when the house was ready for the cornice work, but once each began his respective work on a contract unit, Long could not direct Wilson or Copeland and Wilson could not direct Copeland or control the execution of such work except to the extent of contract compliance. A contractor has the right to call to the attention of a subcontractor that the contract is not being followed and demand of the subcontractor a compliance therewith. Poss Bros. Lumber Co. v. Haynie, 37 Ga. App. 60 (3) (139 S. E. 127); Employers Liability &c. Corp. v. Smith, 86 Ga. App. 230, 234 (71 S. E. 2d 289).
In Davis v. Starrett Bros., 39 Ga. App. 422, 427 (147 S. E. 530), relied on by the plaintiff in error, the builder could increase or decrease the work; it could in certain instances have the work stopped and recommenced at its pleasure; it could determine that there were not enough skilled workmen on the job and put more on it; it could cause a subcontractor to discharge any of its employees who were not satisfactory to the builder, and it could terminate the contract and do the work itself. The evidence authorized the finding that the alleged employers, Wilson and Long, could have done none of these in this case.
Code § 114-112 is not applicable in the instant case. Since Copeland had only three employees, he did not as a matter of law come under the workmen's compensation law, and since he had not voluntarily come under the act, the provisions of Code § 114-112 do not apply. Churchwell Bros. Const. Co. v. Briggs Const. Co., 89 Ga. App. 550 (80 S. E. 2d 212).
The court did not err in affirming the board's award denying compensaiton.
Judgment affirmed. Quillian and Nichols, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262416/ | 239 P.3d 733 (2010)
CANYON AMBULATORY SURGERY CENTER, a North Carolina limited liability company, doing business as Canyon Surgery Center; and El Dorado Surgery Center, L.P., doing business as El Dorado Surgicenter, a foreign limited partnership, Plaintiffs/Appellants,
v.
SCF ARIZONA, Defendant/Appellee.
No. 1 CA-CV 09-0408.
Court of Appeals of Arizona, Division 1, Department D.
September 16, 2010.
*735 Gammage & Burnham P.L.C. By James A. Craft, Cameron C. Artigue, and Carolyn V. Williams, Phoenix, Attorneys for Plaintiffs/Appellants.
Sanders & Parks P.C. By Mark G. Worischeck, Debora L. Verdier and Shanks Leonhardt, Phoenix, Attorneys for Defendant/Appellee.
OPINION
BROWN, Judge.
¶ 1 Appellants Canyon Ambulatory Surgery Center ("Canyon") and El Dorado Surgery Center ("El Dorado") (collectively the "Surgery Centers") appeal the trial court's dismissal of their claims against SCF Arizona[1] ("SCF") for alleged violation of SCF's statutory and contractual obligations to pay workers' compensation benefits for services rendered on behalf of injured workers. The Surgery Centers also challenge the court's grant of partial summary judgment finding SCF exempt from the rulemaking requirements of the Administrative Procedures Act ("APA"). They further contend the court erred in granting judgment as a matter of law ("JMOL") in favor of SCF after an advisory jury found in favor of the Surgery Centers. Finally, the Surgery Centers challenge the sanctions awarded to SCF pursuant to Arizona Rule of Civil Procedure 68. For the following reasons, we affirm.
BACKGROUND
¶ 2 The Surgery Centers are two of approximately 150 ambulatory surgical centers ("ASCs") in Arizona that provide facilities for various outpatient medical and surgical procedures. SCF provides workers' compensation coverage to Arizona employers, which indemnifies employers for financial obligations imposed by Arizona's workers' compensation laws. Ariz.Rev.Stat. ("A.R.S.") § 23-981 (Supp.2009).[2] Between March 2003 and March 2007, the Surgery Centers treated 2100 workers who were entitled to benefits under SCF insurance policies for work-related injuries ("injured workers"). The Surgery Centers did not have a contract with SCF establishing billing rates for services provided to the injured workers,[3] so they billed SCF according to the rates listed in the Surgery Centers' chargemasters.[4]
¶ 3 Prior to March 2003, SCF paid the Surgery Centers the full amount billed. Thereafter, as part of its cost containment system, SCF hired Qmedtrix to review each bill submitted and recommend a reasonable reimbursement amount. Qmedtrix created a payment methodology based on reimbursements made by other carriers, which resulted in reduced payments to the Surgery Centers. As compensation for Qmedtrix's services, SCF paid Qmedtrix 25% of the recommended price reduction.[5]
¶ 4 Canyon filed a declaratory judgment action in December 2003 alleging that SCF's reimbursement methodology constituted a *736 "rule" under the APA, and was adopted in violation of the APA's notice and hearing requirements.[6] Canyon also sought a declaration that SCF was obligated to pay benefits in the amount of the charges billed. After cross-motions for summary judgment were filed concerning the applicability of the APA, the trial court entered partial summary judgment, rejecting Canyon's claim that SCF was subject to the APA rulemaking procedures.
¶ 5 In the meantime, El Dorado filed a separate declaratory judgment action in March 2004. After the trial court granted SCF's motion for partial summary judgment on the APA claim, the cases were consolidated.[7] The Surgery Centers then filed an amended complaint, omitting the prior declaratory judgment request and adding five new claims: (1) violations of statutory duties ("Count 1"); (2) implied contract/restitution ("Count 2"); (3) breach of policy benefits ("Count 3"); (4) bad faith by an insurer ("Count 4"); and (5) negligent misrepresentation ("Count 5"). SCF moved to dismiss all five counts for failure to state a claim upon which relief could be granted. Following argument, the court dismissed Counts 1 and 4 with prejudice and Count 3 without prejudice.
¶ 6 Trial commenced to an advisory jury on the two remaining claimsimplied contract/restitution and negligent misrepresentation. The court subsequently dismissed the negligent misrepresentation claim pursuant to Arizona Rule of Civil Procedure 50. The advisory jury awarded damages to Canyon in the amount of $1,125,562 and to El Dorado in the amount of $1,082,501. SCF then filed a "renewed motion for JMOL," which the trial court granted, concluding that the Surgery Centers "have received the reasonable value of their services from SCF, if not more." The Surgery Centers unsuccessfully moved for a new trial and then filed this appeal.[8]
DISCUSSION
I. Dismissal of Counts 1 and 3 under Rule 12(b)(6)
¶ 7 The Surgery Centers first argue the trial court erred in dismissing Counts 1 and 3. We review de novo a trial court's grant of a motion to dismiss for failure to state a claim. Phelps Dodge Corp. v. El Paso Corp., 213 Ariz. 400, 402, ¶ 8, 142 P.3d 708, 710 (App.2006). We assume the allegations in the complaint are true, and will "uphold dismissal only if the plaintiff[ ] would not be entitled to relief under any facts susceptible of proof in the statement of the claim." T.P. Racing, L.L.L.P. v. Ariz. Dep't of Racing, 223 Ariz. 257, 259, ¶ 8, 222 P.3d 280, 282 (App.2009) (citation omitted).
A. Count 1Statutory Violations
¶ 8 As to Count 1, the Surgery Centers contend they pled a valid claim by asserting that "SCF is in continuing violation of its mandatory, non-discretionary duty to pay medical and surgical benefits[,]" citing A.R.S. §§ 23-1001 (1995), -1021(B) (Supp.2009), and -1062(A) (1995).[9] Those statutes state in pertinent part:
Every employer insuring with an insurance carrier shall receive from such insurance carrier a contract or policy of insurance. A.R.S. § 23-1001.
Every employee . . . shall be entitled to receive and shall be paid such compensation from the state compensation fund for loss sustained on account of the injury or death, such medical, nurse and hospital services and medicines . . . as are provided in this chapter. A.R.S. § 23-1021(B).
*737 [E]very injured employee shall receive medical, surgical and hospital benefits or other treatment . . . reasonably required at the time of injury, and during the period of disability. A.R.S. § 23-1062(A).
¶ 9 It is undisputed that SCF unilaterally reduced the payments it had been previously making to the Surgery Centers. That action, however, does not constitute a violation of the cited statutes. See Ariz. R. Civ. P. 8(a)(2); see also Rowland v. Kellogg Brown and Root, Inc., 210 Ariz. 530, 534, ¶ 15, 115 P.3d 124, 128 (App.2005) (recognizing that a complaint must set forth facts, that if proven, are sufficient to support a claim for relief as presented). Nowhere in the amended complaint do the Surgery Centers allege that (1) the injured workers' employers failed to receive a contract or policy of insurance from SCF, or that SCF failed to provide the same; (2) the injured workers were not paid compensation[10] for losses sustained on account of their injuries, or did not receive necessary medical treatment; or (3) such benefits and treatment were not provided at the time of injury and during the period of disability.
¶ 10 Attempting to overcome this facial defect, the Surgery Centers assert that the statutes cited, when read together with case law and in the greater context of the statutory scheme, create an obligation on the part of employers to not only provide medical treatment for injured workers, but also to pay for it.[11] Notably, SCF does not dispute its obligation to pay for the medical services provided to injured workers, and the Surgery Centers do not allege they have not been paid. The Surgery Centers' only contention is that they were "underpaid" for the services they rendered. However, nothing in the statutes cited, or in the arguments advanced by the Surgery Centers, supports a finding that SCF has violated a statutory duty by paying less than the billed amount for services provided.
¶ 11 Because we conclude the Surgery Centers failed to allege facts sufficient to support a statutory violation claim, we need not address whether they had standing to bring such a claim or whether the superior court had jurisdiction over the claim.
B. Count 3Policy Benefits
¶ 12 The Surgery Centers argue the trial court erred in dismissing Count 3, which alleged that SCF was in "breach of the insurance benefits promised [ ] for injured workers treated by [the Surgery Centers], [because] SCF has refused to pay those benefits." They contend that because each injured worker in this case assigned to the Surgery Centers his or her right to enforce payment of benefits, the Surgery Centers may directly enforce SCF's obligation to pay. Alternatively, the Surgery Centers claim they are third-party beneficiaries of the insurance policies sold by SCF.
¶ 13 SCF counters that dismissal was appropriate because the Surgery Centers failed to allege what policy benefits the injured workers were entitled to but did not receive. They also claim the assignments of benefits were invalid. In addition, SCF asserts Arizona law bars the Surgery Centers from being third-party beneficiaries of a contract. Moreover, it contends that none of the Surgery Centers' arguments have merit because the trial court dismissed the claim without prejudice and therefore the order is not appealable. We hold that the final point is decisive as to Count 3.
¶ 14 In general, "an appeal lies only from a final judgment." McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 74, ¶ 4, 202 P.3d 536, 539 (App.2009) (citation and internal quotation marks omitted). A dismissal without prejudice is not a final *738 judgment and is therefore generally not appealable. See id. (citing L.B. Nelson Corp. of Tucson v. W. Am. Fin. Corp., 150 Ariz. 211, 217, 722 P.2d 379, 385 (App.1986)); see also A.R.S. § 12-2101(D) (2003). However, dismissal of an action without prejudice is appealable: (1) when the timely filing of another suit is barred by the statute of limitations; or (2) when the dismissal order is entered without leave to amend. See McMurray, 220 Ariz. at 74, ¶ 4, 202 P.3d at 539 (citing State ex rel. Hess v. Boehringer, 16 Ariz. 48, 51, 141 P. 126, 127 (1914)) (holding that a "dismissal without prejudice is not a final determination of the controversy on its merits, and is no bar to the prosecution of another suit timely commenced . . . [but] [a]n appeal from such order may be prosecuted . . . when such order in effect determines the action and prevents final judgment from which an appeal might be taken"); see also Flynn v. Johnson, 3 Ariz.App. 369, 373, 414 P.2d 757, 761 (1966) (order of dismissal appealable if entered without leave to amend or with prejudice).
¶ 15 Here, the Surgery Centers do not argue the statute of limitations had run on Count 3 or that a final judgment was entered from which they could have appealed. Nor do they contend they were prevented from amending the complaint or otherwise attempting to reassert the claim. In fact, the trial record indicates just the opposite. The trial court dismissed Count 3 without prejudice in January 2006, indicating that although fact issues had been raised regarding what the insurance policies provide, the court was nonetheless inclined to dismiss. At the same time, however, the court ordered the policies to be produced and informed counsel for the Surgery Centers that "[i]f there's additional arguments that the plaintiffs would like to make once they receive the insurance policies and have [had] a chance to review them and they would like to move for reconsideration of dismissal of Count 3, they may do so[.]"
¶ 16 The record is devoid of any effort by the Surgery Centers to move for reconsideration of this claim or otherwise assert its validity, despite being expressly invited to do so by the court. As such, the order of dismissal was not appealable and therefore we lack jurisdiction over Count 3. See L.B. Nelson Corp., 150 Ariz. at 217, 722 P.2d at 385 (finding that order dismissing without prejudice one count of multiple count complaint was not an appealable order). In light of our conclusion, we need not address the other grounds for dismissal advanced by SCF.
II. Count 1Statutory Violation of APA
¶ 17 The Surgery Centers argue the trial court erred in granting summary judgment on their claim that SCF violated the APA rulemaking requirements. They contend that SCF, as a state agency, is subject to the provisions of the APA and that the Qmedtrix payment methodology is a de facto "rule" promulgated by SCF in violation of the APA's notice and hearing requirements.
¶ 18 A motion for summary judgment should be granted if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). We review a trial court's grant of summary judgment and matters of law involving statutory interpretation de novo. Bentley v. Building Our Future, 217 Ariz. 265, 270, ¶ 11, 172 P.3d 860, 865 (App.2007).
¶ 19 As the trial court noted, it is undisputed that SCF's adoption of a new pricing methodology was not done in compliance with the APA. The court determined, however, that APA compliance was unnecessary because the APA governs only those agencies that perform governmental functions, unlike the general business functions carried out by SCF, which are not governed the APA. We agree with the court's conclusion that SCF is not subject to the APA rulemaking requirements, but we reach our conclusion based on an alternative ground urged by SCF. See Sherman v. First Am. Title Ins. Co., 201 Ariz. 564, 571, ¶ 21, 38 P.3d 1229, 1236 (App.2002) (noting that an appellate court may affirm the decision of the trial court if it reaches the right result even if based on different grounds).
¶ 20 Whether SCF is subject to the APA is a matter of statutory interpretation, the primary goal of which is to find and give effect to legislative intent. Mail Boxes v. Indus. *739 Comm'n of Ariz., 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). When construing statutes, we begin with the language of the statute itself "because we expect it to be the best and most reliable index of a statute's meaning." Bentley, 217 Ariz. at 270, ¶ 12, 172 P.3d at 865 (internal quotations and citations omitted).
¶ 21 Regardless of whether SCF is a state agency subject to the APA, we are not persuaded that the use of the Qmedtrix methodology is a rule subject to APA notice and hearing provisions. A "rule" within the APA is defined as any agency statement that "implements, interprets or prescribes law or policy." A.R.S. § 41-1001(17) (Supp.2009). An entity's internal guidelines, however, are not rules. Duke Energy Arlington Valley, LLC v. Ariz. Dep't of Rev., 219 Ariz. 76, 80, ¶ 18, 193 P.3d 330, 334 (App.2008).
¶ 22 In Duke, taxpayers who were operators of electric generation facilities sought a declaratory judgment to establish that depreciation tables for valuation of electric generation facilities adopted by the Department of Revenue were rules under the APA and thus subject to the relevant rulemaking requirements. Id. at 77, ¶ 2, 193 P.3d at 331. The tax court held that the tables were not rules. Id. at ¶ 3. We affirmed, concluding that the depreciation tables were not rules because they were referred to as guidelines in the statute and they were "only one element" used by the Department of Revenue in determining the statutorily mandated value of electric generation facilities. Id. at 78-79, ¶¶ 11, 15, 193 P.3d at 332-33.
¶ 23 Similar to the tax tables in Duke, the fee methodology at issue here is not a rule subject to the APA; it is merely a way to collect data to be considered in setting reimbursement amounts, in the exercise of SCF's discretion. See Shelby Sch. v. Ariz. State Bd. of Educ., 192 Ariz. 156, 167, ¶ 48, 962 P.2d 230, 241 (App.1998) (finding that the creditworthiness requirement for awarding charter school status was "merely an element to be considered by the Board" when making its decision and only "a method of obtaining data"); cf. Sw. Ambulance v. Ariz. Dep't of Health Servs., 183 Ariz. 258, 261, 902 P.2d 1362, 1365 (App.1995) (concluding that rate schedule was a rule because in addition to setting rates, the schedule described procedures on how fractions of an hour were to be charged, how mileage was to be charged, what constituted a minimum charge, and when a rate for advanced life support could be charged) superseded by statute on other grounds as recognized by Phoenix Children's Hosp. v. Ariz. Health Care Cost Containment Sys., 195 Ariz. 277, 987 P.2d 763 (App. 1999). Here, the record reflects that the information provided by Qmedtrix to SCF is intended as a "recommendation" of how much SCF should pay based on Qmedtrix's estimation of what is a reasonable charge.[12] SCF is under no obligation to adopt the recommendations of Qmedtrix; it simply uses the information provided to guide its reimbursement decisions.[13]
¶ 24 In addition, applicable statutory authority provides that SCF does not adopt rules regarding workers' compensation matters; those rules are promulgated by the Industrial Commission of Arizona ("ICA"). A.R.S. § 23-107(A) (Supp.2009) (granting the ICA "full power, jurisdiction, and authority to . . . [f]ormulate and adopt rules and regulations for effecting the purposes of this article" including acting "as the regulatory agency insuring that workers' compensation carriers are processing claims in accordance with chapter 6 of this title").[14] The "rulemaking authority" of the SCF is limited to *740 two circumstances. The SCF Board of Directors may adopt rules "for the conduct of its business[.]" A.R.S. § 23-981.01(A) (1995). The SCF manager may also "adopt rules for the collection, maintenance and disbursement of the fund[.]" A.R.S. § 23-981(C). Neither of these rulemaking categories is subject to the APA requirements because both involve matters "concerning only the internal management of [SCF] that do[] not directly and substantially affect the procedural or substantive rights or duties of any segment of the public."[15] A.R.S. § 41-1005(A)(4) (Supp.2009) (listing the rules and fees that are exempt from APA requirements).
¶ 25 The Surgery Centers cite three cases in support of their argument that prescribing reimbursement amounts for healthcare providers is tantamount to "rulemaking" under the APA. Ariz. Soc'y of Pathologists v. Ariz. Health Care Cost Containment Sys. Admin., 201 Ariz. 553, 38 P.3d 1218 (App.2002); Sw. Ambulance, 183 Ariz. at 258, 902 P.2d at 1362; Carondelet Health Servs., Inc. v. Ariz. Health Care Cost Containment Sys. Admin., 182 Ariz. 221, 895 P.2d 133 (App.1994). We find these cases inapposite. Each of them involved a state agency expressly empowered to promulgate rules governing the administration of those agencies, including prescribing fees and amending or repealing prior rules. See Pathologists, 201 Ariz. at 555, ¶ 6, 38 P.3d at 1220; Sw. Ambulance, 183 Ariz. at 260, 902 P.2d at 1364; Carondelet, 182 Ariz. at 226, 895 P.2d at 138. Moreover, in each case, the agency in question intended to establish an exclusive and universally applied reimbursement scheme pursuant to its statutory authority. See Pathologists, 201 Ariz. at 557, ¶ 20, 38 P.3d at 1222 (state agency conceding new reimbursement methodology was a rule promulgated in accordance with statutory authority but arguing separate statutory authority existed for adopting rule thereby eliminating requirement to comply with APA); Sw. Ambulance, 183 Ariz. at 260, 902 P.2d at 1364 (recognizing that the legislature delegated the responsibility for regulating ambulance companies to the Department of Health Services and the department intended to establish rates and charges for ambulance companies as required by statute when it adopted the rates and charges at issue); Carondelet, 182 Ariz. at 227, 895 P.2d at 139 (finding that the Arizona Health Care Cost Containment System ("AHCCCS") reimbursement methodology was intended to "implement" session law and amend a rule previously adopted by AHCCCS pursuant to its authority to do so).
¶ 26 In sum, we find the Qmedtrix methodology employed by SCF to inform its decisions regarding reasonable reimbursement amounts to health care providers is not a rule within the meaning of the APA. Consequently, the trial court did not err in granting SCF's motion for partial summary judgment as to the non-applicability of the APA.
III. Judgment as a Matter of Law
¶ 27 The Surgery Centers argue the trial court erred in granting JMOL[16] because the advisory jury's verdict regarding restitution was reasonable in light of the evidence presented.[17]*741 SCF counters that JMOL was proper because the payments it made exceeded the reasonable value of the services provided.
¶ 28 Generally, we review the grant of a motion for JMOL de novo. However, because neither side requested that the trial court make specific findings of fact and conclusions of law pursuant to Rule 52(a), and the court did not sua sponte make detailed findings, we "presume the trial court found every fact necessary to support its judgment and we will affirm if any reasonable construction of the evidence justifies it." Garden Lakes Cmty. Ass'n, Inc. v. Madigan, 204 Ariz. 238, 240, ¶ 9, 62 P.3d 983, 985 (App. 2003) (citations omitted). Moreover, although an advisory jury heard the evidence and recommended awarding damages to the Surgery Centers, "it is the findings and judgment of the court that are presumed to be correct rather than the jury's [recommendation]." Id. at 240-41, ¶ 9, 62 P.3d at 985-86 (citations omitted); Ariz. R. Civ. P. 39(n) (stating that answers to special interrogatories "shall be only advisory to the court").
¶ 29 For the Surgery Centers to prevail on their restitution claim, they were required to prove SCF paid less than a reasonable amount for their services, in which case they could recover the difference under a theory of quantum meruit or unjust enrichment. See City of Sierra Vista v. Cochise Enters., Inc., 144 Ariz. 375, 381, 697 P.2d 1125, 1131 (App.1984) (acknowledging that the doctrine of quantum meruit is based on the concept that a person shall not be unjustly enriched by obtaining or retaining money or benefits that properly belong to another); Restatement (First) Restitution, § 1 (1937) ("A person who has been unjustly enriched at the expense of another is required to make restitution to the other."). To prove the reasonable value of their services, the Surgery Centers were required to demonstrate either (1) the fair market value of their services; or (2) the actual cost to them to provide the services plus a reasonable rate of return. Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz. 57, 66-67, 703 P.2d 1206, 1215-16 (App.1984), aff'd in relevant part by 146 Ariz. 48, 55, 703 P.2d 1197, 1204 (1985); see also Turnkey Corp. v. Rappeport, 149 Ariz. 514, 516, 720 P.2d 115, 117 (App.1986).
¶ 30 At trial, the Surgery Centers presented evidence that their billed charges were in line with what other ambulatory surgery centers charged. They also presented some evidence of the industry custom to pay billed charges absent a contract to the contrary. The Surgery Centers thus argued they were entitled to payment of their billed charges for services rendered. Alternatively, they argued that short of full payment, the reasonable fair market value of their services could be ascertained by the average amount they receive from other workers' compensation payors, which they estimated at between 72-76% of the charges billed. SCF, on the other hand, presented evidence that the majority of the Surgery Centers' payors pay significantly less than billed charges. SCF argued that the overall payment rate from all payors was a more realistic estimation of fair market value for the Surgery Centers' services.
*742 ¶ 31 At the end of the trial, the advisory jury returned a "verdict" in favor of the Surgery Centers, awarding damages equal to 70% of their total billed charges. SCF filed a renewed JMOL motion on the Surgery Centers' restitution claim. After further briefing and argument, the trial court granted the motion, reasoning in part as follows:
[The Surgery Centers] asked for 100% of the charges they billed. The advisory jury recommended judgment of 70% of [the Surgery Centers'] billed charges. It is difficult to find the rationale for this recommendation; i.e., why not 90%, 72%, 68%, or 49%? The only thing the court knows for certain is that the jury found that 100% of [the Surgery Centers'] billed charges are not the reasonable value of their services.
The court then determined that because workers' compensation payments constituted only 12-14% of all the Surgery Centers' income, the correct standard for establishing the fair market value of services was not "list price," but "what a seller actually accepts from a willing buyer." The court concluded that the "true measure of the reasonable value of [the Surgery Centers'] services" is found in the fact that "Canyon accepts 30% or less of its billed charges from 82% of its patients' insurers and El Dorado accepts less than 24% of its billed charges from 89% of its patients' insurers." The court therefore held that the payments made by SCF, which exceeded 40% of the billed charges, were reasonable under the circumstances.
¶ 32 The Surgery Centers argue the trial court's determination of the reasonable fair market value of its services conflicts with the principles espoused in Arizona case law. Specifically, they contend Title 23 claims should operate under the same principles governing health care reimbursements in other contextsthat absent a contract or statute to the contrary, payors must pay the billed price for services rendered. They rely on University Medical Center, Corp. v. Pima County to argue that when a statute creates an obligation to reimburse a health care provider, but does not create a discount, the obligation is to pay "list price." 188 Ariz. 453, 937 P.2d 375 (App.1996).
¶ 33 In University Medical, Pima County argued it should not be liable for the "full billed" amount of hospital expenses incurred for the care of a felon in its custody. Id. at 454, 937 P.2d at 376. The county claimed it was only authorized to pay for medical expenses at a reduced rate and furthermore the medical center had uniformly accepted such discounted payments in the past. Id. at 455, 937 P.2d at 377. The ultimate question presented was whether the statutory discount for indigent patients in the county's care was applicable to the facts presented. We concluded it was not and held only that "in the absence of statutory support for a discounted rate," a discount for hospital services could not be judicially mandated. Id. at 455-56, 937 P.2d at 377-78.[18]University Medical did not involve a claim for restitution; we neither addressed the reasonableness of the charges billed by the hospital nor did we consider the propriety of any reimbursements made in relation thereto. Id. at 454, 937 P.2d at 376.
¶ 34 Here, the Surgery Centers' claim for restitution does not rest on the applicability of a statutorily mandated discount, but rather on the Surgery Centers' ability to demonstrate that the reasonable value of its services exceeded the amount SCF paid for them. The record reflects that the trial court considered the evidence presented and concluded the reasonable value of the Surgery Centers' services was best measured by the overall rate of payment accepted from *743 other payors for the same services. We hold that the court's conclusion is supported by a reasonable construction of the evidence.
IV. Rule 68 Sanctions
¶ 35 The Surgery Centers contend the trial court erred in awarding sanctions pursuant to Arizona Rule of Civil Procedure 68. "We review the meaning and effect of a court rule de novo." Girouard v. Skyline Steel, Inc., 215 Ariz. 126, 133, ¶ 24, 158 P.3d 255, 262 (App.2007) (citation omitted). Rule 68 provides that "any party may serve upon any other party an offer to allow judgment to be entered in the action." Ariz. R. Civ. P. 68(a). If the offer is rejected and a more favorable judgment is not obtained at trial, the offeree must pay sanctions pursuant to Rule 68. Ariz. R. Civ. P. 68(g).
¶ 36 The Surgery Centers cite Acceptance Indem. Ins. Co. v. Southeastern Forge, Inc. in support of their assertion that the judgment here did not include all claims between the parties and thus Rule 68 sanctions cannot be applied. 209 F.R.D. 697, 699 (M.D.Ga. 2002). We find Acceptance Indemnity inapposite because it involved a Rule 68 offer where not all of the parties agreed to the offer. Id. The court there explained that in such cases, Rule 54(b) required the court to determine that "there is no just reason for delay" of a judgment and to make "an express direction for the entry of judgment" in order for such judgment to be "final." Id. at 700. The court then recognized that although a judgment would not be final as to parties that did not participate in the judgment, there is no "reason why it would be impermissible to enter a judgment pursuant to Rule 68 that involves less than all of the claims or parties." Id.
¶ 37 Unlike the situation in Acceptance Indemnity, it is undisputed that SCF made an offer of judgment to all the involved parties and that the offer was directed to all claims that were subject to the instant litigation. Because the Surgery Centers continued to accept and treat injured workers following the filing of the claims at issue here, the parties stipulated to the time period for which billing would be subject to scrutiny in this case.[19] During the pendency of the trial court proceedings, SCF served each plaintiff with an offer of judgment as to its claims during the stipulated period. The Surgery Centers rejected these offers and trial proceeded. At the conclusion of the trial, the court entered judgment, pursuant to Rule 54(b), in favor of SCF on all claims litigated and arising out of the time period to which the parties stipulated. The judgment was not more favorable to the Surgery Centers than the offers made by SCF. Simply because other, thus far unlitigated claims may exist does not change the finality of the judgment of the claims at issue here. Consequently, the court properly awarded sanctions pursuant to Rule 68.
CONCLUSION
¶ 38 Based on the foregoing, we affirm the judgment of the trial court.
CONCURRING: JON W. THOMPSON and SHELDON H. WEISBERG, Judges.
NOTES
[1] SCF Arizona was previously known as the State Compensation Fund.
[2] We cite the current version of the applicable statutes when no revisions material to this decision have since occurred.
[3] The Industrial Commission of Arizona is required to establish a schedule of fees to be charged by medical providers for the services they provide to workers' compensation patients, but the fee schedule does not apply to ASCs. A.R.S. § 23-908(B) (Supp.2009). Thus, ASCs are free to negotiate contracts with individual carriers for reimbursement rates. Additionally, ASCs cannot "balance bill," or otherwise charge a workers' compensation patient for any unpaid or uncovered balances remaining after insurance payments. Ariz. Admin. Code R20-5-117(B).
[4] According to testimony presented at trial, a chargemaster is a comprehensive list of prices and charges adopted by many healthcare providers for services and supplies. The Surgery Centers based their chargemasters on those of other local surgery centers.
[5] For example, if the Surgery Centers billed $100 for services and Qmedtrix recommended paying $60 of the bill, SCF would pay Qmedtrix 25% of the $40 price reduction, or $10.
[6] Ariz.Rev.Stat. §§ 41-1001 to -1092.12 (2004 & Supp.2009).
[7] Cases filed by three other surgical centers were also consolidated. Their claims were later dismissed upon stipulation of the parties.
[8] The Surgery Centers do not challenge on appeal the trial court's dismissal of Counts 4 (bad faith) and 5 (negligent misrepresentation).
[9] On appeal, the Surgery Centers include an additional statute, A.R.S. § 23-1061(G) (Supp. 2009), to support their argument that together with §§ 23-1021(B), -1062(A), SCF is required to pay for services rendered.
[10] A.R.S. § 23-901(5) (Supp.2009) defines "compensation" as "the compensation and benefits provided by this chapter."
[11] As noted, supra n. 9, the Surgery Centers raise for the first time on appeal an alleged violation of A.R.S. § 23-1061(G), which provides that "the insurance carrier or self-insuring employer shall process and pay compensation and provide medical, surgical and hospital benefits, without the necessity for the making of an award or determination by the commission." (Emphasis added.) We generally do not consider issues raised for the first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App.2000). Therefore, we decline to review the applicability of this statute.
[12] Moreover, after the court granted SCF partial summary judgment on this issue, the Surgery Centers conceded that calculations made by Qmedtrix are recommendations when they stipulated in the joint pretrial statement that "SCF has paid Canyon and El Dorado the amounts that were recommended by Qmedtrix."
[13] This conclusion is further supported by the fact that SCF, on at least one occasion, informed Qmedtrix of SCF's disagreement with Qmedtrix's reimbursement recommendations for particular medical services and Qmedtrix adjusted its reimbursement methodology accordingly. SCF's decision to adopt the vast majority of Qmedtrix's reimbursement recommendations during the time frame at issue does not change our analysis.
[14] Chapter 6 of Title 23 is A.R.S. §§ 23-901 to -1091 (1995 & Supp.2009) (Workers' Compensation).
[15] Furthermore, the rules adopted by the SCF Board of Directors under A.R.S. § 23-981.01(A) are not subject to the APA because the Board has discretion in publishing and distributing such rules. § 23-981.01 (stating that the board "may cause them to be published and distributed"). (emphasis added). In contrast, A.R.S. §§ 41-1003 (2004), -1012 (2004) of the APA provide that rules must be published. (Emphasis added.) See Saenz v. State Fund Workers' Comp. Ins., 189 Ariz. 471, 474, 943 P.2d 831, 834 (App.1997) (recognizing that courts construe provisions of statutes "to harmonize rather than contradict one another `if sound reasons and good conscience allow'").
[16] We note that SCF's decision to title its pleading a "Renewed Motion for JMOL" seems misplaced because no judgment had been entered on the Surgery Centers' restitution claim. The jury had rendered its advisory verdict, but the ultimate trier of fact, the trial court, had not entered judgment or otherwise indicated how it intended to rule. See Ariz. R. Civ. P. 39(n) (stating that determinations made by advisory juries shall be only advisory to the court); Graham v. Shooke, 107 Ariz. 79, 80, 482 P.2d 446, 447 (1971) (noting that when a court uses an advisory jury the court is still responsible for the ultimate questions of law and fact). In any event, as explained, infra ¶ 28, our analysis presumes that the trial court properly recognized the role of the advisory jury.
[17] At oral argument before this court, the Surgery Centers also argued JMOL was improper because the trial judge did not expressly state he was acting as the trier of fact after the jury had been empanelled for that purpose. They also asserted that after the jury returned its verdict SCF did not seek a verdict from the judge, but instead improperly sought JMOL under Rule 50, which the judge granted. Ariz. R. Civ. P. 50. The Surgery Centers concede, however, that they did not raise these arguments in their briefs on appeal. Indeed, a review of the record reveals this argument was not raised before the trial court either. SCF stated in its Motion for JMOL that "[t]he Court must ultimately make the findings of fact and conclusions of law in this case in equity[.]" Despite such an assertion, the Surgery Centers made no objection in their opposition to JMOL, their motion for new trial, or their opening brief on appeal. Although the Surgery Centers make a fleeting statement in their reply brief that the trial court did not act as the finder of fact, no argument was presented on this issue in any of the briefs before us and we therefore consider the issue abandoned. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("[O]pening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment. . . of that claim."); Best v. Edwards, 217 Ariz. 497, 504 n. 7, ¶ 28, 176 P.3d 695, 702 n. 7 (App.2008) (a party cannot raise an issue for first time in a reply brief).
[18] The Surgery Centers also cite Banner Health v. Medical Savings Ins. Co. to illustrate a general duty to pay "list price" for products and services absent an agreement to the contrary. 216 Ariz. 146, 163 P.3d 1096 (App.2007). In Banner, however, the patients signed "conditions of admission" contracts with the hospital prior to admission agreeing to be responsible for their "bill" and to "pay the[ir] account." Id. at 151, ¶ 17, 163 P.3d at 1101. We concluded that when the patients entered such agreements, they agreed to pay the hospital's billed charges in accordance with the hospital's filed rates, notwithstanding that the hospital often accepted less than the filed rate from insurance carriers and others in satisfaction of billed charges. Id. at ¶ 18. Because no evidence was presented regarding the contents of the admission contracts in this case, and because the injured workers cannot be balance billed, Banner is not controlling here.
[19] The parties agreed to litigate at trial all bills from the Surgery Centers between March 1, 2003 and March 31, 2007. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262417/ | 900 F.Supp. 507 (1995)
ASIA NORTH AMERICA EASTBOUND RATE AGREEMENT, Petitioner,
v.
BJI INDUSTRIES, INC., Respondent.
Civ. A. No. 94-903 SSH.
United States District Court, District of Columbia.
August 28, 1995.
*508 *509 Cindy G. Buys, Jeffrey F. Lawrence, Anne E. Mickey, Sher & Blackwell, Washington, DC, for Petitioner.
Daniel E. Johnson, Gary H. Sampliner, McKenna & Cuneo, Washington, DC, for Respondent.
OPINION
STANLEY S. HARRIS, District Judge.
This matter is before the Court on petitioner's petition to confirm the arbitral award, petitioner's motion for default judgment, respondent's counter-motion to set aside entry of default, petitioner's renewed motion to confirm arbitral award, and respondent's motion to dismiss. Upon consideration of the entire record, the Court grants respondent's motion to set aside entry of default, grants petitioner's petition to confirm the arbitral award, and denies the remaining motions.
Background
In this action to confirm an arbitral award, petitioner Asia North America Eastbound Rate Agreement ("ANERA") seeks to collect liquidated damages from respondent BJI Industries, Inc. ("BJI"), for a shortfall in the quantity of goods that were to be shipped for BJI during the period March 24, 1987, to March 23, 1988.[1] ANERA is a Hong Kong based conference of ocean common carriers established pursuant to the Shipping Act of 1984, 46 U.S.C.App. §§ 1701 et seq. ("the Act").
In March of 1987, ANERA allegedly entered into Service Contract No. 262/87 ("the Service Contract") with BJI, a Texas corporation.[2] The Service Contract was allegedly *510 signed on BJI's behalf by Eric Ko, an employee of TRC Textile Co., Ltd. ("TRC"), a Taiwanese company. TRC serves as an overseas buying agent that has the authority to find carriers and negotiate shipping rates for BJI. Under the Service Contract, BJI agreed to ship and ANERA agreed to carry a minimum of 150 forty-foot equivalent container units ("FEUs") of garments from ports in the Far East to several ports or points in the United States during the period from March 24, 1987, to March 23, 1988. The Service Contract further provided that if BJI failed to ship the minimum quantity of cargo, then BJI would pay liquidated damages (known as "deadfreight") in the amount of $2,450.00 per FEU.
On March 23, 1988, when the Service Contract expired, BJI had shipped only 127.605 FEUs; thus, there was a shortfall of 22.395 FEUs. In October of 1989, ANERA notified BJI that it owed ANERA $54,867.75 in deadfreight liability.[3] In December of 1989 and February of 1990, counsel for BJI claimed that TRC was never authorized to bind BJI to any contract, and therefore, that no valid contract existed between ANERA and BJI. On March 18, 1993, ANERA demanded arbitration pursuant to Article 17(a) of the Service Contract, and on March 26, 1993, BJI notified ANERA of its refusal to submit to arbitration.[4] On June 1, 1993, the Hong Kong International Arbitration Centre ("HKIAC") appointed Robin S. Peard as arbitrator. The following day, counsel for BJI wrote to the HKIAC disputing the validity of the arbitration and the appointment of an arbitrator. Included in this correspondence was a sworn statement, taken in September of 1992, in which BJI's president stated that TRC was not authorized to sign the Service Contract on BJI's behalf. BJI did not file further submissions thereafter.
In order to determine the validity of the arbitration agreement, the arbitrator considered whether TRC had authority to sign the Service Contract on behalf of BJI, and determined that it did. On February 28, 1994, the arbitrator awarded ANERA $94,388.01, which BJI did not pay.[5] On April 22, 1994, ANERA filed the petition to confirm the arbitral award against BJI in this court. On June 28, 1994, the Clerk of the Court entered a default against BJI. ANERA now renews its efforts to collect the liquidated damages.
Discussion
I. Default
A court may set aside an entry of default if good cause exists. Fed.R.Civ.P. 55(c). Although a decision to set aside an entry of default lies within the discretion of the trial court, the "exercise of that discretion entails consideration of whether (1) the default was willful, (2) a set-aside would prejudice the plaintiff, and (3) the alleged defense was meritorious." Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 373 (D.C.Cir.1980) (citations omitted); accord Jackson v. Beech, 636 F.2d 831, 837-38 (D.C.Cir.1980). Moreover, judgment by default is normally reserved for a "totally unresponsive party" because a resolution on the merits is preferable to a judgment by default. Jackson, 636 F.2d at 836; Pulliam v. Pulliam, 478 F.2d 935, 936 (D.C.Cir.1973); H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C.Cir.1970). In the present case, once the three factors of *511 willfulness, prejudice, and the presence of a meritorious defense are weighed, it becomes clear that a default judgment should not be entered against BJI.
A. Willfulness
BJI contends that it did not receive the Clerk's notice of entry of default or ANERA's motion for default judgment until after BJI's counsel discovered on August 11, 1994, that these documents were on file with the Court. BJI further contends that its initial failure to participate in this Court's proceedings was due to its good faith belief that it was not a party to the Service Contract. ANERA, however, argues that BJI has been unresponsive throughout this action by refusing to participate in the arbitration proceeding, and by not filing any motion or answer with the Court in response to the petition to confirm the arbitral award. In deciding whether to set aside a default or default judgment, the record must be construed in the light most favorable to the moving party. Jackson, 636 F.2d at 836. Applying this standard of review, the Court finds that BJI's conduct does not rise to the level of "willful" behavior contemplated by Keegel. See Keegel, 627 F.2d at 374.
ANERA also argues that because the arbitrator had determined that BJI was bound by the Service Contract, including the agreement to arbitrate, BJI could not in good faith remain unresponsive to the petition to confirm the arbitral award. The Court disagrees. It is established that the courts, not arbitrators, must decide whether the parties before them had a valid agreement to arbitrate the dispute in question. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 647-49, 106 S.Ct. 1415, 1418-19, 89 L.Ed.2d 648 (1986); National R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C.Cir. 1988); Weatherly Cellaphonics Partners v. Hueber, 726 F.Supp. 319, 321 (D.D.C.1989). Thus, the arbitrator's conclusions concerning the validity of the Service Contract are not binding. Moreover, counsel for BJI moved to set aside the entry of default on August 25, 1994, approximately four months after the petition to confirm the arbitral award was filed. Despite its somewhat tardy appearance, BJI cannot be considered a "totally unresponsive party." See Jackson, 636 F.2d at 836. As a result, the willfulness factor weighs heavily against an entry of a default judgment.
B. Prejudice to the Petitioner
ANERA contends that setting aside the default will cause it to suffer prejudice by delaying the entry of relief and an award of attorneys' fees in its favor. However, the delay of satisfaction of a prevailing plaintiff's claim is insufficient to establish prejudice. Keegel, 627 F.2d at 374. As a result, this factor weighs in favor of BJI.
C. Meritorious Defense
In determining the existence of a meritorious defense, likelihood of success is not the measure. Id. A respondent's allegations are meritorious if they contain "even a hint of a suggestion" which, if proven, would constitute a complete defense. Id. (citations omitted). Even broad and conclusory allegations meet the meritorious defense criterion for setting aside the default. Id. In the present case, because BJI elected not to submit to arbitration, the arbitrator was not presented with the alleged facts and evidence now before this Court. BJI contends that it has defenses available to it under Article II and Article V of the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("the Convention").[6] 9 U.S.C.A. note § 201. BJI further contends that ANERA had a history of contracting directly with TRC for BJI's shipments, and that it never received a copy of the Service Contract or correspondence relating to it until after the contract had expired. Therefore, BJI's defense on the issue of the validity of the arbitral award satisfies the "hint of a suggestion" standard, even if BJI eventually loses on the merits. Taken together, the *512 balance of considerations weighs against an entry of judgment by default. Accordingly, the motion to set aside the entry of default is granted.
II. Jurisdiction
Before addressing the merits of the confirmation action, the Court must determine whether personal jurisdiction is proper in this Court. Contractual provisions relating to jurisdiction will be honored as long as they are reasonable. See National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964). ANERA asserts that under Article 17(b) of the Service Contract, BJI expressly consented to an exercise of personal jurisdiction by the District Court for the District of Columbia in any action to enforce an arbitral decision.[7] BJI has not challenged the reasonableness of the jurisdiction clause, but rather moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) on the ground that the clause is invalid because BJI is not a party to the Service Contract. As will be demonstrated, BJI is a party to the Service Contract; thus, the parties' consent to the jurisdiction of this Court is valid. Accordingly, respondent's motion to dismiss is denied.
III. Validity of the Contract
ANERA moves to confirm the arbitral award on the grounds that: (1) the arbitrator's decision that BJI was a party to the Service Contract is entitled to preclusive effect; (2) BJI ratified the Service Contract by shipping under it and receiving benefits; and (3) TRC had apparent authority to sign the Service Contract on BJI's behalf.
A. Standard of Review
There is a strong federal policy favoring arbitration as an alternative to the "complications of litigation." Davis v. Chevy Chase Fin., 667 F.2d 160, 164 (D.C.Cir.1981) (quoting Wilko v. Swan, 346 U.S. 427, 430, 74 S.Ct. 182, 184, 98 L.Ed. 168 (1953)). As a result, judicial review of an arbitration award is extremely limited, Kanuth v. Prescott, Ball & Turben, 949 F.2d 1175, 1178 (D.C.Cir. 1991), and great deference is appropriate. ANERA argues that the award must be affirmed unless one of the specified grounds for refusing to recognize or enforce a foreign arbitral award exists. 9 U.S.C.A. note § 201. However, Article II of the Convention states that the arbitral agreement is to be in writing and signed by the parties or contained in an exchange of letters or telegrams. Id. Because the issue before the Court is whether the Service Contract validly was signed, the Court is precluded from enforcing the award until it makes this determination as a matter of law. Thus, the standard governing summary judgment applies here. Cf. Davis, 667 F.2d at 160 (applying summary judgment standard in an action to vacate an arbitration award where the arbitrability of a particular issue was disputed).
Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
B. Preclusive Effect of Arbitrator's Decision
As discussed supra, it is well-settled that only a court may determine with finality whether parties have entered into a valid agreement to arbitrate. See AT & T Technologies, 475 U.S. at 647-49, 106 S.Ct. at 1418-19; National R.R. Passenger Corp., 850 F.2d at 759; Weatherly Cellaphonics, *513 726 F.Supp. at 321. ANERA argues, however, that BJI was obligated to file a motion to stay the arbitration before the proceedings took place, and that BJI's failure to file such a motion acts as a waiver to any defense in a confirmation action. This argument is unpersuasive. There is no procedure under statutory or decisional law that requires a party challenging arbitrability to seek an injunction before the arbitration commences, or suffer the penalty of a waiver.[8]Local 719, American Bakery & Confectionery Workers of America v. National Biscuit Co., 378 F.2d 918, 921 (3d Cir.1967). Furthermore, the federal litigation system does not require special jurisdictional appearances. Fed. R.Civ.P. 12(b). Thus, BJI has not waived its right to contest arbitral jurisdiction in a judicial forum.
ANERA further contends that BJI submitted to arbitration by providing HKIAC with a sworn statement from BJI's president, and therefore has already litigated the merits of the arbitrability dispute. Even if the party contesting arbitration participates in the proceedings, it can preserve the arbitrability issue for judicial consideration by presenting "its objection to arbitrability to the arbitrator and ... not thereafter clearly indicate its willingness to forego judicial review." Davis, 667 F.2d at 167-68 (quoting Local 719, 378 F.2d at 922).
Here, ANERA received a letter from BJI's counsel on March 26, 1993, stating that "[w]e can not submit to arbitration ... we will defend our interests in court." On June 2, 1993, after an arbitrator had been appointed, counsel for BJI wrote to HKIAC stating "[m]y client has requested I inform all parties they are not agreeing to submit to arbitration as they have not entered into any agreement which binds them." A copy of that letter was forwarded to the arbitrator. Coupled with BJI's lack of participation in the arbitration proceedings thereafter, these statements demonstrate that BJI did not submit the arbitrability question to the arbitrator, or at least made an objection to the arbitrator's jurisdiction without a subsequent indication that it was willing to forego judicial inquiry. Even if the arbitrability issue has been litigated on the merits, as ANERA argues, the Court must make an independent determination of whether there was a valid agreement to arbitrate in any subsequent action to confirm the arbitrator's decision. See Mobil Oil v. Local 8-766, Oil, Chem. & Atomic Workers Int'l Union, 600 F.2d 322 (1st Cir.1979). Accordingly, the Court proceeds to the merits of the ratification issue.
C. Ratification
The Service Contract provides that Hong Kong law shall govern the contract. "Under American law, contractual choice-of-law provisions are usually honored." Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763, 767 (D.C.Cir.1992). However, because the validity of the Service Contract is the central issue in this case, BJI has argued that Texas law should apply because BJI was doing business in Texas. Because ANERA believes the result will be the same in either jurisdiction, the Court applies Texas law in resolving this matter.
ANERA contends that BJI ratified the Service Contract by shipping under it and paying the freight, thereby receiving the benefits of the contract's lower rates. "The key concern in determining whether a principal has ratified an unauthorized act by an agent is the principal's knowledge of the act and subsequent actions with that knowledge."[9]Wyatt v. McGregor, 855 S.W.2d 5, 13 (Tex.Ct.App.1993) (citing Land Title Co. of Dallas v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex.1980)). Ratification can be expressed *514 or implied. Id. (citation omitted). It can occur when the principal retains the benefits of a transaction after acquiring full knowledge of the agent's unauthorized act. Id. (citing Land Title, 609 S.W.2d at 756); Methodist Hosps. of Dallas v. Corporate Communicators, Inc., 806 S.W.2d 879, 882 (Tex.Ct.App.1991) (citing Land Title, 609 S.W.2d at 756). One who asserts ratification must prove that the ratifying party acted upon full knowledge of all material facts. Land Title Co., 609 S.W.2d at 756-57.
BJI argues that it did not have full knowledge of the material facts relating to the Service Contract, and therefore, it could not have ratified the contract. In support of this argument, BJI claims that it did not know that TRC had signed BJI's name as the contracting party. The Court finds this argument unpersuasive. As discussed supra, the moving party need only show that the principal had knowledge of the material facts. Here, BJI admits that TRC was its agent for the purpose of arranging shipment of goods including the fixing of freight rates. BJI also acknowledges that it knew of multiple contracts in which TRC represented that BJI and TRC were affiliated and in which TRC signed on behalf of BJI.
More importantly, BJI admits that it received a copy of the first version of the Service Contract in which BJI was listed as an affiliate, and TRC represented that it was authorized to sign on behalf of BJI.[10] Under that contract, BJI also would have been entitled to ship cargo at the contract rates and would have been liable for deadfreight. Article 9 of the first version of the Service Contract unambiguously provides that:
[I]n lieu of all damages, which are difficult to calculate, deadfreight shall be assessed as follows:
(i) If the "Shipper" [defined supra note 12 as the contract signatory and its affiliates] fails to tender the Minimum Quantity Commitment specified in Appendix A to this Contract, the Agreement [ANERA] shall invoice the Shipper and the Shipper agrees to pay deficit charges on the difference between the quantity of cargo actually shipped and the Minimum Quantity Commitment at the lowest 40' rate, specified in Appendix A [$2,450.00].
See Exhibit 8 to Respondent's Opposition to Petitioner's Renewed Motion To Confirm Arbitral Award. Thus, under the draft version of the Service Contract which BJI believed to be in effect, BJI would have been jointly and severally liable with TRC for liquidated damages for any shortfall. Because BJI's rights and obligations, including deadfreight liability, would have been the same under both the draft version of the contract and the final contract, and BJI had actual knowledge of the deadfreight provision in the draft version, BJI had knowledge of the material facts of the Service Contract.[11]Cf. Karl Rove & Co. v. Thornburgh 39 F.3d 1273, 1293 (5th Cir.1994) (principal found to have ratified contract where it knew of the substance of the contract if not the details).
Finally, BJI contends it did not know it was receiving benefits from the Service Contract; specifically, BJI claims it did not know how the shipping rates it paid under service contracts with ANERA compared to the prevailing tariff rates. However, "the knowledge to support ratification may be shown by evidence either of knowledge or facts from which such knowledge may reasonably be imputed to the principal." Wyatt, 855 S.W.2d at 13 (citations omitted).[12]*515 ANERA is a Hong Kong based conference of ocean common carriers that offers bulk rates to shippers in exchange for high volume commitments. The record shows that BJI is in the business of importing goods and has a history of prior dealings with ANERA. Moreover, under the Service Contract, more than one hundred bills of lading containing specific references to "ANERA Service Contract No. 262/87" or "ANERA Service Contract E.T. No. 262/87" were received by BJI.[13] These bills of lading also showed BJI, its affiliate Cashe Braxton, and TRC as the consignee or notify party, and the bills were paid by BJI or Cashe Braxton. Taken together, these facts demonstrate that BJI knew, or in the exercise of reasonable observation, should have known, that it was benefiting from the Service Contract. Thus, even when viewed in the light most favorable to BJI, ratification is inferred from BJI's actions in shipping under the Service Contract and receiving the benefit of its more favorable rates.[14] Accordingly, ANERA's petition to confirm the arbitral award is granted in the amount of $94,388.01, plus interest from the date of the arbitral award to the date of the entry of judgment.[15]
Conclusion
For the reasons stated above, the Court denies ANERA's motion for default judgment, grants BJI's motion to set aside entry of default, and denies BJI's motion to dismiss. The Court finds that there is no genuine issue of material fact in dispute and that ANERA is entitled to judgment as a matter of law, and, accordingly, grants ANERA's petition to confirm the arbitral award. An appropriate Order accompanies this Opinion.
ORDER
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that petitioner's motion for default judgment is denied. It hereby further is
ORDERED, that respondent's motion to set aside the entry of default is granted. It hereby further is
ORDERED, that respondent's motion to dismiss is denied. It hereby further is
ORDERED, that petitioner's petition to confirm the arbitral award is granted, and that judgment is entered for the petitioner in the amount of $94,388.01. It hereby further is
ORDERED, that, within 14 days of the date of this Order, the parties shall submit supplemental briefs on the appropriate interest rate (unless agreement can be reached on this question).
SO ORDERED.
NOTES
[1] According to the Texas Secretary of State, Braxton Jeans, Inc., changed its name to BJI Industries, Inc., on February 4, 1991.
[2] "Service contract" is defined in the Act as "a contract between a shipper and an ocean common carrier or conference in which the shipper makes a commitment to provide a certain minimum quantity of cargo over a fixed time period, and the ocean common carrier or conference commits to a certain rate or rate schedule as well as a defined service level...; the contract may also specify provisions in the event of nonperformance on the part of either party." 46 U.S.C. app. § 1702(21).
[3] The deadfreight liability was calculated as follows:
Minimum Quantity
Commitment: 150.000 FEUs
- Quantity Shipped: 127.605 FEUs
_____________________________________________
= Deadfreight 22.395 FEUs.
At a rate of $2,450.00 per FEU $2,450.00 × 22.395 the total deadfreight liability equals $54,867.75.
[4] Article 17(a) states "[a]ny and all disputes arising out of or in connection with this Contract, including any failure by the Shipper to pay or by the Agreement to perform as required hereunder, shall be resolved by arbitration in Hong Kong, or such other place as the parties to the dispute may mutually agree."
[5] This amount consists of $54,867.75 for deadfreight liability (supra note 3), $23,405.31 for interest thereon, $14,292.32 for ANERA's costs, and $1,822.63 for the arbitrator's fee.
[6] Specifically, BJI asserts that the courts are precluded from enforcing foreign arbitral awards without a valid written agreement to arbitrate between the parties, and that the arbitrability question constitutes "... a difference not contemplated by or not falling within the terms of the submission to arbitration." 9 U.S.C.A. note § 201.
[7] Article 17(b) states "[t]he parties hereto expressly consent and agree that the United States District Court for the District of Columbia has personal jurisdiction over each of them in any action to enforce an arbitration decision entered hereunder, concurrently with any other court having jurisdiction."
[8] Moreover, the federal policy favoring voluntary commercial arbitration, see Federal Arbitration Act, 9 U.S.C. §§ 1-15, would be undermined by making "interstitial judicial activity mandatory, when the possibility exists that a ... dispute can be settled without any use of the courts...." Local 719, 378 F.2d at 921-22; see also Davis, 667 F.2d at 168 (noting that a rule requiring parties disputing arbitrability to seek interlocutory review might foster litigation).
[9] Because the parties dispute whether TRC had the authority to sign the Service Contract on behalf of BJI, the Court will view this issue in the light most favorable to the respondent, and assume arguendo that TRC was not authorized to enter into the Service Contract on BJI's behalf.
[10] Article 1 of the Service Contract states: "The term `Shipper' means the entity signing this Contract and affiliates/subsidiaries named on the signature page hereof. The person signing this Contract on behalf of the Shipper warrants and represents that he has authority to enter into this Contract on behalf of the Shipper and its affiliates/subsidiaries listed on the signature page."
[11] BJI asserts that it did not perform any unequivocal acts to indicate that it considered itself to be a party to the Service Contract. However, because BJI would have been liable for deadfreight under both versions of the contract, its acceptance and payment for shipments under the Service Contract are unequivocal acts not subject to other interpretations.
[12] BJI cites an 1863 Texas Supreme Court case to support the proposition that ratification requires actual knowledge of the material facts. See Reese v. Medlock, 27 Tex. 120, 124 (Tex. 1863). Although the case vaguely refers to this rule of law, the recent Wyatt decision demonstrates that knowledge can be inferred from circumstances as well. See Wyatt, 855 S.W.2d at 13.
[13] Other references include "ANERA S/C No. 262/87," "Service Contract No. 262/87," or "ANA87262."
[14] In view of the finding of implied ratification, the Court does not reach the issue of apparent authority.
[15] Under Hong Kong law, interest is to accrue on an arbitral award until it is paid: "A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt." Hong Kong Arbitration Ordinance, Chapter 341, Section 22. ANERA asserts that the applicable rate is the 7¾% prime rate published in the Wall Street Journal on September 7, 1994. However, because the rate of interest on a "judgment debt" is not clear, the Court will need additional briefs from the parties to resolve this issue (unless, of course, the parties are able to reach agreement on the narrow and sole remaining question). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262421/ | 900 F.Supp. 905 (1995)
METROPOLITAN NASHVILLE AND DAVIDSON COUNTY SCHOOL SYSTEM, Plaintiff,
v.
Joel GUEST, Defendant.
No. 3:94-0976.
United States District Court, M.D. Tennessee, Nashville Division.
October 5, 1995.
*906 Cynthia C. Tyler, Metropolitan Legal Department, Nashville, TN, John D. Kitch, Kitch & Garman, Nashville, TN, for plaintiff.
Gary D. Buchanan, Tennessee Protection and Advocacy, Inc., Nashville, TN, for defendant.
MEMORANDUM OPINION
WISEMAN, District Judge.
Joel Guest is a five-year-old autistic Nashville child. His autism essentially garbles the sensory information his brain receives. Sounds, touches, and sights that most children would recognize and from which they would learn have no consistent meaning to Joel. As a result, he does not learn in the same manner as other non-autistic children. Without focused assistance, he learns little at all.
In the fall of 1991, before Joel's autism was diagnosed, his parents, Bob and Sara Guest, enrolled him in the Belle Meade United Methodist Church Children's Center ("Belle *907 Meade"), a private day-care facility in Nashville. Upon diagnosis of Joel's autism, and his reaching the age of three, Bob and Sara began an effort to secure educational services for Joel from the Metropolitan Nashville and Davidson County School System ("Metro") under provisions of the Individuals with Disabilities Education Act ("IDEA"). For more than two years, the parties have struggled to reconcile Joel's needs, the resources of both Metro and the Guests, and the commands and aspirational language of the federal statute.
In the spring of 1994, the parents requested and obtained a due process hearing before an administrative law judge appointed by the Tennessee Department of Education to adjudicate their grievances with Joel's individualized education programs ("IEPs"), the implementation of services thereunder, and Metro's refusal to reimburse the Guests for certain costs they had incurred, most notably tuition at Belle Meade. On October 12, 1994, the ALJ made the following findings and reached certain conclusions at law:
(1) Metro failed to adequately identify Joel as a child in need of special education services and then failed to evaluate his disabling condition. 34 C.F.R. § 300.220.
(2) Metro failed to provide occupational therapy as required by Joel's own IEP according to the requirements of 20 U.S.C. § 1401(a)(17-18).
(3) Metro was liable to reimburse the Guests for expenses they had incurred, including $2,802 in tuition at Belle Meade, $743 for speech therapy at the Bill Wilkerson Hearing & Speech Center, $760.15 for additional speech therapy at High Hopes, Inc., and $2,441.70 for the services of a private occupational therapist at High Hopes.
(4) Metro was required to provide the services described in Joel's August 26, 1993, IEP at Belle Meade.
Metro now seeks to overturn the decision of a state administrative law judge finding. Joel urges the Court to affirm the ALJ. This Court reviews the ALJ's factual findings and conclusions at law under a modified de novo standard, granting them "due weight" where appropriate. Doe v. Bd. of Educ. of Tullahoma City Schools, 9 F.3d 455, 458 (6th Cir.1993). As with all IDEA disputes, the extent and nature of the "free appropriate public education," 20 U.S.C. § 1401(a)(18), to which Joel is entitled, both procedurally and substantively, is at the heart of the Court's review.
I. IDENTIFICATION AND EVALUATION
The IDEA requires local educational units, such as Metro, to adopt procedures providing that all children residing within the jurisdiction of the school system needing special education "will be identified, located and evaluated...." 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. § 300.220.
Joel's parents placed him in Belle Meade in September 1991, when he was 18 months old. In August 1992, doctors at the Child Development Center at Vanderbilt University diagnosed Joel as autistic. Six months later, on February 23, 1993, the Guests and Vanderbilt's Project Blend referred Joel to Metro for evaluation under the IDEA. The referral came 12 days before Joel's third birthday, when he became eligible for special educational services under the IDEA. See 34 C.F.R. § 300.300(b)(1) (requiring the state to provide a free appropriate public education to all children between the ages of 3-5 if state law authorizes such services to any disabled child in that group) and Tenn.Comp.R. & Regs. 0520-1-3.09(1)(hh) (defining IDEA-eligible "school age children" as persons age 3-21).
Sara Guest testified before the ALJ that she heard nothing from Metro for two months after her referral until she contacted Metro officials in April 1993. Doris Taylor, Metro's special education consultant, testified that she first learned of Joel's referral by accident that same month in a routine search of her files. In any event, Metro failed to convene its first M-Team for Joel until June 2, 1993, when the team determined Joel was eligible for Metro's special education services.
The IEP developed for Joel at the June 2 meeting identified his "handicapping condition" as "language." The IEP, which addressed *908 only Joel's summer plans, provided for up to three hours per week with a speech & language specialist. Both Bob and Sara Guest signed the IEP, indicating their approval and inserting the words "for the summer program." It was not until Joel's M-Team prepared a new IEP in August 1993 that his handicapping condition was listed as autism and services planned accordingly.
It is the delay in identifying Joel from his referral of February 1993 and the delay in evaluating his autism until August 1993 that the administrative law judge noted in his ruling against Metro. The Court concurs and holds that Metro's two-month delay in identifying Joel and its subsequent four-month delay in properly evaluating him indeed violated the local education unit's responsibilities under § 1414(a)(1)(A).
The Sixth Circuit has recognized that "technical defects do not result in a violation of IDEA if there is no substantive deprivation." Chuhran v. Walled Lake Consol. Schools, 22 I.D.E.L.R. 450, 451, 1995 WL 138882 (6th Cir.1995). Six months without appropriate services, however, is one-sixth of a three-year-old's life. If § 1414's requirements are to mean anything, they should be given particular importance at the critical early stages of a child's development. And while § 1414 establishes procedural requirements, the first prong of the now-familiar two-part test of Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) makes clear that procedural violations invoke a district court's remedial powers under the IDEA just as substantive violations do. Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3050-51.
Granted, the administrative and financial burdens of identifying and evaluating all three-year-old children requiring special education services within Metropolitan Nashville-Davidson County's population of a half-million is onerous. Given the pressing need to improve public education for all Tennessee children, it may well be, in this Court's can-did view, an inefficient allocation of all-too-scarce resources. It is, nonetheless, an optional burden the state of Tennessee has accepted for itself on behalf of its local school districts. Tenn.Comp.R. & Regs. 0520-1-3.09(1)(hh). Once assumed, compliance is not optional.
The remedy for this violation is nonetheless perplexing. Once a child such as Joel is receiving appropriate services, it is not clear what can remedy a two-year-old procedural violation. If Joel's current IEP represented, as it ought, the best Metro, Belle Meade, and the parents could do given Joel's current condition and progress, taking into account the lost six months, the best remedy would be simply to enforce it. As is evident from this litigation, however, the Guests are unsatisfied with Joel's IEP.
It appears the ALJ considered all the violations he found, substantive and procedural together, in fashioning his remedy.[1] Given the issues raised below, this Court will do likewise infra, considering Metro's apparent failure to identify and evaluate Joel's disability under its broad remedial powers "to grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).
II. OCCUPATIONAL THERAPY
The occupational therapy question is one of educational propriety and requires an interpretation of the IDEA's appropriateness requirement.
Whether Joel's IEPs meet the test of 20 U.S.C. § 1401(a)(18) of a free appropriate public education for a disabled child is subject to Rowley's two-part test:
First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied *909 with the obligations imposed by Congress and the courts can require no more.
Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3050-51; Doe By and Through Doe v. Defendant I, 898 F.2d 1186, 1188 (6th Cir.1990).
The Sixth Circuit recently set out in Tullahoma City Schools what it understands Rowley to mean by "reasonably calculated to enable the child to receive educational benefits":
The Act requires that the Tullahoma schools provide the educational equivalent of a serviceable Chevrolet to every handicapped student. Appellant, however, demands that the Tullahoma school system provide a Cadillac solely for appellant's use. We suspect that the Chevrolet offered to appellant is in fact a much nicer model than that offered to the average Tullahoma student. Be that as it may, we hold that the Board is not required to provide a Cadillac, and that the proposed IEP is reasonably calculated to provide educational benefits to appellant, and is therefore in compliance with the requirements of the IDEA.
Tullahoma City Schools, 9 F.3d at 459-60.
The question in this case is whether the certified occupational therapist assistant who worked with Joel was a serviceable Chevrolet or, as his parents contend, a Yugo. The Court finds Metro satisfied the Chevrolet standard.
Occupational therapy is one of the "related services" the IDEA includes in its definition of a free appropriate public education. 20 U.S.C. § 1401(a)(17)(18); see also 20 U.S.C. § 1400(c) (stating "[i]t is the purpose of this Act to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services"). The regulations implementing the IDEA define occupational therapy as:
(i) Improving, developing or restoring functions impaired or lost through illness, injury, or deprivation;
(ii) Improving ability to perform tasks for independent functioning when functions are impaired or lost; and
(iii) Preventing, through early intervention, initial or further impairment or loss of function.
34 C.F.R. § 300.16b(5). The propriety and extent of occupational therapy are decided on a case-by-case basis. 20 U.S.C. § 1401(a)(20).
Joel's December 13, 1993, IEP provided, for the first time, that he receive a half-hour per week of occupational therapy "to address Joel's sensory motor/fine motor skill development at this time." IEP of Dec. 12, 1993, at 4. Under the heading "Person or Agency Responsible" for Joel's occupational therapy is the notation "OTR/COTA," which stands for "Occupational Therapist Registered/Certified Occupational Therapist Assistant." Sara Guest signed her approval to this IEP.
Sara Guest testified that Joel's occupational therapy sessions did not begin until January 11, 1994. Once they began, Joel received twice weekly 45-minute sessions from a certified occupational therapist assistant under contract with Metro. Direct Testimony of Sara Guest, Transcript of the Administrative Proceedings Before the Tennessee Department of Education 58 (Aug. 2, 1994). At Joel's March 1, 1994, M-Team meeting, all the participants engaged in a lengthy debate over the registered therapist versus therapist assistant issue. Transcript of March 1, 1994, M-Team Meeting at 10-29.[2]
Mrs. Guest argued that a registered occupational therapist, Agaath Van Dorp of High Hopes, Inc., was more capable of providing the services Joel needed, particularly sensory integration therapy. Metro officials argued that the therapist assistants employed by the company with which it contracted to provide occupational therapy were well-trained in sensory integration and supervised by a registered occupational therapist with training and experience similar to Van Dorp. Id.
*910 The debate was unresolved, at least to Joel's mother, who employed Van Dorp to supplement Metro's services. Mrs. Guest testified at the ALJ hearing that she had spent $2,441.70 as of August 1994 for Joel's private occupational therapy and the ALJ ordered Metro to reimburse her in that amount.
Mrs. Guest's dissatisfaction notwithstanding, Linda Seiter, the lead occupational therapist for Rehab Group, Inc., Metro's contract occupational therapy agency, testified before the ALJ that the certified occupational therapist assistant working with Joel had success:
He has been doing well. He has made some progress, and it is slow. It is steady. He has begun to initiate sounds, approximating the activity or the object that he is relating to at the time. He is following directions better, verbal directions, without any cuing. He attends to task somewhat better. That fluctuates a lot, because of the kind of day he is having. On the whole, I think he has shown some significant improvement as far as relating to objects and demonstrating purposeful movements on cue, which was not always the case, I understand, prior.
Direct Testimony of Linda Seiter, Transcript of the Administrative Proceedings at 378.
Seiter's testimony is uncontradicted. The Guests simply respond that more is necessary to enable Joel to learn. They may be right. But that is not a question properly before this Court nor is it a question answered by the IDEA for at least two reasons.
First, occupational therapy is always controversial because, despite its inclusion in IDEA as a "related service," it has elements of medical treatment about it as well. See generally Cynthia A. Dieterich, Health-Related Services Under IDEA that are Medical in Nature, 100 Ed.Law Rep. 831 (1995); David C. Donohue, Clovis Unified School District v. California Office of Administrative Hearings: Restricting Related Services Under the Individuals with Disabilities Act, 8 J.Contemp.Health L. & Pol'y 407 (1992). The Act specifically states that a free appropriate public education does not include medical services beyond evaluation and diagnosis. 20 U.S.C. § 1401(a)(17); Irving Indep. School Dist. v. Tatro, 468 U.S. 883, 891-93, 104 S.Ct. 3371, 3376-78, 82 L.Ed.2d 664 (1984). The Guests' request, and the ALJ's order, arguably cross the line between educational services and medical treatment.
Secondly, while Joel's educational progress is important to everyone involved in this case, the IDEA does not require Metro to maximize his gains. Tullahoma City Schools, 9 F.3d at 459-60. Metro, in fact, offered the Guests alternative occupational therapy services at Harris-Hillman School, where therapists work with a larger number of children and appropriate equipment is more readily available.
The Sixth Circuit's admonition in Tullahoma City Schools is relevant here; the IDEA does not require Metro to provide Joel and his parents a Cadillac, merely a serviceable Chevrolet. And that, the Court finds, they have done. This Court, therefore, REVERSES the ruling of the ALJ ordering Metro to reimburse the Guests $2,441.70 for the costs of Joel's private occupational therapy.
III. REIMBURSEMENT FOR TUITION
In order to determine whether the Guests are entitled to reimbursement for tuition costs, the Court must first make a factual determination whether Joel's IEP placed him at Belle Meade within the meaning of the IDEA. The Court must then consider the legal question of whether the IDEA requires Metro to reimburse the Guests for the tuition they have paid Belle Meade. The answer to the factual question bears significantly on the manner in which the Court must answer the legal question. For if Metro acts through an IEP to place a child in a private setting, Metro must pick up the tab.
[C]hildren with disabilities in private schools and facilities will be provided special education and related services (in conformance with an individualized education program as required by this subchapter) at no cost to their parents or guardian, if such children are placed in or referred to such schools or facilities by the State or appropriate local educational agency as *911 the means of carrying out the requirements of this subchapter....
20 U.S.C. § 1413(a)(4)(B) (emphasis added).
The same is not true when the parents unilaterally place the child in a private setting. Regulations of the U.S. Department of Education implementing the reimbursement provisions of the IDEA underscore the importance of this distinction:
If a child with a disability has [a free appropriate public education] available and the parents choose to place the child in a private school or facility, the public agency is not required by this part to pay for the child's education at the private school or facility. However, the public agency shall make such services available to the child as provided under §§ 300.450-300.452.
34 C.F.R. § 300.403(a). The last sentence of this regulation appears to draw a distinction between private school tuition and ancillary services the state might provide. Sections 300.450-300.452 require the state or local education unit to provide "special education and related services" to children with disabilities enrolled by their parents in private facilities. 34 C.F.R. §§ 300.450-300.452.
A parental placement does not, however, automatically disallow a claim for private reimbursement. The Supreme Court has held that parents who reject an inadequate IEP and place their child in a private school are nonetheless entitled to reimbursement.
[T]he parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement. If they choose the latter course, which conscientious parents who have adequate means and who are reasonably confident of their assessment normally would, it would be an empty victory to have a court tell them several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials.
School Comm. of the Town of Burlington v. Dep't of Educ. of Massachusetts, 471 U.S. 359, 370, 105 S.Ct. 1996, 2003, 85 L.Ed.2d 385 (1985).
In a Burlington case, however, the court must find the IEP so improper that the parents have no choice but to refuse the school system's offer and remove the child elsewhere. See Tullahoma City Schools, 9 F.3d at 461; Roland M. v. Concord School Comm., 910 F.2d 983, 999-1000 (1st Cir.1990) (both denying private-school reimbursement claim when public-school IEP placement appropriate).
Therefore, the statute, regulations, and Burlington pose two threshold questions before the Court. First, did Metro or the Guests place Joel at Belle Meade and, if the answer to question one is the Guests, was Joel's IEP inappropriate under Rowley and the Sixth Circuit's most recent statement in Tullahoma City Schools as to merit reimbursement anyway.
The ALJ did not address the first question; this Court considers the matter de novo. Metro has a straightforward argument: The parents enrolled Joel at Belle Meade before any referral to Metro; therefore, the parents are responsible for the placement and § 1413(a)(4)(B) is not invoked.
This argument is undoubtedly true, but only to a point. There is no dispute the Guests enrolled Joel prior to any Metro referral and that he received services there during the summer of 1993 under his initial IEP. However, Joel's first school-year IEP, written August 26, 1993, placed him at the Early Childhood Education Center at Martha Vaught School, a Metro site, for one hour weekly consultation with a speech/language specialist, three hours weekly with a small group of students working with a speech/language specialist, and three days a week with a special education teacher (Joel remained at Belle Meade two days a week). Sara Guest indicated that she agreed with the Martha Vaught placement, though she added language next to her signature: "We have reservations but need placement until something more appropriate can be worked out."
The point at which Metro's argument appears to no longer hold is Joel's next M-Team meeting October 12, 1993. By this *912 time, the Guests clearly were unsatisfied with the Martha Vaught placement. Sara Guest noted problems both with student-teacher ratios and the fact that all the children in the Martha Vaught setting were disabled, whereas Joel's age peers at Belle Meade were predominantly children with no learning disabilities, a setting she preferred. She sought to have Joel returned to Belle Meade full time. Transcript of October 12, 1993, M-Team Meeting at 1.
According to the M-Team transcripts, state and Metro education officials attending the October 12 meeting appeared to have accepted Sara's proposal to place Joel at Belle Meade full-time:
We're looking at, unless someone else has a problem with it of leaving Joel at the daycare with the speech and language services that have already been in place and the consultation that has already been in place. Providing consultation from a preschool teacher who has been working with the 3-year-olds to the staff, if they feel that it's needed and also do the occupational therapy evaluation.... Unless you have any problems or objections to that or anyone wants to add any other information, that's, you know, that's what we're offering at this particular time. And it seems to be what everybody has requested.
. . . . .
[A]s far as Joel's being at Belle Meade, we have no problem with that. Providing the speech and language services there, we have no problem with that. Uh, the consultation with the speech and language therapist with the classroom teacher, we already have that in place, and we want to continue that.
Id. at 4, 9 (remarks of Doris Taylor, Metro Special Education Consultant).
One of the things I think is so wonderful about the placement is, [] he's in a different classroom this year, but last year the classroom that he was in [at Belle Meade], he actually developed friendships. Children would come over and initiate contact with him and they really developed rapport, and they would play together. And there was some initiated play on Joel's part. This year that's being established. It takes a while for that to develop. But that's just very encouraging to me.
Id. at 5 (remarks of Pat Decker, Tennessee Department of Education).
Let me go back and review what we have done to be sure I've got a clear understanding and you have a clear understanding of what we're doing. One, is to maintain the speech therapy services on campus at your center. With consultative services from a speech and language therapist from the teacher from the therapist to the classroom teacher. Two, to provide consultative services with some observations from a preschool teacher with experience with autistic children, and all, for consultative as well as provide any other input and answer questions that they may have on that.... To also look at question of providing a one-on-one assistant until training can be done.
Id. at 21 (remarks of Doris Taylor).
Joel's IEP prepared at the October 12 meeting echoes Taylor's final above-quoted comment:
The M-Team met to reconsider program recommendation of 8/26/93 M-Team. At today's meeting it was recommended that Joel remain in LRE [least restrictive environment] of Belle Meade Children's Center ... with speech/language direct services, staff consultation, and consultation from pre-school teacher with experience dealing with teaching of autistic students.
IEP of October 12, 1993, at 2. When Taylor was cross-examined by Joel's attorney before the ALJ about this IEP statement, she maintained the October 12 IEP placed Joel nowhere. The following discussions took place:
Q [Guest attorney]: So you are saying then that this paragraph that you wrote and recorded here [on the IEP] is not true?
A [Doris Taylor]: Let me read it again. At today's meeting, it was recommended that he remain in the least restrictive environment of Belle Meade Children's Center. We are not saying that we placed him there, and all, and, again, I wrote the *913 L.R.E. there, not for educational use, but you are interpreting it differently.
Q: You mean in this I.E.P. when you use the word least restrictive environment, you did not mean that in the sense of education?
A: Not in terms of his educational placement; no.
Q: Okay. So you are saying that this document says that his educational placement is somewhere other than Belle Meade; is that correct?
A: Yes.
Q: And where does this document say his educational placement is, if it is not in Belle Meade?
A: It does not say that he is in any other educational placement at all.
....
Q: Joel has speech/language goals; correct?
A: Yes, he does.
Q: He has occupational therapy goals; is that correct?
A: Yes, he does.
Q: Does he have any other goals and objectives?
A: No. Only service-related goals.
Q: Why not?
A: Because we are not providing the educational programming for him at Belle Meade. The educational goals were written into the one that was developed August 26, for the early childhood educational programming.
Q: Well, if you look at the I.E.P. of October 12, and directing your attention to page 112.
A: Okay. It says continue current I.E.P. goals. Yes.
Q: And isn't that referring to the I.E.P. of 8/26/93?
A: Yes, it is.
Q: So what you just said a few minutes ago was completely untrue, isn't that correct?
A: I'm looking at this. To be very honest; yes.
Cross-Examination of Doris Taylor, Transcript of the Administrative Proceedings at 338, 341-42.
Future M-Team meetings and IEPs never raised the question of placement again, merely the level and nature of services Joel was to receive at Belle Meade. Taken together, then, the IEPs, M-Team transcripts, and Taylor's testimony pose three possibilities, only one of which is proper under the IDEA:
(1) Metro placed Joel nowhere.
This position, taken by Taylor at the administrative hearing, is not only implausible, it would be an admission that Metro had failed to meet its responsibilities under 20 U.S.C. § 1412(5)(B) and 34 C.F.R. § 300.552(a) to place Joel within a year of developing his IEP. See also Tenn.Comp.R. & Regs. 0520-1-3-.09(4)(b)(2) (stating that M-Teams are responsible for both IEPs and placements). C.f. Tennessee Department of Education, Division of Special Education, Administrative Policies and Procedures Manual 30 (Jan.1994) (permitting only 40 days between referral and placement).
(2) Metro placed Joel at Martha Vaught School in August 1993 and never moved his placement.
This is also implausible and illogical, given that all of Joel's services were delivered at Belle Meade. Metro's insistence on this position forces an admission that Metro violated 20 U.S.C. § 1415(b)(1)(C) because, according to Taylor's own testimony, Metro never notified the Guests in writing that it was refusing the recommendation of the M-Team and the request of the Guests to change Joel's placement from Martha Vaught to Belle Meade. Transcript of Administrative Proceedings at 333. C.f. Union School District v. Smith, 15 F.3d 1519, 1526 (9th Cir.1994) ("The requirement of a formal, written offer creates a clear record that will do much to eliminate troublesome factual disputes many years later about when placements were offered, what placements were offered, and what additional educational assistance was offered to support a placement, if any.").
(3) Metro placed Joel at Belle Meade.
The final possibility, though by no means irrefutable, is the only logical conclusion given *914 the evidence before the Court. It is also consistent with Taylor's admission of Metro policy and practice in place at the time of Joel's October 1993 IEP to place and fund disabled preschool children in private settings. Transcript of Administrative Proceedings at 331-33. It is the only conclusion consistent with the comments of Pat Decker, the Tennessee Department of Education's technical assistant, who said at the October 1993 M-Team meeting that the state wanted "to support this kind of placement" and that by providing special ed training to Belle Meade's day care staff, "we're talking about a real total change in how we're providing services. And so the spotlight's kind of on this one." Transcript of October 12, 1993, M-Team Meeting at 30-31.
The Court finds that Metro did, indeed, place Joel at the Belle Meade Children's Center by the October 12, 1993, IEP. Such a finding renders the question of the appropriateness of the IEP moot and requires Metro to pay the costs of Joel's placement under the October 1993 IEP and subsequent IEPs maintaining his placement at Belle Meade. 20 U.S.C. § 1413(a)(4)(B).
IV. REMEDIES & CONCLUSION
In sum, the Court:
1. Reverses the ruling of the ALJ ordering Metro to reimburse the Guests $2,441.70 for privately obtained occupational therapy services.
2. Affirms the ALJ's order requiring Metro to reimburse the Guests for the amount of tuition paid to Belle Meade. The Court orders Metro to pay the Guests an amount equal to Joel's tuition from October 12, 1993, to the present. The proof before the Court does not show this amount because the parents originally sought reimbursement for tuition dating from Joel's third birthday to the ALJ hearing. Joel's attorney is, therefore, required to submit proof of tuition costs from October 12, 1993, to the present so that judgment may issue.
3. Modifies the ruling of the ALJ ordering Metro to reimburse the Guests a total of $1,503.15 for speech therapy services at High Hopes, Inc., and the Bill Wilkerson Center. The proof shows that many, though not all, of these services were obtained during the six months while Joel awaited proper identification and evaluation by Metro. Guest Letter to Metro, Exh. 1 inclusive (Feb. 7, 1994). The Court, therefore, orders Metro to reimburse the Guests only for costs of services rendered from March 12, 1993, Joel's IDEA eligibility date, until August 26, 1993, the date of his first IEP evaluating his autism. Given the constant level of services provided Joel for speech and language therapy, post-August 1993 reimbursement for services is inappropriate. Joel's attorney will also make a proffer of these costs to the Court for final judgment.
Finally, the Court orders an immediate reconvening of Joel's M-Team to develop new goals and objectives for his education, including explicit statements of placement for all services. The IDEA is based upon a model of cooperation and partnership among parents, educators, and experts. The record of this case, replete with charges of evasions and obfuscations, suggests that clearly stated goals and placements will reduce future tension and move the parties toward the ideal of the IDEA. Metro will, therefore, submit Joel's new IEP, developed according to these parameters, to the Court within 30 days, not for substantive judicial review, but simply to demonstrate compliance with this order.
It is so ORDERED.
ORDER
This matter is an appeal brought by the Metropolitan Nashville and Davidson County School System of a ruling by an administrative law judge under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., in the matter of Joel Guest.
The Court has reviewed the pleadings and the entire administrative record, including exhibits. The Court also heard oral argument by counsel July 31, 1995. The Court now:
1. REVERSES the ruling of the ALJ ordering Metro to reimburse the Robert and Sara Guest $2,441.70 for privately obtained occupational therapy services.
2. AFFIRMS the ALJ's order requiring Metro to reimburse the Guests for the *915 amount of tuition paid to Belle Meade. Metro will pay the Guests an amount equal to Joel's tuition from October 12, 1993, to the present. Counsel for Joel Guest will submit proof of Joel's tuition costs from October 12, 1993, to the present so that judgment may issue.
3. MODIFIES the ruling of the ALJ ordering Metro to reimburse the Guests a total of $1,503.15 for speech therapy services at High Hopes, Inc., and the Bill Wilkerson Center. Metro will reimburse the Guests for costs of services rendered from March 12-August 26, 1993. Counsel will also make a proffer of these costs to the Court for final judgment.
The Court also orders an immediate reconvening of Joel's M-Team to develop new goals and objectives for his education, including explicit statements of placement for all services. Metro will submit a new IEP, developed according to these parameters, to the Court within 30 days, not for substantive judicial review, but to demonstrate compliance with this order.
It is so ORDERED.
NOTES
[1] The ALJ ordered Metro to provide Joel 19.5 hours per week with special education teachers, three hours per week with a speech language therapist, and two hours per week of occupational therapy essentially the August 1993 IEP recommendation, with the exception of the occupational therapy and that the services be provided at Belle Meade. The ALJ also ordered Metro to reimburse the Guests for their out-of-pocket costs, a topic taken up below in Part IV.
[2] The Guests tape-recorded their M-Team meetings and transcribed the tapes. Both the tapes and transcriptions were entered into evidence before the ALJ over Metro's objection. This Court considers the transcripts and tapes as part of the entire administrative record on appeal. 20 U.S.C. § 1415(e)(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262472/ | 900 F.Supp. 1032 (1995)
UNITED STATES of America, Plaintiff,
v.
ONE PARCEL OF REAL ESTATE LOCATED AT RURAL ROUTE 9, LA HARPE, ILLINOIS, and All Appurtenances and Improvements Thereon, et al., Defendants.
No. 92-1483.
United States District Court, C.D. Illinois.
September 21, 1995.
*1033 Esteban F. Sanchez, Asst. U.S. Attorney, Springfield, IL, for plaintiff.
John H. Bisbee, Macomb, IL, Ronald P. Guyer, San Antonio, TX, for defendant.
ORDER
McDADE, District Judge.
Before the Court is Claimant Robert Jones' Motion for Summary Judgment [Doc. # 76], the United States' Motion for Summary *1034 Judgment Pertaining To Robert Lynn Jones [Doc. # 78], and the United States' Motion for Summary Judgment Pertaining to Jeanette Jones [Doc. # 80].
BACKGROUND
This case involves the U.S. Government's seizure of property pursuant to 21 U.S.C. § 881(a)(6) and § 881(a)(7). Robert Lynn Jones ("Jones") was part of a marijuana and cocaine distribution ring operated in Hancock County, Illinois. Jones allegedly exchanged motorcycle parts for marijuana at his motorcycle repair shop in LaHarpe, Illinois, and used the proceeds of his drug transactions to purchase motorcycles, boats, jet skis, tools, and other personal items. To hide the source of the money, Jones allegedly titled some of the personal items in the names of his wife, daughter, and uncle.
On December 5, 1991, the United States obtained a judgment of forfeiture pursuant to 21 U.S.C. § 881 for Jones' 1988 Bayliner cabin cruiser. On May 29, 1992, the United States obtained another judgment of forfeiture for $11,410 belonging to Jones. In neither of these cases did Jones file a claim on the forfeited property.
In 1991, Jones was charged with conspiracy to distribute marijuana, 21 U.S.C. § 846 & § 841(b)(1)(A); distribution of marijuana, 21 U.S.C. § 841(b)(1)(B); conspiracy to distribute cocaine, 21 U.S.C. § 846 & § 841(b)(1)(B); distribution of cocaine, 21 U.S.C. § 841(b)(1)(B); and money laundering, 18 U.S.C. § 1956. In December 1992, a jury found Jones guilty of conspiracy to distribute cocaine and distribution of cocaine. In a separate jury trial in June 1993, another jury found Jones guilty of conspiracy to distribute marijuana, distribution of marijuana, and money laundering. On January 10, 1994, this Court sentenced Jones to two hundred and forty months in prison for all six counts.
In the present case, the Government is attempting to obtain another civil forfeiture judgment against Jones. The Government's Amended Complaint consists of eleven counts,[1] each one naming a different item of property. In Count 1, the Government invokes 21 U.S.C. § 881(a)(7) to claim the real estate encompassing Jones' motorcycle shop in which Jones allegedly conducted his illegal activities. Counts 3 through 11 invoke 21 U.S.C. § 881(a)(6) to claim six motorcycles, a jet ski, a trailer, and miscellaneous tools and equipment. All of these items were allegedly purchased with the proceeds of Jones' marijuana sales.
Robert Jones and his wife, Jeanette Jones, each filed claims to recover all of the property in question. The United States filed separate motions for summary judgment against Robert Jones and Jeanette Jones. In its summary judgment motion against Jeanette Jones, the Government argued that Mrs. Jones had no standing to file a claim on the property. Mrs. Jones did not contest the Government's motion. Thus, the Court grants the United States' Motion for Summary Judgment Pertaining to Jeanette Jones.
Robert Jones responded to the Government's summary judgment motion by asserting double jeopardy as a bar to the present civil forfeiture action.[2] Jones also *1035 filed his own summary judgment motion against the Government which elaborates on his double jeopardy argument. Thus, the sole issue to be decided here is whether the Double Jeopardy Clause of the Fifth Amendment applies to the instant case.
ANALYSIS
"A motion for summary judgment is not an appropriate occasion for weighing evidence; rather, the inquiry is limited to determining if there is a genuine issue for trial." Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). This Court must "view the record and all inferences drawn from it in the light most favorable to the party opposing the motion." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989). When faced with a motion for summary judgment, the nonmoving party may not rest on its pleadings. Rather, it is necessary for the nonmoving party to demonstrate, through specific evidence, that there remains a genuine issue of triable fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).
Jones asserts that because the Government has "punished" him for the same offense on three previous occasions, the Double Jeopardy Clause of the Fifth Amendment now bars the United States from obtaining a civil forfeiture over his property under 21 U.S.C. § 881(a)(6)[3] & § 881(a)(7).[4] The three prior punishments upon which Jones relies are: (1) the civil forfeiture of his Bayliner cabin cruiser on December 5, 1991; (2) the civil forfeiture of $11,410 which belonged to Jones; and (3) this Court's sentence on January 10, 1994, of 240 months in prison for his six convictions.
The Civil Forfeiture Actions
Jones asserts that the Government's two previous forfeiture actions constitute former punishment for purposes of the Double Jeopardy Clause. However, Jones did not make any claim to the property in either of those actions. In United States v. Torres, 28 F.3d 1463 (7th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994), the Seventh Circuit encountered this exact situation. In that case, the defendant tried to assert that the Government could not criminally prosecute him a second time because a civil forfeiture proceeding had already been brought against him. Id. at 1464. The Government had sent Torres notice inviting him to make a claim in the civil forfeiture proceeding, but he had not responded. Id. at 1465. As a result, Torres did not become a party to the forfeiture and a default judgment was entered against him. Id. The court concluded, "There was no trial; the $60,000 was forfeited without opposition, and jeopardy did not attach. You can't have double jeopardy without a former jeopardy.... As a non-party, Torres was not at risk in the forfeiture proceeding, and `[w]ithout *1036 risk of a determination of guilt, jeopardy does not attach.'" Id. citing Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975). Here, too, Jones did not make a claim in the previous two forfeiture proceedings and default judgments were entered against him. Thus, Jones cannot claim that the two previous forfeiture constituted former jeopardy to bar the instant claim of forfeiture.
Jones argues that the decision in Torres was based not upon Torres' failure to make a claim to the property, but rather, upon the Government's unawareness that Torres had any ownership interest in the forfeited property.[5] Thus, because here the Government was aware that Jones was the owner of the forfeited property, jeopardy did attach.
The Court disagrees. The Seventh Circuit clearly based its holding in Torres upon the fact that Torres did not file a claim on the property and thus did not place himself at risk as a party to the suit. Any language in the opinion regarding ownership of the property was mere dicta. Whether Jones is the owner of the property or not does not change Jones' status as a party to the lawsuit. It is one's status as a party that controls whether he or she has been punished for double jeopardy purposes. See United States v. Ursery, 59 F.3d 568, 572 (6th Cir.1995) (holding that Torres "stands for the proposition that jeopardy does not attach to a civil forfeiture when the party claiming double jeopardy was not a party to the forfeiture proceeding, and thus was never a risk of having a forfeiture judgment entered against him."); United States v. Baird, 63 F.3d 1213, 1217-19 (3d Cir.1995) (relying upon Torres to hold that no jeopardy attached where defendant failed to contest the forfeiture proceeding);[6]United States v. Arreola-Ramos, 60 F.3d 188, 192-93 (5th Cir.1995) (citing Torres for its holding that defendant's failure to contest the forfeiture precluded a finding of former jeopardy). Thus, the Government's two previous forfeitures in this case do not constitute former jeopardy against Jones because he was not a party to those actions.
The Prior Convictions
Jones next argues that because this Court sentenced him to 240 months in prison for his criminal convictions, the Double Jeopardy Clause should bar the Government from bringing a civil forfeiture action against him. The Double Jeopardy Clause protects against multiple punishments in multiple proceedings for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989); Ursery, 59 F.3d at 573. Thus, in order to decide whether the Double Jeopardy Clause should be invoked here, three separate determinations must be made: (1) whether the civil forfeitures and criminal convictions are punishment for the same offense; (2) whether the civil forfeitures and criminal convictions are separate proceedings; and (3) whether the civil forfeitures in the instant case constitute "punishment" for double jeopardy purposes. Ursery, 59 F.3d at 571.
Same Offense
In United States v. Dixon, ___ U.S. ___, ___, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993), the U.S. Supreme Court held that the relevant test for determining whether two offenses constitute the "same offense" is whether "each offense contains an element not contained in the other."[7] The Government argues that the civil forfeitures and *1037 criminal convictions here do not constitute punishment for the same offense because the criminal prosecution requires proof that a person, the defendant, committed the crime, while the forfeiture requires proof that the property subject to forfeiture has been involved in the commission of a criminal violation.
We find the Sixth Circuit's decision in Ursery to be persuasive on this point. In Ursery, the Government attempted to make the same distinction as in the instant case between an action against a person and an action against property. The Sixth Circuit held that the forfeiture and conviction constituted punishment for the same offense because "the forfeiture necessarily requires proof of the criminal offense." 59 F.3d at 573. By its terms, a civil forfeiture under either § 881(a)(6) or § 881(a)(7) must be premised upon a "a violation of this subchapter." In other words, the Government cannot confiscate Jones' residence or property without a showing that he has also violated the underlying drug offense. Id. at 574. Thus, the criminal offense is in essence subsumed by the forfeiture statute and does not require an element of proof that is not required by the forfeiture action. Id. See also Oakes v. United States, 872 F.Supp. 817, 824 (E.D.Wash.1994) (coming to the same conclusion); United States v. Tilley, 18 F.3d 295, 297-98 (5th Cir.1994) ("[I]f the prior civil forfeiture proceeding, which was predicated on the same drug trafficking offenses as charged in the indictment, constituted a `punishment,' the Double Jeopardy Clause will bar the pending criminal trial."), cert. denied ___ U.S. ___, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994); United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, 495 (9th Cir.1994) ("[U]nless the civil forfeiture under § 881(a)(4) can be predicated upon some offense other than those for which McCollough has already been tried, the civil forfeiture is barred by the Double Jeopardy Clause.").
The legal fiction that the property itself is the offender in a civil forfeiture case "has a venerable history in our case law." Austin v. United States, ___ U.S. ___, ___, 113 S.Ct. 2801, 2808, 125 L.Ed.2d 488 (1993). However, the Supreme Court in Austin made clear that a civil forfeiture could also constitute punishment of the property's owner. ___ U.S. at ___, 113 S.Ct. at 2809. Thus, the distinction that the Government tries to make between an offense against a person and one against property does not hold up under the Supreme Court's recent jurisprudence. See Austin, ___ U.S. at ___ _ ___, 113 S.Ct. at 2813-14 (Scalia, J., concurring) ("Punishment is being imposed, whether one quaintly considers its object to be the property itself, or more realistically regards its object to be the property's owner."); Oakes, 872 F.Supp. at 824 ("To accept the Government's argument that the sections involve different elements simply because one section of the statute deals with property and the other people, would be to adopt a circular and illusory theory."). Therefore, the Court finds that the prior convictions and the civil forfeitures in the instant case are the "same offense" for purposes of double jeopardy analysis.
Separate Proceedings
Double jeopardy does not apply when civil and criminal penalties are imposed in one, single proceeding. United States v. Halper, 490 U.S. 435, 450, 109 S.Ct. 1892, 1902-03, 104 L.Ed.2d 487 (1989); Torres, 28 F.3d at 1464. Conversely, the civil forfeitures and criminal convictions must constitute separate proceedings in order for the Double Jeopardy Clause to apply. The Court agrees with the Sixth Circuit in Ursery that such a determination should be made on a case-by-case basis. 59 F.3d at 575. In making such an analysis, the Court notes that the Seventh Circuit in Torres indicated that under recent Supreme Court jurisprudence, it would be difficult, although not impossible, for the Government to initiate a civil forfeiture and criminal indictment in a single proceeding.[8] 28 F.3d at 1464-65. The Seventh Circuit warned that "[t]wo trials, *1038 even if close in time, are still double jeopardy." Id. at 1465.
In the instant case, Jones was charged with six criminal counts in 1991 and was convicted in two separate jury trials in December 1992 and June 1993. However, the Government's original Complaint for civil forfeiture was not filed until October 26, 1992, and its Amended Complaint was not filed until September 20, 1993. These time discrepancies show that the civil forfeiture constituted a separate proceeding from the criminal Indictment. The Government does not even dispute that the two actions here constitute separate proceedings under the Double Jeopardy Clause. Thus, the Court finds that the civil forfeiture and criminal indictment actions are separate proceedings for double jeopardy purposes.
Civil Forfeiture As Punishment
In order to invoke the Double Jeopardy Clause, the civil forfeitures at issue must be considered "punishment." Ursery, 59 F.3d at 571. In Halper, the U.S. Supreme Court considered whether and under what circumstances a civil penalty may constitute "punishment" for purposes of double jeopardy analysis. 490 U.S. at 436, 109 S.Ct. at 1895. In that case, the defendant was criminally prosecuted for 65 counts of making false medical reimbursement claims totaling approximately $585. Id. at 437, 109 S.Ct. at 1896. He was convicted and sentenced to two years imprisonment and a $5,000 fine. Id. Subsequently, the government brought a civil action under the False Claims Act, 31 U.S.C. §§ 3729-31, which potentially subjected Halper to a civil penalty of $130,000 for the false claims. Id. at 438, 109 S.Ct. at 1896.
The Supreme Court determined that a particular civil penalty could be "so extreme and so divorced from the Government's damages and expenses as to constitute punishment" in spite of its civil label. Id. at 442, 109 S.Ct. at 1898. Reasoning that "the notion of punishment ... cuts across the division between the civil and the criminal law," the Court held that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment." Id. at 447-48, 109 S.Ct. at 1901-02. Thus, the Court concluded that under the Double Jeopardy Clause, a defendant already punished in a criminal prosecution could not be subjected to an additional civil sanction "to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. at 448-49, 109 S.Ct. at 1901-02.
In Austin, the Supreme Court was presented with the question whether civil forfeitures of property under 21 U.S.C. §§ 881(a)(4) and 881(a)(7) constitute "punishment" so as to be subject to the Excessive Fines Clause of the Eighth Amendment. ___ U.S. at ___, 113 S.Ct. at 2812. Relying upon Halper, the Court found that these civil forfeiture provisions did constitute "punishment" because the penalties did not serve solely a remedial purpose. Id. The Court gave three reasons for its conclusion that civil forfeiture was punitive in nature. First, the Court reasoned that the inclusion of an "innocent owner" defense in each statute served to "focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less." Id. at ___ _ ___, 113 S.Ct. at 2810-11. The existence of the defenses in the statutes implied a "congressional intent to punish only those involved in drug trafficking." Id. at ___, 113 S.Ct. at 2811. Second, the Court reasoned that "Congress has chosen to tie forfeiture directly to the commission of the drug offenses." Id. Third, the Court found that the legislative history of the provisions confirmed their punitive nature. Congress had passed the statutes in order to supplement traditional criminal sanctions that "deter or punish the enormously profitable trade in dangerous drugs." Id.
Thus, under Halper and Austin, any civil forfeiture under 21 U.S.C. § 881(a)(7) constitutes "punishment" for double jeopardy purposes. Stated more clearly, Halper requires that in order to be considered punishment under the Double Jeopardy Clause, the penalty must not be solely remedial in nature. The Court in Austin applied the Halper analysis and found that forfeitures under *1039 § 881(a)(7) are not solely remedial in nature. Thus, forfeitures under § 881(a)(7) must constitute punishment under the Double Jeopardy Clause. The Sixth Circuit has explicitly reached this result. Ursery, 59 F.3d at 573.[9]See also United States v. McCaslin, 863 F.Supp. 1299, 1302 (W.D.Wash.1994) (same). The Court agrees and finds that a forfeiture of the real estate in Count I of the United States' Amended Complaint would constitute double jeopardy. Thus, the United States' Motion for Summary Judgment is denied on Count I and Jones' Motion for Summary Judgment is granted on Count I.
Unfortunately, the Government only seeks a § 881(a)(7) forfeiture in Count I of its Amended Complaint. The other counts are brought pursuant to 21 U.S.C. § 881(a)(6), a statute not explicitly dealt with by the Court in Halper or Austin. The applicability of these cases to § 881(a)(6) is a hotly contested area among federal circuit courts. On the one hand, the Ninth Circuit has mechanically applied the holdings in Halper and Austin to find that § 881(a)(6) forfeitures also constitute punishment under the Double Jeopardy Clause. United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1219 (9th Cir.1994), am'd on denial of reh'g, 56 F.3d 41 (9th Cir.1995). On the other hand, many courts have attempted to distinguish § 881(a)(6) as not constituting punishment at all. See, e.g., United States v. Tilley, 18 F.3d 295, 300 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994); United States v. $288,930.00 in U.S. Currency, 838 F.Supp. 367, 370-71 (N.D.Ill.1993); Dawkins v. United States, 883 F.Supp. 83, 88-89 (E.D.Va.1995).
The rationale of those cases which have tried to distinguish § 881(a)(6) forfeitures is that the property involved is the unlawful proceeds of drug sales. Thus, the forfeiture is not punishment because "the forfeiting party loses nothing to which the law ever entitled him." Tilley, 18 F.3d at 300. The Fifth Circuit in Tilley reasoned:
The possessor of proceeds from illegal drug sales never invested honest labor or other lawfully derived property to obtain the subsequently forfeited proceeds. Consequently, he has no reasonable expectation that the law will protect, condone, or even allow, his continued possession of such proceeds because they have their very genesis in illegal activity.
Id. The court concluded, "[W]e believe the forfeiture of proceeds from illegal drug sales is more closely akin to the seizure of the proceeds from the robbery of a federal bank than the seizure of lawfully derived real property." Thus, the forfeiture of illegal proceeds "merely places that party in the lawfully protected financial status quo that he enjoyed prior to launching his illegal scheme," id., and is solely remedial in nature. Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02.[10]Accord Dawkins, 883 F.Supp. at 88-89; see also $288,930.00 in U.S. Currency, 838 F.Supp. at 370 ("[T]he forfeiture of allegedly illegally obtained property is not a punishment because the claimant does not rightfully own the forfeited property."). The Court finds this reasoning persuasive.
Jones does make a credible counterargument.[11] The Supreme Court in Austin employed three reasons for finding that § 881(a)(7) constituted "punishment" under the Excessive Fines Clause: (1) the existence *1040 of the "innocent owner" exception; (2) the fact that Congress chose to tie forfeiture directly to the commission of drug offenses; and (3) the legislative history of the statute. ___ U.S. at ___, 113 S.Ct. at 2811. These same reasons are equally applicable to § 881(a)(6). It too contains an "innocent owner" exception, is tied to the commission of a drug offense, and has legislative history confirming its punitive nature. Thus, one could logically conclude that under the Supreme Court's reasoning in Austin, the Court should also find § 881(a)(6) to constitute "punishment." The difficulty with such a conclusion is that no one can be sure whether the Court in Austin would have distinguished § 881(a)(6) from § 881(a)(7) had that section been at issue. Without a clear indication from the Supreme Court that its analysis of § 881(a)(7) under Austin should also apply to § 881(a)(6) forfeitures, this Court declines to jump to such a conclusion.
There is one further matter to be determined: whether the proportionality test of Halper must be applied to determine the fairness of the forfeiture here. The Court finds that it need not be invoked. In Halper, the Supreme Court established that, where a civil penalty is brought against a defendant after he has already been criminally prosecuted, and the penalty "appears to qualify as `punishment' in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment." 490 U.S. at 449, 109 S.Ct. at 1902. In Halper, the Court found that a fine of $130,000 was disproportionate to the Government's approximate expenses of $16,000 to litigate that case. Id. at 452, 109 S.Ct. at 1903-04. Thus, the fine was not "solely remedial" and could constitute punishment. Id. at 448, 109 S.Ct. at 1902.
It makes little sense to apply the proportionality analysis of Halper to the instant case when the Court has already determined that the forfeiture of illegal proceeds under 21 U.S.C. § 881(a)(6) is solely remedial and can never constitute "`punishment' in the plain meaning of the word." Id. at 449, 109 S.Ct. at 1902. Employing such an analysis would reward the criminal who has obtained a great deal of illegal assets as compared to the Government's costs of litigating the suit. See United States v. Borromeo, 1 F.3d 219, 221 (4th Cir.1993) ("[T]here is little justification for the position that one who successfully parlays his tainted dollar into a fortune should be permitted to enjoy a windfall a result which a strict focus upon proportionality might bring about in a given case with regard to the proceeds of crime.")[12] The Fifth Circuit in Tilley acknowledged this fact when it held, "Even absent the rational relation test of Halper, we would nevertheless be required to hold that the forfeiture of the proceeds from illegal drug sales does not constitute punishment." 18 F.3d at 300.
Thus, the Court holds that it must take an all or nothing approach to the question of whether the forfeiture of illegal proceeds under § 881(a)(6) requires a proportionality analysis.[13] Because the Court has determined that § 881(a)(6) forfeitures do not constitute punishment, no proportionality analysis will be employed here, and Counts 3 through 11 are not barred by the Double Jeopardy Clause. Because double jeopardy was Jones' only defense to the United States' Motion for Summary Judgment, and Jones' only argument in favor of his Motion for *1041 Summary Judgment, the Court grants summary judgment in favor of the United States and against Jones on Counts 3 through 12.
CONCLUSION
IT IS THEREFORE ORDERED that Robert Jones' Motion for Summary Judgment [Doc. # 76] is GRANTED as to Count I, and DENIED as to Counts 3 through 12.
IT IS FURTHER ORDERED that the United States' Motion for Summary Judgment Pertaining to Robert Lynn Jones [Doc. # 78] is GRANTED as to Counts 3-12 and DENIED as to Count I.
IT IS FURTHER ORDERED that the United States' Motion for Summary Judgment Pertaining to Jeanette Jones [Doc. # 80] is GRANTED. The Clerk of the Court is directed to enter judgment and the case is TERMINATED.
NOTES
[1] Upon the Government's own motion, the Court has dismissed Count II of the Amended Complaint without prejudice.
[2] The response also stated that "Jones neither concedes nor denies that probable cause existed" to believe that the property in question is forfeitable. However, this is not enough to preclude summary judgment on this issue. Magistrate Judge Evans found that probable cause existed for the seizure and forfeiture of the real estate. The Government has also presented ample evidence, including Jones' prior convictions, that probable cause existed for the forfeiture of the proceeds of the crimes. Probable cause only requires a "reasonable ground for the belief of guilt supported by less than prima facie proof but more than mere suspicion." United States v. On Leong Chinese Merchants Assoc. Building, 918 F.2d 1289, 1292 (7th Cir.1990), cert. denied, 502 U.S. 809, 112 S.Ct. 52, 116 L.Ed.2d 29 (1991). This burden has been met here.
Once the Government has established probable cause to believe the property is subject to forfeiture, the burden then shifts to the claimant who must present evidence refuting the Government's assertion by a preponderance of the evidence. Id. Summary judgment ordering forfeiture is appropriate when the Government establishes probable cause and the claimant fails to show that the facts constituting probable cause did not exist. Id.; F.R.C.P. 56. Because Jones has presented no such evidence, summary judgment on the issue of probable cause is appropriate here. The Court also notes that the Seventh Circuit affirmed all of Jones' convictions on May 17, 1995. Thus, Jones' ripeness argument is rejected.
[3] Section 881(a)(6) provides that the following shall be forfeited to the United States:
All moneys, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
[4] Section 881(a)(7) provides that the following shall be forfeited to the United States:
All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
[5] Jones apparently relies on the following language from the opinion: "Indeed, because Torres did not make a claim in the forfeiture proceeding, we have no reason to believe that he owned or had any interest in the money. Even in the criminal proceeding, he has not said that he was the funds' owner.... If Torres lacked an interest in the cash, its forfeiture did not impose any penalty on him, and again the argument in Kurth Ranch fails." Torres, 28 F.3d at 1465-66.
[6] In fact, the dissenting judge in Baird tried to factually distinguish Torres on the basis that the ownership of the property was "not honestly contested." 63 F.3d at 1225. Apparently, the majority did not believe that such a distinction was relevant.
[7] Dixon reinstated the traditional "same elements" test under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), and overruled the "same conduct" test of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
[8] The court suggested that the Government "could have sought in the criminal indictment to forfeit Torres's interest, if any, in the $60,000, using the administrative forfeiture proceeding to entertain and resolve other claims to the cash." 28 F.3d at 1464 n. 1.
[9] In Department of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, ___, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994), the Supreme Court also appeared to combine Halper and Austin in order to render a state tax invalid under the Double Jeopardy Clause.
[10] By contrast, the property forfeited under § 881(a)(7) is lawfully obtained real property that is used for illegal purposes. Thus, forfeiture of that property would be considered punishment because it takes away property that the defendant had lawfully obtained prior to the illegal undertaking. The same can be said of the property other than proceeds covered by § 881(a)(6), namely, "[a]ll money, negotiable instrument, securities and other things of value to be furnished or intended to be furnished by any person in violation of this subchapter" or "used or intended to be used to facilitate any violation of this subchapter." The Court's holding today should not be construed as excluding those items from the definition of "punishment." In fact, the forfeiture of such objects probably does constitute punishment under the Court's analysis.
[11] This argument was the basis for the Ninth Circuit's decision in $405,089.23 U.S. Currency to apply Halper and Austin to § 881(a)(6) forfeitures. 33 F.3d at 1221.
[12] Despite this language, the Fourth Circuit in Borromeo ultimately decided that under Austin, the proportionality test of Halper may be relevant in a given case where illegally obtained proceeds are at issue. 1 F.3d at 221. This Court finds that holding inapplicable here because the court in Borromeo never discussed whether forfeitures under § 881(a)(6) constituted "punishment" under Halper and Austin.
[13] But see Dawkins, 883 F.Supp. at 88-89 (employing the Halper proportionality analysis even after finding that § 881(a)(6) forfeitures did not constitute "punishment" under the Double Jeopardy Clause). Even if illegal proceeds under § 881(a)(6) did constitute punishment, the proportionality test of Halper would always be met because: (1) the punishment inflicted would invariably bear a direct relation to the amount of property forfeited, and (2) the costs to society and the Government for the war on drugs would far outweigh the punishment inflicted upon the defendant. Tilley, 18 F.3d at 299; Dawkins, 883 F.Supp. at 88-89. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262473/ | 269 Md. 465 (1973)
306 A.2d 524
McLAY ET AL.
v.
MARYLAND ASSEMBLIES, INC.
[No. 329, September Term, 1972.]
Court of Appeals of Maryland.
Decided July 6, 1973.
The cause was argued before MURPHY, C.J., and McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.
Walter M. Baker and Gene Patrick Ward, with whom were Baker, Lockhart, Russell & Herman on the brief, for appellants and cross-appellees.
William B. Evans for appellee and cross-appellant.
SINGLEY, J., delivered the opinion of the Court.
At the root of this controversy is the question whether a nonconforming use had been discontinued or abandoned. The court below concluded that it had been neither discontinued nor abandoned, and under the law applicable to the case, we agree.
Maryland Assemblies, Inc. (Assemblies) owns a tract of some 75 acres of land in Cecil County, where it has been engaged in the manufacture and assembly of ammunition components since 1957. On 30 June 1962, the land on which Assemblies operated was classified A-R (agricultural-residential) by the Cecil County Zoning Ordinance (1962) (the Ordinance). In 1971, Assemblies sought to have its property rezoned M-2 (heavy industrial) and was unsuccessful in this effort.
In 1972, the appellant McLay, the owner of a neighboring *467 property, asked the Cecil County Zoning Inspector to enforce the provisions of the Ordinance which prohibited manufacturing in an A-R zone, postulating his complaint on the theory that there had been a cessation by Assemblies of its nonconforming use of the property, because its plant had not operated since some time in 1970.
When the Zoning Inspector declined to take the action requested, McLay and his wife joined with 25 other property owners and appealed to the Cecil County Board of Appeals (the Board). The Board, noting that Assemblies' manufacturing operations had ceased for a period of more than six months, concluded that the nonconforming use had been discontinued, and reversed the decision of the Zoning Inspector.
Assemblies appealed to the Circuit Court for Cecil County, which in turn reversed the action of the Board. From this order, McLay and his neighbors have appealed.
Assemblies has cross-appealed from that portion of the court's order which denied a petition for dismissal which Assemblies had filed with the Board and renewed in the circuit court, its contention being that there had been a failure to comply with Subsection 2 of Section 8 of the Ordinance which provides that the Board shall give 15 days' published notice of the entry of an appeal; shall hear the appeal within 45 days of the Zoning Inspector's decision, and shall decide the case within 15 days of the hearing.
The lower court fairly and briefly summarized the facts:
"... Maryland Assemblies has been in the business of manufacturing and assembling small ordnance components on its 75-acre property near Port Deposit since about 1957, and after the adoption of the Zoning Ordinance in 1962 it continued its manufacturing operation as a non-conforming use of its premises. In 1970 it completed a contract with the Navy and, although the president of the company diligently sought orders for their product, there has been no manufacturing at the plant since 1970 because of the lack of orders. However, the *468 machinery and equipment in the plant have been maintained in a condition for the immediate resumption of production; the office has been maintained and [is] open for business each week day with someone present to solicit business and take orders; the business has continued to be listed in the telephone directory; the company has maintained an active account in a local bank. Since the Navy contract was fulfilled in 1970, however, only the president has been on the company payroll with the exception of a watchman who worked for room and board. In July 1971 the electrical service was changed from three-phase to residential service, but it was explained that this was to reduce costs. The license issued to the plant by the Fire Marshal's Office for the use of explosives in the manufacture of its product expired on December 31, 1971, and a request was not made for a renewal until June 1, 1972, when requests were received for a license to perform prime and sub-contract work for the Government. It is conceded that there has been no production in the plant since 1970."
We now turn to the contentions of the parties.
McLay's Appeal
The Ordinance, Section 4, Subsection 3c, relating to nonconforming uses of land, provides:
"c. If any such non-conforming use of land ceases for any reason for a period of more than 90 days, any subsequent use of such land shall conform to the regulations specified by this ordinance for the zone in which such land is located." (Emphasis supplied)
This should be compared with a somewhat similar provision relating to nonconforming uses of structures, or structures and premises, which is found in Subsection 5e of Section 4 of the Ordinance:
"e. When a non-conforming use of a structure, or *469 structure and premises in combination, is discontinued or abandoned for six consecutive months or for 18 months during any three-year period, the structure, or structure and premises in combination, shall not thereafter be used except in conformance with the regulations of the zone in which it is located;" (Emphasis supplied)
Perhaps the leading and certainly the most frequently cited Maryland case dealing with a nonconforming use is Landay v. Zoning Appeals Board, 173 Md. 460, [Landay v. MacWilliams] 196 A. 293 (1938). Landay is authority for the propositions that the effect of a cessation or discontinuance of a nonconforming use must naturally turn on the language of the ordinance, 173 Md. at 467; that abandonment involves the concurrence of an intent to relinquish and an overt act or a failure to act which is consonant with that intent, 173 Md. at 469-70, and that cessation or discontinuance without the substitution of another use or without evidence of an intent to abandon, will not prevent resumption of a nonconforming use, 173 Md. at 470.[1]
In Canada's Tavern v. Glen Echo, 260 Md. 206, 271 A.2d 664 (1970), we were called upon to interpret a Montgomery County ordinance which provided that "`abandoned' shall be defined as the cessation of a nonconforming use for a period of six months or more." We concluded that under this language a nonconforming use would be terminated by a cessation of the use for six months, irrespective of the owner's actual intent.
Under the Ordinance now before us, it might be argued that a cessation of a nonconforming use of land for a period of more than 90 days would result in the loss of the use *470 because this would be the equivalent of abandonment, despite the fact that the Ordinance does not so provide as it did in Canada v. Glen Echo, supra.
Later on, when the Ordinance deals with a nonconforming use of structures, or structures and premises, it substitutes for the word "ceases" the alternative of "is discontinued or abandoned." We are inclined to agree with the court below that "is discontinued" means a voluntary cessation of user without an intent to abandon. In passing, it might be noted that had the phrase read "is abandoned or discontinued" for a specified time, the Ordinance would be consonant with the usual concept that loss by abandonment may in some cases be immediate but loss by discontinuance usually occurs after the passage of time.
The point here, of course, is that there was no voluntary cessation of user. In Canada's Tavern, supra, no use whatever was made of the premises for about one year, during which they were closed and locked. In Harris Used Car Co. v. Anne Arundel County, 257 Md. 412, 263 A.2d 520 (1970), where we dealt with the Anne Arundel County zoning ordinance, we held that an automobile junkyard had lost its claim to a nonconforming use under the zoning ordinances enacted by the County in 1950 and 1952 because the owner had disposed of his used and junked cars in 1945 and had ceased operating his business in 1947. Under those circumstances no nonconforming use was being made of the property at the time of the enactment of the zoning law.
Neither Canada's Tavern nor Harris Used Car is apposite here, however. So far as we can determine from the record, the buildings in question were constructed or adapted by Assemblies for the conduct of its operations, and remained unchanged except for the suspension of the three-phase electric service, to avoid the payment of a demand charge. No equipment had been removed and the office had remained open. The only difference was that there was no business, although Marshall Godman, the president of Assemblies, said he had continued without success to solicit business from the United States Navy, Hamilton Watch Company and the University of Dayton.
*471 At argument, the analogy was drawn to a nonconforming funeral home which lost its custom, but remains open for business. Even more persuasive analogies are seasonal uses: of a nonconforming icehouse[2] or of an amusement park,[3] each of which operates two or three months of the year, but remains idle for the rest of the time. In none of these cases could it be successfully argued that there had been a discontinuance. It is rather an involuntary cessation of operations resulting from the uncertainties of business life or the seasonal nature of the enterprise.
McLay makes much of the fact that there was substantial evidence from which the Board could have concluded that Assemblies had discontinued its operations, with the result that the issue was clearly debatable, with the further consequence that the lower court could not substitute its judgment for that of the administrative body, relying on Luxmanor Citizens Ass'n v. Burkart, 266 Md. 631, 647, 296 A.2d 403 (1972) and Dundalk Holding Co. v. Horn, 266 Md. 280, 283, 292 A.2d 77 (1972), two recent cases which restate this familiar principle.
This argument misconceives the nature of the problem. As we see it, the issue is one of law, not of fact: the meaning of the phrase is discontinued when used in the Ordinance disjunctively with the phrase is abandoned. We have pointed out that our prior decisions have always characterized abandonment as an amalgam of intention and some overt act. Discontinuance as used in the Ordinance would also mean an overt act or failure to act if the overt act or failure to act is inconsistent with an intention to remain. Thus, had Assemblies removed its equipment or had used the buildings for purposes permitted in an A-R zone, the use would have been lost after the passage of the time fixed by the Ordinance, just as it was in Beyer v. City of Baltimore, 182 Md. 444, 34 A.2d 765 (1943), which dealt with a *472 nonconforming slaughterhouse. While under the facts of that case the Court found that the use had been abandoned, courts frequently treat a discontinuance as the equivalent of an abandonment, the only difference being that a discontinuance for a period of time fixed by statute sometimes takes the place of a finding of the intent normally required for an abandonment.[4] In Beyer, Judge (later Chief Judge) Marbury said, for the Court:
"In the case before us the Kriel Company disposed of all the visible machinery, altered the structure of the building by taking down the smokestack and definitely discontinued the slaughterhouse business. This would not have been done had there been any intention of resuming it in any reasonable period. Mr. Kriel's own testimony indicates that he only had a vague intention of going back into the business if there were more favorable opportunities. These opportunities apparently not only never presented themselves, but the actions of the Kriel Company indicated that it did not anticipate they would. It offered all of the property for sale, still has a sign on it, sold one piece, and has sold the lot in question here under some sort of contract to Gudis. There is clearly present an actual abandonment, with an intention no longer to use the property for slaughtering purposes. That use is the only use which would give *473 the applicant the right to his permit. Since that use has been abandoned, the property is no longer non-conforming, but must be used only as other properties in the area can be used under the ordinance. The applicant, therefore, is not entitled to a permit for a non-conforming use." 182 Md. at 454
A similar result obtained in Stieff v. Collins, 237 Md. 601, 207 A.2d 489 (1965) where a dairy and bakery had ceased operations in a plant which it had acquired. The machinery and equipment was dismantled and transferred elsewhere or sold, and the buildings were used on an irregular basis for storage. Compare Kastendike v. Baltimore Ass'n, 267 Md. 389, 403-05, 297 A.2d 745 (1972) where we found that no abandonment resulted from changes in ownership, but not in use.
But there is a difference between a voluntary cessation of use which might be characterized as a discontinuance and a cessation which is involuntary:
"An involuntary interruption of a nonconforming use seldom results in a loss of use. Where the cessation of use is not the voluntary act of the user, the requisite intent to abandon does not exist. * * *
"There is no abandonment of a use where discontinuance of the use is caused by an economic depression or the inability of a landowner to find a tenant, [citing Baltimore v. Weinberg, 204 Md. 257, 103 A.2d 507 (1954), which should be compared with Dorman v. Mayor & City Council of Baltimore, 187 Md. 678, 51 A.2d 658 (1947)] assuming that the owner made a diligent effort to resume the use during the period of inactivity." 1 Anderson, American Law of Zoning § 6.59 at 437-38 (1968)
A somewhat more expanded discussion of interruptions of use resulting from economic considerations may be found in 2 Rathkopf, The Law of Zoning and Planning Ch. 61, § 5 at 61-9 (1972):
"A temporary cessation, even for a lengthy *474 period, caused by circumstances over which the property owner had no control, is generally held not to constitute proof of a discontinuance in the sense of abandonment within the meaning of zoning ordinance provisions since the circumstances themselves negate an inference of the necessary intention to abandon the use.
* * *
"... [W]here there is a period of non-use because of the financial inability of the owner to continue in business or to find a tenant desirous of using the premises for a purpose permissible as a non-conforming use the requisite intent to abandon is lacking, and the right to resume the non-conforming use when opportunity presents itself is not lost.
"Non-use, intended to be temporary, caused by a depression or a lack of activity in the owner's business is generally held insufficient to show an intention to surrender the right to continue the non-conforming use. Related to this, is non-use for certain months or seasons of the year caused by the fact that the particular use is seasonal."
What we have here is clearly an involuntary cessation of use, and neither a discontinuance nor an abandonment, as the terms are used in the context of the Ordinance.
Assemblies' Cross-Appeal
Subsection 2 of Section 8 of the Ordinance provides, in part:
"Hearings; Appeals; Notice Appeals to the Board of Appeals concerning interpretation or administration of this ordinance may be taken by any person aggrieved or by any officer or bureau of the governing body of the county affected by any decision of the zoning inspector. Such appeals shall be taken within a reasonable time of such decision, *475 not to exceed 10 days, by filing with the zoning inspector and with the Board of Appeals a notice of appeal specifying the grounds thereof. The zoning inspector shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
"The Board of Appeals shall fix a reasonable time for the hearing of appeals, give public notice thereto as well as due notice to the parties in interest, and hold the public hearing within forty-five (45) days from the date of the decision of the Zoning Inspector. At least fifteen (15) days notice of the time and place of such hearing shall be published in a paper of general circulation in the County. At the hearing any party may appear in person or by agent or attorney. The Board shall then decide the appeal within fifteen (15) days from the time of hearing."
The Zoning Inspector's decision was made on 12 April 1972. An appeal was taken in timely fashion on 20 April. The hearing before the Board was set for 30 May, and then postponed to 27 June because of the absence of Assemblies' attorney, a postponement requested by his secretary. The Board rendered its decision on 25 July.
Assemblies moved unsuccessfully to dismiss the case before the Board on the ground that neither the hearing set for 30 May nor that actually held on 27 June was within 45 days from 12 April, the date of the Zoning Inspector's decision, and on appeal to the circuit court, urged as an additional reason for dismissal the failure of the Board to decide the case within 15 days of the 27 June hearing. From an order denying the petition to dismiss, Assemblies took a cross-appeal.
Faced with the definition contained in Section 18 of the Ordinance, "[t]he word shall is mandatory, the word may is permissive," the lower court (Roney, J.) turned to what we regard as an acceptable, pragmatic solution.
The members of the Cecil County Board of Appeals (we *476 were told at argument that they receive no salary) customarily meet on the last Tuesday of each month. The appeal to the Board was taken on 20 April. The Board next met on 25 April, but the case could not be heard on that day, because the Ordinance requires 15 days' notice by publication in advance of the hearing. Consequently, hearing was scheduled for 30 May, the date fixed for the Board's next meeting, which was 48 days after the Zoning Inspector's decision. It was then postponed to 27 June, the meeting next following, because of the absence of Assemblies' counsel.[5] Finally, the Board's opinion was not filed until 25 July, more than 15 days after the hearing.
Taking all of these alleged irregularities in inverse order, most of them can be summarily disposed of. Counsel for the parties stipulated that the Board could have an additional 15 days within which to file its opinion, and the opinion was filed within this time. The postponement from 30 May to 27 June was at the request of Assemblies' counsel, a delay about which it can scarcely complain. As regards the scheduling of the original hearing on 30 May which was within 48 days of the Zoning Inspector's decision and not within the 45-day period required by the Ordinance, the lower court noted that if the requirement of 15 days' notice is taken into account along with the manner in which the Board scheduled its meetings, no other result was possible as a practical matter.
Assemblies also raises two questions regarding the adequacy of notice. That there was public notice of the hearing before the Board is established by the record, and assuming, arguendo, that Assemblies got no direct notice,[6] there can be no showing of prejudice when Assemblies appeared at and participated in the hearing. Obviously, counsel for Assemblies must have had actual notice in order to seek a postponement.
There is ample authority for the proposition that where *477 there has been compliance with the substance of the requirements of statutes or rules by one party and the other party has not been prejudiced, technical irregularities cannot be made the basis for depriving persons of an opportunity to assert their legal rights, compare Border v. Grooms, 267 Md. 100, 106-07, 297 A.2d 81 (1972); Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 61, 225 A.2d 294 (1966) and Board of County Comm'rs v. Kines, 239 Md. 119, 125, 210 A.2d 367 (1965) with Rasnake v. Board of County Comm'rs, 268 Md. 295, 303-04, 300 A.2d 651 (1973).
While failure of an administrative board to give proper notice is jurisdictional and in some circumstances may be fatal, Cassidy v. Board of Appeals, 218 Md. 418, 421-22, 146 A.2d 896 (1958), the requirement of notification purposed to inform may be satisfied by actual knowledge, Clark v. Wolman, 243 Md. 597, 600, 221 A.2d 687 (1966), especially when it is acted upon. We think that the letter of 23 May rescheduling the hearing met the requirement of "due notice" contained in the Ordinance, which specifies neither the time within which nor the fashion in which it is to be given. But even if it did not, Assemblies had both constructive notice and actual knowledge, and was in no way prejudiced.
Orders of 6 October 1972 and 1 December 1972 affirmed; costs to be paid one-half by appellants and cross-appellees and one-half by appellee and cross-appellant.
NOTES
[1] 1 Anderson, American Law of Zoning § 6.61 at 441-42 (1968) suggests that the use of discontinue in zoning ordinances is a seldom successful attempt to avoid the intent problem inherent in the concept of abandonment. The author points out that most courts have merged the terms "abandon" and "discontinue" and require proof of intent to abandon, see Board of Zoning Adjustment v. Poykin, 265 Ala. 504, 92 So.2d 906 (1957).
[2] Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261, 222 N.W. 86 (1928).
[3] Civic Ass'n of Dearborn v. Horowitz, 318 Mich. 333, 28 N.W.2d 97 (1947); see also Appeal of Indianhead, Inc., 414 Pa. 46, 198 A.2d 522 (1964).
[4] The rule in some jurisdictions is that when an ordinance refers to discontinuance and specifies a time period of nonuse, mere cessation of use for that time period is sufficient; the time period provided in the ordinance supplying, as a matter of law, the element of intent otherwise requisite. Beszedes v. Board of Comm'rs of Arapahoe County, 116 Colo. 123, 178 P.2d 950 (1947); Auditorium, Inc. v. Board of Adjustment of Mayor & Council of Wilmington, 47 Del. 373, 91 A.2d 528 (1952); Baml Realty, Inc. v. State, 35 App. Div.2d 857, 314 N.Y.S.2d 1013 (1970); Village of Spencerport v. Webaco Oil Co., 33 App. Div.2d 634, 305 N.Y.S.2d 20 (1969); Franmor Realty Corp. v. Le Boeuf, 201 Misc. 220, 104 N.Y.S.2d 247 (1951), aff'd 279 App. Div. 795, 109 N.Y.S.2d 525 (1952), app. denied, 279 App. Div. 874, 110 N.Y.S.2d 910 (1952); State ex rel. Peterson v. Burt, 42 Wis.2d 284, 166 N.W.2d 207 (1969). However, most courts "require proof of intent to abandon although the ordinance speaks in terms of a use discontinued for a specified period of time," 1 Anderson, American Law of Zoning § 6.61 at 442 (1968) and cases cited therein.
[5] McLay's consent to this postponement was conditioned on Assemblies' payment of the cost of the second published notice.
[6] On 23 May 1972, counsel for the Board notified Assemblies' counsel that the hearing had been rescheduled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262482/ | 900 F.Supp. 1339 (1995)
Lester R. KEITER, also known as Les Keiter, and Lila J. Keiter, husband and wife, Plaintiffs,
v.
The PENN MUTUAL INSURANCE COMPANY, a Pennsylvania Corporation; the Penn Insurance and Annuity Company, a Delaware corporation; Bernard Golden; John Does 1-10, Individuals, Corporations, Partnerships, Limited Partnerships, Joint Ventures, Defendants.
Civ. No. 95-00164 DAE.
United States District Court, D. Hawai`i.
September 22, 1995.
*1340 Joy S. Omonaka, Edmunds & Verga, Honolulu, HI, for Lester R. Keiter.
*1341 George H. Keller, Greeley Walker & Kowen, Honolulu, HI, for Lila J. Keiter.
Janice T. Futa, George H. Keller, Greeley Walker & Kowen, Honolulu, HI, for Penn Mut. Ins. Co., Penn Ins. & Annuity Co.
James T. Wong, Law Offices of John Cregor, Honolulu, HI, James T. Wong, Law Offices of James T. Wong, Honolulu, HI, for Bernard Golden.
ORDER GRANTING PLAINTIFFS' MOTION TO FILE SECOND AMENDED COMPLAINT; DENYING AS MOOT DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND JUDGMENT ON THE PLEADINGS ON FIRST AMENDED COMPLAINT; AND DISMISSING CERTAIN CLAIMS
DAVID ALAN EZRA, District Judge.
The court heard the parties' motions on September 18, 1995. John S. Edmunds, Esq., Ronald J. Verga, Esq., Joy S. Omonaka, Esq., and Wesley D. Shimazu, Esq., appeared on the briefs or at the hearing on behalf of Plaintiffs; Janice T. Futa, Esq., and George H. Keller, Esq., appeared on the briefs or at the hearing on behalf of Defendants The Penn Mutual Life Insurance Company and The Penn Insurance and Annuity Company. James T. Wong, Esq., appeared on behalf of Defendant Bernard Golden. After hearing argument and reviewing the motion and the supporting and opposing memoranda, the court GRANTS Plaintiffs' leave to File their Second Amended Complaint. The court considers the Defendants' motion as it applies to Plaintiffs' Second Amended Complaint, and DISMISSES certain claims therein. The court DENIES as moot Defendants' Motion for Summary Judgment and for Judgment on the Pleadings on the First Amended Complaint.
BACKGROUND
This dispute arises out of Plaintiffs' purchases of life insurance from Defendant Bernard Golden ("Golden"). Plaintiff Lester Keiter is a retired television and radio sportscaster, known as Les Keiter. He and his wife Lila Keiter are longtime residents of Hawaii. Golden, a resident of New York and an insurance agent, acted as an agent for The Penn Mutual Life Insurance Company ("PML") and The Penn Insurance and Annuity Company ("PIA") (collectively "PML/PIA"). Les Keiter purchased a "whole life" policy from one Arnold Panella in New York in the 1950s. After Golden took over the policy as agent, the policy continued in effect until 1982. Plaintiffs moved to Hawaii in 1970, but met with Golden in 1982 during a trip to New York.
Plaintiffs assert that Golden told them that Les Keiter needed to change the policy from "whole" to "universal life." Plaintiffs contend that Golden and PML/PIA knew or should have known that Les Keiter intended to retain Lila Keiter as the beneficiary. Plaintiffs allege that Golden focused on what would be best for "them" when he discussed their needs.
Plaintiffs assert that Golden then sold Les Keiter a "universal life" policy, mailing it to Honolulu. Les Keiter sent all payments from Honolulu until a dispute arose in 1994. Plaintiffs contend that Golden and PML/PIA did not disclose to them that, under a "universal life" policy, a drop in interest rates could erode Les Keiter's equity and greatly increase premium payments. Plaintiffs contend that Defendants marketed and sold the policy as part of a pattern of deliberately and fraudulently selling such policies during a period of high interest rates. Plaintiffs claim that Defendants specifically represented that the policy would benefit Lila Keiter. Plaintiffs allege that in an April 9, 1993 letter, Defendants failed to advise him that the monthly premium could increase from approximately $529.00 to approximately $2,784.00 per month, while the death benefit remained more or less unchanged. Les Keiter could not afford the increased premiums and let the policy lapse, obtaining a new policy with a difference in the death benefit of $280,000.00.
The First Amended Complaint contains Eight Counts: Negligence (Count I), gross negligence (Count II), breach of contract (Count III), breach of fiduciary duty (Count IV), fraud (Count V), intentional misconduct (Count VI), unfair and/or deceptive business practices (Count VII), and failure to turn over records (Count VIII). Defendants *1342 move for summary judgment[1] as to all claims brought by Lila Keiter, arguing that she was not a party to the contract. Defendants also move for judgment on the pleadings on the claims for breach of fiduciary duty (Count IV) and failure to turn over records (Count VIII),[2] arguing that PML/ PIA does not owe Plaintiffs a fiduciary duty under the insurance contract.
Plaintiffs admit that "certain of Penn Defendants' arguments are well taken," and move for leave to file a Second Amended Complaint. The Second Amended Complaint replaces the claim for breach of fiduciary duty (Count IV) with a claim for breach of the implied covenant of good faith and fair dealing (new Count IV). It also changes the basis for the claim of failure to turn over records, alleging in Count VIII that Defendants' failure also constitutes a breach of the implied covenant. Finally, the Second Amended Complaint attempts to clarify the role of Lila Keiter, adding under the claim for breach of contract (Count II) a claim for tortious breach of contract, and alleging that Lila Keiter suffered emotional distress. Defendants oppose Plaintiffs' motion, arguing that the proposed amendments are futile.[3]
STANDARD OF REVIEW
I. Motion for Leave to File an Amended Complaint
The Supreme Court has stated that amendment to pleadings is to be "freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Accordingly, the Ninth Circuit has held that leave to amend under Rule 15(a) "shall be freely given when justice so requires," and that this policy should be applied with "extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987).
This liberality "is, however, subject to the qualification that amendment of the complaint does not cause the opposing party undue prejudice, is not sought in bad faith, and does not constitute an exercise in futility." DCD Programs, Ltd., 833 F.2d at 186. A critical factor to consider is the resulting prejudice to the opposing party. Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir.1982). Prejudice to the opposing party would result if they were required to conduct extensive additional discovery if the amendment were allowed. Howey v. United States, 481 F.2d 1187, 1191 (9th Cir.1973).
A district court does not abuse its discretion in denying a motion for leave to amend when a new claim would prejudice the defendants and "greatly change the nature of the litigation." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). "Putting the defendants `through the time and expense of continued litigation on a new theory, with the possibility of additional discovery, would be manifestly unfair and unduly prejudicial.'" Priddy v. Edelman, 883 F.2d 438, 447 (6th Cir.1989) (quoting Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971 (6th Cir.1973)). Denial of a motion to amend is proper where there has been undue delay and more importantly, where discovery has closed. Vollrath Co. v. Sammi Corp., 9 F.3d 1455 (1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2163, 128 L.Ed.2d 886 (1994); McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809-10 (9th Cir. 1988).
II. Motion to Dismiss
A motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.1992) (quoting *1343 Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989)) (further citations omitted). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Id. Civil rights complaints are to be liberally construed. Id. (citing Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir.1989)).
To the extent, however, that "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed.R.Civ.P. 12(b); Del Monte Dunes at Monterey, Ltd. v. Monterey, 920 F.2d 1496, 1507 (9th Cir.1990).
III. Motion for Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides in part as follows:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56,....
The dismissal on the pleadings is proper only if the moving party is clearly entitled to prevail. Doleman v. Meiji Mutual Life Insurance Co., 727 F.2d 1480, 1482 (9th Cir. 1984). All allegations of fact of the opposing party are accepted as true. Id. Generally, the court is unwilling to grant dismissal pursuant to Rule 12(c) "unless the movant clearly establishes that he is entitled to judgment as a matter of law." Id. (quoting 5A Wright & Miller, Federal Practice and Procedure: Civil § 1368). To the extent, however, that "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed.R.Civ.P. 12(c).
IV. Motion for Summary Judgment
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of "identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). The opposing party cannot stand on its pleadings, nor can it simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., 809 F.2d at 630; Fed.R.Civ.P. 56(e). In a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir.1989).
DISCUSSION
I. Motion for Leave to File Second Amended Complaint
In opposing Plaintiffs' motion to amend, Defendants argue that amendment would be futile because the new claims alleged would still be subject to dismissal. The Second Amended Complaint adds claims based upon an alleged breach of the implied covenant of good faith and fair dealing, removes claims based upon fiduciary duty, and makes clear that Lila Keiter's claims are exclusively grounded in emotional distress. Because Defendants oppose the motion for leave to file the Second Amended Complaint based only upon the merit of the claims alleged therein, the court will GRANT the Plaintiffs' leave to amend and will address Defendants' opposition as a motion to dismiss. The court will treat the Second Amended Complaint as filed, and will determine what claims remain after Defendants' motion. To the extent that the filing of the Second Amended Complaint removes claims upon which Defendants sought summary judgment or judgment on the pleadings, the court DENIES Defendants' motion as moot.
II. Breach of Implied Covenant of Good Faith and Fair Dealing
Defendants argue that Plaintiffs have not stated a cognizable claim for breach *1344 of the implied covenant of good faith and fair dealing, and that no cause of action in tort exists for breach of the implied covenant. Defendants acknowledge that, under Hawaii law, "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." Hawaii Leasing v. Klein, 5 Haw.App. 450, 456 n. 6, 698 P.2d 309 (Haw.App.1985); Restatement (Second) of Contracts § 205 (1981). This court has held that simple breach of the implied covenant does not give rise to an action in tort.[4]See, e.g., Genovia v. Jackson Nat'l Life Ins. Co., 795 F.Supp. 1036, 1045-46 (D.Hawaii 1992). However, Genovia and its progeny do not foreclose Les Keiter's action in contract,[5] and they allow an action for tortious breach of contract under Dold v. Outrigger Hotel, 54 Haw. 18, 501 P.2d 368 (1972), where Defendants have breached the contract in a willful or reckless manner. 795 F.Supp. at 1042. For these reasons, the court DISMISSES Plaintiffs' claim for tortious bad faith, and considers below whether any claim for breach of the implied covenant remains in contract.
Defendants argue that the duty of good faith arises from the agreement and extends only to situations connected therewith. They assert that Plaintiffs have not alleged bad faith conduct in connection with any policy provision. They indicate that nothing has triggered their duty to pay under the policy. Plaintiffs cite A & E Supply Co. v. Nationwide Mutual Fire Ins. Co., 798 F.2d 669, 676 (4th Cir.1986), cert. denied, 479 U.S. 1091, 107 S.Ct. 1302, 94 L.Ed.2d 158 (1987), where the Fourth Circuit held that Virginia did not recognize an action in tort based on breach of the implied covenants. In describing the implied covenant, the court stated that:
[t]he obligation arises from the agreement and extends only to situations connected with the agreement. Cf. Reisen v. Aetna Life and Casualty Co., 225 Va. 327, 302 S.E.2d 529, 533 (1983) ("the existence of the [good faith] duty wholly depended upon a condition precedent, that is, coverage under the policy").
Id. at 677. "The implied covenant [of good faith and fair dealing] imposes upon each party the obligation to do everything that the contract presupposes they will do to accomplish its purpose." Ford v. Manufacturers Hanover Mortg. Corp., 831 F.2d 1520, 1523 (9th Cir.1987) (citation omitted).
Plaintiffs' claim rests upon extrinsic representations made by Defendants that Plaintiffs allege induced them to switch from "whole" to "universal" life, and that Defendants later wrongfully failed to provide them with information. Plaintiffs' loss of coverage through their ill-advised purchase forms the gravamen of the claim:
If Plaintiffs had been fairly, adequately, properly, fully and completely advised of the risks inherent in the purchase of said universal life policy, Plaintiffs would not have purchased said policy and instead left in effect and continued in effect the whole policy....
Second Amended Complaint, at ¶ 31. Plaintiffs also claim that Defendants' failure to inform them of the effect of dropping interest rates compounded their mistake, but the core of the claim rests on the original decision to purchase the "universal life."
Defendants argue that Plaintiffs' claim for breach of the implied covenant does not relate to any contractual duty. "An insurer's first-party insurance obligation is its duty to compensate the insured for direct losses within the policy coverage." A & E Supply, 798 F.2d at 676 n. 8. An insured under a policy of life insurance has a reasonable right to expect that a valid claim will be paid. Diamon v. Penn Mut. Fire Ins. Co., 247 Pa.Super. 534, 372 A.2d 1218 (1977); 16A Appleman, Insurance Law and Practice, *1345 § 8878 (1981). Prior to the purchase of the "universal life" policy, Defendants owed Plaintiffs a duty of good faith in connection with the "whole life" policy.
Defendants' argument presents the question whether good faith under an insurance contract extends only to the performance of the agreement or to the marketing of new agreements. The Restatement (Second) of Contracts indicates that the duty of good faith in some situations does run beyond performance and execution of contractual duties to contract negotiation and purchase. See Restatement (Second) of Contracts § 205, comments b and c (1981) (citing National Labor Relations Act § 8(d) as a statutory example of the duty to bargain in good faith). The Uniform Commercial Code and the Restatement, however, do not extend the duty to contract negotiation. See UCC § 1-203, codified in Hawaii at H.R.S. § 490:1-203 ("obligation of good faith in [] performance and enforcement."); Restatement (Second) of Contracts § 205 ("performance and enforcement"). The Hawaii statute covering unfair methods of competition or unfair or deceptive acts or practices in the business of insurance clearly lists misrepresentations in the marketing of insurance as an unfair practice. H.R.S. § 431:13-103. However, this statute does not create a private right of action; it reserves all enforcement power to the commissioner of insurance. Genovia, 795 F.Supp. at 1045. Neither does it define the parameters of the good faith obligation of an insurer. It contains definitions of prohibited conduct unrelated to the marketing, performance and execution of insurance policies. For example, the statute prohibits the defamation of insurers and the creation of monopolies. H.R.S. § 431:13-103(a)(3) and (4).
The court finds no Hawaii decision on point. Indeed, the court has found little authority addressing the issue of good faith in the context of the marketing of insurance policies. Many states find, like the Restatement, that good faith does not extend to negotiations absent special circumstances. See, e.g., Racine & Laramie, Ltd., Inc. v. California Dept. of Parks and Recreation, 11 Cal.App.4th 1026, 14 Cal.Rptr.2d 335, 341 (1992). A duty to negotiate in good faith may arise from explicit agreement or implication from a prior contract subject to modification, and misrepresentations may involve estoppel. Id.
In this case, the court finds that the special circumstances alleged do give rise to the implied covenant of good faith and fair dealing and if presented with the same circumstances the Hawaii Supreme Court would so rule. Takahashi v. Loomis Armored Car Service, 625 F.2d 314, 316 (9th Cir.1980). Plaintiffs allege that the parties had a contract, which the Defendants induced Les Keiter to cancel in favor of the new contract, the universal policy. This is similar to the modification of an existing contract, one of the special circumstances in which the duty of good faith negotiation arises even between sophisticated parties. Id. Then, according to Plaintiffs, the Defendants further misled Les Keiter regarding the nature of the new policy by withholding information. The court need not reach the question whether, in general, insurers marketing new policies must act in good faith. The previous contractual relationship and the allegations of continued misconduct weigh heavily in favor of finding a sufficient connection to the contract here. Moreover, even though Hawaii's statute governing unfair insurance practices does not purport to define good faith and does not give rise to a private right of action, the public policy expressed in Hawaii's statutory prohibition on misrepresentations by insurers lends support to imposing the contractual duty against insurers who market new policies to existing customers. The disparities between the information available to the parties and their relative expertise also weigh in favor of imposing the duty of good faith in this context. The court finds that the Second Amended Complaint does state claims sounding in contract for breach of the implied covenant of good faith and fair dealing.
For these reasons, the court DISMISSES the claims for breach of the implied covenant of good faith and fair dealing (Counts IV and VIII) to the extent they seek tort damages, and DENIES the motion to dismiss them to the extent they sound in contract.
III. Lila Keiter
Defendants assert that Lila Keiter, the beneficiary of the policy, has no present *1346 or absolute interest in the benefits of the policy, because Les Keiter retains the right to change beneficiaries at any time. Plaintiffs agree that Lila Keiter has no contract claims,[6] but maintain that she has properly alleged tort claims. Plaintiffs add that their Second Amended Complaint makes clear that Lila Keiter asserts only claims based upon her emotional distress. The court agrees with the parties regarding the contract claims, and DISMISSES all claims arising out of Lila Keiter's alleged contractual relationship with Defendants.
Defendants also argue that Lila Keiter may not base a claim for emotional distress upon the alleged tortious breach of a contract to which she was not a party. Defendants cite Dold v. Outrigger Hotel, and its progeny, arguing that in none of these cases of tortious breach has a person not a party to the contract received emotional distress damages. Plaintiffs respond that parties owe duties in tort to those who are foreseeably endangered by their conduct, and that Lila Keiter was foreseeably injured by Defendants' tortious breach. Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970).
In Dold v. Outrigger Hotel, the Hawaii Supreme Court held that "where a contract is breached in a wanton or reckless manner as to result in a tortious injury, the aggrieved person is entitled to recover in tort." 54 Haw. at 22, 501 P.2d 368. In Dold, the hotel breached its contract with guests who had made reservations to stay at the Outrigger, forcing the guests to accept accommodations at a lesser hotel. 54 Haw. at 19, 501 P.2d 368. Dold makes the predicate act a wanton breach resulting in tortious injury. In Chung v. Kaonohi Center Co., 62 Haw. 594, 618 P.2d 283 (1980), the Hawaii Supreme Court extended the holding in Dold to an action for breach of contract between two commercial entities, stating:
We do not think that the dispositive factor in allowing damages for emotional distress is the nature of the contract. The dispositive factor is, rather, the wanton or reckless nature of the breach. The basis of our holding in Dold was our recognition that "certain situations are so disposed as to present a fusion of the doctrines of tort and contract."
62 Haw. at 602, 618 P.2d 283. (quoting Dold, 54 Haw. at 22, 501 P.2d 368).
Contract mixes with tort under the Dold analysis, and Chung holds that the nature of breach, not the type of contract, determines the existence of a tortious breach. Id. Because the wanton or reckless nature of the breach stands as the dispositive factor, this court has previously stated that "one may breach a duty created by a contract in such an egregious fashion as to implicate the breach of another duty, not created by the contract." Resco, Inc. v. Founders Title Group, Inc., 751 F.Supp. 1442, 1444 (D.Hawaii 1990). "This duty mandates that one contracting party refrain from intentionally injuring another contracting party by the means of breaching a contract." Id. (emphasis added). The duty "not created by the contract" is a duty in tort. However, the duty in tort would not arise absent the contract and willful contract breach.
The court believes that extending the availability of damages in tort beyond the contracting parties would constitute an unwarranted expansion of Dold.[7] This court will not expand Dold beyond its interpretation by the Hawaii Supreme Court. See Genovia, 795 F.Supp. at 1046 (this court refused to "overstep[] the bounds of its authority" and adopt the tort of a bad faith in Hawaii in the absence of state decisions). In order to state a claim for tortious breach of contract, a plaintiff must first show a breach, *1347 and then show that it was wanton or reckless. It is the wanton or reckless nature of the breach, and not the nature of foreseeable damages, that gives rise to the availability of the tort damages. The breaching party has a duty independent of the contract to refrain from breaching in a wanton and reckless manner, but this duty still springs out of the contractual relationship and its breach. It does not constitute a tort between strangers.
To allow a plaintiff who could never demonstrate breach of contract to state a claim for damages for tortious breach would loose tortious breach from its contractual mooring. Only when the plaintiff can show breach and recklessness or wantonness may tort damages supplement contract damages in order to discourage willful conduct and to compensate the contracting party. The court finds a substantial likelihood that the Hawaii Supreme Court would not so expand Dold, and the court will not do so here. See Takahashi, 625 F.2d at 316. The court DISMISSES Lila Keiter's claims based upon tortious breach.
IV. Negligent and Intentional Infliction of Emotional Distress
In addition, Defendants argue that Lila Keiter cannot state a claim for negligent infliction of emotional distress because (1) there is no evidence that Defendants' actions were "unreasonably dangerous" and (2) H.R.S. § 663-8.9(a) prohibits recovery for negligent infliction of emotional distress where the "distress or disturbance arises solely out of damage to property or material objects." Defendants' arguments apply equally well to Les Keiter's claims for negligent infliction of emotional distress, and the court will address them as they apply to these claims of both Plaintiffs.
The "unreasonably dangerous" formulation comes from the Hawaii Supreme Court's definition of reasonably foreseeable consequences in Rodrigues v. State, 52 Haw. 156, 172, 472 P.2d 509 (1970). The court stated:
Thus a further limitation on the right of recovery, as in all negligence cases, is that the defendant's obligation to refrain from particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. (citation omitted). Therefore, on remand, the trial court must also determine whether, under the facts of this case, serious mental distress of the plaintiff was a reasonably foreseeable consequence of defendant's act.
Id. Contrary to Defendants' argument, this language does not require Plaintiffs to separately allege unreasonably dangerous conduct. Rather, it places a further limitation on the foreseeability of damages arising from negligence. Such damages must not only be foreseeable, but so clearly foreseeable that the alleged conduct carries an unreasonable risk of causing such damages. Id. The court cannot conclude as a matter of law that the Defendants' alleged conduct did not carry an unreasonable risk of emotional distress for Lila Keiter.
However, recovery for negligent infliction of emotional distress is also limited to situations where there is "some physical injury to property or a person" resulting from the defendant's conduct. Lui Ciro, Inc. v. Ciro, Inc., 895 F.Supp. 1365 (D.Hawaii 1995) (quoting Ross v. Stouffer Hotel Co. (Hawaii) Ltd., Inc., 76 Hawaii 454, 465-66, 879 P.2d 1037 (1994)). A Hawaii statute provides that one who does not suffer physical injury or mental illness may not recover for negligent infliction of emotional distress "if the distress or disturbance arises solely out of damage to property or material objects." H.R.S. § 663-8.9. However, Plaintiffs point out that this statute only became effective in 1986, after some of the alleged conduct here.
The court need not apply the statute, however, because there has been no "physical injury to property" as required by Hawaii case law. Ross, 76 Hawaii at 465-66, 879 P.2d 1037. Plaintiffs argue that the damage to the insurance policy qualifies as damage to property, but the damage is not "physical" in the sense likely to produce severe emotional distress. See Campbell v. Animal Quarantine Station, 63 Haw. 557, 560, 632 P.2d 1066 (1981) (damages awarded in death of a dog). The damage alleged by Plaintiffs is to an expectancy in a life insurance contract. Under the teaching of Hawaii case law, such damage does not qualify as sufficient to give *1348 rise to a cause of action for negligent infliction of emotional distress.
While the Second Amended Complaint does not place them into a separate claim, Plaintiffs also appear to claim damages for intentional infliction of emotional distress. Recovery for intentional infliction of emotional distress is permitted only if the alleged tortfeasor's acts were "unreasonable." Ross, 76 Hawaii at 465, 879 P.2d 1037 (citing Calleon v. Miyagi, 76 Hawaii 310, 321 n. 7, 876 P.2d 1278 (1994), as amended, 76 Hawai`i 453, 879 P.2d 558 (1994); Chedester v. Stecker, 64 Haw. 464, 467, 643 P.2d 532 (1982); Marshall v. University of Hawaii, 9 Haw. App. 21, 38, 821 P.2d 937 (1991)). "An act is unreasonable if it is without just cause or excuse and beyond all bounds of decency[.]" Id. (citations omitted). "In other words, the act complained of must be `outrageous,' as that term is employed in the Restatement (Second) of Torts § 46 (1965)." Id. The Restatement (Second) of Torts states:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
Restatement (Second) of Torts § 46 comment d. "The question whether the actions of the alleged tortfeasor are unreasonable or outrageous is for the court in the first instance, although where reasonable persons may differ on that question it should be left to the jury." Ross, 76 Hawaii at 465, 879 P.2d 1037 (citing Wong v. Panis, 7 Haw.App. 414, 421, 772 P.2d 695 (1989)).
The court finds as a matter of law that the alleged conduct here does not qualify as "outrageous" under Hawaii law. Reasonable persons could not differ over whether the conduct Plaintiffs allege is utterly intolerable in a civilized society. Although many cases of intentional infliction of emotional distress should go to a jury, this is not one of them. The allegations in the Second Amended Complaint simply do not rise to the level of "outrageous." If courts do not in clear cases exercise their review of such claims in the first instance, the standard of outrageous will be expanded into an unreviewable jury question, diluting the importance of the cause of action and the available relief.
For these reasons, the court DISMISSES the claims of Lila Keiter in their entirety. The court also DISMISSES Plaintiff Les Keiter's claims for negligent and intentional infliction of emotional distress.[8]
CONCLUSION
For the reasons stated above, the court GRANTS Plaintiffs' Motion of Leave to File Second Amended Complaint, DISMISSES Counts IV and VIII to the extent they seek damages in tort, DISMISSES all claims of Plaintiff Lila Keiter, and DISMISSES Plaintiff Les Keiter's claims for negligent and intentional infliction of emotional distress. To the extent it applies to claims deleted in the Second Amended Complaint, the court DISMISSES Defendants' Motion for Summary Judgment and Judgment on the Pleadings as moot.
IT IS SO ORDERED.
NOTES
[1] Defendants PIA and PML filed the Motion for Summary Judgment as to All Claims of Plaintiff Lila J. Keiter and Motion to Dismiss Counts IV and VIII of Plaintiffs' First Amended Complaint on July 13, 1995. Defendant Golden joins in the motion. Exclusively for the purposes of the present motion and the Plaintiffs' Motion for Leave to File Second Amended Complaint, the court will not distinguish between Golden, PIA and PML.
[2] Plaintiffs report that Defendants have now turned over these records in response to discovery requests. They continue to assert the claim for the damages incurred during the period Defendants withheld the records.
[3] Defendants PML and PIA filed an opposition in which Defendant Golden joins.
[4] The issue of whether Hawaii recognizes the tort of breach of duty of good faith and fair dealing (i.e., the tort of "bad faith") in an insurance contract in either the first or third-party context has been certified by Federal District Court Judge Samuel P. King to the Hawaii State Supreme Court in Pacific Resources, Inc. et al. v. National Union Fire Ins. Co., et al., CV NO. 92-683 (D.Haw., June 21, 1993). As yet, the Hawaii Supreme Court has not issued a decision on this question.
[5] In Genovia, the court granted a defense motion to dismiss the bad faith claim "to the extent it seeks to state a cause of action in tort." 795 F.Supp. at 1046 (emphasis added). This leaves the covenant in the contract, where it may form the basis of a breach.
[6] Defendants assert and Plaintiffs do not contest that courts addressing the issue have universally held that a beneficiary under a life insurance policy has no vested interest until the death of the insured. See, e.g., Pierson v. Buyher, 330 N.C. 182, 409 S.E.2d 903 (1991); Kucera v. Metropolitan Life Ins. Co., 719 F.2d 678 (3d Cir. 1983).
[7] While the Hawaii Supreme Court has not directly addressed this question, this court has found no case where a Hawaii court awarded damages for tortious breach to a person not a party to the contract. Cf. Chung, 62 Haw. at 594, 618 P.2d 283 (action between parties to commercial contract); Genovia, 795 F.Supp. at 1038 (beneficiary of life insurance policy sued after refusal to pay upon death of insured); Paulson v. Bromar, 775 F.Supp. 1329 (D.Hawaii 1991) (distributor brought action against manufacturer for breach of distribution agreement).
[8] Defendants did not move upon and this court does not reach the issue of Les Keiter's emotional distress damages arising out of tortious breach of contract. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724615/ | 462 S.W.2d 276 (1970)
CHEMICAL CLEANING, INC., Petitioner,
v.
CHEMICAL CLEANING & EQUIPMENT SERVICE, INC. et al., Respondents.
No. B-2338.
Supreme Court of Texas.
October 21, 1970.
Rehearing Denied December 9, 1970.
Gordon R. Pate, Beaumont, for petitioner.
*277 William E. Townsley, Beaumont, Donald B. Moye, Nederland, for respondents.
PER CURIAM.
The opinion of the court of civil appeals is reported in 456 S.W.2d 724. We refuse writ of error, no reversible error. In so doing, we are not to be understood as approving the form of the point of error suggested by the court of civil appeals for presenting a contention that a jury's answer to a special issue is so against the great weight and preponderance of the evidence as to be manifestly unjust. A trial court may commit error in overruling a motion for new trial because vital jury findings are contrary to the great weight and preponderance of the evidence, but it does not for that reason commit error in rendering judgment on the verdict. Hence, a point of error which states that the trial court erred in rendering judgment on a verdict because of the state of the evidence if it is adequate for any purposeis only a "no evidence" point. Cf. Travelers Insurance Company v. Williams, 378 S.W.2d 110 (Tex.Civ.App.Amarillo 1964, writ ref'd, n. r. e.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262466/ | 306 A.2d 36 (1973)
STATE
v.
David Emanuel COSTA.
No. 1437-Ex.
Supreme Court of Rhode Island.
June 12, 1973.
Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Special Asst. Atty. Gen., for plaintiff.
Anderson & Kane, Charles H. Anderson, Providence, for defendant.
*37 OPINION
POWERS, Justice.
This is an indictment charging the defendant with knowingly and willfully striking a uniformed conservation officer in violation of G.L. 1956 (1969 Reenactment) § 11-5-5.[1]
The case was tried to a Superior Court justice and a jury which returned a verdict of guilty as charged. It is before this court on defendant's bill of exceptions, which contains four exceptions that were orally argued and briefed. However, in the view we take of the case, we need consider only two exceptions, the first being that taken to the denial of his motion for a directed verdict.
The record establishes that on August 27, 1969, state conservation Officer Jacques observed defendant operating a boat in Bullocks Cove, East Providence, which bore no registration number contrary to now G.L. 1956 (1970 Reenactment) § 46-22-3.[2] Officer Jacques, who was on the dock, called defendant to come in for questioning regarding the operation of an unregistered motor boat.
The defendant came in as requested and, on being questioned by Officer Jacques, admitted that the boat was unregistered. When asked for his name, however, defendant replied that he would furnish such information after he put his gear in his pickup truck which was parked in the parking lot at the time. It is undisputed that having made this response, defendant pulled away from the dock, ignoring Officer Jacques' command to stop.[3]
Officer Jacques went to the parking lot and found a pickup truck from which he took registration data. From this data, he determined the name and address of its registered owner, went to the indicated address, but found no one home.
Prior to this Officer Jacques had radioed for assistance and was eventually joined by two other conservation officers named Kerrigan and Danielson. Together, they set up a surveillance which brought them in contact with defendant's father when the latter picked up defendant's truck at the parking lot.
The defendant's father inquired as to what might be the difficulty, and on being told, agreed to and did escort the officers to defendant's home. There, according to the officers, the father entered defendant's home and shortly thereafter emerged with defendant. Again, according to the officers, defendant became abusive and refused to co-operate in the matter of the unregistered boat. When told that this could mean his arrest, defendant attempted to re-enter his home.
Thereupon, he was told that he was under arrest and Officers Kerrigan and Danielson, at Officer Jacques' direction, started *38 to take defendant into custody, each taking hold of an arm or an elbow. There is evidence that defendant resisted and a scuffle ensued during which, according to the testimony of the officers, defendant willfully struck Officer Danielson in the left rib cage with an elbow. The force of the blow was such as to result in swelling, redness and sensitivity to such an extent as to require medical attention at the hospital.
It is defendant's position that while much of the three officers' account of what transpired is substantially correct, it is not true that he willfully and knowingly struck and caused bodily injury to Officer Danielson while the latter was in the performance of duty. Rather, he contends that the striking was incidental to his attempts to pull his arms free while resisting an unlawful arrest.
It is in connection with this contention that defendant presses an exception taken to the denial of his motion for a directed verdict.
In support of this exception, defendant argues first, that the purported arrest by Officer Danielson was illegal in that said officer attempted to make the arrest without a warrant so to do, and secondly, that there is no evidence whatsoever from which it could be found that defendant had committed a misdemeanor in the presence of Officer Danielson.[4]
In lieu of such evidence, defendant points out, the state relies on the misdemeanor committed in the presence of Officer Jacques. See note 3.
The state readily concedes that the arrest of defendant by Officer Danielson was for the misdemeanors committed in the presence of Officer Jacques and of which Officer Danielson had no personal knowledge. However, what defendant overlooks, the state argues, is the provision of G.L. 1956 (1969 Reenactment) § 12-7-3(c) which is as follows:
"(c) The officer has reasonable ground to believe that the person to be arrested has committed a misdemeanor and either has fled from the scene of the crime or is a nonresident of this state and cannot be arrested later."
On the strength of this authority then, the state urges, Officer Danielson was making a valid warrantless arrest, hence, in the performance of his duty when, according to the state's evidence, he was willfully and knowingly struck by defendant.
We are inclined to agree with the state that, assuming that Officer Jacques, in whose presence defendant had committed a misdemeanor, had made known to Officer Danielson the circumstances relative to defendant's refusal to obey a lawful command (see note 3), Officer Danielson would have had reasonable grounds to make the arrest without a warrant in accordance with § 12-7-3(c). See State v. McWeeney, 100 R.I. 394, 216 A.2d 357 (1966). That Officer Jacques did so inform Officer Danielson, the state argues, can be reasonably inferred from the circumstances of the facts in evidence.
Whether such inference is reasonable however, we need not inquire, for the reason that we have no hesitancy in holding that a peace officer is in the performance of his duty when making an arrest without a warrant for a misdemeanor not committed in his presence, if the arrest in question was made in assisting a fellow officer in whose presence the misdemeanor in question was committed. Such is the case here.
*39 Consequently, defendant's exception to the denial of his motion for a directed verdict is without merit and overruled.
The defendant's remaining exception, calling for consideration, is more troublesome. It was taken to the trial justice's denial of defendant's motion to pass the case, which motion was prompted by Officer Danielson's testimony concerning defendant's identity.
In the course of his direct examination, this witness explained that information regarding ownership of the pickup truck was obtained from the Registry of Motor Vehicles. Counsel for the state then inquired:
"Q And was further check made on the data obtained from the registration data?"
To this, Officer Danielson replied,
"A Yes, we did obtain a record information."
Asked to identify the agency from which such record information was obtained, Officer Danielson replied,
"A The State Bureau of Criminal Investigation."
No objection was raised to this answer and counsel for the state then asked:
"Q And who was the truck registered to?"
To this, Officer Danielson, referring to defendant, replied,
"A I believe it was registered to David, David E. Costa."
Then asked,
"Q You further checked out this with the B.C.I. so-to-speak?"
Officer Danielson answered,
"A Checked his criminal record."
At this juncture, it should be noted that defendant had not put his credibility in issue. Consequently, in light of Officer Danielson's reference to a criminal record, counsel for defendant informed the court that he desired to make a motion. The jury was removed and in their absence, counsel moved that the case be passed, contending that the witness's improper reference to a criminal record was so prejudicial as to deprive defendant of a fair and impartial trial.
The trial justice acknowledged that the challenged testimony was objectionable and ordered it stricken. He denied the motion to pass, however, pointing out that there had been no objection to the questions which resulted in eliciting reference to a criminal record.
Moreover, with their return to the courtroom, he addressed the jury as follows:
"The Court: Mr. Foreman, ladies and gentlemen of the jury, the last three or four questions and answers that were given by this witness contained clearly hearsay, irrelevant to this case. I've granted the defendant's motion to strike those questions and answers. You are to disregard that testimony."
It is on the state of the foregoing that defendant urges this court to set aside his conviction and remit the case to Superior Court for a new trial. He does so by asking that we apply to the facts of the case at bar, the principle followed by this court in State v. Peters, 82 R.I. 292, 107 A.2d 428 (1954).
There, the prosecutor, in his opening remarks, brought to the attention of the jury the fact that Peters and one other had been indicted for the offense for which Peters was to go on trial. He further informed the jury that the other defendant was not being tried because he had pleaded nolo on the previous day and had been sentenced to one year.
Counsel for Peters objected and moved that the case be passed. The trial justice *40 denied the motion, but stated that he would take pains to instruct the jury that the prosecutor's comments had no bearing on the guilt or innocence of Peters and should be ignored by them. No such cautionary instruction was given, however.
In passing on the exception taken by Peters to the trial justice's refusal to pass the case, this court applied the rule to criminal cases that had previously been enunciated in civil appeals. Specifically, quoting from Lavigne v. Ballantyne, this court in State v. Peters, supra 82 R.I. at 297, 107 A.2d at 430-431 stated:
"`When improper and extraneous matter of a harmful nature is intentionally injected or accidentally creeps into the evidence, it is the duty of the trial justice, upon complaint being made, to free the evidence from such matter, if possible, with proper warning to the jury. On the other hand, if this is not reasonably possible, then he ought to pass the case.'"
The Peters court, noting that no cautionary instruction had been given, sustained the defendant's exception. In so doing, moreover, the court made clear that even when cautionary instructions are given, there remains for the appellate court the question of whether such instructions were adequate to have disabused the jury's mind of the prejudicial effect of the objectionable evidence.
Since in the case at bar the trial justice took such steps, the question for this court is whether his cautionary instructions can be fairly said to have removed from the minds of the jurors, when weighing the evidence properly before them, the taint represented by the enveloping smoke of a criminal record. We think not.
It is at least open to question that some of the jurors may have been uncertain as to what it was about "the last three or four questions and answers" they were to ignore, there being no specific reference to the tainted testimony. It may well be that, in the opinion of the trial justice, specificity could only make matters worse. But, if he were convinced of this, defendant's right to a fair and impartial trial mandated that the case should be passed. If, on the other hand, it was his opinion that the taint could be effectively eliminated, his cautionary instructions should have been such as to leave no doubt as to their effectiveness.
Concluding that the cautionary instructions as given cannot fairly be said to have achieved the purpose desired, we are not unmindful that trial court justices do not have the twenty-twenty hindsight with which appellate courts are endowed. Confronted with the problem faced by the trial justice in the case at bar, they can only do that to which they are inclined by their judgment at the moment the problem arises.
Having determined that the objectionable testimony was of sufficient taint to impair defendant's right to a fair and impartial trial and further determining that such taint was not removed from consideration by the jury, there remains the question of whether defendant's failure to object to the questions is fatal to his claim of prejudice. Sound and desirable trial procedures dictate that a litigant should not be permitted to sit idly by, indifferent to questions which, in addition to being improper, are clearly susceptible to evoking prejudicial responses. Hence, when the record clearly establishes that when prejudicial responses could have been avoided by timely objection to the questions which resulted in such responses, the party failing to object should not ordinarily be heard to complain thereafter.
Applying such rule to the case at bar, we are frank to acknowledge that the question is close, but close questions in *41 criminal cases must ordinarily be resolved in favor of the accused, in light of the latter's entitlement to the benefit of a reasonable doubt. Here, defendant evidenced immediate objection to Officer Danielson's statement, "[c]hecked his criminal record." This statement was made in response to the prosecutor's question, "You further checked out this with the B.C.I. so-to-speak?"
It may be argued that counsel for defendant could have forestalled the answer by a timely objection to this question. However, the question called for a "yes" or "no" answer and, the question having been asked, counsel for defendant may have felt that less harm would result than would be the case if he focused attention on the question.
Surprisingly, no criminal case has been called to our attention, nor has our independent research been more fruitful in establishing a precedent as to the requirement of timely objection. However, in Demara v. Rhode Island Co., 42 R.I. 215, 107 A. 89 (1919), this court held that it was reversible error for the trial justice not to have granted defendant's motion to pass the case, notwithstanding defendant's failure to object to the question which elicited the prejudicial response.
In light of the circumstances surrounding the manner in which prejudice came into the case at bar, we are persuaded that the latitude accorded the defendant in Demara v. Rhode Island Co., supra, should govern our disposition here.
The defendant's exception to the denial of his motion to pass the case is sustained and the case is remitted to the Superior Court for a new trial.
JOSLIN and DORIS, JJ., did not participate.
NOTES
[1] The section in question reads as follows:
"11-5-5. Assault of police officers and firemen. Any person who shall knowingly and wilfully strike a uniformed member of the state police, metropolitan park police, conservation officers, state properties patrolman, or city or town police forces or fire departments causing bodily injury while the member is engaged in the performance of his duty shall be deemed to have committed a felony, and shall be imprisoned not exceeding three (3) years or fined not exceeding fifteen hundred dollars ($1500) or both."
[2] A violation of the foregoing is made a misdemeanor by G.L. 1956 (1970 Reenactment) § 46-22-19.
[3] The record establishes that defendant was charged with and pleaded nolo to a violation of now G.L. 1956 (1970 Reenactment) § 46-22-17.3.
This section provides:
"46-22-17.3. Refusal to stop on order or command. It shall be a misdemeanor punishable by a fine of not more than one hundred dollars ($100) for any person to refuse to move or to stop on an oral command or order of any employee of the department of natural resources in the exercise of his duties under this chapter."
[4] General Laws 1956 (1969 Reenactment) § 12-7-3 provides in pertinent part as follows:
"12-7-3. Arrest without warrant for misdemeanor. A peace officer may without a warrant arrest a person for a misdemeanor, whenever:
(a) The officer has reasonable ground to believe that a misdemeanor has been or is being committed in his presence and that the person to be arrested has committed or is committing it." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262476/ | 26 Cal.Rptr.3d 262 (2005)
127 Cal.App.4th 1274
The PEOPLE, Plaintiff and Respondent,
v.
Jose BENITEZ, Defendant and Appellant.
No. C044648.
Court of Appeal, Third District.
March 29, 2005.
Rehearing Denied April 15, 2005.
Review Denied July 20, 2005.[**]
*263 Scott Concklin, Redding, 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, Ray Brosterhous and Jesse N. Witt, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
DAVIS, J.
A jury convicted defendant Jose Benitez of 30 counts of molesting the two children of his brother's girlfriend. It also sustained the allegation that the offenses involved more than one victim. Based on these findings, the trial court sentenced the defendant to state prison for two consecutive indeterminate life terms for at least 30 years, with concurrent terms for all the remaining convictions.[1]
On appeal, the defendant contends the prosecutor committed misconduct, and the trial court erred when it failed to instruct the jury to consider the past criminal conduct of a witness, allowed his trial to proceed in his absence after he failed to appear on the final day of trial, and violated his constitutional right to have a jury determine every necessary fact. In the published portion of our opinion we reject this last contention by holding that the proviso in Penal Code section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation), is not an element of the enhancement to be negated upon proof to a jury. We shall affirm.
The defendant's arguments do not require us to summarize the entirety of the testimony at trial. To the extent necessary for context, we will incorporate facts in the Discussion.
DISCUSSION
I-II[***]
III
As noted above, after returning 30 verdicts that found the defendant guilty of *264 committing nondescript lewd and lascivious acts upon two victims under the age of 14 (Pen.Code, § 288, subd. (a); subsequent undesignated section references are to this code), the jury returned the self-evident finding that these violations involved two or more victims "within the meaning of ... Section 667.61(e)(5)." Under section 667.61 (the internal cross-references in which render it a veritable hall of mirrors), a defendant convicted of any offense in subdivision (c) under one circumstance contained in subdivision (e) is subject to an indeterminate life term of at least 15 years. (Id., subd. (b).) Among the qualifying offenses (id., subd. (c)(7)) is section 288, subdivision (a), unless the defendant is eligible for probation (§ 1203.066, subd. (c)). Among the circumstances that qualify the offense for an enhanced sentence under section 667.61 is committing a "subdivision (c)" offense against more than one victim. (§ 667.61, subd. (e)(5).)
Under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], any fact other than "recidivism" that increases the punishment for an offense beyond the "statutory maximum" (the maximum a trial court may impose on facts necessarily reflected in the jury verdict for the offense) must be the subject of a jury finding. (Id. at 300 [124 S.Ct. at pp. 2536-2537, 159 L.Ed.2d at pp. 413-414].) Here, pursuant to the pleading and proof provision of section 667.61, subdivision (i), the jury expressly found the defendant guilty of an offense within the meaning of subdivision (e)(5), which in turn incorporates any offense in subdivision (c) committed against multiple victims.[4] The jury, of course, had already found the defendant *265 guilty of section 288, subdivision (a). What the defendant faults is the lack of an explicit jury finding that he was ineligible for probation.
Contrary to defendant's contention, we find that the proviso in Penal Code section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation) is not an element of the enhancement to be negated upon proof to a jury. Rather, it is a legislative grant of authority to the trial court to entertain a request for probation (should a defendant satisfy the criteria in section 1203.066, subd. (c)) despite eligibility otherwise for sentencing under section 667.61. Unlike the defendant, we do not find that this interpretation would render the proviso redundant. Subdivision (h) of section 667.61 concerns the prohibition of a grant of probation to persons committing the offenses in the other six paragraphs of subdivision (c)(1)-(6), which is an apparent effort to dispel any ambiguity resulting from the lack of any express reference to the subject of probation in those paragraphs. Thus, subdivision (c)(7)'s proviso and subdivision (h) do not address the same issue.
Finding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court. (People v. Superior Court (Kirby) (2003) 114 Cal. App.4th 102, 105-106, 7 Cal.Rptr.3d 440.) Because a defendant's eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely. (Cf. People v. Barasa (2002) 103 Cal.App.4th 287, 293, 294-295, 126 Cal. Rptr.2d 628 [eligibility for diversion]; People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271, 104 Cal.Rptr.2d 641 [section 654].) As a result, the enhancement of his molestation convictions did not offend his constitutional rights.
IV[]
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and HULL, J.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of sections I, II and IV of the Discussion.
[**] George, C.J., and Baxter, J., did not participate therein.
[1] Both parties assert that the court also imposed a consecutive six-year determinate term. This is not correct. The reporter's transcript clearly quotes the court stating that, "For Counts Two through Ten, the Court will impose the mid term ... to run concurrent with each other and with the first count. [¶] For Counts 12 through 30, the defendant will be sentenced to the mid term ... concurrent with each other and concurrent with Count 11.... [¶] So that the aggregate state prison sentence is 30 years to life." The misapprehension may stem from unclear notations on the first pages of the two abstracts of judgment for the determinate sentence, which do not describe the term on count two as concurrent. However, the final pages indicate that the determinate sentence is "to run c/c with indeterminate."
[***] See footnote *, ante.
[4] Section 667.61 provides, in relevant part, as follows:
"(b) Except as provided in subdivision (a) [circumstances not applicable here], a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).
"(1) A violation of paragraph (2) of subdivision (a) of Section 261.
"(2) A violation of paragraph (1) of subdivision (a) of Section 262.
"(3) A violation of Section 264.1.
"(4) A violation of subdivision (b) of Section 288.
"(5) A violation of subdivision (a) of Section 289.
"(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
"(7) A violation of subdivision (a) of Section 288 [of which the defendant was convicted, as noted ante] unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.[¶] ... [¶]
"(e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] ... [¶] (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim [also present here]. [¶] ... [¶]
"(h) Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section for any offense specified in paragraphs (1) to (6), inclusive.
"(i) For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) [not applicable here] or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."
Section 1203.066 provides, in relevant part:
"(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons: [¶] ... [¶] (7) A person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim."
[] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262477/ | 63 N.J. 226 (1973)
306 A.2d 437
FRANCES TRIANO, PETITIONER-APPELLANT,
v.
CARBON STEEL PRODUCTS CORP., RESPONDENT-APPELLEE.
The Supreme Court of New Jersey.
Argued March 19, 1973.
Decided June 19, 1973.
*227 Mr. Charles J. Farley, Jr. argued the cause for the appellant (Messrs. Haggerty & Farley, attorneys).
Mr. Gerald W. Conway argued the cause for the appellee (Messrs. Brause, Callaghan & Coyle, attorneys).
The opinion of the Court was delivered by CONFORD, P.J.A.D., Temporarily Assigned.
This is a workmen's compensation death case in which the sole issue is whether regularly paid overtime wages should be included in computing the weekly wage rate upon which compensation awards are based under N.J.S.A. 34:15-37, 12 and 13.
George Triano died on April 10, 1968 as a result of a heart attack suffered while driving a tractor trailer truck for his employer, the respondent Carbon Steel Products Corporation. The Division of Workmen's Compensation found his death to be work-related and awarded his widow, the petitioner, 450 weeks of dependency benefits at a rate of $69.80 based on a stipulated weekly base wage of $139.60. Thereafter, the Division denied petitioner's motion to amend the judgment to increase weekly benefits to the maximum rate of $83.00 in accordance with the employer's payroll record, entered into evidence, which indicated that the decedent regularly worked overtime and received an average weekly wage approaching $200 for the 15 months prior to *228 his death. The Union County Court affirmed the denial of the motion. The Appellate Division found the appeal to the County Court to have been out of time and dismissed the appeal taken to the former tribunal. We granted certification and remanded the case to the Appellate Division for a determination on the merits. 60 N.J. 510 (1972).
Thereupon the Appellate Division in an unreported opinion affirmed the judgment of the County Court. The court reasoned that N.J.S.A. 34:15-37 has been construed to refer to the customary hours generally worked by an employee in the type of operation involved, as distinguished from those worked by the particular employee, citing Engelbretson v. American Stores, 49 N.J. Super. 19 (App. Div. 1957), aff'd o.b. 26 N.J. 106 (1958), and that overtime has been held excludable in computing the weekly wage rate under N.J.S.A. 34:15-37 absent any agreement in the contract of employment that overtime is guaranteed. Atamanik v. Real Estate Management, Inc., 21 N.J. Super. 357 (App. Div. 1952). Reliance was also placed on Smolenski v. Eastern Coal Dock Co., 87 N.J.L. 26 (Sup. Ct. 1915), aff'd o.b. 88 N.J.L. 387 (E. & A. 1915). We again granted certification. 62 N.J. 197 (1973).
The facts are not in dispute. The decedent was the respondent's only truck driver. He delivered its products in New Jersey, New York and Pennsylvania and regularly worked in excess of 40 hours a week. In her dependency claim petition petitioner represented that the decedent ordinarily worked ten hours a day, five and a half days a week. The payroll record shows that for the first 40 hours of work per week, he received $3.34 an hour in 1967 and $3.49 an hour in 1968, and for time in excess of 40 hours per week he received a higher "overtime" hourly rate. Decedent's total earnings were $10,111.41 in 1967 and $2,511.94 in the first quarter of 1968. There is no evidence that he was "guaranteed" overtime in the contract of employment, apparently a union contract.
*229 N.J.S.A. 34:15-37 provides that:
"`Wages', when used in this chapter, shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. * * * When the rate of wages is fixed by the hour, the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved. In any case the weekly wage shall be found by multiplying the daily wage by 5, or if the employee worked a greater proportion of the week regularly, then by 5 1/2, 6, 6 1/2 or 7, according to the customary number of working days constituting an ordinary week in the character of the work involved. * * *." (Emphasis added.)
The obvious purpose of the statute is to arrive at a realistic estimate of the worker's true weekly earning potential so that the benefits calculable thereon may fairly relate to the worker's loss attributable to the accident or death, subject to the statutory percentage limitations. See Maver v. Dwelling Managers Co., 34 N.J. 440, 443 (1961).
Considering the particular problem, for the moment, independently of existing case authority, it would seem evident, especially in the light of settled rules enjoining construction of the Workmen's Compensation Act liberally in favor of workmen, that so-called "overtime" should not be excluded in computing the wage base rate in a case where, as here, the term simply signifies a component of the method of calculation of the worker's pay and has no necessary relationhip to the customary work period experienced by the employee. An accommodation of the strict statutory language appears to be called for to meet the intrinsic sense of the act in a case where there is not a single hourly rate for all the hours customarily worked, but rather a "base rate" for a fixed number of those hours and an "overtime" rate for the remainder. In such a case the present one the intent of the act is subserved by averaging on a weekly basis the actual earnings customarily accruing to the employee over a reasonably substantial period of time prior to the accident and taking that average as the "weekly wage" for purposes *230 of N.J.S.A. 34:15-37. In effect, only the first sentence of the section is operative in that situation.
There is nothing in the history of the act or in our prior holdings in this field that militates against the foregoing conclusion.
The original act did not define how wages were to be computed, simply providing that the amount of benefit should be determined by a given percentage of the wages received at the time of injury or death. There was no mention of hourly rate. L. 1911, c. 95, §§ 11, 12.
By amendment in 1913 it was provided that for employees who were compensated on the basis of piecework, the weekly wages were to be six times the average daily earnings "for a working day of ordinary length, excluding overtime". L. 1913, c. 174, § 8. Although the law still did not expressly exclude overtime for workers paid by the hour, nevertheless in Smolenski v. Eastern Coal Dock Co., supra, the court pointed to the express exclusion of overtime for piecework to suggest that overtime hours should also be excluded for workers paid on a time basis. The court continued:
"* * * We think it may fairly be held that the Legislature meant that the daily wages should be taken to be what would be earned by working for the ordinary number of hours, and that the employe was not to lose by reason of enforced idleness during some of those hours, nor to gain because on some days he worked overtime.
"Wages, the Legislature said, must be construed to be the money rate at which the services were recompensed. What is to be considered is not the recompense in fact received, but the rate which the contract of hiring fixed, whether that rate was in fact realized for the whole time or not. * * *." 87 N.J.L. at 28.
It may be significant that while the worker in Smolenski had apparently worked some hours at an overtime rate, his actual earnings in the approximately six months before his death were below the amount which would have been produed by multiplying his hourly rate at the time of injury by the ordinary number of hours in the employment. Thus the use by the court of the hourly rate at which the employee *231 was being paid did not operate to restrict the amount of benefits, but permitted the employee's survivor to receive larger benefits than if actual earnings, including overtime, were used to calculate the wage.
In 1919 the act was amended to incorporate the present statutory language and to omit the express exclusion of overtime for piecework. L. 1919, c. 93, § 9. Nevertheless, in Mannino v. Davis Baking Powder Co., 5 N.J. Misc. 740, 742 (Dept. Labor 1927), the Deputy Commissioner suggested that the 1919 amendment was "based on the Smolenski case", and indicated legislative approval of its language. The bureau accordingly followed Smolenski, and refused to consider overtime in the computation of death benefits paid to the survivor of an employee who was "given all possible opportunity at overtime", although the commissioner's opinion failed to specify whether the employee in fact regularly worked a substantial number of overtime hours. 5 N.J. Misc. at 741.
This Court has never before been presented with a case under the present statutory language which on its facts dealt with the exclusion of regularly paid overtime compensation from the computation of weekly earnings for compensation benefits. We recognize that this Court, in affirming, adopted the opinion of the Appellate Division in Engelbretson v. American Stores, supra, where it was said:
"Under the circumstances, we hold the view * * * that in establishing the basis for computing the daily wages for an employee hired at an hourly rate of pay, the allusion to the `customary number of working hours constituting an ordinary day in the character of the work involved' has reference to the regular or normal working day followed by the employer in the line or type of work in which the particular employee is engaged. Cf. Ostatnik v. Hamilton, t3 N.J. Super. 469 (Cty. Ct. 1957). Conversely, in our opinion the reference is not to the number of hours in a day the employee is called upon to work under his contract unless the type of occupation is such that a lesser number of hours than eight are customary or perhaps necessary because of its nature. * * *." (Emphasis by the Appellate Division.) 49 N.J. Super. at 26. *232 However, the facts in Engelbretson did not involve overtime, but concerned the computation of wages for a part-time employee who usually worked two days per week for four hours a day. In permitting the employee's wages to be ascertained by the normal work schedule followed by the employer rather than the particular number of hours worked by the individual employee, the court stressed the particular problems faced by the part-time employee, noting that "the ordinary part-time worker today may have full-time employment tomorrow or that a part-time worker (such as a daily houseworker) may have four or five such jobs each week", and that an accident suffered in one employment would prevent or interfere with later full-time employment or with other concurrent part-time jobs. 49 N.J. Super. at 25. See also Maver v. Dwelling Managers Co., supra, and Knight v. Cohen, 32 N.J. 497 (1960), where the Engelbretson rationale was approved in situations involving part-time employees. The Engelbretson court also stressed the remedial purposes of workmen's compensation legislation and the tradition of liberal judicial construction in order to provide workers with maximum possible protection. 49 N.J. Super. at 25.
As noted above, the Appellate Division also relied on Atamanik v. Real Estate Management, Inc., supra. The principal issue there was whether a statement made by the decedent concerning the cause of his injury was admissible as part of the res gestae. However, at another point in the opinion the court rejected the contention that the decedent's overtime should have been considered in determining the base pay. Without revealing the regularity or the amount of the overtime claimed, the court observed:
"* * * There is absent any testimony that in addition to the base pay of $22 per week there was any agreement that overtime was guaranteed. The Hudson County Court therefore properly computed the amount awarded for temporary disability, and its judgment is in this respect affirmed." 21 N.J. Super. at 365.
*233 But we think there is no reason in policy or relevant to the apparent legislative intent to require a guarantee of overtime as a condition of its use in computing wages where in fact the employee is regularly and customarily working overtime.
An instructive agency ruling in this area is Simpkins v. Martin Dye & Finishing Co., 22 N.J. Misc. 230, 36 A.2d 611 (Dept. Labor 1944). There the employee at the time of hiring was told that the plant worked on two 12-hour shifts, and that he was to work 12 hours per day 5 or 6 days a week. His pay was 37 1/2 cents per hour for 8 hours a day, 40 hours per week, and overtime at 56 1/4 cents per hour for additional hours. The deputy commissioner rejected the employer's argument, based on Smolenski, supra, that compensation benefits should be limited to the base pay of 37 1/2 cents per hour for a 40-hour week. He said:
"* * * There is no provision in the statute which prohibits the increasing of the money rate to be received as recompense for services rendered during any of the customary hours of an ordinary day. The only limitation upon `money rate' is that fixed by the contract of hiring. If the court [in Smolenski] had intended [excludable] `overtime' to mean rate of pay in excess of a fixed rate for a given number of hours overtime rate or pay would it not have so stated, particularly in view of its declaration that wages should be taken to be what was `earned' by working the customary number of hours. I do not interpret this opinion of the court to automatically exclude all overtime from the calculation of weekly wage, irrespective of the money rate fixed by the contract of hiring or the customary number of working hours constituting an ordinary day. To hold otherwise would be imposing a restriction upon a contract of hiring by limiting the quantum of `money rate', and be repugnant to a liberal construction of the statute.
A careful consideration of the above-mentioned opinion as well as numerous other decisions which I have reviewed, leads me to the conclusion that overtime, when referring to a mathematical formula for computing the wage rate to be received as recompense for any part of the customary number of working hours constituting an ordinary day in accordance with and pursuant to a contract of hiring, constitutes wages `earned' within the meaning of the statute for the purpose of calculating the rate of compensation." 22 N.J. Misc. at 236-237.
*234 We are essentially in accord with the reasoning of Deputy Commissioner Kraft as thus expressed.
While the respondent here argues that Simpkins falls within the exception recognized in Atamanik, supra, for overtime which is "guaranteed" in the employment contract, we reject the distinction since, as indicated above, we regard the factor of guarantee as irrelevant.
Respondent argues that Engelbretson, supra, requires the use of a customary full-time day for the trucking industry in general rather than the particular requirements of the decedent's employer. We disagree. We see no reason why the "customary" full-time day should not be taken to be that customarily in effect as between the particular employer and employee. This is the realistic criterion which comports with the essential purpose of the act to provide due compensation to the worker for his loss attributable to the accident. We have analyzed Engelbretson above. That case, dealing, as already noted, with the special situation and problems of part-time workers, cannot be taken to substantiate an inflexible rule that the actual number of hours worked in a particular job is necessarily irrelevant to the determination under N.J.S.A. 34:15-37 of the "customary number of working hours constituting an ordinary day in the character of the work involved." The peculiar necessity to construct a model work day and week different from actuality in the case of a part-time worker does not exist when dealing with one working full-time. In the present case, involving a full-time workman, where it is established that the customary work schedule in effect at the time of the accident included hours which were required to be paid at an overtime rate, total compensation for all hours worked must be taken into account.
While decisions in other jurisdictions are sometimes peculiarly dependent on the particular statutory language, the strong trend is to take into consideration overtime compensation shown to be a normal and regular characteristic of the worker's earnings. See, e.g., Field v. Industrial Commission, *235 73 Ariz. 133, 238 P.2d 953, 956-957 (Sup. Ct. 1951); Shortall v. Brown & Sharpe Mfg. Co., 74 R.I. 237, 60 A.2d 143 (Sup. Ct. 1948); National Pressure Cooker Co. v. Industrial Com'n, 249 Wis. 381, 24 N.W.2d 697 (Sup. Ct. 1946); Tate v. Gullett Gin Company & Liberty Mutual Ins. Co., 86 So.2d 698, 704 (La. Ct. App. 1956); Carrington v. Consolidated Underwriters, 230 La. 939, 89 So.2d 399, 403 (Sup. Ct. 1956). See also 2 Larson, The Law of Workmen's Compensation (1970) §§ 60.11, 60.12, where the author argues generally against rigid rules in determining what is to be included in wages used to calculate benefits, and states: "The entire objective of wage calculation is to arrive at a fair approximation of claimant's probable future earning capacity." Id. at § 60.11, p. 88.189.
The judgment is reversed and the cause remanded to the Division of Workmen's Compensation for amendment of the award conformably with this opinion.
For reversal and remandment Chief Justice WEINTRAUB, Justices JACOBS, PROCTOR, HALL, MOUNTAIN and SULLIVAN, and Judge CONFORD 7.
For affirmance None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262481/ | 113 N.H. 344 (1973)
RACHEL C. DESCHAMPS, ADMINISTRATRIX OF THE ESTATE OF DENNIS DESCHAMPS
v.
CAMP DRESSER & McKEE, INC.
v.
CITY OF NASHUA
DONALD FILLION
v.
CAMP DRESSER & McKEE, INC.
v.
CITY OF NASHUA
No. 6544.
Supreme Court of New Hampshire.
June 29, 1973.
Hamblett, Kerrigan, LaTourette & Lopez and John P. Griffith (Mr. Joseph M. Kerrigan orally) for the plaintiffs.
Wyman, Bean & Tefft and Rodney L. Stark (Mr. Stark orally) for Camp Dresser & McKee, Inc.
*345 GRIMES, J.
The United States District Court for the District of New Hampshire (Bownes, J.) has certified under our rule 20 certain questions of law concerning RSA 508:4-b. This section reads as follows: "Damages from Construction. No action to recover damages for injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, may be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action."
The questions certified are these:
"(A) Whether N.H. RSA 508:4-b permits `any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action' to bring suit against `any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six years after the performance or furnishing of such services and construction?'
"(B) If question (A) is answered in the affirmative, then does N. H. RSA 508:4-b apply to employees of a corporation or person in actual possession and control of the improvement at the time of the accident?
"(C) Whether RSA 508:4-b as applied to the facts in this case violates the Constitutions of the United States and of New Hampshire?"
According to an agreed statement of facts, Dennis *346 Deschamps (the plaintiff Rachel's decedent) and the plaintiff Fillion were both employed by the city of Nashua in September 1971 at the sewage treatment plant. On September 16, 1971, they were asphyxiated by sewer gas resulting in the death of Deschamps and the injury of Fillion. Actions were brought against Camp Dresser & McKee, Inc., the designer of the plant. Defendant filed a motion for summary judgment claiming that RSA 508:4-b barred the actions. Evidence showed that the defendant had completed its design and supervision of construction prior to December 21, 1962, and had no connection with the operation or maintenance of the plant thereafter.
The unique feature of RSA 508:4-b which distinguishes it from most statutes of limitations in negligence actions is that the time begins to run from the time the services are performed rather than from the time of injury. Causes of action for negligence do not arise at the occurrence of the negligent act but rather when the damages result. White v. Schnoebelen, 91 N.H. 273, 18 A.2d 185 (1941).
In the present cases the plaintiffs' causes of action arose when they suffered their injury on September 16, 1971, almost nine years after the defendant had completed its work. Plaintiffs claim that their actions are not barred by the statute, but come within the statutory exception, because they were in possession and control of the premises as agents and employees of the city.
The statute by its very terms is a limitation on the bringing of actions against the persons who designed, planned, supervised or constructed the facility. When it says that "this limitation shall not apply" it clearly is referring to the limitation on plaintiffs as they are the ones who bring "action to recover damages." The exception would be meaningless if it were read to apply to actions against owners, tenants and others in possession and control, as defendants, because they are not included in the class against whom actions are barred by the six-year limitation, namely persons "performing or furnishing the design, planning, supervision of construction or construction of the improvement. . . ." There would be no need to exclude those in possession from a class in which *347 they were never included in the first place. On the other hand those in possession and control would be included in the class of persons who would be barred from bringing suit if it were not for the exception, which was intended to remove them from that class.
We are aware that other states have similar statutes where different wording of the exception clearly excludes from the limitation actions brought against the owner in possession. Ill. Rev. Stat. ch. 83, § 24f (1965); Va. Code Ann. ch. 8-24.2 (Supp. 1973); Louisiana Rev. Stat. 9:2772 (Supp. 1970); Idaho Code § 5-241 (Supp. 1972); Tenn. Code Ann. tit. 28, §§ 314-318 (Supp. 1972); Nev. Rev. Stat. § 11.205; Minn. Stat. § 541.051 (1971). New Hampshire had these examples to follow if it had desired to accomplish the same result.
We realize that a New Jersey court has ruled that its statute which has language like ours was intended to preserve the right to sue one in actual possession. Salesian Soc'y v. Formigli Corp., 120 N.J. Super. 493, 295 A.2d 19 (1972). We cannot adopt the reasoning of that case however in view of what we consider to be clear language to the contrary. We hold that the second sentence of RSA 508:4-b preserves the right of one in possession and control to sue without regard to the limitation of the first sentence. Our answer to question (A) therefore is "Yes".
This exception from the six-year limitation applies to "any person in actual possession and control as owner, tenant or otherwise." The city as the owner could be in possession and control only through its employees. Deschamps and Fillion were its employees and they had possession and control of at least that part of the plant where they were working. The exception extends to those in possession and control "as owners, tenants or otherwise". (Emphasis added.) We think this was intended to cover persons other than owners and tenants who were in possession and control and certainly would include employees of the owner or tenant. See Murray v. Bullard Co., 110 N.H. 220, 265 A.2d 309 (1970); Black v. Fiandaca, 98 N.H. 33, 93 A.2d 663 (1953). We answer question (B) "No", the six-year limitation does not apply.
In view of our answers to questions (A) and (B), permitting *348 the plaintiffs to maintain their actions it is not necessary to consider the constitutional issues raised by them, and therefore question (C) need not be answered.
Answers returned.
GRIFFITH, J., did not sit; the others concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328394/ | 212 Ga. 231 (1956)
91 S.E.2d 764
CORBIN
v.
THE STATE.
19172.
Supreme Court of Georgia.
Argued January 11, 1956.
Decided February 15, 1956.
Rehearing Denied February 29, 1956.
Paul James Maxwell, for plaintiff in error.
Paul Webb, Solicitor-General, Carl B. Copeland, William E. Spence, Eugene L. Tiller, Eugene Cook, Attorney-General, Rubye G. Jackson, contra.
CANDLER, Justice.
John F. Corbin was indicted in Fulton County on January 22, 1954, jointly with Juanita Bullock and Tommie Couch for the murder of Oscar Roebuck, to which charge he pleaded not guilty. He was convicted of murder on March 19, 1954, without any recommendation and sentenced to be electrocuted. For errors in the court's instructions to the jury, this court reversed his conviction and granted him a new trial. See Corbin v. State, 211 Ga. 400 (86 S.E.2d 221). He was tried anew on June 9, 1955, convicted as before, and again sentenced to death by electrocution. In due time, he filed a motion for new trial on the usual general grounds, and later amended it by adding twelve special grounds. His amended motion was denied and the exception is to that judgment. Held:
1. There is no merit in special ground 1 of the motion for new trial, which alleges that the trial judge erred in denying the defendant's motion for a continuance. A motion to continue is addressed to the sound discretion of the trial judge, and this court will not interfere unless it is clearly shown that he has abused his discretion. Code § 81-1419; Blackston v. State, 209 Ga. 160 (2) (71 S.E.2d 221), and citations. The grounds for continuance here are that counsel had been employed only two weeks and had been handling other cases, that counsel had been unable to find some of the defendant's witnesses, and that some of his witnesses were out of the State, and others had not responded to the subpoenas served on them. This court will not hold that the trial judge abused his discretion in refusing a continuance where counsel had been employed for two weeks and was unprepared because he had been handling other cases. See Burchard v. Boyce, 21 Ga. 6 (2). In all applications for continuances upon the ground of the absence of a witness, it must be shown to the court that a named witness is absent; that he has been subpoenaed; that his testimony is material; that such witness is not absent by the permission, directly or indirectly, of such applicant; that he expects to be able to procure the testimony of such witness at the next term of the court; and that such application is not made for the purpose of delay, but to enable the party to procure the testimony of such absent witness; and the facts which the applicant expects to prove by the absent witness must be stated. Code § 81-1410. The motion for continuance in this case did not comply with these requirements. Hence, no abuse of the court's discretion in refusing to continue the case because of the absence of witnesses is shown.
2. "Mere failure to have a verdict, or verdicts, previously rendered in the same case, covered up or concealed from the jury will not, in the absence of any request on the subject, be treated as error." Smalls v. State, 105 Ga. 669 (6) (31 S.E. 571). For a like ruling see Allen v. State, 155 Ga. 332 (1) (116 S.E. 534). In special ground 2 of the defendant's motion, it is alleged that the court erred in allowing the indictment to be taken to the jury room with a former verdict convicting him entered upon it. This ground of the motion does not show that the defendant, during his trial, made any request that the former verdict against him be detached. erased, or in some way concealed; however, the trial judge in his order approving this ground of the motion certifies that the former verdict was *232 completely concealed by a cardboard stapled over it before the indictment was sent to the jury room, and that it was still so concealed when the indictment was returned to the courtroom by the jury. This special ground of the motion shows no error and is wholly without merit.
3. In special ground 3, it is alleged that the court erred in failing, without a request therefor, to specifically instruct the jury that the indictment against the defendant was not evidence and should not be considered as such by the jury. This contention is without merit. In his charge to the jury the judge gave the following instructions: "The indictment together with the defendant's plea of not guilty forms the issue which you gentlemen are to determine." Also, "It is necessary for the State to prove every material allegation in this bill of indictment to your satisfaction beyond a reasonable doubt, by the production of evidence, before you would be authorized to convict the defendant."
4. Special ground 4 alleges that the court erred in giving the following charge: "Your verdict should be in writing, it should be dated, it should be entered upon the indictment in this case, signed by one of your members as foreman and returned into open court." The movant contends that this portion of the charge was erroneous, because (1) it was confusing, (2) it was misleading, and (3) it was the duty of the court to supply the jury with a separate piece of paper on which to write its verdict "with no writings, scribblings, or cover-ups thereon," so that the jury would not be influenced against him by the entries on the bill of indictment. From the facts recited and the ruling made in division 2 of this opinion, it necessarily follows that this special ground is not meritorious.
5. Special ground 5 alleges that the court erred in failing to charge the jury, without request, substantially as follows: "Certain statements have been made in your presence by counsel; and there has been certain testimony read to you as testimony of witnesses in a previous trial of this case. It is proper that the court instruct and caution you that you are not to permit yourselves to be influenced for or against either side of the case, by whether there was or was not any previous trial or trials or the outcome thereof. It is not proper for you to concern yourselves with any such previous trial or trials." In view of the full and fair charge given on this trial, there is clearly no merit in this special ground of the motion.
6. Special ground 6 alleges that the court erred in failing to charge, without request, substantially as follows: "You are to totally disregard the entries upon the bill of indictment showing the plea of guilty by a co-defendant in this case, Tommie Couch, dated May 17, 1954. Likewise, you are to totally disregard the entry on the bill of indictment as to the other codefendant Juanita Bullock upon which no disposition appears. You are in your deliberation not to be concerned with these writings upon the bill of indictment." In the absence of a timely written request for such a charge, this special ground shows no error.
7. Special ground 7 alleges that the court erred in refusing to permit the movant's counsel to question him while he was making his statement to the jury concerning a letter the defendant then had in his hand. This ground of the motion shows no error. Under the wording of our statute as construed by our courts, the defendant makes his own statement. Prater v. State, 160 Ga. 138 (2) (127 S.E. 296). The right to make a statement in his behalf is a personal right granted to the defendant by *233 Code § 38-415, and extends no further than to permit him personally to make to the court and jury just such statement as he deems proper in his defense. His counsel has no right to ask him questions while he is making his statement. The trial judge, however, in his discretion, can permit his counsel to ask him questions or make suggestions to him relating to his statement, while he is making it or when he has concluded it. Echols v. State, 109 Ga. 508 (4) (34 S.E. 1038); Walker v. State, 116 Ga. 537 (1) (42 S.E. 787, 67 L. R. A. 426); Lindsay v. State, 138 Ga. 818 (8) (76 S.E. 369); Jarrard v. State, 206 Ga. 112 (55 S.E.2d 706). In this case it does not appear from the record that the trial judge abused his discretion in refusing to permit the defendant's counsel to question him. In Lindsay's case, supra, it was said: "There was no abuse of discretion in refusing to allow counsel for the defendant, over objection, to examine the accused after he had made his statement not under oath, although he had submitted to examination by the State's counsel."
(a) During the trial the defendant made no sufficient attack on the constitutionality of our statute, or any part thereof, which gives the defendant the right to make a statement to the court and jury in his own behalf (Mullis v. State, 197 Ga. 550, 553; 30 S.E.2d 99), but in this special ground of his motion for new trial, he makes in form proper constitutional attacks on that statute, alleging that it offends enumerated provisions of the State and Federal Constitutions. However, this attack came too late to be considered. "A question as to the constitutionality of a law cannot be raised for the first time in a motion for a new trial, where it was not made either by demurrer to the pleadings or by objections to evidence, or in some other appropriate way pending the trial." Stone v. State, 202 Ga. 203 (42 S.E.2d 727); Flynt v. Dumas, 205 Ga. 702 (54 S.E.2d 429); Tucker v. City of Atlanta, 211 Ga. 157 (84 S.E.2d 362).
8. Special ground 8 alleges that the court erred in allowing in evidence a written statement concerning the killing of Oscar Roebuck, which Tommie Couch gave the investigating officers on January 21, 1954. When this statement was offered by the State, the only objection which counsel for the defendant made to its admission was in substance the following: Unless the State has this witness here to testify, I am certainly going to object to the admission of her statement, on the ground there can be no cross-examination of her and "no verification that she admitted that she signed it." The record shows that the witness (Tommie Couch) was present at the trial, testified as a witness for the State, was cross-examined at length by counsel for the defendant, and she testified that she signed the statement. Over the objection made, this ground of the motion shows no error.
9. On the trial, written statements concerning the killing of Oscar Roebuck, which Juanita Bullock and Tommie Couch gave the investigating officers, were admitted in evidence. They were identified as State's exhibits 16 and 17. They are similar in all material respects and show that the defendant killed Roebuck without any semblance of justification while robbing him and the place of business where he was employed. Juanita Bullock's statement was admitted without objection, and we have in the preceding division dealt with the objection to Tommie Couch's statement. J. E. Helms, a member of Atlanta's police department and as a witness *234 for the State, testified that he read each of the statements to the defendant in the presence of his former attorney and the girls who made them, and the defendant at that time said the girls had told the truth. Respecting these statements, the court instructed the jury: "Gentlemen of the jury, State's exhibit 16 and State's exhibit 17 are admitted solely for the purpose of establishing an admission by the defendant if they do so establish it. Whether or not they establish an admission by the defendant is a question of fact for you to determine. The court will give you instructions in regard to admissions and the law applicable to admissions in its charge to you." Special ground 9 of the motion for new trial alleges that the quoted instruction was erroneous and unsound as an abstract principle of law, in that it was inapplicable to the issue and clearly inappropriate because the reason for allowing the statements in evidence could not have been exclusively for the purpose of proving an admission by the defendant, since they tend to establish or prove a conspiracy between the defendant and his co-indictees to do the unlawful act charged in the indictment, and they tend to impeach and contradict the anticipated statement of the defendant and his witnesses and tend to show motive. We cannot perceive how the defendant was injured by this instruction, and error without injury never requires the reversal of a judgment.
10. Special ground 10 alleges that the court erred, without request therefor, in failing to charge on insanity as a defense. This contention is without merit. On this issue, the defendant introduced several witnesses, who testified that he was normal mentally and that he, in their opinion, knew the difference between right and wrong. There was no evidence by any one that the defendant was mentally unable to distinguish between right and wrong with reference to the unlawful act for the commission of which he was being tried.
11. When the defendant went to the stand to make his statement, he was fully and correctly instructed by the judge respecting his right to make to the court and jury an unsworn statement. While making it, he started to read verbatim a letter which he then had in his hand, a letter which had not been introduced in evidence and as to the genuineness of which there was no proof. State's counsel objected to his reading it. The jury was retired, and there was a colloquy between the judge, defendant's counsel, and counsel for the State, which covers 16 pages of the record. On the return of the jury to the courtroom, the judge stated to the defendant: "I will instruct you again that you have the right to make such statement in your own defense, as you may deem proper subject to the limitations which the court just stated, that is, you have no right to read any letters that you hold in your hand, if you hold a letter in your hand." Special ground 12 alleges that the court erred in giving the defendant the quoted instruction, because (1) it illegally restricted his right to make such statement in his own behalf as he deemed proper; (2) it prohibited him from refreshing his recollection from the letter; and (3) it denied him the right to give the jury his pertinent and material statement as to why he remained silent when the statements of the two codefendants were being made immediately after the alleged murder. That this ground of the motion for new trial is without merit, is well settled by the unanimous rulings in Wells v. State, 97 Ga. 209 (22 S. E. *235 958), Nero v. State, 126 Ga. 554 (55 S.E. 404), and Woodard v. State, 5 Ga. App. 447 (4) (63 S.E. 573).
12. The remaining special ground of the motion has been carefully examined and considered, and it is sufficient to say that it is without merit.
13. The evidence was amply sufficient to show that the defendant and his co-indictees went to the place of business where the deceased was employed, for the sole purpose of robbery; that the defendant shot the deceased in the back of his head while he was picking up a coin which had fallen on the floor; and that, after thus killing him, the defendant robbed his person and the place of business of all money there found. It shows nothing short of a brutal and wholly unjustified killing by a person who knew the difference between right and wrong with reference to that particular act. Hence, there is no merit in the general grounds of the motion for new trial.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., who dissents from the ruling in division 11 of the opinion, and from the judgment of affirmance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328395/ | 324 S.C. 372 (1996)
478 S.E.2d 289
The STATE, Respondent,
v.
Mayberry HORNE, Appellant.
No. 2562.
Court of Appeals of South Carolina.
Heard September 10, 1996.
Decided October 7, 1996.
Rehearing Denied November 21, 1996.
*374 Assistant Appellate Defender Lesley M. Coggiola, of S.C. Office of Appellate Defense, Columbia, for Appellant.
Attorney General Charles Molony Condon, Chief, State Grand Jury, John S. Simmons, Assistant Attorney General, *375 State Grand Jury, Chris Gantt Hoffman, Columbia, for Respondent.
ANDERSON, Judge:
Mayberry Horne appeals the trial judge's denial of his motion for a directed verdict on the charge of conspiracy to traffic in 100 pounds or more of marijuana. We affirm.
FACTS/PROCEDURAL BACKGROUND
Appellant was one of seventeen persons indicted by the State Grand Jury for conspiracy to traffic in 100 pounds or more of marijuana, a violation of S.C.Code Ann. § 44-53-370(e)(1)(b) (Supp.1995). Specifically, the indictment charged Robert "Bob" E. Gearhart, Bobby James Dove, David Gibson, Donald Edwin James, Edward Michael Shannon, Marisol "Mary" Uribe, Gerald Vincent Williams, Randy Willard McWaters, Steve Garris, Claude Lee Blevins, Thomas "Tom" E. Grant, Kenneth Tesseneer a/k/a "K.T.," David Jack Wallace a/k/a "Karate Dave," John Clay Watts, Samantha Lynn Edwards, Deborah Wishert and Mayberry Horne (Appellant) with knowingly conspiring, agreeing, and having a tacit understanding to traffic in 100 pounds or more of marijuana in Union, Chester, York, and Greenville counties from approximately January 1, 1993 until December 31, 1993. Ten of the defendants pled guilty to charges related to the conspiracy. Appellant and six co-defendantsGearhart, Dove, Shannon, Uribe, Williams, and McWatersproceeded to a joint trial at which all except McWaters were convicted of conspiracy to traffic in 100 pounds or more of marijuana; McWaters was convicted of conspiracy to traffic in between 10 and 100 pounds of marijuana.
Numerous State's witnesses were presented at the trial of Appellant and his six co-defendants. Claude Lee Blevins, who pled guilty to conspiracy to distribute marijuana, testified as a confidential informant regarding the activities of several of the defendants who allegedly worked with Appellant. David Gibson, Deborah Wishert, and Donald James testified with specificity as to Appellant's role in this complex trafficking operation. Prior to Appellant's trial, Gibson and James pled guilty to conspiracy to traffic in between 10 and 100 pounds of *376 marijuana, and Wishert pled guilty to conspiracy to distribute marijuana.
Blevins testified that after his arrest in 1993 for possession of marijuana, he became a confidential informant for law enforcement and began providing information about his roommate, defendant Bobby James "Jamie" Dove. Blevins admitted he had sold marijuana for Jamie Dove and defendant Michael Shannon. He stated he first became aware Dove was trafficking in large quantities of marijuana when he found four or five empty boxes in one of the bedrooms at Dove's home and a large amount of marijuana residue on the floor. Dove informed Blevins that he and several other individuals had cut up 200 pounds of marijuana that day, taken it to defendant Donald James's trailer, and buried it in a steel box in the back yard.
Blevins testified that on another occasion, he drove Jamie Dove to the Charlotte, North Carolina airport in an unsuccessful attempt to pick up a shipment of marijuana. The day after the Charlotte trip, Blevins saw two suitcases which had a strong odor of marijuana at Dove's home, and Gearhart told him that he had picked up the shipment himself early that morning. Blevins stated that, at Gearhart's instruction, Dove gave him 2 ounces of the marijuana "for his trouble." Blevins also revealed that he arranged the sale of 10 pounds of marijuana to an undercover officer, Matt Hall, by Bob Gearhart, Jamie Dove, and Michael Shannon. Blevins stated Marisol Uribe lived with Bob Gearhart and was also present during some of the discussions about the trafficking scheme, but stated he did not know Appellant.
Defendant David Gibson testified that he contacted the police and admitted his involvement in the trafficking conspiracy after becoming aware that several of the defendants were under investigation. Gibson stated he was living with Deborah Wishert, who is now his wife, and Donald James in January 1993 when Bob Gearhart asked him to pick up a 25pound package of marijuana in Texas and bring it back to Chester, South Carolina. Gibson stated he had previously purchased drugs from Gearhart in 1986. Gibson drove to Texas with Wishert and Michael Shannon to complete the transaction, but only 5 pounds of marijuana was available at *377 that time. At Gearhart's request, Gibson subsequently made four more out-of-state trips in 1993 to New York and Los Angeles and brought back approximately 175 pounds of marijuana: Gibson obtained 25 pounds in New York and 50 pounds on each of three trips to Los Angeles.
Gibson stated that he usually followed the same procedure on each trip; Bob Gearhart or Marisol Uribe would reserve his plane tickets and motel room and give him the phone number of their contact person, someone would deliver the drugs to his motel room, and Gibson would telephone Wishert to confirm things were going according to schedule. Upon Gibson's return to South Carolina, he would take the marijuana to Donald James's home, where those present would smoke a sample before burying the rest in some nearby woods. Gibson testified that Appellant was one of several defendants who regularly received about 5 pounds of marijuana out of each shipment Gibson brought back to South Carolina. Gibson also admitted he made three trips to the airport to pick up shipments of marijuana coming in from other states, and noted Appellant was present on one of the occasions when he returned to Donald James's home with the marijuana.
Deborah Wishert, who is now married to David Gibson, testified that she usually drove Gibson to and from the Charlotte airport for his out-of-state trips to purchase marijuana, but on one of Gibson's return trips from Los Angeles, Donald James asked Appellant to pick up Gibson because Wishert was having car trouble. Wishert testified that she was in fact able to pick up Gibson, but no one informed Appellant of the change in plans. When Wishert and Gibson subsequently arrived at Donald James's home with the shipment of marijuana, Wishert stated Appellant and his wife were already there, and they were joking about Appellant's inability to find Gibson at the Charlotte airport.
Donald James testified that he contacted the police and informed them of his role in the marijuana operation because he knew he was being investigated. James stated Bob Gearhart approached him in 1993 and asked him if he was interested in returning to the marijuana business. Gearhart initially gave James 10 pounds of marijuana, which he distributed to Appellant, David Gibson, Steve Garris, and Jamie Dove. *378 James stated that on another occasion, Appellant received a portion of a 25- to 30-pound shipment of marijuana that had been brought back from Ohio. James testified that the marijuana Gibson, Wishert, and Shannon brought back from Texas was a shipment weighing approximately 8 pounds; he recalled it was buried in the ground and then later given to Appellant.
James testified he assisted Gearhart and Uribe in making arrangements for Gibson to start flying the marijuana in, usually 50 pounds at a time. James recalled Gibson went to "either New York or Chicago," and then made three trips to California to purchase marijuana. James stated that at Gearhart's instruction, he, Appellant, Gibson, and Michael Shannon divided the 50-pound shipments of marijuana into 1-gallon baggies and put it in plastic containers which they buried in the woods. James testified that Appellant usually received anywhere from "2 to 3 to 5 pounds" of marijuana out of each shipment for his assistance. James estimated 150 to 170 pounds of marijuana were brought in from January to March of 1993.
At the conclusion of the State's evidence, Appellant moved for a directed verdict on the charge of conspiracy. The trial judge denied the motion, and the jury subsequently convicted Appellant of conspiracy to traffic in 100 pounds or more of marijuana.
ISSUE
Did the trial judge err in denying Appellant's motion for a directed verdict?
LAW/ANALYSIS
Appellant contends the only evidence presented at trial was that he might have obtained drugs in amounts of 2 to 3 pounds from individuals who were involved in an operation which was bringing drugs into South Carolina. Appellant argues there was no evidence linking him to an organized trafficking operation, and he was therefore entitled to a directed verdict on the charge of conspiracy to traffic in 100 pounds or more of marijuana. We disagree.
*379 MOTION FOR A DIRECTED VERDICT
A. STANDARD OF REVIEW
In reviewing the trial judge's denial of a motion for a directed verdict, we must view the evidence in the light most favorable to the State, and if there is any direct or any substantial circumstantial evidence, reasonably tending to prove the guilt of the accused, we must find that such issues were properly to be decided by the jury. State v. Venters, 300 S.C. 260, 387 S.E.2d 270 (1990). See also State v. Prince, 316 S.C. 57, 64, 447 S.E.2d 177, 181-82 (1993) ("It is well-established that, in ruling on a motion for directed verdict, the trial court must view the evidence in the light most favorable to the State. The case should be submitted to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced.").
In ruling on a motion for a directed verdict, the trial judge is concerned with the existence or nonexistence of evidence, not its weight. State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991); State v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984). However, "[t]he trial judge should grant a directed verdict motion when the evidence merely raises a suspicion that the accused is guilty." State v. Schrock, 283 S.C. 129, 132, 322 S.E.2d 450, 452 (1984).
We note that the trial judge's standard for submission of the case to the jury is distinguishable from the standard applied by the jury in evaluating circumstantial evidence. Where the evidence is circumstantial, it is the trial court's duty to submit the case to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced. State v. Brisbon, 474 S.E.2d 433 (S.C.Sup. Ct.1996) (Davis Adv.Sh. No. 23 at 9); State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989); State v. Littlejohn, 228 S.C. 324, 89 S.E.2d 924 (1955). In contrast, the standard for the jury's deliberation is that it may not convict the defendant unless every circumstance relied upon by the State has been proven beyond a reasonable doubt, and all of the circumstances so proven are consistent with each other and, taken together, point conclusively to the guilt of the accused to the exclusion *380 of every other reasonable hypothesis. State v. Edwards, 298 S.C. 272, 379 S.E.2d 888, cert. denied, 493 U.S. 895, 110 S. Ct. 246, 107 L. Ed. 2d 196 (1989); State v. Wakefield, 473 S.E.2d 831 (S.C.Ct.App.1996) (Davis Adv.Sh. No. 16 at 14).
B. CONSPIRACY
A "conspiracy" is statutorily defined as a combination between two or more persons for the purpose of accomplishing an unlawful object or a lawful object by unlawful means. S.C.Code Ann. § 16-17-410 (Supp.1995). In State v. Fleming, 243 S.C. 265, 133 S.E.2d 800 (1963), the South Carolina Supreme Court states the law of conspiracy with exactitude:
The foregoing statute [the predecessor to section 16-17-410] is declaratory of the common law definition of conspiracy. State v. Jacobs, 238 S.C. 234, 119 S.E.2d 735, and authorities cited therein. It need not be shown that either the object or the means agreed upon is an indictable offense in order to establish a criminal conspiracy. It is sufficient if the one or the other is unlawful. State v. Davis, 88 S.C. 229, 70 S.E. 811. Nor need a formal or express agreement be established. A tacit, mutual understanding, resulting in the willful and intentional adoption of a common design by two or more persons is sufficient, provided the common purpose is to do an unlawful act either as a means or an end. 15 C.J.S. Conspiracy § 40. Although the offense of conspiracy may be complete without proof of overt acts, such "acts may nevertheless be shown, since from them an inference may be drawn as to the existence and object of the conspiracy. It sometimes happens that the conspiracy can be proved in no other way." State v. Hightower, 221 S.C. 91, 69 S.E.2d 363. "To establish sufficiently the existence of the conspiracy, proof of an express agreement is not necessary, and direct evidence is not essential, but the conspiracy may be sufficiently shown by circumstantial evidence and the conduct of the parties. The circumstantial evidence and the conduct of the parties may consist of concert of action." 15 C.J.S. Conspiracy § 93a.
Id. at 274, 133 S.E.2d at 805.
An excellent academic review of the law of conspiracy is articulated in State v. Amerson, 311 S.C. 316, 428 S.E.2d 871 (1993):
*381 Generally, the agreement, which is the essence of the conspiracy, is proven by various overt acts committed in furtherance of the conspiracy. Therefore, a single conspiracy may be established by completely different aggregations of proof so that there appears to be several conspiracies. United States v. Ragins, 840 F.2d 1184 (4th Cir.1988). Accordingly, a multi-pronged flexible "totality of the circumstances" test is applied to determine whether there were two conspiracies or merely one. Id. The factors considered are (1) the time periods covered by the alleged conspiracies; (2) the places where the conspiracies are alleged to have occurred; (3) the persons charged as conspirators; (4) the overt acts alleged to have been committed in furtherance of the conspiracies, or any other descriptions of the offenses charged which indicate the nature and scope of the activities being prosecuted; and (5) the substantive statutes alleged to have been violated. Id. This test was adopted by this Court in [State v. Dasher, 278 S.C. 454, 298 S.E.2d 215 (1982) ].
Id. at 319-20, 428 S.E.2d at 873.
It is axiomatic that a conspiracy may be proved by direct or circumstantial evidence or by circumstantial evidence alone. State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989). As State v. Miller, 223 S.C. 128, 74 S.E.2d 582 (1953) instructs: "Often proof of conspiracy is necessarily by circumstantial evidence alone." Id. at 133, 74 S.E.2d at 585 (citing 15 C.J.S. Conspiracy § 92a, page 1141). Substantive crimes committed in furtherance of the conspiracy constitute circumstantial evidence of the existence of the conspiracy, its object, and scope. State v. Wilson, 315 S.C. 289, 433 S.E.2d 864 (1993). Under South Carolina law, no overt acts need be shown to establish a conspiracy. The crime consists of the agreement or mutual understanding. Id.
It is not enough for the offense of conspiracy that a group of people separately intend to distribute drugs in a single area, nor enough that their activities occasionally or sporadically place them in contact with each other. State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993). Proof of a buyer-seller relationship, without more, is inadequate to tie the buyer to a larger conspiracy; however, an agreement to *382 distribute drugs can rationally be inferred from frequent contacts among the defendants and from their joint appearances at transactions and negotiations. Id.
Once a conspiracy has been established, evidence establishing beyond a reasonable doubt the connection of a defendant to the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981). Further, "the acts and declarations of any conspirator made during the conspiracy and in furtherance thereof are deemed to be the acts and declarations of every other conspirator and are admissible against all." Id. at 42, 282 S.E.2d at 842.
Viewed in the light most favorable to the State, there was sufficient evidence in the case subjudice tending to prove Appellant was guilty of conspiring to traffic in 100 pounds or more of marijuana. Contrary to Appellant's assertion, his role was not limited to that of a buyer-seller relationship with his co-defendants. Rather, there was testimony offered by an admitted co-conspirator, Donald James, that Appellant regularly received a portion of the marijuana shipments that were brought into South Carolina by Gibson, and that he helped divide and package the drugs into amounts suitable for distribution. Further, there was evidence that Appellant attempted to pick up David Gibson, another admitted co-conspirator, when he returned to Charlotte from Los Angeles with approximately 50 pounds of marijuana. Although overt acts are not required to establish the crime of conspiracy, State v. Wilson, supra, the testimony concerning Appellant's active role in assisting with the procurement and distribution of the marijuana constitutes evidence from which a jury could reasonably conclude that Appellant agreed or had a tacit understanding to traffic in marijuana for the mutual benefit of himself and his co-defendants. Accordingly, the trial judge's denial of Appellant's motion for a directed verdict is
AFFIRMED.
CURETON and GOOLSBY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328401/ | 478 S.E.2d 915 (1996)
223 Ga. App. 807
PRICE
v.
The STATE.
No. A96A1776.
Court of Appeals of Georgia.
December 4, 1996.
*916 Paul Fryer, Bainbridge, for appellant.
J. Brown Moseley, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.
HAROLD R. BANKE, Senior Appellate Judge.
Dexter E. Price was convicted of possession of cocaine with intent to distribute. Following *917 the denial of his motion for new trial, Price enumerates seven errors.
Based on an informant's tip, the Decatur County Sheriff's Office organized a surveillance team to intercept Price's co-defendant, Willie Buggs, who was reportedly bringing a large quantity of cocaine from Florida and driving a "a yellow or beige-colored, older model Chevrolet Impala with an Alabama tag." While on stake-out, Investigator Frank Green observed Buggs' vehicle travelling north from the Florida border. As Green watched the vehicle approach his position, it suddenly stopped and reversed direction. Green radioed the others that the vehicle was attempting to elude.
Buggs pulled into the driveway of an old house and he and his two passengers, Nathaniel Blocker and Price immediately exited the vehicle. Blocker, a co-defendant who ultimately pleaded guilty, testified that as they stopped, Buggs handed Price cocaine wrapped in a paper towel and instructed him to "Run, Dex, Run." Officer James Morris, the first to arrive at the driveway, intercepted both Buggs and Blocker. Despite being commanded by Morris to stop, Price ran out of view behind the house while clutching something in his hand. Within about 10 to 15 minutes, investigators discovered 29 pieces of cocaine wrapped in a paper towel on the ground located next to a child's toy under a little makeshift shed at the rear of the house. The paper towel had a blue oak leaf and red acorn design just like another paper towel later found during a search of Buggs' car. A microanalysis of the paper towel used to wrap the cocaine disclosed a hair fragment determined to be consistent with Negroid hair. Price and the other two defendants are black. In a voluntary custodial interview made less than two hours later, Price stated that when the vehicle stopped in the yard he was scared. He claimed that Willie [Buggs] passed him [the cocaine] and told him to jump out and he ran. Price and Buggs were tried and convicted together. Held:
1. We reject Price's contention that the trial court erred by not suppressing the cocaine seized and his custodial statement.
By running away from a vehicle suspected of being used to courier cocaine, carrying something in his hand, and attempting to avoid contact with police, Price's conduct created reasonable, articulable facts which at a minimum justified his detention. Compare VonLinsowe v. State, 213 Ga.App. 619, 621, 445 S.E.2d 371 (1994).
"A `warrantless arrest' is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing the offense. [Cits.]" Burnham v. State, 265 Ga. 129, 130(2), 453 S.E.2d 449 (1995). Here, the police observed Price's suspicious behavior as he ran away, found cocaine in the backyard where they had seen him flee, and noticed the paper towel wrapped around the cocaine matched the distinctive pattern of a similar paper towel found in Buggs' car. Thus, Price's post-arrest inculpatory statement to the police was not tainted by an illegal arrest and did not require suppression. See Moore v. State, 263 Ga. 11(1), 427 S.E.2d 766 (1993). Nor did Price have a reasonable expectation of privacy or standing to contest the search of a yard belonging to a stranger. Sanders v. State, 181 Ga.App. 117, 118-119(1), 351 S.E.2d 666 (1986).
2. Price contends that the trial court improperly restricted him from asking a prospective juror whether she wanted the prosecutor's side to prevail. To preserve an issue as to error in the conduct of voir dire, objection must be made in the trial court. State v. Graham, 246 Ga. 341, 343, 271 S.E.2d 627 (1980). Price's failure to object to the alleged error precludes appellate review. Id.
3. Price contends that the trial court erred by denying his motion under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) after the State exercised four of four peremptory challenges against black veniremen.[1] See Ford v. State, 262 Ga. 558, 423 S.E.2d 245 (1992). Despite this *918 showing, the trial court summarily denied the motion finding the defense had failed to set forth a prima facie case under Batson. The fact that the State used 100 percent of its strikes against blacks suggested a prima facie case obligating the State to offer clear and reasonably specific explanations of legitimate reasons as to each strike. Smith v. State, 263 Ga. 224, 226(4), 430 S.E.2d 579 (1993); Gamble v. State, 257 Ga. 325, 327(5), 357 S.E.2d 792 (1987).
After the trial concluded and the court sentenced Price to 30 years imprisonment, it then permitted the State to articulate its reasons for each peremptory strike. The prosecutor asserted that two of the stricken jurors had personal relationships with members of Price's family and the transcript of voir dire supports this claim. The other two prospective jurors were purportedly stricken for reasons not elicited during voir dire. The prosecutor stated that three stolen vehicles were discovered in the body shop of one stricken juror; his son was caught driving a stolen car; and his brother had some connection with drug-related offenses. The prosecutor asserted that the other juror (# 123) was from a family with a reputation for selling drugs and his brother had been banned from Decatur County for criminal conduct. At the conclusion of the State's proffer, the court found that the State had offered race-neutral reasons for the exercise of its peremptory challenges.
Unless a discriminatory intent is inherent in a proponent's explanation of a strike, the reason offered will be deemed race-neutral. Jackson v. State, 265 Ga. 897, 898(2), 463 S.E.2d 699 (1995). See Smith v. State, 264 Ga. 449(1), 448 S.E.2d 179 (1994). The trial court had the opportunity to observe firsthand the four veniremen and to determine whether the State's explanations were race-neutral and lacking in discriminatory intent. Trammel v. State, 265 Ga. 156, 157(2), 454 S.E.2d 501 (1995). After reviewing the transcript, and giving the trial court's finding great deference, we are not able to conclude that the trial court's determination was clearly erroneous. Minor v. State, 264 Ga. 195, 197(5), 442 S.E.2d 754 (1994); Sorrells v. State, 218 Ga.App. 413, 414(2), 461 S.E.2d 904 (1995).
4. The trial court did not err in denying Price's motion for a directed verdict on the issue of in-court identification. Police photographed Price at the scene, arrested him on the spot, and took his statement less than two hours later. The issue of identity is a question of fact for jury determination and here, the evidence was sufficient to enable a rational trier of fact to find Price guilty of possession with intent to distribute. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
5. The trial court did not err in admitting Price's redacted statement. Because both Price and his co-defendant Buggs made custodial statements and were being tried together, to prevent a problem under Bruton, the trial court admitted only redacted versions of their statements which omitted any inculpatory comments about each other. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (holding the right of confrontation is violated when several co-defendants are tried jointly and a non-testifying defendant's confession is used to implicate another defendant). Examining both redacted statements, we find that Buggs' statement did not directly incriminate Price so as to trigger a Bruton violation. Having concluded that the redacted statement did not directly implicate Price, we need not determine whether it was highly prejudicial. McDonald v. State, 210 Ga.App. 689, 690(2), 436 S.E.2d 811 (1993).
Nor do we find that a police officer's testimony which paraphrased Price's statement created a false impression concerning the extent of Price's involvement with the cocaine. The redacted statement disclosed that Price admitted that when the vehicle stopped in the yard, he [Price] "ran with the paper towel that contained cocaine." This version did not distort Price's actual statement that "Willie [co-defendant Buggs] passed it [the cocaine] to me and said jump out" and "[h]e advised [me] the cocaine was in the napkin." Moreover, Blocker, the other passenger who pleaded guilty, corroborated Price's redacted statement by testifying that *919 Buggs reached in his pocket with his right hand, pulled out a balled up paper, gave it to Price and instructed him to run. In any event, given the overwhelming evidence of Price's guilt, the admission of the statement was harmless error. Guimond v. State, 259 Ga. 752, 755(3), 386 S.E.2d 158 (1989).
6. The trial court did not err in denying a mistrial predicated on alleged prejudicial statements by the prosecutor. Although Price contends that the prosecutor improperly inflamed the jury by making reference to babies being kicked in the head and people being shot on subways due to drugs, he failed to support this argument with citation to the record. Manderson & Assoc. v. Gore, 193 Ga.App. 723, 733, 389 S.E.2d 251 (1989) (not this Court's function to cull the record on a party's behalf); Court of Appeals Rule 27(c)(3)(i). Nor has Price provided any citation to the transcript showing that he interposed an objection to the alleged remarks. Accordingly, there is nothing preserved for appellate review. Jackson v. State, 213 Ga.App. 420, 421, 444 S.E.2d 854 (1994).
7. Price contends that the trial court erred in its charge on knowledge and improperly denied his requested charges on accident, accessory after the fact, and specific intent. We disagree. The trial court did not err by giving a charge on knowledge that did not explain or define "conspirator." Although the charge deviated slightly from the pattern charge on knowledge, the meaning of "conspirator" was clear in the context of the charges as a whole. See Rhodes v. State, 221 Ga.App. 792, 794(5), 470 S.E.2d 790 (1996); Rowell v. State, 176 Ga.App. 309, 310(3), 335 S.E.2d 689 (1985).
The trial court properly denied the requested charges on accident and accessory after the fact because these charges were not supported by the evidence. Harris v. State, 202 Ga.App. 618, 621(4)(c), 414 S.E.2d 919 (1992); see Moore v. State, 240 Ga. 210, 211(1), 240 S.E.2d 68 (1977). Nor was Price charged as an accessory under OCGA § 16-10-24. See Martinez v. State, 222 Ga.App. 497, 499-500(2), 474 S.E.2d 708 (1996). The trial court also correctly rejected a requested charge necessitating that the State prove a "specific intent" to commit the crime of possession with intent to distribute. OCGA § 16-13-30(b) contains no such requirement.
Judgment affirmed.
BEASLEY, C.J., and BIRDSONG, P.J., concur.
NOTES
[1] When making the Batson motion, counsel asserted that the State had used three of three strikes against black veniremen. Later, the record was corrected to show that the State used four of four strikes against blacks. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328429/ | 228 S.C. 550 (1956)
91 S.E.2d 254
KATIE CARMA, Appellant,
v.
WILLIAM O. SWINDLER, and ONE 1952 DODGE PICKUP TRUCK, bearing 1954 South Carolina License No. H-53720, Respondent.
17109
Supreme Court of South Carolina.
January 26, 1956.
*551 Messrs. McKay, McKay, Black & Walker, of Columbia, for Appellant.
Messrs. Frank L. Taylor and Eugene F. Rogers, of Columbia, for Respondent.
January 26, 1956.
LEGGE, Justice.
*552 While walking across a paved highway after dark, appellant was struck by respondent's truck, and she brought this action to recover damages for resulting personal injury. She appeals from an order of nonsuit.
On the evening of October 30, 1953, about seven o'clock, appellant, a colored woman aged fifty-four years, was returning on a bus from Columbia to her home in or near the State Park Division of South Carolina State Hospital, which is located on the two-lane paved highway known as Farrow Road, about six miles out of the city. In company with her were her adopted daughter, Mary Ann, aged fourteen, Bertha Taylor and her infant son, Gracie Harrell and Rebecca Stevenson. They all lived at or near State Park, and all alighted from the bus at its usual stopping place, opposite the junction of a dirt road running along the outside of the fence enclosing the State Park property. Farrow Road in this vicinity is straight and level, and its pavement is twenty-one feet in width.
Bertha Taylor testified that one car passed on the highway before she got off the bus, and another as she was getting off; that after she and the others had alighted from the bus they waited until the bus had proceeded a short distance (which she estimated to be a little less than the length of the court room), and then started to cross the highway; that Gracie Harrell and Rebecca Stevenson and Mary Ann crossed the highway first and appellant and the witness, who was carrying her child in her arms, followed; that witness looked both ways before starting to cross, and saw no vehicle, nor any light approaching from either direction; and that when witness was not quite half-way across, appellant, who was slightly ahead of her and about three or four steps from the farther edge of the pavement, was hit by the truck, which witness then saw for the first time. She testified that appellant was thrown about fifteen feet, and into the ditch, and that after striking her the truck proceeded down the highway a distance of about the length of the court room before coming to a stop. She had no idea of the speed of *553 the truck, and was unable to say whether its lights were burning either before or after the accident.
Appellant testified that before she started to cross the highway she looked both ways and saw nothing; that she was "just about across" when she was struck; that she did not see the truck at all, and heard no horn nor any sound of brakes being applied. She testified that the two cars that passed while she and the others were getting off the bus had their lights burning. She was knocked unconscious and did not regain consciousness until she was in the hospital.
Mary Ann Carma testified that after they had all alighted from the bus she looked both ways and saw the truck with its lights burning, "about a block up the road" (which on cross examination she estimated as a distance about equal to the length of the court room), and approaching rapidly; that she then walked across the highway and had just gotten on the dirt road when the truck struck appellant, who at that time lacked "about two steps" of completing her crossing of the pavement. Although she testified under further questioning by her attorney that she actually saw the truck strike appellant, her earlier testimony on direct examination in that regard was as follows:
"Q. Did you have an opportunity to yell to your mother that the truck was there? A. No.
"Q. Why didn't you? A. Time I got off the pavement and turned around to see if she was coming behind me, the truck hit her, and when I seen her she was over in the ditch."
She testified that she heard neither horn nor the sound of brakes being applied; and that after striking appellant the truck proceeded "half a block" down the road before coming to a stop.
Appellant's husband, who did not witness the accident, testified that on the following day he examined the locus for skidmarks, but found none; that in the direction from which the truck had come there was, on the highway, about two *554 hundred paces from the point of the accident, a sign indicating a speed limit of thirty-five miles per hour, and near it another sign reading "Watch Out For Aged And Helpless"; and that, in addition to other lights along the front of the State Hospital property, there was one, which had been burning on the night of the accident, near the corner of the fence along which the dirt road runs, at a point some nineteen paces from the edge of the Farrow Road.
Appellant's only other witness was the physician who had attended her at the hospital, and whose testimony is not pertinent to the issue now before us.
At the conclusion of appellant's case, respondent moved for a nonsuit upon the ground that there had been no proof of negligence on his part, and upon the further ground that even if the evidence be viewed as tending to establish such negligence it was susceptible of no reasonable inference other than that appellant had been guilty of contributory negligence. The trial judge's remarks following the argument indicate that the motion was granted upon the latter ground.
In Spearman v. Couch, 218 S.C. 430, 63 S.E. (2d) 161, a pedestrian had been struck by a motor vehicle while attempting to cross a four-lane highway, in a thirty-five-mile speed zone, at a point opposite its junction with a street, the accident occurring about seven o'clock on a misty December evening. Verdict was for the plaintiff, and on appeal one of the issues discussed was the applicability of Section 1616 (28) of the 1942 Code, which provided that "Every pedestrian crossing a highway, except where traffic control signals are provided, shall yield the right-of-way to all vehicles upon the highway." This court declared that in the light of that statute, there being no traffic control signals at the intersection in question, the trial judge was in error in holding, in his order refusing defendant's motion for judgment n. o. v., that a pedestrian has an equal right with motor vehicles in crossing a street at an intersection, and is not required as a matter of law to yield the *555 right-of-way to them. But this error was held to be harmless because it could not be said, from the evidence, that plaintiff was guilty of more than simple negligence, and there was testimony that the motor vehicle was being operated at a rate of speed as high as seventy miles per hour, thereby warranting the conclusion that the defendant was guilty of gross negligence, as to which plaintiff's contributory negligence would be no defense; and the judgment of the lower court was accordingly affirmed.
By the Act of June 7, 1949, XLVI Stat. at L. 466, Code 1952, § 46-201 et seq. the laws regulating traffic on highways and streets were comprehensively revised, and Section 1616 of the 1942 Code was, among others, expressly repealed. The following portions of the 1949 Act are of interest here:
Section 14(a), Code 1952, Section 46-251, defines "`street' or `highway'" as "The entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel".
Section 14(c), Code 1952, Section 46-254, defines "roadway" as "that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the shoulder or berm."
Section 14(d), Code 1952, Section 46-256, defines "sidewalk" as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines intended for the use of pedestrians."
Section 15(a), Code 1952, Section 46-257, defines "intersection" as "the area embraced within the prolongation or connection of the lateral curb lines or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles * * *."
Section 16, Code 1952, Section 46-258, defines "crosswalk" as (1) "That part of a roadway at an intersection included within the connections of the lateral lines of the *556 sidewalks on opposite sides of the highway measured from the curbs or in the absence of curbs from the edges of the traversable roadway; or (2) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface."
Section 91(a), Code 1952, Section 46-433: "When traffic control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. * * *"
Section 92, Code 1952, Section 46-435: "Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. * * *"
Section 93, Code 1952, Section 46-442: "Notwithstanding the provisions of this article every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway."
In Wright v. South Carolina Power Co., 205 S.C. 327, 31 S.E. (2d) 904, where a pedestrian, attempting to cross a city street in the middle of a block and at an angle, was struck by a bus, toward which she was walking, we held that she was guilty of contributory negligence as a matter of law, because there was no obstruction to her view of the approaching bus, which was more readily perceptible to her than she was to its driver.
*557 In Smith v. Biggs, 4 Cir., 223 F. (2d) 839, the accident occurred on the west-bound roadway of a dual lane highway, the two roadways being separated by a grass strip. The motorist had, by driving on the left side of the roadway, passed an automobile proceeding in the same direction, and was on the left side of the roadway when his car struck and killed a pedestrian who was either walking on the roadway or attempting to cross it. Judgment for the plaintiff was reversed on appeal, the court holding that the facts clearly showed the deceased to have been guilty of contributory negligence as a matter of law, and pointing out that for more than a quarter of a mile east of the point of impact the road was stright and clear, that had the deceased looked he could not have failed to see the light of the approaching car, that the accident did not occur at a crosswalk or intersection, and that plaintiff's intestate was wearing dark clothes, which rendered it more difficult for his to be seen by motorists.
At all crosswalks as defined in Section 46-258, supra, the driver of a vehicle must, except when traffic control signals are in operation, yield the right-of-way to a pedestrian crossing the roadway within the crosswalk, marked or unmarked, when the pedestrian is upon the driver's half of the roadway or approaching so closely from the opposite half of the roadway as to be in danger; and, to so yield, the driver must, if need be, slow down or stop. Section 46-433 and 46-435 supra. It will be observed that unmarked crosswalks exist only at intersections, i. e. intersection of ways "publicly maintained". Sections 46-257, 46-251, supra. The junction of an unimproved road, publicly maintained, with a paved highway, is an "intersection". Reese v. National Surety Corp., 224 S.C. 489, 80 S.E. (2d) 47. But both must be publicly maintained.
It is manifest, therefore, that in the case at bar the relative rights and duties of the parties were dependent upon whether the unimproved road leading from the Farrow Road at the point where appellant was attempting *558 to cross the latter was publicly maintained, or not. If it was publicly maintained, then appellant, on or dangerously near respondent's half of the roadway, had the right-of-way, and, regardless of whether or not he was in a 35-mile speed zone, it would have been his duty to slow down, or even to stop, in order to let her cross. If, on the other hand, it was not publicly maintained, then it would have been appellant's duty to yield the right-of-way to respondent's vehicle, Section 46-435, supra, and his right to rely upon the posted speed limit would have been subject only to his duty to exercise "due care" to avoid colliding with her, Section 46-442, supra. We note, in passing, that the sign cautioning drivers to "Watch Out For Aged And Helpless" obviously had reference to inmates of the adjacent State Hospital, and did not affect the legal obligation of respondent to appellant, who was neither aged nor helpless.
The burden of proof rested upon appellant, if she sought the benefit of the statute, to prove that the dirt road in question was publicly maintained. Cf. 25 Am. Jur., Highways, Section 47, p. 365, State v. Miller, 130 S.C. 152, 125 S.E. 298. Such proof being wholly lacking, it follows that she must be held subject to the requirement of Section 46-435, whereby it was her duty, while crossing the roadway, to yield the right-of-way to respondent's vehicle.
We find no evidence in the record justifying the inference that respondent, if negligent at all, was guilty of more than simple negligence. And we think that the evidence on behalf of appellant points conclusively to contributory negligence on her part. It was her duty before attempting to cross the highway, to see that the way was clear, especially since she was about to cross at a point where vehicular traffic had the right-of-way; and her failure to look would have been contributory negligence. Had she looked, she could not have failed to see, as her daughter did, the lights of respondent's truck approaching. It is obvious therefore that she either did not look or, if she looked, *559 she did so in such careless fashion as not to see what was in plain view. In either case she was guilty of contributory negligence as a matter of law. Manhattan For Hire Car Corporation of Richmond v. Williams, 191 Va. 489, 62 S.E. (2d) 10.
Affirmed.
STUKES, TAYLOR and OXNER, JJ., and J. WOODROW LEWIS, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328415/ | 478 S.E.2d 404 (1996)
223 Ga. App. 668
JOHNSON
v.
The STATE.
No. A96A2203.
Court of Appeals of Georgia.
November 7, 1996.
Reconsideration Denied November 25, 1996.
Certiorari Denied February 28, 1997.
C. Jackson Burch, Savannah, for appellant.
Spencer Lawton, Jr., District Attorney, Christine M. Sieger, Assistant District Attorney, for appellee.
ANDREWS, Judge.
Robert Johnson was found guilty by a jury of selling cocaine. He appeals from the judgment of conviction and enumerates as error that: (1) the evidence was insufficient to support the conviction; (2) trial counsel was ineffective; (3) his character was improperly placed into issue; and (4) the trial court erroneously instructed the jury. We find no basis for reversal on these enumerations and affirm the conviction.
*405 1. The evidence was sufficient to support the conviction. The State produced testimony from two undercover police officers showing that they drove an unmarked car to an area known for illegal drug sales and initiated a conversation with Johnson, who was standing near a street corner. One of the officers asked Johnson if he had any drugs on him to sell, and Johnson said, "No." The officer asked Johnson if he knew where she could get some, and Johnson said, "What [do] you need?" The officer replied, "Twenty," the street term for a $20 dollar rock of crack cocaine. Johnson whistled at and motioned for a juvenile to come over to the car and told the juvenile to sell the officer a twenty. The juvenile produced a substance that appeared to the officer to be crack cocaine and sold it to the officer. Shortly thereafter, other police officers in the area who were monitoring the sale arrested the juvenile and Johnson. The substance tested positive for cocaine at the state crime lab.
Johnson testified and said he spoke with the undercover officer and told her he had no drugs and did not sell them. He said that he told the officer some kids in the area sold drugs and that, about that time, a kid came up to the car and sold the cocaine to the officer. He testified that he had nothing to do with the sale and did not encourage the juvenile to sell the cocaine.
Although there were some conflicts in the testimony of the police officers as to the details of the sale, and Johnson testified that he was not involved, it is the function of the jury, not the appellate court, to determine the credibility of witnesses and resolve conflicts in the evidence. Parker v. State, 220 Ga.App. 303, 469 S.E.2d 410 (1996). On appeal from a criminal conviction, the defendant is no longer presumed innocent, and the evidence is viewed in the light most favorable to the verdict. Grier v. State, 218 Ga.App. 637, 638, 463 S.E.2d 130 (1995). The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Johnson was guilty as a party to the sale of the cocaine. OCGA §§ 16-2-20; 16-2-21; Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
2. Johnson claims his trial counsel was ineffective because he failed to find the juvenile who sold the cocaine and produce him as a witness to testify that he (Johnson) was not involved in the cocaine sale.
"The Sixth Amendment right to assistance of counsel also guarantees a criminal defendant the right to effective assistance of counsel. Black v. State, 264 Ga. 550, 448 S.E.2d 357 (1994). In order to obtain the reversal of a conviction on a claim of ineffectiveness of counsel, a defendant has the burden of proof under both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Zant v. Moon, 264 Ga. 93, 97, 440 S.E.2d 657 (1994). Under Strickland, supra, the defendant must prove: (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced the defense. In determining whether or not counsel's performance was deficient under the first prong, a court must measure counsel's performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel's significant decisions were made in the exercise of reasonable professional judgment. Strickland, supra; Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985). Under the second prong, the test is whether there was a reasonable probability that the outcome of the proceedings would have been different but for counsel's deficient performance. Id. `A trial court's finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.' Williams v. State, 214 Ga. App. 106, 446 S.E.2d 789 (1994)." Parker, supra at 306-307, 469 S.E.2d 410.
We apply these standards to the claim of ineffectiveness. At the hearing on the motion for a new trial, trial counsel testified that Johnson gave him the name and address of the juvenile and said the juvenile could testify that he was not involved in the cocaine sale. Trial counsel testified he attempted to locate the juvenile but was unable to find him. The police officers who arrested the juvenile told trial counsel they did not know where he was. On two occasions, trial counsel obtained continuances of the trial *406 because the juvenile had not been located. The case was tried after it was set down for the third time, and the trial court refused to grant another continuance. Although trial counsel testified that he did locate the juvenile after the trial, and that the juvenile told him Johnson was not involved in the sale, the juvenile did not appear and testify at the new trial motion hearing. Even assuming the juvenile would have testified that Johnson was not involved in the cocaine sale, there is ample evidence that trial counsel made reasonable efforts to locate the juvenile prior to the trial. Accordingly, there was no clear error in the trial court's determination that Johnson was afforded effective assistance of counsel, and we affirm the trial court's ruling.
3. Johnson contends the State improperly placed his character into issue, and the trial court erred by denying his motion for a mistrial.
After establishing that the area in which Johnson was arrested was known for illegal drug sales, the prosecutor asked one of the arresting officers if she was familiar with the area, and the officer responded that, "We had several complaintsthese are Silent Witness complaintsthat in reference to Mr. Johnsonthat...." Before the officer could say anything else, defense counsel objected that the reference to complaints in the area against Johnson improperly placed his character into evidence and moved for a mistrial. The trial court denied the motion for a mistrial and gave curative instructions to the jury to disregard the testimony about complaints in reference to Johnson. Given that the testimony was non-responsive to the prosecutor's question, and the trial court gave proper curative instructions to the jury, we find no abuse of discretion in the trial court's determination that a mistrial was not necessary to preserve Johnson's right to a fair trial. Beach v. State, 258 Ga. 700, 701, 373 S.E.2d 210 (1988); Stanley v. State, 250 Ga. 3, 295 S.E.2d 315 (1982).
4. Johnson complains that the trial court repeated its charge to the jury regarding criminal intent and thereby unduly emphasized this charge and rendered the entire charge unfair. This claim has no merit. The record shows the trial court indicated it may have "garbled" this charge, so it repeated it for the sake of clarity. There was nothing even remotely unfair or prejudicial in repeating the charge. Brown v. State, 182 Ga.App. 682, 683, 356 S.E.2d 663 (1987).
Johnson also contends the trial court's charge had the effect of placing undue emphasis on Johnson's credibility. There is no claim that the trial court incorrectly charged on any principle of applicable law. We find no error.
Judgment affirmed.
POPE, P.J., and SMITH, J., concur. | 01-03-2023 | 10-30-2013 |
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